Commonwealth v. Siny Van Tran (and Thirteen Companion Cases 1).

• Decision Date: 14 September 2011
• Docket Number: SJC–10425.
• Citation: 460 Mass. 535,953 N.E.2d 139
• Parties: COMMONWEALTHv.SINY VAN TRAN (and thirteen companion cases 1).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 535

953 N.E.2d 139

COMMONWEALTH

v.SINY VAN TRAN (and thirteen companion cases 1).

SJC–10425.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 11, 2011.Decided Sept. 14, 2011.

Robert F. Shaw, Jr., Brighton, for Nam The Tham.Janet H. Pumphrey, Boston, for Siny Van Tran.David D. McGowan, Assistant District Attorney, for the Commonwealth.Present: SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.CORDY, J.

In the early morning hours of January 12, 1991, six men were shot execution-style in the basement of an illegal gambling parlor in the Chinatown section of Boston. Five of those men—Man Cheung, Van Tran,² Chung Wah Son, David Quang Lam, and Cuong Khand Luu—died from gunshot wounds to the head. A sixth man, Pak Wing Lee, survived and testified at the trial.

After the shootings, arrest warrants were issued for the defendants, Siny Van Tran (Tran) and Nam The Tham (Tham), but by that time they had already left the United States. In 1999, Tran was arrested in China. Tham was arrested the following year, also in China. A grand jury indicted both defendants in 1999, and in December, 2001, they were extradited from Hong Kong. At a joint trial, the defendants were convicted on five charges of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. Each defendant was sentenced to five consecutive terms of life imprisonment.³ A third man alleged to have participated in the murders, Hung Tien Pham, has not been apprehended.

On appeal, the defendants assert several claims of error. Tran argues that the judge erred in denying their motions for severance where they presented mutually antagonistic defenses. Both defendants further contend that airline records that listed both of their names, and that of Hung Tien Pham, as ticketed passengers on a flight to Hong Kong departing three weeks after the murders, were improperly authenticated, constituted inadmissible hearsay, and provided an insufficient basis to justify the judge's consciousness of guilt instruction to the jury. They also argue that the prosecutor impermissibly vouched for the credibility of witnesses, argued facts that were not in evidence, and appealed to sympathy and emotion in his opening statement and closing summation. In addition, Tran argues that an inculpatory statement he made to Boston police detectives more than six hours after his arrest should have been suppressed because (1) he did not voluntarily and intelligently waive the constitutional rights afforded by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) his statement was not a free and voluntary act; and (3) he received a defective warning, through an interpreter, of his right to a prompt arraignment under Commonwealth v. Rosario, 422 Mass. 48, 661 N.E.2d 71 (1996).

For these reasons, the defendants request that we reverse their convictions and grant them new trials. We affirm the convictions, and decline to grant relief under G.L. c. 278, § 33E.

1. The facts. The jury could have found the following facts based on the testimony of the survivor, Pak Wing Lee (Lee); the testimony of the proprietor of the gambling house, Yu Man Young (Young); and on other evidence adduced at trial. We recite certain facts as they become relevant to the issues raised.

In the basement of the building at 85 Tyler Street in Chinatown, Young ran what witnesses interchangeably called a “gambling house” or a “social club.” There were card tables set out for men to play Mahjong, and Young provided tea and cigarettes. The gambling house was not open to the public, and an ornamental grate at the street level was kept locked at all times. There was a doorbell at the street level, and when it was rung, Young would view a closed-circuit video monitor trained on the front grate. If he recognized the person seeking entry, he or a doorman would allow him or her inside.⁴

At approximately midnight on January 12, 1991, Young arrived at the gambling house.⁵ One of the victims, Chung Wah Son, was working as the doorman that evening. Three other victims, Cuong Khand Luu, Man Cheung, and Van Tran, were playing cards with two men, known only as “Ah B” and “Tong Dung.”

At approximately 2 a.m., Lee arrived. He brought cash that he owed to Young's father for a gambling debt, and he stayed to gamble on a card game called “Cho Dai Dee,” or “Chase the Deuce.” ⁶ Approximately thirty minutes later, Tran entered the gambling house with the fifth victim, David Quang Lam. They had been drinking together at The Naked I nightclub. Soon after, Tran left by himself, returned to the gambling house again, and then left a second time.

Tran returned once more, this time with Tham and Hung Tien Pham. All three had guns. Tham carried a silver .38 caliber revolver, and Hung Tien Pham, a black .380 caliber semiautomatic handgun.⁷ Either Tran or Tham told everyone not to move and to kneel down.⁸ Lee dropped to his knees, placed his hands behind his head and bowed his head toward the ground. Cuong Khand Luu and Man Cheung knelt on the floor with their hands behind their heads. Van Tran remained seated and, laid his head on the Mahjong table. Ah B hid under the table. David Quang Lam remained standing.

Young saw Tham shoot Chung Wah Son as soon as he opened the door. Lee saw Tham shoot Man Cheung, and then “did not dare to look” anymore. Hung Tien Pham shot Cuong Khand Luu multiple times in the head. Neither Lee nor Young saw who shot Van Tran or David Quang Lam, but when the sound of gunshots ceased, both lay dead.

At this point, Lee heard Young say, “Hung [Tien Pham], no, no. Doesn't matter how much money you want, I'll give it to you. If you want money, you want all, I give you all.” Hung Tien Pham said, “I can spare your life.” ⁹ Ah B was kneeling on the ground next to Lee also pleading for his life. Then, Lee felt Hung Tien Pham place a gun to the back of his head. Lee pleaded with him not to fire, but Lee heard a bang, and then nothing.

After Lee was shot, Tran, Tham, and Hung Tien Pham, along with Young and Ah B, left through the front entrance, and Young locked the front grate behind them. They all ran in different directions.

At approximately 4 a.m., Lee regained consciousness. He crawled out the back door of the gambling house, and outside to a second locked grate, where he shouted for help. Harold “Bud” Farnsworth, a security guard at New England Medical Center, was on a break outside when a young couple told him a man was lying on the ground across the street. Farnsworth ran across to the rear of the gambling house. Lee was leaning on the locked grate, moaning and bleeding from his head. Farnsworth flagged down a police vehicle and two police officers approached Lee, who could not speak but made a shooting gesture with his index finger and thumb. Farnsworth and the police officers pried open the locked rear grate with a tire iron, entered the gambling house and saw “dead people all over the place.” The victims all had been shot in the head.¹⁰

Money and playing cards had been left on the tables and were strewn about the floor. Some card tables were overturned. A cellular telephone was on the floor. A silver .38 caliber revolver was on one table. A black .380 caliber semiautomatic handgun was on the floor, underneath a table and behind a chair. Shell casings, projectiles, and live rounds of ammunition were all over the floor. A forensics expert with the Boston police department concluded that the .38 caliber revolver had been fired five times, while the .380 caliber semiautomatic handgun had been fired four times, and three live rounds had been manually ejected. However, some of the shell casings and projectiles collected in evidence did not match either the .38 caliber revolver or the .380 caliber semiautomatic handgun, meaning that a third unrecovered firearm had been used. Some of the bullet fragments taken from the bodies of the victims were fired from this third unrecovered firearm.

On December 21, 2001, the defendants were flown to San Francisco and transferred to the custody of Joseph Tamuleviz, a special agent with the United States Drug Enforcement Agency; Kevin Constantine, an agent with the Federal Bureau of Investigation (FBI); another FBI agent; and a United States marshal. The agents then transported the defendants to Boston with a layover in Washington, D.C. En route, Tamuleviz said that he told Tham: “[I]f he acted like a gentleman, I would treat him like a gentleman” Tamuleviz stated that Tham replied, in English: “I was there, they gave me a gun, but I didn't kill anybody.” ¹¹

The next day, after arriving at Logan Airport and spending the night in a holding cell at a police station, Tran made a statement to Boston police detectives in which he explained, inter alia, that he arrived at the gambling house with David Quang Lam and left between 3 a.m. and 4 a.m. to look for cocaine. He said he had returned to the gambling house when Hung Tien Pham and another man came in and began shooting. He said he escaped by running outside and then took a bus to Atlantic City “to gamble and to have fun.” Thereafter, he traveled to Philadelphia and from there flew to Hong Kong on a passport issued in the name of Wah Tran. Before his arrest, he was living in the Quangxi province of China.

2. Severance. Prior to trial, Tran filed a motion to sever.¹² He argued that he and Tham would present mutually antagonistic defenses at trial, which necessitated severance. See Commonwealth v. Moran, 387 Mass. 644, 657–659, 442 N.E.2d 399 (1982). The judge denied the motion, ruling that severance was not required, even in the face of mutually antagonistic defenses, where the jury could discredit both defendants' theories of the case and, instead, credit eyewitness testimony and other evidence.

On appeal, Tran argues that substantial prejudice arose when Tham's counsel impeached Lee's statement (made during direct examination) that Tham had ordered...