*1 Thiet Van Phan Virginia Commonwealth Record No. 990093 November 5, 1999 Present: All the Justices *2 Richard J. McCue for appellant. S.
Jeffrey (Mark Assistant General L. Shapiro, Attorney Earley, General, Attorney brief), on for appellee.
JUSTICE HASSELL delivered the of the Court. opinion
Thiet Van Phan was tried before a in the Circuit Court of and convicted of the Arlington County murder of first-degree Long Bui, the malicious Hung Nguyen, H. and two wounding Nghia counts the use of a firearm the commission of a He during felony. was sentenced in accordance with the verdicts to 75 jury’s years conviction, for the murder imprisonment for years imprisonment conviction, the malicious and a wounding total of eight years impris- onment for two convictions for use of a firearm. The Court of and, here, denied Phan’s for Appeals Phan petition appeal challenges sufficiency the evidence to sustain the convictions. I. review, well-established Applying principles we must appellate consider the evidence and all reasonable inferences deducible fairly therefrom in the most favorable light to the the pre- 413, 424, vailing below. Derr v. party Between 3:00 and 4:00 p.m. January *3 inwas the Haiau Billiard and Coffee in the of Shop Falls City hall, Church. Nhan Van another in the Nguyen, patron went to a pool bathroom where he was attacked and beaten the defendant and by another man. Nhan Van ran out of the bathroom and tried to Nguyen get help. the defendant left the
Subsequently, bathroom and returned to a room in the hall larger where he encountered pool Long Hung a Nguyen, manager hall. confronted the pool Long Nguyen defendant and told him “not to make trouble in the hall.” The pool back, defendant said . . . what if I do? What you “talk[ed] [and] [are] defendant, to do going about it?” The and Van Long Nguyen, Nguyen brother) to (Long Nguyen’s and began fight. Long Nguyen defendant, Van struck the Nguyen and the defendant’s nose to began defendant, feet, bleed. After the who was four eleven fight, tall, inches and took off his shirt and said to weighed pounds, Van “If Nguyen one of about this Long Nguyen: any you guys forward, size come I will just one of challenge any you guys.” Long the defendant and I Nguyen challenged — how about stating “okay, you and me then.” The you defendant did not to Long respond Nguyen’s challenge fight. told the whose nose still
Long Nguyen bleeding, was down, cool out. Go wash face and sit relax.” The “just your just defendant washed his face and said “I’ll be back” as he left the hall employee, Hoang Nguyen, pool to Long According premises. tone as the same using statement English made this action movie.” from in a line that used “[s]ome Nguyen as Long after 8:00 p.m., that evening, shortly Later three masked gunmen receipts, tallying day’s in the hall pool back door and proceeded quickly hall through entered the pool top the assailants jumped One of toward directly Long Nguyen. 15 to 20 gun- fired between the three masked gunmen a counter as wounds which gunshot sustained multiple shots. Long Nguyen Bui, a also shot Nghia patron death. One of the assailants caused his hall, through The masked assailants departed in the foot. of the pool that was visible on the of the cash door without taking any the back standing. had been Nguyen counter behind which Long one of the three masked gunmen testified that Five eyewitnesses Van Ha Sang than the other two assailants. shorter noticeably “little bit” “[kjind of fat” with hair a as described the short gunman first entered that when the gunmen Ha testified below his shoulders. hall, in the down the shortest gunman process pulling mask, face see the lower the gunman’s his and Ha could portion and his dark skin.
Ha, hall earlier on the had seen Phan at the pool “[sjame murder, had the Phan and the shortest gunman testified that hair, of the assailants as . Ha also described one same . . figure.” short,” that the hair.” Ha stated long “kind of with “dark skin a black-colored wearing like the defendant was who looked person of fat.” mask and was “[k]ind in the area fired their weapons
Bui testified that all three gunmen counter, him at least three shot at gunman and that the shortest times, the shortest gun- in the foot. He stated that him once striking Ho, the victim’s five feet Thuylinh man was “no more than [tall].” short and a was “really testified that one of the gunmen girlfriend, *4 little chubby.” when Vinh a hall patron present
Tuong Nguyen, pool occurred, as about being described the shortest gunman the murder that was with hair feet tall and “kind of chubby” “long five [black] he could not see He testified that out to ... his shoulder.” protruding masks, he that all the of their but thought the faces because gunmen’s defendant is Vietnamese. Nguyen Vietnamese. The were gunmen Tran, fired a total that the masked assailants another testified patron, one to a of about at Long Nguyen during period of 15 to 20 gunshots Tran, feet, two minutes. who is five inches in stated that eight height, the shortest lot shorter than me.” gunman “[a]
The defendant testified at that he in trial was not the present pool occurred, when but hall the murder at home. He stated asleep he he that was “a little” when left the hall after the upset alter- with cation the victim and his brother. aunt,
The defendant’s Thi Bi that Nguyen, testified the defendant on a on slept sofa in room the first of her living floor townhouse. murder, stated She that on the ate of she dinner some- evening time after 7:00 and the defendant was on the couch p.m., lying When watching television. asked last time she saw the defendant murder, came night she “I home about responded: seven o’clock. About seven I saw him.” something, Phan, uncle,
Steven the defendant’s he testified that arrived home work from on the night murder about 11:00 When asked p.m. whether he saw the defendant in his house that evening, Steven Phan “I stated: did not see him. But I saw that there was blanket on the couch.” that Steven Phan also testified he saw the defendant in his Pham, that house but not “face to face.” evening, Agent Anh Special an of the Federal Bureau of he employee testified that Investigation, (Steven Phan) had interviewed Steven Phan who told him that did he see the defendant in the when anywhere house Steven Phan arrived home on the of the murder. night
II.
The defendant asserts that the evidence is
to
insufficient
his convictions. The defendant contends that the Commonwealth
failed
that he had a
to murder
prove
Long
motive
Nguyen
one
no
identified
an
the defendant as
assailant. None
the witnesses
observed
or
any tattoos
kind on
short assailant
markings
any
even
large
had
tattoos on his arms and hands
fingers. Continuing, the
our decisions
relying upon
Hyde
(1977),
We will review apply following appellate principles our resolution of this appeal:
511 the of the evidence is after challenged “Where sufficiency conviction, it is our to consider it in the most light duty and it all reasonable favorable to the Commonwealth give affirm the deducible therefrom. We should inferences fairly unless it from the evidence that the judg- judgment appears ment is or without evidence to it plainly wrong [Code § 8.01-680].” Commonwealth, 838, 841, 608,
Black v.
222 Va.
284 S.E.2d
610
Commonwealth,
349, 352,
(1981)
v.
Higginbotham
216 Va.
(quoting
534,
(1975)).
218 S.E.2d
537
when
defendant chal-
Additionally,
“
evidence,
the
of the
there is evidence to
lenges
sufficiency
‘[i]f
verdict,
sustain the
this Court should not overrule it and substitute its
own
even if
differ from that
the
its
judgment,
opinion might
”
Commonwealth,
264, 278,
12,
v.
242 Va.
411 S.E.2d
George
jury.’
Commonwealth,
1009, 1016,
(1991)
20
v.
202 Va.
Snyder
(quoting
cert,
452,
denied,
(1961)),
(1992).
121 S.E.2d
457
503 U.S.
and,
factfinder need not believe an accused’s
if that
explanation
believed,
is not
infer that the accused is
may
explanation
lying
Black,
842,
610;
conceal his
Applying principles, dence, circumstantial, establishes the defendant’s sufficiently from reasonable doubt. The could have inferred guilt beyond jury the evidence the that who was and humiliated angry murder, he because had been beaten earlier on the had a motive to kill When the masked assailants entered the Long Nguyen. hall, walked toward and they quickly directly Long Nguyen times, after shot him did take they multiple they money Indeed, visible on the counter. the defendant had threatened Long stated, when defendant after the that “I’ll be Nguyen fight, back.”
Based the numerous witnesses’ that both the testimony defendant and one of the masked assailants were short and unusually color, had the same hair nation “chubby” figure, weight, length tone, and skin could have concluded that the defendant ality, was one of the masked assailants. In of the identification testi view witnesses, of the numerous the defendant’s alibi mony testimony of the defen- inconsistent jury apparently rejected, testimony aunt dant’s and uncle which further impaired credibility alibi, defendant’s the evidence when considered as a whole is suffi- cient to convictions.
We find no merit in the defendant’s contention that our prior
decisions in
Hyde
Burrows
that we invalidate the chal
require
*6
convictions. In
lenged
Hyde, we considered whether the evidence
was sufficient
There,
convictions for
and murder.
support
rape
an
adult female with a mental
of 10
age
years, who was a
at a
patient
tall,
told
hospital,
that “a
hospital personnel
white man” who had
offered her a
had taken her
cigarette
into
woods and
her.
raped
Hyde,
Va. at
Several witnesses had seen the
James Taylor Hyde,
assault,
and the victim
on the date
together
which
rape
caused her death.
eventually
our review of the
in
Upon
record Hyde,
we held that the
direct evidence
only
which tended to identify Hyde
as a
in the first
was the
principal
degree
victim’s
of her
description
tall,
assailant as a
white man who had
her a
given
cigarette.
record did not contain a
of two other men
description
who were pres-
ent when the victim was
and assaulted. We stated that
raped
“to
tall,
assume that
was
white man
only
[the
who had
defendant]
given
cigarette
would be to assume
day
[the victim]
too
much.” 217 at
Hyde from the clearly distinguishable case. The defen- present here, dant unlike the defendant in Hyde, threatened the victim by Also, “I’ll be stating back.” unlike the defendant the defen- Hyde, dant here testified at trial and specifically tried offer an alibi to. defense to the which the jury, and the jury rejected, entitled Moreover, to infer that this defendant was to conceal his trying guilt. unlike the defendant in Hyde, numerous witnesses testified that the masked assailant killed and the defendant Long Nguyen both tone, had an short dark unusually height, “chubby” figure, skin black hair. long shoulder-length Burrows,
In we considered whether the evidence was suffi cient to a defendant’s convictions for and malicious robbery The victim in Burrows testified that while he was attend- wounding. someone him from the rear and ing party, approached began hitting him. 224 Va. at S.E.2d at The victim was struck four 894. times, broken, or five his nose was and he “couldn’t see anything.” Id. The assailant took the victim’s wallet and fled. When asked to trial, “[w]ell, the assailant at the victim identify it looks responded, defendant]], like that there gentlemen but ... I [referring [the sure, said, can’t because it so fast. Like I he say absolutely happened came from behind me.” Id. The victim testified that after sometime he saw the defendant robbery, with four or five other near people a river. The victim observed a wallet in the river and floating it, that the defendant requested retrieve and the defendant complied. The victim and another man “grabbed” the defendant in an attempt to hold him until the arrived. police later released the They defen- dant, who left the scene. Id. immediately Burrows,
In we held that the evidence was insufficient to that the prove defendant was the criminal because the victim agent was not sure that the defendant was his attacker and the defendant’s *7 conduct 319, inconsistent with his innocence. Id. at 295 S.E.2d at We 894-95. held that the evidence of record in Burrows at which, best created a of suspicion guilt no matter how strong, 320, insufficient to sustain a criminal conviction. Id. at 295 S.E.2d at mentioned, For the 895. reasons that we have already Common wealth evidence from which the presented could have con cluded, doubt, beyond reasonable that the defendant was the perpe trator of the crimes which are the of subject this appeal.
The defendant asserts that Long Hoang Nguyen’s testimony the defendant stated “I’ll be back” as he left the hall earlier on of the murder was not credible because no other witnesses heard that statement. Additionally, states the jury should not have concluded that he short masked gunman shirt, because that gunman wore a short-sleeved and none of the wit- nesses testified that saw tattoos they any or of kind on markings any arms, that assailant’s even the defendant has tattoos on large both of his arms and hands. We find no merit in the defendant’s fact, arguments. as finder of was entitled to each jury, assess witness’s and determine the to be accorded the credibility weight testimony.
514
III.
We hold that the evidence of record
as a whole is
considered
sufficient to
that the defendant
jury’s
finding
perpetrated
the criminal acts. “While no
evidence
be suffi-
single
piece
may
cient, the ‘combined force of
concurrent and related circum-
many
stances,
itself,
each insufficient in
lead a reasonable mind irre-
may
”
Commonwealth,
260,
to a conclusion.’
v.
sistibly
Stamper
220 Va.
273,
808,
Commonwealth,
257
(1979)
S.E.2d
818
Karnes v.
(quoting
cert,
758, 764,
562,
denied,
125 Va.
S.E.
564
99
445 U.S.
(1919)),
Derr,
425,
(1980);
970
accord
242 at
Affirmed. KEENAN, JUSTICE with whom JUSTICE KOONTZ joins, dissenting.
In its
failed
analysis, majority has
to consider the
evi-
unique
burden
on the
in
dentiary
Commonwealth
a case
placed
proving
based on circumstantial evidence. When a conviction is based on cir-
evidence,
cumstantial
the circumstances
“must each be con-
proved
innocence,
sistent with
and inconsistent with
and . . .
guilt
must
they
concur in
to the defendant as the
a rea-
pointing
perpetrator beyond
Commonwealth,
387, 398,
sonable doubt.” Cantrell v.
229
329
22,
Commonwealth,
(1985);
29
see also
v.
242 Va.
Rogers
307, 317-18,
621,
(1991);
410 S.E.2d
627
v.
Bishop
164, 169,
390,
(1984);
227 Va.
313 S.E.2d
393
Christian v. Common-
wealth,
1078, 1082,
Further,
221 Va.
277 S.E.2d
as
case,
criminal
the evidence must exclude all reasonable
any
theo-
innocence,
ries of
and a
however
or even a
suspicion
guilt,
strong,
criminal
will not
conviction.
probability
guilt,
Sheppard
(1995),
464 S.E.2d
cert, denied,
(1996);
517 U.S.
Va. at
Rogers,
*8
627;
S.E.2d at
Cook v.
226 Va.
S.E.2d
309
325,
169-70,
(1983);
329
In I would hold that the trial court’s present judgment because, law, as a matter of the Commonwealth’s plainly wrong evidence established a or a only guilt. suspicion probability did circumstantial evidence not concur in reason- pointing, beyond doubt, able the defendant as a of these crimes. The to perpetrator color, evidence showed that a of the same skin nation- merely person and hair as the defendant committed these ality, body length type, to crimes. The other evidence the crimes only linking his conduct in the hall his earlier uncle’s testi- which was inconsistent with defendant’s alibi. mony, While these circumstances are consistent with are not guilt, they inconsistent with innocence and do exclude a reasonable hypoth- other esis someone than the defendant the shortest three who committed these crimes. gunmen Under majority’s evidence, view the had an with altercation a victim’s person that he brother stated intended return be convicted may murder if his is alibi inconsistent with other and if testimony he and share certain perpetrator general physical characteristics. Such evidence is insufficient because it fails to an unbroken chain present motive, time, means, necessary circumstances of place, conduct that link the defendant crime a reasonable beyond Cantrell, 397, 28; doubt. See at at Bishop, 169, 393; atVa. 313 S.E.2d at Stover Therefore, 283 S.E.2d I would reverse the
defendant’s convictions and dismiss indictments on which they are based.