Nguyen v. State

• Decision Date: 14 October 1988
• Docket Number: No. F-86-786,F-86-786
• Citation: 769 P.2d 167,1988 OK CR 240
• Parties: Tuan Anh NGUYEN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 167

769 P.2d 167

Tuan Anh NGUYEN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-786.

Court of Criminal Appeals of Oklahoma.

Oct. 14, 1988.

As Corrected Dec. 13, 1988.

Rehearing Denied Feb. 9, 1989.

An appeal from the District Court of Tulsa County; Jay D. Dalton, District Judge.

Tuan Anh Nguyen, appellant, was convicted in Tulsa County District Court, Case No. CRF-82-1986, of three counts of Murder in the First Degree. He was sentenced to life imprisonment for Count I, and death for Counts II and III, and appeals. AFFIRMED.

John Street, Tulsa, for appellant.

Robert H. Henry, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Tuan Anh Nguyen was convicted by a jury in Tulsa County District Court for three counts of Murder in the First Degree. For Count I, the jury set punishment at life imprisonment. For Counts II and III, the jury found the existence of three aggravating circumstances in accordance with 21 O.S.1981, § 701.12 and recommended that the death penalty be imposed. The sentences were assessed accordingly by the trial court.

On the morning of May 24, 1982, Joseph and Myra White arrived at their home and found the dead bodies of Donna Nguyen, Mrs. White's first cousin, and Joseph and Amanda White, the White's two children. Each one had been stabbed to death. Subsequent police investigation led to the arrest of the appellant, Donna Nguyen's husband. Appellant was apprehended in Tucson, Arizona, and returned to Tulsa on June 30, 1986.

In appellant's first assignment of error, he complains that his right to equal protection was violated by the prosecutor's exclusion of three blacks from the jury panel by the use of peremptory challenges. Appellant relies on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in which the Supreme Court stated that, "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." Batson, 106 S.Ct. at 1717.

We find the appellant's reliance on Batson to be misplaced for two reasons. Initially, the Supreme Court stated that to establish a case of purposeful discrimination, a defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. (Emphasis added). Batson, 106 S.Ct. at 1703. The Supreme Court did not say that purposeful discrimination is to be presumed from the removal of veniremen of some racial group other than that of the defendant. Since the appellant was Vietnamese, not Black, we find Batson to be inapplicable.

Secondly, even if we were to assume that discrimination had been established, the Supreme Court stated that the burden then shifts to the State to come forward with a neutral explanation for the challenges. Batson, 106 S.Ct. at 1723. The record before us indicates that the prosecutor provided an explanation for challenging each of the black veniremen. The first was challenged because the prosecutor believed he demonstrated poor communication skills. The second was challenged because he had previously been falsely accused of a crime. Thus, the prosecutor felt he might harbor ill will toward the State. The third was challenged because the prosecutor believed she had been inattentive during the voir dire of the other jurors. The prosecutor stated that she appeared to have been sleeping before she was called to the panel. We find these reasons for challenge to be racially neutral. Therefore, we find this assignment of error to be without merit.

In the second assignment of error, appellant claims that the trial court erred by allowing evidence of other crimes to be presented during the first stage of trial. Through the testimony of Mrs. White, the State presented evidence of a prior altercation between the appellant and Donna Nguyen. At the time of this incident, the Nguyens were separated and Donna was staying with the Whites. According to Mrs. White, the appellant had come to her home, grabbed Donna around the neck and tried to drag her out of the house.

Specifically, appellant asserts that the notice filed by the State of intent to use other crime evidence was insufficient under the requirements of Burks v. State, 594 P.2d 771, 774-775 (Okl.Cr.1979). Appellant complains that the notice, filed eleven days before trial, lacked any detail of what happened other than the mere accusation of domestic abuse or assault and battery. Appellant further complains that the notice failed to specify when or where the incident occurred. Thus, appellant claims that he was unable to prepare an adequate defense for trial.

We agree with the appellant that the State's notice of intent to offer evidence of another crime was somewhat deficient. Such notices shall describe with the same particularity required of an indictment or information. Burks, 594 P.2d at 774. However, the purpose of the State's duty to give notice of its intention to introduce evidence of other crimes at trial is to insure against surprise on part of the defense, and to allow time for the defense to be heard prior to the information being placed before the jury. Clanton v. State, 711 P.2d 937, 938 (Okl.Cr.1985).

Under the circumstances of this case, this Court is convinced that the evidence did not surprise the appellant. During the preliminary hearing, defense counsel had cross-examined Mr. White about the incident. Moreover, during an in-camera discussion at trial, defense counsel acknowledged Mr. White's testimony of this incident at the preliminary hearing. Therefore, considering the extensive cross-examination by defense counsel of this altercation at trial, we find that appellant has failed to demonstrate any prejudice. This assignment is without merit.

In the next assignment of error, appellant claims that the trial court erred by admitting into evidence color photographs and slides of the victims' bodies. Appellant argues that since his defense was alibi, the only issue was the identity of the perpetrator. Thus, appellant asserts that the sole purpose of the photographs was to appeal to the passion and prejudice of the jury.

This argument was expressly rejected in Newbury v. State, 695 P.2d 531, 534 (Okl.Cr.1985), wherein this Court stated that in every criminal prosecution, it devolves upon the State to prove, first, the corpus delicti, and, second, that the crime was committed by the accused. Pictures of the murder victim are always useful in establishing the corpus delicti of the crime. Id.

For photographs to be admissible, their content must be relevant and their probative value must substantially outweigh their prejudicial effect. Smith v. State, 737 P.2d 1206, 1210 (Okl.Cr.1987), cert. denied 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1988). The fact that the pictures are gruesome does not of itself cause photographs to be inadmissible. Id. The probative value of photographs of murder victims can be manifested numerous ways including showing the nature, extent, and location of wounds, depicting the crime scene, and corroborating the medical examiner's testimony. Robison v. State, 677 P.2d 1080, 1087 (Okl.Cr.1984). We find that the probative value of the photographs and slides in the instant case is derived from each of the aforementioned examples. See also Castro v. State, 745 P.2d 394, 402 (Okl.Cr.1987), cert. denied 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1987); and Thompson v. State, 711 P.2d 936, 937 (Okl.Cr.1985), cert. denied 479 U.S. 830, 107 S.Ct. 115, 93 L.Ed.2d 62 (1986). Despite some repetition, we find no abuse of discretion in their admission.

In the fourth assignment of error, appellant contends that the trial court erred by admitting into evidence a shirt the appellant had left at a nearby apartment on the night of the murders. Specifically, appellant claims that the scientific tests performed on the shirt had altered its appearance. The admissibility of demonstrative evidence is within the discretion of the trial court, whose discretion will not be disturbed absent an abuse of that discretion. Banks v. State, 728 P.2d 497, 503 (Okl.Cr.1986).

The record reveals that the alterations to the shirt were adequately explained by the chemist who performed the tests. Moreover, the probative value of the shirt was the fact that it placed the appellant near the scene of the crime on the night of the murders. Therefore, we find no abuse of discretion.

In the next assignment of error, appellant contends that he was denied a fair trial because of six allegedly improper comments made by the prosecutor during trial. We shall address only five of the remarks, however, because the record reveals that one of the comments was not objected to at trial, and accordingly, any error therein has been waived. See Trevino v. State, 739 P.2d 1019, 1021 (Okl.Cr.1987); Fitchen v. State, 738 P.2d 177, 179 (Okl.Cr.1987).

Appellant first complains that the prosecutor attempted to define reasonable doubt to the jury during the voir dire examination. In response to a prospective juror's statement that she could consider the death penalty if she was sure "beyond a shadow of a doubt" that the appellant was guilty, the prosecutor commented as follows:

But, do you understand, ma'am, that the burden of proof is beyond a reasonable doubt. It is not 'overwhelming' or 'shadow of a doubt.' It is beyond a reasonable doubt.

(Tr. 159, 181). In overruling appellant's objection to the above statement, the trial court stated. "I think counsel for the State has properly stated it is by evidence beyond a reasonable doubt." (Tr. 181-182). We agree. The prosecutor did not define reasonable doubt, nor did he create an erroneous impression. See Stringfellow v. State, 744 P.2d 1277, 1279 (Okl.Cr.1987).

Furthermore, this Court has recognized that it is not grossly...