State v. Nguyen
| Decision Date | 02 August 1994 |
| Docket Number | Nos. WD,s. WD |
| Citation | 880 S.W.2d 627 |
| Parties | STATE of Missouri, Respondent, v. Tung Van NGUYEN, a/k/a Khang Nguyen, Appellant. Tung Van NGUYEN, a/k/a Khang Nguyen, Appellant, v. STATE of Missouri, Respondent. 45787, WD 47824. |
| Court | Missouri Court of Appeals |
Robert E. Steele, Jr., Asst. Appellate Defender, St. Louis, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before ULRICH, P.J., and BRECKENRIDGE and SPINDEN, JJ.
Tung Van Nguyen, also known as Khang Nguyen, appeals his conviction following a jury trial on one count class A felony robbery in the first degree, § 569.020, RSMo 1986 1, two counts class A felony assault in the first degree, § 565.050, and three counts class A felony armed criminal action, § 571.015.1. Khang Nguyen was sentenced to thirty years in prison for robbery in the first degree, thirty years for the armed criminal action charge related to the robbery, and life in prison on each of the remaining four counts, to be served concurrently. Khang Nguyen also appeals the denial, without an evidentiary hearing, of his Rule 29.15 post-conviction motion.
The judgment of conviction is affirmed in part and reversed in part and remanded. The denial of the post-conviction motion is affirmed.
Khang Nguyen raises five points on appeal. He alleges that the trial court (1) plainly erred and abused its discretion when it denied his motion for a mistrial after gloves allegedly seized from him were produced at trial and when the court denied his request to have testimony concerning the gloves stricken for failure to disclose; (2) abused its discretion in overruling his objections to the admission into evidence of Officer Harrell Hockemeier's photo spread and in-court identifications of Khang Nguyen; (3) erred in overruling Khang Nguyen's motions for judgment of acquittal; and (4) abused its discretion in overruling his objections to the admission of demonstrative evidence showing that the fingerprints and a palmprint of a co-defendant had been lifted from a countertop in the jewelry store where the crimes occurred. Khang Nguyen also claims (5) that the motion court erred in denying his post-conviction motion without an evidentiary hearing.
The evidence is viewed in the light most favorable to the State and the court disregards all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, 510 U.S. 997, 114 S.Ct. 562, 126 L.Ed.2d 462 (1993). On March 25, 1991, the Phu Thanh jewelry store at 521 Campbell in Kansas City, Missouri, was robbed. Nini Chamberlin and Khoa Lam, the owners, and two customers were inside the store around 3:30 p.m. Access to the store for customers was through a locked security door which is opened by a button inside the store. Doi Nguyen, a student who works part-time at the store, 2 came to the front door of the store seeking entrance. The security door was released and Doi Nguyen was given access to the entrance. Just as Doi Nguyen was entering the store, two men came up behind him with guns and forced their way into the store. 3
The men started shooting. Speaking in Vietnamese, they ordered everyone to get down on the floor. Nini Chamberlin hid behind the counter but stated she could see everything. One assailant, later identified by Nini Chamberlin as Hung Nguyen 4, knocked Khoa Lam down and shot him. Khoa Lam testified that the bullet went "through his body."
As Doi Nguyen grabbed a gun kept in a drawer for protection, he was also shot. He ran to a restroom in the back and shut the door. The men cussed at Doi Nguyen, yelled at him to come out and shot back toward where he was hiding in the restroom. The men then broke the glass counters, took the jewelry out and left the store. After the robbery, Nini Chamberlin was unable to identify Khang Nguyen, appellant, as being one of the two men she observed robbing the jewelry store.
Vicki Townsend was a neighbor of the jewelry store at the time of the robbery. She lived in a second-floor apartment across the street. She testified that she heard a volley of gunshots at about 3:45 p.m. on March 25, 1991. She looked out her window and saw a silver van, with the word "safari" written on its side, parked in front of the jewelry store. In front of the van, Vicki Townsend observed a man holding a handgun against a woman's back and forcing her into the jewelry store. As Vicki Townsend watched through the glass front of the jewelry store, the man with the gun made the woman and another woman from inside the store lie on the floor.
Vicki Townsend called 911. She returned to a window and saw another man, whom she had seen earlier, holding something big and long covered with a towel or blanket. She then heard gunshots inside the store, "like machine-gun-type fire." Vicki Townsend observed a police car pull up just as three men exited the store. Vicki Townsend saw the "machine gun." She also saw the handgun and one man whose hands both were filled with jewelry. All three men took off running. Later, she was unable to identify any of the assailants.
Sergeant Harrell Hockemeier was the first police officer who answered the 911 call. As he approached in his car, he saw "three oriental males exit the jewelry store." The first man who came out, subsequently identified by Sergeant Hockemeier as Khang Nguyen, pointed a rifle at Sergeant Hockemeier, who ducked down in his car. When Sergeant Hockemeier raised up, he saw the man who pointed the weapon and another man running in one direction and the third man in another. Sergeant Hockemeier chased the single man. He apprehended the man, later identified as Tuan Vu, after finding him hiding behind a residence. Tuan Vu had several watches and bracelets and other jewelry in his possession. Sergeant Hockemeier later identified all three men in a photo lineup.
Officers David Edwards and Ronald Jenkins also answered the 911 call. As they arrived, Officers Edwards and Jenkins observed two men running in the street away from the store and ordered them to stop. When the two men did not stop, the police officers proceeded to chase them. Officers Edwards and Jenkins later identified the two men in a photo lineup as Khang Nguyen and Hung Nguyen.
During the chase Khang Nguyen and Hung Nguyen split up and ran in different directions. Officer Edwards followed Khang Nguyen and observed him throw down a semi-automatic rifle, a Ruger Mini-14. A Smith and Wesson revolver was later found on the path where Hung Nguyen ran. Khang Nguyen and Hung Nguyen rejoined and were seen running up a set of stairs to a porch. Khang Nguyen was pulling and knocking on the door of the building, while Hung Nguyen started emptying jewelry from his pockets. The men were apprehended and arrested.
Hung Nguyen was searched and found to have an assortment of jewelry in his coat pockets. Prior to being transported to the police department, the patrol wagon driver also searched Khang Nguyen. This officer found a green jade bracelet on a red and white mortar board in Khang Nguyen's pocket. The jewelry recovered from Khang Nguyen was later identified by Nini Chamberlin as belonging to the jewelry store.
During the investigation of the robbery, Hung Nguyen's fingerprints and palmprints were found on the countertops of the jewelry store. Khang Nguyen's fingerprints were lifted from the chamber of the Smith and Wesson revolver recovered from the path upon which Hung Nguyen had run. Vicki Townsend, the neighbor, testified that the Smith and Wesson revolver looked like the gun that was "up against the woman's back." Crime scene investigators found two .357-caliber spent bullets, which could have been fired from either the Smith and Wesson revolver discarded by Hung Nguyen or a Schmidt .38 revolver which was recovered from inside the jewelry store.
In addition, a .223 Remington shell casing was found inside the jewelry store. An expert testified that it was fired from the Ruger Mini-14 semi-automatic assault rifle abandoned by Khang Nguyen when he was running from the police. Vicki Townsend testified that the Ruger Mini-14 rifle "looked just like" the gun held by one of the men coming out of the jewelry store. Sergeant Hockemeier also testified that the Ruger Mini-14 rifle "appears to be the same weapon that was pointed in my direction" by Khang Nguyen.
When Khoa Lam and Doi Nguyen were taken to the hospital, they were described by Nini Chamberlin as "in critical." Khoa Lam was shot in the hip. Doi Nguyen had been shot "in the right chest, in the left flank and the left thigh, upper thigh." The emergency room doctor who treated Doi Nguyen testified that when Doi Nguyen was brought to the hospital he was in serious condition; "he had the potential for his condition or his present state to deteriorate further and that included the possibility of death." After surgery, Doi Nguyen was transported to the intensive care unit in "critical, but stable condition."
A jury found Khang Nguyen guilty of class A felony robbery in the first degree, two counts class A felony of assault in the first degree, and three counts class A felony of armed criminal action. The trial court accepted the jury's recommendation for sentencing and imposed sentences of thirty years in prison for class A felony robbery in the first degree, thirty years for class A felony armed criminal action in commission of the robbery and life in prison on the remaining four counts. Khang Nguyen appeals from these convictions. Khang Nguyen also filed a pro se motion and an amended motion for post-conviction relief pursuant to Rule 29.15. The motion court denied Khang Nguyen's 29.15 motion without an evidentiary hearing. Khang Nguyen filed a timely appeal of that denial. The appeals of the conviction and the post-conviction motion are consolidated in this proceeding.
Khang Nguyen's first point on appeal is that the trial court plainly erred and abused its discretion when it denied...
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