A Redwood City man’s rights were not violated when a prosecutor told jurors in his vehicular manslaughter trial that he proved himself guilty by not asking about the welfare of the other car’s occupants, the California Supreme Court ruled Thursday in a split decision that restores his conviction in the 2007 crash.
In a 4-3 ruling, the court overturned the First District Court of Appeal’s 2012 ruling that reversed Richard Tom’s conviction in the death of 8-year-old Sydney Ng. The lower court found that prosecutor Shin-Mee Chang violated Tom’s right against self-incrimination by arguing his silence after the collision was “substantive evidence of guilt.” But the state Supreme Court disagreed, arguing that Tom never specifically invoked his Fifth Amendment right to remain silent.
Tom was sentenced to seven years for the February 2007 crash that killed Ng and seriously injured her sister and mother. He was about halfway through when his conviction was overturned and has been out on $300,000 bail pending the Supreme Court decision.
Tom’s appellate attorney Marc Zilversmit called the ruling “terribly dangerous” because it doesn’t clarify when a person has the right not to speak with police.
“It’s not going to help prosecutors know what to do or the police,” Zilversmit said. “It’s really a nightmare for ordinary citizens.”
Zilversmit said he is weighing whether to ask the state Supreme Court to reconsider or appealing to the U.S. Supreme Court. In the meantime, a San Mateo County Superior Court judge will re-examine whether Tom invoked his Fifth Amendment right in any fashion. If the judge agrees, the judgment is affirmed and Tom will face a return to prison.
Tom, 52, was halfway through serving a seven-year sentence for the crash that killed Ng and severely injured her sister when an appellate court in 2012 overturned conviction. Tom was released on $300,000 bail after its ruling.
Tom was “obviously disappointed” in yesterday’s decision, Zilversmit said.
Prosecutors said Tom, who had been drinking with a friend at home before leaving for his son’s house, broadsided the Ng family’s Nissan Maxima with his Mercedes Benz as it made its way across Woodside Road.
Hours after the crash, Tom’s alcohol level measured .04 percent. Using scientific rates of alcohol processing, the prosecution contended Tom was actually at 0.98 at the time of the crash. However, jurors acquitted Tom of alcohol-related charges.
During closing arguments, Chang told the jury Tom never inquired about the other car’s occupants.
“I’m not saying that he has to say sorry as an expression of his guilt or as some kind of confession but simply as an expression of his regret,” Chang told jurors.
Justice Goodwin Liu, in a dissenting opinion, said that seems “a bit much” to expect from a suspect taken into custody at an accident scene described by an officer as fairly chaotic. Liu also questioned what a suspect must exactly say to invoke his or her right to remain silent.
Justice Kathryn Werdegar, also dissented but on a more technical point. She wrote in her opinion that Tom’s defense never objected during trial to the use of his silence which left the California Supreme Court unable to review the issue.
San Mateo County District Attorney Steve Wagstaffe said he was pleased with the court’s reversal and the state Attorney General’s Office’s willingness to appeal the lower court’s decision.
“It is vindication for prosecutor Chang,” he said.
(650) 344-5200 ext. 102