FORT SMITH - A Sebastian County circuit judge declared a mistrial Wednesday in a murder case after learning jurors received information not presented to them in court.
According to attorneys in the first-degree murder trial of Kevyphonh Sounyaphong, jurors, during deliberation, decided to disregard the testimony of a Fort Smith jeweler after one juror who understood Vietnamese told the other jurors that a Vietnamese interpreter translating for the jeweler made incorrect translations.
The juror then gave the other jurors what he believed to be the correct translations, after which the jurors decided to disregard the jeweler’s testimony. The jeweler, Ming Ha, was Sounyaphong’s only witness.
Sounyaphong’s attorney, William James Jr. of Little Rock, said after court that he had no choice but to ask Circuit Judge J. Michael Fitzhugh for a mistrial after learning of the jury’s action.
“His family is very disappointed,” James said. “They were hoping to take him home today.”
Sounyaphong, 60, has been held in the Sebastian County jail in lieu of $500,000 bond since his arrest in August in the strangulation death of Sakounsouk Vilayhong, 50, in her north Fort Smith home Jan. 24, 2013.
Sebastian County deputy prosecutor Aaron Jennen said no decision was made Wednesday on whether to retry Sounyaphong.
Jennen said he spoke privately for several minutes with Vilayhong’s family after court Wednesday. He said they were disappointed about the mistrial as well.
He said Vilayhong’s family had been grieving her death since early last year and were ready to have closure with the completion of the trial.
“You feel bad for the family in having to go through that again,” he said.
Several members of Sounyaphong’s and Vilayhong’s families attended the three-day trial.
Jurors began deliberating about 10:30 a.m. after listening to closing arguments from James and Jennen and instructions from Fitzhugh. The day had begun with James resting Sounyaphong’s defense without presenting any additional witnesses. Sounyaphong did not testify during the trial.
About an hour after starting deliberations, the jurors sent out a note to Fitzhugh saying they wanted to view a surveillance video from Choctaw Casino in Pocola, Okla., that was entered into evidence.
Both Vilayhong and Sounyaphong had separately spent the morning and part of the afternoon gambling the day she died. Jurors asked to watch about 90 minutes of the video, Fitzhugh said. Jurors watched the video in the courtroom, which was locked while the jury used it.
Jennen said that after the viewing, one of the jurors brought to Fitzhugh’s attention that there were concerns about the interpretations of Vietnamese. Jennen said Fitzhugh and the attorneys were told that a juror who understood Vietnamese heard several errors involving the interpreter’s translation of questions and answers during Ha’s testimony.
Jennen said Fitzhugh and the attorneys, however, were concerned mostly with the fact that jurors had received information not presented to them in court, which violated their instructions in deliberating on Sounyaphong’s guilt or innocence.
Arrangements had been made to have David Netherly of Washington state translate for Ha by speaker phone during his testimony Tuesday afternoon.
Ha testified that Sounyaphong arrived at his Fort Smith jewelry store in January or February 2013 to sell a bracelet.
In his opening statement to the jury of nine women and three men on Monday, James said Ha, an alibi witness, would testify that Sounyaphong went to his store Jan. 24, 2013, to sell some gold, then went back to the Choctaw Casino.
But on the witness stand Tuesday, Ha could not remember the specific day that Sounyaphong sold him the bracelet, only that it was in early 2013.
James told Fitzhugh after he dismissed the jury that he hoped a new trial date could be set in the next 60 days, but Fitzhugh expressed doubt that a new trial could be scheduled that soon.
Jennen said it will be difficult to schedule state Crime Laboratory technicians, who are busy testifying in cases across the state, to return to Fort Smith to testify, if the state decides to retry Sounyaphong, and to line up interpreters for Sounyaphong.
Jennen said there are three interpreters in the country who are qualified to interpret Laotian in court. Two of them translated for Sounyaphong and court witnesses during the trial.
Sounyaphong is accused of strangling Vilayhong and taking $1,200 she had won in a jackpot at the casino earlier in the day.
James pointed out to jurors that the state has no evidence that Sounyaphong was at the home at the time of Vilayhong’s death, and the only connection the state has to Sounyaphong in the case is a single hair. The state’s case is circumstantial and insufficient to prove his client guilty of murder, he said.
The state’s evidence consisted of cellphone records that show Sounyaphong’s phone was in the area of Vilayhong’s home at the time of her death and a single hair that was found on Vilayhong’s jacket, the DNA from which was matched to Sounyaphong.
But the prosecution also presented testimony that Sounyaphong lied to police about not being at the casino the day Vilayhong was killed and not knowing Vilayhong when he really knew her and her family and had visited their home in the past.
Arkansas, Pages 9 on 04/17/2014