Bui v. State, 3 Div. 557

• Decision Date: 12 April 1988
• Docket Number: 3 Div. 557
• Citation: 551 So.2d 1094
• Parties: Quang Ngoc BUI v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1094

551 So.2d 1094

Quang Ngoc BUI v. STATE.

3 Div. 557.

Court of Criminal Appeals of Alabama.

April 12, 1988.

Rehearing Denied Aug. 23, 1988.

Richard D. Shinbaum and William K. Abell, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Quang Ngoc Bui, was indicted on April 9, 1986, in a three-count indictment, for the capital offense of murder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct, § 13A-5-40(a)(10), Code of Alabama 1975. At arraignment, he pleaded not guilty and not guilty by reason of insanity. On June 12, 1986, a jury found him guilty of the capital offense charged in the indictment. A sentencing hearing was held before the jury, in accordance with §§ 13A-5-45 through -46, and the jury, by a vote of ten to two, returned an advisory verdict recommending that the penalty be death. This verdict was in accordance with § 13A-5-46(f), which requires that an advisory verdict recommending death be based upon a vote of at least ten jurors. Thereafter, the trial court held another sentencing hearing, in accordance with §§ 13A-5-47 through -52 and, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, sentenced Bui to death. ¹

This case arises out of an incident which occurred around midnight on the night of February 5-6, 1986, at appellant's residence, located at 3081 Simmons Road in Montgomery. Around midnight, Montgomery uniformed police officers, in response to a disturbance call, went to appellant's residence. Appellant's estranged wife had become concerned about the safety of her children, who were with appellant, and had asked the police to check on them. Upon arriving at the residence, the officers knocked on the door and, after considerable delay, appellant's mother-in-law, who also lived at the residence, opened the door. The officers told her that they wanted to talk with appellant and see the children. The mother-in-law went to notify appellant and, after some delay, returned to the door without appellant. The officers insisted on seeing him and the children, and the mother-in-law tried again, without success, to get appellant to come to the door. Finally, at the insistance of the police, the mother-in-law admitted the officers to the residence, and the officers entered appellant's bedroom, where they discovered appellant and the bodies of his three children, Phi Ngoc Bui (age 8), Julie Quang Bui (age 7), and April Nicole Bui (age 4), lying on the bed.

The first officer in the room observed a large kitchen-type knife beside appellant on the bed. As the officers approached appellant, he seized the knife and struck at the officers three times before the officers were able to take the knife away from him. The three children were dead, and their bodies were covered with blood. Each child's throat had been cut. The fatal wounds were remarkably similar--an incision on the right side of the neck of each child, which severed the jugular vein and caused the child to bleed to death. Appellant had cuts on each side of his neck, and on one side, the jugular vein had been "nicked." Although appellant was bleeding, the wounds were not life-threatening. Appellant's wounds were self-inflicted. At first, appellant refused medical assistance, and he was restrained with handcuffs so that the paramedics could administer first aid. Appellant was transported to the hospital where he received further treatment and stitches. While at the hospital, appellant asked an officer if his wife were coming, and when the officer said that he did not know, appellant said: "I cut my kids. I didn't want her to get them." He also stated several times that he wanted to "die with [his] babies." After being treated at the hospital, appellant was released to the police and transported to police headquarters. Shortly after arriving at police headquarters and being advised of his rights, in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant made a statement admitting that he killed the children because he was mad at his wife and did not want her to have them.

The record discloses that Mr. and Mrs. Bui had experienced marital difficulties for several years. There had been several separations, and appellant suspected that his wife was seeing other men. At the time of the murders, Mrs. Bui had been absent from the home for two days and, during part of this time, she was in the company of a male friend. During the two days preceding the murders, Mrs. Bui called appellant several times on the telephone, and during these telephone conversations, appellant urged his wife to return home and made threats implying that if she did not, she might never see him and the children alive again. One such call occurred at approximately 11:00 on the night of the murders. Appellant told Mrs. Bui she would have to get there within 15 minutes if she wanted to see the children alive again. During this conversation, Mrs. Bui heard one of the children crying in the background. Shortly after this call, Mrs. Bui called the Montgomery Police Department to have someone check on the children. After waiting 15 minutes, appellant "lost his temper," he said in a confession, and killed the children.

Appellant did not testify at any stage of the proceedings. He presented witnesses who testified that he was a "hard worker" and supported his family. Mrs. Bui testified that he was a loving and caring father; however, on cross-examination, she stated that he had a violent temper and had threatened to harm her and the children on numerous occasions during the marriage. Mrs. Bui also testified, on cross-examination, that appellant admitted to her that he killed the children because he was mad at her for not coming home and because he thought she was "running around on him." The fact that appellant killed the children is not disputed. Appellant's theory of defense, as disclosed in the opening statements of his counsel, was two-fold: (1) appellant is guilty of manslaughter instead of capital murder because the acts were caused by a sudden heat of passion caused by legal provocation, or (2) appellant was insane at the time of the killings. Appellant presented the testimony of a psychiatrist and a "cross-cultural" counselor in support of his insanity plea.

He raises 14 issues on appeal. We will address each issue in the order that it appears in appellant's brief.

I & II

Appellant first contends that the state committed reversible error by failing to prove the identity of the three children. He argues that the only evidence presented to show the identity of the victims was inadmissible hearsay. We do not agree. The law is clear that a homicide victim's identity can be established by circumstantial evidence. Todd v. State, 472 So.2d 707 (Ala.Cr.App.1985); Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), aff'd, 391 So.2d 677 (Ala.1980). Taking into consideration the locality of the crime, the proximity of appellant to the victims when discovered, the testimony of the witnesses regarding statements appellant made at the scene and at the hospital, and the confession of appellant, in which he admitted killing his three children, we think there was sufficient evidence from which the jury could have concluded beyond a reasonable doubt that the corpses were those of the Bui children. We also note that appellant's counsel admitted in his opening statement that it was the three Bui children who had been killed and named them. It cannot be seriously contended that the state failed to prove the identity of the victims, as alleged in the indictment. It did, without a doubt. The corpus delicti was proven. Appellant's contention to the contrary is without merit.

III

Appellant next contends that there was no evidence to refute the evidence of his insanity at the time he committed the killings. He argues that the evidence of insanity was so overwhelming and uncontradicted that it overcame the presumption of sanity and entitled him to a directed verdict of not guilty by reason of insanity. We disagree.

"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." Ala.Code (1975), § 13A-3-1(a).

By statute, there is a presumption of sanity extending to all persons over the age of 14. § 15-16-2. The presumption of sanity relieves the state of any affirmative duty to prove that the defendant was, in fact, sane and responsible for his actions, until evidence to the contrary is produced and the presumption of sanity is rebutted. Cunningham v. State, 426 So.2d 484 (Ala.Cr.App.1982). Although the presumption of sanity can be overcome or rebutted, the accused is not entitled to a directed verdict on the issue of insanity unless the evidence of insanity is clear, overwhelming, and undisputed. Boyle v. State, 229 Ala. 212, 154 So. 575 (1934); Westbrooks v. State, 492 So.2d 1023 (Ala.Cr.App.1984); Cunningham v. State; Graham v. State, 383 So.2d 892 (Ala.Cr.App.), cert. denied, 383 So.2d 895 (Ala.1980). Insanity is an affirmative defense which must be proven by the defendant to the reasonable satisfaction of the jury, and the burden of proof never shifts to the state but remains on the defendant throughout the trial. Grammer v. State, 239 Ala. 633, 196 So. 268 (1940); Cunningham v. State. In making its determination on the issue of insanity, the jury may reject all expert testimony, even though it is without conflict. Christian v. State, 351 So.2d 616 (Ala.Cr.App.1976), rev'd. on other grounds, 351 So.2d 623 (Ala.1977). In Anderson v. State, 209 Ala. 36, 40, 95 So. 171, 175 (1922), our supreme court stated the following:

"The opinions of medical men,...