State v. Mak

Decision Date24 April 1986
Docket NumberNo. 49966-7,49966-7
Citation105 Wn.2d 692,718 P.2d 407
PartiesSTATE of Washington, Respondent, v. Kwan Fai MAK, Appellant.
CourtWashington Supreme Court

Raymond Thoenig, Washington Appellate Defender, Eric J. Nielson, James Lobsenz, Seattle, for appellant.

Norm Maleng, King County Prosecutor, Robert Lasnik, William Downing, Deputy Prosecutors, Seattle, for respondent.

ANDERSEN, Justice.


In a crime which set a new gauge for cowardly murder in this state, the Wah Mee Club in downtown Seattle's International District was robbed and all of its patrons and employees were shot in the head. The three armed people who perpetrated this deed held up the club at gunpoint, hogtied and robbed the men and woman in the club and then systematically shot each of them in the head as they lay bound and helpless. Twelve died there on the floor of the Wah Mee Club; one succumbed shortly afterwards at Harborview Hospital; and the fourteenth victim survived to identify the perpetrators, including the defendant, Kwan Fai Mak, whom he knew.

The evidence presented at trial overwhelmingly established that Mak planned, supervised and helped commit the armed robbery and systematic murder in cold blood of 13 human beings to cover up the robbery of an establishment where he was known.

The jury convicted the defendant of all 13 counts of aggravated murder in the first degree and the 1 count of assault in the first degree with which he was charged. In the special sentencing proceeding which followed conviction, the same jury also unanimously determined beyond a reasonable doubt that no sufficient mitigating circumstances existed to merit leniency. In accordance with this state's capital punishment law, RCW 10.95 (Laws of 1981, ch. 138), the trial judge then sentenced the defendant to be executed.

We have reviewed the entire record of the 2-week trial and have considered the almost 1,000 pages of appellate briefs filed in this case. We conclude that the defendant was fairly tried, convicted and sentenced under the law and affirm the conviction on all counts and the sentence of death.

The case is before us on mandatory review pursuant to RCW 10.95.100.


There being 52 assignments of error raising as many issues, each issue will be set out at the same place in the opinion as our decision with respect to that issue, rather than setting all the issues out together at this point in the opinion. For the convenience of counsel, and to avoid unnecessary confusion, we have endeavored to discuss the issues as nearly as possible in the order in which the defendant raised them.


ISSUE ONE. Did the deputy prosecuting attorney, in closing argument during the guilt phase of the trial, present a theory of the case inconsistent with the one presented at the separate trial of one of the other perpetrators of the crime, Benjamin Kin Ng?

CONCLUSION. The record clearly demonstrates that the deputy prosecuting attorney in closing argument at the end of the guilt phase of the case did not present a theory of the case inconsistent with the one presented at the other defendant's trial.

In closing argument, a prosecutor has wide latitude to draw and express reasonable inferences from the evidence. 1 Challenges to remarks made in final argument must be judged in the context in which they are made. 2 Moreover, the trial court has broad discretion in determining whether the challenged portion of the argument affected the jury's verdict, and the burden of showing prejudicial error is on the defendant. 3

The defendant claims that at Benjamin Ng's trial the State argued it was Benjamin Ng who held the murder weapon and fired the fatal shots, whereas the State argued in the trial of the present case that it was the defendant Mak who held the same weapon and fired the fatal shots. This, argues the defendant, deprived him of his right to due process. This argument proceeds from a factually incorrect basis and the defendant Mak was not denied due process.

This same contention was made by Benjamin Ng in his appeal. In ruling there was no prejudice or deprivation of due process in that case, we held as follows: 4

In both trials the prosecutor argued one basic theory. He maintained that Mak was the master planner who recruited his reliably ruthless friend Ng to help him carry out his plan. The prosecutor also emphasized in both trials that to convict the defendant of aggravated murder, the jury need not determine who actually fired the shots that killed the victims. In Ng's trial, the prosecutor did argue that Ng fired the Ruger. Contrary to Ng's assertion, however, the prosecutor at Mak's trial never argued that Mak fired that gun.

A review of the record indicates that, arguably, the prosecutor presented one factual inconsistency at the two trials. In Ng's trial, the prosecutor argued that the Ruger was Ng's; and, in Mak's trial, he argued that Mak purchased the gun. Even if these arguments are inconsistent, the inconsistency has no bearing on the basic issues at trial. Furthermore, unlike Ng, Mak testified at his trial, placing a new body of evidence on the record. To require the prosecutor to make identical arguments when the record contains different evidence contradicts the well established proposition that a prosecutor may argue reasonable inferences from the facts presented at trial. See State v. Kroll, 87 Wash.2d 829, 846, 558 P.2d 173 (1976).

That holding is dispositive of this issue.

ISSUE TWO. Did the trial court err in denying defendant's motion for a mistrial based on a question asked by a deputy prosecuting attorney during cross examination of a defense expert witness?

CONCLUSION. Considering the record as a whole, and bearing in mind that any information the jury may have derived from the question was merely cumulative on the issue of who did the shootings, and that the question went unanswered, we conclude that the defendant was not prejudiced by the question.

At trial the defense called Dr. Phillip Lindsay, a Seattle psychiatrist, as a witness. This witness had testified at the earlier trial of Benjamin Ng that Ng suffered from dementia.

On cross examination, as the deputy prosecutor was questioning Dr. Lindsay concerning the basis of his diagnosis of Ng, the following colloquy occurred:

Q. [Deputy Prosecutor] You took a history from [Benjamin Ng] in regards to head injuries?

A. [Dr. Lindsay] Yes.

Q. And you discussed other aspects of his life with him?

A. Yes.

Q. In terms of making your diagnosis?

A. Right.

Q. And ... [Ng] told you that it was ... [the defendant Mak] who shot the people at the ... [club], didn't he?

At this point defense counsel objected to the question, asked the court to strike it and reserved a motion for mistrial to be argued at the conclusion of the witness' testimony. The trial court sustained the defendant's objection.

After the witness ended his testimony, the jury was excused and the trial court considered the mistrial motion. The court asked the doctor if he had based his diagnosis of the codefendant on statements the codefendant made as to the massacre. The doctor answered in the affirmative. The trial court then denied the defendant's motion for mistrial. The trial proceeded and the question that was originally objected to was neither answered nor ordered stricken by the court.

The defendant claims that this question placed Benjamin Ng's testimony before the jury and violated his (Mak's) constitutional right to confront his accuser.

Since the trial judge is in the best position to make first hand observations, he or she is accorded wide discretion in dealing with trial irregularities. 5 The trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly. Only errors affecting the outcome of the trial will be deemed prejudicial. 6

In determining whether a trial irregularity prejudiced the jury so as to deny the defendant his right to a fair trial, we will consider: (1) the seriousness of the irregularity; (2) whether the statement at issue was cumulative evidence; (3) whether the jurors were properly instructed to disregard the remarks of counsel not supported by the evidence; and (4) whether the prejudice was so grievous that nothing short of a new trial could remedy the error. 7

We cannot conclude that the trial court erred when it denied the defendant's mistrial motion. First, the seriousness of any irregularity was not major. The question was never answered. We perceive no prosecutorial bad faith in asking the question since hearsay statements are generally admissible for purposes of medical diagnosis. 8 Second, it was cumulative on the issue of whether the defendant participated in the shootings. At this point in the trial, evidence had already been presented in the State's case by an interrogating police officer that the defendant (Mak) had told him that he (Mak) was the one who shot all of the victims.

Third, although it would perhaps have been better had the trial court stricken the question or instructed the jury to disregard it at the time, nonetheless at the end of the trial the trial court did instruct the jury to disregard all remarks that were not intended as evidence. The jurors are presumed to have followed that instruction. 9

Finally, before ruling on the motion for mistrial, the trial court fully heard and considered argument by both counsel on the probable impact the unanswered question had on the jury. The record supports the trial court's decision that the defendant was not so prejudiced that he was denied a fair trial. 10

ISSUE THREE. Did the trial court err in admitting into evidence the firearms seized pursuant to search warrants from the defendant's bedroom and from the bedroom of his confederate, Benjamin Ng?

CONCLUSION. The trial court did not abuse its discretion in ruling that the firearms were relevant to the issues...

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