State v. Phan, No. 57520-1-I (Wash. App. 5/21/2007), 57520-1-I.
| Decision Date | 21 May 2007 |
| Docket Number | No. 57520-1-I.,57520-1-I. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. SON THANH PHAN, Appellant. |
Appeal from King County Superior Court. Docket No: 04-1-14146-6. Judgment or order under review. Date filed: 12/19/2005. Judge signing: Honorable Douglass A North.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.
David L. Donnan, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Son Thanh Phan — Info. Only (Appearing Pro Se) 2806 Sw Raymond St #227, Seattle, WA, 98126.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
Christine Wilson Keating, King County Prosecutors Office, 516 3rd Ave Rm W554, Seattle, WA, 98104-2312.
A trial court's conclusions on a suppression motion will not be overturned on appeal if they are supported by substantial evidence in the record. Because there is substantial evidence in the record supporting the trial court's conclusion that Son Phan understood English sufficiently enough to make a knowing, intelligent and voluntary waiver of his constitutional rights, we affirm.
Son Phan is a native of Vietnam and has been living in the United States for 15 years. In November 2004, he was homeless and living in a tent community under Interstate 5 in Seattle known as "the Jungle." Michelle Alojasin also was homeless, lived in the same community as Phan, and knew Phan personally. One night in November, Phan came into Alojasin's tent and asked her if she wanted to smoke crack with him. Alojasin agreed. After smoking some crack, Phan pulled down his pants and put his "private part" in her face. Phan demanded sex from Alojasin, but she refused. Phan pulled out a knife and a struggle ensued. Alojasin was stabbed in the chest and Phan left Alojasin injured in her tent.
A day later, acting on an anonymous tip that a woman had been stabbed, the police arrived to discover Alojasin. They transported her to the hospital where she underwent open-heart surgery. While recovering from surgery, Alojasin was interviewed by the police. She described her attacker as Vietnamese, short, and cross-eyed. She also told them his name was Son. The police then provided Alojasin a montage of six photographs of persons. Alojasin was not able to identify anyone from the photographs. Later that day, the police presented Alojasin with a second montage based on information from police officers familiar with the people living in the Jungle. Alojasin immediately picked out Phan's photograph. Phan was arrested the same day. The police read Phan his Miranda1 rights and then transported him to the police station where he was interviewed. During the course of the interrogation Phan confessed to having threatened Alojasin with a knife, but contended her injury was an accident.
Prior to trial, Phan moved to have his custodial statements suppressed, arguing that he did not knowingly, intelligently and voluntarily waive his constitutional rights. After a hearing at which five police officers testified, the trial court determined that at the time of his arrest, Phan could sufficiently understand his rights in English and was thus capable of making an appropriate waiver of those rights. The court also concluded that Phan verbally acknowledged that he understood his rights to two of the officers and that Phan stated to one of the detectives that he understood and spoke English. Phan's statements were thus admitted into evidence.
Also prior to trial, Phan moved to suppress the photographic montage identification and any subsequent in-court identification based on the fact that Phan was the only person in the montage with crossed eyes and who was wearing a patterned shirt. The trial court denied Phan's motion, stating that while the photograph of Phan was suggestive it did not give rise to a very substantial likelihood of irreparable misidentification.
After the trial and the jury deliberations, the jury informed the court that it had reached a verdict. However, in reviewing the verdict forms the trial court noticed that the jury had failed to fill out the special verdict form regarding the deadly weapons enhancements. Upon noticing this, the trial court inquired whether the jury had failed to fill out the form because they had failed to agree, or because they had not discussed those questions. The foreperson stated that they had discussed the issues on the special verdict forms and had reached a unanimous decision, but did not realize they had to fill out that form as well. Without accepting the verdict, the trial court then directed the jury to return to the jury room to finish their deliberations and determine how to complete the special verdict form. The jury returned later, having found that Phan committed both crimes with a deadly weapon. The trial court then polled each juror to determine whether they had in fact discussed and arrived at a determination on the deadly weapon issue before the court had inquired as to the reason why the form had not been completed. The jurors each answered in the affirmative. The trial court then accepted the verdicts. Phan appeals.
When a criminal defendant has been read his or her Miranda2 rights, the defendant may waive those rights, provided the waiver is made knowingly and intelligently.3 When a motion to suppress a custodial statement is brought, the State has the burden of proving that a defendant has made a knowing, voluntary and intelligent waiver of his or her Miranda rights.4 A trial court's conclusions on a suppression motion will not be overturned on appeal if they are supported by substantial evidence in the record.5
Phan's challenge is based on his alleged inability to understand his rights as communicated to him in English. Here, the trial court's conclusion that Phan could sufficiently understand his rights in English and thus was capable of making an appropriate waiver of those rights is supported by substantial evidence in the record. Five members of the police department testified as to Phan's ability to communicate in English. Two of the officers had previous contacts with Phan and had conversations with him in English. In their opinions, Phan's ability to orally communicate in English was good and they never had any difficulties conversing with him. When the police read Phan his rights and asked Phan if he understood his rights, Phan answered, "yes." The arresting officers testified that Phan did not appear to be under the influence of alcohol or drugs at the time of the arrest.
The detectives who interviewed Phan at the station similarly stated that they had no difficulty communicating with Phan in English and that Phan's answers were responsive to their questions. They described Phan as being alert and willing to speak. Phan also told one of the detectives that he understood and spoke English. Taken together, the evidence is sufficient to support the trial court's conclusion.
Whether to admit evidence of a photo identification or photomontage used to identify a suspect is subject to the sound discretion of the trial court.6 An identification procedure violates due process if it is "'so impermissibly suggestive as to give rise to a substantial...
To continue reading
Request your trial