Ky Van VO
v.
STATE.
Court of Criminal Appeals of Alabama.
*1324 Peter Mackey, Mobile, for appellant.
Jаmes H. Evans, Atty. Gen., and Randall McNeill, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1920350.
TAYLOR, Judge.
The appellant, Ky Van Vo, was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975, and of assault in the first degree, a violation of § 13A-6-20, Code of Alabama 1975. He was sentenced to life in prison on thе murder conviction and 20 years in prison on the assault conviction. The state's evidence tended to show that the appellant shot and killed Thuy Nang Nguyen and that he shot Thong Nang Nguyen in the arm. He presents four issues for review on appeal.
*1325 I
The appellant arguеs that the circuit court erred in denying his motion for a judgment of acquittal at the close of the state's case. He contends that the state failed to prove a prima facie case of assault in the first degree. Section 13A-6-20, Code of Alabama 1975, provides in pertinent part:
"(A) A person commits the crime of assault in the first degree if:
"(1) With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument."
(Emphasis added.) Our legislature, seeking to differentiate thе degrees of severity of wounds, has defined the term "serious physical injury" as:
"[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the funсtion of any bodily organ."
§ 13A-1-2(9), Code of Alabama 1975.
The appellant argues that the state did not prove that the victim's wound was a "serious physical injury," as defined in § 13A-6-20. In common parlance, almost every gunshot wound would be considered a "serious physical injury"; however, we must determine whether the wоund in this case meets the statutory definition of "serious physical injury" that our legislature enacted in § 13A-1-2(9). The state did not offer any evidence that Thong Nang Nguyen suffered a "serious physical injury," as described in the statute. The evidence tended to show that the appellant shot Thong Nang Nguyen in the arm, but no evidence was presented to show that the injury subjected Thong Nang Nguyen to a "substantial risk of death," or caused him "serious and protracted disfigurement" or "protracted impairment of health or protracted loss or impairment of the function оf any bodily organ." § 13A-1-2(9). The trial transcript contains no evidence that the gunshot wound to Thong Nang Nguyen's arm was a "serious physical injury" as defined by our legislature in § 13A-1-2(9).
The state contends that the statement that "any penetrating gunshot wound can result in serious complications," which was mаde during the coroner's testimony regarding Thuy Nang Nguyen's death, was sufficient evidence from which the jury could find that Thong Nang Nguyen's gunshot wound was a "serious physical injury." However, this statement does not imply that every gunshot wound is a serious injury; no other evidence was offered to show that the wound to Thong Nang Nguyen was a "serious physical injury." The coroner's testimony alone was not sufficient for the jury to determine that Thong Nang Nguyen's injury was a "serious physical injury" as required by § 13A-6-20 for assault in the first degree.
Applying the legislative yardstick set out above, this court has previously held thаt a bullet wound itself is not a "serious physical injury," as that term is defined in § 13A-1-2(9). In Davis v. State,
Similarly, in Goans v. State,
In Collins v. State,
Also, in Cowan v. State,
*1326 There was no evidence offered at trial to show the extent of his pain or injuries. This court held that there was nоt sufficient evidence for a first degree assault conviction because there was no proof of a "serious physical injury" as that term is defined in § 13A-1-2(9).
These prior decisions all recognize the line between first and second degree assault, based entirely on the lеgislature's definition of "serious physical injury." In accordance with prior case law, we are compelled to hold that Thong Nang Nguyen's injury was not a "serious physical injury," and that, therefore, the appellant could not be found guilty of assault in the first degree.
We recоgnize that it is necessary for the legislature to draw some reasonable line between the degrees of seriousness of injuries. There was no testimony in this case regarding any permanent injury, loss of use, or disfigurement, which would enable this court to treat the action causing thе injury as a Class B felony. There was, however, sufficient evidence to convict the appellant of assault in the second degree as defined in § 13A-6-21, Code of Alabama 1975. That section provides, in pertinent part:
"(a) A person commits the crime of assault in the seсond degree if:
"...
"(2) With intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument."
A "physical injury" is "[i]mpairment of physical condition or substantial pain." § 13A-1-2(8), Code of Alabama 1975. The viсtim's injury in this case was a "physical injury" as defined by this statute.
The court instructed the jury on assault in the second degree, and the evidence was sufficient to support a conviction for this offense. Therefore, we remand this case to the Circuit Court for Mobile County and direct thаt court to set aside the appellant's conviction for assault in the first degree and to enter a judgment of guilty of assault in the second degree. See Cowan. We also direct the circuit court to sentence the appellant for this offense pursuant to the guidelinеs for a Class C felony.
II
The appellant argues that the circuit court erred in receiving certain photographs into evidence. The appellant contends that the photographs were inflammatory because of their depiction of blood and thаt they were not material or relevant to any issue in dispute. The photographs show the bloody area where the victim's body was found. The photographs helped illustrate the scene of the crime for the jury.
"As a general rule, photographs are admissible in evidеnce if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge. Fletcher v. State,291 Ala. 67 ,277 So.2d 882 (1973); Hopkins v. State,429 So.2d 1146 (Ala.Crim.App.), cert. denied,429 So.2d 1146 (Ala. 1983); Godbolt v. State,429 So.2d 1131 (Ala.Crim.App.1983); Carpenter v. State,400 So.2d 417 (Ala.Crim.App.), cert. denied,400 So.2d 427 (Ala. 1981). Photographs which depict the character and location of external wounds on the body of a deceased are admissible even though they are cumulative and based upon undisputed matters. Wicker v. State,433 So.2d 1190 (Ala.Crim.App.1983); Hopkins v. State; Hines v. State,365 So.2d 320 (Ala.Crim.App.), cert. denied,365 So.2d 322 (Ala.1978). The fact that a photograph is gruesome and ghastly is no reason to exclude its admission into evidence, if it has some relevancy to the proceedings, even if the photographs may tend to inflame the jury. Warrick v. State,460 So.2d 320 (Ala.Crim.App.1984); Carpenter v. State; Richards v. State,337 So.2d 171 (Ala.Crim.App.), cert. denied,337 So.2d 173 (Ala.1976)."
Magwood v. State,
After looking at the photographs, we hold that there was no error in their receipt into evidence. The photographs showed the crime scene.
III
The appellant argues that the circuit court erred in refusing to charge the jury on the role of interpreters at the trial. Because most of the witnesses in this case were Vietnamese and spoke little or no English, the court appointed two interpreters for the trial, one for the state and one for the defense. On one occasion, the interpreter for the defense disagreed with the state's interpreter's interpretatiоn of a state's witness's answer. There was much confusion as to the content of this witness's testimony.
The appellant requested that the court give his requested charge number 24 to the jury. That charge was as follows:
"Interpreters were used in this case to translate from Vietnamese to English and English to Vietnamese. If at any point the two interpreters disagreed over the testimony of any Vietnamese witness in this case, I charge you that you must determine, by your collective recollection and observation, what that witness actually testified to."
The сourt did not give that charge, but instead instructed the jury as follows:
"You as jurors have a duty to reconcile all of the testimony, if at all possible; in other words, make all the witnesses speak the truth. Frequently, that is not possible. In such an event, you must then determine for yourselves what the true facts are.
"In determining what the true facts are, you may take into consideration any natural interest or bias a witness may have as a result of any connection with the case.
"In determining that the true facts are, you may accept or reject any part оf the testimony of any witness in the case. You may take into consideration the demeanor of the witness on the witness stand as to whether or not that witness has apparently testified frankly or evasively. You may, in short, use your own good common sense in trying to determine what the true facts are."
We find that the court's oral instructions substantially covered the points that the appellant's requested jury instruction contained. Both, in effect, are "common sense" charges. In Goodson v. State,
IV
Last, the appellant argues that he was denied his constitutional right to a speedy trial. He contends that the circuit court erred in granting the state's request to continue the trial over his objection on May 30, 1991. The appellant was arrested on November 6, 1990, and his trial was set for April 15, 1991. It was continued until May 30, 1991. At that time, the state requested that the trial be continued because one of its witnesses, Offiсer Bryant Myles, was hospitalized. The court granted the continuance over the appellant's objection. The case was set for trial on September 23, 1991. The trial date was reset three more times until this case went to trial on February 18, 1992. There are no reasоns given in the record for these delays; however, the last of these delays was "by agreement."
The United States Supreme Court in Barker v. Wingo,
In looking at the length of the delay, we look at the amount of time between the issuance of a warrant of arrest and the trial. Vincent v. State,
The second factor requires that we consider the reason for the delay. One delay was caused because one of the state's witnesses was in the hospital. This court stated in Lewis v. State,
Next we must look at the appellant's assertion of his rights. From the record, it appears that the appellant objected to only one continuance and that was the only time that he asserted his right to a speedy trial. Although the appellant asserted his right only once, we will weigh this factor in his favor because he did in fact object to a continuance and stated that he did "not waive any rights to a speedy trial."
Last, we must look at any possible prejudice to the defendant. It does not appear from the record that the appellant was prejudiced by the delay. In fact, he was free on bond the entire time. The appellant contends in his brief that "he lived under the constant fear that a convictiоn... would subject him to lengthy incarceration" and that "he had to undergo the frustration of dealing with the justice system which he did not understand and was educationally ill-equipped to deal with." The appellant has shown no prejudice here.
Considering all of the Barker factors, with emphasis on the length of the delay, we find that the appellant's constitutional right to a speedy trial was not violated.
As directed in part I of this opinion, this cause is remanded to the Circuit Court for Mobile County. Due return should be filed with this court at the earliest possible time and within 28 days of the release of this opinion.
REMANDED WITH DIRECTIONS.
PATTERSON, P.J., and BOWEN, J. concur.
MONTIEL, J., dissents with opinion and McMILLAN, J., joins in that dissent.
MONTIEL, Judge, dissenting.
I believe that the majority has incorrectly defined what is required to constitute "serious physical injury" and I vote to overturn this court's line of cases which hold that a gunshot wound is not conclusively "serious physical injury."
I hereby vote to affirm the appellant's conviction of assault in the first degree.