State v. Ng
| Citation | 104 Wn.2d 763,713 P.2d 63 |
| Decision Date | 05 December 1985 |
| Docket Number | No. 50039-8,50039-8 |
| Parties | STATE of Washington, Respondent, v. Benjamin Kin NG, Appellant. |
| Court | United States State Supreme Court of Washington |
Browne, Ressler & Foster,
David R. Wohl, Seattle, for appellant.
Norman K. Maleng, King County Pros. Atty., Robert S. Lasnik, William L. Downing, Senior Deputy Pros. Attys., Seattle, for respondent.
Benjamin Ng appeals from a judgment entered upon a jury verdict finding him guilty of 13 counts of aggravated murder and 1 count of first degree assault. Ng contends that the trial court erred by (1) denying his motion to suppress evidence obtained in a search of his room; (2) refusing to admit a co-defendant's statement into evidence; (3) concluding that a defendant in a capital case need not be charged by a grand jury indictment and thereby denying his motion to dismiss; and (4) refusing to sequester the jury during the guilt phase of trial. In addition, Ng contends that he was denied due process of law because the prosecutor, in the subsequent trial of the co-defendant, argued a factual theory that was inconsistent with the theory argued in his trial. Finding no merit in these contentions, we affirm the judgment and sentence.
At approximately 11:50 p.m. on February 18, 1983, Wai Chin arrived at the Wah Mee Club in Seattle's International District so that he could prepare to perform his job as a dealer of Pai Kew, a Chinese card game. The Wah Mee Club has two levels with several steps connecting the upper with the lower level. Others present when Wai Chin arrived were also employees of the club who were preparing for the club's regular midnight opening.
Shortly after midnight, Wai Chin saw a man whom he recognized as Benjamin Ng enter the club. Ng drew a gun and ordered everyone to place their hands above their heads. Wai Chin saw another man, whom he did not know but who was subsequently identified as Tony Ng, also draw a gun. Wai Chin then saw Willie Mak, whom he had known for about a month, standing on the upper level of the club with his gun also drawn. The three of them ordered the 10 other people present at the club to lie down on the lower level. Benjamin and Tony Ng then took precut pieces of rope out of a brown paper bag and proceeded to bind each person's hands and feet behind the person's back. Each person was then placed on his stomach. While Tony Ng was tying him, Wai Chin asked him to loosen the binds, pleading that he was an old man and couldn't harm anyone. Tony Ng complied.
After they had tied the victims, Benjamin and Tony Ng took their wallets and money. Mak neither tied people nor took money. He remained on the upper level and appeared to supervise the procedure. Four other people arrived while this process was occurring. All were subsequently bound and robbed. After everyone was tied and their money taken, Wai Chin heard and was hit by gunfire. He then lapsed into unconsciousness. Wai Chin testified that more than one gun was fired and that Ng held the gun with the "long barrel and small hole."
When Wai Chin awoke, he loosened the bindings, stumbled outside and told a passerby what had occurred. When the police arrived and entered the club, they found 12 people shot to death. The thirteenth subsequently died, and Wai Chin became the only surviving victim.
Wai Chin told the police that Benjamin Ng, Mak and a third person whom he did not know were the perpetrators of the incident. Several police officers then went to the home of Benjamin Ng's brother, Stephen Ng. Stephen informed the police that his brother lived with his girlfriend, Kennis Izumi. Kennis and Benjamin Ng shared a bedroom in Kennis' parents' home.
At approximately 6:30 a.m., Lieutenant Holter knocked on the Izumi's front door. Kennis' mother, Connie Izumi, opened the door. The lieutenant identified himself, explained that Ng was a suspect in a multiple homicide and asked if he could enter to effectuate Ng's arrest. She granted permission to enter the home. Holter and Detective Baughman entered the home, opened the bedroom door, entered the bedroom, woke Ng from a sound sleep and arrested him.
While in the bedroom, Holter and Baughman saw two guns and a stack of money. They asked Ng to consent to a search of the bedroom, but he refused. After he took Ng out of the bedroom, Holter conferred with Major Douglass who had arrived at the home after the initial entry. They decided to procure a search warrant. They informed the Izumis that they would station an officer in front of the closed bedroom door to ensure that no one entered the bedroom. Upon hearing of this plan, George Izumi, Kennis' father, offered to allow the police to search his home. Major Douglass testified that he declined this invitation in favor of "[a] little more conservative approach to make certain we didn't err in any way."
At approximately 2 p.m. the police returned with the warrant and proceeded to search Ng's bedroom. They seized approximately $7,500 in cash, two loaded .38 caliber revolvers, an M-1 rifle and an ample supply of ammunition for all three weapons.
On February 24, 1983, the prosecutor filed an information charging Mak and Ng with 13 counts of aggravated first degree murder and 1 count of first degree assault. At the same time, the prosecutor gave notice of his intent to seek the death penalty against both defendants.
Subsequently, the two trials were severed and Ng was tried first. Immediately after the jury was selected in Ng's trial, Ng moved to sequester the jury. The trial court denied the motion stating,
Ng then moved to suppress all items seized in the search of the bedroom. Ng conceded that under Chimel v. California 95 U.S. 752, 89 S.Ct. 2034, 23 L.Ed 2d 685 (1969) items could have been seized at the time of the arrest. Ng maintained, however, that by placing a police officer in front of Ng's bedroom door, the police engaged in an unreasonable seizure of the bedroom. The trial court denied Ng's motion, finding that securing the bedroom was a reasonable action because it was "minimally intrusive and served to preserve evidence of a recent violent crime".
Subsequently, the State moved in limine to exclude as hearsay Mak's statement, "I shot them all." Ng argued that the statement was a declaration against Mak's penal interest and, therefore, admissible under ER 804(b)(3). The trial court granted the State's motion because the surrounding circumstances did not clearly indicate the trustworthiness of the statement.
During trial, Ng made three motions asking for either a mistrial, dismissal of the charges, or sequestration of the jury because of prejudicial publicity that occurred during the proceeding. Ng's motions were based on (1) a headline in the Seattle Post-Intelligencer announcing, in reference to Mak's statement, "Chinatown Confession Revealed"; (2) an article in the Seattle Times in which a paragraph summarizing the prosecutor's opening statement contained inaccurate information; and (3) a phone call received by one of the juror's children in which the caller asked if the juror was "going to let the gook live or die." The trial court denied all three motions.
At trial, the State introduced evidence showing that two guns, a .22 caliber Ruger and a .22 caliber Colt, were fired during the shootings. An expert witness testified that the majority of the shots were fired by the Ruger .22. Although neither gun was found, the police seized a holster suitable for a Ruger .22 in Mak's bedroom.
In his closing argument in Benjamin Ng's trial, the prosecutor recalled that Wai Chin had testified that Benjamin Ng had the gun with a long barrel and small hole. The prosecutor demonstrated that a Ruger .22 has a long barrel and a small hole and concluded that the Ruger .22 was Ng's gun that night. Indeed, the prosecutor implied that Ng owned the gun.
Although the prosecutor in his closing argument in Mak's trial never accused Mak of firing the Ruger .22, he did state that Mak purchased the Ruger .22 in White Center, "that very gun ... that was fired at the Wah Mee twenty-six times ..." Report of Proceedings, State v. Mak, cause 49966-7, at 3086.
However, in both trials, the prosecutor maintained that the jury need not concern itself with who fired the shots. In Ng's trial the prosecutor stated:
In other words, it does not matter who did the shooting of any individual victim as long as you are able to say that the defendant and the other person who may have done the shooting shared a common frame of mind.
This precise theory was also argued by the prosecutor in Mak's trial:
The defendant was an accomplice with Benjamin Ng and with Tony Ng and whoever actually held the gun, whoever actually pulled the trigger that sent the bullet into the brain of Jean Mar, it's irrelevant which one, because the defendant or an accomplice caused the death.
Report of Proceedings, Mak, at 3102. Furthermore, the prosecutor in both trials argued that Mak was the mastermind and Ng was his reliable right-hand man. In Ng's trial the prosecutor stated:
If the defendant knew that "Willie" Mak had a plan to kill the people during the commission of this robbery and if he aided or agreed to aid "Willie Mak" in the commission of that crime, he then is an accomplice to aggravated murder.
The prosecutor repeated this theme in his closing argument in Mak's trial:
How can Willie Mak seriously sit here and tell you that he was surprised or confused about how Benjamin Ng was acting? That's exactly the reason why he recruited Banjamin Ng. If you're going to need a guy who can shoot and kill people, he's a pretty reliable guy.
Report of Proceedings, Mak, at 3178.
The jury convicted Ng of 13 counts of aggravated murder and 1 count of first degree assault. At the penalty phase of trial, the jury could...
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