Opinion
No. 57942-8-I.
November 13, 2007.
Anh Vu Nguyen appeals the denial of his CrR 7.8 motions to vacate his conviction of first-degree felony murder. Excluding Nguyen from a chambers conference did not violate his right to be present at a critical stage of proceedings or his right to a public trial because the conference concerned confidential information Nguyen's attorney possessed about another one of the attorney's clients the State proposed calling as a witness. Nguyen's attorney had no actual conflict of interest because the State neither called nor interviewed the proposed witness, and Nguyen has not shown the court erred by declining to unseal the chambers conference record or by failing to appoint counsel for his motions. Nguyen's additional pro se claims also fail. We affirm.
FACTS
The events underlying the offense are set forth in this court's unpublished opinion upholding Nguyen's conviction on direct appeal. We recite here only facts relevant to this post-appeal collateral attack on the conviction.
Nguyen's appeal was consolidated with his codefendant's appeals and one opinion was issued addressing all claims. See State v. Sutton, noted at 119 Wn. App. 1004 (2003), review denied, 152 Wn.2d 1003 (2004).
Nguyen was jointly tried with his codefendants Brandon Sutton and Vien Tran for first-degree felony murder based on predicate offenses of kidnapping and burglary. Sutton was the only defendant to testify. He disputed the State's eyewitness testimony that the defendants entered Khuong Vu's home without permission and shot Vu without provocation. According to Sutton, the men were invited into the house and Vu was the aggressor.
During direct examination, Sutton testified that on the day of the shooting he had worked at his job at Edmark Auto Sales, where he met Nguyen, a tow truck driver. Later, out of the presence of the jury, the prosecutor noted that the State intended to call James Edmark to impeach Sutton's claim that he worked that day. When Edmark arrived at court, however, he declined to answer questions and told prosecutors that Nguyen's attorney Peter Connick was also his attorney. Connick confirmed that he represented Edmark on criminal and civil matters, and told the court any questioning of Edmark would require him to withdraw from the case. Connick indicated he could explain why only in a chambers conference without the prosecutor, the record of which would have to be sealed. The court adopted Connick's recommendation and the State did not subsequently interview Edmark or call him as a witness.
The jury found all three defendants guilty of first-degree murder. This court affirmed the convictions in a consolidated unpublished opinion and the Supreme Court denied Nguyen's petition for review. Nguyen thereafter filed timely pro se motions to vacate his conviction, which the superior court denied.
Nguyen appeals.
DISCUSSION
We review a trial court's resolution of a defendant's post-judgment motion for relief from a conviction for abuse of discretion. See State v. Bao Sheng Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006); State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). A trial court abuses its discretion only if its ruling "is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (citations omitted).
Nguyen first contends that the trial court erred by excluding him from the chambers conference. Under the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, a criminal defendant has a constitutional right to be present during all critical stages of the criminal proceedings. United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985). As this court held in State v. Rooks, 130 Wn. App. 787, 798-99, 125 P.3d 192 (2005), review denied, 158 Wn.2d (2006), however, a defense attorney's potential conflict of interest resulting from representation of a State's witness is a legal matter. The defendant's opinion on the topic is not relevant to whether such a conflict exists. Accordingly, a chambers hearing addressing the issue is not a critical stage because it is not a hearing at which the defendant's presence would contribute to the fairness of the procedure. Rooks, 130 Wn. App. at 801.
Without discussing Rooks, Ngyuen contends that the record shows his presence could have been helpful. He asserts that Connick suggested to the judge that the State call another witness, Viola Eberle, instead of Edmark, to prove Sutton was unemployed. He thus argues that if present, he could have prevented Connick from doing so and avoided Eberle's damaging testimony. The record, however, contradicts this contention. The trial prosecutor unequivocally signified his intent to call Eberle to impeach Sutton on this point the day before any issues with Edmark arose. Moreover, the context of the proceedings reveals that the subject matter of the conference was the confidential information about Edmark that Connick obtained when he represented him, information Nguyen was not entitled to know. RPC 1.6. The trial court did not violate Nguyen's right to be present at a critical stage of the proceedings, and did not err in denying Nguyen's post-trial motion for relief on that basis.
Nguyen next contends that the chambers conference constituted a closure of the courtroom in violation of his right to a public trial and the public's right to open justice. The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution provide the accused with the right to a public trial. State v. Bone-Club, 128 Wn.2d 254, 261-62, 906 P.2d 325 (1995). In addition, the public has an independent right to open proceedings under article I, section 10 of the Washington Constitution. See Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210, 848 P.2d 1258 (1993).
Nguyen argues that the court failed to conduct the necessary on-the-record balancing of the right to a public trial against the need for closure before closing the courtroom. See Bone-Club, 128 Wn.2d at 260-61. However, merely conducting a chambers conference at which the defendant has no right to be present does not constitute a closure of the courtroom requiring such findings. State v. Rivera, 108 Wn. App. 645, 653, 32 P.3d 292 (2001). Nguyen has made no showing that he or any member of the public had a right to review the confidential information that was the subject of the chambers conference.
Nguyen next contends that his right to conflict-free counsel was violated because of Connick's representation of Edmark. The Sixth Amendment right to counsel includes the assistance of an attorney who is free from any conflict of interest. Wood v. Georgia, 450 U.S. 261. 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981); State v. Davis, 141 Wn.2d 798, 860, 10 P.3d 977 (2000). "[A] defendant asserting a conflict of interest on the part of his or her counsel" must show an actual conflict of interest "adversely affected the attorney's performance." State v. Dhaliwal, 150 Wn.2d 559, 571, 79 P.3d 432 (2003) (citing Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002)).
Nguyen acknowledges Edmark did not testify, but argues Connick's performance was adversely affected because Edmark's testimony would have been preferable to Eberle's. His suggestion that Edmark would actually have assisted the defense, however, is entirely speculative. Moreover, as discussed above, the record refutes the claim that the State called Eberle as an alternative witness at Connick's suggestion. Nguyen has not met his burden of showing that Connick's performance was adversely affected by any actual conflict of interest.
Nguyen also contends the trial court erred by failing to grant his request to "unseal" the transcript of the chambers hearing. He relies, however, upon requirements in the current version of GR 15, which did not exist at the time of trial in 2001. In addition, the context of the proceedings provides clear support for the court's action due to the compelling need to protect both Nguyen and Edmark's right to confidentiality. Finally, Nguyen has made no showing that his motion to view the records comported with the mandatory requirements to unseal such records. See GR 15(e).
Nguyen also contends the court should have appointed counsel to assist him with his pro se motions in the trial court. Without at least a prima facie showing of a potentially meritorious claim, however, Nguyen was not entitled to the appointment of counsel to assist in his collateral attack. See State v. Robinson, 153 Wn.2d 689, 699, 107 P.3d 90 (2005).
Nguyen has raised several pro se claims in a statement of grounds for additional review under RAP 10.10. None of his contentions has merit.
Nguyen first argues that the Department of Corrections (DOC) has wrongfully denied him early release by applying former RCW 9.94A.120(4), which was declared unconstitutional in State v. Cloud, 95 Wn. App. 606, 976 P.2d 649 (1999). Cloud's holding, however, is premised on the rule that an initiative contain a single subject, and does not apply to the statute the legislature subsequently enacted to address this problem, which actually governs Nguyen's 2000 offense. See Cloud, 95 Wn. App. at 618 n. 26. Nguyen also cites In re Personal Restraint of Tran, 154 Wn.2d 323, 332, 111 P.3d 1168 (2005), but the holding in Tran applies only to sentences for assault, not murder. Nguyen's claim fails.
Nguyen next contends that his sentence violates his right to equal protection because he and Tran received sentences including a deadly weapon enhancement, while Sutton did not. But the jury found, based on sufficient evidence, that Nguyen and Tran were armed and Sutton was not armed. Nguyen therefore did not have the requisite "near identical participation" in the crime to mandate that he receive the same sentence as Sutton. See State v. Caffee, 117 Wn. App. 470, 68 P.3d 1078 (2002) (quoting State v. Handley, 115 Wn.2d 275, 290, 796 P.2d 1266 (1990)).
Next, Nguyen argues that he was improperly convicted of first-degree felony murder because the only crime he knowingly committed was rendering criminal assistance. See RCW 9A.32.030(1)(c) (listing qualifying felonies). As we held on direct appeal, however, the evidence was sufficient to support the jury's findings that Nguyen was guilty of the predicate offenses and felony murder.
Nguyen also contends the court erred by failing to instruct the jury on the elements of rendering criminal assistance. But he has cited no authority requiring instructions on uncharged crimes that are not lesser included or lesser degree offenses of the charged crimes. Accordingly, he has not shown the trial court abused its discretion in its choice of jury instructions. See State v. Douglas, 128 Wn. App. 555, 561, 116 P.3d 1012 (2005).
Nguyen next contends the court erred by failing to instruct the jury on a supposed lesser offense of assault. He cites the same authority Tran cited on direct appeal in arguing the court should have instructed the jury on the predicate crimes as included offenses. See State v. Lyon, 96 Wn. App. 447, 450, 979 P.2d 926 (1999). As we held in rejecting Tran's claim, Nguyen was not entitled to a lesser included offense instruction because there was no evidence the victim's death resulted from a "later unrelated assault" by another. See Lyon, 96 Wn. App. at 450.
As we noted in the direct appeal, "[t]he evidence permitted only two scenarios: either, as Sutton testified, the altercation was initiated by Vu, in which case there was no burglary, no assault, no abduction, and Vu died in a confrontation of his own making; or, as the other witnesses testified, the defendants were intruders who assaulted Vu and attempted to abduct him." Sutton, slip. op. at 6.
Nguyen next argues he was entitled to a new trial because he was seen by the jurors in shackles. We also rejected this argument when Tran made it on direct review. The trial court properly investigated the claim and found, based on sufficient evidence, that no juror saw any of the defendants in restraints.
Finally, Nguyen contends that the trial court violated his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) by admitting the testimonial hearsay of Tran's statements to police. Nguyen, however, simply misreads the record. Nguyen's counsel sought to admit only part of Tran's statement, but the trial court ruled that if part was admitted, the remainder could be presented to the jury under the rule of completeness, ER 106. We reviewed the trial court's application of this rule on direct appeal and found no abuse of discretion. And because of the trial court's ruling, Nguyen's counsel did not admit any part of Tran's statement. Crawford and the confrontation clause were not implicated.
The trial court did not abuse its discretion by denying Nguyen's CrR 7.8 motions for relief from judgment. We accordingly affirm.