Hep Bui v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia
HEP BUI
MEMORANDUM OPINION** BY
v. Record No. 1608-96-4 JUDGE CHARLES H. DUFF
DECEMBER 30, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
Rachel A. Daum (Peter D. Greenspun &
Associates, P.C., on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Hep Bui, appellant, was convicted by a jury of robbery. In
this appeal, we must decide whether the trial court erred in
admitting evidence regarding the Tri Binh Nguyen group and
appellant's unrelated prior acts with the group. We hold that
because appellant failed to object to questioning of defense
witnesses regarding the Tri Binh Nguyen group, this issue in not
properly before us. Moreover, the trial court did not err by
allowing the prosecutor to present rebuttal evidence concerning
the group to impeach appellant's alibi witnesses. Accordingly,
we affirm.
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Background
On October 28, 1995, twelve-year-old Steven Thach was
watching television when appellant knocked on his apartment door.
When Thach asked who was there, appellant responded, "Mike."
Thach opened the door, and appellant said, "I have something for
your mom. Can you hold it?" As Thach agreed to hold the
package, appellant pushed Thach down, held a gun to his head, and
said, "Don't move or I'll blow your head off." Appellant took
Thach into the bathroom, bound and gagged him, and put a mask
over Thach's head.
Thach heard appellant and three or four other men speaking
Vietnamese, Cambodian, and Spanish while they ransacked the
apartment. Thach heard the word "Sago," the name of Thach's
mother's ex-boyfriend and the father of Thach's baby brother.
Appellant and his companions stole ten bottles of wine, jewelry,
two cameras, a cellular telephone, and a VCR.
Appellant filed a motion in limine to preclude the
Commonwealth from admitting or referring to evidence of
appellant's similar cases and to appellant's gang affiliations,
arguing that this information had no probative value, or that any
probative value was outweighed by the prejudicial value. In a
hearing on that motion, the court ruled that questions regarding
"gang" membership would be relevant to the witnesses'
credibility, but agreed to deal with the issues "one by one" as
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they arose. 1
During the trial, the prosecutor cross-examined Lan Cao,
Hoang Le, and Hung Pham about their knowledge of the Tri Binh
Nguyen group. Appellant did not object to these questions.
These witnesses denied any knowledge of the group. During
cross-examination, Le Huu Le testified that neither he nor
appellant associated with this group, and he denied knowledge of
incidents involving the group at Café Lien and at Eden Center.
Appellant did not object to these questions.
The trial court then called a recess and asked how these
inquiries were relevant to the case. The prosecutor explained
that she intended to show that the witnesses were biased. The
court allowed the prosecutor to continue this line of
questioning, and again noted that there had been no objection
upon which he could rule. The trial judge said he would consider
appellant's comments during the discussion as an objection. At
this point, appellant asked for a continuing objection to this
line of questioning.
Le Huu Le continued his testimony, acknowledging that he had
been at the Willston complex in August of 1995 when Detective
Edgar Lancaster arrived. Le Huu Le denied that the Willston
complex was a "hangout pad" for the Tri Binh Nguyen group and
1
The record reflects that the trial judge exercised
commendable care to insure that the evidence was sanitized so as
to avoid the use of inflammatory language; e.g., he directed that
the word "group" replace "gang."
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denied that he had ever heard of "Tri's boys."
The prosecutor called Lancaster as a rebuttal witness. In
response to appellant's objection, the trial judge stated that he
assumed that the prosecutor was using Lancaster to impeach
defense witnesses' testimony who, without objection, had
testified that they had no knowledge of the Tri Binh Nguyen
group. Appellant's counsel agreed that such testimony was
appropriate regarding the witnesses, but argued that it was
inappropriate as to appellant. The trial court ruled that "if
the Defendant calls as a witness on his behalf someone with whom
the Commonwealth believes the Defendant has a relationship that
may affect that witness's willingness to tell the truth, I think
the Commonwealth, as any party would be, is entitled to go into
that."
Lancaster testified that he was familiar with the Tri Binh
Nguyen group through his police work. Lancaster knew Le Huu Le
and observed him with appellant and others at Eden Center, Café
Lien, and the Willston complex. Lancaster knew from police
reports, personal observations, informants, and other sources
that Le Huu Le associated with the Tri Binh Nguyen group.
Analysis
"In order to be considered on appeal, an objection must be
timely made and the grounds stated with specificity. Rule 5A:18.
To be timely, an objection must be made when the occasion arises
-- at the time the evidence is offered or the statement made."
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Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168
(1986) (citation omitted).
On appellant's motion in limine, the court ruled that the
evidence regarding the Tri Binh Nguyen group could be appropriate
regarding a witness' credibility, but that the court would deal
with this issue as it arose during trial. However, appellant did
not object when the prosecutor asked each of four defense
witnesses whether he or she had any knowledge of the Tri Binh
Nguyen group. Each of these witnesses denied any knowledge of
the Tri Binh Nguyen group. Accordingly, Rule 5A:18 bars our
consideration on appeal of whether the trial court erred in
admitting evidence of the Tri Binh Nguyen group. Moreover, the
record does not reflect any reason to invoke the good cause or
ends of justice exceptions to Rule 5A:18.
Moreover, the Commonwealth was entitled to refute
appellant's alibi by showing that the alibi witnesses were not
worthy of belief. "The bias of a witness, based on a previous
relationship with a party to the case, is always a relevant
subject of cross-examination." Goins v. Commonwealth, 251 Va.
442, 465, 470 S.E.2d 114, 129, cert. denied, 117 S. Ct. 222(1996). See Kirk v. Commonwealth, 21 Va. App. 291, 298-99, 464
S.E.2d 162, 166 (1995) (because opponent can elicit "anything
tending to show the bias" of a witness, evidence that defendant's
alibi witness was his homosexual lover was admissible to
establish witness' motive for testifying). Where evidence of
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specific acts of misconduct "is relevant to show that a witness
is biased or has a motive to fabricate, it is not collateral and
should be admitted." Banks v. Commonwealth, 16 Va. App. 959,
963-64, 434 S.E.2d 681, 683-84 (1993). Therefore, attacking the
credibility of the alibi witnesses by demonstrating their bias in
favor of appellant was permissible impeachment.
Alibi witness Le Huu Le had denied any knowledge of the
incident at Café Lien or at Eden Center. He admitted being
present at the Willston complex incident, but denied that the
area was frequented by the Tri Binh Nguyen group. Le Huu Le
denied meeting appellant through that group or that he or
appellant associated with members of that group. The trial court
did not err in allowing Lancaster to testify that he had observed
Le Huu Le and appellant at specific times at the three specific
places. The trial court did not err in admitting evidence of
appellant's relationship with his alibi witness and the Tri Binh
Nguyen group at Eden Center, Café Lien, and the Willston complex.
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
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