A state appeals court has lifted its stay of the murder trial of
Kyung Kim, a Gilroy woman accused of paying convicted Hollister hit
man Gustavo Covian to kill her husband.
GILROY –– A state appeals court has lifted its stay of the murder trial of Kyung Kim, a Gilroy woman accused of paying convicted Hollister hit man Gustavo Covian to kill her husband.
The trial will reconvene June 1 for jury selection.
The San Jose-based California Court of Appeal, Sixth Appellate District, put the trial on hold April 5 at the request of David Epps, Kim’s attorney. The appeals court lifted the stay April 15, in a one-line written announcement that gave no explanation, according to Epps.
Epps said he suspected the appeals court judges decided they would rather review the county Superior Court’s actions after Kim’s trail than before. Pre-trial intervention by appeals courts is extremely rare.
“It was a long shot to begin with to get them to review it,” Epps said. “We’ll just have to wait and see how the trial goes.”
At issue is county Judge Robert Ambrose’s decision to allow witness Adrian Vizcaino to testify. Vizcaino, whom Epps has called a “jailhouse snitch,” has said Covian, who was convicted of murder a year ago, bragged to him about killing Kim’s husband, Gilroy restaurateur Young Kim.
Epps’ problem was that Covian himself has refused to testify, asserting his Fifth Amendment right to remain silent. Epps can still cross-examine Vizcaino, but whatever Vizcaino says could be considered hearsay unless Covian confirms or denies it.
According to Epps, this denies Kyung Kim the right to confront a witness against her, a right guaranteed by the Sixth Amendment of the Constitution.
Epps based his appeal on a March 8 decision by the U.S. Supreme Court, which reinforced a defendant’s right to confront witnesses. The Crawford v. the State of Washington decision overturned judges’ prior rulings on whether statements were reliable and asserted that the only reliable way to determine a person’s reliability is to cross-examine them.
Vizcaino is important to prosecutor Peter Waite because he offers evidence that Young Kim is dead. Young Kim went missing in November 1998, and his body has never been found. Despite this, Waite successfully convinced a jury last year that Covian was guilty of murder. Judge Ambrose, however, has not let Waite use the fact of Covian’s conviction as evidence in Kim’s trial.
Ambrose has limited what Vizcaino is allowed to testify about. He cannot repeat a portion of his statement in which Covian told him that Kyung Kim asked him to kill her husband.
Peter Crowley can be reached at 408-842-6400 or at
pe****@gi************.com.
