COURT OF APPEALS DECISION DATED AND RELEASED April 30, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
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This opinion is subject to
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No. 95-1026-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
TAN NGOC NGUYEN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: MAXINE A. WHITE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. Tan Ngoc Nguyen appeals from a judgment of conviction, after
a jury trial, for three counts of recklessly endangering safety while armed and
one count of recklessly endangering safety by use of a dangerous weapon. He also appeals from an order denying his
motions for postconviction relief.
Nguyen raises four issues on appeal: (1) whether the trial court erred
by failing to suppress his statement to the police; (2) whether the trial court
erred by failing to suppress the lineup identifications; (3) whether the trial
court erroneously exercised its discretion by refusing to allow an expert
witness to testify about Nguyen's psychological profile; and (4) whether the
trial court erroneously exercised its discretion by imposing an allegedly harsh
and unconscionable sentence. We reject
Nguyen's arguments, and affirm.
I. Background.
On March 18, 1993, three
youths outside Walker Middle School were shot and wounded by a hooded, and
handgun-wielding assailant. The
assailant also pointed the handgun at another juvenile. Nguyen, a nineteen-year-old Vietnamese
immigrant, was arrested shortly after the shooting. While in police custody, he gave two statements to police
implicating his involvement in the shootings.
After giving his statements, police placed him in a lineup with four
other Asian men. Witnesses identified
Nguyen as the shooter during the lineup.
At trial, Nguyen
attempted to introduce the expert testimony of clinical psychologist Timothy
Wiedel. Wiedel would have testified
about Nguyen's “psychological profile” and his “immense difficulties in
cultural assimilation into American [s]ociety.” Nguyen maintained that “[t]his adjustment to American society
since his immigration from Vietnam ... contributed to his being fearful,
insecure, and highly suggestible,” and that this was relevant to the
voluntariness of his statements to the police.
The trial court concluded that the proffered testimony was irrelevant
and excluded it.
The jury found Nguyen
guilty on all four counts. The trial
court then sentenced him to seven years incarceration on each of the recklessly
endangering safety counts, to be served consecutive to each other; and nine
months incarceration on the remaining count, to be served concurrent to the
other three counts.
Nguyen filed
postconviction motions for relief, seeking a reversal based on the same alleged
errors he now argues on appeal. The
trial court issued an order denying the postconviction motions. We address further relevant facts with each
of the separate issues.
II.
Analysis.
Nguyen first challenges
the voluntariness of the custodial statements he gave to police. He asserts that his limited understanding of
English hampered his understanding of the police questions, and that he was
intimidated by the presence of Detective Kennedy in the police interview room. Detective Kennedy was
6 feet 4 inches in height and weighed 240 pounds, compared to
Nguyen's weight of 140 pounds and height of 5 feet 8 inches. Indeed, Nguyen argues that he did not
comprehend English sufficiently to understand what was said to him or to make
others understand his responses; that he was handcuffed to a wall during his
interrogation; that he confessed because the police threatened to deport his
family; that Detective Kennedy yelled at him and called him names; and that he
was placed in a holding cell with rival gang members. Accordingly, Nguyen contends that because his statements were not
voluntarily given, the trial court should have suppressed them because their
admission violated his constitutional due process rights.
Resolving this issue
requires us to apply the trial court's factual findings to federal and state
constitutional principles. State
v. Lee, 175 Wis.2d 348, 354, 499 N.W.2d 250, 252 (Ct. App. 1993). While we review the trial court's factual
findings under the “clearly erroneous” standard, see State v.
Esser, 166 Wis.2d 897, 903, 480 N.W.2d 541, 543 (Ct. App. 1992), the
application of those facts to the constitutional principles presents a question
of law that we review de novo. Lee,
175 Wis.2d at 354, 499 N.W.2d at 252.
When the state seeks to
admit a defendant's custodial statement, constitutional due process requires
that it make two discrete showings:
“First, ... that the defendant was informed of his Miranda
rights, understood them[,] and [knowingly and] intelligently waived them. Second, ... that the defendant's statement
was voluntary.” Id. at
359, 499 N.W.2d at 255 (citation omitted).
Nguyen's assertion that
his statements were involuntary placed on the State the threshold burden to
prove by a preponderance of evidence that his statements were voluntary. Id. at 359-60, 499 N.W.2d at
255. To meet this burden, the State
must show that Nguyen made the statements willingly and not as the result of
duress, threats, or promises. Once the
State made a prima facie case of voluntariness, the burden shifted to Nguyen to
present any rebuttal evidence. Id. If a defendant fails to present evidence of
coercion in rebuttal, further inquiry about balancing the actions of the police
with the personality of the defendant is inappropriate. State v. Deets, 187 Wis.2d
630, 635-36, 523 N.W.2d 180, 182 (Ct. App. 1994).
At trial, the State
introduced two statements made by Nguyen.
The first was made to Detective Steven Spingola shortly after Nguyen's
arrest. Nguyen admitted he was a member
of a street gang, but denied any involvement in the shootings at those who he
claimed were members of a rival street gang.
The second statement was made to Detective Kennedy four days later. Nguyen stated that his friend attended
Walker Middle School and had been roughed up by members of a rival gang, so
Nguyen got a gun and went to the school to protect his friend. Nguyen stated that he recognized several
members of the rival gang, became nervous and afraid, heard someone say “shoot
them,” and shot the gun—purposely aiming low.
As evidence that
Nguyen's statements to the police were voluntary, both Detectives Spingola and
Kennedy testified that Nguyen made the statements attributed to him, that he
was willing to give the statements, and that no threats or promises were used
to coerce him into making the statements.
We agree with the trial court that this testimony met the State's prima
facia burden to show that Nguyen's statements were voluntary.
None of the challenges
Nguyen now raises to the voluntariness of his statements is sufficient to
undermine or rebut the State's prima facia showing. While Nguyen is correct that language difficulties can influence
the voluntariness of a statement, see State v. Santiago,
198 Wis.2d 82, 92, 542 N.W.2d 466, 471 (Ct. App. 1995) (“`[L]anguage
difficulties may impair the ability of a person in custody to waive [Miranda]
rights in a free and aware manner.'” (citation omitted)), petition for
review granted, 94‑1200‑CR (Wis. S. Ct. Jan. 16, 1996),
the record belies that Nguyen's language skills meaningfully affected his
ability to understand the detectives' questioning or his ability to voluntarily
make a statement. Both detectives
testified that Nguyen spoke in English and understood their questions. Nothing in the evidence that Nguyen presents
undermines this testimony. Thus, Nguyen
has made an insufficient showing that his English-language skills invalidated
the voluntariness of his statement.
Further, we agree with
the trial court that Nguyen failed to show any coercion on the part of the
police. The trial court found that none
of the circumstances surrounding the interviews with Nguyen rose to the level
of coercion. Nothing that Nguyen argues
on appeal makes these findings “clearly erroneous.” Thus, the trial court properly denied Nguyen's motion to suppress
his statements to police.
Nguyen next argues that
the lineup was unduly suggestive. He
alleges that although he is of Asian ancestry, he looks Hispanic, and that all
of the others in the lineup were Asian.
He concludes that when witnesses viewed the lineup they immediately
identified him from his allegedly Hispanic mien. He charges that the police “crafted extremely suggestive lineups”
which accentuated these supposed Hispanic features. Nguyen also complains that the five-person lineup portrayed undue
height disparity. The men ranged from
five feet tall to five feet, nine inches tall.
He finally argues that these out-of-court identifications impermissibly
contaminated the subsequent in-court identifications.
Nguyen's challenge to
the admissibility of out-of-court identification placed upon him the initial
burden to establish impermissible suggestiveness of the identification
procedure. See Powell v.
State, 86 Wis.2d 51, 56, 271 Wis.2d 610, 617 (1978). If suggestiveness appears, it became
Nguyen's duty to show that such was unnecessary. Simos v. State, 83 Wis.2d 251, 256, 265 N.W.2d 278,
279 (1978). Nguyen must show both
suggestiveness and the “ease” of its avoidance. Id.
Nguyen's argument points
to no impermissible suggestiveness in the record. His assertion that he was the only Asian in the lineup who
appeared Hispanic is unaccompanied by reference to the record. The contrary appears. A victim, Maurice Ward, testified that all
persons in the lineup resembled Hispanics.
As to height, Nguyen conceded that two of the four participants were
approximately as tall as he, five feet, eight inches. We cannot conclude from the record before us that any alleged
height disparity was unduly suggestive.
We conclude that Nguyen failed to establish impermissible
suggestiveness. Our analysis need not
proceed further.
Nguyen next argues that
the trial court misused its discretion by excluding from evidence the opinions
of clinical psychologist Timothy C. Wiedel who was employed full-time at the
Milwaukee County Mental Health Complex.
Dr. Wiedel did a psychological profile of Nguyen. Nguyen asserted that this profile would have
assisted the jury to explain his language difficulties which were evident from
his failure to complete a Minnesota Multiphasic Personality Inventory and his
difficulties in adjusting to life in Milwaukee since his arrival from
Vietnam. Nguyen contends that the
profile would have aided the jury in evaluating the reliability of his
incriminating statements to police officers.
The opinion of an expert
is admissible if it is relevant and if it assists the trier of fact to
understand the evidence or determine a fact in issue. State v. Morgan, 195 Wis.2d 388, 416, 536 N.W.2d
425, 435 (Ct. App. 1995); Rule 907.02,
Stats.; see also Rule 904.01, Stats.
Whether expert testimony assists the trier of fact is a decision within
the discretion of the trial court. Id.
at 417, 536 N.W.2d at 435.
The trial court
determined that the profile was irrelevant because it did not address the
voluntariness of Nguyen's statements to the police, nor did it address the
credibility of his statements to Detective Patrick Kennedy. We affirm the trial court because the record
fails to establish the relevancy of the testimony. Dr. Wiedel offered to show that Nguyen's adjustment problems
arose from his immigration to this country.
Dr. Wiedel failed to tie this maladjustment either to voluntariness or
reliability of statements to the police.
He would have testified that Nguyen was a suspicious, almost paranoid,
person. Again, this is irrelevant
because, without more, it does not develop Nguyen's testimonial
unreliability. Also, testimony of Nguyen's
proneness to the suggestions of persons in whom he places trust says nothing
about the reliability of his statements to the officers. The trial court did not misuse its
discretion to exclude Nguyen's profile from evidence.
Finally, Nguyen
challenges his sentence. He argues that
the trial court: violated his rights under the Fifth, Eighth, and Eleventh
Amendments to the United States Constitution; failed to consider mitigating
circumstances; and imposed a harsh and unconscionable sentence. Nguyen, however, does not develop his
constitutional contentions beyond the summary caption of his brief, nor does he
cite to authority for it.[1] We limit our analysis to his argument that
his sentence was harsh and unconscionable.[2]
Sentencing is left to the discretion of
the trial court, and appellate review is limited to determining whether there
was an erroneous exercise of discretion.
We recognize a “strong public policy against interference with the
sentencing discretion of the trial court and sentences are afforded the
presumption that the trial court acted reasonably.” This court is reluctant to interfere with a trial court's
sentence because the trial court has a great advantage in considering the
relevant factors and the demeanor of the defendant. The defendant must show some unreasonable or unjustifiable basis
in the record for the sentence imposed.
State
v. Echols, 175 Wis.2d 653, 681-82, 499 N.W.2d 631, 640-41
(citations omitted), cert. denied, 114 S. Ct. 2461 (1993).
Nguyen argues that his
sentence—three years consecutive on the three
recklessly-endangering-safety-while-armed counts, and nine months concurrent on
the fourth count of recklessly endangering safety by use of a dangerous
weapon—was an erroneous exercise of sentencing discretion because it was based
on an improper factor and because the court placed undue emphasis upon one
factor, the seriousness of the offense.
First, Nguyen alleges
that the trial court improperly considered his admission at sentencing that he
was a member in the Latin Kings street gang.
He argues that he was charged with no gang-related activity, nor even
proven to be a gang member; thus, the trial court should not have considered
his gang membership at sentencing. He
is wrong.
In a wide-ranging and
lengthy statement, the trial court carefully analyzed the factors upon which
Nguyen's sentence was based. They
included, among others, the nature of the offenses, Nguyen's needs, and the
public weal. These were the proper
factors the court had to address. Id. The trial court referred to Nguyen's
involvement in gang activities, from which the community needed
protection. Membership in a group which
advocates commission of criminal acts relates to Nguyen's future endangerment
to society; his associates are likely to encourage commission of additional
crime. See Dawson v.
Delaware, 503 U.S. 159, 166 (1992).
Gang membership is not an improper factor for a sentencing trial court
to consider.
Nguyen argues that the
trial court overemphasized the seriousness of the shootings while down-playing
other factors, including Nguyen's lack of family support and the abusive
environment in which he lived. As
stated above, a trial court has wide discretion after considering the three
basic sentencing factors: the seriousness of the offense, rehabilitative needs
of the defendant, and public protection—to place emphasis on one or
another. State v. Hamm,
146 Wis.2d 130, 154, 430 N.W.2d 584, 595 (1988). Nguyen fails to demonstrate from the record that the senseless
shooting of three teenage boys on a playground is a lesser factor. The trial court understandably viewed the
three shootings as a horrific and completely unjustified act. As to Nguyen's second argument—that the
trial court did not give enough emphasis to Nguyen's allegedly abusive and
hostile environment and his family's failure to give him sufficient support—it
was considered by the trial court and given an emphasis which we cannot say was
a discretionary misuse. Nguyen's sentence
was neither harsh nor unconscionable given the nature of the crimes for which
he was convicted.
III.
Summary
In sum, none of the
arguments presented by Nguyen show reversible error. Accordingly, we affirm the judgment and the order.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] State v. Scherreiks, 153 Wis.2d 510, 520, 451 N.W.2d 759, 763 (Ct. App. 1989). We declined to address a constitutional argument relating to sentencing which was not developed and not supported by citation to authority.
[2] Nguyen did not raise the sentencing issue before the trial court, nor did the court decide it. Ordinarily this court will not determine an issue raised for the first time on appeal; Segall v. Hurwitz, 114 Wis.2d 471, 489, 339 N.W.2d 333, 342 (Ct. App. 1983); however, the parties have briefed this issue and its resolution completes the appellate argument.