LOWELL — The murder retrial of Billy, Billoeum, and Channa Phan is officially ready to proceed.
Jury impanelment is scheduled to begin in Middlesex Superior Court on Monday morning — or Tuesday if the winter storm forces the Kiernan Judicial Center to close.
The schedule was set on Friday during the final pretrial hearing, where Judge Chris Barry-Smith also denied a defense motion to dismiss the indictment against one of the three brothers, each charged with first-degree murder for the shooting death of 22-year-old Tyrone Phet outside his Lowell home in 2020.
Barry-Smith rejected the bid by attorney William Dolan, who represents defendant Channa Phan, ruling that although the Middlesex District Attorney’s Office failed to turn over information tied to a gang-motive theory in a timely fashion, the lapse did not rise to the level requiring dismissal.
The motion stemmed from the prosecution’s recent attempt to broaden the scope of gang‑related evidence in the retrial, namely introducing details about a Sept. 13, 2020 drive‑by shooting at 478 Wilder St.
Prosecutors have argued the residence functioned as a stash house for the Outlaws, street gang, which they claim the Phan brothers are members of. Due to the shooting, a search warrant was obtained by the Lowell Police for the Wilder Street home, where officers seized guns, ammunition, 200 grams of cocaine, and 100,000 pressed pills containing methamphetamine.
The shooting — allegedly carried out by rival gang Crazy Mob Family — triggered a retaliatory motive for the killing of Phet less than 24 hours later.
Phet was not alleged to be a CMF member, but prosecutors contend he lived in the same Spring Avenue building where a CMF member once resided.
Phet was shot to death in a hail of gunfire while sitting in his car outside the multi-family residence at 55 Spring Ave. Phet — a 2016 Chelmsford High graduate and captain of the football team his senior year — was struck eight times during the shooting.
The Lowell Police recovered 21 spent shell casings at the scene from two different caliber guns.
Barry‑Smith said the prosecution’s decision to pursue a broader gang theory in the retrial “not surprisingly” prompted the defense to seek all information police and prosecutors possessed about the Wilder Street shooting and subsequent search warrant.
Prior to the first trial — which ended in a mistrial after jurors became deadlocked —prosecutors turned over the police report about the incident but not the underlying investigative materials, Barry‑Smith said. That omission was not a major point of contention at the time because the initial trial’s lead prosecutor — former Middlesex Assistant District Attorney Daniel Harren — had elected not to pursue a wide‑ranging gang theory.
Once the new prosecution team sought to expand that scope, Barry‑Smith said, they were obligated to produce the full set of Wilder Street information — something they did not do until recent weeks.
“The Commonwealth’s principal shortcoming is that failure to produce Wilder Street information once it determined Wilder Street was relevant to the case,” Barry‑Smith said, adding that a secondary issue was that prosecutors “were not adequately familiar” with what evidence had been turned over during the first four years of the case, leading to a misunderstanding.
The judge described the discovery violation as the product of “mistake, inadvertence, misunderstanding, and a failure to be fully familiar” with prior disclosures — not an attempt to ambush the defense.
“It was not delivered, nor was it designed to spring evidence upon the defense,” Barry‑Smith said.
The judge reiterated that he has already denied the Commonwealth’s request to expand the scope of gang evidence for the retrial, calling the proposed showing “too thin.”
The Wilder Street material may be considered for rebuttal, but that will depend on how the trial unfolds.
Because prosecutors have since turned over the missing materials, and because the expanded gang theory will not be permitted, Barry‑Smith said dismissal was not warranted.
“I don’t find that the District Attorney’s Office’s conduct was purposeful or egregious,” he said.
As for jury selection, the expectation is it will take two days to get the needed pool of 16 jurors.
The trial will run daily from 9 a.m. to 4 p.m. each day, with an hour‑long lunch break. Barry‑Smith said the case is expected to conclude by the end of the week of Feb. 9.
Middlesex Assistant District Attorney Thomas Brant told Barry-Smith that the prosecution intends to call more than 40 witnesses.
Brant also raised a scheduling wrinkle: Feb. 8 is Super Bowl Sunday, and with the New England Patriots still in contention for a spot in Super Bowl 60 as of the hearing, juror availability and the scheduling of witnesses could be affected.
“I don’t care, and my desire is to move the case as quickly as possible, but …” Brant said.
“I hadn’t thought of that,” Barry‑Smith replied, adding that he may delay the Feb. 9 start time to as late as 10 a.m.
“I might delay things on that Monday, but I’m not going to call it off,” he said.’
The Sun will publish weekly wrap-ups on the trial’s progress, with summaries appearing this Sunday and again on Feb. 8. A final story detailing the verdict will follow shortly after the jury reaches a decision, with the latest possible publication date being Feb. 15.
Follow Aaron Curtis on X @aselahcurtis, or on Bluesky @aaronscurtis.bsky.social.
