State v. Phet, No. 29027-8-II (consolidated with) (WA 5/3/2005)
| Decision Date | 03 May 2005 |
| Docket Number | No. 29087-1-II,No. 29027-8-II (consolidated with),29027-8-II (consolidated with),29087-1-II |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. JOHN PHET and JIMMIE CHEA, Appellants. |
Appeal from Superior Court of Pierce County. Docket No: 98-1-03162-1. Judgment or order under review. Date filed: 06/28/2002. Judge signing: Hon. Karen Strombom.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Stephanie C Cunningham, Attorney at Law, 4616 25th Ave NE #552, Seattle, WA 98105.
Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Kathleen Proctor, Pierce County, Prosecuting Atty Ofc Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Jimmee Chea and John Phet appeal from their convictions of five counts of first degree aggravated murder and five counts of first degree assault, arguing numerous grounds.1 We affirm.
On July 5, 1998, at approximately 1:45 a.m., several gunmen burst into Tacoma's Trang Dai Caf` and opened fire on the patrons, killing five people and wounding five others.3 Later, forensic officers collected 52 shell casings in and around the caf`.4
Tacoma Police Department (TPD) officers retrieved a neighboring business videotape recording of the alley behind the caf`. It revealed two vehicles backing into the alley minutes before gunfire erupted. Based on prior armed assault reports, TPD detectives recognized Chea's silver or gray vehicle. They knew Chea as a member of the LOC's Out Crips (LOC's), a local gang. The detectives then began watching Chea's residence, where they observed that a silver Honda parked there closely matched the Honda in the videotape.
The headlights of a white car displayed in the video illuminated the ground in an unusual pattern. The day after the shootings, a detective who had watched the video observed a car with similar headlights. A records check revealed that the car belonged to Veasna Sok.
The detectives interviewed some of the surviving caf` patrons. They learned that, in March 1998, one of the people injured in the shootings, Son Kim, fought with Ri Le at the caf`. Kim told the detectives that he suspected Le's involvement in the shootings and that he, Kim, was the intended target. The detectives focused their investigation on Le, Chea, and their associates. Later investigation revealed Phet's participation in the crimes.
At 6:00 a.m. on July 18, the detectives served search warrants at nine different locations5 and took approximately 20 people, including Sok, Sarun Ngeth, and Thanna John Chak, to the police station for questioning.6 On July 19, Marvin Leo was taken from his residence to the police station for questioning. At the police station, these individuals gave statements implicating themselves and others.7
Authorities also contacted Phet and Chea while executing the warrants and transported them to the TPD for interviews. The TPD kept Chea and Phet at the station from approximately 6:00 a.m. until late afternoon, when they were interviewed.
A guard held Chea in a captain's office awaiting his interview. No one asked Chea questions. The guard attended to Chea's personal needs. On July 18, at 4:05 p.m., a detective advised Chea of his Miranda8 rights and began interviewing him. Chea stated that he understood those rights and he wished to waive them. He then signed the advisement of rights form in the presence of Detectives Davidson and Ringer. During the interview, Chea denied any involvement in the shootings.
The TPD also held 16-year-old Phet, without interviewing him, from approximately 6:00 a.m. until 5:05 p.m., when he received his Miranda warnings. Phet orally acknowledged that he understood his rights and that he wished to waive them and speak to the police. Phet also signed the standard advisement of rights form.9 Phet did not acknowledge involvement in the shootings.
The State charged Chea and Phet with five counts of first degree aggravated murder and five counts of first degree assault. The State alleged a firearm enhancement on each count.10
The State sought a pretrial ruling on the admissibility of Chea's and Phet's involvement with the LOC's gang. Judge Tollefson ruled the evidence inadmissible because the State failed to show a nexus between the caf` shooting and advancement of any gang-related activity. Judge Tollefson reasoned that the shooting at the Trang Dai Caf` was not a gang-related crime because there was no basis to believe that the LOC's gang or one of its members would benefit from the shooting.
Instead, Judge Tollefson found that the shooting was motivated by Le's desire for revenge against Kim. Because Le was not a member of LOC's gang, the judge believed that the shooting was not gang-related. Therefore, Judge Tollefson ruled that the State failed to show that a nexus existed between the shooting at the caf` and the advancement of some gang purpose.
Later, Judge Hogan agreed to reconsider Judge Tollefson's ruling regarding the gang affiliation evidence. Judge Hogan ruled that the State could raise the issue through an offer of proof. The State presented its offer of proof through Davidson's declaration dated June 11, 2001.11 Ultimately, Judge Strombom admitted the evidence of gang affiliation.
On August 3, 1999, while in custody, Chea and Phet assaulted Sok, who agreed to testify against Chea and Phet under his plea agreement.12 The State moved to admit the evidence of this assault through the testimony of escorting officers. Judge Tollefson granted the State's motion; he stated that the evidence indicated that Chea and Phet knew that Sok had agreed to testify and that was the reason for the assault.13
Before trial, the State moved to exclude any evidence of alleged gambling or narcotics activity at the Trang Dai Caf` on the grounds that such evidence constituted irrelevant hearsay. Judge Tollefson granted the State's motion.14
At trial, Sok, who had been a member of the LOC's gang for a couple of years before the shooting, testified. He said that on the evening of the shooting, he left home with his 9 millimeter handgun, which he carried to protect himself against other gangs' members.
Sok went to Ngeth's house, where he picked up Ngeth and Leo; Ngeth was armed with his .380 and Leo took Sok's 9 millimeter. While they drove around, Khanh Trinh called them to find out whether Sok wanted to `put in work' that night. Report of Proceedings (RP) at 4388. Sok understood the term `put in work' meant a drive-by shooting. RP at 4388.
Sok, Ngeth, and Leo waited about 10 minutes before Chea showed up in his car; Chea wore red clothes. Le, Samath Mom, Trinh, and Phet were in Chea's car. Chea asked if they wanted to `put in work'; Le mentioned that he wanted to `get' Kim at the Trang Dai Caf`. RP at 4396. Sok understood this to mean to shoot Kim.
Next, Chak testified that he belonged to the LOC's gang. On July 4, 1998, Chea called Chak and invited him over to Le's house. Chea wore red clothes. He drove his gray/silver Honda Civic and picked up Chak for the ride to Le's house. Phet and Mom were already there. Chea and Le talked about Kim `mean mugging' Chea, a sign of disrespect that could trigger violent retaliation.15 At one point, Le and Khanh left the house for awhile and returned with red clothing. Eventually everybody got into cars and met other LOC's members.
Chak further testified that Sok and his carload and Chea and his carload drove to the market. Chea told Chak to call the caf` to learn whether Kim remained there. When Kim answered, Chak hung up. Both cars then drove into the alley behind the caf`. The cars went down the alley twice, the second time backing into it so that they could leave without driving the wrong way on a one-way street.
Chak also testified that Chea stayed in his car, and Sok and Ngeth stayed in Sok's car; everyone else got out and took guns from Chea's car trunk. Le told Khanh and Phet to guard the back door and to shoot if anyone came out.
Leo, Le, Mom, and Chak headed for the front door; Chak opened the door and everyone rushed in and opened fire. After a short time, the three backed out of the door while Le continued to fire through the wall as they retreated to their cars. By the time Chak and others returned to their cars, Phet and Khanh were already in their car. After the shooting, they all returned to Le's house.
Davidson testified as an expert on gang culture. He opined that gang crimes may include all kinds of assaults, threats, intimidation, physical beatings, nonfatal shootings, stabbings, and homicides. He also stated that gangs were generally formed to make profits, to protect individual members, and to `gang bang' or commit violence; that `OG's'16 exerted influence over younger gang members; and that gang members would dress in another gang's color when carrying out a drive-by shooting in order to level blame on members of a rival gang.17
The detective identified Chea as one of the LOC's `OG's.' RP at 3408. Davidson and other witnesses explained gang hand signals, signs, and tattoos, and provided LOC's members' names. Jurors reviewed one photograph of some LOC's gang members, including Chea and Phet.18
The jury found Chea and Phet guilty as charged, including the firearm enhancements. Chea and Phet appeal.
For the first time on appeal, Phet and Chea contend that the information charging them with first degree aggravated murders did not contain all the essential elements of the crime. They assert that the State did not identify the intended victim of the charged premeditated murder.
An information must contain all essential elements of a crime, statutory or otherwise, in order to give notice to the accused of the nature and cause of the action against him. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). Where the challenge to the sufficiency of the charging...
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