Opinion
Nos. 29027-8-II (consolidated with), 29087-1-II
Filed: May 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 98-1-03162-1. Judgment or order under review. Date filed: 06/28/2002. Judge signing: Hon. Karen Strombom.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Stephanie C Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.
Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Kathleen Proctor, Pierce County, Prosecuting Atty Ofc Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Jimmee Chea and John Phet appeal from their convictions of five counts of first degree aggravated murder and five counts of first degree assault, arguing numerous grounds. We affirm.
Four judges presided over this case. First, Judge Grant Anderson entered CrR 3.5 findings of fact and conclusions of law. When our Supreme Court removed Judge Anderson from the bench, for reasons unrelated to this matter, Judge Rudy Tollefson made preliminary rulings. When the Supreme Court suspended Judge Tollefson from the bench, for reasons unrelated to this matter, the case was re-assigned to Judge Vicki Hogan. Judge Hogan made preliminary rulings, but then recused herself on the defendants' request. Judge Karen Strombom then presided over all further matters, including the trial.
FACTS
We derive the facts from pretrial proceedings and trial testimony.
On July 5, 1998, at approximately 1:45 a.m., several gunmen burst into Tacoma's Trang Dai Caf` and opened fire on the patrons, killing five people and wounding five others. Later, forensic officers collected 52 shell casings in and around the caf`.
The verbatim reports of proceedings are not numbered consecutively. Therefore, the standard abbreviation, `RP' followed by a page number, represents only the trial records before Judge Strombom. The trial record is the most extensive and it is consecutively numbered. `RP' followed by a date and a page number identifies all other proceedings before various judges.
These casings came from five different guns: a 7.62 rifle, three different 9 millimeter semiautomatic handguns, and a .380 semiautomatic handgun.
Tacoma Police Department (TPD) officers retrieved a neighboring business videotape recording of the alley behind the caf`. It revealed two vehicles backing into the alley minutes before gunfire erupted. Based on prior armed assault reports, TPD detectives recognized Chea's silver or gray vehicle. They knew Chea as a member of the LOC's Out Crips (LOC's), a local gang. The detectives then began watching Chea's residence, where they observed that a silver Honda parked there closely matched the Honda in the videotape.
The headlights of a white car displayed in the video illuminated the ground in an unusual pattern. The day after the shootings, a detective who had watched the video observed a car with similar headlights. A records check revealed that the car belonged to Veasna Sok.
The detectives interviewed some of the surviving caf` patrons. They learned that, in March 1998, one of the people injured in the shootings, Son Kim, fought with Ri Le at the caf`. Kim told the detectives that he suspected Le's involvement in the shootings and that he, Kim, was the intended target. The detectives focused their investigation on Le, Chea, and their associates. Later investigation revealed Phet's participation in the crimes.
At 6:00 a.m. on July 18, the detectives served search warrants at nine different locations and took approximately 20 people, including Sok, Sarun Ngeth, and Thanna John Chak, to the police station for questioning. On July 19, Marvin Leo was taken from his residence to the police station for questioning. At the police station, these individuals gave statements implicating themselves and others.
During the searches, the detectives found several photographs of gang members. The trial judge later stated:
I believe some photos are admissible to show the relationship that all of the gang members had with each other, and I think it's particularly significant that these photos were found at the various homes in which the search warrants were executed, in particular Ri Le's and Khanh Trinh's home as well, because that's part of the theory of the case as to why other members of the gang would do what Ri Le wanted them to do.
Report of Proceedings (RP) at 2317. The court admitted into evidence four photographs of gang members, including the one showing gang members holding guns.
In November 2000, Chea and Phet moved to suppress evidence obtained in executing these search warrants, arguing lack of probable cause. In March 2001, Judge Hogan denied the motion. She found compelling ballistics comparisons between casings recovered at the Trang Dai Caf` crime scene and shell casings recovered at a prior shooting scene where the assailants' and the car's descriptions matched those from the caf` shooting. Additionally, Judge Hogan considered prior police contacts with Chea and Phet and their residences or vehicles, and the security videotape from behind the Trang Dai Caf`. From these facts, Judge Hogan found a nexus between the places to be searched and the criminal activity prompting the search.
Sok and Leo stated that Phet rode in the car driven by Chea. During the shooting, Phet was stationed at the rear entrance of the caf` while armed with a 9 millimeter handgun. These co-defendants also claimed that they observed Phet discharging the firearm. Ngeth stated that he did not actually observe Phet discharge a firearm, but that Phet exited the vehicle driven by Chea and headed toward the caf` while armed. Sok and Ngeth claimed that they remained inside the parked vehicles in the alley behind the caf` and that they did not participate in the shooting.
Authorities also contacted Phet and Chea while executing the warrants and transported them to the TPD for interviews. The TPD kept Chea and Phet at the station from approximately 6:00 a.m. until late afternoon, when they were interviewed.
A guard held Chea in a captain's office awaiting his interview. No one asked Chea questions. The guard attended to Chea's personal needs. On July 18, at 4:05 p.m., a detective advised Chea of his Miranda rights and began interviewing him. Chea stated that he understood those rights and he wished to waive them. He then signed the advisement of rights form in the presence of Detectives Davidson and Ringer. During the interview, Chea denied any involvement in the shootings.
Miranda v. Arizona, 384 U.S. 436, 483-85, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The TPD also held 16-year-old Phet, without interviewing him, from approximately 6:00 a.m. until 5:05 p.m., when he received his Miranda warnings. Phet orally acknowledged that he understood his rights and that he wished to waive them and speak to the police. Phet also signed the standard advisement of rights form. Phet did not acknowledge involvement in the shootings.
Phet later moved to suppress his statements, arguing they were involuntary because he had limited education and understanding. Reasoning that Phet made his statements freely and voluntarily after he had been properly advised of his constitutional rights and having chosen to waive them, Judge Anderson declined to suppress the statements. Judge Anderson also stated that `[t]he delay between the time of the defendant's arrest and the time he was interviewed and advised of his rights is understandable given the need for the same detectives to do all of the suspect interviews, and was not prejudicial to the defendant.' Clerk's Papers (CP) Phet 165-66.
The State charged Chea and Phet with five counts of first degree aggravated murder and five counts of first degree assault. The State alleged a firearm enhancement on each count.
The State also charged several other defendants not subject to this appeal: Ri Le, Samath Mom, Khanh Trinh, Sarun Ngeth, Marvin Leo, Veasna Sok, and John Chak. Samath Mom, defendant Phet's brother, committed suicide. Le shot his brother Khanh Trinh and then killed himself when authorities sought to arrest them. Marvin Leo pleaded guilty as charged. Veasna Sok, Sarun Ngeth, and John Chak entered into plea agreements with the State.
The State sought a pretrial ruling on the admissibility of Chea's and Phet's involvement with the LOC's gang. Judge Tollefson ruled the evidence inadmissible because the State failed to show a nexus between the caf` shooting and advancement of any gang-related activity. Judge Tollefson reasoned that the shooting at the Trang Dai Caf` was not a gang-related crime because there was no basis to believe that the LOC's gang or one of its members would benefit from the shooting.
Instead, Judge Tollefson found that the shooting was motivated by Le's desire for revenge against Kim. Because Le was not a member of LOC's gang, the judge believed that the shooting was not gang-related. Therefore, Judge Tollefson ruled that the State failed to show that a nexus existed between the shooting at the caf` and the advancement of some gang purpose.
Later, Judge Hogan agreed to reconsider Judge Tollefson's ruling regarding the gang affiliation evidence. Judge Hogan ruled that the State could raise the issue through an offer of proof. The State presented its offer of proof through Davidson's declaration dated June 11, 2001. Ultimately, Judge Strombom admitted the evidence of gang affiliation.
Later, when Judge Strombom took over the case, the defense argued that the trial court must hold a preponderance hearing regarding gang planning. Judge Strombom declined to do so.
On August 3, 1999, while in custody, Chea and Phet assaulted Sok, who agreed to testify against Chea and Phet under his plea agreement. The State moved to admit the evidence of this assault through the testimony of escorting officers. Judge Tollefson granted the State's motion; he stated that the evidence indicated that Chea and Phet knew that Sok had agreed to testify and that was the reason for the assault.
On that day, officers transported Phet, Chea, and Sok to court for a hearing. Once the officers removed Phet's and Chea's handcuffs, they began hitting Sok, who was still handcuffed. The officers heard Chea and Phet call Sok a `snitch' and yell, `snitches die.' RP (03/24/00) at 38.
Judge Tollefson noted: `This evidence and the statements that were made not only shows consciousness of guilt, but it also links the parties to the crime itself. For that reason, its probative value certainly outweighs the prejudicial effect because it directly links the parties to the crime.' RP (03/24/00) at 39.
Before trial, the State moved to exclude any evidence of alleged gambling or narcotics activity at the Trang Dai Caf` on the grounds that such evidence constituted irrelevant hearsay. Judge Tollefson granted the State's motion.
On September 5, 2001, Judge Hogan denied Chea and Phet's motion to reconsider Judge Tollefson's earlier ruling on this issue. Judge Hogan stated that she did not find the connection between the shooting and the guns and unlawful gambling, or narcotics activities at the caf`. When Judge Hogan recused herself from the case, Judge Strombom also denied the renewed motion to admit evidence of unlawful activities at the caf`. Judge Strombom found no evidence establishing a nexus between these acts and the crimes at issue.
At trial, Sok, who had been a member of the LOC's gang for a couple of years before the shooting, testified. He said that on the evening of the shooting, he left home with his 9 millimeter handgun, which he carried to protect himself against other gangs' members.
Sok went to Ngeth's house, where he picked up Ngeth and Leo; Ngeth was armed with his .380 and Leo took Sok's 9 millimeter. While they drove around, Khanh Trinh called them to find out whether Sok wanted to `put in work' that night. Report of Proceedings (RP) at 4388. Sok understood the term `put in work' meant a drive-by shooting. RP at 4388.
Sok, Ngeth, and Leo waited about 10 minutes before Chea showed up in his car; Chea wore red clothes. Le, Samath Mom, Trinh, and Phet were in Chea's car. Chea asked if they wanted to `put in work'; Le mentioned that he wanted to `get' Kim at the Trang Dai Caf`. RP at 4396. Sok understood this to mean to shoot Kim.
Next, Chak testified that he belonged to the LOC's gang. On July 4, 1998, Chea called Chak and invited him over to Le's house. Chea wore red clothes. He drove his gray/silver Honda Civic and picked up Chak for the ride to Le's house. Phet and Mom were already there. Chea and Le talked about Kim `mean mugging' Chea, a sign of disrespect that could trigger violent retaliation. At one point, Le and Khanh left the house for awhile and returned with red clothing. Eventually everybody got into cars and met other LOC's members.
Later, Davidson testified that, in gang culture, the term `mean mugging' is a `hard stare' meant to challenge or intimidate. RP at 3487. Davidson opined that `mean mugging' could be a prelude to violence and such violence `doesn't have to be immediate.' RP at 3488.
Chak further testified that Sok and his carload and Chea and his carload drove to the market. Chea told Chak to call the caf` to learn whether Kim remained there. When Kim answered, Chak hung up. Both cars then drove into the alley behind the caf`. The cars went down the alley twice, the second time backing into it so that they could leave without driving the wrong way on a one-way street.
Chak also testified that Chea stayed in his car, and Sok and Ngeth stayed in Sok's car; everyone else got out and took guns from Chea's car trunk. Le told Khanh and Phet to guard the back door and to shoot if anyone came out.
Leo, Le, Mom, and Chak headed for the front door; Chak opened the door and everyone rushed in and opened fire. After a short time, the three backed out of the door while Le continued to fire through the wall as they retreated to their cars. By the time Chak and others returned to their cars, Phet and Khanh were already in their car. After the shooting, they all returned to Le's house.
Davidson testified as an expert on gang culture. He opined that gang crimes may include all kinds of assaults, threats, intimidation, physical beatings, nonfatal shootings, stabbings, and homicides. He also stated that gangs were generally formed to make profits, to protect individual members, and to `gang bang' or commit violence; that `OG's' exerted influence over younger gang members; and that gang members would dress in another gang's color when carrying out a drive-by shooting in order to level blame on members of a rival gang.
Davidson stated that the founding members of a gang were called `OG's,' or `original gangsters.' RP at 3405.
Davidson testified that the `Crips' adopted blue as their color and the `Bloods,' a rival gang, adopted red. RP at 3406. Davidson opined that a Crip, such as one of the LOC's, would not dress in red and go out with other Crips unless intending to commit a crime in an attempt to frame a rival gang.
The detective identified Chea as one of the LOC's `OG's.' RP at 3408. Davidson and other witnesses explained gang hand signals, signs, and tattoos, and provided LOC's members' names. Jurors reviewed one photograph of some LOC's gang members, including Chea and Phet.
See footnote 5.
The jury found Chea and Phet guilty as charged, including the firearm enhancements. Chea and Phet appeal.
ANALYSIS I. Charging Document
For the first time on appeal, Phet and Chea contend that the information charging them with first degree aggravated murders did not contain all the essential elements of the crime. They assert that the State did not identify the intended victim of the charged premeditated murder.
An information must contain all essential elements of a crime, statutory or otherwise, in order to give notice to the accused of the nature and cause of the action against him. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). Where the challenge to the sufficiency of the charging document is raised for the first time after the verdict, we construe the document liberally in favor of its validity. Kjorsvik, 117 Wn.2d at 105.
The State charged as follows:
That JIMMEE CHEA and JOHN PHET, acting as accomplices of each other and of Ri Ngoc Le, Samath Mom, Khanh Van Trinh, Sarun Truck Ngeth, Marvin Lofi Leo, Veasna Sok, and Thanna John Chak as defined in RCW 9A.08.020, in Pierce County, on or about the 5th day of July, 1998, did unlawfully and feloniously with premeditated intent to cause the death of another person, shoot [a name of each homicide victim], thereby causing the death of [victim's name], a human being, who died on or about the 5th day of July, 1998 . . . contrary to RCW 9A.32.030(1)(a) and RCW 10.95.020(10).
Clerk's Papers (CP) (Chea) at 757-63; CP (Phet) at 1255 (emphasis added).
RCW 9A.32.030(1)(a) provides: `A person is guilty of murder in the first degree when [w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person.' RCW 10.95.020 provides: `A person is guilty of aggravated first degree murder . . . if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a) . . . and one or more of the following aggravating circumstances exist: . . . (10) There was more than one victim and the murders were part of a common scheme or plan.'
Nothing in these statutes specifies that the victim's name is an element of the crime. Nor do Chea and Phet cite any case law establishing that the victim must be named. To the contrary, in State v. Plano, 67 Wn. App. 674, 679-80, 838 P.2d 1145 (1992), Division One held that the victim's name is not an element of the crime charged. We agree. The argument fails.
II. Chea's and Phet's Custodial Statements
Chea and Phet further contend that the trial court erred in admitting their statements made to the police because the officers failed to advise them of their Miranda rights and their right to counsel `as soon as feasible' as required by CrR 3.1.
CrR 3.1 states:
(b)(1) The right to a lawyer shall accrue as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest.
. . . .
(c)(1) When a person is taken into custody that person shall immediately be advised of the right to a lawyer. Such advice shall be made in words easily understood, and it shall be stated expressly that a person who is unable to pay a lawyer is entitled to have one provided without charge.
Miranda, 384 U.S. at 444-45, requires that prior to a custodial interrogation, a defendant must be informed of his or her constitutional rights. CrR 3.1 goes beyond the requirements of Miranda and requires that a defendant be advised of his right to counsel immediately upon being taken into custody. State v. Dunn, 108 Wn. App. 490, 494, 28 P.3d 789 (2001), aff'd, 148 Wn.2d 193 (2002).
Chea and Phet failed to raise a CrR 3.1 argument below and, thus, did not preserve it on appeal. RAP 2.5(a). We do not address this argument further.
A defendant's rights under CrR 3.1 are procedural, not constitutional. An alleged statutory error, such as this one, is harmless, unless, `within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.' State v. Hancock, 46 Wn. App. 672, 678, 731 P.2d 1133 (1987) (citation omitted), aff'd, 109 Wn.2d 760 (1988).
Moreover, Chea and Phet gave alibi statements or did not acknowledge any involvement in the shootings.
III. Evidence Rulings A. Changing Another Judge's Ruling
Chea and Phet next contend that Judge Hogan had no authority to reconsider Judge Tollefson's earlier ruling excluding evidence of gang affiliation and Judge Strombom erred in later admitting it.
The orderly administration of justice requires that the trial court, after having full opportunity to hear, consider, and decide all material questions of the case, enters formal judgment resolving those questions. Snyder v. State, 19 Wn. App. 631, 635-36, 577 P.2d 160 (1978). In managing litigation, the trial court must have wide discretion and authority, including the power to issue interlocutory orders. Snyder, 19 Wn. App. at 636. These orders or rulings may be changed, modified, revised, or eliminated as the case progresses. Snyder, 19 Wn. App. at 636.
Here, Judge Tollefson initially denied the admission of evidence of gang affiliation: `Unless the State can provide a nexus . . . where there was a relationship to the crime and the crime relates to true gang activities, such as securing your turf or enhancing your reputation with the gang, . . . I don't think that the State has shown a nexus. . . . I am going to rule that [this evidence is not] admissible at this time.' RP (02/14/00) at 77-78. Later, Judge Hogan reconsidered and granted the State's motion to admit evidence of gang affiliation, finding it relevant to the relationship of the participants in the crime.
Judge Hogan noted:
[I]t's clear Judge Tollefson did leave the door open, and didn't feel that in February of 2000 . . . the State had satisfied what he thought was the proper inquiry.
I will require an offer of proof, but I am not closing the door on this issue. I think under Evidence Rule 404(b) the gang involvement does go to the theory of the State's case. The absence of mistake or accident, the evidence of premeditation or with a plan of preparation, as well as intent which are relevant to prove an essential ingredient of the crime charged. . . . It is probative evidence of interrelationships of the participants. There was bad blood between Ri Le and Son Kim. Whatever that basis was, . . . that is not the motive to improve an individual status within the gang, the gang's benefit, but the gang . . . adopted Ri Le's crime, and the gang affiliation is relevant to the relationship of the participants. . . .
I feel that the evidence of the gang involvement and how a gang operates is critical to the showing of how each participant in the gang acted.
RP (5-24-01) at 612-13.
The record discloses that Judge Tollefson entered a preliminary ruling on the admissibility of gang-related evidence based on the State's lack of evidence. Later, after the State more fully developed its evidence and argument and submitted an offer of proof, Judge Hogan modified the ruling, and during trial Judge Strombom admitted it. Under these facts, they did not err in doing so.
B. Gang Association Evidence 1. Expert Qualifications
Chea and Phet also argue that the detective lacked expert qualifications to testify about gangs. We review a trial court decision as to expert qualification for abuse of discretion. State v. Zunker, 112 Wn. App. 130, 140, 48 P.3d 344 (2002), review denied, 148 Wn.2d. 1012 (2003).
Defense counsel raised a question about Davidson's qualifications earlier in the proceedings and questioned whether he had attended lengthy classes. Counsel did not repeat the objection later when Davidson testified and, although we could decline to review it, we review it in the interests of justice.
Davidson detailed his training and experience involving gang crimes and gang-related activities. He had 16 hours of training on gangs. He attended the National Law Enforcement Institute Advanced Gang Conference. He had experience with gang activities as a patrol officer since 1987 and as a detective since 1994. He had investigated hundreds of gang-related crimes and had hundreds of gang-related interactions.
Although the detective's classroom training may have been minimal, an expert may be qualified to express opinions based on experience. ER 702. The trial court did not abuse its discretion in allowing the detective to testify about gangs and gang-related activities.
ER 702 allows an expert to testify if `specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.' An expert testifying as to gang culture need not acquire his knowledge through personal gang membership experience. ER 702.
2. Nexus between Crime Charged and Gang Association
Chea and Phet further contend that the trial court erred in admitting gang-related evidence. They assert an insufficient nexus existed between gang association and the crimes. They also argue that the trial court erred in allowing Davidson to testify as a gang expert because nothing in his testimony assisted the jury in understanding the evidence presented or determining a fact in issue.
Judge Strombom allowed Davidson to testify as to the gang culture and rules. Judge Strombom noted that Davidson's testimony explains to the jury various aspects of a gang and the relationships that develop within a gang. This is not common knowledge, but rather is knowledge gained through experience.
Further, the testimony is not based on Detective Davidson's personal observations of any individual defendant, but rather is used to explain a world which is not understood by people who have no gang experience.
For these reasons, I believe that the testimony is relevant as to motive, intent, identity, plan, preparation and knowledge. I do not believe that the purpose for which the testimony is being presented is unduly prejudicial, as it provides an explanation to the jury regarding gangs and gang life.
RP at 2212-13.
The trial court allowed Davidson to testify as an expert on gang culture. He stated that gang crimes may include all kinds of assaults, threats, intimidation, physical beatings, nonfatal shootings, stabbings, and homicides. He explained the meaning of gang terminology and symbols, including `mean mugging' and `putting in work,' gang criminal activities, gang codes of conduct and discipline, gang interactions with other gangs and prospective gang members, and gang organizational structure and history.
Davidson identified Chea as one of the LOC's `OG's.' RP at 3408. He provided the names of the LOC's members. And jurors also saw pictures of some LOC's gang members, including Chea and Phet, making gang signs. Co-defendants Sok and Chak testified that Phet and Chea participated in the shooting in retaliation for Kim's `mean mugging' Chea, and for Kim's fight with Le. Chea was a gang member and Le was gang affiliate. Both witnesses stated that, in gang culture, an act of disrespect provides grounds for retaliation and murder. They noted that the assailants, including Chea and Phet, purposefully donned red clothing before the shooting to distract from their gang's involvement.
We review trial court evidentiary decisions for abuse of discretion. State v. Brown, 132 Wn.2d 529, 578, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). To preserve an evidentiary issue, a party objecting to the admission of the evidence must have made a timely and specific objection in the trial court. ER 103; State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).
Evidence of other crimes or bad acts may be admitted under ER 404(b) as proof of premeditation, intent, motive, and opportunity. Evidence of prior misconduct and previous quarrels may be admissible to show motive. State v. Powell, 126 Wn.2d 244, 260, 893 P.2d 615 (1995).
`Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b). In applying ER 404(b), a trial court must engage in a three-step analysis: (1) determine the purpose for which the evidence is offered, (2) determine the relevance of the evidence, and (3) balance on the record the probative value of the evidence against its prejudicial effect. State v. Campbell, 78 Wn. App. 813, 821, 901 P.2d 1050, review denied, 128 Wn.2d 1004 (1995).
Evidence of a defendant's gang membership may be relevant to show motive where the trial court finds a sufficient nexus between gang affiliation and motive for committing the crime. State v. Boot, 89 Wn. App. 780, 789, 950 P.2d 964, review denied, 135 Wn.2d 1015 (1998). But evidence of gang membership lacks probative value `when it proves nothing more than a defendant's abstract beliefs.' State v. Campbell, 78 Wn. App. 813, 822, 901 P.2d 1050, review denied, 128 Wn.2d 1004 (1995). It has probative value, however, when it proves premeditation, intent, motive, or the bias of a witness. United States v. Abel, 469 U.S. 45, 48, 54, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984) (bias and motive of witness); State v. Johnson, 124 Wn.2d 57, 69, 873 P.2d 514 (1994) (motive); Boot, 89 Wn. App. at 789 (premeditation).
Chea and Phet also argue that the gang testimony infringed on their First Amendment right of association. Gang membership is not admissible to prove abstract beliefs and associations in part because it is protected by the constitutional rights of freedom of speech and freedom of association. Dawson v. Delaware, 503 U.S. 159, 165, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992). But association evidence is inadmissible only when it proves nothing more than a defendant's abstract beliefs. Dawson, 503 U.S. at 164-67. The constitutional right to free association does not bar the admission of associational evidence when such evidence is relevant to a material issue at trial. Campbell, 78 Wn. App. at 822; United States v. Robinson, 978 F.2d 1554, 1565 (10th Cir. 1992), cert. denied, 507 U.S. 1034 (1993). As we discuss below, evidence of Chea's and Phet's gang affiliation was relevant to show premeditation and motive. Thus, its admission did not violate their First Amendment rights.
In Campbell, the State charged a gang member with killing two rival gang members. The State theorized that the defendant had been motivated to kill the victims because they invaded his `turf' and challenged his authority. It properly showed that the defendant was a gang member; that the victims were rival members who `disrespected' the defendant and sold drugs on his `turf'; and that, in gang culture, these resulted in violent retaliation. Campbell, 78 Wn. App. at 822.
The Abel court allowed the State to show that a defense witness and the defendant belonged to the same gang, that each member of the gang took an oath to lie on behalf of other members; and, thus, that the defense witness was arguably biased. 469 U.S. at 47.
In Boot, the gang evidence showed motive and premeditation where killing someone enhanced a gang member's status. Boot, 89 Wn. App. at 789-90. The appellate court affirmed. Boot, 89 Wn. App. at 794.
Here, the challenged evidence tended to prove the State's theory — that Chea and Phet were gang members who responded with violence to any challenges from others. As in Campbell, Boot, and Abel, the evidence here showed that both Chea and Phet were gang members; that one of the gang's tenets was to retaliate for `disrespect'; and that Kim exhibited disrespect when he `mean mugged' Chea and fought with Le, a gang affiliate. The evidence of gang affiliation also showed that another tenet was intra-group loyalty and, inferentially, that the other gang members would retaliate if their fellow member had been treated disrespectfully.
The evidence also shows that Chea and Phet considered their actions and took deliberate steps to accomplish their goal. Although gang affiliation evidence may be suggestive of violent activity, and thus prejudicial, the evidence placed the relationship of the intended victim, Kim, and Chea and Phet in context and revealed the implications of a person `mean mugging' a gang member.
The trial court properly admitted this evidence as probative of Chea's and Phet's premeditation, motive, and intent. The evidence had probative value that outweighed its prejudicial effect.
This conclusion disposes of Chea's and Phet's argument that there was an `insufficient nexus' between the offered evidence of gang activity and the shooting at the caf`. Under ER 401 and 403, the required nexus is that the evidence has a `tendency' to prove or disprove a fact of consequence to the action and that the evidence have probative value that was not substantially outweighed by unfair prejudice. That nexus existed here.
Chea and Phet also argue that the gang evidence was mere profile testimony and that the prejudicial effect of admitting the gang members' photos outweighed their probative value. We disagree. After carefully evaluating and weighing the evidence, the trial court admitted these photographs to show the relationship of the gang members. The trial court did not abuse its discretion.
C. August 3, 1999 Assault on Veasna Sok
Chea and Phet further contend that the trial court erred in admitting evidence of their assault on Veasna Sok. They assert that it was irrelevant and unfairly prejudicial. Phet also argues that the trial court erred in not holding a preliminary hearing about the assault.
Generally, a court may admit evidence that a defendant threatened a witness as implication of guilt. State v. Bourgeois, 133 Wn.2d 389, 400, 945 P.2d 1120 (1997). Where relevant, such evidence may be admitted after a proper ER 404(b) balancing. State v. McGhee, 57 Wn. App. 457, 460, 788 P.2d 603, review denied, 115 Wn.2d 1013 (1990). Evidence of threats may be relevant if it connects the defendant to the crime and shows guilty knowledge. McGhee, 57 Wn. App. at 460-61.
Here, the State introduced evidence of the assault through the testimony of four officers and the victim, Sok. The trial court ruled that the State could introduce evidence of this incident because Chea and Phet knew that Sok was going to testify for the State. The trial judge ruled:
It is my conclusion that the probative value outweighs the prejudicial effect of this testimony. The actions of these two defendants against a co-defendant who has made a deal with the State speaks volumes as to guilty knowledge and identity.
. . . The assault occurred after the announcement by the State that Sok had reached a deal with the State and would testify on behalf of the State.
RP at 2356. The trial court also noted that `[c]alling someone a snitch further supports the conclusion they knew Veasna Sok was going to testify against them. There is no need for an ER 404(b) preponderance hearing regarding the assault of August 3, 1999.' RP at 2355-56.
Before the evidence was introduced, the trial court gave the jury the following limiting instruction:
You are about to hear evidence on the subject of the August 3, 1999 assault on Veasna Sok alleged to have been committed by Jimmee Chea and John Phet.
Before this evidence is allowed the court advises you that you may consider the evidence only for the limited purpose of establishing the defendants' consciousness of guilt of the crimes charged in this case.
You must not consider the evidence for any other purpose unless instructed otherwise. It is up to you to determine how much weight, if any, is to be given this evidence.
You are further instructed that statements attributable to one of the defendants are not attributable to the other defendant and can not [sic] be used as evidence against the nonspeaking defendant.
RP at 3827. Thus, the trial court properly limited the evidence to show Chea's and Phet's guilty knowledge. It did not abuse its discretion in doing so.
Phet further contends that the trial court erred in not holding a preliminary hearing to determine, by a preponderance of the evidence, whether he ever called Sok a `snitch' during the assault.
When the trial court fails to conduct the on-the-record balancing process required by ER 404(b), we may decide issues of admissibility. McGhee, 57 Wn. App. at 460. In affirming this court's holding in State v. Kilgore, 147 Wn.2d 288, 294-95, 53 P.3d 974 (2002), our Supreme Court noted:
Requiring an evidentiary hearing in any case where the defendant contests a prior bad act would serve no useful purpose and would undoubtedly cause unnecessary delay in the trial process. In our view, these hearings would most likely degenerate into a court-supervised discovery process for defendants. As the Court of Appeals observed, the defendant will always have the right to confront the witnesses who testify against him at trial. We should be slow, therefore, to allow defendants to confront the witnesses twice, particularly where testifying just once can be a difficult experience for any witness. We believe, in the final analysis, that the trial court is in the best position to determine whether it can fairly decide, based upon the offer of proof, that a prior bad act or acts probably occurred. We recognize, as did the Court of Appeals, that there may be instances where the trial court cannot make the decision it must make based simply on an offer of proof. In such cases, it would be entirely proper for the court to conduct an evidentiary hearing outside the presence of the jury. The decision whether or not to conduct such a hearing, though, should be left to the sound discretion of the trial court. We conclude, finally, that there was no error here on the part of the trial court in allowing the evidence of prior bad acts to come in following the State's offer of proof.
Here, the record shows that the trial judge considered the issue of holding an evidentiary hearing and properly exercised its discretion by not doing so.
D. Unlawful Activities at Trang Dai Caf`
Chea and Phet contend that the trial court improperly excluded evidence of unlawful drug and gambling activities at the Trang Dai Caf`. Chea and Phet argue that their theory of the case — owing Phat Nguyen, the caf`'s owner, thousands of dollars in gambling debts — provided the motive for the shooting. They assert that the evidence of unlawful drug activity at the caf` was probative of their theory of the case.
Three judges considered this argument below. First, Judge Tollefson granted the State's motion to exclude evidence of unlawful activity at the caf` on the grounds that the evidence was irrelevant or based on hearsay, but he allowed Chea and Phet to ask for review of that ruling if they could present a better offer of proof.
Second, Judge Hogan denied Chea and Phet's motion for reconsideration of Judge Tollefson's ruling. Judge Hogan ruled that she found no automatic connection of the crimes at issue with the unlawful activities at the caf`. Judge Hogan also found that the facts that Chea and Phet wanted to admit were `remote speculations.' RP (08/23/01) at 57.
Finally, Chea and Phet moved for reconsideration before Judge Strombom, who denied their motion.
Without properly citing authority or setting forth argument, Chea and Phet also argue that the trial court improperly excluded a photograph of another car taken from the surveillance tape, a letter from Chak to Chea, and evidence that Chea's brother had been threatened. We decline to further address this contention. RAP 10.3(a)(5); State v. Jacobs, 121 Wn. App. 669, 681 n. 2, 89 P.3d 232, review granted on other grounds, 152 Wn.2d 1036 (2004).
A defendant has a constitutional right to present a defense consisting of admissible relevant evidence. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992), review denied, 120 Wn.2d 1022, cert. denied, 508 U.S., 953 (1993). Under ER 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without that evidence. Relevant evidence may still be excluded if its probative value is outweighed by its prejudicial effect, or its tendency to confuse the issues, mislead the jury, or cause an undue delay, waste of time, or needless presentation of cumulative evidence. ER 403.
Although evidence tending to show that another party may have committed the crime may be admissible, before it can be admitted, there must be such proof of connection with it, such facts or circumstances tending clearly to point out someone other than the one charged as the guilty party. State v. Kwan, 174 Wash. 528, 532-33, 25 P.2d 104 (1933). `Remote acts, disconnected and outside of the crime itself, cannot be separately proved for such a purpose.' Kwan, 174 Wash. at 533 (citing State v. Downs, 168 Wash. 664, 13 P.2d 1 (1932)). `Mere evidence of motive in another party, or motive coupled with threats of such other person, is inadmissible, unless coupled with other evidence tending to connect such other person with the actual commission of the crime charged.' Kwan, 174 Wash. at 533 (citing People v. Mendez, 193 Cal. 39, 223 P. 65 (1924)).
Nevertheless, a criminal defendant `does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.' Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653, 98 L. Ed. 2d 798 (1988). The proffered evidence is not relevant to rebut the evidence presented against defendants if it was offered solely to encourage the jury to speculate as to possible other assailants. State v. Drummer, 54 Wn. App. 751, 755, 775 P.2d 981 (1989).
In this case, Chea and Phet argue that the evidence of unlawful drug activity at the caf` was relevant because it established that Le owed money to the caf` owner and that the motive for the shooting at the caf` was that debt, not Chea being `mean mugged' by Kim. In order to present evidence of this debt, it was necessary to admit evidence of other people's unrelated unlawful activities. But Chea and Phet never offered evidence of this debt at trial. The trial court did not abuse its discretion in excluding evidence of unlawful activities at the caf`.
E. Assault on Veasna Sok's Brother
Chea and Phet next contend that the trial court improperly permitted Sok to testify that he backed out of his first plea agreement with the State because someone had shot at his younger brother, Ratthana Sok. The trial court admitted this evidence because defense counsel opened the door to it.
The trial court ruled that the State could ask about the State's thought processes in offering a new deal, but not as to Sok's reasons for taking it because he would have to testify as to his reasons.
Generally, when a subject has been opened during examination, the opponent may develop and explore the various phases of that subject. State v. Hayes, 73 Wn.2d 568, 571, 439 P.2d 978 (1968) (citing Wilson v. Miller Flour Mills, 144 Wash. 60, 66, 256 P. 777 (1927); State v. West, 70 Wn.2d 725, 424 P.2d 1014 (1967)). In State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969), our Supreme Court noted:
It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it. Rules of evidence are designed to aid in establishing the truth. To close the door after receiving only a part of the evidence not only leaves the matter suspended in air at a point markedly advantageous to the party who opened the door, but might well limit the proof to half-truths. Thus, it is a sound general rule that, when a party opens up a subject of inquiry on direct or cross-examination, he contemplates that the rules will permit cross-examination or redirect examination, as the case may be, within the scope of the examination in which the subject matter was first introduced.
In the present case, during Davidson's cross-examination, Chea's counsel asked why the State offered Sok a new plea agreement in February 2001. Before starting redirect, the State asked for a hearing outside the presence of the jury indicating that, in response to Chea's line of questioning, the State intended to demonstrate the reason behind Sok's new and more favorable plea agreement.
The relevant dialog follows:
Q: Veasna was offered his new deal back in February?
A: Yes.
Q: Based on what?
A: You'll have to ask the prosecutors.
Q: There were no new developments between his first deal and February of 2001 which would generate a new plea offer?
A: There were developments, but not in reference —
. . . .
A. — to the other suspect.
RP at 3610.
The State explained to the trial judge that Sok backed out of his original plea agreement after his brother had been shot at by someone other than Chea and Phet. The trial court ruled that, by inquiring into Sok's reasons for backing out of his plea agreement, Chea's counsel had opened the door in this area of inquiry. The court also gave a limiting instruction:
You will hear testimony regarding Veasna Sok's brother being shot at in the year 2000. Before this evidence is allowed, the court advises you that you may consider the evidence only for the limited purpose of showing Veasna Sok's state of mind when he decided to withdraw his plea agreement with the Pierce County Prosecutor's Office in 2000.
Neither defendant in this case has been charged or implicated in that shooting. You must not consider the evidence for any other purpose.
RP at 4455. The trial court acted within its discretion in allowing the State to explore why the State offered Sok a new deal.
F. Chea's and Phet's Custodial Status
Chea and Phet further contend that the prosecutor improperly elicited testimony from several officers about Chea's and Phet's custodial status. Specifically, several officers testified that they worked in the jail and escorted Chea and Phet to and from the courtroom. Also, an officer testified that he was responsible for transporting people to and from jail and he referred to Chea and Phet as `inmates.' RP at 3851
The fundamental right to a fair trial is secured by the United States and Washington Constitutions. U.S. Const. amends. VI and XIV, and Wash. Const. art. I, sec. 22. Central to the right to a fair trial is the principle that a defendant is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, not official suspicion, indictment, continued custody, or other circumstances short of proof. Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986).
In light of the fundamental right to the presumption of innocence, courtroom security measures such as shackling, gagging, or handcuffing can unnecessarily mark the defendant as guilty or dangerous. Holbrook, 475 U.S. at 567-68. But unlike physical restraints, uniformed security guards in a courtroom do not inherently prejudice a defendant's right to a fair trial. Holbrook, 475 U.S. at 569.
Here, the State called the corrections officers to testify about Chea's and Phet's assault on Sok. Before the officers described the assault they had witnessed, the State inquired as to their occupation, place of employment, and their relationship with Chea and Phet.
Chea and Phet concede that the jurors were likely aware that both of them were in custody. Moreover, they did not seek a limiting instruction. The officers' testimony regarding their place of employment and their role in escorting Chea and Phet to and from jail were not unfairly prejudicial to Chea and Phet. The trial court did not err in allowing this line of questioning.
G. Right to Remain Silent
Chea contends that Davidson impermissibly commented on Chea's exercise of his right to remain silent.
The Fifth Amendment to the United States Constitution states, in part, that no person `shall . . . be compelled in any criminal case to be a witness against himself.' Washington Constitution article I, section 9 states in part: `No person shall be compelled in any criminal case to give evidence against himself.' The State may not elicit comments from witnesses or make closing arguments relating to a defendant's silence for the jury to infer guilt from such silence. State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996). `[A] mere reference to silence which is not a `comment' on the silence is not reversible error absent a showing of prejudice' that is an error that actually affects the defendant's rights. State v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235 (1996).
Here, during direct examination, the prosecutor asked Davidson to relate the events and content of his interview with Chea. The following exchange occurred:
[Detective:] [I] [s]howed him one of the surveillance photos with his vehicle clearly in the picture.
[Prosecutor]: Did he respond to that?
[Detective]: Yes, he did.
[Prosecutor]: What did he say?
[Detective]: He said, `I'm not the only one that drives that car.'
[Prosecutor]: Did he say anything further in the interview?
[Detective]: No, he didn't. He clammed up. He never said another word.
RP at 3471.
The record reflects that the State inquired no further about Chea's silence. Nor did it refer to the comment during further testimony or in closing argument. Even assuming error, it is harmless as it did not materially affect Chea's rights, given the otherwise overwhelming evidence against him.
H. Opinion of Guilt
Chea and Phet further contend that Davidson impermissibly commented on their guilt. They assert that his statement, that in the course of his investigation he arrested and booked them into jail, implied guilt. We disagree. Although a witness may not comment on another's guilt, Davidson did not do so here. Rather, he testified about his actions as lead detective and based on his personal knowledge.
State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (allowing a witness to opine to the guilt of the defendant invades the exclusive province of the jury).
IV. Jury Instructions A. Essential Elements of the Crime
Chea and Phet further contend that the jury instructions relieved the State of its burden to prove all of the essential elements of the crime. They assert that the State failed to identify the intended victim of the charged premeditated murder.
The court instructed the jury: `A person commits the crime of Murder in the First Degree when, with a premeditated intent to cause the death of another person, he or an accomplice causes the death of such person or of a third person.' CP (Phet) at 1379.
This argument repeats Chea's and Phet's earlier essential element argument that the intended victim must be named in the charging document. As already noted, we disagree. This argument likewise fails.
See preceding section I, Charging Document.
B. Major Participant in the Crime
Citing State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000), Chea and Phet also argue that the jury instructions and special verdict forms were deficient because they did not require the jury to find that they were major participants in the crimes. In Roberts, our Supreme Court held that major participation by a defendant in the acts giving rise to the homicide is required in order to execute a defendant convicted solely as an accomplice to premeditated first degree murder. Merely satisfying the minimal requirements of the accomplice liability statute is insufficient to impose the death penalty under RCW 10.95.020, the Eighth and Fourteenth Amendments, and the cruel punishment clause of the Washington State Constitution.
Here, the State did not seek the death penalty against Chea and Phet; thus, Roberts does not apply. Also, Chea and Phet contend that the aggravating factors of the crimes must apply personally to each of them and that the jury instructions and the verdict forms failed to instruct the jury accordingly. We disagree.
To convict a person of aggravated first degree murder, the State must prove all elements of first degree murder and that there was more than one victim and the murders were a part of a common scheme or plan. In other words, to find an aggravating factor, it is not necessary that a particular defendant commit more than one murder; it is sufficient that his or her accomplices murder more than one person as a part of a plan. Thus, Chea's and Phet's argument fails.
C. Aggravating Factors Applying Specifically to Chea
Chea further argues that when the jury was asked to decide whether `[t]here was more than one person murdered and the murders were part of a common scheme or plan or the result of a single act of the person,' CP (Chea) at 867, it allowed the jury to find the aggravating factor applicable to him based on an accomplice's acts. He cites In re the Personal Restraint Petition of Howerton, 109 Wn. App. 494, 36 P.3d 565 (2001) in support.
No one disputes that more than one person was murdered.
In Howerton, Division One held that `a defendant's culpability for an aggravating factor cannot be premised solely upon accomplice liability for the underlying substantive crime absent explicit evidence of the Legislature's intent to create strict liability. Instead, any such sentence enhancement must depend on the defendant's own misconduct.' 109 Wn. App. at 501.
The instruction here comports with Howerton. It focuses on a specific act (i.e., murder of more than one person and a common scheme or plan). Thus, to determine whether this aggravating factor was properly applied to Chea, the key inquiry is whether the evidence sufficiently implicated him in the murders that were part of a common scheme or plan.
Sufficient evidence supports a conviction if, when viewed in the light most favorable to the prosecution, it permits any rational fact finder to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' Salinas, 119 Wn.2d at 201. We leave credibility determinations, issues of conflicting testimony, and persuasiveness of the evidence to the fact finder. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Before the shooting, Chea wore red clothes. He asked other assailants whether they wanted to `put in work' that night — the phrase that the testifying witnesses understood to mean to shoot Kim. Chea also talked to Le about Kim `mean mugging' him. Before driving to the caf`, Chea stopped at a payphone and told Chak to call to ascertain whether Kim remained there. And after learning that Kim was at the caf`, Chea went there. Finally, the guns were stored in Chea's car. This evidence sufficiently established Chea's culpability in the murder of multiple persons as part of a common scheme or plan.
We decline the State's invitation to revisit Howerton because the facts here fit within it.
V. Insufficiency of the Evidence
Chea also contends that insufficient evidence supported finding that he had a premeditated intent to murder specific named persons. This assertion flows from Chea's arguments that the charging document was defective and the jury instructions incorrect because they failed to name specific individuals. Because we hold that the State need not identify the victim of the premeditated murder, Chea's argument fails.
VI. Cumulative Error
Chea and Phet contend that the doctrine of cumulative error compels reversal and a new trial because the trial errors had a serious impact on their ability to receive a fair trial.
Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors cumulatively produced a trial that was fundamentally unfair. In re the Personal Restraint Petition of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994). Because we find no error, this argument fails.
VII. Statement of Additional Grounds
Phet raises additional arguments in his Statement of Additional Grounds (RAP 10.10), none of which has merit.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, P.J. and HUNT, J., Concur.