State v. Vang

• Decision Date: 29 October 2009
• Docket Number: No. A08-588.,A08-588.
• Citation: 774 N.W.2d 566
• Parties: STATE of Minnesota, Respondent, v. Meng VANG, Appellant.
• Court: Minnesota Supreme Court

774 N.W.2d 566

STATE of Minnesota, Respondent, v. Meng VANG, Appellant.

No. A08-588.

Supreme Court of Minnesota.

October 29, 2009.

Lori Swanson, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, Minnesota; and Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant Anoka County Attorney, Anoka, MN, for respondent.

Roy G. Spurbeck, Assistant State Public Defender, St. Paul, MN, for appellant.

OPINION

DIETZEN, Justice.

Appellant Meng Vang was convicted of two counts of aiding and abetting first-degree premeditated murder and two counts of aiding and abetting first-degree premeditated murder for the benefit of a gang for the shooting and resulting deaths of Tashi Jagottsang and Bunsean Lieng. See Minn.Stat. §§ 609.05, 609.185(a)(1), 609.229, subd. 2 (2008). Additionally, appellant was convicted of four counts of aiding and abetting attempted first-degree premeditated murder and four counts of aiding and abetting attempted first-degree premeditated murder for the benefit of a gang for the shooting and resulting injuries to Tenzin Tsondu, Tenzin Phelgye Woser, Tenzin Tenpa, and Tenzin Choegyal. See Minn.Stat. §§ 609.05, 609.185(a)(1), 609.229, subd. 2, 609.17 (2008). The district court entered judgments of conviction and sentenced appellant to two life terms for aiding and abetting the first-degree murders for the benefit of a gang of Tashi Jagottsang and Bunsean Lieng. It imposed consecutive 186-month sentences for the attempted first-degree murder for the benefit of a gang for the offenses against Tenzin Tsondu, Tenzin Phelgye Woser, Tenzin Tenpa, and Tenzin Choegyal.

In this direct appeal, appellant argues that (1) the district court abused its discretion by admitting gang expert testimony; (2) the district court's jury instruction on accomplice liability materially misstated the law; (3) the district court abused its discretion regarding certain evidentiary rulings; (4) the evidence was not sufficient to establish that the murders and attempted murders were premeditated; and (5) the district court abused its discretion when it imposed consecutive sentences. We affirm.

About 10:00 p.m. on February 3, 2005, police responded to a report that a fight had erupted at Jimmy's Pro Billiards (Jimmy's) in Columbia Heights and that shots had been fired.¹ Within seconds, Officer Greg Sinn arrived on the scene and observed a body, later identified as Bunsean Lieng, lying on the floor of a parking ramp about 60 feet from the pool hall. Lieng had suffered a fatal gunshot wound to the head. A few seconds after arriving at the scene, Sinn saw a black Honda with its lights off exit the parking ramp going the wrong way. A police car driven by Officer Matt Aish arrived a few seconds later. Officer Aish saw the black Honda quickly accelerate through a stop sign onto a city street.

Officer Aish stopped the black Honda. Jason Moua was driving the black Honda, and Helene Yang and appellant were passengers. Police found a blue bandana and a box of .38 caliber Winchester ammunition in the black Honda. About half a block away from Jimmy's, police found a 9mm Taurus handgun lying in a snowbank.

At the same time, police also stopped a dark blue Honda Civic about one block from the location of the stopped black Honda. Sai Vang was the driver, and Charles Yang and Grogan Yang were the passengers. In the dark blue Honda Civic, police found a 9mm Jennings handgun, a .38 revolver, a .357 Magnum revolver, and spent casings under the seats.

In a small park nearby, police found the body of Tashi Jagottsang. Jagottsang had sustained multiple wounds that were consistent with bullets fired from a .357, .38, or 9mm handgun; he died from the injuries. Tenzin Tsondu, Tenzin Phelgye Woser, Tenzin Tenpa, and Tenzin Choegyal were also injured from gunshot wounds arising out of the same incident. These victims were all Tibetan men, with the exception of Bunsean Lieng, who was Cambodian.

Subsequent ballistics testing confirmed that cartridge casings recovered from the parking ramp behind the pool hall had been fired from the 9mm Taurus handgun found in the snowbank, and the spent casings found under the seat of the dark blue Honda Civic had been fired from the 9mm Jennings pistol.

Nine days later police stopped a maroon Acura driven by Richard Vang and owned by Yatau Her. This car had been seen at Jimmy's on the night of the incident. Police discovered a silver and black Smith and Wesson handgun in the car. Testing showed that this gun had fired nine spent cartridge casings found in the alley behind Jimmy's, as well as a bullet recovered from Tenzin Choegyal's clothing.

Police executed search warrants at the homes of Sai Vang, Jason Moua, Charles and Grogan Yang, and at a residence associated with appellant. Subsequently, appellant was indicted. Before trial, appellant brought a motion to prohibit Officer Richard Straka from presenting expert gang testimony on the ground that the testimony would violate his right of confrontation under state and federal law.² The district court deferred ruling on the motion until after the State had finished its lay witness testimony.

At trial, the State presented testimony regarding certain events that led up to the incident at Jimmy's. Specifically, the State showed that a few weeks before the incident in question Jason Moua, who is a MOD gang member, and Lue Vang were involved in a fight with a group of about 10 Hmong men outside a bowling alley. Both Moua and Vang were injured, and Vang was hospitalized for four days. To celebrate his recovery, Vang planned a barbeque with his cousins.

A few days later, Lue Vang and Sai Vang, who are cousins, went to a St. Paul motel to visit Sai Vang's cousin from California. Appellant, Jason Moua, Charles and Grogan Yang, Xee Lor, and others were also present that evening. Lue Vang told the group that Moua and he had been involved in a fight with a gang of Hmong men at a local bowling alley. Moua also gave Sai Vang a loaded 9mm handgun, which Vang put under the driver's seat of his dark blue Honda Civic.

The next evening, Lue Vang had the barbeque. Appellant, Jason Moua, Sai Vang, Charles and Grogan Yang, Helene Yang, and Xee Lor, among others, were at the barbeque. At one point, several members of the group decided to go to Jimmy's Billiards. They left in three cars. Moua drove a black Honda with Helene Yang and appellant as passengers, Sai Vang drove a dark blue Honda Civic with Charles and Grogan Yang as passengers, and Yatau Her drove a maroon Acura with Xee Lor and Fong Vang as passengers.

At the same time, a group of Tibetans was playing pool at Jimmy's. At one point, several of the Tibetans stepped out of the pool hall and into the adjoining alley. As two of the Tibetans walked to their car, a car carrying several Asian men pulled up. The men in the car began to scream at the Tibetans. A third Tibetan, Jampa Ritzekura, approached the car to intercede. One of the passengers made hand signs and screamed, "What do you claim?" The Tibetans answered "we don't claim nothing" and walked away.

A few Tibetans left the parking ramp in a car, but then returned to meet Bunsean Lieng and other Tibetans. After discussing what had happened, several of the Tibetans decided to return to the pool hall to talk to the Asian men. Once inside the pool hall, Jampa Ritzekura identified Grogan Yang as one of the people who had confronted him outside the pool hall. As the Tibetans approached Grogan Yang and his companions, including appellant, a fight erupted between the two groups. Witnesses stated that pool balls and cue sticks were flying. Subsequently, the Tibetans ran out of the pool hall into the alley and fled in different directions. Grogan Yang, appellant, and other MOD members chased after the Tibetans. Multiple gunshots were fired, both in the alley behind Jimmy's and in the parking lot. One of the Tibetans, Tenzin Yulme, testified that Bunsean Lieng was shot in the parking ramp by a man matching appellant's description, that the shooter got into a car, and that the car left the scene with its tires screeching.

Helene Yang, who is the wife of Jason Moua, testified pursuant to a plea agreement. She stated that she saw appellant shoot a Tibetan man in the parking ramp and saw the man fall to the ground. Subsequently, she and appellant got into Moua's car, and Moua drove the car out of the parking ramp going the wrong way at high speed. She testified that appellant, Jason Moua, Charles Yang, Grogan Yang, Xee Lor, and Yatau Her are members of MOD. She also stated that MOD means "Menace of Destruction" and baby blue is the color of MOD. But she refused to testify as to the meaning or connection of the number "301" to the MOD or to the specific hand signs associated with MOD.

Sai Vang, who also testified pursuant to a plea agreement, stated that he heard 7-10 shots coming from the alley as he ran to his car. He testified that he saw Grogan Yang shooting at the fleeing Tibetans. Sai Vang also testified that MOD means "Menace of Destruction." He testified that Jason Moua, Yatau Her, Charles Yang, and Grogan Yang are MOD members. He refused to testify about MOD's identifying colors or hand signs.

Other lay witnesses testified about the MOD's identifying colors and hand signs, that members of the MOD had been convicted of crimes committed for the benefit of a gang, and that the acronym MOD stands for "Menace of Destruction." But those witnesses were also evasive in some respects about the MOD. For example, one witness evaded questions asking him to identify fellow MOD members and explain paraphernalia, including hats and rap CDs associated with MOD.

When the State called Officer Richard Straka to testify as a gang expert, appellant objected on the grounds that his testimony would be hearsay and violated his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The district court...