Opinion
NO. 91014–6
06-29-2016
In the Matter of the Personal Restraint of: Hung Van Nguyen, Petitioner.
ORDER
¶ 1 Department I of the Court, composed of Chief Justice Madsen and Justices Johnson, Fairhurst, Wiggins and Gordon McCloud, considered this matter at its May 31, 2016, Motion Calendar.
¶ 2 The Acting Chief Judge of the Court of Appeals dismissed Hung Van Nguyen's personal restraint petition (PRP), in which he challenges his convictions for three counts of first degree assault, pursuant to RAP 16.11(b). That rule authorizes the chief judge to dismiss a PRP without transfer to the superior court or referral to a three judge panel if “the issues presented are frivolous.” Such issues are “frivolous” within the meaning of that rule if they fail to present an arguable legal or factual basis for collateral relief in light of the constraints of PRP procedures. In re Pers. Restraint of Khan , 184 Wn.2d 679, 686–87, 363 P.3d 577 (2015). If a PRP filed in the Court of Appeals is not frivolous, however, it must be treated differently. A non-frivolous PRP that can be decided solely on the record must be referred to a three judge panel for a determination on the merits. RAP 16.11(b). A non-frivolous PRP that cannot be decided solely on the record must be transferred to the superior court for a determination on the merits or a reference hearing. Id.
¶ 3 Nguyen's PRP is not entirely frivolous, as we explain below. The Acting Chief Judge of the Court of Appeals therefore erred in dismissing it without referral to a panel. But we have held that review by the five justices of this department is an adequate substitute for review by a three judge Court of Appeals panel in this situation. See Khan , 184 Wn.2d at 687 (discretionary review procedures are an adequate remedy when Court of Appeals erroneously dismisses PRP as frivolous under RAP 16.11(b) ).
¶ 4 Having reviewed the briefing and records submitted in this matter, the Department finds four non-frivolous issues: (1) the claim that Detective Tim Liston's error in writing Hung Nguyen's name as the individual identified in a photomontage shown to witness Don “Tony” Che violated the State's duty to disclose exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963) ; (2) the claim of ineffective assistance of counsel in relation to that Brady issue; (3) the claim of perjury arising from that Brady issue; and (4) the claim that Detective Liston improperly testified that defense witness Do Lu had not been truthful when he testified that he had only had fleeting contact with Nguyen in the courthouse during the trial.
¶ 5 In order to prevail on any of these issues, however, Nguyen must show that he was actually and substantially prejudiced from a constitutional error or that a nonconstitutional error resulted in a complete miscarriage of justice. In re Pers. Restraint of Gomez , 180 Wn.2d 337, 347, 325 P.3d 142(2014). He fails to do so. With respect to the Brady , ineffective assistance, and perjury issues, Hung Nguyen has presented evidence that Che identified Vu Nguyen (“Vu Dang”)—not Hung Nguyen—as the person in the montage, but that Detective Liston incorrectly wrote that Che identified Hung Nguyen, instead. Detective Liston's error did not come to light until several years later. Nguyen now argues that trial counsel was ineffective in failing to discover and expose Detective Liston's error, that the State presented false and perjured testimony with regard to that error, and that the State failed to disclose the error itself in violation of Brady . But the State did not offer Che's photomontage identification into evidence. And neither Detective Liston nor Che mentioned the photomontage in their testimony. Further, Che did not testify that he identified Nguyen or anyone else. Thus, even though Nguyen presents evidence that the State failed to disclose that Detective Liston wrote an incorrect summary of Che's pretrial identification, the State did not introduce that incorrect summary and hence did not introduce false or perjured evidence.
¶ 7 Furthermore, there is no proof of prejudice. Two other eyewitnesses (Cuong Tang and Senh Tang) testified that Nguyen was one of two shooters (the other being Lam Giang). In this connection, Che did not identify Vu Dang (as opposed to Hung Nguyen) in the photomontage as a shooter , but as another person at the scene. Che's identification thus did not undermine the State's theory that Hung Nguyen was a shooter, but impliedly supported it. In fact, when Giang was tried several years later (after being a fugitive), Giang unsuccessfully tried to use Che's identification of Vu Dang as evidence that the two shooters were Vu Dang and Hung Nguyen, not him. In light of the circumstances, Nguyen fails to show that he is entitled to collateral relief on this issue.
¶ 8 As for Detective Liston's testimony concerning Do Lu, he was responding to an improper question from the prosecutor as to whether Do Lu had been truthful about his contact with Nguyen. Though the question was improper, Nguyen did not object. We have held that, in this situation, we will usually not address the claim for the first time on review unless the impropriety was so flagrant and ill-intentioned that any prejudicial effect could not have been eliminated by an objection and curative instruction. In re Pers. Restraint of Glasmann , 175 Wn.2d 696, 704, 286 P.3d 673 (2012). And even if the claimed error was not forfeited, the question and answer did not actually cause prejudice in light of their fleeting nature and the totality of evidence. See id. In particular, Do Lu's credibility was seriously damaged in other ways throughout his cross-examination. The additional information that he misrepresented his courthouse contact with Nguyen had no substantial probability of affecting the verdict. See id.
¶ 9 In sum, Nguyen's PRP is not entirely frivolous. But he fails to show that he is entitled to relief.
¶ 10 Therefore, the Department unanimously agreed that the following order be entered.
¶ 11 IT IS ORDERED:
¶ 12 That the Motion for Discretionary Review is denied.
For the Court
/s/ Madsen, C.J.
CHIEF JUSTICE