Kang v. State

• Decision Date: 30 June 2005
• Docket Number: No. 1526,1526
• Citation: 163 Md. App. 22,877 A.2d 173
• Parties: Shin H. KANG v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

877 A.2d 173

163 Md. App. 22

Shin H. KANG v. STATE of Maryland.

No. 1526, September Term, 2004.

Court of Special Appeals of Maryland.

June 30, 2005.

Gary E. Bair (Bennett & Bair on the brief), Greenbelt, for appellant.

Shannon E. Avery (J. Joseph Curran, Jr., Attorney General on the brief), Baltimore, for appellee.

Argued before MEREDITH, CHARLES E. MOYLAN, JR. (Ret., specially assigned), THEODORE G. BLOOM (Ret., specially assigned) JJ.

MEREDITH, J.

Shin H. Kang was convicted of assaulting his wife by hanging her with a rope until she passed out. At the bench trial in the Circuit Court for Montgomery County, there was no dispute that Mrs. Kang had been the object of a hanging. Mr. Kang contended, however, that his wife had attempted to commit suicide because of her great shame about having had an affair. Mr. Kang testified in his own behalf, and urged the court to find that there was no assault or attempted murder.

The trial judge was not persuaded that Mrs. Kang's hanging was self-inflicted. To the contrary, the trial judge indicated, in the course of delivering his findings, "I believe that [the defendant] did intend to kill Mrs. Kang." Nevertheless, because the trial judge was not convinced beyond a reasonable doubt of Mr. Kang's intent to murder his wife, the court found the defendant not guilty of attempted murder in the first or second degree. Rather, the court found that Mr. Kang was guilty of first degree assault for the hanging incident that occurred on February 8, 2003, and also guilty of a second degree assault for physical contact that occurred on February 19, 2003. Mr. Kang was sentenced to a term of 15 years' incarceration for the first degree assault, and a consecutive five-year term for the second degree assault.

QUESTIONS PRESENTED

Mr. Kang raises four questions in his appeal to this Court:

I. Whether the trial court failed to insure that the jury waiver was knowing and voluntary.

II. Whether the trial court erred by admitting evidence of prior consistent statements.

III. Whether the trial court violated the dictates of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in calculating and exceeding the sentencing guidelines applicable to this case.

IV. Whether the trial court erred in denying credit for time served in pretrial home detention.

We shall affirm the judgments of conviction, but with respect to the fourth issue, as to which the State agrees that the defendant should receive credit for his period of home detention, we shall remand the case with instructions that Mr. Kang be given credit for the time served in pretrial home detention.

BACKGROUND

At the trial, Mrs. Kang told of a long history of physical abuse during her fifteen years of marriage to Mr. Kang. She related that in January of 2003, she traveled to Korea to be with her dying father. After her father's death, Mrs. Kang returned to her home in Montgomery County in early February. Upon her return, Mr. Kang began to accuse her of having an affair.

According to Mrs. Kang, in the early hours of February 8, 2003, after an evening of arguing about the suspected infidelity, Mr. Kang ordered his wife to write out a suicide note as he dictated it. He then escorted her to the basement of their home, where he compelled her to stand on a stool as he tied a nylon rope around her neck. She testified that she was compliant because she thought her husband was trying to humiliate and frighten her, and she knew from experience that resistance could lead to additional physical abuse. She saw her husband kick the stool out from under her feet. As her body dropped and the rope tightened around her neck, she saw her husband walking away before she passed out.

Mrs. Kang testified that when she regained consciousness, she found her husband hovering over her, begging her forgiveness. He carried her upstairs to a bedroom and rubbed Vaseline on her neck. He did not call for medical or other assistance on the morning of the hanging.

Two days later, Mr. Kang took his wife to see Dr. Daniel Kim. Mr. Kang did virtually all of the talking to the doctor. Mrs. Kang wore a scarf around her neck to conceal her wounds that were caused by the rope. The hanging was not mentioned. Instead, Mr. Kang told Dr. Kim that Mrs. Kang had fallen and sustained an injury to her body. Mr. Kang also told Dr. Kim that Mrs. Kang had been depressed over the recent death of her father. Dr. Kim prescribed an analgesic and an anti-depressant, and scheduled a follow-up appointment nine days later.

When the Kangs returned to Dr. Kim on February 19, 2003, they drove in separate cars because Mr. Kang intended to go straight to work after the visit. Mr. Kang again assumed the role of principal spokesperson. During this second visit, Mr. Kang told Dr. Kim that Mrs. Kang had sustained serious injuries to her neck while she was visiting her family in Korea. Mrs. Kang did not initially contradict her husband's statement to Dr. Kim. After the Kangs departed, however, Mrs. Kang waited until she was certain that Mr. Kang had driven away, and she then returned to Dr. Kim's office. She told Dr. Kim her version of what actually happened to her neck. Dr. Kim advised her to seek outside help. After she left Dr. Kim's office on February 19, she went to meet with Samuel Lee, a pastor at her church. She showed him her neck, and told him about the incident that caused her injury. Pastor Lee advised her to call the police if she had additional problems with her husband. While Mrs. Kang was meeting with Pastor Lee, her cellular phone rang several times, but she declined to answer the phone because she could see that the calls were from her husband.

Mrs. Kang went home after meeting with her pastor. Mr. Kang arrived soon thereafter. He seemed angry, and he directed her to accompany him to the upstairs bedroom. Before going upstairs, Mrs. Kang whispered to her teenage daughter to call the police if Mrs. Kang screamed.

When the Kangs were alone upstairs, Mr. Kang pushed his wife several times. She screamed. Within minutes, police officers responded to the daughter's telephone call.

The police officers separated the Kangs, and Mrs. Kang told the police officers of the hanging incident. After Mrs. Kang stated that Mr. Kang had threatened to shoot her and the children, the police asked Mr. Kang whether there were any weapons in the house. Mr. Kang acknowledged that he had in fact purchased a 380 automatic handgun on February 10, 2003, and had taken possession of the gun and brought the gun home on February 19, 2003.

Following an investigation, a grand jury indicted Mr. Kang on charges of first degree attempted murder, second degree attempted murder and first degree assault for the hanging incident of February 8, 2003. He was also charged with second degree assault for the pushing incident that occurred on February 19, 2003.

I. Waiver of Right to Trial By a Jury

Although Mr. Kang asked to be tried by a judge rather than a jury, he now contends that his waiver of his right to be tried by a jury was defective for two reasons. He argues:

First, Mr. Kang's lack of understanding of the English language and the court's failure to translate the colloquy into Korean renders the waiver voir dire a nullity. Second, the [S]partan colloquy utterly fails to address the voluntariness of the waiver, and thus is defective for this reason as well.

Neither contention is well-founded.

Translation of Rule 4-246(b) Examination

The record indicates that, on the morning of Mr. Kang's trial, a court-appointed interpreter was present and sworn before the proceedings in the case began. See Md.Code (1957, 2001 Repl.Vol.), Criminal Procedure Art. ("C.P."), § 1-202(a)(2) ("The court shall appoint a qualified interpreter to help a defendant in a criminal proceeding throughout any criminal proceeding when the defendant ... cannot readily understand or communicate the English language and cannot understand a charge made against the defendant or help present the defense."). Mr. Kang's counsel informed the trial court that Mr. Kang intended to waive his right to a jury trial. Pursuant to Maryland Rule 4-246(b), the trial court conducted an examination of Mr. Kang on the record in open court to determine whether the waiver was made knowingly and voluntarily. The transcript reflects the following:

[DEFENSE COUNSEL]: Your Honor, the only other issue that I had was that I just wanted to put on the record that Mr. Kang had agreed with the waiver of the jury trial.

THE COURT: All right. Let me just briefly voir dire Mr. Kang in that regard.... Mr. Kang, you have an absolute right to a trial by jury in this matter. You also have the right to choose a trial by a judge. In this case, it would be myself.

Do you understand that if you had a trial by a jury, there would be 12 men and women chosen from the community and your attorney would be able to participate in the selection of that jury and that jury would decide your guilt or innocence of the charges?

Do you understand that?

A [The transcript does not specify whether the answers were spoken by Mr. Kang personally or by the interpreter on behalf of Mr. Kang.] Yes.

Q Do you understand that if you had a trial by a jury, before you could be convicted by a jury, all 12 jurors would have to unanimously agree upon your guilt? Just for the record, you do understand that?

A Yes, I understand.

Q And just by way of example, if you had a jury trial and 11 jurors wanted to convict and one juror did not, you would not be convicted. Do you understand that?

A Yes.

Q And is it your decision to waive the jury trial and elect to have a trial before me today in this court?

A Yes.

THE COURT: Very well. I am satisfied that Mr. Kang has knowingly and voluntarily waived his right to a trial by a jury.

Although the record clearly reflects that the Korean translator was present before the above examination took place, the record does not specifically reflect whether...