State v. Nguyen
Decision Date | 14 December 2007 |
Docket Number | No. 93,416.,93,416. |
Parties | STATE of Kansas, Appellee, v. Jeremy V. NGUYEN, Appellant. |
Court | Kansas Supreme Court |
Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for the appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, were with her on the brief for the appellee.
Jeremy V. Nguyen appeals his convictions for first-degree felony murder and for criminal discharge of a firearm at an occupied vehicle. Nguyen raises seven issues, none of which compel us to reverse his convictions.
Bang Tran was driving a vehicle in the right lane of a multiple-lane thoroughfare when he suffered a fatal gunshot wound, apparently from a weapon discharged from within a vehicle traveling in the same direction in the left lane. The Tran vehicle contained four passengers, one of whom also sustained a gunshot wound, albeit nonfatal. The other vehicle was driven by Josh Gallatin and contained three passengers, one of whom was Nguyen, seated in the backseat on the passenger side of the car. Gallatin said that after he heard gunshots coming from the back right passenger side of his car, he observed from the corner of his eye that Nguyen's arm was moving out of the open window. Bobby Xayavong, Nguyen's friend, testified that, on the day of the shooting, Nguyen said that he fired the weapon at the vehicle but did not mean to do it. Some evidence suggested that gang membership may have played a role in the shooting.
After the incident, the group in Gallatin's car eventually arrived at Nguyen's house, where Nguyen went into the backyard, carrying a plastic bag which appeared to contain a solid metal object. Later, investigators found two rounds of ammunition in Nguyen's backyard, which an expert opined had been extracted from the same weapon as the four shell casings collected from the shooting scene and the expended round removed from the victim's body. However, the weapon was never recovered.
Nguyen was age 16 at the time, and the case was commenced as a juvenile offender action. The State moved to prosecute Nguyen as an adult. At the adult certification hearing, the State presented evidence to establish the requisite probable cause of a preliminary hearing.
Nguyen objected to the hearing because there was no indication that his mother had been served with notice or that she had appeared at any of the prior juvenile proceedings. The district court overruled the objection, noting that Nguyen's father was present in court on that day and had been present at the prior hearings in juvenile court.
After the witnesses were examined, Nguyen objected to combining the adult certification hearing and the preliminary hearing, claiming that the consolidation resulted in an unconstitutional shifting of the burden of proof. He argued that he had to choose between his interest in being cared for as a juvenile against his right against self-incrimination. The district court overruled the objection, sustained the State's motion to prosecute Nguyen as an adult, found probable cause to believe that Nguyen had committed the crimes of first-degree murder and criminal discharge of a firearm at an occupied vehicle, and conducted an arraignment on those charges.
Ultimately, a jury convicted Nguyen on both charges. He appeals, claiming: (1) the prosecutor committed misconduct; (2) the court erred in conducting a preliminary hearing in conjunction with the adult certification hearing; (3) the adult certification hearing was invalid because of a failure to notify Nguyen's mother; (4) the evidence was insufficient to support adult certification; (5) the criminal discharge conviction was multiplicitous with the felony-murder conviction; (6) the giving of an Allen-type instruction was erroneous; and (7) cumulative errors deprived Nguyen of his right to a fair trial.
Nguyen complains of four comments by the prosecutor: two in opening statement and two in closing arguments. Trial counsel only objected to one of the opening statement comments, but the evolution of prosecutorial misconduct jurisprudence has eliminated the need for a contemporaneous objection to preserve the issue for appeal. See, e.g., State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
Furthermore, that evolution has led to the application of the same standard of review, regardless of whether the defendant provided an opportunity for the trial court to remedy the misconduct by lodging an objection. Albright, 283 Kan. at 428, 153 P.3d 497. That review progresses in steps.
First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If not, the analysis ends. If so, the court must decide whether the erroneous comments constitute plain error. In doing so, the court is guided by three factors:
283 Kan. at 428, 153 P.3d 497.
Typically, our cases separately analyze each challenged comment, and we will not break new ground in that regard. However, intuitively, one cannot divorce a comment from its context. In analyzing the meaning or harmful effect of an isolated portion of a statement or argument, one must look to the entire soliloquy.
Nguyen first complains about the following portion of the State's opening statement.
Nguyen contends the rhetoric was inflammatory. Further, he argues that it is improper to make such arguments in an opening statement. With respect to the latter contention, we have observed:
" " State v. Kleypas, 272 Kan. 894, 957, 40 P.3d 139 (2001), cert. denied 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 (2002), overruled on other grounds State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev'd Kansas v. Marsh, 548 U.S. ___, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006).
The challenged comment was preceded by the prosecutor's description of the path the bullet traveled through Tran's body. While the statement may have been more dramatic than it needed to be, it nevertheless set forth facts which would come out during the trial. Tran was 18 years old; he was struck by the bullet discharged from the Gallatin vehicle; and he was killed by that bullet. Previously, we have refrained from putting too fine a point on the distinction between stating the facts and making a forbidden argument. See State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) (). We continue that restraint and find that the prosecutor did not exceed the permissible latitude.
Nguyen's other opening statement challenge involved the following:
Nguyen reads that comment as playing to the sympathy of the jury by asking for justice for the victim Tran, prior to the introduction of any evidence. We cannot accept Nguyen's characterization. To the contrary, the comment is textbook opening statement language. The prosecutor is absolutely permitted to ask for a verdict which is supported by the evidence. Moreover, a verdict supported by the evidence is the very essence of justice.
Nguyen cites to two sections of the prosecutor's closing argument as evidencing misconduct. In the first portion of closing, the prosecutor argued:
Then, in the rebuttal portion of closing, the prosecutor...
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