COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges Argued at Richmond, Virginia
THANG DUE NGUYEN MEMORANDUM OPINION * BY v. Record No. 1806-01-2 JUDGE JERE M. H. WILLIS, JR. JUNE 11, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Patrick R. Bynum, Jr., for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Thang Due Nguyen was convicted in a bench trial of
second-degree murder, in violation of Code § 18.2-32, and use of a
firearm in the commission of a felony, in violation of Code
§ 18.2-53.1. On appeal, Nguyen contends that the trial court
erred (1) in refusing to allow evidence of Hung Tran's reputation
for violence in the community; and (2) in overruling his motion
for a mistrial on the ground that the Commonwealth failed to
provide him with exculpatory statements. We affirm the judgment
of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
A. OFFENSES
In the early morning hours of August 27, 2000, Nguyen and his
friends were seated at several tables near the main entrance of
the Golden Dynasty Restaurant in Henrico County. One of Nguyen's
friends, Bien Lien, and the victim, Hung Tran, went outside to
talk. While Lien and Tran spoke outside, a female friend of
Nguyen went to a window to listen to what became an argument.
When Tran returned, the female friend threw a bottle at him
and they began to argue. Concerned that a fight would occur, one
of Tran's friends ran over and grabbed him. Tran broke free, and
a melee ensued. The facts regarding what occurred thereafter are
in dispute.
The Commonwealth presented evidence that once the melee
began, Nguyen and an unidentified man went outside to the parking
lot. A witness testified that, while in the parking lot, Nguyen
passed a machete and nightstick to the unidentified man. They
returned to the restaurant. In the vestibule of the restaurant, a
friend of Tran's was holding Tam Pham, a friend of Nguyen's, in a
bear hug. Nguyen stated, "I'm bringing in a toy," which is slang
for "bringing in a weapon."
Upon hearing this, Tran's friend released Pham and reached
for Nguyen. He was unsuccessful. Pham and Nguyen left the
vestibule, and two shots were fired. David Nguyen, another of
Tran's friends and a participant in the melee, heard the shots and
- 2 - looked up to see Nguyen's arm pointed at Tran who was lying on the
floor. Nguyen and Pham fled the restaurant. Both were
apprehended outside.
Nguyen's account of what occurred after the fighting began
differs from the Commonwealth's. According to Nguyen, he and a
friend were in the restroom when the fight began. When they
emerged, he saw one of his friends on the floor and he perceived
that some of his other friends might be in danger. As a result,
he immediately went to their assistance. As he entered the melee,
Tran confronted him.
Nguyen testified that Tran had a broken beer bottle in his
hand and came toward him in a menacing manner. Nguyen attempted
to retreat, but was blocked by the crowd and by tables and chairs.
Tran continued his aggressive moves. Fearing for his safety,
Nguyen pulled a pistol from his pants and shot twice at Tran.
Tran was hit once in the back. Once the shots were fired, patrons
and combatants hurriedly left the restaurant. Nguyen was
apprehended outside the restaurant.
B. TRIAL
Nguyen was indicted for first-degree murder, in violation of
Code § 18.2-32, and for use of a firearm in the commission of a
felony, in violation of Code § 18.2-53.1. He waived trial by
jury, and a bench trial was held.
Beth Liper, Nguyen's one time foster mother, was called as a
witness for the Commonwealth. Ms. Liper testified that she went
- 3 - to visit Nguyen in jail. The purpose of the visit was to help her
decide whether she would post his bond. She did not speak to the
police prior to the visit.
On direct examination, Ms. Liper testified to the content of
the conversation with Nguyen. Nguyen objected, arguing that she
was an agent of the Commonwealth and that her statement had not
been provided prior to trial. The trial court overruled the
objection. Continuing, Ms. Liper stated that Nguyen admitted
leaving the restaurant, obtaining a gun from his car, and
returning to shoot Tran. She said when she asked him how he could
shoot someone twice and in the back, he just lowered his head and
did not answer.
After the Commonwealth rested its case, Nguyen objected to
Ms. Liper's testimony. He asserted that she was a police agent
and that his statements to her were exculpatory and therefore
should have been provided pre-trial, pursuant to Brady v.
Maryland, 373 U.S. 83 (1963). The trial court overruled the
objection, holding that the statements were properly admitted
because they were not exculpatory.
In his case-in-chief, Nguyen called Hanh Nguyen as a witness
to testify as to Tran's reputation for violence in the community.
Hanh Nguyen, who was not at the restaurant during the events on
trial, testified that he had seen Tran involved in two fights in
the past. The Commonwealth's attorney objected to the testimony
- 4 - of specific acts of violence. The trial court overruled the
objection. The defense attorney then asked:
MR. BYNUM [DEFENSE ATTORNEY]: Now, does or did the deceased have a reputation for violence and fighting in the community?
THE COURT: Wait a minute now. If the victim [Tran] wasn't a friend of his, I'm not, I don't think he can testify to that. I'm not going to allow that.
MR. BYNUM: I'm sorry, Judge, I didn't hear that.
THE COURT: If the victim wasn't a friend of his and he didn't know him much, didn't know him much, I'm not going to allow that.
MR. BYNUM: Judge, I, I, the situation is that he observed him twice in a fight.
THE COURT: That's right.
MR. BYNUM: And as a result of that and he knows him, and he's certainly known in his community and I, and I, and I think he's very competent to testify what he has a reputation --
THE COURT: I'm not going to allow it. Well, go on.
MR. BYNUM: All right. I will accept the Court's ruling. That's all the questions I have.
Defense counsel made no proffer of Hanh Nguyen's expected answer
as to the foundation question of whether he was familiar with
Tran's reputation in the community for violence and fighting.
He made no proffer of what, assuming a proper foundation was
laid, Hanh Nguyen's testimony would be as to that reputation.
- 5 - The defense rested and moved the court to strike the
Commonwealth's evidence on the ground that it did not prove his
guilt beyond a reasonable doubt. Nguyen further moved for a
mistrial, asserting the Commonwealth's failure to provide him
exculpatory statements made by Ms. Liper. Both motions were
denied. The trial court convicted Nguyen of second degree
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges Argued at Richmond, Virginia
THANG DUE NGUYEN MEMORANDUM OPINION * BY v. Record No. 1806-01-2 JUDGE JERE M. H. WILLIS, JR. JUNE 11, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge
Patrick R. Bynum, Jr., for appellant.
Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Thang Due Nguyen was convicted in a bench trial of
second-degree murder, in violation of Code § 18.2-32, and use of a
firearm in the commission of a felony, in violation of Code
§ 18.2-53.1. On appeal, Nguyen contends that the trial court
erred (1) in refusing to allow evidence of Hung Tran's reputation
for violence in the community; and (2) in overruling his motion
for a mistrial on the ground that the Commonwealth failed to
provide him with exculpatory statements. We affirm the judgment
of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
A. OFFENSES
In the early morning hours of August 27, 2000, Nguyen and his
friends were seated at several tables near the main entrance of
the Golden Dynasty Restaurant in Henrico County. One of Nguyen's
friends, Bien Lien, and the victim, Hung Tran, went outside to
talk. While Lien and Tran spoke outside, a female friend of
Nguyen went to a window to listen to what became an argument.
When Tran returned, the female friend threw a bottle at him
and they began to argue. Concerned that a fight would occur, one
of Tran's friends ran over and grabbed him. Tran broke free, and
a melee ensued. The facts regarding what occurred thereafter are
in dispute.
The Commonwealth presented evidence that once the melee
began, Nguyen and an unidentified man went outside to the parking
lot. A witness testified that, while in the parking lot, Nguyen
passed a machete and nightstick to the unidentified man. They
returned to the restaurant. In the vestibule of the restaurant, a
friend of Tran's was holding Tam Pham, a friend of Nguyen's, in a
bear hug. Nguyen stated, "I'm bringing in a toy," which is slang
for "bringing in a weapon."
Upon hearing this, Tran's friend released Pham and reached
for Nguyen. He was unsuccessful. Pham and Nguyen left the
vestibule, and two shots were fired. David Nguyen, another of
Tran's friends and a participant in the melee, heard the shots and
- 2 - looked up to see Nguyen's arm pointed at Tran who was lying on the
floor. Nguyen and Pham fled the restaurant. Both were
apprehended outside.
Nguyen's account of what occurred after the fighting began
differs from the Commonwealth's. According to Nguyen, he and a
friend were in the restroom when the fight began. When they
emerged, he saw one of his friends on the floor and he perceived
that some of his other friends might be in danger. As a result,
he immediately went to their assistance. As he entered the melee,
Tran confronted him.
Nguyen testified that Tran had a broken beer bottle in his
hand and came toward him in a menacing manner. Nguyen attempted
to retreat, but was blocked by the crowd and by tables and chairs.
Tran continued his aggressive moves. Fearing for his safety,
Nguyen pulled a pistol from his pants and shot twice at Tran.
Tran was hit once in the back. Once the shots were fired, patrons
and combatants hurriedly left the restaurant. Nguyen was
apprehended outside the restaurant.
B. TRIAL
Nguyen was indicted for first-degree murder, in violation of
Code § 18.2-32, and for use of a firearm in the commission of a
felony, in violation of Code § 18.2-53.1. He waived trial by
jury, and a bench trial was held.
Beth Liper, Nguyen's one time foster mother, was called as a
witness for the Commonwealth. Ms. Liper testified that she went
- 3 - to visit Nguyen in jail. The purpose of the visit was to help her
decide whether she would post his bond. She did not speak to the
police prior to the visit.
On direct examination, Ms. Liper testified to the content of
the conversation with Nguyen. Nguyen objected, arguing that she
was an agent of the Commonwealth and that her statement had not
been provided prior to trial. The trial court overruled the
objection. Continuing, Ms. Liper stated that Nguyen admitted
leaving the restaurant, obtaining a gun from his car, and
returning to shoot Tran. She said when she asked him how he could
shoot someone twice and in the back, he just lowered his head and
did not answer.
After the Commonwealth rested its case, Nguyen objected to
Ms. Liper's testimony. He asserted that she was a police agent
and that his statements to her were exculpatory and therefore
should have been provided pre-trial, pursuant to Brady v.
Maryland, 373 U.S. 83 (1963). The trial court overruled the
objection, holding that the statements were properly admitted
because they were not exculpatory.
In his case-in-chief, Nguyen called Hanh Nguyen as a witness
to testify as to Tran's reputation for violence in the community.
Hanh Nguyen, who was not at the restaurant during the events on
trial, testified that he had seen Tran involved in two fights in
the past. The Commonwealth's attorney objected to the testimony
- 4 - of specific acts of violence. The trial court overruled the
objection. The defense attorney then asked:
MR. BYNUM [DEFENSE ATTORNEY]: Now, does or did the deceased have a reputation for violence and fighting in the community?
THE COURT: Wait a minute now. If the victim [Tran] wasn't a friend of his, I'm not, I don't think he can testify to that. I'm not going to allow that.
MR. BYNUM: I'm sorry, Judge, I didn't hear that.
THE COURT: If the victim wasn't a friend of his and he didn't know him much, didn't know him much, I'm not going to allow that.
MR. BYNUM: Judge, I, I, the situation is that he observed him twice in a fight.
THE COURT: That's right.
MR. BYNUM: And as a result of that and he knows him, and he's certainly known in his community and I, and I, and I think he's very competent to testify what he has a reputation --
THE COURT: I'm not going to allow it. Well, go on.
MR. BYNUM: All right. I will accept the Court's ruling. That's all the questions I have.
Defense counsel made no proffer of Hanh Nguyen's expected answer
as to the foundation question of whether he was familiar with
Tran's reputation in the community for violence and fighting.
He made no proffer of what, assuming a proper foundation was
laid, Hanh Nguyen's testimony would be as to that reputation.
- 5 - The defense rested and moved the court to strike the
Commonwealth's evidence on the ground that it did not prove his
guilt beyond a reasonable doubt. Nguyen further moved for a
mistrial, asserting the Commonwealth's failure to provide him
exculpatory statements made by Ms. Liper. Both motions were
denied. The trial court convicted Nguyen of second degree
murder, in violation of Code § 18.2-32, and use of a firearm in
the commission of a felony, in violation of Code § 18.2-53.1.
It sentenced him to twenty years incarceration, with ten years
suspended, for second-degree murder, and to three years
incarceration for using a firearm during the commission of a
felony. He appeals that judgment.
II. ANALYSIS
Nguyen contends that the trial court erred (1) in refusing
to allow evidence of Hung Tran's reputation for violence in the
community; and (2) in denying his motion for a mistrial on the
ground that the Commonwealth failed to provide him exculpatory
statements. We disagree.
A. REPUTATION EVIDENCE
Nguyen contends that the trial court erred in rejecting
evidence of Hung Tran's reputation in the community for
violence. However, he failed to proffer a proper foundation
that his witness was familiar with Tran's reputation. He made
no proffer to Hanh Nguyen's expected testimony as to that
reputation. Thus he has provided us no basis on which to grant
- 6 - the relief that he seeks. See Brant v. Commonwealth, 32 Va.
App. 268, 280, 527 S.E.2d 476, 481-82 (2000).
B. EXCULPATORY EVIDENCE WAS NOT WITHHELD
Nguyen next contends that the trial court erred in denying
his motion for a mistrial, arguing that the Commonwealth failed
to provide him with exculpatory evidence in violation of Brady,
373 U.S. 83. We disagree.
Due process is violated if the prosecution suppresses
requested evidence favorable to the accused and the evidence
suppressed is material to guilt or punishment. Id. at 87.
Nguyen claims that his statements to Liper that he had no choice
but to shoot Tran because "it was either him or me" and that he
had to defend himself were exculpatory and should have been
disclosed prior to trial. He argues that had he had the benefit
of those statements his trial strategy would have been altered
to maximize and bolster his self-defense theory.
Nguyen's statements were not exculpatory. He told Liper
that he left the restaurant to get a gun and returned to shoot
Tran. He further told her that he returned from the safety of
the parking lot to confront Tran. His statements to Liper did
not support his self-defense theory and were not exculpatory.
Furthermore, the statements came in at trial, and he had the
full benefit of them. He made no showing that the
Commonwealth's failure to disclose the statements prior to trial
- 7 - in any way prejudiced him either in his conduct of the trial or
in the trial's outcome.
The judgment of the trial court is affirmed.
Affirmed.
- 8 -