Cheng v. Com.

• Decision Date: 08 June 1990
• Docket Number: Nos. 891096 and 891098,s. 891096 and 891098
• Court: Virginia Supreme Court
• Parties: Dung Quang CHENG, a/k/a John Cheng v. COMMONWEALTH of Virginia. Record

Page 599

393 S.E.2d 599

240 Va. 26

Dung Quang CHENG, a/k/a John Cheng v. COMMONWEALTH of Virginia.

Record Nos. 891096 and 891098.

Supreme Court of Virginia.

June 8, 1990.

Leon S. Demsky, Peter M. Baskin, Arlington, for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Virginia B. Theisen, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

I Proceedings

In separate indictments, Dung Quang Cheng, a/k/a John Cheng, was charged with the capital murder of Hsiang Liu, ¹ Code § 18.2-31(a) ² and -31(d); ³ with the abduction of Liu; with the robbery of Liu; with conspiracy to commit abduction, robbery, or murder; with the use of a firearm in the commission of robbery, abduction, or murder; and with the possession of a "sawed-off" shotgun. All indictments were tried together by the same jury.

At the conclusion of all evidence, the trial court struck the evidence on the shotgun possession charge. The jury, however, convicted Cheng of the remaining charges, fixing his punishment at life imprisonment for abduction, at life imprisonment for robbery, at 10 years' imprisonment for conspiracy, and at two years' imprisonment for use of a firearm. Following a separate hearing on the issue of punishment for capital murder, the jury fixed Cheng's punishment at death. On July 27, 1989, after receiving a post-sentence report, the trial court imposed the sentences fixed by the jury and entered judgments thereon.

We have consolidated the automatic review of Cheng's death sentence with his appeal of the capital murder conviction, Code §§ 17-110.1(A) and (F), and have given them priority on the docket, Code § 17-110.2. By order entered September 7, 1989, Cheng's appeals of the abduction, robbery, conspiracy, and firearm convictions were certified from the Court of Appeals. We have consolidated these appeals with the capital murder appeal. Code § 17-116.06.

II Facts

On September 3, 1988, Mohamad Amir, Dung Sam, and Samo Kim were with Cheng in Fairfax County. Amir overheard Cheng tell Sam and Kim that he was going to "do a restaurant." Amir understood this to mean "robbing a restaurant." Cheng stated that he needed some money. However, he did not identify a particular restaurant or state when the act would occur.

The same day, while in a bathroom at Cheng's house, Amir saw a shotgun in a brown travel bag. A week earlier, Amir had seen Cheng with a .32 caliber semi-automatic pistol.

Later on September 3, Amir, Kim, Sam, and Cheng went to the Grand Garden Restaurant, in McLean. Liu was co-owner of the restaurant. Cheng handed a note to the receptionist and said, "Give this to Freddie." The restaurant manager was given a piece of paper either by the bartender or by Cheng and was told that it was for Liu. Later, the manager gave Cheng's note to Liu. Cheng's name and telephone number were written on the paper. The four men waited at the bar for approximately a half hour and then departed without seeing Liu.

The following day, the four men drove to Richmond. While they were returning to Arlington, Cheng said that he was going to rob a restaurant and told Sam and Kim to "bring the shotgun and the jeep."

The four men stopped at Sam's house where Sam got Cheng's jeep, a Mitsubishi Montero. They went to Cheng's house about 7:30 p.m. Cheng went into the house and, in two or three minutes, returned carrying a brown bag. Cheng put the bag in the jeep. It was the same bag in which Amir previously had seen the shotgun.

About 10:00 p.m., Cheng was seen at the Grand Garden Restaurant. He was alone. He talked with Liu for approximately five minutes and then left the restaurant.

At 11:25 p.m., Liu left the restaurant, carrying his briefcase. Liu got into his Cadillac automobile alone.

The next morning, Monday, September 5, 1988, between 7:30 and 7:40 a.m., an Arlington County employee discovered Liu's body at the entrance to Glen Carlin Park, in Arlington County. Liu's body was lying face-down on the floor between the front and rear seats of Liu's automobile. His head was resting on the floor behind the driver's seat. Liu's hands were tied behind his back with a necktie that apparently belonged to him. There was a substantial amount of blood on the backseat and on the rear floor.

Two .32 caliber cartridge casings were found beneath Liu's head. Another .32 caliber cartridge casing was found on the rear seat, and a fourth was found on the rear deck behind the rear seat. An investigating police officer concluded that the cartridges had been fired by an automatic pistol. The officer also opined that, because most automatic pistols eject spent cartridges to the right, two shots probably were fired from the front seat, the casings being ejected onto the floor, and the other two shots probably were fired from a position outside the vehicle and above Liu, the casings being ejected onto the rear seat and the deck.

An autopsy revealed that Liu had been shot four times. However, it was not possible to determine the sequence in which the four bullets had been fired.

One bullet entered Liu's left cheek below the eye, traveled backward and downward, and lodged in the soft tissue of the neck. This bullet was recovered by the medical examiner. Another bullet entered the left side of Liu's neck, traveled backward and downward, and was recovered from his left upper back. These wounds were not lethal.

A third bullet entered the right side of Liu's face in front of the ear, traveled backward and upward through the brain, and exited the left rear of the head. The fourth bullet entered the right back portion of the head, passed forward and upward through the brain, and exited through the upper left forehead. These were fatal wounds.

A blood-soaked piece of paper was found on the rear floor of the automobile beneath Liu's head. A list of names and telephone numbers of employees at Liu's restaurant was on one side of the paper. A restaurant employee had written the names and numbers. On the other side of the piece of paper was written "SCF382 Va. Dung Q. Cheng 4652 Charl 522-5465." Cheng lived at 4642 Carlton Court, in Woodbridge, and owned an automobile with license number SCE-382.

The police found a Marlboro cigarette butt and less than one full cigarette's ashes in the dashboard ashtray of the Cadillac. Cheng smokes Marlboro cigarettes.

The police found no money in the automobile, and Liu's keys, briefcase, and wallet were missing. The left rear pocket of Liu's pants had been turned inside out and was empty. A Rolex watch remained on Liu's wrist.

The police dusted the interior and exterior of Liu's automobile for fingerprints and recovered only one partial, and unidentified, print from the exterior. From this, the police concluded that the interior of the automobile had been "wiped clean" after the murder.

On September 7, the Arlington County police found Cheng's jeep parked in Chinatown, in Washington, D.C. Its doors were locked. The police impounded and searched the vehicle. The police seized a shotgun from under the rear seat, an American Express Company credit card receipt signed by Liu from the front passenger floorboard, a Marlboro cigarette box from between the two front seats, and a briefcase from the front floorboard. The police also seized two knives, a martial arts weapon, a pellet gun, and a roll of black electrical tape. The shotgun was loaded with four shotgun shells, and the gun's safety catch was disengaged.

On September 9, Suwit Yon Kwan, an Arlington County deputy sheriff, saw Cheng in jail. Kwan and Cheng had been friends five or six years earlier when they were co-workers at a restaurant. Kwan testified that he asked Cheng, "[W]hat happened. What are you doing?", and that Cheng replied that "he didn't do it."

Kwan further testified that Cheng later told him that Cheng wanted to confess, and that he advised Cheng to talk to a lawyer first. Kwan testified that Cheng then told him that "he had to do it because [Liu] had put the contract on [Cheng]." Cheng also said, "[Y]ou guys are not going to find anything because ... the only thing [I] left in [the Cadillac] was from a cigarette."

III Shotgun Issues

Prior to trial, Cheng moved to sever the indictment for possession of a "sawed-off" shotgun from the other indictments. The trial court denied the motion. At trial, the court admitted the shotgun into evidence over Cheng's objection. Cheng assigns error to both rulings.

A court may direct that an accused be tried at one time for all offenses pending against him if (1) "justice does not require separate trials," Rule 3A:10(b), and (2) "the offenses are based on the same act or transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan," Rule 3A:6(b). Whether different offenses should be tried separately is a matter that rests within the sound discretion of a trial court. Fincher v. Commonwealth, 212 Va. 552, 553, 186 S.E.2d 75, 76, cert. denied, 409 U.S. 913, 93 S.Ct. 243, 34 L.Ed.2d 174 (1972); Bryant v. Commonwealth, 189 Va. 310, 315, 53 S.E.2d 54, 56 (1949). Thus, a trial court's ruling on the matter will not be reversed absent a showing that the court abused its discretion. Fincher, 212 Va. at 553, 186 S.E.2d at 76.

Generally, evidence of other offenses is inadmissible if it is offered merely to show that an accused was likely to commit the crime for which he is being tried. There are, however, well-established exceptions to the general rule.

Evidence of other offenses is admitted if it shows the conduct and feeling of the accused toward his victim, if it establishes their prior relations, or if it tends to prove any relevant element of the offense charged. Such evidence is permissible in cases where the motive, intent or knowledge of the accused is involved, or where the evidence is connected with or leads up to the offense for which the accused is on trial.

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