Somchith Xayapheth v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
SOMCHITH XAYAPHETH
MEMORANDUM OPINION* BY
v. 	Record No. 0524-99-3 	JUDGE RUDOLPH BUMGARDNER, III
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
Danita S. Alt for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Amy L.
Marshall, Assistant Attorney General, on
brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
A jury convicted Somchith Xayapheth of first degree murder
and use of a firearm in the commission of murder. 	The defendant
argues the trial court erred in denying his motion to suppress
his confession. 	He contends (1) that the police did not
properly advise him of his Miranda rights, and (2) that he
invoked his right to counsel during the interrogation.
It is undisputed that the police advised the defendant of
his Miranda rights in English. 	They also advised him in Laotian
of all rights except that anything he said would be used against
him. 	The defendant contends the advice was insufficient because

Laotian is his native tongue, and though he had lived in the
United States for seventeen years, he did not understand English
well enough to knowingly and intelligently waive his rights.
The trial court conducted thorough and careful reviews of the
audio recording of the interview and of the transcripts made
from the recording. 	The interview was a complex exchange
between the defendant, the police investigator, and the
translator during which the conversation by and with the
defendant shifted between Laotian and English.
The trial court found that the defendant understood English
sufficiently to comprehend the Miranda rights as explained and
that the defendant knowingly and intelligently waived those
rights. 	The trial court also found that the defendant waived
his right to have counsel present. 	The trial court had the
opportunity to speak with the defendant and observe him talking
with others. 	We cannot conclude that the trial court erred in
finding that the defendant sufficiently understood the English
language to comprehend his rights according to the Miranda
warnings and that he knowingly and voluntarily waived those
rights. 	If any error was committed, it was harmless beyond a
reasonable doubt. 	The evidence, absent the confession, was
overwhelming and established the defendant's guilt conclusively.
Accordingly, we affirm the convictions.
The defendant called the 911 dispatcher from his home and
stated in English, "I kill my wife." 	After the dispatcher
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obtained an interpreter, the defendant advised that his wife had
met another man and he was tired of talking to her about it.
She wanted to leave him, but he refused to let her go. 	The
defendant said that he shot his wife, she was dead, and the gun
was still in the house. 	The police arrived at the defendant's
home during the call. 	They found him standing at the front door
with blood on his shirt. 	His wife was lying on the bedroom
floor, and a gun was on the bed.
The wife had three separate gunshot wounds. 	One, fired at
close range, went through her right cheek and perforated her
larynx. 	A bullet was extracted from her left shoulder. 	She
also suffered a long grazing wound across her shoulder blades.
The medical examiner found fresh defensive injuries on her arms,
the backs of her hands and forearms, and on her back and
abdomen.
The gun found at the scene functioned normally. 	The
defendant's palm print was on the gun, and the bullet extracted
from the wife's shoulder was fired from that gun. 	A gunshot
residue test revealed that the defendant had recently fired a
gun.
Two days before the murder, the defendant told a shop owner
known to the family that his wife had a boyfriend and he "wanted
to kill his wife and he kill himself." 	Two to three weeks
earlier, the wife told her sister the defendant threatened her,
pushed her into a towel rack, and put a knife to her neck. 	When
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the sister confronted the defendant, he admitted the incident
but said he would not threaten her anymore with a knife or gun.
The couple's son testified that his parents fought every week
for the two months preceding the shooting, that the defendant
hit his mother and threatened her with knives, and that he
injured her about once a month. 	A month before the shooting,
the defendant's supervisor at work heard him say his wife was
"no good. 	I kill her. 	I kill her." 	The supervisor observed
black and blue marks across the wife's back, which the wife told
her came from the defendant's beating her.
During his interview at the police station, the defendant
admitted killing his wife by shooting her twice with a black,
small caliber gun. 	He shot her because she had a boyfriend and
was going to leave him. 	During the shooting she had scratched
him, but she did not have a weapon.
At trial, the defendant testified the shooting was an
accident. 	He believed his wife began an affair in 1995, but he
refused to let her leave him. 	After arguing and crying for an
hour, he took out his gun intending to shoot himself. 	While he
had his finger on the trigger, the wife fought him for the gun,
and it fired twice, one shot after the other. 	Later, the
defendant testified that after the first shot, they struggled,
and then she fell to the floor. 	He told his kids "your mother
is dead" and cried in front of them. 	He also told the kids,
"she was messing around with someone else. 	I killed her."
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The harmless error doctrine applies on review of a
conviction challenged on Fifth and Sixth Amendment grounds. 	See
Arizona v. Fulminante, 499 U.S. 279, 306-10 (1991) (applying
harmless error standard to erroneously admitted confession);
Milton v. Wainwright, 407 U.S. 371, 372-73 (1972). 	"[B]efore a
federal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a
reasonable doubt." 	Chapman v. California, 386 U.S. 18, 24
(1967). 	The error is reversible, however, "if there is a
reasonable possibility that the evidence complained of might
have contributed to the conviction." 	Fahy v. Connecticut, 375
U.S. 85, 86-87 (1963). 	See Lilly v. Commonwealth, 258 Va. 548,
552-53, 523 S.E.2d 208, 210 (1999) (reversible error where
evidence did not clearly establish, absent erroneously admitted
evidence, that the defendant was the triggerman).
Dearing v. Commonwealth, ___ Va. ___, ___ S.E.2d ___
(2000), stated factors a court must consider when determining
constitutional harmless error. 	They are: 	the importance of the
tainted evidence in the prosecution's case; whether the evidence
was cumulative; the presence or absence of evidence
corroborating or contradicting the tainted evidence on material
points; and the overall strength of the prosecution's case. 	See
id. at ___ , ___ S.E.2d at ___.
The Commonwealth had to prove beyond a reasonable doubt
that the defendant maliciously killed his wife and that the
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killing was "willful, deliberate, and premeditated." 	Code
§ 18.2-32. 	The defendant was at the murder scene with blood on
his shirt when the police arrived. 	There is no indication of
remorse or contrition. 	The wife had three gunshot wounds and
fresh defensive injuries on her back, abdomen, and arms. 	The
bullet extracted from her had been fired from the gun found on
the bed. 	The defendant's palm print was on that gun, and the
residue test showed that he had recently fired a weapon. 	The
defendant told the 911 dispatcher that he had shot and killed
his wife because she was seeing another man and was going to
leave the defendant.
Two days before the murder, the defendant told an
acquaintance that he wanted to kill his wife. 	Two to three
weeks before the murder, he admitted to threatening his wife
with a knife. 	Approximately a month before the murder, the
defendant told his supervisor that he would kill his wife. 	The
defendant's son testified that the parties argued weekly, the
defendant hit his mother, and he injured her about once a month.
The son also saw the defendant threaten his mother with a knife.
The defendant's confession provides no further admission
than what he told the 911 dispatcher when first reporting the
shooting. 	The confession was only cumulative of other evidence.
It supplied no additional detail and was less specific than the
other evidence. 	What evidence the confession corroborated was
more fully corroborated by other evidence, much of which was
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uncontradicted scientific evidence. 	The confession did not
contradict the defendant's testimony at trial that the shooting
was an accident.
We conclude that any error in admitting the confession was
harmless beyond a reasonable doubt. 	The Commonwealth's other
evidence overwhelmingly proved the defendant committed a
willful, deliberate, and premeditated act, and the wife's fresh
defensive injuries belie his theory that her death was an
accident. 	Accordingly, we affirm the convictions.
Affirmed.
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