State v. Pham
| Decision Date | 16 June 2006 |
| Docket Number | No. 90,848.,90,848. |
| Citation | 136 P.3d 919 |
| Parties | STATE of Kansas, Appellee, v. Ngan PHAM, Appellant. |
| Court | Kansas Supreme Court |
Appeal from Finney district court; Philip C. Vieux, Judge.
Ricklin R. Pierce, of Ricklin R. Pierce, Chartered, of Garden City, argued the cause and was on the brief for appellant.
Brian R. Sherwood, assistant county attorney, argued the cause, and John P. Wheeler, Jr., and Phill Kline, attorney general, were with him on the brief for appellee.
For Ngan Pham's involvement in actions against the Giang Nguyen family on November 11, 2002, he was convicted of first-degree felony murder, aggravated kidnapping, five counts of kidnapping, six counts of aggravated robbery, aggravated burglary, conspiracy to commit kidnapping, and conspiracy to commit aggravated burglary. He was sentenced to a life sentence plus 1,306 months, the maximum sentence allowed under Kansas law. This court hears his appeal pursuant to K.S.A. 22-3601(b)(1) (). Our opinion concerning one of his coconspirators, Giang Nguyen, who was tried separately, is found in State v. Nguyen, 281 Kan. ___, 133 P.3d 1259 (2006).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in denying Pham's Batson challenge at the conclusion of voir dire? No.
2. Did the district court err in admitting into evidence Pham's statements to law enforcement made without being provided an interpreter? No.
3. Did the district court err in admitting into evidence certain photographs? No.
4. Did the district court err in denying Pham's motion for judgment of acquittal as to the six counts of aggravated robbery because they were multiplicitous? Yes on five of the counts.
5. Were Pham's convictions of conspiracy to commit kidnapping and conspiracy to commit aggravated burglary multiplicitous? Yes.
6. Were Pham's convictions of aggravated kidnapping and felony murder multiplicitous? No.
7. Did the district court err in denying Pham's request for jury instructions on attempted aggravated kidnapping and attempted kidnapping? No.
8. Was Pham's sentence excessive? No.
Accordingly, we affirm in part, reverse in part, and remand for resentencing.
Giang Nguyen and his wife, Bau Tran, lived at 522 Colony in Garden City with their two daughters, Hong and Ann, and their two sons, Thai and Thang. Early in the morning on November 11, 2002, Thai opened the garage door to start his car to go to work. As he stepped out of the garage to walk toward the car, a man came up next to him out of the dark, pointed a gun to his head, and said The man pushed Thai back to the garage and made him lie down with his hands over his head. The man put his foot on Thai's back. He then told Thai to get up, and as Thai was entering his house, several men pushed him flat on his stomach and tied his hands behind his back.
From the kitchen, Thai's sister Ann had heard him yell, so she opened the garage door to look for him. Two men approached her and pushed her back into the house. All three men wore black masks and yellow gloves similar to gloves used at IBP, a local meat-packing plant where Ann had worked. Each one pointed a gun at her. They told Ann and Thang to lie down on the living room floor. Giang Nguyen, the father, then came out of the bedroom, and the masked gunmen forced him to lie down next to the couch in the living room.
Thai's other sister, Hong, was in her bathroom when she heard a voice say, She opened her bedroom door to find someone standing immediately outside. That masked man told her to hold her hands up, then pointed his gun at her forehead and took her to the living room. By his voice and eyes, she eventually recognized him as a coworker at IBP who, though unrelated to her father, was also named Giang Nguyen.
Thai's mother, Bau Tran, was still asleep in her bedroom when one of the masked gunmen pulled the covers off her bed, pointed his gun at her head, and said, "Get up." He led her into the living room to join the other five members of the Nguyen family lying on the floor. After one of the masked gunmen—whom witnesses said was not Giang Nguyen—tied up the family with white strips of cloth, he said to another gunman, He then left the room, leaving "Nam" alone with the family.
Thang looked up from the floor and said, "Nam, what are you doing?" His sister Hong also looked up and said, "Nam, whatever you want to take, take it." Their sister Ann then looked up and recognized the man as Nam, one of her former coworkers at IBP. Ann said, "Nam, let us go."
Thang then made a break for the kitchen, and Nam followed him. Ann got up, opened the front door, and ran out, with Hong following her. The two daughters ran to a neighbor's house and called the police.
While Thai was still lying in the living room, he heard two gunshots. Bau Tran, Thang's mother, then heard Thang say, "My God, I'm dying." The masked gunmen stepped on Thai's back and ran out of the house through the garage door. After looking up, Thai saw them get into a red car and leave. He loosened his hands and ran to the kitchen to call the police, and then saw his brother Thang lying down in the kitchen with his hands over his face. His mother, Bau Tran, joined them.
Thang had been shot twice. One shot, which was almost straight downward, entered the side of his left chest, and eventually lodged in his right thigh, perforating his lung and other organs. The other shot, which was slightly downward, entered Thang's left back and exited his left chest, then entered and exited his left forearm.
When the police arrived, Bau Tran directed them to her son Thang and pointed out the strips of white cloth the gunmen had used to tie up the family. Because the police told her to sit in the garage, Bau Tran went to her bedroom to get a coat and noticed that her dresser drawer was open. Inside the drawer, her black purse was unzipped and two pieces of jewelry were missing. One of the pieces of jewelry was a necklace with a 1 carat diamond pendant worth $600 belonging to her daughter Ann; the other was a diamond bracelet worth $5,000 belonging to her other daughter Hong. The daughters had worn the jewelry to a party the night before and given it to their mother for safekeeping when they returned home.
Garden City Police collected two live rounds of 9 mm ammunition, as well as two 9 mm shell casings in the Nguyen home. They also found six white pieces of cloth tied in knots matching the description of the victims' bindings. Acting on a tip, later that morning police obtained a surveillance video from a Kwik Shop in Garden City which showed three Asian males later identified as Nam Nguyen, his brother Giang Nguyen, and defendant Ngan Pham entering the store at 4:16:38 a.m. on November 11, 2002.
David Falletti, a KBI special agent, was assigned to look for Ngan Pham. On November 12, the day after the home intrusion, Falletti and Jason Ott, a Liberal detective, found Pham at Tan Tan's Pool Hall in Liberal. Pham was taken to the Liberal Police Department, where Falletti interviewed him.
Prior to conducting the formal interview, Falletti asked Pham if he understood English. Pham replied that he did. When Falletti asked if Pham wanted an interpreter, Pham replied that he did not need one. Falletti provided Miranda warnings by having Pham read them aloud from the card to him.
The interview revealed that Pham had been in the United States for approximately 25 years. He owned a blue 1991 Pontiac Firebird, which Falletti located at Tan Tan's Pool Hall. Pham initially indicated that he did not know about the incident. Later, he agreed to speak with Falletti about what he knew. He told Falletti that he knew Nam Nguyen and Giang Nguyen, who by then had been identified as two of the intruders. Pham explained that he worked at the Farmland beef packing plant in Liberal and Nam and Giang had worked there as well.
According to Pham, around 4 p.m. on November 10, he, Nam, and Giang Nguyen met in the parking lot of the Tan Tan Pool Hall. They discussed obtaining money from a family in Garden City. Pham did not know the family, but Nam had worked with members of the family at IBP and had been at their house before. After discussing what they were going to do, Pham went home.
Pham told Falletti that around 2 a.m. on November 11, he picked up the Nguyen brothers in Liberal in his blue Firebird to go to Garden City. When they arrived, they stopped at a "Quik Trip" (Kwik Shop) and purchased some food items. Pham identified Giang and Nam Nguyen and himself in photographs taken from the Kwik Shop surveillance video. He explained that after driving around Garden City for awhile, they parked in front of the house at 522 Colony between 3 and 4 a.m. Their plan was to steal money, because Pham had been out of a job for a few weeks and was broke. Pham stated that he, Nam, and Giang sat in front of the house for a short amount of time. He conceived the idea of using a knife to cut a white T-shirt into several strips for tying up family members, which Nam did.
According to Pham, he carried a gray .45 caliber pistol, Giang carried a .45 caliber pistol that Pham had given him, and Nam carried a 9 mm pistol of unknown origin. All three men wore black ski masks. As they walked up to the house together, the garage door opened and an Asian male came out. Pham took the man by the arm at gunpoint and told him, "Let's go." The man seemed very scared. Then Pham forced the man to lie down inside the house near the couch and tied his hands with one of the T-shirt strips while Nam stood guard. Giang went to the bedrooms and brought people out to the...
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...and the legislature's intent in K.S.A. 65-7006(a) is unclear. In such a situation, the rule of lenity applies. State v. Pham, 281 Kan. 1227, 1248, 136 P.3d 919 (2006) ("Where the legislative intent is unclear, we apply the rule of lenity."); Schoonover, 281 Kan. at 470, 133 P.3d 48 ("[T]he ......
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