State v. Nguyen

• Decision Date: 22 May 1992
• Docket Number: No. 66274,66274
• Citation: 251 Kan. 69,833 P.2d 937
• Parties: STATE of Kansas, Appellee, v. Hung H. NGUYEN, Appellant.
• Court: Kansas Supreme Court

Page 937

833 P.2d 937

251 Kan. 69

STATE of Kansas, Appellee, v. Hung H. NGUYEN, Appellant.

No. 66274.

Supreme Court of Kansas.

May 22, 1992.

Syllabus by the Court

1. If an in-custody statement is taken in English from an accused whose primary language is not English, but who also speaks English, failure of the officers to have an interpreter in attendance pursuant to K.S.A. 75-4351(e) does not vitiate the statement if it was freely, voluntarily, knowingly, and understandingly made with full knowledge of the Miranda rights.

2. The voluntariness of a confession is to be viewed in light of the totality of circumstances, including the following factors: (1) the duration and manner of interrogation; (2) the accused's ability upon request to communicate with the outside world; (3) the accused's age, intellect, and background; and (4) the fairness of the officers in conducting the interrogation. The essential determination is whether the statement was the product of the accused's free and independent will. If the accused was not deprived of his free choice to admit, deny, or refuse to answer, the statement may be considered voluntary. The State has the burden of proving the statement was given voluntarily.

3. If a trial court conducts a full hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement into evidence at the trial, the appellate court will accept that determination if it is supported by substantial competent evidence.

4. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.

5. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.

6. A defendant has a constitutionally protected privilege to request and to obtain from the prosecution evidence that is material to the defendant's guilt or innocence. Suppression of such evidence is a violation of the defendant's Fourteenth Amendment due process rights.

7. Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be exculpatory and the withholding of the evidence must be prejudicial to the defendant.

8. There are three classifications regarding suppression of evidence: (1) a deliberate bad faith suppression for the purpose of obstructing the defense or an intentional failure to disclose evidence having high probative value and which could not have escaped the prosecutor's attention; (2) a deliberate refusal to honor a request for evidence that is material to guilt or punishment, irrespective of the prosecutor's good or bad faith in refusing the request; and (3) the suppression was not deliberate and no request for evidence was made, but hindsight discloses that the defense could have put the evidence to significant use.

9. Evidence is exculpatory if it tends to disprove a fact in issue that is material to guilt or punishment.

10. To justify a new trial based on suppression of evidence, the question is whether the defendant was materially prejudiced by the unavailability of the evidence. The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the record.

11. In the absence of fraud or bad faith on the part of the State and its investigative agents, due process does not require the State to invite the accused to participate in or to supervise testing procedures performed in the investigation of a crime, even if the amount of evidence remaining after the State's testing is so small the defendant will be unable to conduct an independent analysis of the evidence. The defendant's due process rights are protected by the opportunity to challenge the credibility of the State's expert and the validity of the testing procedures used through cross-examination or expert testimony.

12. All participants in a crime are equally guilty without regard to the extent of their participation. Any person who counsels, aids, or abets in the commission of any offense may be charged, tried, convicted, and punished in the same manner as if that person participated as a principal.

13. The trial court has an affirmative duty to instruct the jury on all lesser included offenses that the evidence supports. Instructions on lesser included offenses must be given even though the evidence supporting those offenses may not be strong.

14. If murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation that are otherwise required for first-degree murder. Instructions on lesser included offenses may be required only if the evidence supporting the commission of the underlying felony is weak, inconclusive, or conflicting.

15. If a trial court refuses to give a specific instruction, the appellate court must view the evidence to support such an instruction in the light most favorable to the party requesting the instruction.

Rick Kittel, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Rachelle Worrall Smith, Asst. Dist. Atty., argued the cause, and Julie Wright Connolly, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

ABBOTT, Judge:

This is a direct appeal by the defendant, Hung H. Nguyen, from his convictions of two counts of felony murder and one count each of aggravated robbery, aggravated battery, and aggravated burglary.

The defendant's issues on appeal fall into four categories, which defendant contends constitute reversible error. They are: (1) failure to suppress statements the defendant made; (2) remarks the trial judge made to the jury; (3) evidence that was destroyed and not available to the defendant; and (4) requested instructions that were not given.

Although not related, several of the people involved in this case share a common name with the defendant. In order to avoid confusion, Hung Nguyen will be referred to as the defendant and all others as indicated.

The incident from which the charges arose occurred in the early morning hours of January 18, 1987. On and prior to that date, Truong Dong To (Truong) rented an apartment and worked in Wichita. Phung Voung (Phung), Quang Nguyen (Quang), Hoat Nguyen (Hoat) and his two children, and the defendant either resided in Truong's apartment or spent time there, including occasionally spending the night.

There was evidence that all five men were present when Hoat told the group that he had heard about a Cambodian gambling party and that one of the female participants carried 5 to 10 thousand dollars in cash. According to Truong, Hoat suggested they rob the gambling party in order to have money to spend for the upcoming Vietnamese New Year celebration. Hoat and Phung continued to discuss the idea. Truong thought Hoat's suggestion was a joke, but told the others they would be better off if they found jobs. Truong was the only one who was employed.

Quang testified that the conversation was not about robbery, but about a friend of Truong's, Truong Srun, who had been beaten at a previous Cambodian gambling party at the same location. On cross-examination, Quang admitted he previously had acknowledged that a robbery had been planned, but he thought it was a joke. Quang also acknowledged that after the incident, he said that when he asked the defendant what had happened, the defendant replied, "Don't worry, just rob [sic ] the gambling party."

When Hoat, Phung, Quang, and the defendant prepared to leave in the early hours of January 18, 1987, Truong noticed they had two guns. Truong first testified the defendant had given Phung a nine millimeter automatic, but then stated Hoat had given Phung the nine millimeter and showed him how to use it. Quang's testimony confirmed Truong's latter statement that Hoat had given Phung the nine millimeter gun and showed him how to use it. According to both Truong and Quang, the defendant had a .38 revolver.

Truong testified that when he asked what they were planning to do, Phung responded, "[W]e have no money, we need money.... We're going to rob Cambodian people." Hoat, Phung, Quang, and the defendant left Truong's apartment between midnight and 3:00 a.m.

Kheum S. Em hosted the gambling party, attended by approximately 14 Cambodians. The guests were sitting in a circle and playing a Cambodian gambling game when there was a knock on the door. Most of the guests said the door was kicked in. Two men, who were dressed in black or dark clothing, burst in and said, "[D]on't move," in English. The guests later heard the intruders speaking in Vietnamese.

The guests thought each intruder had a gun. One of the guests stood up and attempted to grab one of the guns. Several shots were fired. Three of the guests were shot, two fatally. The intruders collected the money lying on the floor and a black purse containing over $1,000 in cash and then left.

Quang testified Phung and ...