Opinion
No. 60044-3-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-06622-3, Richard D. Eadie, J., entered May 2, 2007.
Affirmed by unpublished per curiam opinion.
A jury convicted Diem Nguyen of two counts of first degree assault and one count of malicious mischief in the first degree. During the trial, two detectives testified that although Nguyen confessed both pre and post arrest to shooting Nam Hong and Lihn Dihn, he was uncooperative at times, did not answer some questions, and did not provide a statement. He argues this testimony infringed his constitutional right to remain silent. Because the State's evidence was overwhelming, we hold any error harmless. We also disagree with Nguyen that the trial court abused its discretion in denying a mistrial following testimony that he claims implied he was a gang member. Finally, we hold that In re Personal Restraint of Muholland does not apply to the present case because the parties did not argue nor did the trial court rule on whether it had discretion to impose concurrent sentences for the assault convictions. We affirm.
FACTS
On July 22, 2006 at 10:41 a.m., based on a report of gunfire with a possible shooting victim, Seattle Police were summoned to a small house in South Seattle. Upon arrival, an officer found Dinh, who had been shot three times, unconscious in the driveway. Inside the house, the officer encountered a man cradling Hong, who had been shot six times. Dihn and Hong were transferred to Harborview Medical Center where both were treated for life-threatening wounds.
The night before the shooting Hong hosted a late night party at his house. One of the attendees included Diem Nguyen, who Hong described as his best friend. Hong went to bed before the party ended; Dihn joined him at 5 a.m. After the party ended at approximately 8 a.m., Phuong Mai and Hung Phung slept on sofas in the living room. Dihn testified that she was awoken by someone shouting in Vietnamese at Hong, who was lying next to her in bed. Then, she and Hong were both shot. At trial, Dihn and Hong unequivocally identified Nguyen as the shooter.
At the time of the shooting, Pamela Barger and Barbara Marino, two of Hong's neighbors, gardened in their yard. After hearing shots fired next door, the women retreated to their house, where they called 911. Standing at her window, Barger saw a white car with a non-factory paint job drive backwards down the street. She did not get the license plate or see the driver.
At 1:45 p.m. on July 22, 2006, King County Sheriff's Deputy James Schauers was preparing to end his shift at the Skyway Substation when he heard someone rattling the front doors. At the front doors, Nguyen stood next to a white car, and told Schauers that he was turning himself in for shooting his friend. Nguyen identified the location of the shooting. Nguyen repeatedly said "[m]y best friend, my best friend, I shot my best friend." After confirming with the Seattle Police Department that such a shooting had occurred, Schauers escorted Nguyen inside. There, Nguyen repeated that he shot his friend and stated that he was high on methamphetamine.
Seattle Police Officer Tim Liston was dispatched to the substation and arrived at 2 p.m. Prior to arriving he notified Sergeant Rusness, who he had worked with at the Seattle Police Gang Unit, about the shooting and the confession. Upon arriving at the substation, Liston read Nguyen his Miranda rights. According to Liston, Nguyen again stated he had shot his best friend.
Sergeant Rusness arrived at the substation to interview Nguyen and recognized him from working in the Asian American community. Nguyen told Rusness that he had shot Hong. But, Rusness was unable to get a statement from Nguyen, who also did not answer questions about where the gun was located.
Seattle Police transferred Nguyen to the Gang Unit, where he was placed in a secure holding cell. Both Detective Mooney and Rusness repeatedly entered the room seeking to obtain a statement from Nguyen. Nguyen stated he wanted to go home and did not want to go to jail. At some point, Nguyen escaped by tunneling into the wall of the cell and exiting through an adjacent bathroom. At trial, the parties stipulated that the damage to the holding cell from Nguyen's escape was more than $3,000.
The State charged Ngyuen with two counts of assault in the first degree for shooting Hong and Dihn. He was also charged with one count of malicious mischief in the first degree and one count of unlawful possession of a firearm.
A jury trial was held in December of 2006. After the testimony of several police officers, Nguyen moved for a mistrial, arguing the testimony implied he was a gang member. The trial court denied the motion. The jury found Nguyen guilty of two counts of assault in the first degree. It also found him guilty of one count of malicious mischief in the first degree. The jury determined Nguyen was armed with a firearm when he committed both assaults.
The trial court sentenced Nguyen to a total of 495 months of confinement.
ANALYSIS
I. Right to Silence
Nguyen claims his constitutional right to remain silent was infringed when two police officers testified about his post-arrest refusal to cooperate and failure to make a statement. Because Nguyen did not object below to either of these remarks, we review for manifest error affecting a manifest constitutional right. RAP 2.5(a). This exception is a narrow one, and we have found constitutional error to be manifest only when the error caused actual prejudice or practical and identifiable consequences. State v. Kirkman, 159 Wn.2d 918, 934-35, 155 P.3d 125 (2007).
"No person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V; see also Wash. Const. art. I, § 9. "The right against self-incrimination is liberally construed. It is intended to prohibit the inquisitorial method of investigation in which the accused is forced to disclose the contents of his mind, or speak his guilt." State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996) (internal citation omitted). It is constitutional error for a police witness to testify that a defendant refused to speak to him or her. Id. at 242-43. Similarly, it is constitutional error for the State to purposefully elicit testimony as to the defendant's silence.Id. at 236; State v. Curtis, 110 Wn. App. 6, 13, 37 P.3d 1274 (2002). It is also error for the State to inject the defendant's silence into its closing argument.Easter, 130 Wn.2d at 236. And, more generally, it is constitutional error for the State to rely on the defendant's silence as substantive evidence of guilt. State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996); see also State v. Fricks, 91 Wn.2d 391, 396, 588 P.2d 1328 (1979); Easter, 130 Wn.2d at 236. But it is not a constitutional error for a police witness to make an indirect reference to the defendant's silence absent further comment from either the witness or the State. Lewis, 130 Wn.2d at 706-07. Such a reference is not reversible error unless the defendant can show resulting prejudice. State v. Sweet, 138 Wn.2d 466, 480-81, 980 P.2d 1223 (1999);Lewis, 130 Wn.2d at 706-07.
Here, Detective Mooney testified that after Nguyen was arrested, he attempted to interview him, but "he was not cooperative. He did not want to provide any statement." Detective Rusness testified that Nguyen, after arrest, repeatedly said, "I killed my best friend." Rusness later told the jury:
At that point, I believe I asked him about a gun because I didn't want a gun floating around. He didn't answer me. He just looked at me, stood there and looked at me.
Here, the detectives testified that Nguyen repeatedly confessed to shooting his friend after his arrest and receiving Miranda warnings. Neither the State nor the witnesses commented on the silence. The State did not refer or rely on the silence as evidence of substantive guilt during trial or in closing argument.
Even if the testimony of Nguyen's non-cooperation amounted to an infringement on his right to silence, it was harmless given the overwhelming evidence presented at trial. Four police detectives testified that Nguyen repeatedly confessed to the shooting. Both shooting victims positively identified Nguyen as the shooter. Others testified that Nguyen had been present at the house in the hours prior to the shooting. A witness identified a car leaving the scene of the shooting as a white Cutlass, similar to the one driven by Nguyen. The defense presented no case or alternative evidence. We find that any error was harmless beyond a reasonable doubt.
II. Mistrial
Second, Nguyen contends that the trial court erred in denying his motion for a mistrial based on witnesses' references to the term "gang" because gang membership is inherently prejudicial.
A trial court should grant a mistrial when an irregularity in the trial proceedings is so prejudicial that it deprives the defendant of a fair trial. State v. Johnson, 60 Wn.2d 21, 27, 371 P.2d 611 (1962); State v. Post, 59 Wn. App. 389, 395, 797 P.2d 1160 (1990), aff'd, 118 Wn.2d 596, 826 P.2d 172, 837 P.2d 599 (1992). In determining whether a trial irregularity deprived a defendant of a fair trial, this court examines several factors: (1) the seriousness of the irregularity, (2) whether challenged evidence was cumulative of other evidence properly admitted, and (3) whether the irregularity could be cured by an instruction to disregard the remark, an instruction which a jury is presumed to follow.State v. Escalona, 49 Wn. App. 251, 254, 742 P.2d 190 (1987) (citing State v. Weber, 99 Wn.2d 158, 164-65, 659 P.2d 1102 (1983). Because the trial judge is in the best position to determine the prejudice of circumstances at trial, an appellate court reviews the decision to grant or deny a mistrial for abuse of discretion. Weber, 99 Wn.2d at 166.
In the present case, the trial court granted the stipulation presented by Nguyen and the State to exclude any evidence of the defendant's or other witnesses' possible gang membership. The State clarified the stipulation, explaining that:
I think the parties are crystal clear on what we are and are not doing regarding gangs. I think it's cumbersome to ask people to dance around the fact that they are members of a gang unit or the fact that the Gang Unit responded; but everyone is in agreement that while law enforcement may have an opinion regarding the membership of some of the other players in this case, there is no evidence that it's gang related. Therefore, if they are or are not gang members is irrelevant. We will not be going down that road. And the Gang Unit does in fact investigate crimes besides gang crimes.
But, Nguyen claims the testimony from both Detective Liston and Detective Rusness implied he was a member of a gang. During direct examination, Detective Liston explained how he became aware of the shooting:
Q. At what point did you become aware of the shooting back in your precinct?
A. It was late in the morning. I received a phone call from Sergeant Rusness.
Q. Briefly, who is Sergeant Rusness?
A. He is the sergeant of the Gang Unit. He is one of my partners that I worked with in the Gang Unit for a longtime. He and I talk about calls and things that are going on, that he is working on, all the time. . . .
Q. Without describing the details of the phone conversation, why did he call you?
A. He wanted to let me know what had happened because that's an area that I work. And he wanted me to be aware of it, and that it happened, and that some of the victims [sic]. When I was in the Gang Unit, I worked specifically Asian gangs. And he basically just let me know what happened and some of the guys involved so I would be aware of it.
Q. Not necessarily an indication that anybody involved is a gang member, he just wanted to let you know it is happening, right?
A. Correct.
Subsequently, Officer Liston testified that he called Rusness to say "it was probably a pretty good possibility from seeing the car and who they had in there." Liston also testified to the following exchange with Rusness:
Q. Once Sergeant Rusness arrived, describe for us the course of events that followed.
A. Once Sergeant Rusness arrived, I met him at the door, told him, you know, what we had, and that I had read him his rights. As he walked in, he said to me, "Oh, this is Que's (phonetic) brother." At that point because I had been looking at the defendant, I had recognized him, but I couldn't remember his name. I know I had talked to him in the past before. When he said "This is Que's brother," it just said to me this is Diem Nguyen's brother. Sergeant Rusness went up to Mr. Nguyen, and told him "Officer Liston has read you your rights," and just a little bit of small talk. "How you doing, Diem?" And then asked him what happened. And while I was standing there with Sergeant Rusness, Diem said again, "[j]ust take me to jail. I shot my best friend." And that was pretty much my involvement with it.
Nguyen also claims that the testimony of Detective Roger Rusness impermissibly implied he was a member of the gang. Rusness testified that he was a sergeant in the Gang Unit detail. He also explained:
Q. In the course of your duties, sir, do you come in contact with people who aren't necessarily involved with gangs?
A. Yes.
Q. Do you have a nickname on the streets?
A. Yes, I do.
Q. Can you tell us what that is?
A. Buddha.
Later, the prosecutor asked Detective Rusness if he had ever come in contact with Mr. Nguyen. Rusness answered "[y]es." The prosecutor then asked "[h]ow well did you know him? How much do you know about him?" Rusness responded, "[q]uite a bit. I have known him since probably about '95, maybe '94, '95." Nguyen's counsel did not object to the testimony.
Following Rusness' testimony, Nguyen moved for a mistrial arguing that the testimony combined with other witnesses' statements implied that he was a gang member. The trial court judge denied the motion, recognizing that the prosecutor was "trying to put his questions and answers the best he could." He then invited Nguyen's counsel to propose a curative instruction. The record before this court contains no proposed or given instruction.
Nguyen claims that Escalona supports his argument that references to gangs were grounds for a mistrial. InEscalona, the defendant was convicted of second degree assault with a deadly weapon. The trial court granted the defendant's motion to exclude any reference to the fact that the defendant previously had been convicted of the same crime.Escalona, 49 Wn. App. at 252. During cross examination, the victim stated that on the day of the stabbing, he was nervous when he saw the defendant because the defendant already had a record and had stabbed someone. Defense counsel moved for a mistrial, but the trial court denied the motion and instructed the jury to disregard the remark. Id. at 253. The Court of Appeals reversed the conviction, reasoning that (1) the irregularity was extremely serious, (2) it was not cumulative, since the trial court had already ruled that evidence of the prior crime could not be admitted, and (3) the trial court's instruction to the jury could not have cured the prejudice caused by the remark. Id. at 254, 257. Regarding the prejudice caused by the remark, the court stated:
[D]espite the court's admonition, it would be extremely difficult, if not impossible, in this close case for the jury to ignore this seemingly relevant fact. Furthermore, the jury undoubtedly would use it for its most improper purpose, that is, to conclude that Escalona acted on this occasion in conformity with the assaultive character he demonstrated in the past.
Id. at 256. Thus, the appeals court concluded that the trial court abused its discretion in denying the defense motion for a mistrial. Id. at 256; see also State v. Wilburn, 51 Wn. App. 827, 832, 755 P.2d 842 (1988) (rape conviction reversed when, in violation of motion in limine, witness testified that defendant told her, "Yes, I did it again, and I need treatment."); State v. Miles, 73 Wn.2d 67, 71, 436 P.2d 198 (1968) (robbery conviction reversed when police officer testified that defendant was going to duplicate the robbery).
Escalona, Wilburn, and Miles are distinguishable from the present case. In those cases, the improper statements indicated that the defendants had committed crimes similar or identical to the crimes for which they were on trial. Thus, the statements were extremely prejudicial because it was likely that jurors would conclude that the defendant had a propensity for committing that type of crime.
Here, testimony from police officers regarding their work in the gang unit did not implicate the crime that Nguyen had been charged with committing. He was charged with shooting a person identified as his friend, not a rival gang member. Additionally, the testimony was ambiguous regarding whether Nguyen was a gang member. Detective Rusness testified that while he worked in the gang unit, he came in contact with the more extensive Asian American community and that members of the community used his nickname, "Buddah". Thus, although the remarks may have had the potential for prejudice, the trial court's order denying the motion for a mistrial was not an abuse of discretion.
III. Sentencing
Finally, Nguyen contends the trial court erred in concluding it did not have discretion to impose concurrent sentences for the assault convictions under RCW 9.94A.535 and 9.94A.589(1)(b). He claims that the Supreme Court's decision in In re Personal Restraint of Mulholland mandates reversal. 161 Wn.2d 322, 166 P.3d 677 (2007).
RCW 9.94A.589 provides that when a person is sentenced for two or more serious violent offenses arising from separate and distinct criminal conduct, the sentences "shall be served consecutively to each other." RCW 9.94A.589(1)(b). But, RCW 9.94A.535 grants a trial court the discretion to order sentences for multiple serious offenses to run concurrently as an exceptional sentence below the standard range if the court finds there are mitigating factors justifying such a sentence. RCW 9.94A.535. In Mulholland, the Supreme Court held that despite the seemingly mandatory language of RCW 9.94.A.589(1)(b), the sentencing court has discretion to order multiple sentences for serious violent offenses to run concurrently, rather than consecutively, as an exceptional sentence under RCW 9.94A.535.
RCW 9.94A.589 (1)(a) and (1)(b) provide:
(1)(a) Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. This definition applies in cases involving vehicular assault or vehicular homicide even if the victims occupied the same vehicle. (b) Whenever a person is convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, the standard sentence range for the offense with the highest seriousness level under RCW 9.94A.515 shall be determined using the offender's prior convictions and other current convictions that are not serious violent offenses in the offender score and the standard sentence range for other serious violent offenses shall be determined by using an offender score of zero. The standard sentence range for any offenses that are not serious violent offenses shall be determined according to (a) of this subsection. All sentences imposed under (b) of this subsection shall be served consecutively to each other and concurrently with sentences imposed under (a) of this subsection.
Here, Nguyen did not seek concurrent sentences for his two convictions for first degree assault and the trial court did not affirmatively rule regarding whether it had the authority to impose such a sentence. Mulholland does not apply.
The court did note that a downward departure from the standard sentencing range was not warranted on the facts presented here:
Whether the sentence is clearly excessive, in this Court's view is an issue that cannot be addressed without a finding that the consequences of the second assault were inconsequential and trivial, and that finding cannot be made or would not be made, and this Court will not make that finding on the record that we have here.
We affirm.