Xi Van Ha v. State

892 P.2d 184, 1995 Alas. App. LEXIS 16, 1995 WL 139346
CourtCourt of Appeals of Alaska
DecidedMarch 31, 1995
DocketA-4818
StatusPublished
Cited by17 cases

This text of 892 P.2d 184 (Xi Van Ha v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Xi Van Ha v. State, 892 P.2d 184, 1995 Alas. App. LEXIS 16, 1995 WL 139346 (Ala. Ct. App. 1995).

Opinions

OPINION

MANNHEIMER, Judge.

Xi Van Ha1 appeals his conviction for second-degree murder, AS 11.41.110(a)(1). As explained in more detail below, the superior court refused to allow Ha to argue self-defense to the jury. The court allowed Ha to argue heat of passion to the jury, but the court instructed the jurors that they should evaluate the extent of the victim’s provocation and the extent of Ha’s opportunity to [186]*186calm himself from the point of view of a “mentally healthy” person. On appeal, Ha contends that the superior court should have instructed the jury on self-defense, and he contends that the court should have allowed the jury to consider evidence of Ha’s mental abnormality when they assessed his heat of passion defense. We conclude that the superior court correctly resolved these issues, and thus we affirm Ha’s conviction.

Ha came to the United States from Vietnam in 1980. He lived in California for ten years and then, in 1990, he moved to Dilling-ham, where he worked as a fisherman, a trade he had pursued both in his native country and in Malaysia. Despite his years in the United States, Ha’s English remained rudimentary.

On June 7, 1991, Ha was employed to fish aboard the F/V (fishing vessel) Ultimate. After work on June 7th, Ha and his long-time friend Tran Gioi were socializing in the Willow Tree Bar in Dillingham. Later that evening they were joined by other Vietnamese fishermen. Among the new arrivals were Ly Van Hop and Buu Van Truong. Ha knew Buu and his family from the Vietnamese community in California, and he was also aware that Buu and Ly were roommates in Dillingham.

The men shared drinks in the Willow Tree; Ha later testified that he thought Buu was drunk by the time they left the bar. Ha, Tran, Ly, and Buu returned together to the Ultimate after Ha volunteered to reheat some leftover food. Ha later testified that his invitation to cook food was directed only to Tran and Ly. Ha did not wish to socialize with Buu because Buu was known as a violent person. According to Ha, Buu’s family in California had a reputation for violence; Ha testified that, in California, Buu and his brothers (as well as other family members) had been known to threaten and beat people who crossed them. Knowing that Buu had been drinking, Ha suspected that Buu would be even more prone to violence.

The four men reached the boat and went aboard; Ha started the generator to heat the stove. While they waited for the stove to heat up, Ha’s friend Tran lay down on a bunk, while Buu’s friend Ly went out on deck. After about fifteen minutes, Buu began to get impatient that the food was not yet heated. He began to harass Ha, swearing at Ha and making comments such as “fuck your mother”. Ha started swearing at Buu and told him to get off the boat. In response, Buu began to beat Ha. Ly ran in from the deck to assist Buu. Ly held Ha’s arms to his side while Buu continued to beat him. Buu seized Ha by the hair and struck his face and head repeatedly with his fists.

As the beating continued, Ha began shouting for help. He yelled to his friend Tran, “Gioi, come out and ... fight: Buu is hitting me and killing me!” At one point, Ha yelled, “I’m dying!” When Tran heard Ha’s cries for help, he rose from his bunk and came to Ha’s aid. Tran physically separated Buu from Ha, but Buu was able to strike Ha four or five more times before he was pulled away. Ha testified that, at times during the beating, Buu hit him so hard that he fell down. Ha also testified that the attack left him with blurred vision.

Buu and Ly left the Ultimate, but they returned a few minutes later. This time, Buu was armed with a hammer. Buu came at Ha, screaming, “I’m going to kill you, and I will strike you until you die!” Buu swung the hammer at Ha’s head, but Ha jumped from the Ultimate to the F/V Misty, which was berthed alongside. When Buu followed Ha onto the Misty, Ha ran into the cabin and held the door closed. Buu stood outside the cabin and, through the glass in the door, he shouted, “Fuck your mother! I will strike you and I will kill you!”

Buu continued his tirade for four or five minutes until Ha’s friend Tran ran aboard the Misty and grabbed the hammer from Buu’s hand. Ly came aboard too and escorted Buu away. Ha remained on the Misty for several minutes before returning to the Ultimate.

That night, Ha could not sleep. He feared that Buu was bound to return and kill him as he had promised. Tran attempted to reassure Ha, but Ha remained awake after his friend fell asleep. Ha’s head was throbbing in pain. He paced throughout the boat.

[187]*187As he paced, Ha remembered that there was a rifle aboard the Misty; Ha had previously used this weapon to shoot at birds while he was fishing. Ha went back to the Misty, retrieved the weapon, and loaded it.

Ha later testified that he was “very frightened”. He lay awake on his bunk throughout the night, with the rifle at his side, “the voice of Mr. Buu ... resounding in [his] ears”. Tran awoke and left the boat around 7:00 or 8:00 the next morning. Ha continued to he awake on his bunk, thinking about Buu, the rifle still underneath his blanket. Several hours later (around 8:00 in the morning), Victor Sifsof, the owner of the boat, came aboard.

Ha was still lying on his bunk when Sifsof arrived. Sifsof spoke to Ha about mending nets that day, but Ha’s head was still giving him great pain. Ha told Sifsof about the beating he had received from Buu and Ly the night before — that his head still hurt and his vision was still blurred. Sifsof saw that Ha was still very upset, even though he was acting sluggish. Ha told Sifsof that the two men who had attacked him worked on a boat owned by Billy Johnson, another local fisherman. Sifsof told Ha that he would speak to Johnson about his employees.

Around 10:00 that morning, Ha and Sifsof moved the Ultimate to a different location in preparation for the upcoming fishing opening. While the men were working, Ha left the rifle in his bunk. The Ultimate’s new location happened to be closer to Johnson’s boat, the boat on which Buu worked. Sifsof then left Ha alone on the Ultimate. The pain in Ha’s head grew worse, and Ha became more frightened, realizing that he was closer to Buu. In his head, Ha heard Buu’s voice becoming stronger and stronger, and he became more and more frightened. He lay down to try to sleep, but he found he could not. Ha tried to think of someone who could help him, but he was unable to think of anyone who could. Ha testified that Buu’s voice remained in his head; he stated, “I [did] not think that I should call the police to help me — [b]ecause [Buu’s] voice was just so ferocious and it stayed in my ears.”

Finally, Ha retrieved the rifle from his bunk, left the Ultimate, and went in search of Buu. He kept the rifle hidden underneath his jacket. Ha later testified, “[M]y head was controlling my actions, and it was commanding me to go kill [Buu].”

Shortly after noon, Ha went to where he believed Buu was working. When he discovered that Buu was not there, Ha sat down for a while to wait for him. Ha then loitered in the vicinity of Buu’s boat, where he was observed by other Vietnamese fishermen, including Buu’s friend Ly. Ly saw Ha carrying a long object concealed under his jacket. Although Ha apparently did not remember speaking to anyone at the boat, Ly testified that he approached Ha and spoke to him. After learning that Ha was searching for Buu, Ly begged Ha to go back home. Ha refused.

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Xi Van Ha v. State
892 P.2d 184 (Court of Appeals of Alaska, 1995)

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Bluebook (online)
892 P.2d 184, 1995 Alas. App. LEXIS 16, 1995 WL 139346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xi-van-ha-v-state-alaskactapp-1995.