GILROY
– Police never found Young Kim’s body.
So the jury hearing the case against three alleged accomplices
charged in his murder will not be told that hit man Gustavo Covian
has been convicted of killing Kim, the former owner of the Gavilan
Restaurant (now the Sunrise Caf
é).
GILROY – Police never found Young Kim’s body.
So the jury hearing the case against three alleged accomplices charged in his murder will not be told that hit man Gustavo Covian has been convicted of killing Kim, the former owner of the Gavilan Restaurant (now the Sunrise Café).
Judge Bud Ambrose decided last week to suppress that fact, so District Attorney Peter Waite has a more difficult task.
Defense lawyers are suggesting Kim may not be dead.
Kim’s wife, Kyung, 48, stands accused of hiring Covian to kill her husband and end a 24-year arranged marriage that had turned bitter. Covian’s ex-wife Maria Zapian, 29, brokered the deal, the prosecution claims, and Ignacio Covian, 32, allegedly helped his brother Gustavo, 41, carry out the killing.
Their trial began three weeks ago, but progress has been slow. Lawyers and Ambrose are still embroiled in questions of evidence: what to allow and what to suppress.
All three defendants have been jailed since July 2001, each on a charge of first-degree murder. Each faces a maximum sentence of life in prison without parole if convicted; Waite is not seeking the death penalty.
Will Gustavo testify?
Gustavo will appear in court Tuesday to say whether he will testify. Waite suspects he will not, because he still has an appeal pending.
“This is almost a complete waste of time,” Waite said. “It’s almost a given that he will not testify.”
Gustavo’s lawyer, Thomas Worthington, would not say Friday whether he will recommend that Gustavo testify, but he confirmed that his client has been moved from the prison in Soledad, 25 miles south of Salinas, to the Santa Clara County Jail.
If Gustavo does not testify, Waite can use witness testimony that Gustavo bragged about the killing – witnesses like Adrian Vizcaino, who told a jury a year ago that Gustavo – his brother-in-law – bragged about killing Young Kim. Some jurors who found Gustavo guilty told The Dispatch Vizcaino’s testimony was the key for them.
Is Young Kim dead?
Waite acknowledged that Ambrose’s decision to suppress Gustavo’s conviction is a setback. Chiefly, it means he once again has to prove that Young Kim is actually dead. Lawyers for all three defendants suggest he may have fled to Mexico.
“(Kim) is a guy who cheated on his wife and had girlfriends in Mexico and had financial (problems),” Ignacio Covian’s attorney Molly O’Neal said on Feb. 5. “He had incentives to kind of drop his old life.”
Gustavo’s lawyer said the same thing a year ago, but Waite presented enough evidence of foul play to overcome it.
Police also found Young Kim’s wallet, which contained his driver’s license and credit cards.
Police found evidence suggesting that the Kims’ marriage – arranged by their families in Korea – was falling apart and that both had affairs. Gilroy police found unfiled divorce papers in the glove compartment of Young’s car.
The state of the Kims’ marriage could have been either a motive for Kyung to want her husband dead or a motive for Young to flee.
A battered wife?
Judge Ambrose has not yet decided whether to let Zapian’s lawyer, Jim Leininger, call an expert witness on battered women’s syndrome. Leininger argues that if Zapian ever cooperated with her then-husband in any way or kept silent for his benefit, it was because she was in constant fear for her life and the lives of her children.
Gustavo beat Maria and/or their three children multiple times, Leininger said on Feb. 5, but police in Hollister – where the couple lived – never listened to her.
“She reported at least seven events with the Hollister police,” Leininger claims. “The Hollister Police Department didn’t do a damn thing to help this woman.”
But Leininger says he has reason to believe Gustavo went further; he plotted to kill her shortly before their arrest, the lawyer said.
“He had taken her wedding ring and given it to his girlfriend” and then arranged a vacation for Maria and himself in Mexico, Leininger said. “Our theory is that Maria never would have returned.
“These are the kind of circumstances Maria lived under,” Leininger said. “This was not a voluntary living situation.”
Leininger insists Zapian never had any role in arranging a paid hit on Young Kim. Waite is expected to call a witness who has previously testified she overheard an incriminating conversation between Kyung Kim and Zapian at the Gavilan Restaurant, which the Kims owned and where the witness and Zapian worked. Kyung told Zapian that she was so frustrated with her husband she wished he was dead, the witness said; Zapian allegedly responded that such a thing could be arranged for between $10,000 and $15,000.
Leininger and Kyung Kim’s attorney, David Epps, have said that even if the witness is to be believed, there is no proof either of their clients ever acted on such an arrangement.
Defendants’ statements allowed
Waite said Judge Ambrose decided to allow him to present a statement Kyung Kim made to Gilroy police, saying she met with Gustavo several times at the Gilroy Premium Outlets. Kim said she had never asked Gustavo to kill her husband, but he extorted money out of her by saying, “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.”
Epps asked that this statement be suppressed.
Waite said Ambrose also admitted, over Leininger’s objection, a videotaped conversation in Spanish between Gustavo and Maria in the back of a Gilroy police car.
The video is “much more damning in Gustavo’s case,” Waite said – The alleged hit man is seen and heard praying, “Please don’t let them find the gun.” – but the prosecutor added that Maria doesn’t come across as “Miss Innocent.”
“She sounds like she knows exactly what he’s talking about, … a murder,” Waite said.
Other developments
Ambrose will allow Epps to call an expert witness on Korean culture, according to Waite, but the judge will restrict the expert’s statements to generalities related to Koreans – not specific matters related to this case.
Epps has also asked that his client’s trial be severed from that of Zapian and Ignacio Covian, but Waite said it does not look like Ambrose will agree.
None of the defense attorneys have returned The Dispatch’s phone calls.
