State v. Chanthabouly

• Decision Date: 27 September 2011
• Docket Number: No. 39510–0–II.,39510–0–II.
• Citation: 164 Wash.App. 104,262 P.3d 144
• Parties: STATE of Washington, Respondent,v.Douglas S. CHANTHABOULY, Appellant.
• Court: Washington Court of Appeals

164 Wash.App. 104

262 P.3d 144

STATE of Washington, Respondent,

v.Douglas S. CHANTHABOULY, Appellant.

No. 39510–0–II.

Court of Appeals of Washington, Division 2.

Sept. 27, 2011.

Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, for Appellant.Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondent.PENOYAR, C.J.

[164 Wash.App. 108] ¶ 1 Douglas Chanthabouly appeals his conviction of second degree murder, arguing that because he killed the victim in the delusional belief that he was acting in self defense, he was “unable to tell right from wrong” at the time of the crime. Accordingly, he asserts that (1) the trial court erred by denying his pre-trial motion for a judgment of acquittal on the grounds of insanity, (2) the jury erred by rejecting his insanity defense, and (3) his counsel provided ineffective assistance by failing to propose a jury instruction that a person who kills another in the delusional belief that he was acting in self defense is “unable to tell right from wrong.” Chanthabouly also appeals his exceptional sentence of lifetime community custody, arguing that (4) the “destructive and foreseeable impact” aggravating circumstance, which supported the trial court's imposition of the exceptional sentence, is unconstitutionally vague; and (5) insufficient evidence supported the jury's special verdict finding this aggravating circumstance. Finally, Chanthabouly contends that (6) the trial court deprived him of a full opportunity to conduct voir dire, and (7) cumulative error deprived him of a fair trial. We affirm.

FACTS

I. Background

¶ 2 On January 3, 2007, students and staff at Henry Foss High School in Tacoma returned to school after winter vacation. At about 7:25 a.m., Chanthabouly, a Foss student, approached another student, Samnang (Sam) Kok, in a school hallway before the beginning of first period. Chanthabouly pulled out a gun and shot Kok in the head from a distance of about one foot. Kok dropped to the floor. About one to two seconds after the first shot, Chanthabouly fired two more shots into Kok's body. Chanthabouly then walked out of the building. School employees administered CPR (cardiopulmonary resuscitation), but Kok died from his gunshot wounds.

¶ 3 The State charged Chanthabouly with first degree murder, alleging that he caused Kok's death with premeditated intent.¹ The State alleged in the information that “the offense involve[d] a destructive and foreseeable impact on persons other than the victim.” Clerk's Papers (CP) at 1; RCW 9.94A.535(3)(r). Before trial, Chanthabouly moved to dismiss the “destructive and foreseeable impact” aggravating circumstance as being void for vagueness. The trial court denied the motion. After a forensic evaluation at Western State Hospital, the trial court found Chanthabouly competent to stand trial.

II. Pre–Trial Motion for Acquittal on Grounds of Insanity

¶ 4 Chanthabouly moved for a judgment of acquittal on the grounds of insanity. See RCW 10.77.080. The hearing on the acquittal motion spanned three days. The State called five witnesses, including four police officers who spoke with Chanthabouly on the day of the crime—William Budinich, Bradley Graham, David DeVault, and Robert Yerbury—and Dr. Julie Gallagher, a licensed psychologist and forensic evaluator at Western State Hospital. Chanthabouly's only witness was Dr. Paul Leung, a board-certified psychiatrist and associate professor of psychiatry at Oregon Health and Sciences University. Before proceeding further, we summarize these witnesses' hearing testimony.

A. Police Officers' Testimony

¶ 5 Shortly after the shooting, Budinich received the suspect's physical description and learned that his first name was Douglas. About two hours after the shooting, Budinich saw Chanthabouly, who matched the suspect's physical description, standing on a street corner near the high school. Chanthabouly told Budinich that his name was “Douglas.” RP (Feb. 17, 2009) at 37. Budinich arrested Chanthabouly and discovered a 9 mm pistol in his pocket.

¶ 6 After the arrest, Budinich transported Chanthabouly in his patrol car to the central police station, a five to six minute drive. Budinich asked no questions and observed that Chanthabouly was “calm” and “quiet.” RP (Feb. 17, 2009) at 40. Chanthabouly asked Budinich how long he had worked as a police officer and told Budinich that he was considering becoming a police officer. At the station, Budinich placed Chanthabouly in Graham's custody. Budinich's entire interaction with Chanthabouly lasted about 15 minutes.

[164 Wash.App. 111] ¶ 7 Graham spent about 10 minutes with Chanthabouly in an interview room. He asked Chanthabouly if he needed water or medical aid. Chanthabouly requested water and stated that he did not need medical aid. Graham did not ask about the shooting. According to Graham, Chanthabouly was able to track his questions and respond appropriately. Chanthabouly was “[q]uiet ... cooperative ... [and] seemed a little dejected.” RP (Feb. 17, 2009) at 50.

¶ 8 Beginning at 9:50 a.m., DeVault and Yerbury interviewed Chanthabouly for “an hour and 15 minutes to an hour and a half.” RP (Feb. 18, 2009) at 32. DeVault, the lead interviewer, noticed at the outset that Chanthabouly's hands were “shaking pretty good.” RP (Feb. 18, 2009) at 11. Before the detectives advised Chanthabouly of his Miranda² rights, DeVault told him—without referring to a “murder”—about what had occurred at the high school. RP (Feb. 18, 2009) at 13. DeVault then asked Chanthabouly if he knew why he was at the police station. Chanthabouly replied, “Yeah, about the murder.” ³ RP (Feb. 18, 2009) at 13.

¶ 9 DeVault then read Chanthabouly his Miranda rights. DeVault placed the Miranda form on the interview room's table and asked Chanthabouly to follow along as he read out loud. When DeVault read, “[I]f you're under the age of 18, anything you say can be used against you in juvenile court,” Chanthabouly stated, correctly, that he was 18 years old.⁴ RP (Feb. 18, 2009) at 14. After DeVault finished reading, Chanthabouly said that he understood his rights and was willing to speak to the detectives.

¶ 10 DeVault asked Chanthabouly to tell him what had happened. Chanthabouly replied that “he didn't know anything about a murder.” RP (Feb. 18, 2009) at 17. Chanthabouly explained that he “had been up on the Hilltop looking for his homies” that morning. RP (Feb. 18, 2009) at 18. A short time later, he admitted to DeVault that he “had been to the school earlier that morning but just to drop off his books.” RP (Feb. 18, 2009) at 18.

¶ 11 DeVault asked whether Chanthabouly had any personal problems. Chanthabouly said he had no problems, but he stated, without specifics, that he was concerned about his brother Dao ⁵. DeVault followed up, referring to Dao as Chanthabouly's older brother. According to DeVault, Chanthabouly “stopped me and told me that he was the oldest and that [Dao] was his younger brother.” RP (Feb. 18, 2009) at 20.

¶ 12 Because DeVault had learned from police records that Chanthabouly might have been a victim of gang activity in the past, DeVault asked Chanthabouly whether he had problems with gangs. Chanthabouly replied that he had “trouble with all kinds of gangs and all sets of the Bloods,” but he did not give any particulars. RP (Feb. 18, 2009) at 20.

¶ 13 Later in the interview, DeVault said that he knew that Chanthabouly had shot the victim. According to DeVault, Chanthabouly “did not deny it.” RP (Feb. 18, 2009) at 21. When DeVault asked why the shooting had occurred, Chanthabouly told him that “it just happened” and that it did not involve a girl, money, or a question of respect. RP (Feb. 18, 2009) at 22. Chanthabouly said he could not remember how many times he had pulled the trigger. At another point, Chanthabouly told DeVault that if he explained why he shot Kok, “it would be in the news” and his mother's house “would be sprayed” in a drive-by shooting. RP (Feb. 18, 2009) at 26.

¶ 14 During the interview, Chanthabouly identified the victim as “Samnang” and stated that “he knew him but he didn't hang out with him.” RP (Feb. 18, 2009) at 21. Chanthabouly told DeVault that Kok did not have a gun at the time of the shooting. Chanthabouly did not remember where he shot Kok and did not remember if he said anything to Kok. When DeVault informed Chanthabouly that Kok had died, Chanthabouly said, “I guess my homies are going to come after me now.” RP (Feb. 18, 2009) at 30. Chanthabouly asked whether “this was a death penalty” issue and stated that “it didn't matter, he would probably die in prison anyway or get killed in prison.” RP (Feb. 18, 2009) at 30.

¶ 15 When DeVault asked about the gun, Chanthabouly replied that he “mostly carries a gun to school ... for protection.” RP (Feb. 18, 2009) at 17. Chanthabouly told DeVault that the gun was a “9mm manufactured by Interarms” and informed DeVault that the manufacturer was out of business. RP (Feb. 18, 2009) at 24.

¶ 16 Yerbury characterized Chanthabouly's interview demeanor as “responsive,” “calm,” and “soft spoken.” RP (Feb. 18, 2009) at 139. According to Yerbury, “[Chanthabouly] was engaged in our conversation in our interview ... he was tracking what we were asking of him.” RP (Feb. 18, 2009) at 139. Yerbury did not recall any long pauses between DeVault's questions and Chanthabouly's responses. DeVault also observed that Chanthabouly did not appear to be responding to any internal stimulus.

B. Dr. Gallagher's and Dr. Leung's Testimony

¶ 17 Dr. Gallagher, who testified for the State, performed a forensic evaluation of Chanthabouly under a trial court order. See RCW 10.77.060. The trial court admitted her forensic psychological report into evidence at the hearing. To complete the report, Dr. Gallagher interviewed Chanthabouly on eight separate occasions between June 6, 2007, and November 7, 2008, for a total of about 12 hours. During the interviews, Chanthabouly had ...