Bui v. DiPaolo
| Decision Date | 23 December 1997 |
| Docket Number | No. CIV. A. 96-12615-RCL.,CIV. A. 96-12615-RCL. |
| Citation | 985 F.Supp. 219 |
| Parties | Tam S. BUI, Petitioner, v. Paul DiPAOLO, Superintendent of the Massachusetts Correctional Institution at Norfolk, and Scott Harshbarger, Attorney General of the Commonwealth, Respondents. |
| Court | U.S. District Court — District of Massachusetts |
Wendy Sibbison, Greenfield, MA, for Tam S. Bui.
William J. Duensing, Attorney General's Office, Boston, MA, for Paul Dipaolo, Scott Harshbarger.
Tam S. Bui ("Bui") petitions this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254. Bui asserts that his convictions in state court upon two counts of first degree murder and one count of armed robbery were constitutionally defective due to violations of his 1) rights under the Confrontation Clause to cross-examine witnesses against him, 2) Sixth Amendment right to counsel, 3) Fifth Amendment privilege against self-incrimination, 4) due process rights stemming from prosecutorial misconduct during closing argument, and 5) Fourth Amendment right to be free from illegal searches and seizures.
With appropriate deference to the fact-finding role of the courts of the Commonwealth, see 28 U.S.C. § 2254(e)(1), the following facts may be gleaned from the record of this case:
On November 25, 1989, Ngoc Le and her fifteen year-old daughter, Dixie Poulin, were found stabbed to death in their basement apartment in Everett, Massachusetts. There was evidence that the younger victim had also received blunt force injuries, allegedly caused by a gun. Both cash and jewelry were missing from the apartment. See Commonwealth v. Bui, 419 Mass. 392, 393, 645 N.E.2d 689 (1995), cert. denied sub nom. Bui v. Massachusetts, 516 U.S. 861, 116 S.Ct. 170, 133 L.Ed.2d 111 (1995).
In the summer of 1990, the police received information that led to the arrest of Bui and two others.1 Specifically, Thinh Trinh ("Thinh"), who knew both Ngoc Le and Bui, said that Bui had told him that he used a gun at the victims' apartment around the time of the murders. Findings of Fact, Rulings of Law and Order on Defendant's Motion to Suppress Evidence at ¶ 2, Commonwealth v. Bui, No. 90-2753-56 (Middlesex Super. Ct. Mar. 24, 1992) (Supp. Answer, Ex. A-2, page 204) ("Findings and Rulings"). Furthermore, Thinh's "common law wife,"2 Linh Nguyen ("Linh"), told police that Bui admitted to her that he "participated in the robbery and murders in Everett in November of 1989." Id. at ¶ 3. Linh also produced two of the pieces of jewelry that had been stolen from Ngoc Le's apartment, a jade bracelet and a jade Buddha, and said that Bui and Hung Truong had given them to her. Trial Tr. at 9-118 to 9-123, 11-79 to 11-84.
On August 17, 1990, the police obtained arrest warrants for Bui and two other men in connection with the murders. Findings and Rulings at ¶ 4. Told that Bui could be found at his parents' apartment, the police went there. Id. at ¶ 3. Once inside, they performed a protective sweep and discovered a .38 caliber hand gun consistent with the object that caused the blunt force trauma to Dixie Poulin. Id. at ¶ 9; Bui, 419 Mass. at 395-96, 645 N.E.2d 689. Bui's father identified the gun as belonging to Bui. Findings and Rulings at ¶ 14.
In April 1992, Bui was convicted of two counts of first degree murder and one count of armed robbery after a jury trial before the Superior Court sitting in and for the County of Middlesex (Lauriat, J.).3 On direct review, the Supreme Judicial Court affirmed Bui's convictions. Commonwealth v. Bui, 419 Mass. 392, 645 N.E.2d 689 (1995). Bui then filed this habeas corpus petition pursuant to 28 U.S.C. § 2254.4
Bui filed this petition on December 27, 1996 — after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 — and is therefore subject to the amendments to 28 U.S.C. § 2254 contained therein. See Lindh v. Murphy, ___ U.S. ____, ____, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). As amended, section 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Section 2254(e)(1) further states:
In a proceeding instituted by an application for a writ of habeas corpus ..., a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
Bui first argues that the trial court violated his rights under the Confrontation Clause of the Sixth Amendment by preventing him from cross-examining Linh and Thinh with respect to their motive to lie. As the Supreme Judicial Court noted on direct review, both Linh and Thinh were "very important" witnesses for the prosecution:
[Linh] testified that [Bui] admitted to her that he and another man had killed the victims and that he had used a knife to kill people. She also testified that the defendant and the other man had given her jewelry which, the jury could have found, had been taken from the victims' apartment ....
[Thinh] testified that when [Bui] saw Linh Nguyen's mother wearing a necklace taken in the robbery, [Bui] told Thinh Trinh not to let her wear it "around here." Thinh Trinh testified further that [Bui] had told him that he had stabbed the older victim in the chest, had shown him a knife and said, "This is the knife that kill," and had shown him a gun similar to one in evidence, as to which ... there was testimony connecting such a gun with impressions on the skull of the younger victim.
Bui, 419 Mass. at 398-99, 645 N.E.2d 689.
During the cross-examinations of Linh and Thinh, Bui's defense counsel, Thomas Hoopes, Esq., sought to establish 1) that Bui, Thinh, Linh, and Linh's father, Mong Nguyen ("Mong"), were together in California before the murders had taken place, 2) that Mong, in the presence of several other high level figures in Vietnamese organized crime, asked Bui to transport drugs to Massachusetts, and 3) that Bui refused Mong's request. The defense theory of the case was that Mong ordered Thinh and Linh to fabricate evidence against Bui to frame him for the murders in retaliation for the embarrassment that Mong suffered after Bui's public refusal of his request to act as a drug courier for him. Trial Tr., at 10-68 (sidebar conference).
Defense counsel first explored this theory during the cross examination of Linh, asking her whether her father, Mong, ever visited her in California while she was there with Thinh and Bui. When Linh answered that she did not remember, Trial Tr. at 10-66, defense counsel requested a sidebar, explained to the judge the defense theory of the case, and asked permission further to inquire whether Mong asked Bui to transport drugs.
Trial Tr. 10-68 to 10-69 (emphasis added). The judge then held a voir dire hearing and permitted defense counsel to ask Linh whether her father was present in California. When she reiterated that she did not remember, defense counsel, as promised, dropped this line of inquiry, except to request that the witness be permitted to tell the jury her present state of memory — a request which the trial court promptly denied. Trial Tr. 10-73 to 10-75.
This Court holds that Bui's rights under the Confrontation Clause were not violated with respect to the cross-examination of Linh. The trial justice permitted defense counsel fully to explore its theory of bias with respect to this witness; in fact, it was counsel, and not the court, who made the decision to cease questioning on the issue after Linh steadfastly responded that she did not remember whether her father was present in California. As defense counsel stated at the sidebar, "if she says she doesn't remember, that's the end of it." Trial Tr. at 10-69.5
With respect to the cross-examination of Thinh, however, the analysis is far more complex. While Thinh was on the stand, defense counsel again sought to pursue its theory that the testimony given by Thinh and Linh was a "retribution-motivated fabrication" ordered by Mong. Bui, 419 Mass. at 400, 645 N.E.2d 689. After the prosecution objected, the trial justice called the attorneys to the sidebar:
MS. MERACHNIK [prosecutor]: There's ... been no evidence of that.... I suggest there's no foundation, there's no basis for him to ask these questions at this point in the proceedings.
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