STATE OF NEW JERSEY v. MAI T. NGUYEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3552-06T53552-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAI T. NGUYEN,

Defendant-Appellant.

________________________________________________________________

 

Argued November 26, 2007 - Decided

Before Judges Weissbard and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-04-0577.

Ronald Esposito argued the cause for appellant (Steven A. Hershkowitz, on the brief).

Monalisa Captan, Assistant Prosecutor, argued the cause for respondent (Edward J. DeFazio, Hudson County Prosecutor, attorney; Ms. Captan, on the brief).

PER CURIAM

Defendant Mai T. Nguyen appeals from a January 25, 2007 order denying his first petition for post-conviction relief (PCR). In a trial by jury, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant was acquitted of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) and (2). The court sentenced defendant to a ten-year term of imprisonment, subject to an eighty-five percent parole disqualifier as required by N.J.S.A. 2C:43-7.2 (NERA). After defendant filed a notice of appeal from the December 22, 2005 judgment of conviction, he moved before this court for a stay of appellate proceedings and for a temporary remand. By order of June 22, 2006, we dismissed defendant's appeal without prejudice and remanded the matter to the Law Division for consideration of defendant's petition for post-conviction relief. When the trial judge denied his petition, defendant filed the instant appeal. He presents the following claims for our consideration:

I. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, WHICH CAUSED HIM TO SUFFER AN ADVERSE RESULT.

A. THE OMITTED EVIDENCE WAS EXCULPATORY.

B. HAD THE JURY HEARD THE OMITTED EVIDENCE, THERE IS A REASONABLE PROBABILITY THAT THE RESULT AT TRIAL WOULD HAVE BEEN DIFFERENT.

II. THE CUMULATIVE EFFECT OF THE INSTANCES OF PROSECUTORIAL MISCONDUCT WAS TO DEPRIVE THE DEFENDANT OF A FAIR TRIAL.

We disagree with those claims, and affirm the denial of defendant's petition for post-conviction relief.

I.

In the morning of November 19, 2002, defendant, his friend Binh Nguyen (Binh), his brother Hai Le (Teo), and his sister Uyen Nguyen (Wendy) were at the Miss Saigon Bar in Jersey City. Hung Nguyen, no relation to defendant, met his girlfriend, Lihn Dand, at the bar after completing his shift as a New York City police officer. The two sat near defendant's table. At approximately 2:00 a.m., Lee Do, the manager of the bar, announced that the bar was closing and that everyone must leave. According to Dand, defendant's group became angry when asked to leave. Do testified that Nguyen approached defendant's group and told them to calm down and leave, or else they would get in trouble. When defendant and his group became more agitated, Nguyen advised Do to call the police. After hearing Nguyen urge Do to call police, defendant became more animated, stating that he wanted to fight. At the point, Wendy grabbed a stool and threw it at Nguyen, but missed him. After throwing the stool, Wendy left the bar. Shortly before Wendy exited the bar, defendant walked outside at the same time as Dand, who testified that defendant remained angry while outside the bar.

Do testified that within a couple of minutes, defendant, Teo, and a "couple guys went [back] inside." According to Do, they immediately attacked Nguyen. Do explained that Teo threw the first punch, knocking Nguyen to the ground. Do testified that defendant then reached down to strike Nguyen while he lay on the floor. Defendant and Teo continued to strike Nguyen with bar stools while he lay helpless on the floor. As the beating continued, Do called 9-1-1. Do also testified that Nguyen had done nothing to provoke the attack, and had never punched defendant.

Nguyen also testified. He explained that within a few seconds of leaving the bar, "[t]hey storm[ed] right back in, Mike [defendant] leading the way." The group continued to strike him, "hitting [him] with the chair one after another." Nguyen maintained that it was defendant, while wielding a chair, who first attacked him. Nguyen explained that he saw defendant's face, and it was defendant, not Teo, who had initiated the attack on him. He stated that his attempts to protect himself were unsuccessful. Nguyen explained that it was defendant who smashed a bar stool across his back and broke his spine. He knew that his spine was broken because he immediately experienced a "tingling" sensation in his legs. On cross-examination, Nguyen acknowledged that he may have only seen defendant at the bar on one previous occasion.

When Dand testified, she was unable to remember if anyone else ran back into the bar with defendant. When she returned inside, she saw Mike pick up a chair and saw her boyfriend on the floor. Although she saw defendant and Teo throwing bar stools, she did not realize her boyfriend was lying on the ground where the two men had been throwing the stools.

Officer Marc Dinardo was on patrol in the early morning hours of November 19, 2002 when he received a communication dispatching him to the Miss Saigon Bar. When he arrived, he found Nguyen on the floor with blood flowing from his head. Nguyen told police he had no sensation in his legs. Dinardo did not attempt to take a formal statement from Nguyen. Dinardo later prepared an incident report indicating that three people were involved with the assault--two males and one female. Dinardo's report also indicated that "[t]he individual who struck [Nguyen] over the head shared the last name Nguyen, the first name was [Wendy.]"

While at the scene, Dinardo interviewed Do, who explained that the man on the floor had been beaten with stools by two other men that Do was familiar with. Do explained that both males grabbed bar stools, one trying to strike Nguyen with the bar stool from the front while the second male struck him from behind. Do described the three as "Asian males, medium height, medium build, and one Asian female."

On cross-examination, Dinardo was asked about his grand jury testimony, and acknowledged that at the bar the victim said that he had been struck over the head with a bar stool, and that it was Wendy who had done so. On redirect, Dinardo stated that based upon his investigation, and that of the detective who was assigned, Wendy was not the only individual who struck Nguyen with a bar stool that night. After reading a stipulation to the jury describing the injuries and the doctors' opinion that the injuries had been life threatening, the State rested.

The defense rested without calling any witnesses. Outside the presence of the jury, the judge questioned defendant about his decision not to testify, and defendant acknowledged that the decision was his and he confirmed that he did not want to testify.

During the State's summation, the assistant prosecutor argued that if the jury were to accept defense counsel's argument that defendant was not one of the people who struck Nguyen, the jury would "have to completely ignore Lee Do's testimony and . . . completely ignore Hung Nguyen's testimony." He added that "[i]n order for you to make that leap that his conduct was not as grievous as the other individuals . . . [i]f that's so, . . . that must make Officer Nguyen a very bad person." There was no objection to that argument. The jury deliberated and returned the verdict that we have described.

II.

Before defendant's trial began, both Wendy and Binh entered pleas of guilty to third-degree aggravated assault. The State did not call either one as a witness during the trial. During the PCR hearing, defendant argues that trial counsel's failure to call Wendy or Binh as defense witnesses constituted ineffective assistance of counsel because both would have provided exculpatory evidence had they been called. Defendant also argued that trial counsel should have called his live-in girlfriend, Ngoc Thao Pham Thi, who was a witness to the incident.

When Binh pled guilty, he acknowledged picking up a bar stool and swinging it at Nguyen. During the plea colloquy, Binh was asked to describe the attack on Nguyen. The following colloquy occurred:

Q: And--Mike was also involved in the fight; is that correct?

A: Yes, but he--was after me so I didn't see it.

Q: Okay. Did you see Mike strike Hung Nguyen with a bar stool?

A: I don't see, I'm not there.

Q: Who struck Hung Nguyen with a bar stool when he was laying on the floor?

A: That's--that's Teo, that's my best friend.

Q: And what did you observe Teo do with that bar stool?

A: I saw the person, the victim was on--like lying on the ground, but repeatedly hit that person.

Q: Who repeatedly hit that person while he was laying on the ground?

A: Yes, Teo, Teo continued to hit.

Q. And--did Teo have a bar stool in his hands while he was hitting the victim who was on the ground?

A: Yes, he hit with his hand, and in the meantime, he hit--

Q: With the bar stool, correct?

A: Yes.

Q: Okay. Mike was with you in the bar, correct?

A: Yes.

Q: Did Mike--what did you see Mike do as far as being involved in the fight?

A: At that time that--it was not being that place so I know Mike--I don't see Mike and his girlfriend in that place.

Q: So, but they were there then that night with you, is that correct?

A: Yeah.

. . . .

Q: Did Mike or Teo get involved in a verbal argument with the victim?

A: For Mike was not argue with that police. [sic].

Q: Did--did one of them jump up from the table that you were seated at in order to go after the victim during the argument with Wendy?

A: Yes, that's--that's Teo . . . .

Q: And then at some point, does Teo run back inside the bar?

A: After the (inaudible) argue with the police and she went out, and yelled in the--and tell when that--went back into the bar--into the place.

. . . .

Q: When you saw [Nguyen] on the floor, what did you think when you first saw him lying there on the floor?

A: I don't think about anything. I--Teo continue, repeatedly, hit him (inaudible) on the--the stool and repeatedly hit the victim.

Q: While he was laying on the floor, correct?

A: Yes.

Q: Where is Mike at that--at the point?

A: Mike is somewhere in there, but I don't know what corner, where he--he stood, he and his girlfriend stood.

. . . .

Q: And there came a point when all of you went back inside the bar and had a violent confrontation with the police officer?

A: When we--when were back, I only saw the police--police officer lying on the--on the floor.

Q: Now, at the time he came back into the bar the second time, who was already in the bar?

A: Teo was in the bar, and--and--and was trying to beat the officer.

Q: Was Wendy in the bar too?

A: Yes.

Q: And was Mike in the bar also?

A: Mike--Mike came in after him.

Q: Alright. That's fine.

As is evident from the record, Binh stated at his plea allocution that he did not see defendant and did not know where he was, but he did state that "Mike was also involved in the fight." Although he stated that he did not see Mike strike Nguyen with a bar stool, he explained that "I don't see, I'm not there." The State argues that Binh's testimony "does not exculpate [defendant] and in fact confirms that [defendant] was at the bar that night." The State also argues that Binh's testimony "only indicates that he did not see [defendant] at the time the fight broke out and never states that [defendant] wasn't involved or that he did not assault the victim." After considering the arguments of both sides and reading the transcript of Binh's plea allocution, Judge Theemling, who was also the trial judge, held:

Binh Nguyen was asked whether Mike was also involved in the fight. He responded in the affirmative, but said that Mike's participation in the fight was after his own and he didn't see it. The [defendant] views this testimony as exculpatory and a necessary part of his defense. I disagree. A reading of the transcript clearly confirms [defendant's] participation in the fight, although it is void of any details of his participation. Binh indicated that while he knows Mike participated he didn't see it. As much, counsel's decision not to use Binh's testimony as part of [defendant's] defense is reasonable, as it my have further inculpated defendant by confirming [defendant's] presence and some participation in the fight.

As to Wendy, she was asked during the plea colloquy whether she took a bar stool and threw it at Nguyen. She answered yes. The following answers ensued:

Q: And at that time, did your brothers then come in and smack Mr. Nguyen with a bar stool chair in his back area?

A: Which one are you talking about?

Q: Which brother did you observe strike Mr. Nguyen with a bar stool?

A: Haile [Hai Le].

Q: Haile?

A: Yes.

As is evident from that testimony, Wendy was not asked any questions about defendant's conduct. She did not testify that defendant did not strike Nguyen. She stated that she saw her brother Teo strike the victim with the bar stool, but never indicated that defendant was not involved or that he did not assault the victim. Indeed, she makes no mention of defendant at all. Judge Theemling concluded that Wendy's plea allocution was not exculpatory. The judge reasoned:

[Defendant] also claims that his attorney should have used his sister's sworn statement as part of the defense. A reading of the transcript shows that his sister was asked to identify the brother that specifically hit the police officer in the back with a bar stool, which was her brother Teo, not the [defendant], but never was asked if anyone else participated in the fight, or about her brother Mike's participation or lack of participation in the fight. [Defendant] views these testimonies to be exculpatory and an integral part of the defense. Again I disagree. The line of questioning presented during Mr. (sic) Lee's plea allocution was limited and did not present any testimony that is indicative of [defendant's] role.

As to Thi, defendant obtained an affidavit from her after the trial and prior to the PCR hearing. In her affidavit, Thi stated, "me and [defendant] when[sic] outside, but suddenly we heard screaming, yelling and fighting inside the karaoke bar. Then [defendant] went inside, but the fight has already finished. After that we went home."

As is evident from her affidavit, Thi had no personal knowledge of what occurred inside the bar after defendant went back in because she said Mai went back in. She did not say in her affidavit that she accompanied him. Because she did not go back into the bar with defendant, she could not have had personal knowledge that the fight was over when defendant went back inside. The only way that she could have known that was if someone told her. Accordingly, her statement would be inadmissible hearsay. Judge Theemling held:

However, a reading of [Thi's] affidavit indicated she was not in the bar after Mike went inside, so clearly she cannot testify as to his actions once she was not in his presence. Since she had no knowledge of what transpired in the bar[,] any of her statements would be considered hearsay without exception and inadmissible. As such[,] [defendant's] claim that this affidavit should have been used as exculpatory evidence is without merit.

III.

After the judge reviewed the one affidavit and the two

plea allocution transcripts that we have discussed, the judge concluded that none of these documents, or even the three considered collectively, warranted post-conviction relief. In order to establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient. State v. Cummings, 321 N.J. Super. 154, 169 (App. Div.), certif. denied, 162 N.J. 199 (1999). First, a defendant must establish that counsel "made errors so serious that counsel failed to fulfill the counsel guarantee of the Sixth Amendment." Ibid.; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 664, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Second, a defendant must establish that counsel's performance was so deficient as to create a reasonable probability that these deficiencies materially contributed to his conviction. Fritz, supra, 105 N.J. at 58.

Although a court is not required to conduct an evidentiary hearing on every PCR petition, trial courts ordinarily should grant evidentiary hearings to resolve ineffective assistance of counsel claims when a defendant presents a prima facie claim and the facts supporting the claim are outside the trial record. State v. Preciose, 129 N.J. 451, 462 (1992).

As we observed in Cummings, similar to "a summary judgment motion, the [PCR] judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Cummings, supra, 321 N.J. Super. at 170 (quoting Preciose, supra, 129 N.J. at 462-63). We described in Cummings the evidentiary showing a defendant must make in order to establish a prima facie case:

[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

[Ibid.]

We recognize that Cummings dealt with a slightly different claim than we are presented with here. Cummings dealt with a defendant's claim that a trial attorney inadequately investigated his case, whereas here defendant asserts that trial counsel improperly failed to call Wendy, Binh or Thi as witnesses. Cummings is instructive, however, because it establishes that a defendant must do more than "make bald assertions," ibid, that had certain witnesses been called, their testimony would have been favorable.

Here, defendant supplied the two plea transcripts and the one affidavit from Thi that we have described. He argued before the trial court and before us on appeal that these documents demonstrate that had these witnesses been called at trial, they would have testified that defendant did not strike Nguyen. Judge Theemling provided detailed and persuasive reasons explaining his conclusion that had these witnesses been called, the outcome of the trial would not have been different. Judge Theemling explained why the documents were insufficient to create a reasonable doubt as to defendant's guilt.

Defendant asserts that each of these witnesses would have testified that he did not strike Nguyen. We agree with Judge Theemling that the documents do not reasonably lead to that conclusion. If Wendy, Binh or Thi would have testified that defendant did not strike Nguyen, then defendant should have provided an affidavit or certification from them so stating. He did not do so, but instead relied upon the inconclusive plea allocution transcripts from Wendy and Binh and the affidavit from Thi.

We recognize that we are obliged to "consider [defendant's] contentions indulgently and [to] view the acts asserted by him in the light most favorable to him. Ibid. Even giving the documents in question the indulgent treatment Cummings requires, we find no basis to disagree with Judge Theemling's conclusion that had these witnesses been called the outcome would not have been different. As we have discussed, Binh agreed that defendant was involved with the fight, but did not see defendant strike Nguyen with a bar stool. Although Binh stated during his plea allocution that it was Teo who hit Nguyen while Nguyen was on the ground, Binh never said that defendant did not strike Nguyen. In fact, as we have discussed, he acknowledged that "Mike was also involved in the fight." Thus, Binh's testimony only indicates that he did not see defendant at the time the fight broke out, but he never states the defendant was not involved or that defendant did not assault the victim.

It is also significant that Binh acknowledged that defendant re-entered the bar after having walked outside. From the testimony of all of the witnesses, it is clear that the attack on Nguyen occurred once a group of individuals re-entered the bar. Thus, we are unable to conclude that Judge Theemling's assessment of Binh's likely testimony was in any way incorrect.

As to Wendy, she made no mention of defendant at all in her plea allocution. We agree with Judge Theemling that her failure to mention defendant is not the equivalent of a statement that he was not involved. If Wendy would have so testified, defendant should have provided an affidavit or certification from her so indicating.

As to Thi, an indulgent view of her affidavit does not in any way alter its hearsay status. Under all of these circumstances, we agree with Judge Theemling's conclusion that defendant did not satisfy the second prong of the Strickland/Fritz test because he failed to demonstrate that had the witnesses been called, the result would have been different.

IV.

As to defendant's claim of prosecutorial misconduct raised in Point II of his brief, his arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

Two witnesses, defendant and the victim share the same last name. All references in this opinion refer to the victim, Hung Nguyen.

Several witnesses referred to defendant as Mike.

Hai Le was another name for Teo.

(continued)

(continued)

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A-3552-06T5

December 11, 2007