GILROY
– In light of a U.S. Supreme Court decision, a state appeals
court has put on hold the murder trial of Kyung Kim, a Gilroy woman
accused of paying a hit man to kill her husband.
The San Jose-based California Court of Appeal, Sixth Appellate
District, ordered a stay on the trial late Monday afternoon at the
request of Kim’s defense attorney, David Epps.
GILROY – In light of a U.S. Supreme Court decision, a state appeals court has put on hold the murder trial of Kyung Kim, a Gilroy woman accused of paying a hit man to kill her husband.
The San Jose-based California Court of Appeal, Sixth Appellate District, ordered a stay on the trial late Monday afternoon at the request of Kim’s defense attorney, David Epps.
Jury selection has not yet begun, even though the trial began eight weeks ago with discussion of evidence to allow and suppress.
At issue is Judge Robert Ambrose’s decision to allow witness Adrian Vizcaino – whom Epps calls a ”jailhouse snitch” – to testify. Vizcaino has said convicted hit man Gustavo Covian bragged to him about killing Kim’s husband, Gilroy restaurateur Young Kim. Kim’s body was never found.
“The problem is, I don’t have an opportunity to question Gustavo,” Epps said.
Covian will not testify. Called to court on March 2, he asserted his Fifth Amendment right to remain silent. The 41-year-old former Hollister resident – now an inmate at Salinas Valley State Prison in Soledad – has an appeal pending to his February 2003 murder conviction, and anything he says in court now could be used against him later.
Epps can still cross-examine Vizcaino, but his evidence is hearsay unless Covian can confirm or deny it. Therefore, Epps claimed his client’s right to confront a witness against her – a right guaranteed by the Sixth Amendment of the Constitution – has been violated.
On March 8, the U.S. Supreme Court issued a ruling on the case of Crawford v. the State of Washington that gave reinforcement to a defendant’s right to confront witnesses – over a judge’s ruling of whether statements are reliable.
Now, Epps is trying to use this ruling to prevent Vizcaino from testifying.
The Sixth Appellate District judges have agreed to review Judge Ambrose’s decision to let Vizcaino testify, but Epps said it’s not guaranteed they will make a ruling.
“It’s not a major victory until (the appeals court) rules in my favor,” Epps said.
“It’s very unusual,” Deputy District Attorney Peter Waite said of the stay. “We’ll see what happens.”
Whatever the appeals court’s decision, Epps predicted the trial would resume with Ambrose as the judge. Waite expressed some doubt about this.
Judge Ambrose declined to comment for this story.
Vizcaino’s testimony
When Covian became unavailable as a witness, Ambrose allowed Waite to call Vizcaino as a witness, but only to offer evidence that Young Kim is actually dead. His body has never been found.
Waite said such evidence helps his case “because the defense still would not admit that Mr. Kim is dead.”
In mid-January, Epps said, “There’s no physical evidence of (Young Kim) being dead other than the fact that he’s gone. … One of my theories is that he’s probably in Mexico with his girlfriend.”
According to Waite, Ambrose allowed Vizcaino to say Covian boasted about killing Young Kim, but he was prohibited from repeating a portion of his statement in
which Covian said Kyung Kim asked him to kill her husband.
“Anything (Vizcaino says) implicating Mrs. Kim would not be brought into this trial for Mrs. Kim,” Waite said.
Vizcaino was in San Benito County Jail when he testified against Covian, facing a long possible prison sentence, but since then the San Benito district attorney offered him a plea bargain. He is now out on probation.
“It wasn’t a bargain that I struck,” Waite said. “I watched it, but I wasn’t part of it.”
Three prior defendants
Despite the lack of a body, Waite was able to convince a jury last year that Gustavo Covian murdered Young Kim. Judge Ambrose did not, however, grant Waite permission to use the conviction as evidence in the trial of Kyung Kim.
Two other co-defendants have accepted plea bargains in recent weeks. Waite allowed Covian’s ex-wife, Maria Zapian, and his brother, Ignacio, to plead guilty or no contest to voluntary manslaughter instead of murder.
Zapian was accused of brokering the deal between Kyung Kim and her then-husband. Ignacio allegedly helped his brother commit the murder.
The background
According to a 400-page court document, Young Kim was last seen entering his former home on Rancho Hills Drive in November 1998. Kyung Kim, now 48, waited 16 days to report her husband missing to Gilroy police.
A waitress at the Kims’ Gavilan Restaurant (now under new ownership as Sunrise Café) has testified that a week before Young Kim disappeared, she overheard Kyung tell Zapian (then Covian) she wished her husband was dead. Zapian answered that she knew people who could do the job, but it would cost between $10,000 and $15,000.
Kyung Kim told police she never intended to hire a hit man to kill her husband, but she nevertheless said she met Gustavo Covian several times after Young vanished. She told police she paid him tens of thousands of dollars out of fear.
“I shot your husband in the head, and I buried his body. Now you owe me $20,000. And if you don’t give it to me, I’ll kill your kids,” Gustavo allegedly said to Kyung Kim in their first meeting, according to court records.
The Kims’ 24-year marriage, arranged by their families in Korea, had turned bitter. Police have evidence that both had extramarital affairs, and divorce papers were found in Young’s vehicle after he vanished.
