State v. Kong Bounnam ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION
FILED
STATE OF TENNESSEE, * C.C.A. # 02C01-9803-CR-00095
Appellee, * SHELBY COUNTY
August 16, 1999
VS. * Hon. L. Terry Lafferty, Judge
KONG CHUNG BOUNNAM, * (Murder in the Perpetration of a Felony,
Three Counts, and Robbery with a
Cecil Crowson, Jr.
Appellant. * Deadly Weapon, Four Counts)
Appellate Court Clerk
For Appellant: For Appellee:
Charles P. Roney, Attorney John Knox Walkup
P.O. Box 542 Attorney General and Reporter
Union City, TN 38281-0542
Elizabeth T. Ryan
Assistant Attorney General
425 Fifth Avenue North, Second Floor
Cordell Hull Building
Nashville, TN 37243-0493
Robert Carter and Daniel Byer
Assistant District Attorneys General
District Attorney General's Office
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Kong Chung Bounnam, was convicted on three counts
of murder in the perpetration of a felony and four counts of robbery with a deadly
weapon. The trial court sentenced the defendant to terms of life on each of the
murder convictions and to terms of twenty-five years for each robbery conviction.
Two of the three life sentences were ordered to be served consecutively. Each of
the four robbery terms were ordered to be served concurrently but consecutively to
the sentences for murder.
In this appeal of right, the defendant contends that the trial court erred
by excluding as evidence a sworn statement by Hung Van Chung, who was tried
separately for the same offenses. We find no error and affirm the judgment of the
trial court.
On October 20, 1987, the victims, Arthur Lee, Amy Lee, and Kai Yin
Chuey, were shot and killed in a robbery at the Jade East Restaurant in Memphis.
John Lee, the owner of the restaurant, had five children, all of whom worked in the
restaurant at various times. Ging Sam Lee, the mother of John Lee, and Kai Yin
Chuey, the mother of Mrs. John Lee, also worked in the restaurant, as did Amy Lee,
the wife of Mr. and Mrs. John Lee's son, Chester Lee. Jerry Lee, the oldest son,
operated a jewelry business in the restaurant. Mr. and Mrs. John Lee's other
children were Arthur Lee, who was the manager of the restaurant, and Jeff and
Jessie Lee.
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 defendant entered an open back door and Chung said, "We're
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looking for a job." The defendant 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 defendant, 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 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 defendant limped towards his car, bleeding from a
wound to the leg. The defendant, 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.
Duc Phuoc Doan, Heck Van Tran, and Hung Van Chung, all
Vietnamese, had planned the robbery on the day before. The defendant, who is
Laotian and who speaks a different language from the others, learned of their plans
on the date of the robbery and murders. Hien Huynh was aware of their plans to rob
the restaurant and the defendant was transported to Huynh's residence immediately
after the robbery. Van Tran was unable to remove the bullet from the defendant's
leg. On October 23, three days after the murders, the police questioned Duc Phuoc
Doan. He admitted to police on October 27 that he had participated in the crimes.
The defendant, Van Tran, and Van Chung left the state but were arrested sometime
later. Van Chung pled guilty to the murders and robberies and received two
consecutive life sentences. Van Tran was convicted of the crimes and sentenced to
death. State v. Heck Van Tran, 864 S.W.2d 465 (Tenn. 1993).
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Huynh had apparently provided the men with information about the
location of the jewelry inside the Jade East Restaurant. According to Van Chung,
the defendant was not originally involved in the plan but was included later at the
request of Van Tran. All four of the men involved in the robbery had weapons. Van
Chung and Phuoc Doan had .22 caliber automatic weapons, Van Tran a .22 caliber
revolver, and the defendant a .44 Magnum. The defendant was instructed not to fire
his weapon because it was too loud and might be heard.
The defendant left the state with Van Chung and Van Tran within an
hour after the commission of the crimes. The three men drove to Washington, D.C.,
where they left the jewelry, and then to Houston, Texas. An unidentified person met
them in Houston and gave them $5,000.00. The defendant stayed in Texas for
about two months until his leg healed and then flew to either North Carolina or
South Carolina to stay with an uncle.
Huynh denied being involved in the planning of the robbery but
admitted receiving a telephone call wherein he was asked to buy some rubbing
alcohol and cotton balls, apparently to be utilized for the treatment of the
defendant's wound. Huynh stated that he met Van Tran and Van Chung at a
residence sometime after the robbery but contended that the defendant was not
present.
At trial, Van Tran admitted his participation in the robbery, claimed that
his gun went off when Kai Yin Chuey fell into his arms, and acknowledged having
shot Arthur Lee. He explained that he shot Kai Yin Chuey a second time because
he thought she had something in her hand. Van Tran maintained that the defendant
stayed only one day in Texas before he was paid to go away.
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Gary Bradley Wright saw an Asian driver leave the Jade East parking
lot in a blue Camaro near the time of the robbery. W hen Wright stopped at the post
office, he saw an Asian woman screaming for an ambulance. That evening, Wright
contacted police and later made a positive identification of the Camaro. Wright was
able to identify the defendant from several photographs as the driver of the vehicle.
After receiving information from Wright and from Crime Stoppers, Sergeant Dennis
Hodges obtained the names of the defendant, Van Tran, and Van Chung. Hodges
questioned Duc Phuoc Doan who admitted his participation in the crimes and who
identified the three other participants. Ultimately, the defendant was extradited from
Ontario, Canada.
An autopsy revealed that Kai Yin Chuey died from two gunshot
wounds, one to the right jaw and the other to the top of her head. Amy Lee died
from a contact gunshot wound which traversed through her brain. Both were killed
by .22 caliber bullets. Arthur Lee was shot eight times. All of the wounds were
caused by .22 caliber bullets. While any one of the shots would have caused Lee's
death, the bullet which penetrated the right temple caused instantaneous death.
During the course of the trial, the defense attempted to offer into
evidence a sworn statement of Hung Van Chung. The content of the statement
apparently conflicted with his trial testimony. Generally, extrinsic evidence of
impeachment is inadmissible except under the terms of Tenn. R. Evid. 613(b):
Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded
an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate
the witness thereon, or the interests of justice require
otherwise. This provision does not apply to admissions
of a party opponent as defined in Tenn. R. Evid.
803(1.2).
See State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). The purpose of Rule
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613(b) is to allow introduction of otherwise inadmissible extrinsic evidence for
impeachment. State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998). A prior
inconsistent statement introduced for purposes of impeachment may be considered
only on the issue of credibility and not as substantive evidence. Reece, 637 S.W.2d
at 861. Extrinsic evidence of a prior inconsistent statement remains inadmissible
when a witness unequivocally acknowledges having made the prior statement.
Martin, 964 S.W.2d at 567. When presented with a prior inconsistent statement a
"witness has several possible responses: the witness can admit, deny, or not
remember making all or part of the statements." Neil P. Cohen, Sarah Y.
Sheppeard, and Donald F. Paine, Tennessee Law of Evidence § 613.4 (3rd ed.
1995 & Supp. 1998). If the witness admits making the prior inconsistent statement,
any extrinsic proof of the statement would be cumulative. Id.
During the examination of Van Chung by the state, he admitted that he
had signed a paper prepared by the defendant in which Van Chung had stated that
he had forced the defendant to participate in the robbery; the statement included an
admission by Van Chung that he had shot the defendant during the course of the
robbery. At trial, Van Chung testified as follows:
I signed the paper because I checked with him. I thought
I signed a piece of paper ... his witness, you see. Then
later he give me a copy. He said I shoot him. I made
him do all them things. I never did anything to him.
After signing the statement, Van Chung testified that he did not force
the defendant to participate in the robbery and that the defendant was a free and
willing participant. On cross-examination, Van Chung admitted that he had signed
the document under oath in the presence of a notary public. Van Chung admitted
signing a statement which, in part, provided as follows:
I asked God to forgive me, and I asked [the defendant]
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Bounnam to forgive me for making him get involved in
something he ... wanted no part of.
Van Chung also admitted that he had made a similar statement to defense counsel
during their investigation. Van Chung then explained that the defendant had "asked
me to lie to you." Van Chung contended that he had been "tricked" by the
defendant into signing the statement. He explained that by signing the document,
he thought he was simply agreeing to be a witness for the defendant. Van Chung
explained he could not read English very well.
In Martin, our supreme court ruled that "extrinsic evidence remains
inadmissible until the witness either denies or equivocates as to having made the
prior inconsistent statement. 964 S.W.2d at 567. Here, because Van Chung
acknowledged during his trial testimony having made the statement but denied the
truthfulness of its content, the trial court properly excluded the written statement. In
context, however, any error would have been harmless. The jury heard during
cross-examination the content of the statement and observed the defendant's
concession that he had made the statement under oath. The overwhelming
evidence of his participation in the robbery and the resultant death of the victims
was such that, in our view, the introduction of the affidavit would not have had any
effect on the results of the trial.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
Thomas T. Woodall, Judge
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