State v. Sundara
| Decision Date | 12 August 2021 |
| Docket Number | No. 20190399-CA,20190399-CA |
| Citation | 498 P.3d 443 |
| Parties | STATE of Utah, Appellee, v. Vienphet SUNDARA, Appellant. |
| Court | Utah Court of Appeals |
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys for Appellee
Opinion
¶1 In a case that had gone unresolved for many years, Vienphet Sundara was convicted in 2019 of a 1991 murder after police reopened their investigation based on modern forensic techniques. Sundara appeals, alleging that his trial counsel rendered ineffective assistance and that the trial court erred in dismissing a juror and in giving a flight instruction. We affirm.
¶2 On the evening of May 18, 1991, Victim was attending a dance held for the benefit of the Laotian community. The dance was held at a community center in Salt Lake City, Utah. Victim, who had allegedly punched Sundara's older brother about a month before, was described as being "afraid," "scared," and "nervous" during the dance. A friend advised Victim to remain inside at a table among his other friends if he was concerned about his safety because nobody would "do anything" to him with all his friends nearby.
¶3 At around midnight, Victim and two friends left the table and went outside the community center. One friend stood outside to smoke a cigarette, the other friend went to a nearby convenience store to use the payphone, and Victim went to find a spot nearby to urinate. Sundara's friend (Friend) and Sundara's other brother (Brother) were also outside at this point and heard Victim and Sundara arguing. Friend and Brother walked over to the place of the argument, at which point Brother said, "Grab him." Friend grabbed Victim's right arm, and Brother grabbed his left. Friend thought Sundara was going to just punch Victim, but Sundara pulled out a knife, which Friend described as a "Rambo knife." Sundara stabbed Victim and ran from the scene with Friend and Brother.
¶4 About the same time, one of Victim's friends heard a "commotion" that involved "screaming, yelling, like a scuffle." He looked over to see Victim under a streetlight with men "running towards him, as if they were chasing someone." After a moment, the men chasing Victim "ran back towards the side of the building." Victim's friend noticed that "there were some muddy-looking liquids on [Victim's] shirts." The friend ran toward Victim, and Victim uttered, "[T]hey stabbed me." The friend tried to catch Victim as he collapsed and noticed that Victim's shirt was soaked with blood. An off-duty police officer (Sergeant), who was working security at the dance, came to where Victim was lying on the ground. Victim died at the scene.
¶5 At 12:19 a.m. on May 19, Sergeant radioed to report that there had been a stabbing at the community center. He reported that the suspects were "male Orientals"2 who were traveling westbound in a vehicle of unknown description on 1300 South toward 300 West.
¶6 An officer (Officer), who was patrolling nearby, heard Sergeant's radio dispatch and responded. At 12:21 a.m., Officer saw a "light-colored car with three male Asians" traveling northbound on 300 West and turning right on 900 South, less than a mile from the community center. Officer testified that the traffic was very light at that hour and he saw no other vehicles occupied by individuals of Asian descent.
¶7 "Based on the proximity to the area, the proximity in time, and the fact that the suspects and the car were a match,"3 Officer stopped the car on the collector ramp to I-15 located at 900 South and West Temple. Officer also testified that the "sole basis for stopping" the car was his "suspicion of its involvement in the stabbing" and not for a pattern of illegal driving. Sundara was driving the car, and Brother and Friend were passengers. Sundara initially gave police officers a false name, but Victim's friend was brought to the scene and identified the three individuals as those involved in the earlier altercation. In addition, police confirmed Sundara's true identity by using his photo identification.
¶8 Officer "notice[d] some dry but still relatively fresh blood on the clothing, the hands, and on the face" of Sundara. Officer also saw "a large knife with a significant amount of blood on it" on the rear floor of the car.
¶9 Sundara, Brother, and Friend were arrested. The clothing of the three men was seized for forensic analysis. In addition, police swabbed blood stains located on Sundara's face and hand. These swabs, along with samples from Sundara's clothing, tested positive for human blood. Bloodstains on Friend's and Brother's clothes also tested positive for human blood.
¶10 A test of the blood on the knife revealed that it matched Victim's blood type and enzyme type in a grouping that occurred in about 1 in 26 individuals in the Asian population. Significantly, a fingerprint lift was taken from the blade of the knife. But due to technological limitations in 1991, the analyst was unable to make a match.
¶11 An autopsy of Victim revealed that he suffered three stab wounds—two in the back and one in the lower neck. The wound to the neck "was the fatal injury." The wounds were consistent with wounds that would have been caused by a "single-edge blade" like the knife found in the car Sundara was driving.
¶12 After the investigation in 1991, no charges were filed, and the case went unresolved.
¶13 In a 1994 FBI investigation involving another matter, Friend told an undercover agent that he had been involved in a murder at the community center "a few years ago." Friend claimed that he and another man "held [Victim] down and his friend stabbed him twice, and then that he stabbed him twice." When asked to repeat the story the next day, Friend said that he "held [Victim] down while his friend stabbed him twice." Friend was arrested at that time, but the record does not indicate if he was prosecuted in 1994.
¶14 In 2014, police reopened the murder investigation and reexamined the blood samples, knife, and fingerprint using current forensic techniques.
¶15 A new fingerprint analyst examined the print that was lifted from the knife. This examiner determined that the print was "a comparable print," meaning that it was of "the highest quality" and would yield an "ID or an exclusion." Identifying thirteen unique characteristics on the print, the analyst stated that she was "confident" in her conclusion that the print recovered from the knife matched Sundara's fingerprint.
¶16 DNA testing was also performed on the blood evidence. Bloodstains on Sundara's shirt and pants matched Victim's DNA profile with a statistical frequency of 1 in 157 quintillion4 for the Asian population. The DNA analyst testified that numbers in the "sextillion or ... quintillion" range are so "massive" that "the likelihood of ... getting another profile that's exactly the same, [is] astronomical." Bloodstains on Friend's pants matched Victim's DNA with a frequency of 1 in 1.09 million for the Asian population.
¶17 While the knife itself did not test positive for blood when the case was reopened, the adhesive tape used to lift the fingerprint retained "a bloodstain that was also taken when they took the fingerprint lift" in 1991. The DNA profile from the fingerprint-lift bloodstain matched that of Victim with a statistical frequency of 1 in 1.09 million for the Asian population.
¶18 As part of the new investigation, police interviewed Sundara in Oklahoma, where he resided. Sundara admitted he had been at the community center for the dance and had borrowed his father's car that evening. He recalled giving Friend a ride home. Sundara claimed that he had not known Victim but had heard rumors that he had been stabbed. Sundara remembered being pulled over and suggested that the knife belonged to his father, who used the car for fishing and camping trips. When confronted with evidence that the knife and his clothes from that night tested positive for Victim's DNA, Sundara suggested that "somebody" did "something stupid," like "throw the knife in [his] car." He also said that "a lot of people got a lot of blood that day" because there was "gangster fighting" going on.
¶19 Sundara was charged with murder for Victim's death. Friend was also charged with murder, but he entered into an agreement with the State and was allowed to plead guilty to manslaughter in exchange for testifying at Sundara's trial.
¶20 The court seated eight jurors and two alternates. We highlight the selection of two jurors because they play an important role in the disposition of this case.
¶21 During the selection process, all the jurors were asked, "Do you have an expectation that there must be scientific or forensic evidence presented in a case before you could make a decision related to the guilt or innocence of a person when the case relates to a Homicide?" Juror 1 answered "Yes" to this question. He explained his answer: But Juror 1 clarified that despite that preference, if the testimonial evidence was sufficient, he would be willing to vote to convict. Juror 31, who was selected as the first alternate, answered "No" to the question.
¶22 Near the end of the second day of trial, the parties and the court learned that someone was trying to serve Juror 1 with a protective order. All parties agreed that if the juror were to be served while at court, coming to the court, or leaving the court, such an event might have a significant impact on the trial.
¶23 At the beginning of the third day of trial, the judge met in chambers with defense counsel (Counsel) and the prosecutor. The prosecutor had learned that the protective order was related to...
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...of all unpreserved claims, even those made on appeal of timely motions to withdraw"). See also State v. Sundara, 2021 UT App 85, ¶ 60, 498 P.3d 443 ("[T]his court lacks authority to overrule Utah Supreme Court precedent."), cert. denied, 502 P.3d 271 (Utah 2021). [12] Additionally, at the e......