State v. Moua

• Decision Date: 22 April 2004
• Docket Number: No. C6-03-359.,C6-03-359.
• Citation: 678 N.W.2d 29
• Parties: STATE of Minnesota, Respondent, v. Kou MOUA, Appellant.
• Court: Minnesota Supreme Court

678 N.W.2d 29

STATE of Minnesota, Respondent, v. Kou MOUA, Appellant.

No. C6-03-359.

Supreme Court of Minnesota.

April 22, 2004.

Marie Wolf, State Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Minnesota Attorney General, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Chief Justice.

Va Meng Yang was shot to death on September 26, 2001. An indictment was filed on October 31, 2001, charging appellant Kou Moua with four counts of first-degree murder in Va Meng Yang's death: (1) first-degree murder (premeditated) in violation of Minn.Stat. § 609.185, subd. (a)(1) (2000) (Count I); (2) first-degree murder (drive-by shooting) in violation of Minn.Stat. § 609.185, subd. (a)(3) (2000) (Count II); (3) first-degree murder (premeditated) for the benefit of a gang in violation of Minn.Stat. §§ 609.185, subd. (a)(1) and 609.229, subds. 2, 3(a), and 4(a) (2000) (Count III); and (4) first-degree murder (drive-by shooting) for the benefit of a gang in violation of Minn.Stat. §§ 609.185, subd. (a)(3) and 609.229, subds. 2, 3(a), and 4(a) (2000) (Count IV). Following a mistrial, on November 19, 2002, a jury found appellant Moua guilty as to Counts I and II, and acquitted appellant as to Counts III and IV. On November 22, 2002, appellant was sentenced to an executed life term on Count I's premeditated first-degree murder conviction.

The relevant facts giving rise to Va Meng Yang's murder are as follows. In August of 2001, approximately one month before his murder, 23-year-old Va¹ moved to Minnesota from California. For most of the month he lived with a sibling, but about four days before his death he went to stay with his cousin, Mary Vang. Mary lived in the basement of a house located at 35 Jessamine in St. Paul.

Va, an alleged member of an Asian gang called the Oriental Loks (OLs), began forging checks, including Kentucky Fried Chicken checks, and asking teenage boys from the Mount Airy Boys (MABs) to cash the checks for him.² One of the MABs, Paul Her, became involved in check forgery with Va.

Several of the facts concerning what preceded the murder came from appellant's brother, Tou Bee Moua. During the investigation of Va's murder, Tou Bee was incarcerated, at which time he spoke with St. Paul police officer Sergeant Richard Straka, who was assigned to the case. Tou Bee told Sergeant Straka that earlier on the day of the shooting, members of the MABs were upset with Va and crying because Her was "locked up" as a result of the check forgery. According to Tou Bee, prior to the shooting Va acknowledged that members of the MABs were angry and blamed Va for the incarceration of Her.

While the statements and testimony given by several witnesses were inconsistent and contradictory throughout the case below, some facts leading up to the shooting are undisputed. On the night of September 26, 2001, several members of the MABs, including appellant's two brothers (Tou Bee Moua and Kong Meng Moua), Tommy Yang, Ge Vang, and Houa Vang, gathered at the Mount Airy Boys and Girls Club (the "Club") to celebrate a birthday. Also present at the gathering were non-MABs appellant,³ Zoua Vang and the victim Va.

Around 9:45 p.m., Va called his cousin Mary on her cell phone and asked Mary to drive to the Club to "pick him up." Mary testified that Va sounded anxious and was speaking very fast throughout the conversation. Mary told Va that she would "pick him up" after she picked up her husband from work. When Mary refused to stop at the Club first, Va told her he would find another ride home.

Va then approached Zoua and repeatedly asked her for a ride home. At first Zoua refused to bring him home, but she finally agreed and Va waited by her car, a maroon Toyota Camry. Before meeting Va at her car, Zoua was approached by appellant, who was her friend, and he also asked Zoua for a ride home—a request she granted. With both Va and appellant as passengers, Zoua first drove Va to his cousin Mary's house at 35 Jessamine. Zoua testified that appellant was sitting in the front passenger seat, and Va was sitting directly behind her in the back seat.⁴ She testified that there was normal conversation in the car, with no hostility or tension. Zoua parked in the middle of the street in front of the house. Va shook hands with appellant and Zoua, said good-bye, and got out of the car. Moments later, appellant also exited the car. Zoua testified that she saw appellant and Va shake hands outside of the car.

After the handshake between appellant and Va, exactly what ensued is unclear. In her statements to the police and to the grand jury, Zoua testified that, although she was not paying attention to appellant and Va until she heard gunshots, appellant repeatedly shot Va in the arm and back as he turned and walked away toward the house at 35 Jessamine. However, at trial Zoua testified that when she looked back after hearing the gunshots, Va was "coming at" appellant.

At trial, appellant provided his own account of the events directly preceding the shooting. Appellant testified that after he shook hands with Va inside the car, Va exited. Needing to urinate, appellant also exited the car. Once there, appellant went to the back-side of the car. Va then asked him to distribute forged Kentucky Fried Chicken checks to members of the MABs and have them cash the checks. When appellant told Va that he did not want to "get into that stuff," Va responded, "[Y]ou can't be a puss." Va allegedly also told appellant that Va was going to "jump" appellant and essentially "beat him" out of the gang. Appellant testified that during this exchange, Va was "right in [his] face," moved toward him, and that appellant felt he was trapped between Va and the car. As a consequence of Va's threatening stance, and the fact that Va was considerably larger than appellant—280 pounds to appellant's 140 pounds—appellant testified that he pulled out his .32 caliber gun and shot Va.

When appellant reentered the car, Zoua said to him, "What the f* * * did you do that for?" According to Zoua, appellant told her to "shut the f* * * up" and to not say anything to anybody. At appellant's request, Zoua then drove appellant back to the Club and dropped him off. Appellant testified that he walked home, got his mother's car, drove to the Lafayette Bridge, and threw the gun into the river below.

Neighbors witnessed the immediate aftermath of the shooting. At approximately 10:00 on the night of the shooting, the neighbor who lived across the street from 35 Jessamine heard at least three gunshots and immediately looked out of his bedroom window overlooking Jessamine. He observed a dark-colored car in the middle of the street with the front passenger-side door open, and a "stocky" man stumbling away from the car toward the house located at 35 Jessamine. He further observed the car leaving in a hurry. A second neighbor testified that after hearing gunshots in rapid succession he saw an early-90s model, maroon Toyota Camry driving away with two people in the front seat and one person in the back seat. He believed the driver was a young female and that both the person in the front passenger seat and the person in the back seat were male. A third neighbor also testified that he heard the gunshots in rapid succession.

As the neighbors gathered to assist the injured man, a resident of 35 Jessamine called 911 to request an ambulance. Paramedics were dispatched and arrived within four minutes of being called. One paramedic testified that when she arrived at the scene of the crime she found a responsive, Asian male in his early 20s who had been shot four times. The gunshot wounds were found at the top of Va's left shoulder, his right humerus, right scapula, and right buttock. The paramedics placed Va in the ambulance, administered oxygen and rushed him to Regions Hospital. At some point en route the paramedics were able to identify the victim as Va Meng Yang, with a birth date of May 2, 1978.

The trauma team at Regions Hospital, comprised of multiple physicians, was activated prior to Va's arrival. Dr. Randall Hofbauer, a member of the trauma team, was in charge of "airway," which involves both the initial assessment and management of airway issues. According to Dr. Hofbauer, when Va arrived at the hospital he was in shock, hypotensive, tachycardic, was in respiratory distress, and had multiple gunshot wounds. The trauma team decided that Va needed to go to the operating room for management of the bleeding from his wounds. At that time, the trauma team decided to control Va's airway through endotrachael intubation.

Dr. Hofbauer was standing near Va's head throughout his entire treatment and assessment preceding Va's move to the operating room, and testified that Va was responsive to questions regarding medical allergies and medical history. When Dr. Hofbauer told Va he was going to give him medication to sedate him and put a breathing tube in to help him breathe, Va said, "The people who shot me was ah, ah, ah, Kou, um, Kou Moua." Va then repeated himself, and also said another name, which Dr. Hofbauer could not recall.⁵ Va was pronounced dead in the operating room at 1:06 a.m. on September 27, 2001.

Because several of the witnesses changed their testimony, the state relied heavily upon medical evidence in attempting to prove Va was not the aggressor in the events leading up to the shooting. The state called Ramsey County and Washington County medical examiner Dr. Michael McGee, a specialist in pathology and forensic pathology. Dr. McGee testified that the evidence supported the state's theory of the case that after appellant and Va shook hands, Va turned to walk away, and appellant began shooting Va and continued to do so as Va stumbled to the ground. Dr. McGee based his opinion on the location of the wounds, the angle of the wound tracks, which went from back to front, and up to...