State Of Washington v. Thavy Kong, 74418-6

Bellevue PD Special Emphasis Team surveilled suspected burglars Vongxay and Vouek and tracked Vongxay’s phone; team observed a white Acura associated with them.
On April 2, officers followed the Acura through residential cul-de-sacs; occupants approached and looked into houses; one house on Vashon Avenue was later found ransacked with the front door unlocked.
The Acura was later at a Federal Way car wash where officers found Kong washing the car; police arrested Kong, Vongxay, Vouek, and Nhorn.
Stolen property from the Vashon Avenue burglary and two loaded semiautomatic pistols (one with Kong’s fingerprints on it) were found in the Acura; a backpack with mail addressed to Kong was in the trunk; an untested suspected baggie of meth was found in the driver’s compartment.
Jury convicted Kong of residential burglary and a firearm enhancement; after a bench trial the court found Kong guilty of first-degree unlawful possession of a firearm (Kong had stipulated to a prior serious offense for that charge).
Kong appealed, raising ineffective assistance of counsel for failure to object to certain testimony, denial of a mistrial after testimony about prior surveillance at the Department of Corrections (DOC), late entry of findings, and cumulative error. The Court of Appeals affirmed.

Issue	Kong's Argument	State's Argument	Held
Ineffective assistance for failing to object to testimony about prior surveillance at DOC	Counsel should have objected and moved to strike; testimony implied prior criminality	Counsel reasonably declined to object as strategy to avoid highlighting testimony; no prejudice because evidence of guilt strong	No ineffective assistance: strategic decision; no reasonable probability of different outcome
Ineffective assistance for failing to object to testimony about suspected methamphetamine found in car	Counsel’s failure prejudiced jury by implying drug involvement	Reference was fleeting, untested, not attributed to Kong; objection would not change outcome	No ineffective assistance: lack of prejudice; brief, unconfirmed reference
Denial of mistrial after DOC-surveillance testimony	Testimony ruined defense strategy to keep prior-record inference from jury; mistrial required	Testimony ambiguous, fleeting, not highly prejudicial; limiting instruction might highlight it; defense counsel agreed	No abuse of discretion denying mistrial; testimony not sufficiently prejudicial
Late entry of findings and conclusions	Late filing prejudiced appellate review; judgment invalid	Findings may be entered while appeal pending if no prejudice; defendant able to appeal despite delay	No prejudice shown; late findings permissible; judgment not vacated

Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-part ineffective assistance standard)
State v. A.N.J., 168 Wn.2d 91 (2010) (standard of review for ineffective assistance claims)
In re Pers. Restraint of Caldellis, 187 Wn.2d 127 (2016) (counsel performance not deficient when tactical)
State v. Hendrickson, 129 Wn.2d 61 (1996) (must show objection would have been sustained for counsel error based on failure to object)
State v. Emery, 174 Wn.2d 741 (2012) (mistrial standard and abuse-of-discretion review)
State v. Cannon, 130 Wn.2d 313 (1996) (purpose of findings and conclusions; late entry may be permissible if no prejudice)
State v. Greiff, 141 Wn.2d 910 (2000) (cumulative error doctrine)