State v. Trujillo

• Decision Date: 02 July 2002
• Docket Number: No. 22369-4-II., No. 22210-8-II, No. 22247-7-II, No. 22325-2-II, No. 22206-0-II, No. 22209-4-II
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. John Frank Reyes TRUJILLO, Van Veth, Fernando Angel, Vouty Thol, Phan Kong, Sok Krouch, Appellants.

49 P.3d 935

112 Wash.App. 390

STATE of Washington, Respondent, v. John Frank Reyes TRUJILLO, Van Veth, Fernando Angel, Vouty Thol, Phan Kong, Sok Krouch, Appellants.

Nos. 22206-0-II, 22209-4-II, 22210-8-II, 22247-7-II, 22325-2-II, 22369-4-II.

Court of Appeals of Washington, Division 2.

July 2, 2002.

As Amended August 2, 2002.

Thomas Edward Doyle, Hansville, Patricia Anne Pethick, Pattie Mhoon, Tacoma, Robert Mason Quillian, Olympia, Robert W. Huffhines, Kelso, Alfred Arthur Bennett, Vancouver, court appointed, for Appellants.

James Jay Stonier, Susan Irene Baur, Cowlitz County Prosecuting Attorney, Kelso, for Respondent.

PART PUBLISHED OPINION

QUINN-BRINTNALL, A.C.J.

This case comes to us from the trial of six co-defendants in which the trial court gave the jury an accomplice liability instruction later declared defective in State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000).

On March 3, 1997, about 2 a.m., three carloads of young men went to the home of Bunny Vath.¹ Some of the young men fired 18 shots at Vath when he opened the door. Although wounded in the chest and abdomen, Vath survived the attack.

Within minutes of the shooting, the Cowlitz County Police apprehended one carload of the young men as they tried to escape. They apprehended the others in the ensuing days.

In June 1997, a jury convicted four defendants of first degree assault and, in the alternative, first degree attempted murder. Another two were charged and convicted of first degree assault only.²

The six defendants, John Trujillo, Fernando Angel, Phan Kong, Vouty Thol, Van Veth, and Sok Krouch, now appeal to this court. They assign numerous errors, including error in the accomplice liability jury instruction, error in alternative charging, violation of the timely trial rule, and prosecutorial mismanagement. We affirm.

FACTS

The Shooting of Vath

On March 3, 1997, at about 2 a.m., Patrick Webb was in his girlfriend's living room in Kelso, Washington, when he saw three cars, a Prelude, a van, and what appeared to be a Monte Carlo, traveling down the street together. The drivers turned their headlights off as they approached the corner. And all three vehicles came to a stop. Approximately fifteen young men got out of the cars, and six or seven had red bandanas in their hands. They split into three groups and headed silently towards Vath's home. Webb had known Vath for about five years and he was acquainted with members of Vath's gang. Webb became concerned for the safety of his friend and her young son sleeping in the back bedroom of the house.

Someone knocked on Vath's door. Vath, who had been dozing on the couch, opened the door. Vath heard the gunmen say, "[F]ire," and the shooting began. Report of Proceedings (Vol.IV, 6/16/97) at 457. At trial, Vath's brother recalled that he heard his brother say, "Who is it?" and then the shots being fired. Report of Proceedings (Vol.IV, 6/16/97) at 389.

As Webb went to the bedroom, he heard a gunshot and saw someone wearing a red shirt shooting a short gun. Webb saw another person shooting some kind of machine gun that looked like a Tec-9. He did not see any shots being fired from the house.

Other neighbors, the Coopers, had awakened to the sound of 10 to 15 gunshots. Donald Cooper heard voices and saw a group of people walk toward a van parked in front of his house. He testified, "I heard the van start up, and at the same time as the van started up, I saw taillights of another car in front of the van, which I didn't know was there before." Report of Proceedings (Vol. VIII, 6/20/97) at 1167. He saw both cars travel down the street with their lights off. The van returned a few seconds later, backed up, and left again, just as a police car was coming down the street.

The Events Leading up to the Shooting

The violence that erupted at Vath's house had its roots in events stemming several years. The long-standing friendship between Angel and Vath had soured due to intertwining romantic relationships and compromised allegiances. Then, in 1993, Vath was convicted of raping Angel's 11-year-old cousin. The shooting of Vath was the culmination of these events.

In a pretrial statement to the police, Angel stated that sometime around 1990-91, Vath and Angel both joined a gang called the Original Blood Troop. But the two men parted ways in 1993 when Vath was convicted of raping Angel's cousin and was sentenced to prison. Vath was released from prison toward the end of 1996. After his release, Vath threatened Angel and his family for testifying against him. These threats included phone calls threatening Angel's family and drive-bys where he mimed shooting them by pointing his finger as a gun.

In early 1997, the defendants were aligned as follows: Angel dated Christy Fowler in January and February of that year. Fowler lived in a house in Longview and Angel's sister, Elizabeth (Lizzie) Angel, lived upstairs with Kong and their three children. Angel and his cousin, Trujillo, often stayed with Lizzie and Kong. Kong had been in the Oriental Fantazy Boyz gang in Seattle but had moved to Longview to get away from that life.

Angel also had a daughter with Vannie Vath, the victim Bunny Vath's younger sister. When Angel and Fowler were spending time together, Vannie Vath would call and threaten Fowler, claiming that Fowler was trying to keep Angel from seeing his daughter. And Bunny Vath periodically drove by the Fowler home and made gestures imitating shooting. Once, in response, Angel ran out the door and threw his hands up in the air, "[l]ike a challenge to fight." Report of Proceedings (Vol.III, 6/24/97) at 269. After Fowler broke up with Angel, she began dating Landen Harvill.

There was a confrontation on March 2 at the Fowler/Kong/Lizzie Angel house in Longview. A group of people came to the house and began kicking the windows and yelling. Fowler heard Vath yell, "Fuck your family." Report of Proceedings (Vol.III, 6/24/97) at 284. Lizzie Angel saw about 15 people arrive, heard the same outburst, and dropped on the ground when she saw Vath reach into his jacket. Two to five shots rang out. Most believed Vath had "shot out" the building, but actually Kong had fired the shots from the porch to disperse the crowd.

Fearing that Vath would return the next night, Kong, Trujillo, and Harvill took Fowler's car to Seattle to recruit some Oriental Fantazy Boyz "homeboys" for assistance.

Chea Keo, a 14-year-old Cambodian boy from Seattle's White Center who pleaded guilty to second degree assault, testified at trial about being recruited and the shooting. Keo is a member of the Little Ruthless Boyz gang, the precursor gang of the Oriental Fantazy Boyz. Both gangs are "blood gangs" and use the color red.

Keo testified that he, Demeko Holland, Vorn and Veth, Krouch, and Thol were at a home in White Center when Kong and "two white guys" came to see them. Report of Proceedings (Vol.VI, 6/19/97) at 842. According to Keo, Kong asked the Seattle group if they "would come and spend the night at his house and stuff like that. They said they needed backup .... [t]o go shoot somebody." Report of Proceedings (Vol.VI, 6/19/97) at 849. The Seattle friends were told that the problem was a rival gang, the Sorenos. Kong and Trujillo asked Keo to get his gun and drove him to his house to get it. Keo's gun was a .45 caliber with two magazines loaded with hollow point bullets. Keo gave the gun to Trujillo, who put the gun clips in his shoe. The group traveled 1-5 south to the Longview Kelso area.³ Harvill drove Fowler's car; Krouch drove a minivan.

En route, Harvill called Fowler on a cell phone to report that "they had seven or eight guys with them and one of them that were [sic] in the car with him had a gun." Report of Proceedings (Vol.III, 6/24/97) at 293.

As the group traveled toward Longview, Fowler learned that Vath had done another drive-by shooting. Together with Lizzie Angel and the children, Fowler went to Angel's aunt's house and called the police. According to Angel, the police "told us not to do anything stupid, they would take care of everything." Clerk's Papers (Angel) at 2. Officer Hallowell, who responded to the house, testified that less than six hours before Vath was shot, Angel told him "that if [you] can't do anything, [I'm] going to kill the mother-fucker." Report of Proceedings (Vol. II, 6/23/97) at 235.

Later that night, the group, including the Seattle recruits, gathered at Fowler's. Aaron Sjoblom, a friend, testified that another friend, Don "DJ" Byman, brought 22 ounce cans of beer and that a substantial amount of alcohol was consumed. Gradually, the group began to talk about confronting Vath. Some wanted to fist fight; others wanted to "put him to sleep." Clerk's Papers (Trujillo) at 8. Sjoblom testified that he heard Angel say to Veth and Thol, "Knock on the door and shoot." Report of Proceedings (Vol.1, 6/23/97) at 21.

The men were armed. Harvill and his brother left the apartment for a while and returned with a Tec-9 semiautomatic weapon. Kong had the gun that he had fired the previous night. All weapons were visible. The women left with the children and took a room at the Motel 6 in Kelso to avoid the gunfire.

About 2 a.m., the young men got into the three cars that Webb and Cooper saw and went to Vath's house. Angel fired the Tec-9 and then gave it to Veth, who also fired. Thol fired the .45. Trujillo held Kong's gun but it was jammed. Kong tried unsuccessfully to fix it. Krouch remained in the van. A total of 18 rounds created 43 holes in Vath's home. Two shots hit Vath in the abdomen and chest. But Vath's brother managed to pull him to safety and call 911. Several neighbors, Webb, Mr. Thompson, and the Coopers, heard the shots and called the police as well.

The Arrest

The police arrived within minutes. When Krouch saw them, he drove off in the van with several defendants. But they were apprehended a short distance away.

Veth was left at the scene.⁴ Veth hid the gun he had...