Opinion
Record No. 0793-92-4
April 26, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY JACK B. STEVENS, JUDGE
Richard C. Shadyac, Jr. (Marcia L. Fischer; Shadyac Shadyac, P.C., on briefs), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010, this opinion is not designated for publication.
Appellant, Anh Tuan Vuong, was convicted in a jury trial of the attempted robbery and aggravated malicious wounding of Khai Nguyen. Although Vuong raises four issues on appeal, we deem it necessary to discuss only three of the issues, namely: (1) was the evidence at trial insufficient as a matter of law to support the verdicts; (2) was the Commonwealth's closing argument improper; and (3) did the trial court err in refusing to allow Nghia Vo to testify. Finding the refusal to allow Vo to testify prejudicial error, we reverse and remand.
FACTUAL BACKGROUND
Apropos to these issues, the facts, viewed in the light most favorable to the Commonwealth, are as follows:
On Sunday, November 11, 1990, at 10:00 a.m., Khai Nguyen (Khai) went to his restaurant (Vietnamese Taste Restaurant) to open for business. He was accosted after entering his office and was ordered to hand over money. After Khai told the would-be robber that he had no money, the assailant unfolded a knife and stabbed Khai in the chest and in his face, close to or in his right eye. When the knife became stuck in Khai's head, Khai and the assailant both tried to pull it out. Khai was able to extricate the knife and, severely injured and unable to see, he flailed out with the weapon, possibly cutting the assailant on the hand. At some point during the struggle, a second person came into the office and hit Khai on the right side of his face with a hard object. The assailants then left, leaving Khai on the floor bleeding and permanently blind in both eyes.
On April 16, 1991, appellant was tried before a jury which found him guilty of attempted robbery and aggravated malicious wounding (the first trial).
Appellant moved for a new trial based on newly discovered evidence. Specifically, appellant contended that he had an additional alibi witness, Minh X. Ngo (Ngo), who would testify that he saw Tuan doing carpentry work at Nam River Restaurant on the day of the crime, and another witness, Nghia Bui (Bui), a cellmate with Nghia Vo (Vo), who heard Vo admit that he (Vo) had committed the crime rather than Tuan. On October 10, 1991, after a hearing on Tuan's motion, the trial judge vacated the earlier verdicts and granted a new trial. Significantly, prior to the second trial, defense counsel gained access to a letter dated September 30, 1991, supposedly written to appellant by Vo wherein Vo admitted his guilt and exonerated appellant.
On January 21-22, 1992, a second jury trial was held. It is from this trial and post-trial rulings that appellant appeals. At his second trial, Khai testified that appellant was the person who confronted him in his office. Khai explained that he allowed appellant to work in the restaurant for one day on a trial basis either on October 21 or 22 of 1990, less than three weeks prior to the attempted robbery. Appellant came to the restaurant with Vu So Ly (Ly). Both men sought employment. After a twelve hour shift, Ly was hired, but appellant sent word with Ly the next day that he (appellant) had found other work. Khai testified that he observed appellant's performance during his long shift, and that appellant "didn't do his job." When asked, Khai stated that the man who worked that day was "Tuan Vuong." Khai also testified that he saw appellant in the restaurant two times after the day he worked there; once appellant came in with a girlfriend and another time he came in to pick up Ly's check. When asked how certain he was whether appellant was the man who demanded money and stabbed him, Khai stated, "One hundred percent."
Tac Bacs Nguyen (Tac Bacs), a close friend of victim Khai and one of his employees, testified that appellant and Ly came to the restaurant together on October 22, 1990, looking for work. Tac Bacs pointed out appellant as being the "Tuan" who worked one day in late October 1990. Tac Bacs also related that on the day appellant worked there, appellant asked "who open first to open the restaurant." Tac Bacs also recalled appellant eating in the restaurant with his girlfriend on another occasion.
After the Commonwealth rested, appellant's counsel moved to strike, contending, inter alia, the absence of an in-court identification, victim Khai merely referring to "Tuan" without giving a last name, and the lack of any "objective piece of evidence" linking appellant with the crime. The court denied the motion. Defense counsel advised the court that he intended to call Vu Ly, an admitted accomplice in the crime, and Nghia Vo as defense witnesses. The Commonwealth objected to the defense calling Vo merely to impeach him with evidence that, at certain times in the past, he had admitted that he, not appellant, committed the crime. The trial judge opined that defense counsel could call Vo and impeach him with any contrary statements made under oath. Noting the seriousness of the crime and the court's "abiding interest that justice prevails here," the trial judge expressed his view that he would not allow "justice to be blinded by some pseudo-technical argument." However, he concluded by stating that he would first listen to what Vo was asked, and that he would rule at that time based on objections by the Commonwealth.
Ly, who earlier pled guilty to being a party to the crime, testified that three men participated in the robbery: himself, Vo, and Chou Ly (Chou). Ly stated that he drove the car while Vo went inside; a few minutes later, Vo returned to the car with "blood all over his body." Vo told Ly and Chou "that he stabbed the old man," and that the old man had cut his (Vo's) hand. On the day of the crime, Ly was living at appellant's father's house, with Tuan. In fact, Ly had been friends with appellant and his family for three or four years.
After Ly's testimony, the court returned to the issue of Vo's testimony and held that Vo could not be called "for the purpose of impeaching him." He noted that Vo had already been tried for the crime (and acquitted), and at that trial he had denied under oath committing the crime. The judge further observed that Vo had admitted making contrary, inculpatory out-of-court statements, explaining that he was paid by appellant's family to make them.
Appellant took the stand, stating that he was working at the Nam River Restaurant on November 11, 1990, the day of the crime. He admitted working for one day at the victim's restaurant (Vietnamese Taste) and that he visited there two other times. Appellant also explained that he talked with Investigator Lyons on November 13, 1990 (2 days after the crime), and told him that he (appellant) was home all day on November 11 (the day of the crime) and not at the Vietnamese Taste Restaurant. He said he lied to Lyons because he was scared, that being his "first time talking to police."
Two alibi witnesses from the first trial were called: a carpenter named Hanh Nguyen (Carpenter Hanh), who testified that appellant worked with him at the Nam River Restaurant at the time of the crime, and Phi Thanh Ly (Phi), who testified that appellant and Carpenter Hanh had breakfast at his restaurant (D L Cafe) from 9:00 to 10:00 a.m. on the day of the crime. A new alibi witness, Minh Ngo (Ngo), who had not been located until after the first trial, testified that he saw appellant working with Carpenter Hanh at the Nam River Restaurant when he delivered material there. Ngo explained that he remained at the work site from 10:30 a.m. until 12:00 noon on November 11.
When the court recessed after the first day of trial, defense counsel interviewed Vo. The next day, defense counsel represented to the court that Vo would testify that he did not participate in the crime, and that he wrote the letter admitting guilt because he was paid $3,000 by appellant's family. The judge then ruled that the defense was precluded from calling Vo "for the sole purpose of impeaching him."
Defense counsel then called Vo merely to show the jury his hands; no questions were put to him, and no testimony was proffered out of the jury's presence.
I. SUFFICIENCY OF THE EVIDENCE
Appellant initially contends that the evidence was insufficient to support the verdicts. We disagree. It is elemental that "[w]hen considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it."Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide."Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). "'The uncorroborated testimony of one witness may be sufficient to sustain a verdict of guilty.'" Bryant v. Commonwealth, 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990) (quoting United States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983), cert. denied, 465 U.S. 1028 (1984)).
Khai, the victim, testified that he was "one hundred percent" certain that the person who stabbed him was "Tuan Vuong." Khai explained how "Tuan" worked a twelve hour shift at his restaurant on a trial basis in late October, three weeks before the crime. Subsequently, Khai saw "Tuan" in the restaurant on two other occasions prior to the crime. Tac Bacs, an employee of Khai, identified appellant as the person who tried out for the job and who afterwards visited the restaurant prior to the crime. Additionally, appellant confirmed trying out for the job and visiting the restaurant two more times after the tryout.
Contrary to appellant's contention, the record shows that Khai named appellant as "Tuan Vuong" and not just "Tuan." The jury believed the testimony of Khai and Tac Bacs, and rejected that of appellant and his witnesses. Khai and Tac Bacs' testimony was not inherently incredible or unreliable and positively identified appellant as the person who tried out for the job and who visited the restaurant shortly before the crime. Moreover, Khai positively identified "Tuan Vuong" as the person who stabbed him. Accordingly, the record contains ample credible evidence to support the verdicts, and we cannot say that they were plainly wrong.
II. COMMONWEALTH'S CLOSING ARGUMENT
Appellant next contends that a comment by the Commonwealth's attorney in closing argument relating to appellant's failure to call an additional alibi witness was improper and the court erred in overruling his objection. Appellant called three alibi witnesses to testify at trial; however, the Commonwealth commented in closing argument that a fourth witness could or should have been called "to sew up this alibi." Although the record fails to show that appellant properly preserved this issue for appeal by moving for a cautionary instruction or mistrial, we briefly address it in the event that it should arise on retrial. See Morris v. Commonwealth, 14 Va. App. 283, 416 S.E.2d 462 (1992) (en banc).
We hold that the comment in the Commonwealth's argument was not proper under the facts in evidence, but could have been cured by a proper cautionary instruction. See id. at 286-87, 416 S.E.2d at 464. Moreover, Bassett v. Commonwealth, 222 Va. 844, 284 S.E.2d 844 (1981), is distinguishable on the facts. The nature of the argument to the jury and the inferences which the jury could draw therefrom persuade us that the comment should not be made on retrial if the evidence there parallels the evidence in the present record.
III. COURT'S ALLEGED REFUSAL TO ALLOW VO TO TESTIFY
Appellant next contends that the trial court erred in not allowing Vo to testify. This witness had previously been tried and acquitted of the same crimes for which appellant was on trial. The record reflects that during his trial Vo testified and denied any involvement in the crimes. However, the record also shows that Vo had written to appellant and had made out of court statements to others that he was the perpetrator of the crimes and appellant was not involved. At appellant's second trial, which commenced after Vo's acquittal, Vo represented to defense counsel that, if called to the stand, he would deny involvement in the crimes and would explain his contrary out-of-court statements by contending that he was paid by appellant's family to admit his guilt.
The record contains lengthy discussions between the court and counsel regarding the impeachment of Vo should he be called and deny his involvement. The defense was in doubt as to what Vo would say on the stand, but if he denied his involvement, the defense contended he could be impeached by his out-of-court statement.
A fair reading of the lengthy colloquy between the court and counsel shows that the court was initially of the opinion that any questions to Vo about his prior utterances should be limited to those prior statements which he had previously made under oath, in his own trial. However, the final ruling was simply that the defense counsel could not call Vo for the sole purpose of impeaching him. While the latter ruling is generally a fair statement of the law, under the peculiar facts contained in the record before us, it was error and violated the Supreme Court's holding in Morris v. Commonwealth, 229 Va. 145, 326 S.E.2d 693 (1985).
In Morris, the Court held that, where a declarant who had allegedly confessed to the crime with which the defendant was charged, was present in court, testified, and denied the earlier confession, the truth of the confession and the credibility of the witness who reported it must be settled by the jury. Thus, admission of evidence of the confession would not be solely for the purpose of impeachment of the alleged declarant but to allow the jury to determine its truth as well as the veracity of the witness reporting it.
In reversing the conviction, the Supreme Court said:
"'But, in any case, once it is established that a third-party confession has been made, the crucial issue is whether the content of the confession is trustworthy. And determination of this issue turns upon whether . . . the case is one where "there is anything substantial other than the bare confession to connect the declarant with the crime."'"
Id. at 147, 326 S.E.2d at 694 (citations omitted).
The record reflects that the testimony of Ly inculpated Vo and, further, that Vo had a scar on his hand. This was circumstantially consistent with the victim's testimony that he struck out at his assailant with the knife. Thus, there was some evidence, other than Vo's inculpatory statements, which could link him to the crime.
In the present case, as in Morris, Vo was in court and could have been asked regarding his inculpatory letter and the statement allegedly made to his cellmate, Bui. If Vo had denied writing the letter or making the statement, then it would have been competent and proper to introduce proof thereof. The court's ruling had the practical effect of preventing this evidence from being heard by the jury under the erroneous guise that it would merely be impeachment of Vo.
While counsel's reasons for seeking the introduction of the evidence and the parameters and intent of the court's ruling could have been more precise, we are satisfied from the record before us that the issue was treated as impeachment, nothing more. Similarly, the court's ruling was clear that this would not be allowed.
Nor do we find the issue to be controlled by our decision inReed v. Commonwealth, 6 Va. App. 65, 366 S.E.2d 274 (1988). InReed, the defendant contended that his right to testify was curtailed by the court's ruling regarding a prior felony conviction. It is distinguishable factually and in the purpose and rationale underlying the decision.
Finally, we cannot say that the excluded evidence would not have affected the jury's verdict. Accordingly, the judgment appealed from is reversed and remanded for a new trial if the Commonwealth be so advised.
Reversed and Remanded.
I would affirm Ahn Tuan Vuong's conviction and, therefore, I dissent.
Vuong maintains that the trial judge refused to allow him to call Vo as a witness and to impeach him with a prior inconsistent statement. The Commonwealth made a motion in limine to prohibit Vuong from calling a witness merely to impeach him. In response to that motion, Vuong suggested that if Vo denied making an earlier statement that he committed the robbery, Vuong would impeach Vo by proving Vo's earlier statement that he (Vo) committed the robbery and Vuong was innocent. Vuong was primarily interested in that aspect of Vo's statement that Vuong was innocent. The admission by Vo that he committed the crime would not necessarily exonerate Vuong because at least three persons were involved, as Vuong's own evidence sought to prove. The Commonwealth was willing to stipulate that Vo was involved but wanted to keep out Vo's statement of Vuong's innocence. On the first day of trial, the judge correctly opined that one could not call a witness just to impeach the witness. See Williams v. Commonwealth, 193 Va. 764, 769, 71 S.E.2d 73, 76 (1952).
Vuong contended at trial and contends on appeal that Code § 8.01-403 permits impeachment of one's own witness. However, Code § 8.01-403 refers only to a witness who "prove[s] adverse," which apparently means merely that the witness whom the party expects to testify favorably suddenly modifies his or her position and testifies unfavorably.
During the argument on the motion in limine, defense counsel made the following argument:
MR. SHADYAC, SR.: Your Honor, we want to be candid with the Court and get this matter ruled on. The Commonwealth in its case has already raised the issue of Nghia Vo.
They asked Investigator Welch about whether or not there were any fiber or fingerprint or blood et cetera of Nghia Vo. They've already raised the specter of Nghia Vo. They've already brought into evidence Vu Ly.
We intend to put Vu Ly on the stand immediately, Your Honor, and we anticipate that he's going to say that Vo, and Chou, another fellow that nobody knows where he is, and he, Vu Ly were the perpetrators of the crime and that Vo went in and did the dirty deed, so to speak and came out full of blood and so forth.
We intend to put on Vo. I can honestly tell the Court that I don't know what he's going to say because he's given so many conflicting statements.
I will say honestly, I fully anticipate that he's going to deny that he did it, even though we have a confession, written, and we have the other witnesses.
At the end of the first day, the trial judge expressed his concern about the admissibility of Vo's statement and stated: "[W]hen the witness is called then we'll treat it at that time." The Commonwealth objected. The trial judge stated that he did not want technical rules to prevent arriving at justice. Again the Commonwealth protested. The judge at that point had never ruled whether Vo could testify.
The next morning, defense counsel returned to the subject and the following exchange occurred.
MR. SHADYAC, SR.: Your Honor, I, in connection with the matter we discussed several times about Mr. Vo and so forth yesterday, I want to advise the Court — I just told Ray — we, about fifteen minutes ago, with the cooperating of the Deputies, brought in Mr. Vo and I had an opportunity to talk to him for a time.
I can assert to the Court that Mr. Vo claims he had nothing to do with this incident, doesn't know anything about it. He did not stab Mr. Nguyen. He did write the letter. Says he was paid $3,000 for writing the letter. I didn't inquire further about the letter and the money, but I will assert to the Court that it appears that if he takes the stand, he will deny totally any knowledge of the offense.
Under those circumstances, if Your Honor please, we'll abide by whatever ruling the Court has, but I want to also tell the Court that what I intend to do — with the Court's permission, of course — is I want to call Mr. Vo. I merely want to ask him his name, if Your Honor please. I want the Jury to see him. And then I'm going to ask your Honor's permission to have him go over to the Jury box and exhibit his left hand, which has a very substantial scar on it. That's all I'm going to do with Mr. Vo. Your Honor. I won't ask him another question, other than his name.
THE COURT: Do you want to be heard?
MR. BROWNELLE: Well, Your Honor, during the recess last night, I was able to do a lot of research on this particular subject and I have a lot of cases in support of our position that they shouldn't be allowed to call him for purposes of getting in prior statements of his that may be inconsistent with his position here today. The Court has not ruled on that yet.
As far as them calling him and asking him his name and then exhibiting his hand, I suppose there's nothing I can do about it. I think that's probably proper and I really can't object to that. But I am prepared to give the Court, I think, conclusive case law in interpreting the statutes involved, interpreting the issue that's before the Court, and I think it's clear that they can't do what they intended to do in the first place.
THE COURT: Is there anything further you want to argue?
MR. SHADYAC, SR.: Your Honor, we've argued it well before the Court and —
THE COURT: All right, I don't think —
MR. SHADYAC: — after discussion with the Court and with Ray and the assurance that we could talk to Mr. Vo, I want to be sure, with reference to his testimony, because I had in my mind, based upon his prior statement, a substantial doubt as to what he would say. I must say to the Court candidly now, I have no doubt as to what he is going to say after having spoken to him.
THE COURT: Well, I think the Williams case — I haven't been shown any authority to the contrary — precludes you calling him for the sole purpose of impeaching him, so I would so rule.
Defense counsel's proffer to the court showed that Vo was not going to "prove" adverse because he was already adverse to the defendant. If the trial court had permitted defense counsel to proceed with Vo as Vuong suggests, defense counsel would have asked Vo if Vo committed the crime. Vo would have denied that he committed the crime. Defense counsel would then have asked Vo if Vo had made a prior statement that he had committed the crime. Vo would have said yes. Thus, Vo's testimony as proffered would have constituted negative evidence, which has no probative value. It is not error to refuse negative evidence. See VEPCO v. Hall, 184 Va. 102, 109-10, 34 S.E.2d 382, 385 (1945).
On appeal, Vuong argues a ground for the admission of Vo's testimony that was not raised in the trial court. He argues that the prior inconsistent statement was a third party confession and, therefore, admissible for that reason. Indeed, if he offered it as a third party admission, it may have been admissible. See Morris v. Commonwealth, 229 Va. 145, 147, 326 S.E.2d 693, 694 (1985). However, it was not offered as such.
When an objection is made to evidence, and the party offering the evidence gives an improper reason for the admissibility of the evidence, the party cannot on appeal obtain a reversal by offering a proper reason for the admission of the evidence.O'Dell v. Commonwealth, 234 Va. 672, 679, 364 S.E.2d 491, 494-95, cert. denied, 488 U.S. 871 (1988).
Furthermore, the trial judge did not in fact deny counsel the right to call Vo. The trial judge merely opined that counsel could not call a witness solely to impeach the witness. Because counsel neither called Vo nor proffered the questions he would have asked Vo, we cannot assume that the trial court would have committed error had Vo been called and questioned. Indeed, the trial judge explicitly stated that he would rule on the evidence as it was presented. See Scott v. Commonwealth, 7 Va. App. 252, 257, 372 S.E.2d 771, 774 (1988).
Furthermore, based upon counsel's statement to the judge, I am not convinced that counsel would have asked Vo on the stand if Vo had confessed. Counsel appeared to have acquiesced to the court's tentative statements before the Commonwealth unresponsively returned to the impeachment subject. When the court ruled, counsel noted his "exception." Counsel did not put Vo on the witness stand, which may have been good strategy because Vo might have disclosed the alleged $3,000 bribe. To waive the requirement that counsel must advance a specific reason for the admission of the evidence would, under the circumstances of the case, allow counsel to further good trial strategy and also save for appeal as error a question not properly raised at trial. This is exactly the situation that we confronted in Reed v. Commonwealth, 6 Va. App. 65, 69, 366 S.E.2d 274, 277 (1988). Reed asked for a preliminary ruling whether, if he testified, he could be impeached by a prior conviction which was on appeal. The judge ruled that he could. Reed did not testify but appealed the ruling. We held that the ruling could not be appealed. Because Reed did not testify, the improper evidence of the prior conviction was not admitted. Thus, there was no error. Id.
Likewise, Vuong was not prohibited from offering in evidence Vo's written confession. I would hold that Vuong was required to offer the confession in evidence and have the court rule on its admissibility in order to preserve the question on appeal.Harward v. Commonwealth, 5 Va. App. 468, 475, 364 S.E.2d 511, 514 (1988).
Furthermore, after examining the record in this case to determine if the ends of justice require that we reverse and waive the procedural bar, I would hold that the record shows that no obvious miscarriage of justice has occurred. See Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). Vuong put on evidence that Vo, not Vuong, committed the crime. He even showed the scar on Vo's hand to support other evidence of Vo's involvement. According to defense counsel, Vo would have testified that he wrote the "confession" because Vuong's family paid him $3,000 to do so and that he lived with Vuong's family. Given the circumstances surrounding the "confession," the testimony could just as likely have been harmful to Vuong as helpful.
Regarding the improper argument of counsel during closing argument, defense counsel did not object or move for a mistrial at the time of the alleged improper argument and, therefore, waived his objection. See Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990).