Dang v. Commonwealth

• Decision Date: 10 January 2014
• Docket Number: Record No. 130553.
• Citation: 752 S.E.2d 885,287 Va. 132
• Court: Virginia Supreme Court
• Parties: Lam DANG v. COMMONWEALTH of Virginia.

287 Va. 132

752 S.E.2d 885

Lam DANG

v.COMMONWEALTH of Virginia.

Record No. 130553.

Supreme Court of Virginia.

Jan. 10, 2014.

Lauren Whitley, Senior Assistant Public Defender, for appellant.

Donald A. Jeffrey, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

PRESENT: All the Justices.

Opinion by Justice ELIZABETH A. McCLANAHAN.

A jury convicted Lam Dang of one count each of murder and violation of a protective order. Relying on Code § 19.2–169.1, Dang argues on appeal that the circuit court erred in failing to order a second competency evaluation after his counsel discovered new information regarding Dang's life history and physical trauma he suffered as a child. We reject Dang's argument and will affirm his convictions.

I. BACKGROUND

A. Competency Evaluation Report

After Dang was charged with murder and felony protective order violation for the death of Nguyet Lu, the Fairfax County Juvenile and Domestic Relations Court granted Dang's motion for a competency evaluation pursuant to Code § 19.2–169.1. On January 12, 2011, Dr. Kristen A. Hudacek, a court-appointed psychologist, submitted an evaluation of competency report in which she found Dang competent to stand trial. Her evaluation was based on the background information provided to her by Dang and his counsel as well as her own clinical observations. Because Dang's preferred speaking language is Vietnamese, an interpreter assisted in translation during Dr. Hudacek's evaluation. Dang, who was 40 years old at the time of the evaluation, informed Dr. Hudacek that he was born in South Vietnam and moved to Philadelphia at the age of 17. He denied having any prior psychological problems or history of hospitalization for mental health related issues. Dr. Hudacek noted that despite her inability to gain additional information from collateral sources, she “believes the information is an accurate portrayal of [Dang's] current functioning as it relates to the question of competency to stand trial.”

In evaluating whether Dang was competent to stand trial, Dr. Hudacek considered Dang's understanding of the legal process, appreciation of the legal process as it applied to his case, capacity to communicate with his counsel, and capacity to make decisions. Accordingto Dr. Hudacek, Dang understood he was charged with “[m]urder, killing someone, second degree” and could receive “up to 40 years in jail.” ¹ He also understood the roles of the jury, the judge, his lawyer and the Commonwealth's Attorney. Dang understood his attorney was “working on his behalf” and “the importance of relaying information about the facts of his case.” Dang stated “he would speak to his attorney if he wanted to relay information about any concerns he had during a hearing or trial.” Although “Dang was mostly able to provide a rational, logical, coherent explanation of facts that would aid his attorney in defending him,” Dr. Hudacek noted that he “does become very focused on providing information that may paint him in a favorable light.” According to Dr. Hudacek, Dang “was able to discuss his legal situation in a manner that demonstrated weighing his options and basing decisions upon the potential best outcome given the circumstances and after conferring with counsel.”

Dr. Hudacek stated that while Dang's speech was coherent, “he frequently shifted topics to the time of the offense and facts related to his relationship with the alleged victim.” For example, prior to the start of the interview, Dang “immediately began speaking about his case after [Dr. Hudacek] introduced herself” and “was asked three times to stop talking until his interpreter arrived.” The information Dang related to Dr. Hudacek “included facts about the case that would have been best kept for discussion with his attorney or following full disclosure of the nature and purpose of the interview.” Finding it necessary to repeatedly re-direct Dang to the questions posed, Dr. Hudacek noted Dang “seemed highly focused on providing ‘his side of the story’ ” and/or “worried about his situation.”

Dr. Hudacek reported that Dang “was highly concerned about going to trial, as he believed [his life] would be over.” He presented “in a manner that appear[ed] related to anxiety about the alleged charges and potential sentence he is facing.” Dr. Hudacek explained that his situational anxiety “does not suggest that [he] suffers from a major mental illness that would affect abilities relevant to competency to stand trial.” Although she noted that Dang tended to “become anxious and excitable” in persisting to relay facts regarding his case, his impulse in this regard “is consistent with most defendants who face legal charges.”

In determining that Dang was competent to stand trial, Dr. Hudacek stated that “it does not appear that [Dang] currently suffers from a mental illness and/or cognitive or intellectual impairment.” Furthermore, Dr. Hudacek did not believe that “Dang's capacity to communicate with counsel is impaired by mental illness.” Based on Dr. Hudacek's evaluation and the information available to her, she concluded that “Dang has sufficient, present ability to consult with his attorney with a reasonable degree of rational understanding,” “possesses a rational as well as factual understanding of the proceedings against him,” and “is able to assist in preparing for his own defense.”

B. Motion for Second Competency Evaluation Before Trial

Dang's counsel moved for a second competency evaluation on December 1, 2011, eleven months after the first evaluation and four days prior to his trial, which was scheduled to begin on December 5.² According to the motion, on November 30, 2011, Dang's counsel learned “extensive information about Mr. Dang's history, family, and childhood which dramatically differs from the versions previously provided by Mr. Dang” giving counsel reason to believe that Dang “has over a 30 year history of suffering from developmental disabilities, cognitive functioning difficulties, effects of traumatic brain injury, and mental illness including but not limited to post-traumatic stress disorder.”

At the hearing on the motion, counsel stated that the new information regarding Dang's history was discovered when plans were being made for Dang's family to travel from Pennsylvania for the trial. In particular, Mrs. Hoa Pham, who identified herself as Dang's biological mother, told defense counsel that beginning at the approximate age of 6 years, Dang was subjected to repeated physical assaults from teenagers and young adults as a result of “his appearance as someone who was American.” ³ Mrs. Pham said she found Dang “beaten in the head with rocks,” and “there were times when she was afraid his brain was going to come through his skull.” By Mrs. Pham's account, the beatings continued until Dang was in sixth or seventh grade at which point he stopped going to school. She believed the history of physical trauma to Dang adversely affected his mental health and potentially caused traumatic brain injury impairing his cognitive functioning. Counsel also informed the court that Dang's sister “confirmed that she saw Mr. Dang exhibiting symptoms of mental illness or similar trauma as well.”

As a result of the information learned from Mrs. Pham and Dang's sister, counsel spoke with the mental health professional who conducted the evaluation of Dang's sanity at the time of the offense. According to counsel, this individual indicated that such trauma could support a potential diagnosis of post-traumatic stress disorder and, in a severe case, it would not be uncommon for the patient to develop delusions of his life to replace the actual traumatic life history. Counsel also informed the court that communications with Dang had been difficult during the three months defense counsel had been working with him, that Dang was repeatedly confused and unable to recall recent discussions, and unable to focus conversations on issues that are relevant. Based on the newly reported history of head trauma and counsel's concern that Dang might be “operating under some delusion,” counsel asked for an evaluation to determine “whether [Dang] is able to effectively communicate with us and assist us in preparing his defense.”

Finding no probable cause to believe that Dang “lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense,” the circuit court denied the motion. The court explained that the report of the competency evaluation previously conducted indicated that Dang understood the proceedings against him and was able to assist his attorney in his own defense. According to the court, while there appeared to be “an element of a lack of candor,” it found no basis in the record to grant the motion.

C. Plea Colloquy ⁴

On the morning of trial, the circuit court conducted a plea colloquy with Dang, in which Dang pled not guilty to the charges of murder and violation of a protective order.⁵ During the colloquy, Dang provided his name and date of birth, denied being under the influence of alcohol or drugs, stated that he understood the charges against him and had discussed these charges with his counsel. Dang told the court he had given his attorneys the names of any witnesses who could testify on his behalf, that he was satisfied with the services provided by his attorneys, and that he voluntarily made the decision to plead not guilty.

Dang also stated that he understood he had a right not to testify on his own behalf or to testify if he so chose, and that his counsel had discussed with and advised him regarding the question of whether he should testify or not. In response to the court's inquiry as to his decision to have his case tried by a jury or judge, Dang expressed his desire to be tried by a jury. Dang acknowledged that if the jury found him guilty, the jury would also determine the appropriate punishment. Dang confirmed that he...