State v. Bao Nguyon ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION
FILED
STATE OF TENNESSEE, * C.C.A. # 02C01-9801-CR-00004
Appellee, * SHELBY COUNTY August 25, 1999
VS. * Hon. Chris Craft, Judge
NGUYON BAO, * (Two Counts of Attempted FirstCrowson, Jr.
Cecil Degree
Murder and One Count of Attempted
Appellant. * Second Degree Murder)Appellate Court Clerk
For Appellant: For Appellee:
Gerald Stanley Green, Attorney Paul G. Summers
147 Jefferson Avenue, Suite 404 Attorney General and Reporter
Memphis, TN 38103
(on appeal) Michael E. Moore
Solicitor General
W. Gary Ball, Attorney
242 Poplar Avenue J. Ross Dyer
Memphis, TN 38103 Assistant Attorney General
(at trial) Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Amy P. Weirich and
Daniel S. Byer
Assistant District Attorneys General
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Nguyon Bao, was convicted on two counts of
attempted first degree murder and one count of attempted second degree murder.
The trial court imposed consecutive Range I sentences of twenty years and fifteen
years respectively on the convictions for attempted first degree murder and a
concurrent ten-year sentence for the attempted second degree murder count. The
effective sentence is, therefore, thirty-five years. In this appeal of right, the issues
presented for review are as follows:
(1) whether the trial court erred by allowing the state to
file a notice of its intention to use impeachment testimony
after the trial had begun;
(2) whether the defendant was deprived of his right to
confrontation of a witness; and
(3) whether the trial court erred by imposing consecutive
sentences on the attempted first degree murder
convictions.
We affirm the judgment of the trial court.
At 3:00 A.M. on April 22, 1995, Khanh Lam, originally from Vietnam,
arrived from work at a two-bedroom apartment he shared with Linh Nguyen, a co-
worker he identified as Si, and a friend, Thien Nguyen. After showering and eating,
Lam went to sleep in a room he shared with Thien. Lam, who was awakened by the
sound of breaking glass, saw four men, two of whom he recognized, standing in his
bedroom. He knew one of the individuals only as Duc. The other was the
defendant. At trial, Lam testified that he saw the defendant punching or stabbing at
Thien with a shiny object. Lam estimated that the defendant stabbed Thien, who
was bleeding profusely, about six times. Lam testified that he tried to help but was
pulled to the ground; when he tried to rise, the four individuals ran from the
apartment.
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Lam called police and Thien was taken to the hospital. After making a
statement at the police station, Lam returned to his apartment and discovered that
he had also been cut by what appeared to be a knife held by the defendant. Lam
described Thien's primary injuries to the arm. As he and Linh treated Thien,
however, they also discovered wounds to his legs, stomach, and his chest. Thien
was hospitalized for four weeks.
Sergeant J.W. Bouchillon investigated the assault that occurred at the
Lam apartment. He arrived at approximately 5:00 A.M. and confirmed that the
witnesses at the scene had identified the defendant.
After the incident, Lam moved into the residence of his fiancé,
Kimberly McPherson, who lived with her mother. Thien Nguyen moved into the
same residence after his release from the hospital. On June 7, 1995, Ms.
McPherson was driving Lam's Toyota Supra in the company of Thien Nguyen, who
was on his way to receive physical therapy. During the trip, Ms. McPherson drove
past the defendant, who was in his truck. Afterward, Ms. McPherson looked into her
rear view mirror and observed the defendant shooting a gun in the direction of her
vehicle. Three individuals who were in the back of the truck were also shooting in
their direction. Ms. McPherson recognized Duc Nguyen, who was a passenger
inside the defendant's truck, the same individual who had participated in the first
attack on Thien Nguyen. Ms. McPherson fled in her vehicle. "I pushed my turbo
button and floored it." The Toyota was scratched by the gunfire. Ms. McPherson
drove downtown, got out of her car, and ran to the courthouse building to seek
assistance from the police. Ms. McPherson later called the police after seeing the
defendant's truck parked outside a local pool hall.
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Officer Richard Pollard of the Memphis Police Department investigated
this second incident. In response to Ms. McPherson's call, he drove to the pool hall
and arrested Hien Tran, who Ms. McPherson identified as a passenger in the
defendant's truck. The officer impounded the truck, which he learned was stolen,
and conducted an inventory. A .22 caliber weapon was found behind the driver's
seat of the defendant's truck. No tests were made on the weapon found in the
vehicle. In July of 1995, Officer Brian Dehaan apprehended the defendant hiding in
a garage at 120 North Claybrook in Memphis.
The defendant did not testify and offered no witnesses on his behalf.
I
Initially, the defendant complains that the state did not provide timely
notice of its intention to use impeachment testimony. After presenting Lam as its
first witness, the state announced that it had just learned that the defendant had
been arrested some five months earlier on an aggravated assault charge. After his
arrest, the defendant informed officers that his name was Long Thanh Tong. Trial
counsel in this case, Gary Ball, represented the defendant in general sessions court
on the earlier charge. The state explained that it had not learned of the prior
incident until the date of trial because the defendant had supplied false
identification. After a brief argument outside the presence of the jury, the trial court
ruled that the state could use the impeachment evidence.
In pertinent part, Rule 608(b)(3) provides that "[i]f the witness to be
impeached is the accused in a criminal prosecution, the State must give the
accused reasonable written notice of the impeaching conduct before trial, and the
court upon request must determine that the conduct's probative value on credibility
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outweighs its unfair prejudicial effect on the substantive issues." Tenn. R. Evid.
608(b)(3). "[T]here may be instances where the prosecution would not discover the
accused's bad acts until after the trial begins, making pretrial notice impossible; in
such cases immediate notice and a hearing on the issue before the accused
testifies should satisfy the spirit of the rule." Advisory Commission Comments,
Tenn. R. Evid. 608.
In this instance, the state was able to establish that the defendant
would not be prejudiced because his trial counsel was fully aware of the arrest on
the aggravated assault charge. It appears that the defendant's use of a false
identification was the very reason the state did not discover the charge until after the
trial began. Moreover, the defendant was unable to show that he had been
prejudiced by the belated notice. While the defendant chose to exercise his right
not to testify on the record and through an interpreter out of the presence of the jury,
he made no mention of the trial court's prior ruling on the impeaching evidence as a
reason for his decision not to testify.
II
Next the defendant claims that he was deprived of his right of
confrontation because a victim, Thien Nguyen, was not present at trial. The
defendant has not, however, cited any authority for his claim.
Initially, the issue has been waived for the failure of the defendant to
cite authority. Tenn. R. App. P. 27; R. Tenn. Ct. Crim. App. 10; State v. Aucoin, 756
S.W.2d 705 (Tenn. Crim. App. 1988). Moreover, the claim is without merit.
Certainly, the defendant would have been entitled to confront Thien Nguyen had he
been utilized by the state as a witness. The Sixth Amendment to the United States
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Constitution does not, however, apply in these circumstances. The fact that the
state did not call Thien as a witness does not violate the right to confrontation. State
ex rel. Byrd v. Bomar, 381 S.W.2d 280, 281-82 (Tenn. 1964).
III
Finally, the defendant claims that consecutive sentences should not
have been imposed. It is the defendant's duty, however, to prepare an adequate
record on appeal. Tenn. R. App. P. 24(b). A transcript of the sentencing hearing
was not made a part of this record. In the absence of a sufficient record, this court
must presume that the judgment of the trial court was supported by the evidence.
Smith v. State, 584 S.W.2d 811 (Tenn. Crim. App. 1979).
Had the issue been preserved, well-established principles would apply.
Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited
classifications for the imposition of consecutive sentences were set out in Gray v.
State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case our supreme court ruled that
aggravating circumstances must be present before placement in any one of the
classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the court
established an additional category for those defendants convicted of two or more
statutory offenses involving sexual abuse of minors. There were, however,
additional words of caution:
[C]onsecutive sentences should not routinely be imposed
. . . and . . . the aggregate maximum of consecutive
terms must be reasonably related to the severity of the
offenses involved.
Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the
cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,
the codification of the holdings in Gray and Taylor; consecutive sentences may be
imposed in the discretion of the trial court only upon a determination that one or
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more of the following criteria1 exist:
(1) The defendant is a professional criminal who has
knowingly devoted himself to criminal acts as a major
source of livelihood;
(2) The defendant is an offender whose record of
criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant's criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk
to human life is high;
(5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising
from the relationship between the defendant and victim
or victims, the time span of defendant's undetected
sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental
damage to the victim or victims;
(6) The defendant is sentenced for an offense
committed while on probation;
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
In Gray, our supreme court ruled that before consecutive sentencing
could be imposed upon the dangerous offender, as now defined by subsection
(b)(4) in the statute, other conditions must be present: (a) that the crimes involved
aggravating circumstances; (b) that consecutive sentences are a necessary means
1
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.
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to protect the public from the defendant; and (c) that the term reasonably relates to
the severity of the offenses.
In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our high
court reaffirmed those principles, holding that consecutive sentences cannot be
required of the dangerous offender "unless the terms reasonably relate[] to the
severity of the offenses committed and are necessary in order to protect the public
(society) from further criminal acts by those persons who resort to aggravated
criminal conduct." The Wilkerson decision, which modified somewhat the strict
factual guidelines for consecutive sentencing adopted in State v. Woods, 814
S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human
process that neither can nor should be reduced to a set of fixed and mechanical
rules." Wilkerson, 905 S.W.2d at 938.
The state asserts that the defendant qualified as a dangerous offender
who indicated little regard for human life and unhesitatingly committed crimes
involving risk to human life. Tenn. Code Ann. § 40-35-115(b)(4). The record at the
trial supports that conclusion. By the use of the applicable standards, it would
appear from the information available that consecutive sentences on two of the
three convictions was entirely appropriate.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
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CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
Thomas T. Woodall, Judge
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