Pham v. State , SC08–2355.

• Decision Date: 09 September 2011
• Docket Number: No. SC08–2355.,SC08–2355.
• Citation: 70 So.3d 485
• Parties: TAI A. PHAM, Appellant,v.STATE of Florida, Appellee.
• Court: Florida Supreme Court

70 So.3d 485

TAI A. PHAM, Appellant,

v.STATE of Florida, Appellee.

No. SC08–2355.

Supreme Court of Florida.

June 16, 2011.Rehearing Denied Sept. 9, 2011.

James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, FL, Meredith Charbula and Kenneth Sloan Nunnelley, Assistant Attorneys General, Daytona Beach, FL, for Appellee.PER CURIAM.

This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm Pham's conviction and sentence.

Overview

On March 7, 2008, Tai Pham (Pham) was convicted in Seminole County for the first-degree murder of his estranged wife Phi Pham (Phi), the attempted first-degree murder of her boyfriend Christopher Higgins (Higgins), the armed kidnapping of his stepdaughter Lana Pham (Lana), and armed burglary. Pham entered Phi's apartment where her oldest daughter, his stepdaughter Lana, was alone and awaiting Phi's return. After binding Lana, Pham hid in her bedroom for an hour, then stabbed Phi at least six times as she entered the room. Prior to returning to the apartment, Phi and Higgins were together at a party and returned in different vehicles. Phi's stabbing occurred while Higgins secured his motorcycle outside. Once Higgins entered the apartment, he struggled with Pham. During the struggle, Lana was able to get free and call the police. Higgins was severely injured during the struggle, but was able to subdue Pham until the police arrived. Both Lana and Higgins testified at trial. Pham was the sole witness for the defense. On May 22, 2008, the jury, by a vote of ten to two, recommended the death penalty after the penalty phase. After the Spencer¹ hearing held on November 14, 2008, the trial court found the aggravators ² outweighed the mitigation ³ and entered a sentence of death. This is Pham's direct appeal.

On appeal, Pham raises seven issues: (1) that the prosecutor's improper statements during closing arguments entitle him to a new trial, (2) that juror misconduct entitles him to a new penalty phase, (3) that the trial court erred in finding the prior violent felony aggravator, (4) that his death sentence is unconstitutional because the aggravating circumstances were not alleged in the charging document, (5) that the trial court erred in finding the murder was heinous, atrocious, or cruel (HAC), (6) that the trial court erred in finding the murder cold, calculated, and premeditated (CCP), and (7) that his death sentence is not proportionate. Additionally, we review the sufficiency of the evidence to support Pham's conviction.

Discussion

Pham raises seven issues on appeal. In addition, although the issue is not raised by Pham, we are required to review the sufficiency of the evidence to uphold Pham's conviction. Because we find them to be without merit, we deny each of Pham's claims on appeal. Additionally, we find that the evidence presented below is sufficient to support Pham's conviction.

Prosecutorial Misconduct

Pham alleges that the State made two improper arguments that entitle him to a new trial. Contemporaneous objections were made to both statements, and, accordingly, they have been properly preserved for review. Because the prosecutor's comments were a reasonable summary of the evidence presented at trial, we deny relief on this claim.

The first portion of the argument to which Pham objects states:

MR. STONE: But I just do want to quickly address the Defendant's testimony.

And, you know, in a nutshell, the way that you can describe the Defendant's testimony is a desperate man telling a desperate story. That's exactly what it is.

I won't spend more than a few moments on the Defendant's testimony because that's all it deserves, if that much, but there are a few points that I do want to make. And some of the things that he said are just nonsensical, that just don't make sense.

The second portion of the argument to which Pham objects states:

MR. STONE: You know, Mr. Pham testified, the Defense chose to present a case in this case, they chose to present evidence, and still they have not provided an explanation as—

The law is well-settled that “[w]ide latitude is permitted in arguing to a jury.” Breedlove v. State, 413 So.2d 1, 8 (Fla.1982). Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments. Thomas v. State, 748 So.2d 970, 984 (Fla.1999). “It is within the judge's discretion to control the comments made to a jury, and [this Court] will not interfere unless an abuse of discretion is shown.” Moore v. State, 701 So.2d 545, 551 (Fla.1997).

The State asserts that the prosecution's comments were a fair and accurate description of the evidence presented to the jury. We agree. Pham's testimony regarding Phi's death was that he was not sure how she'd been stabbed but that he never stabbed her. Further, Pham testified that his teenaged step-daughter consented to being tied and bound even after arguing with him over his dismissal of her friends who had attempted to visit. Accordingly, we deny relief on this claim.

Juror Misconduct

Next, Pham alleges that the jurors prejudged him and began deliberations prior to receiving instructions. The crux of Pham's claim is that his Vietnamese nationality figured prominently in the penalty phase and that the jury was prematurely disinclined to accept Pham's nationality and upbringing as mitigation. Because it is not apparent on the record that the comments affected the verdict or sentence recommendation in any way, the trial court did not abuse its discretion in denying Pham's motion for a new penalty phase and we deny Pham's claim.

An alternate juror, Valenti,⁴ brought these allegations to the trial court's attention. Valenti wrote a letter stating that he had overheard jurors making inappropriate statements. Based on the information contained in the letter, the trial court interviewed Valenti and two other jurors.

Juror Kristen Appleman stated that she heard a comment in passing: “I think just the comment of, you know yes, everyone had a rough life in some case, but you are—this is the law, this is—there is right and wrong, and, you know, if you wanted to come to America, you have to live by American standards, American Law.” Appleman stated that the comment was made in passing and not directed at anyone—it was not a conversation. She further stated that she did not “get the sense that anyone ha[d] their mind made up or would not listen to a certain piece of information and take it in consideration.”

Juror Peter Perkins stated that he heard idle chitchat about people having tough luck, but that he did not know who said it. Perkins stated that the comments were made walking down the hallways, but not in the jury room.

The trial court reserved ruling on the defense's motion for mistrial, but reminded the jury not to form any definite or fixed opinion on the merits of the case until all evidence had been presented. The court ultimately denied the motion. While we strongly discourage jurors from this sort of behavior, indeed any discussion of the case or parties at all prior to deliberations, we do not find that these comments rise to the level of ethnic bias.

The Court has addressed the issue of juror misconduct and a court's power to discharge the jury and declare a mistrial:

“It has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity.” Thomas v. State, 748 So.2d 970, 980 (Fla.1999) (citing Salvatore v. State, 366 So.2d 745, 750 (Fla.1978)). Moreover, addressing allegations of juror misconduct is left to the sound discretion of the trial judge. Doyle v. State, 460 So.2d 353, 357 (Fla.1984).

England v. State, 940 So.2d 389, 402 (Fla.2006). Specifically, with respect to a motion for mistrial, the Court has noted:

A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial. Snipes v. State, 733 So.2d 1000, 1005 (Fla.1999). A trial court's ruling on a motion for mistrial is subject to an abuse of discretion standard of review. Perez v. State, 919 So.2d 347 (Fla.2005), cert. denied, 547 U.S. 1182, 126 S.Ct. 2359, 165 L.Ed.2d 285 (2006).

England, 940 So.2d at 401–02.

Seibert v. State, 64 So.3d 67 (Fla.2010).

Any inquiry into juror misconduct must be limited to objective demonstration of overt acts committed by or in the presence of the jury or jurors which reasonably could have affected the verdict. Powell [ v. Allstate Ins. Co.], 652 So.2d [354,] 356 [ (Fla.1995) ]; [ Baptist Hospital of Miami, Inc. v.] Maler, 579 So.2d [97,] 101 [ (Fla.1991) ]; State v. Hamilton, 574 So.2d 124, 128–29 (Fla.1991).

Wilding v. State, 674 So.2d 114, 117–118 (Fla.1996), receded from in part by Devoney v. State, 717 So.2d 501, 505 (Fla.1998) (“We recede from that portion of Wilding which says that, while the jurors' subjective beliefs inhere in the verdict, any discussion of them can become an overt act of misconduct.”).

If the [misconduct is] such that [it] would probably influence the jury, and the evidence in the cause is conflicting, the onus is not on the accused to show he was prejudiced for the law presumes he was. But it should be clearly understood that not all [misconduct] will vitiate a verdict, even though such conduct may be improper. It is necessary either to show that prejudice resulted or that the [misconduct was] of such character as to raise a presumption of prejudice.

Amazon v. State, 487 So.2d 8, 11 (Fla.1986) (alterations in original) (quoting Russ v. State, 95 So.2d 594, 600–01 (Fla.1957)).

Pham's argument here is basically one of ethnic bias—that some jurors were not willing to accept his mitigation based on his...