On February 1, 1995, Kumyet Cheung and three other men, Asian Americans named Kenny Lei, Kevin Woon and a man known only as “Ho,” went to a Denny’s restaurant in Emeryville, California. As they were standing at the cashier, paying their bill, three other customers—Harell Haskins, his girlfriend, Rochelle Roberts and Oscar Hogroe—all of whom were African American—entered.
One of Cheung’s companions bumped into Haskins and Haskins demanded an apology. Words were exchanged and Roberts intervened. Cheung similarly played peacemaker, apologizing on behalf of his friend.
Cheung then retrieved his change from the cashier and began to leave. Haskins later said that Cheung uttered a racial slur at him, though Roberts and Hogroe did not hear it.
Haskins alleged that he followed Cheung outside where Chung swung at him, grabbed a gun from his waist and fired, severely wounding Haskins in the groin. Two more shots were fired at Hogroe, but went astray. Cheung and his companions then fled.
During the police investigation of the case, Cheung gave a false name for the gunman. He lever identified the gunman as Ho.
On May 17, 1995, Cheung was charged with two counts of attempted murder of Haskins and Hogroe. His jury trial began in Alameda County Superior Court on July 10, 1995. Haskins testified that Cheung shot him and fired twice more at Hogroe, but missed.
Hogroe testified that Cheung was the gunman and that he grabbed one of Cheung’s friends as a shield, although he was impeached by a police officer who said that during a live lineup, Hogroe identified someone other than Cheung as the gunman.
Roberts was unable to identify Cheung as the gunman, saying she thought he was the peacemaker.
The defense challenged Haskins' identification of Cheung and questioned how much alcohol he had consumed that evening. Haskins testified that he, Roberts and Hogroe had been at a San Leandro club from 9 p.m. to about 1:30 a.m. celebrating the birthday of Haskins’ god-brother. He said that over the course of the evening, he shared one or two strawberry daiquiris with Roberts. Roberts said he shared just one drink with her and Hogroe testified similarly.
The only testimony that contradicted the minimal alcohol consumption came from the manager of the restaurant, who said he attended to Haskins after the shooting and smelled alcohol on his breath. The manager testified that he thought Haskins was drunk. The prosecution suggested that the manager had mistook shock for intoxication.
Cheung’s friends—Woon and Lei—testified that Hogroe grabbed Cheung as a shield and that Ho, not Cheung, was the gunman.
Cheung’s lawyer attempted to introduce a tape recording—in Cantonese—of a conversation between Cheung’s wife and the man known only as Ho, during which Ho admitted he was the gunman.
Because the defense attorney failed to present either a tape or a transcript of the conversation, made no formal proffer of what was said and did not lay a foundation for the admissibility of Ho’s statements, the trial judge barred the evidence.
Cheung was convicted on July 27, 1995 of lesser included offenses of attempted voluntary manslaughter and assault with a firearm. The trial court found that Cheung had an October 1986 conviction for manslaughter and imposed a sentence of 29 years and eight months in prison.
A motion for new trial was filed, arguing that Cheung’s lawyer had been ineffective for failing to introduce the contents of the taped statement by Ho. By that time, a transcript of a translation of the tape was presented which showed that Ho admitted that he shot Haskins and that one of Haskins’s companions used Cheung as a shield.
The trial court denied the motion.
On July 15, 1997, the California Court of Appeal affirmed the conviction and sentence and the California Supreme Court denied review on October 29, 1997.
In 1998, Cheung filed a petition for a federal writ of habeas corpus, alleging that the prosecution had failed to turn over medical records of Haskins which showed that at the hospital where he was taken for treatment of the gunshot wound, a blood test showed that Haskins had a blood-alcohol level of at least 0.186—more than twice the legal limit for driving a vehicle. The petition also alleged that Cheung had received ineffective assistance of counsel because his lawyer did not investigate the level of Haskins’ intoxication and failed to introduce the tape.
On November 28, 1998, U.S. District Judge Charles Breyer granted the writ and ordered a new trial.
Breyer ruled that the medical records were exculpatory and could have been used to cross-examine Haskins. Breyer also found that Cheung’s defense lawyer had been ineffective for failing to investigate Haskins’ medical records and for failing to take steps necessary to introduce the tape during the trial.
By the time Cheung went to trial a second time in May, 1999, the judge had ruled that the tape-recorded statement of Ho—who had been identified as Jing He Cao—was admissible. The judge also allowed the prosecution to introduce a hearsay statement by Cao in which he recanted his confession.
The prosecution, in its opening statement to the jury, mentioned Cheung’s prior trial —specifically, that he had been convicted and that the conviction had been reversed. In an attempt to defuse the expected cross-examination of Haskins about his intoxication, the prosecutor suggested that after the reversal, Haskins decided to be more candid about his alcohol consumption because he realized, after the reversal, that the subject was more important than he had thought.
Cheung’s lawyer objected to the reference to the prior trial, conviction and reversal, but was overruled, though the jury was cautioned that opening statements were not evidence.
Haskins again identified Cheung as the shooter and insisted he was correct despite the evidence of his intoxication and despite medical records of the night of the shooting in which he told hospital officials that he had smoked marijuana that night.
During Haskins’ testimony, the prosecution again referred to the first trial and conviction. The court sustained a defense objection. Twice more, the prosecution mentioned the prior trial and both times defense objections were sustained.
However, Haskins was allowed to testify that he learned that “something happened to the result of the first trial” and that he learned from the prosecution that it had something to do with his drinking.
The defense presented a witness who was standing five feet away at the time of the shooting. He said the gunman had a bowl haircut—a style that Cheung had not been known to have.
During cross-examination of Cheung’s wife, the prosecution referred to the prior trial and the first jury’s “decision.”
Before the evidence was closed, the judge granted a prosecution motion to take judicial notice of the date of the first trial’s verdict and that it was a conviction.
During closing argument, the prosecution referred to the guilty verdict when attempting to undermine the evidence from the tape-recorded conversation with Cao.
The jury convicted Cheung of both assaults and he was sentenced on May 21, 1999 to 27 years and four months in prison.
On June 18, 2001, the California Court of Appeal reversed the conviction, ruling that the trial judge had erred in allowing the prosecution to present evidence of the prior trial and conviction in contravention of state law.
On February 21, 2002, the charges were dismissed and Cheung pleaded guilty to being an “accessory after the fact” because when he was first questioned by police after the shooting, he gave a false name. He was credited with time served and was released that day.
– Maurice Possley