IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,848
STATE OF KANSAS,
Appellee,
v.
NGAN PHAM,
Appellant.
SYLLABUS BY THE COURT
1. In reviewing a challenge under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), concerning the State's use of a peremptory challenge, the applicable standard of review is whether the trial court abused its discretion in determining if the challenged strikes were constitutionally permissible.
2. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. The defendant bears the burden of establishing such an abuse of discretion.
3. The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. In this second step, the prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.
4. The standard of review of the first step of the Batson three-step process – the prima facie showing on the basis of race – is a question of legal sufficiency subject to plenary review.
5. The standard of review of the second step of the Batson three-step process does not demand a prosecutor's explanation that is persuasive, or even plausible, but merely facially valid. Further, unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Accordingly, the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike.
6. The standard of review of the third step of the Batson three-step process – the trial court's decision on the ultimate question of whether the defendant has carried the burden of proving purposeful discrimination – is greatly deferential because the determination is factual.
7. In order to raise a Batson challenge based upon the striking of Hispanic venirepersons, the defendant need not establish that he or she is a member of a cognizable minority group because the focus is on the individual rights of jury members not to be excluded on the basis of race or gender.
8. The burden of creating a record of relevant facts to support a Batson challenge belongs to the defendant.
9. A venireperson's statements that her or she is uncomfortable with his or her ability to explain his or her opinions to others because of language barriers is a sufficiently race-neutral ground for his or her exclusion as a juror.
10. In reviewing a trial court's decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.
11. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances, including the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, background and fluency in the English language; and the fairness of the officers in conducting the interrogation.
12. The essential inquiry in determining the voluntariness of an accused's statement is whether the statement was the product of the free and independent will of the accused.
13. The purpose behind K.S.A. 75-4351(e) is to ensure that there is clear communication between one who is in custody and the officers who are questioning him. The statute does not state a rule of evidence. Whether or not an interpreter is appointed and is present at the taking of the statement, the trial court must still determine whether an in-custody statement was freely, voluntarily, and knowingly given, with knowledge of the Miranda rights. That determination must be based upon the totality of the circumstances.
14. Under the totality of the circumstances in this case, including the absence of an interpreter described in K.S.A. 75-4351(e), as a matter of law the defendant's statements were made freely, voluntarily, knowingly, and understandingly with full knowledge of his Miranda rights.
15. Multiplicity is the charging of a single offense in several counts of a complaint or information. The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense. Multiple punishments for a single offense are prohibited by the Double Jeopardy Clause of the Fifth Amendment and by §10 of the Kansas Constitution Bill of Rights.
16. Under the facts of this case, because only one person was relieved of items of property belonging to different persons, it is multiplicitous to convict of more than one count of aggravated robbery.
17. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.
18. The actions of one robber can be used to prove the elements of the crime against an accomplice.
19. The State need not locate stolen items to prove that they were stolen by a defendant. Under an appellate court standard of review, it is sufficient if there was evidence linking the defendant to the crime and there was property missing from the victim.
20. Under the facts of this case, defendant's convictions of conspiracy to commit kidnapping and conspiracy to commit aggravated burglary are multiplicitous because there was only a single continuing conspiracy, i.e., one criminal agreement, to rob the victims in their home.
21. Under the facts of this case, defendant's convictions of aggravated kidnapping and felony murder, based upon the underlying felony of aggravated burglary, are not multiplicitous.
22. When a defendant has requested a lesser included instruction at trial, the standard of review for failing to so instruct is whether the evidence, when viewed in the light most favorable to the defendant, supported the instruction. The instruction need not have been given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.
23. Under Kansas law a victim's escape does not mean that the act of kidnapping was not completed.
24. As to crimes committed on or after July 1, 1995, claims of partiality, prejudice, oppression, or corrupt motive do not raise jurisdictional grounds sufficient to allow an appeal of a presumptive sentence. K.S.A. 21-4721(e)(1).
Appeal from Finney district court; PHILIP C. VIEUX, judge. Opinion filed June 16, 2006. Affirmed in part and reversed in part.
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.
The opinion of the court was delivered by
NUSS, J.: 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) (maximum sentence of life imprisonment imposed). 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.
FACTS
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, "Motherfucker, stand still. I'm going to shoot you." 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, "Lay down. Lay down." 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, "Nam, watch them. If they move, shoot them all." 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 living room, where Pham tied their hands and made them lie on the floor.
Pham told Falletti that after all the family members were tied up, Nam stood guard over them while Pham and Giang went to a back bedroom to look for money. On a rough diagram Falletti had drawn, Pham showed Falletti where the living room and the bedroom were. Falletti identified the bedroom as belonging to Ann and Hong. According to Pham, he had been in the bedroom 4 or 5 minutes when he heard gunfire. He ran straight to his car, gave his keys to Giang, and the three men rode to Wichita. The next morning he returned to Liberal.
Numerous times during the interview Pham stated that the purpose of the episode was to get money; he knew nothing about jewelry taken from the residence. He also said that no one had intended any shooting.
Pham told Falletti that the guns he and Giang had used and the ski masks were in his car. After the interview, Falletti obtained a search warrant for Pham's car and executed it on the afternoon of November 12. He found a tan-colored coat lying in the back of the car, similar to a brown coat Pham had been wearing in the Kwik Shop photographs. The search also revealed a fully loaded Ruger .45 caliber pistol, a fully loaded Smith and Wesson 9 mm pistol, a fully loaded Smith and Wesson .40 caliber pistol, an FEC .45 caliber pistol, and a loaded .22 caliber RG Industries revolver. None of the handguns was determined to be the murder weapon. The search also revealed four black ski masks, numerous yellow IBP-style gloves, and water bottles like those purchased at a convenience store.
Pham later filed a motion to suppress this videotaped statement, which the district court denied after an evidentiary hearing. The tape was played for the jury at trial.
The jury found Pham guilty of:
1. First-degree felony murder of Thang whose death occurred during the commission of an inherently dangerous felony, i.e., aggravated burglary;
2. Aggravated kidnapping of Thang, who was shot during a confinement to facilitate the commission of a crime;
3. Five counts of kidnapping for the other members of the Nguyen family who were confined by gunpoint on the living room floor to facilitate the commission of a crime;
4. Conspiracy to commit kidnapping, e.g., by cutting up a T-shirt in the car to eventually be used for binding the victims.
5. Six counts of aggravated robbery for the taking of the jewelry by force or threat from the presence of all six Nguyen family members.
6. Aggravated burglary of the Nguyen residence, i.e., with them in it.
7. Conspiracy to commit aggravated burglary, e.g., by driving together to the Nguyen residence.
The court ordered that the sentences for these convictions be served consecutively, resulting in an aggregate sentence of life (parole eligibility after 20 years), plus 1,306 months.
ANALYSIS
Issue 1: Did the district court err in denying Pham's Batson challenge at the conclusion of voir dire?
After voir dire, Pham, who is Vietnamese, objected to the State's use of peremptory strikes against four allegedly Hispanic venirepersons. The district court overruled his objection. On appeal, Pham admits that the State's peremptory challenges to the two alleged Hispanic persons who had non-Hispanic surnames (J.H. and J.F.) were race neutral, and limits his argument to venirepersons J.C. and M.O. The State responds that Pham fails to meet his burden of proving purposeful discrimination.
When we review a challenge under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), concerning the State's use of a peremptory challenge, we ask whether the trial court abused its discretion in determining if the challenged strikes were constitutionally permissible. See State v. Washington, 275 Kan. 644, Syl. ¶ 1, 68 P.3d 134 (2003). Discretion is abused only when no reasonable person would take the view adopted by the trial court. The defendant bears the burden of establishing such an abuse of discretion. State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003).
We further specified the framework for analyzing the issue in Washington, 275 Kan. 644, Syl. ¶ 2:
"The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. In this second step, the prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike to satisfy the second step of the Batson analysis. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination."
The standard of review of the first step – the prima facie showing on the basis of race – is a question of legal sufficiency subject to plenary review. State v. Bolton, 274 Kan. 1, 9, 49 P.3d 468 (2002).
Regarding the second step – the prosecutor's burden to show a race-neutral explanation for striking the jurors in question – it does not demand a prosecutor's explanation that is persuasive, or even plausible, but merely facially valid. See State v. Vargas, 260 Kan. 791, Syl. ¶ 3, 926 P.2d 223 (1996). Further, unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Accordingly, the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. State v. Vargas, 260 Kan. 791, Syl. ¶ 3.
Finally, the standard of review of the third step – the trial court's decision on the ultimate question of whether the defendant has carried the burden of proving purposeful discrimination – is greatly deferential because the determination is factual. State v. Walston, 256 Kan. 372, 379, 886 P.2d 349 (1994).
"'Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will "largely turn on evaluation of credibility." [Citation omitted.] In the typical peremptory challenge inquiry, the decisive questions will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. . . . [the evaluation of which] lies "peculiarly within a trial judge's province." [Citations omitted.]'" Walston, 256 Kan. at 379 (quoting Hernandez v. New York, 500 U.S. 352, 364-65, 114 L. Ed. 2d 395,111 S. Ct. 1859 [1991]).
We begin by acknowledging that Pham, who is not Hispanic, has standing to raise a Batson challenge based upon the striking of Hispanic venirepersons. See State v. Edwards, 264 Kan. 177, 193, 955 P.2d 1276 (1998) (defendant need not establish that he or she is a member of a cognizable minority group because the focus is on the individual rights of jury members not to be excluded on the basis of race or gender).
Next, Pham must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Although the district court correctly stated that Hispanics are an ethnic, not racial, group, this court previously has considered the exclusion of Hispanics in the Batson analysis. See State v. Arteaga, 257 Kan. 874, 878, 896 P.2d 1035 (1995). We conclude that Pham made a prima facie showing that J.C. and M.O., who are Hispanic, were struck for that reason.
In turn, the State offered the district court its race-neutral reasons for the peremptory strikes of J.C. and M.O. The State pointed out that during voir dire J.C. did not answer any questions from the State or the defense, even with so much as a nod of the head, demonstrating that he either was not listening or simply had no interest in being in the courtroom and in assisting in finding a jury. The State cited one example it felt would directly have affected J.C. He is a liquor store clerk and the only one working at the store during the day but failed to respond when the panel was asked if there were any pressing personal business or work-related matters that would make it difficult for anyone to attend the trial for the next 3 to 5 days.
As for M.O., the State pointed out that she had limited abilities to communicate in English, that she stated she was uncomfortable sitting on the jury because she did not know if she could adequately express her opinions to other members of the jury, and because she might have difficulty understanding written documents and medical testimony.
In reply, Pham argues that the State's reason regarding J.C.'s nonresponsive body language should be viewed with skepticism, citing State v. Hood, 245 Kan. 367, 780 P.2d 160 (1989). There we stated:
"Hostility toward the prosecution, as evidenced by oral responses, tone of voice, sitting with arms crossed, leaning forward when defense counsel conducts voir dire, or leaning back while the prosecution asks questions, is a matter which the trial court may take into consideration in determining whether the prosecutor has a valid and neutral reason for striking the juror. Normally, the trial court's decision will be made immediately after voir dire and the trial court will have the benefit of having just observed the prospective jurors and having heard the questions and answers. Again, however, the trial judge must be particularly sensitive when body language, alone, is advanced as a reason for striking a juror of the defendant's race." (Emphasis added.) 245 Kan. at 374.
Body language was not the sole reason advanced by the State for striking J.C., however. The State offered that J.C. failed to answer any questions, particularly one that appeared to be especially relevant to his work situation.
Pham replies that the State did not strike all the prospective jurors who failed to respond to questions from counsel. Citing State v. Walston, 256 Kan. 372, 381, 886 P.2d 349 (1994), he argues the similarity of white jurors who were not challenged should be included in the evaluation in determining whether the State's reason is legitimate or merely a pretext for a true discriminatory motive. The district court, however, should consider that factor only if it is brought to the district court's attention. 256 Kan. 372, Syl. ¶ 4. The burden of creating a record of relevant facts belongs to the defendant. 256 Kan. at 382. Here, Pham did not raise to the district court the similarity of white jurors who were not challenged, so this court has no basis for considering this argument on this record.
Regarding M.O., Pham argues that there were no written documents or medical testimony presented at trial which were beyond her comprehension. There is no record of M.O.'s level of comprehension, however, only that she could understand English and that she was uncomfortable with her ability to explain her opinions to others. We conclude this is a sufficiently race-neutral ground for excluding a potential juror. See State v. Smith, 352 N.C. 531, 548, 532 S.E.2d 773 (2000) (to assure that defendants be judged fairly and impartially, a juror must, at the very least, have sufficient proficiency in the English language as to enable him or her to fully comprehend the testimony and the court's instructions and to fully and effectively participate in the jury's deliberations).
Pham fails to show that the district court abused its discretion in determining that the State's strikes of venirepersons J.C. and M.O. were constitutionally permissible.
Issue 2: Did the district court err in admitting into evidence Pham's statements to law enforcement made without being provided an interpreter?
Pham objects to the admission of statements he made to the police, i.e., agent Falletti, because they were taken without an interpreter in violation of K.S.A 75-4351(e). The State responds that although English is not Pham's primary language, the statements were voluntarily and understandingly made.
In reviewing a trial court's decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard. State v. Swanigan, 279 Kan. 18, Syl. ¶ 1, 106 P.3d 39 (2005).
Furthermore, in determining whether a confession is voluntary, a court looks at the totality of the circumstances, including the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. Swanigan, 279 Kan. 18, Syl. ¶ 2. An additional circumstance for consideration is the accused's fluency in the English language. State v. Garcia, 243 Kan. 662, Syl. ¶ 8, 763 P.2d 585 (1988). The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Swanigan, 279 Kan. 18, Syl. ¶ 2.
As Pham points out, K.S.A. 75-4351(e) states t