Hep Bui v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 30, 1997
• Docket: 1608964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judge Elder and Senior Judge Duff Argued at Alexandria, Virginia

HEP BUI MEMORANDUM OPINION** BY v. Record No. 1608-96-4 JUDGE CHARLES H. DUFF DECEMBER 30, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert W. Wooldridge, Jr., Judge Rachel A. Daum (Peter D. Greenspun & Associates, P.C., on briefs), for appellant.

Kathleen B. Martin, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Hep Bui, appellant, was convicted by a jury of robbery. In

this appeal, we must decide whether the trial court erred in

admitting evidence regarding the Tri Binh Nguyen group and

appellant's unrelated prior acts with the group. We hold that

because appellant failed to object to questioning of defense

witnesses regarding the Tri Binh Nguyen group, this issue in not

properly before us. Moreover, the trial court did not err by

allowing the prosecutor to present rebuttal evidence concerning

the group to impeach appellant's alibi witnesses. Accordingly,

we affirm.

* On November 19, 1997, Judge Fitzpatrick succeeded Judge Moon as chief judge. ** Pursuant to Code § 17-116.010, this opinion is not designated for publication. Background

On October 28, 1995, twelve-year-old Steven Thach was

watching television when appellant knocked on his apartment door.

When Thach asked who was there, appellant responded, "Mike."

Thach opened the door, and appellant said, "I have something for

your mom. Can you hold it?" As Thach agreed to hold the

package, appellant pushed Thach down, held a gun to his head, and

said, "Don't move or I'll blow your head off." Appellant took

Thach into the bathroom, bound and gagged him, and put a mask

over Thach's head. Thach heard appellant and three or four other men speaking

Vietnamese, Cambodian, and Spanish while they ransacked the

apartment. Thach heard the word "Sago," the name of Thach's

mother's ex-boyfriend and the father of Thach's baby brother.

Appellant and his companions stole ten bottles of wine, jewelry,

two cameras, a cellular telephone, and a VCR.

Appellant filed a motion in limine to preclude the

Commonwealth from admitting or referring to evidence of

appellant's similar cases and to appellant's gang affiliations,

arguing that this information had no probative value, or that any

probative value was outweighed by the prejudicial value. In a

hearing on that motion, the court ruled that questions regarding

"gang" membership would be relevant to the witnesses'

credibility, but agreed to deal with the issues "one by one" as

2 they arose. 1

During the trial, the prosecutor cross-examined Lan Cao,

Hoang Le, and Hung Pham about their knowledge of the Tri Binh

Nguyen group. Appellant did not object to these questions.

These witnesses denied any knowledge of the group. During

cross-examination, Le Huu Le testified that neither he nor

appellant associated with this group, and he denied knowledge of

incidents involving the group at Café Lien and at Eden Center.

Appellant did not object to these questions. The trial court then called a recess and asked how these

inquiries were relevant to the case. The prosecutor explained

that she intended to show that the witnesses were biased. The

court allowed the prosecutor to continue this line of

questioning, and again noted that there had been no objection

upon which he could rule. The trial judge said he would consider

appellant's comments during the discussion as an objection. At

this point, appellant asked for a continuing objection to this

line of questioning.

Le Huu Le continued his testimony, acknowledging that he had

been at the Willston complex in August of 1995 when Detective

Edgar Lancaster arrived. Le Huu Le denied that the Willston

complex was a "hangout pad" for the Tri Binh Nguyen group and

1 The record reflects that the trial judge exercised commendable care to insure that the evidence was sanitized so as to avoid the use of inflammatory language; e.g., he directed that the word "group" replace "gang."

3 denied that he had ever heard of "Tri's boys."

The prosecutor called Lancaster as a rebuttal witness. In

response to appellant's objection, the trial judge stated that he

assumed that the prosecutor was using Lancaster to impeach

defense witnesses' testimony who, without objection, had

testified that they had no knowledge of the Tri Binh Nguyen

group. Appellant's counsel agreed that such testimony was

appropriate regarding the witnesses, but argued that it was

inappropriate as to appellant. The trial court ruled that "if

the Defendant calls as a witness on his behalf someone with whom

the Commonwealth believes the Defendant has a relationship that

may affect that witness's willingness to tell the truth, I think

the Commonwealth, as any party would be, is entitled to go into

that." Lancaster testified that he was familiar with the Tri Binh

Nguyen group through his police work. Lancaster knew Le Huu Le

and observed him with appellant and others at Eden Center, Café

Lien, and the Willston complex. Lancaster knew from police

reports, personal observations, informants, and other sources

that Le Huu Le associated with the Tri Binh Nguyen group.

Analysis

"In order to be considered on appeal, an objection must be

timely made and the grounds stated with specificity. Rule 5A:18.

To be timely, an objection must be made when the occasion arises

-- at the time the evidence is offered or the statement made."

4 Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168

(1986) (citation omitted).

On appellant's motion in limine, the court ruled that the

evidence regarding the Tri Binh Nguyen group could be appropriate

regarding a witness' credibility, but that the court would deal

with this issue as it arose during trial. However, appellant did

not object when the prosecutor asked each of four defense

witnesses whether he or she had any knowledge of the Tri Binh

Nguyen group. Each of these witnesses denied any knowledge of

the Tri Binh Nguyen group. Accordingly, Rule 5A:18 bars our

consideration on appeal of whether the trial court erred in

admitting evidence of the Tri Binh Nguyen group. Moreover, the

record does not reflect any reason to invoke the good cause or

ends of justice exceptions to Rule 5A:18. Moreover, the Commonwealth was entitled to refute

appellant's alibi by showing that the alibi witnesses were not

worthy of belief. "The bias of a witness, based on a previous

relationship with a party to the case, is always a relevant

subject of cross-examination." Goins v. Commonwealth, 251 Va.

442, 465, 470 S.E.2d 114, 129, cert. denied, 117 S. Ct. 222

(1996). See Kirk v. Commonwealth, 21 Va. App. 291, 298-99, 464

S.E.2d 162, 166 (1995) (because opponent can elicit "anything

tending to show the bias" of a witness, evidence that defendant's

alibi witness was his homosexual lover was admissible to

establish witness' motive for testifying). Where evidence of

5 specific acts of misconduct "is relevant to show that a witness

is biased or has a motive to fabricate, it is not collateral and

should be admitted." Banks v. Commonwealth, 16 Va. App. 959,

963-64, 434 S.E.2d 681, 683-84 (1993). Therefore, attacking the

credibility of the alibi witnesses by demonstrating their bias in

favor of appellant was permissible impeachment.

Alibi witness Le Huu Le had denied any knowledge of the

incident at Café Lien or at Eden Center. He admitted being

present at the Willston complex incident, but denied that the

area was frequented by the Tri Binh Nguyen group. Le Huu Le

denied meeting appellant through that group or that he or

appellant associated with members of that group. The trial court

did not err in allowing Lancaster to testify that he had observed

Le Huu Le and appellant at specific times at the three specific

places. The trial court did not err in admitting evidence of

appellant's relationship with his alibi witness and the Tri Binh

Nguyen group at Eden Center, Café Lien, and the Willston complex.

For the foregoing reasons, we affirm the judgment of the

trial court. Affirmed.