State v. Nguyen
| Decision Date | 08 March 1993 |
| Docket Number | 27657-3-I,Nos. 27763-4-,s. 27763-4- |
| Citation | 68 Wn.App. 906,847 P.2d 936 |
| Parties | STATE of Washington, Respondent, v. Phong Thanh NGUYEN, Appellant. STATE of Washington, Respondent, v. Trung Minh LE, Appellant. |
| Court | Washington Court of Appeals |
Timothy Kosnoff, Bellevue, for appellant in No. 27763-4-I.
Norm Maleng, Pros. Atty., Donald Raz, Deputy, Seattle, for respondent.
Robert Leen, Seattle, for appellant in No. 27657-3-I.
Phong Thanh Nguyen and Trung Minh Le each appeals his judgment and sentence for first degree robbery while armed with a deadly weapon. 1 Each argues that the trial court erred in finding that the police had probable cause to arrest him without a warrant, defining "deadly weapon" for sentence enhancement purposes, admitting testimony regarding out-of-court identifications allegedly obtained as a result of unlawful and suggestive police procedures, and imposing an exceptional sentence in his case. Nguyen also argues that his speedy trial rights were violated and that the trial court erred in failing to suppress his confession and dismiss his case for destruction of evidence.
Phong Thanh Nguyen and Trung Minh Le were both charged by amended information with six counts of robbery in the first degree in violation of RCW 9A.56.200(1)(a) and RCW 9A.56.190. 2 Each count included a special allegation of use of a deadly weapon in violation of RCW 9.94A.125. The robbery occurred on March 1, 1990. At approximately 8:30 p.m. that evening, Huont Dang returned to her home in Renton with her niece, Thuy Dang, after shopping at Nordstrom. Willie Ho, Huont Dang's 11-year-old son, opened the garage door to let them drive into the garage. As Thuy Dang was about to get out of the car, several Vietnamese men rushed into the garage and herded Thuy Dang and her aunt into a small laundry room adjacent to the garage. The robbers also put the other members of the household who were home at the time--Kim Tran, Willie's grandmother, and Linda and Julie Ho, Willie's 7 and 8-year-old sisters--in the laundry room. As one of the men, later identified byThuy Dang as Le, stood guard over the family with a gun, the other robbers searched and ransacked the house. In response to a demand by the man who guarded the family, Thuy Dang gave him her necklace and earrings but hid a bracelet and a ring under the washing machine.
The family was then taken to the master bedroom one by one and made to lie on the floor face down where their arms were tied behind their backs and their legs bound. When the bracelet Thuy Dang had hidden was discovered, one of the men hit her in the face and took her back downstairs to show them where she had hidden the ring. He then returned her to the bedroom and bound her again. When they could find no more valuables, the man who was later identified as Le grabbed Huont Dang's leg and threatened to break it if she did not tell him where more money and valuables could be found. When she did not do so, Le threatened to rape her niece and began to unbutton Thuy Dang's shirt. Le threw Thuy Dang on the bed, put a pillow over her face, and began to remove her pants. Another robber stopped him before he did anything further. 3
The men remained in the Dang home for approximately 1 1/2 hours. Before leaving, they told the family that if they called the police they would all be killed, since the robbers knew where the family lived and where the children went to school. Le suggested several times that the men shoot the entire family, but they did not do so. After the men left, the family freed themselves and contacted Seattle Police Detective Richard Sanford with whom they were acquainted through the Seattle business community. The family determined that money and jewelry were stolen from each of the family members and that, in addition, at least one camera was stolen. The family owns a jewelry store, and there was testimony at Nguyen's trial that the jewelry stolen was worth over $10,000.
After Detective Sanford arrived, he and Seattle Police Officer George Nakauye interviewed the family. The family described the robbers as Vietnamese males in their twenties wearing fashionably-cut silver, black and grey clothing. After interviewing each member of the family, the officers determined that there were probably four men. The family was able to describe two of the men in more detail. One of those men was taller and older than the others and had a pockmarked face and curly hair. The other was short and slender and wore wire-rimmed glasses and a moustache. The family did not recognize the men as members of the local Vietnamese community in which they were active.
Based on the family's description and their own expertise in Asian gang robbery investigations, Detective Sanford and Officer Nakauye concluded that the robbers were probably from out of state. After contacting other members of the local Vietnamese community, on March 2 Sanford was informed that four Vietnamese males who matched the descriptions given by the family and were new in town had been seen in the Seattle Vietnamese business community getting into a large white 4-door American car with California license plates. The officers located a car matching that description outside a Vietnamese cafe at 12th and Jackson later the same afternoon. After watching the car for a period of time with binoculars, the officers saw four young Vietnamese men dressed in predominantly black and grey, fashionably-cut clothes leave the cafe along with a woman and get into the white car. One man was taller than the others and had curly hair and a pockmarked face; another was smaller and wore wire-rimmed glasses and a moustache.
The officers followed the car as it pulled out of the parking lot. The car sped through traffic making sudden lane changes that the officers perceived as evasive. The car stopped to drop off the woman, turned down a one way street and doubled back. Believing they had been seen and that the occupants might be heavily armed, 4 the officers conducted a felony stop of the car, ordering its occupants out at gun point. While Officer Nakauye and Detective Villagracie removed the four men, including Nguyen and Le, 5 from the car, Detective Sanford checked the car. He noticed a 35mm Chinon camera in the back seat and a wooden bracelet and a small gold charm in the front seat. 6 Detective Sanford recognized the bracelet and charm as Vietnamese. The officers read the suspects their rights and took them to the West Precinct police station where they were photographed. Those photographs were combined with four other polaroids to create a montage which officers showed to Thuy Dang and Willie Ho that evening. They identified Le as one of the men who had attacked them. They also identified the camera, bracelet and charm as property which had been taken from them during the robbery.
Later that evening, after they were again advised of their rights, Detective Sanford took statements from Nguyen and Vo. Nguyen spoke in English during his interview and refused to use a Vietnamese rights form when it was offered. Nguyen told Detective Sanford that the four men had come up to Seattle from California, obtained guns, and followed the two women back to their home after they left Nordstrom. Once there, he said, they ran in, tied up the family and took money and jewelry. Nguyen told Detective Sanford that he and his girlfriend sold the jewelry at a jewelry store in Seattle the day following the robbery and agreed to take him to that store. At the jewelry store, police recovered Thuy Dang's bracelet and diamonds that had been removed from it along with a bar of gold that had been melted down from a necklace and a ring. Thuy Dang identified the bracelet as hers and Nguyen's girlfriend, Xuyen Tran, identified it as the bracelet she and Nguyen had sold. Xuyen Tran also told the officers that Nguyen split the money from the sale with Le, Vo, and Hong.
Nguyen's case was eventually severed from those of the other defendants. Prior to trial in both cases, the court heard defense motions to exclude evidence obtained as a result of the allegedly unlawful arrest, and to exclude testimony regarding the identification of all the suspects on the ground that it was obtained as a result of unlawful and suggestive police procedures. In Nguyen's case, the court also heard motions to dismiss for violation of Nguyen's speedy trial rights and for destruction of evidence, and a motion to exclude Nguyen's confession. All of these motions were denied by the trial court.
Following each trial, the court gave the jury a deadly weapon instruction and a special verdict form. Nguyen was found guilty on all six counts of robbery in the first degree and of each special allegation regarding use of a deadly weapon. Le was found guilty on five of the six counts of robbery in the first degree and of the special allegation regarding use of a deadly weapon corresponding to each of those counts. 7
Nguyen, Le and Vo were sentenced at a single hearing on January 10, 1991. At sentencing, Le moved to dismiss or, alternatively, for a new trial on count 2 which alleged robbery of Kim Tran, who had not testified at Le's trial because she was in Vietnam. The trial court denied the motion. Le, with an offender score of 8 and a seriousness level of 9, faced a standard range of 132-168 months on each count, including 24 months for the deadly weapon enhancement. He received an exceptional sentence of 336 months. Nguyen, with an offender score of 11 and a seriousness level of 9, faced a standard range of 153-195 months on each count, including 24 months for the deadly weapon enhancement. He received an exceptional sentence of 300 months.
Nguyen first contends that his speedy trial rights were violated when the trial court granted a continuance under CrR 3.3 based on the absence of a State witness. CrR 3.3(h)(2) provides:
On motion of the State, the court or a...
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