State v. Ros

• Decision Date: 01 July 2009
• Docket Number: No. 2006-87-CA.,No. 2007-98-CA.,2006-87-CA.,2007-98-CA.
• Citation: 973 A.2d 1148
• Parties: STATE v. Arun ROS. State v. Veasna Sin.
• Court: Rhode Island Supreme Court

973 A.2d 1148

STATE v. Arun ROS.

State v. Veasna Sin.

No. 2006-87-CA.

No. 2007-98-CA.

Supreme Court of Rhode Island.

July 1, 2009.

Virginia M. McGinn (Department of Attorney General), Rebecca Tedford Partington (Department of Attorney General), for Plaintiff.

Paula Rosin (Office of Public Defender), Robert B. Mann, Esq., for Defendant.

Present: GOLDBERG, Acting C.J., FLAHERTY, SUTTELL, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).

OPINION

Justice SUTTELL, for the Court.

The issues in this appeal arise from a New Year's Eve celebration that ended in tragedy, yet another lamentable incident of gang-related violence. As five companions left a party in the early morning hours of January 1, 2002, gunshots directed at their automobile resulted in the death of one passenger and the permanent paralysis of another. A jury convicted Arun Ros and Veasna Sin (the defendants), following a joint trial, on nine criminal counts relating to the shootings. The defendants raise a number of issues on appeal. They argue, primarily, that the trial justice committed reversible error in denying their motions for judgment of acquittal and in his instructions to the jury. Additionally, they perceive error in the extent of witness testimony the trial justice instructed the stenographer to read back to the jury in response to the jurors' request. Finally, they argue that they were denied the right to an impartial jury, in that the composition of the grand and petit juries did not represent a fair cross section of the community. For the reasons stated in this opinion, we affirm the convictions of both the defendants on all counts.

I Facts and Procedural History

Revelers attending two parties enlivened Wendell Street in Providence during the waning hours of 2001.¹ The defendants were at a party at 48 Wendell Street, of which Sin was the host. The five aforementioned companions—Heang Ly Say,² Thanaroeuth Ngim, Khan Khea, Angel Alvarez and Perry Bun—were attending a party on the opposite side of Wendell Street. They decided to leave together a little after midnight. When they stepped outside, there were a number of other people out on the street. After getting in Khea's white Acura, one or more of the passengers noticed that someone outside was armed with a gun.

Almost immediately thereafter, bullets began striking the Acura. One passenger, Say, suffered a fatal gunshot wound to his head.³ Another passenger, Ngim, endured a gunshot wound in his back, causing him a spinal cord injury that left him paralyzed from the waist down. The driver, Khea, and the other two passengers in the car, Alvarez and Bun, were not seriously harmed.⁴

The surviving occupants of the car had slightly different accounts of what occurred that night. Ngim testified that after driving past the people across the street, he looked back and saw "someone run out with a gun." He described that person as an Asian male wearing a dark hooded sweater and a dark ski hat, carrying a long black gun that he thought looked like an M-16. At that point, Ngim said, he turned around, heard a gunshot, and the next thing he knew, he felt a bullet in his back. Before he lost consciousness from his injury, Ngim remembered bullets knocking out the windows of the car and Say's neck bleeding.

Bun testified that within moments of getting into the car he heard someone else in the car say, "Duck down." He then heard gunshots, but never saw any gunmen. Alvarez testified that, before the shootings, he saw an Asian man across the street, whom he described as wearing a white shirt, dark pants, and a hat, holding a big, rifle-type gun, "like an AK-47." After that, "the car just started getting hit with shots." The driver, Khea, testified that after two of the passengers in the car warned him that someone on the street had a gun, he looked out the window and saw a person with a white shirt coming down a driveway on Wendell Street and holding something with two hands. The next thing he knew, gunfire was being directed at the car and the windows were shattering.

The driver, Khea, lost control of the car at the end of Wendell Street, where it crashed into a tree and came to rest against a fence at the intersection with Superior Street.⁵ He and Alvarez got out of the car and started running. Alvarez said the last thing that he saw as he ran were his three friends in the car, who "looked like they [were] dead." After reaching Cranston Street, they went into an apartment building, where they asked a stranger to call the police. Meanwhile, Bun, still alert in the car, said that several people surrounded the car and started assaulting the passengers inside it, including him.⁶ He said that he did not see who these people were because he was "curled up," though he heard someone say, "Ah ha, your boy's dead." The people surrounding the car dispersed when the police arrived.

Various police officers reported to the scene, including Patrolman Robert Kells, Jr., Det. James Clift, and Det. Kerion O'Mara. Officer Kells, first to arrive at the scene, testified that he "observed several Asian males running from what was the crime scene." After observing the white car and realizing there were victims, he requested assistance and rescue units. He, and later Det. Clift, noticed two distinct groups of shell casings in the street; they believed that one group consisted of 9 mm casings and the other of 5.56 mm casings. One group was located across the driveway from 48 Wendell Street and the other, farther up and across the street.

Detective O'Mara testified that on January 4, 2002 he obtained arrest warrants for Sin and Ros, the suspected gunmen, as well as a search warrant for Sin's residence at 48 Wendell Street.⁷ Both defendants were arrested at 48 Wendell Street, in a bedroom of Sin's first-floor apartment. Police also seized a black nylon rifle bag they found in the bedroom closet; the bag contained three magazines, or ammunition clips. Fingerprints found on one of the clips matched Sin's known print. An expert for the state testified that the rifle bag was manufactured as a case for an AR-15 or M-16 rifle.

Robert Hathaway, who was qualified as a firearms and toolmark expert, examined the spent shell casings found on Wendell Street and the magazines found in the rifle bag. He testified that twelve shell casings were 9 mm in caliber and could have been fired from a large handgun known as a Tech-9. Six shell casings, he said, were of a caliber referred to as either 5.56 or 223, which are compatible with an AR-15 or M-16 rifle. Mr. Hathaway determined that the magazines found in the rifle bag were designed to fit only size 223/5.56 mm shells. He could not ascertain whether any of the shell casings retrieved from Wendell Street had been fired, in fact, from any of those particular magazines. Finally, he testified that the lead fragments recovered from Say's body were too small and splintered to identify the caliber.

Various witnesses present on Wendell Street on January 1, 2002 had their own version of the events surrounding the shootings.⁸ The state's primary witness, Samath Me, offered the most damaging testimony against defendants. Me testified that he was at Sin's New Year's Eve party that night and had walked there with three friends, Pheurt Phann, Rocky Sok, and Cha Leis Koak. When he stepped outside to have a cigarette, Me said that he saw Sin and Ros sitting in the rear hallway stairwell; he testified that Sin was cleaning a black rifle that looked to him like an AR-15, and Ros was holding a large handgun that looked like a Tech-9. Me said that later that night, as he was leaving the party with Sok to buy more cigarettes, he observed Sin and Ros go into the backyard and fire their guns into the air. On the way back to the party, Me said that he and Sok heard a loud bang. He testified that, because they did not trust that loud noise, they decided not to return to the party. Me admitted that in an earlier statement given to the police on January 3, 2002, he stated that on their walk back to the party they encountered Phann, who told them that Sin and Ros had shot at a car. At trial, Me denied that this conversation took place.⁹ Sok testified that they had encountered Phann and that he told them that there had been a shooting, but not that he had disclosed who the shooters were.

Other witness testimony at trial differed from Me's account in several respects. First, Cha Leis Koak testified that he did not go with Samath Me to the party at 48 Wendell Street that night. He asserted that he did not go to the party at all and had stayed home with his family and girlfriend on New Year's Eve. His father also testified that his son was at home that night. Second, no other witness testified to seeing Sin or Ros in the rear hallway stairwell with guns. Rocky Sok testified that although he was at the party, he never went outside to share a cigarette with Me and did not see Sin or Ros with guns—neither in the hallway, nor in the backyard. Sok did confirm, however, that he left the party at some point to buy cigarettes with Me. Bounma Thammavongsa, a friend of Sin's and his uncle's girlfriend, testified that, close to midnight, she spent time talking with other people in the rear hallway during the party, but she never saw Sin or Ros there. Pheurt Phann said that he spent considerable time in the hallway talking to a girl, but he never saw anyone with guns. Third, although Me testified that he specifically recalled there being a light on in the hallway, five other witnesses, including defendant Ros, said that there was no light in the hallway. Chanda Sin, Sin's sister, who lived at 48 Wendell Street at the time of the party, testified that the rear hallway light never had worked. Thammavongsa testified that there was no light on in the hallway, but there was enough light to see other people. Fourth, Me testified to giving various oral and written statements to the police about this matter throughout 2002 and 2003....