State v. Nguyen
| Decision Date | 05 May 2006 |
| Docket Number | No. 91,350.,91,350. |
| Citation | 133 P.3d 1259 |
| Parties | STATE of Kansas, Appellee, v. Giang NGUYEN, Appellant. |
| Court | Kansas Supreme Court |
Korey A. Kaul, assistant appellate defender, argued the cause and was on the brief for appellant.
Tamara S. Hicks, assistant county attorney, argued the cause, John P. Wheeler, Jr., county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
For Giang T. Nguyen's (Giang) involvement in actions against the Giang Nguyen family (no relation) on November 11, 2002, he was convicted of first-degree felony murder, aggravated kidnapping, five counts of kidnapping, aggravated burglary, conspiracy to commit kidnapping, and conspiracy to commit aggravated burglary. This court hears his appeal pursuant to K.S.A. 22-3601(b)(1) ().
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in allowing into evidence certain information from the confession by coconspirator Ngan Pham? Yes, but it was harmless error.
2. Did the district court err in denying Giang's motion to suppress his own statements to police? No.
3. Did the district court err in allowing into evidence certain photographs? No.
4. Did the district court err in determining that Giang's convictions of felony murder and aggravated kidnapping were not multiplicitous? No.
5. Were Giang's rights of confrontation violated when the district court admitted his own statements into evidence? No.
Accordingly, we affirm.
The Nguyen family lived together in a home located at 522 Colony in Garden City, Kansas. The family consisted of the father, Giang Nguyen; the mother, Bau Tran; two sons, Thang and Thai Nguyen; and two daughters, Ann and Hong Nguyen.
Around 4:30 a.m. on November 11, 2002, Thai entered the garage on his way to work. As he went through the garage, a masked gunman ordered him to put his hands behind his head. The gunman forced Thai into the doorway of the house and pushed him to the floor.
Ann was in the kitchen when she heard Thai make a strange noise. As she looked to see what was going on, two masked gunmen pushed their way into the residence. The men told Ann and her brother Thang to lie down on the floor in the living room.
When the father came out of his bedroom, the gunmen forced him to lie down on the living room floor as well.
One of the gunmen went into the bedrooms; he forced Hong and her mother into the living room at gunpoint and made them lie down next to the other family members.
Three masked gunmen were now in the house. After all the family members were in the living room, one of the gunmen tied up the family members with ripped T-shirts. He then turned to his associate and said
Thang then said, "Nam, what are you doing?" Hong stated, "Nam, whatever you want to take, take it." Ann also stated, "Nam, let us go." Thang then made a break for the kitchen.
While gunman "Nam" pursued Thang, Thang's two sisters ran to the neighbors' house to call the police. After Thang ran into the kitchen, he was shoved to the floor by one of the gunmen and shot twice. Shortly afterward, the three gunmen ran out of the residence.
According to the coroner, Thang died of internal bleeding due to multiple gunshot wounds. One gunshot entered the left side of his chest and eventually lodged in his right thigh, perforating his lung and other organs. This shot was almost straight downward and, according to the coroner, was the most lethal. The other gunshot, which was slightly downward, entered Thang's left back and exited his left chest, then entered and exited his left forearm. The coroner later opined that the back shot happened first.
After hearing of the home invasion on the news, a clerk at the local Kwik Shop called law enforcement to advise that three Vietnamese men had come into the store around 4 a.m. that day. Law enforcement retrieved the surveillance tape which revealed three Vietnamese men later identified as Ngan Pham, the defendant Giang, and his brother Nam Nguyen.
David Falletti, KBI special agent, assisted the Garden City Police Department and took Ngan Pham into custody in Liberal the next day, November 12. After the interview of Ngan Pham, Falletti obtained a search warrant for Pham's 1991 blue Pontiac Firebird. The search revealed a coat which appeared to match one that Pham was wearing in the Kwik Shop tape. The search also revealed a fully loaded Ruger .45 caliber pistol, a fully loaded Smith and Wesson 9 mm pistol, a fully loaded Smith and Wesson .40 caliber pistol, an FEC .45 caliber pistol, and a loaded .22 caliber RG Industries revolver, plus five black ski masks, numerous yellow gloves, and a water bottle that was similar to the bottles that had been purchased from the Kwik Shop.
Giang voluntarily turned himself in to Saline County authorities on November 13, 2002, 2 days after the home intrusion. Garden City Detectives Jerry Schiffelbein and Larry Watson drove to Salina to interview him. After the detectives obtained Giang's written confession with the aid of an interpreter, Watson transported him to the Finney County jail in Garden City.
Giang filed a motion to suppress the statements he made to Garden City detectives on November 13. Specifically, he alleged that the interpreter used during the interview was not qualified under K.S.A. 75-4351(e); that he did not understand the rights he waived; and that he was not readministered Miranda warnings prior to being asked questions by Watson on the drive to Garden City.
At the suppression hearing detectives Schiffelbein and Watson, interpreter Dam Dinh, and Giang all testified.
Dam Dinh testified that he assisted Garden City detectives in interpreting Vietnamese during the interview According to Dinh, he grew up in Vietnam, came to the United States when he was 16 years old, and was 31 at the time of the suppression hearing. He described himself as being "pretty much" fluent in English, having learned it by attending high school in the United States. He had translated for Dodge City High School and the Dodge City Police Department between 1992 and 1995 and was currently the main interpreter for the Saline County Police Department. Dinh testified he had not taken any courses on interpreting.
Dinh testified that during the interview he, two detectives, and Giang were present. He translated the detectives' questions into Vietnamese and Giang's answers into English. He had no problems communicating with Giang and believed that Giang understood what he was saying. He also testified that he understood what Giang was saying to him and to the detectives. Dinh testified that he interpreted for Giang to the best of his ability. He did not believe Giang was under the influence of alcohol or drugs, and Giang appeared to be "lucid" and "understanding."
According to Dinh, he was compensated by Finney County for the services he provided. He did not know Giang, the decedent Thang Nguyen, Thang's family, or any of the police officers involved in the investigation.
Dinh further admitted that before interpreting for Giang, he did not ascertain which part of Vietnam Giang was from. He testified that the cultural differences between South and North Vietnam are subtle, but there is a difference in accent.
Detective Schiffelbein then testified, stating that Detective Larry Watson and Dam Dinh assisted him with Giang's interview which began at 3:58 p.m. and lasted almost 3 hours.
According to Schiffelbein, the detectives identified themselves through the interpreter and explained to Giang that they needed to speak with him about incidents that had happened in Garden City. The interpreter and Giang were each provided with a copy of Miranda warnings translated into Vietnamese, while Schiffelbein retained an English copy. Schiffelbein read aloud the Miranda warnings in English, and after he completed each line, the interpreter repeated them to Giang in Vietnamese. After the completion of reading each line, Giang was instructed to initial his Miranda form if he understood what was advised of him.
Schiffelbein testified that Giang did not verbally respond after the reading of each Miranda line, but he initialed next to each statement as Schiffelbein had requested. Schiffelbein then asked Giang if he understood each of these rights as had been explained to him, and Giang responded "Yeah" in English. Schiffelbein then asked Giang if he would "speak . . . having his [Miranda rights] in mind," and Giang said he would.
According to Schiffelbein, Giang said he was 24 years old, had grown up in Vietnam, and had completed the 6th grade there. He came to the United States in 1996 and went to high school for approximately 2 months. At the time of the interview, Giang had been in the United States for 6 years.
Schiffelbein testified that he did not threaten Giang or promise him anything in order to coerce Giang to elicit a response. According to Schiffelbein, Giang did not indicate that he did not want to talk to the detectives, and he did not ask for an attorney. In addition, Schiffelbein stated that Giang did not ask for a break or to use the bathroom. Although two breaks were taken, Giang opted not to use the restroom but was given a soda.
Based on Schiffelbein's observations, Giang did not appear to be under the influence of drugs or alcohol, but rather appeared relaxed and cooperative. Giang occasionally answered the detective's questions without the use of the interpreter and provided short answers in English. On occasion, Giang asked to have the question repeated. The interview was video recorded by the Saline County jail; however, there was no audio on the tape. During the interview Giang was leg-shackled to his chair.
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