Nguyen v. State, S00A1552.

• Citation: 543 S.E.2d 5,273 Ga. 389
• Decision Date: 05 February 2001
• Docket Number: No. S00A1552.,S00A1552.
• Parties: NGUYEN v. The STATE.
• Court: Supreme Court of Georgia

543 S.E.2d 5

273 Ga. 389

NGUYEN v. The STATE.

No. S00A1552.

Supreme Court of Georgia.

February 5, 2001.

Tom A. Edenfield, Eric R. Gotwalt, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., Margaret E. Heap, Asst. Dist. Atty., Savannah, Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Daniel G. Ashburn, Asst. Atty. Gen., for appellee. HINES, Justice.

Minh Nguyen appeals his convictions for felony murder, aggravated assault, aggravated battery, battery, and possession of a firearm during the commission of a crime in connection with the fatal shooting of Kim Standfill and the wounding of Thanh Nguyen. He challenges the admission of his non-custodial and custodial statements and the introduction of evidence of an attempt to influence the testimony of the surviving victim, Thanh Nguyen. Finding the challenges to be without merit, we affirm.¹

At the time of the crimes, the victims, Kim Standfill and Thanh Nguyen, were living together and referred to each other as husband and wife. Minh Nguyen had been in the United States since 1979, and had known Thanh for 16 to 18 years. At one time, the two men were roommates, and Thanh had worked for Minh on a shrimp boat out of Savannah. By the time of the shootings, each man had his own boat from which each earned his livelihood.

Construed to support the verdicts, the evidence showed that on Friday, January 5, 1996, Minh played Chinese chess with Thanh at Thanh's home. The men did not fight or disagree that night, and Minh said he would return the next day to play again. However, Minh did not come to Thanh's home around noon the next day, as expected. That Saturday evening, January 6, 1996, Thanh and Kim went to sleep in the living room around 7:00 p.m. Between 9:00 p.m. and 10:00 p.m., Kim heard a knock, and told Thanh that someone was at the door. They asked who was there, and the reply was "Minh." Kim opened the door and Minh pushed it in and started shooting; Minh was wearing a red mask. He first shot Kim in the chest. Thanh held Kim and felt blood flowing from her chest. Kim went to the sofa and sat down. She attempted to smoke a cigarette, and she asked Minh, "Why are you shooting me and my husband?" Minh replied, "All of you have to die tonight." Kim's cigarette fell to the floor, and as she tried to retrieve it, she collapsed. Thanh bent down to pick Kim up, and Minh pointed his handgun at Thanh's head and fired. Thanh was shot in the shoulder and collapsed. Kim fell onto a chair. Minh walked over and kicked Thanh around the neck and hit him six or seven times in the head with the handgun. Blood was "all over." While Thanh was on the floor, Minh walked around him to Kim and shot her three more times. Minh tried to fire his weapon again, but it was out of bullets. He then hit Kim on the wrist with the handgun. As Minh walked into the kitchen, Thanh got up and tried to run out the door, to "flee for [his] life," but Minh went after him and held Thanh down. The two men struggled; Minh fell "into" the television. Thanh got Minh's mask off, ran outside, and threw the mask in the grass. Thanh was screaming.

Thanh ran to Minh's brother-in-law's home nearby to call for help. Thanh was so bloody that the man would not let him in, but the man's wife called 911. It was then 10:40 p.m.

Thanh returned home to check on Kim, but she was not there. Police and paramedics arrived on the scene. They found Thanh injured and very upset. Thanh related that his wife was also injured and that he was trying to find her. Thanh was put into an ambulance. While in the ambulance, Thanh spied Minh and his wife, Dongh Nguyen, driving by in a reported "burgundy" vehicle. Minh drove a red Chevrolet.

When the police initially arrived at Thanh's house, the back door was open and there was no sign of Kim inside. Police found a red mask in the yard. After searching for about 20 minutes, the police found Kim outside nearby on the ground. She had no pulse, no respiration, and her pupils were dilated. Resuscitation attempts were made, but she was dead upon arrival at the hospital. Kim had sustained three gunshot wounds to the right side of her head and a gunshot wound to the top of the right shoulder next to the collarbone.

At 11:13 p.m., the police received a 911 call from Minh at his home; Minh related that he had shot somebody and needed the police to come for him.² As a result of this 911 call, Detective Robbins, who had been at the crime scene, was dispatched to Minh's home, about three miles away. Robbins was able to communicate with Minh in English; Minh responded to Robbins' questions and Robbins understood what Minh was telling him. Occasionally, Minh's son would clarify a word or phrase by speaking in Vietnamese to his father. Minh told Detective Robbins that he had been in a struggle with a man in Savannah Gardens and in the process the person he was struggling with was shot. Robbins knew that a woman had been involved in the incident at Savannah Gardens, but Minh never mentioned a woman. In fact, when Robbins asked Minh if a woman had been present, Minh denied it. Robbins then thought that Minh might have been involved in a different incident, so he asked Minh if he would ride with him and show police where the shooting occurred. Minh agreed, and he and his son rode together in the back of a police car. Minh identified Thanh's home as the place of the shooting. Detective Robbins then advised Minh of his Miranda rights; Minh's son repeated the rights in Vietnamese and Minh indicated that he understood. Robbins then transported Minh and his son to headquarters.

At headquarters, Robbins reminded Minh of his rights and again Minh indicated that he understood. Minh gave an audio-taped interview at which Minh's son assisted in translating when Minh had a problem understanding a question. Minh told police that: He went to Thanh's home to confront him about doing damage to the motor of Minh's boat; Thanh denied doing the damage and then grabbed Minh and pointed a handgun at him; Thanh hit him with the handgun; Minh and Thanh began to struggle over the handgun causing it to fall to the floor; Minh picked up the handgun and began shooting wildly around him; Thanh and Kim jumped him; Minh threw the handgun down and ran away. Minh denied knowing anything about a red mask.

At the conclusion of the statement, Detective Stover took over. Stover stated that he knew that Minh had been advised of his rights and that Minh said that he understood them. But he again advised Minh of his rights and Minh executed a waiver of rights. Minh then made another statement to Detective Stover, which substantially echoed his statements to Detective Robbins. A city employee, who spoke English and Vietnamese, was brought in, and Stover went over Minh's statement in the presence of the interpreter. The statement did not change.

After Minh was released on bond, he went to Thanh's home three or four times. Thanh tried not to speak with him, and Minh told him, "I just want to talk or negotiate." One evening, Minh came to Thanh's home with his wife and sons and asked Thanh to help him. Minh asked Thanh to lie in court and to tell the court that the handgun and mask belonged to Kim; in exchange, Minh would help Thanh buy a $12,000 boat by paying for half of it. The next day, Thanh contacted his lawyer and the district attorney about the incident. The police arranged to equip Thanh with a listening device in order to monitor and record Minh's statements. Thanh called Minh to set up another meeting with him and that conversation was recorded. The police saw Minh and his wife leave Thanh's house after the arranged meeting, and Minh admitted that he gave Thanh $110 at that meeting.

Police later monitored a conversation between Minh's wife and Thanh. In that conversation, Minh's wife made veiled threats and tried to convince Thanh to make a false statement on Minh's behalf.

1. The evidence was sufficient to enable any rational trier of fact to find Minh Nguyen guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Minh fails in his contention that the trial court erred in admitting evidence of his non-custodial and custodial statements.

(a) Minh maintains that his initial statement to Detective Robbins about the alleged struggle with Thanh and the shooting, although admittedly non-custodial, was "so lacking in indicia of reliability as to render it inadmissible for any purpose"; he further argues that the "probative value of this poorly translated statement was outweighed by the prejudice of allowing the State to use it to impeach [him] with regard to the minor details of his account of the shooting." However, Minh did not object at trial to the admission of his initial statement on the grounds of poor translation and unreliability; therefore, these fail to provide bases of objection on appeal. Alexander v. State, 263 Ga. 474, 477, n. 6, 435 S.E.2d 187 (1993), citing Reeves v. State, 241 Ga. 44, 243 S.E.2d 24 (1978). His sole objection was that at the time of this statement, Detective Robbins had not advised him of any constitutional rights. But an individual is entitled to Miranda warnings only if taken into custody or deprived of freedom of action in a significant way. McAllister v. State, 270 Ga. 224, 227(1), 507 S.E.2d 448 (1998). There is no contention or showing that that was the situation here, and Minh concedes that he was not in custody.

(b) Minh next asserts that after being advised of his Miranda rights, he made "a second unrecorded statement to Detective Robbins while in custody in the back of a patrol car." He maintains that the court erred in admitting the statement because the Miranda warnings and his statement were translated by his son, who is not a certified translator and has only a limited understanding of Vietnamese; that he had...