Kong C. Bounnam v. State of Tennessee ( 2002 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 9, 2002
KONG C. BOUNNAM v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. P-22830 Bernie Weinman, Judge
No. W2001-02603-CCA-R3-PC - Filed December 20, 2002
The petitioner appeals the post-conviction court’s denial of his petition for post-conviction relief
from his convictions in the Shelby County Criminal Court for three counts of felony murder and four
counts of robbery with a deadly weapon. On appeal, he contends that: (1) the trial court committed
plain error by failing to instruct the jury on the lesser-included offenses of facilitation, reckless
homicide, and criminally negligent homicide; and (2) his trial counsel provided ineffective assistance
of counsel at trial and on direct appeal. We affirm the post-conviction court’s denial of the petition
for post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and NORMA MCGEE OGLE , JJ., joined.
Craig V. Morton, Memphis, Tennessee, for the appellant, Kong C. Bounnam.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
In 1998, the petitioner, Kong C. Bounnam, a/k/a Nln Bounnam, was convicted by a Shelby
County Criminal Court jury of three counts of murder in the perpetration of a felony and four counts
of robbery with a deadly weapon. He was sentenced by the trial court to life on each of the murder
convictions and to twenty-five years on each of the robbery convictions. The robbery sentences were
ordered to be served concurrently to each other, but consecutively to the life sentences, and two of
the three life sentences were ordered to be served consecutively. The petitioner’s convictions were
affirmed by this court on direct appeal, and his application for permission to appeal to the supreme
court was denied. See State v. Kong Chung Bounnam, No. 02C01-9803-CR-00095, 1999 Tenn.
Crim. App. LEXIS 842, at **1-2 (Tenn. Crim. App. Aug. 16, 1999), perm. to appeal denied (Tenn.
Jan. 24, 2000).
The petitioner’s convictions arose from his participation with Duc Phuoc Doan, Heck Van
Tran, and Hung Van Chung in a 1987 robbery at Jade East, a Chinese restaurant in Memphis that
was owned by John Lee. Id. at **2-3. John Lee had five children, all of whom worked at the
restaurant. These included Arthur Lee, the manager of the restaurant; Chester Lee, who was married
to Amy Lee; and Jerry Lee, who operated a jewelry business out of the restaurant. Id. at *2. In
addition to his children, John Lee’s mother, Ging Sam Lee; mother-in-law, Kai Yin Chuey; and
daughter-in-law, Amy Lee, also worked at the restaurant. Id.
The direct appeal opinion provides the following account of the crime:
On the afternoon of October 20, 1987, while Arthur Lee, Amy
Lee, Kai Yin Chuey, and Ging Sam Lee were preparing to open the
restaurant, Hung Van Chung and the [petitioner] entered an open
back door and Chung said, “We’re looking for a job.” The
[petitioner] then grabbed Arthur Lee by the neck and pointed a .44
Magnum to his head. When Arthur attempted to grab the weapon,
Hung Van Chung shot him. Duc Phuoc Doan and Heck Van Tran,
who had accompanied Chung and the [petitioner], then involved
themselves in the fray. Van Tran shot Kai Yin Chuey twice, the
second time in the head. When Van Tran obtained a key to open the
storage room, Amy Lee, who was in the front of the restaurant, began
to scream. Hung Van Chung ran in that direction. There were several
more shots fired and Amy was killed. Duc Phuoc Doan took two
rings from the body of Kai Yin Chuey and was handed a jewelry case
by Van Tran. Three of the men left the restaurant and a few seconds
later, the [petitioner] limped towards his car, bleeding from a wound
to his leg. The [petitioner], who had driven the three other men to the
restaurant, told the others that he had been shot but was able to drive
a couple of blocks before asking Van Tran to take over the operation
of the vehicle.
Id. at **2-3.
John Lee’s elderly mother, Ging Sam Lee, was the only one of the four Lee family members
to survive the attacks. Id. at **6-7. Within an hour after the crime, the petitioner fled with Heck
Van Tran and Hung Van Chung to Washington, D.C., where they left the jewelry. Id. at **4-5. The
men then drove to Houston, Texas, where the petitioner remained for two months while his leg
healed. From there, he apparently flew to either North or South Carolina to stay with an uncle.
Id. at *5. A number of years later, he was discovered and apprehended in Canada. After a lengthy
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extradition process, which included the State’s agreement to waive the death penalty for the murders,
the petitioner was returned to Tennessee to stand trial.
At trial, the petitioner, who is Laotian, attempted to show that his participation in the robbery
was coerced by his three Vietnamese companions, in particular, Hung Van Chung. Id. at **6-7. Van
Chung admitted at the petitioner’s trial that he had signed a sworn statement to the effect that he had
forced the petitioner to participate in the robbery and that he had shot the petitioner during the course
of the robbery. He also admitted that he had made a similar admission to trial counsel prior to trial.
Id. at **8-9. He maintained, however, that the petitioner had been a willing participant in the crime.
He explained that he could not read English very well and that the petitioner had tricked him into
signing the sworn statement. Id. at *9. As for his admission to trial counsel, he testified that the
petitioner had asked that he lie to the petitioner’s defense counsel. Id. The trial court denied trial
counsel’s request to have Van Chung’s sworn statement admitted into evidence, and this court
affirmed that decision on appeal, concluding that, because Van Chung admitted having made the
statement, extrinsic evidence of his prior inconsistent statement was inadmissible. Id. The
admissibility of the sworn statement was the only issue trial counsel raised on direct appeal. Id. at
*2.
On March 8, 2000, the petitioner filed a pro se petition for post-conviction relief alleging,
inter alia, ineffective assistance of counsel. Post-conviction counsel was appointed, and on
November 2, 2000, an amended petition for post-conviction relief was filed. The petitioner asserted
in his pro se and amended petitions that his trial counsel provided ineffective assistance at trial and
on appeal by, inter alia, failing to adequately communicate with the petitioner prior to trial; failing
to interview and subpoena several potential witnesses in the case, including Ging Sam Lee; failing
to have the petitioner mentally evaluated; failing to request that the bullet in the petitioner’s leg be
removed and subjected to ballistics testing; failing to hire an investigator; instructing the petitioner
not to testify; failing to request that the trial court instruct the jury on the lesser-included offenses
of facilitation, reckless homicide, and criminally negligent homicide; and failing to preserve and
raise all relevant issues in the direct appeal of the case.
The petitioner testified through an interpreter at the September 7, 2001, evidentiary hearing.
He said that he had only a sixth to eighth grade education and could not understand English very well
at the time of trial. His present understanding of English was better; nonetheless, he could still
understand only about twenty to thirty percent of what was said. Thus, he required an interpreter to
assist him in understanding all aspects of the proceeding. The petitioner testified that trial counsel
met with him only four or five times prior to trial, without an interpreter. Trial counsel did not
discuss his educational limitations or cultural background and did not request a mental evaluation.
Trial counsel also did not discuss trial strategies or defenses with him prior to trial. The petitioner
said that an interpreter was assigned to assist him during his trial. However, the interpreter did not
translate everything that was said because the interpreter, himself, was unable to understand the full
trial proceedings.
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The petitioner testified that trial counsel failed to request removal of the bullet from his leg
for testing. He believed that testing of the bullet would have shown that it came from his
codefendant’s gun, thereby providing support for his position that he was forced by his companions
to participate in the crime. He said that he had wanted to testify at trial, and that he believed his
testimony would have helped his case. However, trial counsel told him not to testify and instructed
the interpreter to tell the trial court that he did not want to testify. The petitioner additionally
complained about trial counsel’s failure to interview or call several potential witnesses at his trial,
specifically, Jerry Lloyd, who had notarized a statement made by Van Chung; David Johnson, who
had witnessed the sworn statement Van Chung gave to the petitioner; and Ging Sam Lee, whose
testimony, the petitioner asserted, would have supported his claim that his participation was coerced.
The petitioner acknowledged on cross-examination that Heck Van Tran had testified on his behalf,
and that Hung Van Chung, who they had originally thought would testify in accordance with his
sworn statement, had changed his story at trial. He further acknowledged that trial counsel had told
him that Ging Sam Lee would not help his case.
Trial counsel testified that he had been a licensed and practicing attorney in Tennessee for
twenty years. The trial court first appointed him to represent the petitioner in response to a motion
filed by the State, soon after the petitioner’s arrest in Canada, seeking to depose the elderly
eyewitness in the case. Trial counsel said that he successfully opposed that motion on the basis that
he had not yet had the opportunity to discuss the case with his client. During the lengthy extradition
process that followed, the petitioner was represented by Queens Court counsel in Canada, with
whom trial counsel had three or four telephone conversations. In addition to discussing the case with
the petitioner’s counsel in Canada, trial counsel received and reviewed all documents that had been
submitted in the petitioner’s extradition proceedings, and reviewed the trial transcripts and
evidentiary filings from two codefendants’ trials. He also reviewed the statements that had been
made to the police by the petitioner’s codefendants following their arrests.
Trial counsel testified that he had several discussions with the petitioner about the evidence
against him. An interpreter was not present for these meetings; the petitioner spoke English, and it
was obvious to trial counsel that he understood their conversations. Trial counsel said that he
requested an interpreter for trial because he thought the petitioner might need assistance with some
of the more technical and legal terms that would be used. The petitioner’s consistent position was
that his participation in the robbery had been coerced, and he was able to obtain sworn statements
from both Heck Van Tran and Hung Van Chung to that effect. These sworn statements, however,
contradicted the statements they had given police immediately after their arrests, in which they had
fully implicated the petitioner in the crime.
Trial counsel testified that Van Tran testified in accordance with his sworn statement that the
petitioner had been coerced into participating in the crime. Van Chung, however, who originally told
trial counsel that he would testify on the petitioner’s behalf, later reneged, telling trial counsel that
the petitioner had tricked and threatened him into making his statement, and that he was going to tell
the truth if called as a witness at his trial. Although trial counsel was not certain, he thought that the
State had called Van Chung as a witness during its case in chief. He said that he was able to cross-
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examine Van Chung about the sworn statement, although he was not able to get the statement itself
admitted into evidence.
Trial counsel testified that he subpoenaed Jerry Lloyd, the woman who notarized Van
Chung’s statement, but there was no need to call her to the stand because Van Chung admitted
making the statement. He said that after Van Chung’s testimony, the petitioner gave him the names
of two other people, one being David Johnson, whom the petitioner said were present in the jail
when Van Chung gave the statement to the petitioner, and who would be able to testify regarding
what Van Chung had said at that time. Because he had not asked Van Chung about any prior
inconsistent statements, the trial court would not allow him to put Johnson on the stand, but did
allow him to make an offer of proof as to what his testimony would be. Trial counsel said that the
petitioner had wanted him to call Ging Sam Lee to testify that the petitioner did not shoot anyone
during the robberies. According to trial counsel, this was the only information Ms. Lee could have
provided that would have helped the petitioner. However, there was never any dispute that the
petitioner had not shot anyone, and trial counsel did not think “having an . . . octogenarian little
Vietnamese [sic] woman having to relive the . . . worst day of her entire life in front of a jury” would
be helpful to the petitioner’s defense. Trial counsel said that there was also no dispute that the
petitioner had been shot, and, since no weapons were recovered, there would have been no benefit
to having the bullet in the petitioner’s leg tested. He had no doubt that the petitioner was competent,
as the petitioner never gave him any indication that he was suffering from any mental defect or
disease. According to trial counsel, the petitioner “knew exactly what was going on” and was “quite
on top of it.”
On cross-examination, trial counsel testified that he did not see how hiring a private
investigator would have helped the case. He said he talked with the petitioner’s family, but they
were unable to provide support for the petitioner’s claim that he was coerced. He had not filed a
motion in limine to exclude the videotape of the crime scene because he thought it helped the
petitioner’s defense of coercion. He explained his strategy:
My client was claiming coercion as a defense. In my opinion and my
tactics were, the more gruesome I could show that these other people
were, the ones that I was saying was [sic] coercing my client, the
better my argument would be that yes, he was coerced. Look at what
these people do. Look at how gruesome, how horrible these people
are. This was the coercion I was trying to convince the jury that he
was under at that time. I didn’t want to limit it. I wanted to show just
how horrible it was.
Trial counsel testified that there was no doubt about what had happened at the scene or that
the petitioner had been present; the only question was whether the petitioner had been a willing
participant. He conceded he had allowed the State to ask leading questions of some of its witnesses
at trial, but said that it was not on any critical points. Trial counsel explained that a little leading was
required in order to get through the testimony, since the witnesses were not native English speakers.
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Trial counsel testified that he had advised the petitioner to testify, but the petitioner was adamant that
he did not want to take the stand. Trial counsel was confident that the petitioner understood his
rights and knew what he was saying when he told the trial court he did not want to testify. Trial
counsel said that he raised the only issue on appeal that he thought had any merit, which was the
admissibility of Van Chung’s sworn statement. He thought it would have been frivolous for him to
have raised a sufficiency of the evidence issue on appeal.
On September 25, 2001, the post-conviction court entered an order denying the petition for
post-conviction relief, finding that trial counsel’s performance fell “within the range of competency
demanded by an attorney in a criminal case,” and that counsel’s representation of the petitioner
“complied with the requirements set out by the Supreme Court of Tennessee in Baxter v. Rose, 523
S.W.2d 930.” Thereafter, the petitioner filed a timely appeal to this court.
The only portion of the petitioner’s trial transcript originally included in the record on appeal
was voir dire of the jury and opening and closing arguments of counsel. This court denied post-
conviction counsel’s motion to supplement the record with the entire trial transcript, finding that
counsel had had the opportunity to introduce the trial transcript as an exhibit at the post-conviction
hearing but had failed to do so. However, because our initial review of the record revealed that the
post-conviction court’s order denying relief refers to a portion of the trial transcript that was not
included in the original record on appeal, we subsequently entered an order requesting that the entire
transcript be sent to this court. Accordingly, for the purposes of this appeal, we have reviewed not
only the transcript of the post-conviction evidentiary hearing, but also the entire transcript from the
petitioner’s trial. See Tenn. R. App. P. 24(g) (providing that record may be supplemented “as may
be necessary to convey a fair, accurate and complete account of what transpired in the trial court with
respect to those issues that are the bases of appeal”).
ANALYSIS
I. Failure to Instruct on Lesser-Included Offenses
The petitioner first contends that this court should consider, under the “plain error” doctrine
of Tennessee Rule of Criminal Procedure 52(b), whether the trial court erred in failing to instruct the
jury on the lesser-included offenses of facilitation, reckless homicide, and criminally negligent
homicide. The plain error doctrine, however, is not applicable in a post-conviction proceeding.
See State v. West, 19 S.W.3d 753, 756 (Tenn. 2000). The petitioner did not raise the trial court’s
failure to instruct on these lesser-included offenses in either his motion for a new trial or in his direct
appeal. Consequently, the petitioner has waived the issue and cannot now raise it for the first time
in a petition for post-conviction relief.
Moreover, even if not waived, the petitioner would not be entitled to relief on this claim. The
petitioner was convicted of offenses that occurred on October 20, 1987. Although facilitation has
been held to be a lesser-included offense to felony murder, see State v. Ely, 48 S.W.3d 710, 720
(Tenn. 2001); State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000), Tennessee Code Annotated section
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39-11-403, “Criminal responsibility for facilitation of a felony,” was not enacted until 1989. See
Tenn. Code Ann. § 39-11-403 (1997). Similarly, neither reckless homicide, enacted by the Public
Acts of 1993, nor criminally negligent homicide, enacted by the Public Acts of 1989, existed in
1987. See id. §§ 39-13-215, -212. Therefore, the trial court did not err by failing to instruct the jury
on offenses that did not exist at the time the petitioner committed the crimes.
II. Ineffective Assistance of Counsel
The petitioner next contends that the post-conviction court erred in finding that he received
the effective assistance of counsel at trial and on appeal. He argues that trial counsel was ineffective
at trial, inter alia, for: failing to make use of an interpreter in conversations with the petitioner prior
to trial and hiring an incompetent interpreter at trial; permitting the prosecutor to make extensive use
of leading questions on direct examination; failing to call Ging Sam Lee as a witness;“coercing” the
petitioner not to testify; and failing to present an alternative defense when faced with Van Chung’s
recantation of his sworn statement. He argues that trial counsel was ineffective on appeal for failing
to raise all relevant issues, including whether the trial court erred in failing to instruct the jury on the
lesser-included offenses of facilitation, reckless homicide, and criminally negligent homicide. The
State argues that the post-conviction court did not err in finding that the petitioner failed to meet his
burden of demonstrating that he was denied the effective assistance of counsel at trial or on appeal.
We agree with the State.
The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-210(f). When an evidentiary hearing is held
in the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless
the evidence preponderates against them. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual
issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to the facts
of the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96
(Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions of fact
and law, is reviewed de novo, with a presumption of correctness given only to the post-conviction
court’s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns, 6 S.W.3d at
461.
To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient, and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064, 80 L. Ed. 2d 674 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The Strickland standard is a two-prong test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
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that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
466 U.S. at 687, 104 S. Ct. at 2064.
The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Because both prongs of the test must be satisfied, a failure to show either deficient
performance or resulting prejudice results in a failure to establish the claim. See Henley, 960 S.W.2d
at 580. For this reason, courts need not approach the Strickland test in a specific order or even
“address both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance
claim”).
A. Language Barrier and Failure to Communicate
The petitioner complained at his evidentiary hearing about trial counsel’s failure to hire an
interpreter to assist in his pretrial conversations with the petitioner, failure to hire a competent
interpreter at trial, failure to discuss trial strategies with the petitioner, and failure to request that the
petitioner be mentally evaluated. With regard to these allegations, the post-conviction court found
that trial counsel had adequate discussion with the petitioner, and that there was “no indication that
the [petitioner] needed to be mentally evaluated prior to trial and there is still no indication that an
evaluation would have been appropriate[.]” The court further found that the petitioner was able to
understand and communicate in English, noting that when the petitioner became excited at the post-
conviction hearing he was able to respond to questions without the aid of the interpreter.
The evidence supports the post-conviction court’s findings of fact. The petitioner asserted
at the post-conviction hearing that he had only a sixth to eighth grade education, that his
understanding of English was extremely limited, and that trial counsel, who met with him without
an interpreter, failed to discuss defense strategies or to inquire into his educational limitations or
cultural background. Trial counsel, by contrast, testified that the petitioner obviously understood
English, and that he gave no indication he was suffering from any mental defect. He said that he had
several discussions with the petitioner regarding the evidence against him, and that the petitioner,
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who was “on top of it,” played an active role in his defense, obtaining the sworn statement from Van
Chung when Van Chung’s post-conviction counsel would not allow Van Chung to meet with trial
counsel. The post-conviction court, which had the opportunity to observe the petitioner in person,
also found it “obvious” the petitioner was able to understand and communicate in English. The
petitioner, therefore, is not entitled to post-conviction relief on these claims.
B. Failure to Object to Leading Testimony
The petitioner argues that trial counsel was ineffective for failing to object to the
prosecution’s extensive use of leading questions on direct examination. We first note that the
petitioner has failed to cite any portion of the trial transcript in support of this claim. Ordinarily,
failure to make appropriate citations to the record waives an issue on appellate review. See Tenn.
R. App. P. 27(a)(7); Tenn. Ct. Crim. App. R. 10(b). Regardless of the waiver, we conclude that the
petitioner has not shown that trial counsel was deficient for failing to object to the prosecutor’s
leading, or that he was prejudiced as a result. Trial counsel conceded at the evidentiary hearing that
he had not objected to the prosecutor’s leading questions. Trial counsel explained, however, that he
thought a certain amount of leading was necessary in order to get through the testimony, due to the
witnesses’ language difficulties. Moreover, he said that he had not allowed leading on any important
points in the testimony.
Based on our review of the trial transcript, we agree with trial counsel that some leading was
required in this case. Many of the State’s key witnesses were obviously not fluent in English.
Eliciting and understanding testimony from such witnesses proved difficult, as the following
exchange between the prosecutor and State witness Hien Huynh reveals:
Q After you talked to Heck on the phone, what did you do?
A On the phone, he telled me – asked me to buy for –
[TRIAL COUNSEL]: Your Honor –
Q Not what he said; what did you do[?]
A (No audible response.)
Q What did you do after you talked to him[?]
A I go buy some alcohol.
Q You went and bought alcohol?
A Yes, sir.
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Q What kind of alcohol? – drinking alcohol?
A No. For – for his skin – sometime you get cuts or –
Q Okay. What else did you buy?
A And, uh, cot – I don’t know what they say on –
Q Cotton balls?
A Yes, sir.
Q And once you bought the alcohol and the cotton balls, what did
you do?
A He tell me bring it up there.
Q Say that again.
A He tell me bring it to –
Q [TRIAL COUNSEL]: Your Honor, please –
THE COURT: No. Let him answer. I mean, just take your time
and be as clear as you can.
THE WITNESS: Yes, sir.
....
Q Okay. Now, what did you do with the alcohol and the cotton
balls?
A When I get there, and they – after that, they – they didn’t take the
alcohol (indiscernible).
THE COURT REPORTER: I didn’t understand the last of his
answer.
THE COURT: Okay. Now, would you repeat your last answer?
The court reporter couldn’t understand you.
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THE WITNESS: I said when I get there and Heck – they don’t
receive the alcohol, but they are – after that they left.
THE COURT REPORTER: And after, what?
THE WITNESS: When I get there, and they didn’t receive the
alcohol, and they left – after that they left.
THE COURT REPORTER: They didn’t receive the alcohol?
THE WITNESS: No. I didn’t give it to them.
THE COURT: Could you repeat that again?
A I bring the alcohol over to Viet’s house, and, uh, after I seen Heck
and Hung, they left – and they didn’t get the – the alcohol.
THE COURT: Do you mean they did not take the alcohol from
your hands?
THE WITNESS: No, sir.
THE COURT: All right.
Even if trial counsel had objected to the State’s leading questions, it is unlikely that the trial
court would have sustained the objection. It is within the discretion of the trial court whether to
allow the use of leading questions on direct examination, and its decision in this regard will not be
reversed absent an abuse of discretion. Mothershed v. State, 578 S.W.2d 96, 99 (Tenn. Crim. App.
1978). As the above quoted portion of the trial transcript reveals, the trial court was itself forced to
ask Huynh at least one leading question in order to clarify his somewhat muddled and
incomprehensible testimony. Although trial counsel did not object to the form of the questions, the
record reflects that he raised numerous other objections during the testimony of the State’s non-
native English speaking witnesses, including objections based on hearsay, and the proper scope of
the State’s direct examination. Responding to one such objection raised by trial counsel during
Huynh’s testimony, the trial court stated: “The way he’s responding, I’m going to give the state
some latitude – just as much as I’m going to give you.”
C. Failure to Call Ging Sam Lee as Witness
The petitioner argues that trial counsel was deficient for failing to call John Lee’s elderly
mother, Ging Sam Lee, as a witness at his trial. He asserts that Ging Sam Lee could have provided
crucial support for his claim that his participation in the crime was coerced, and that trial counsel’s
failure to call her as a witness likely prejudiced the outcome of his trial. However, the petitioner
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failed to offer proof of how the testimony of Ging Sam Lee, who did not testify at the evidentiary
hearing, would have supported his claim of coercion. Trial counsel, who said that he had reviewed
her statements and prior testimony, testified that the only favorable testimony that Ging Sam Lee
could have provided, that the petitioner did not shoot anyone, had already been established through
other evidence. He, therefore, decided that the risks of having an elderly woman in frail health
appear before the jury to describe the horrific events that had occurred to her and her family far
outweighed any benefit that might be gained from her testimony.
Trial counsel explained on cross-examination:
Q. With regards to Ms. Lee, the only surviving family member who
was there at the restaurant.
A. Right.
Q. What in essence was her statement?
A. That he didn’t kill anybody. He didn’t shoot anybody.
Q. Did she have any information whatsoever or given any
information whatsoever to indicate he wasn’t a willing participant?
A. Of course, I haven’t looked back through my file. It’s been part
of the record or been here. But to the best of my knowledge, I cannot
remember anything that she could have said or had said. As a matter
of fact, one of the statements that she gave, that went to the
extradition proceeding, that he you know, he had been shot, that he
didn’t shoot anybody, that he did get shot, but as I said, her having to
be wheeled in here if they could even wheel her in here, she was in
such dire health at the time, to go through what had to have been the
most horrible, horrible day of her life, nothing that she could have
said would have outweighed that.
Q. Was there any indication to the best of your recollection in her
statement that he was ever wielding a gun?
A. I believe her statement that she didn’t see him with the gun, but
even he admits that he had a gun. Like he said here on the stand, he
had the gun where he had it[.]
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Relative to this allegation of ineffective assistance, the post-conviction court found that the
decision not to call Ging Sam Lee as a witness at trial was “a well thought out trial decision made
by the trial attorney.” The record fully supports this finding.
D. Petitioner’s Failure to Testify
The petitioner alleges that trial counsel “coerced” him into not testifying by telling him that
he could not testify and having the interpreter answer “no” on his behalf when the trial court asked
if he wished to take the stand. In considering this allegation, the post-conviction court first noted
trial counsel’s testimony that he had explained to the petitioner his right to testify or not testify, and
that the decision had been left to the petitioner. The court also noted that the trial transcript reflected
that the trial court voir dired the petitioner concerning his right to testify, and the petitioner stated
that he had decided not to testify in his own behalf. Thus, the court found that the decision not to
testify had been freely and voluntarily made by the petitioner.
The record fully supports this finding. The trial transcript reflects that the following voir dire
of the petitioner was conducted through his interpreter, Kham Chamleunsouk:
BY [TRIAL COUNSEL]:
Q Mr. Bounnam, we have discussed – you and I have discussed
whether or not you’re going to take the stand and testify in your own
behalf in this case, haven’t we?
(Question translated).
(Mr. Bounnam to Mr. Chamleunsouk.)
[TRIAL COUNSEL]: You’ll need to speak up too.
THE COURT: You need to answer for the record.
A (Interpreter) Yes.
(Mr. Bounnam to Mr. Chamleunsouk.)
[TRIAL COUNSEL]: K.C., you need to answer for the record.
MR. CHAMLEUNSOUK: Oh. Okay.
(Mr. Bounnam to Mr. Chamleunsouk/ Mr. Chamleunsouk to Mr.
Bounnam/Bounnam to Mr. Chamleunsouk.)
A ( Interpreter) He don’t want to take the stand.
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(Mr. Bounnam to Mr. Chamleunsouk.)
Q ([Trial counsel]) It is your decision not to take the stand. Is that
correct? (Question Translated.)
A (Interpreter) Yes.
[TRIAL COUNSEL]: That’s all I have.
THE COURT: Okay. Would you tell Mr. Bounnam I’m going to
tell the jury that the fact he did not testify (translated) they cannot
hold that against him for any purpose whatsoever (translated).
MR. BOUNNAM: (Interpreter) Yes.
THE COURT: Okay. Are you clear in your mind you do not wish
to testify (translated)?
MR. BOUNNAM: (Interpreter) Yes.
THE COURT: You do understand you have the right to testify
(translated)?
MR. BOUNNAM: (Interpreter) Yes.
According to his trial testimony, the petitioner voluntarily chose not to take the stand after
having been fully informed by the trial court of his right to testify. The petitioner provided no proof
at the evidentiary hearing in support of his claim that his interpreter failed to accurately translate
either the trial court’s words, or his own. Furthermore, had the interpreter made an erroneous
translation on such an important point, it would appear unlikely that the petitioner would not have
realized the mistake, given trial counsel’s testimony that the petitioner’s English skills were adequate
for them to communicate without the aid of an interpreter. We conclude, therefore, that the
petitioner is not entitled to relief on this claim.
E. Failure to Present Alternative Defense or Raise Additional Issues on Appeal
The petitioner contends that trial counsel was ineffective for failing to develop or present an
alternative defense when confronted with Van Chung’s recantation of his sworn statement. He
asserts that, instead of continuing with his “all-or-nothing” defense, trial counsel should have
developed facts that would have allowed the jury to convict him of the lesser-included offenses of
facilitation, reckless homicide, or criminally negligent homicide. The petitioner additionally
contends that trial counsel was ineffective for not raising the trial court’s failure to charge these
lesser-included offenses as an issue in his appeal. However, as we have previously discussed, the
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statutes creating these offenses had not been enacted at the time the petitioner committed the crimes.
Trial counsel, therefore, was not deficient for failing to develop a defense based on the offenses, or
for failing to raise the lack of jury instructions as to these offenses as an issue on appeal.
Furthermore, when assessing a claim of ineffective assistance of counsel, this court must
indulge in a strong presumption that the conduct of counsel fell within the range of reasonable
professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, and may not second-
guess the tactical and strategic choices made by trial counsel unless they were uninformed because
of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). It is difficult to
envision what alternative defense trial counsel could have developed, in light of the evidence against
the petitioner. Trial counsel based his defense of coercion on the petitioner’s claim, maintained
throughout, that his participation in the crime was forced. Although Van Chung recanted from his
sworn statement, Van Tran testified on the petitioner’s behalf, offering support for the petitioner’s
claim of coercion. The fact that a strategy or tactic failed does not alone support the claim of
ineffective assistance of counsel. See Thompson, 958 S.W.2d at 165. We, therefore, conclude that
the petitioner has failed to meet his burden of demonstrating either a deficiency in counsel’s
performance or a resulting prejudice based on counsel’s failure to develop an alternative defense.
CONCLUSION
We conclude that the petitioner has failed to meet his burden of demonstrating that he was
denied the effective assistance of counsel at trial or on appeal. Accordingly, we affirm the post-
conviction court’s denial of the petition for post-conviction relief.
___________________________________
ALAN E. GLENN, JUDGE
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