COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Will is and Senior Judge Hodges Argued at Rich mond, Virginia

THANG DUE NGUYEN MEMORANDUM OPINION * BY v. Record No. 1806-01-2 JUDG E JERE M. H. WILLIS, JR. JUNE 11, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY George F. Ti dey, Judge Patrick R. Bynum, Jr., for appellant. Margaret W. Reed, As sistant Attorn ey General (Jerry W. Kilg ore, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Thang Due Nguyen was convicted in a bench trial of second-degree mu rder, in violation of Code § 18.2-32, and use of a firearm in the commis sion of a felony, in violation of Code § 18.2-53.1. On appeal, Nguyen contends that the trial court erred (1) in refusing to allow evidence of Hung Tran 's reputation for violence in the community; and (2) in overruling his motion for a mistrial on the ground that the Co mmonwealth failed to provide him with exculp atory statements . We affirm the judgment of the trial court.I. BACKGROUND

A. OFFENSES In the early morning hours of August 27, 2000, Nguyen and his friends were seated at several tables near the main entrance of the Golden Dynasty Rest aurant in Henr ico County. On e of Nguyen's friends, Bien Li en, and the victim , Hung Tran, we nt outside to talk. While Lien and Tran spoke outside, a female friend of Nguyen went to a wind ow to listen to what became an argument. When Tran returned, the female friend th rew a bottle at him and they began to argu e. Concerned that a fight wo uld occur, one of Tran's friends ran over and grabbed him. Tran broke free, and a melee ensued. The fa cts regarding wh at occurred thereafter are in dispute. The Commonwealth pr esented eviden ce that once the melee began, Nguyen and an unidentified man went outside to the parking lot. A witness testified that, wh ile in the parkin g lot, Nguyen passed a machete and ni ghtstick to th e unidentified man. They returned to the restaurant. In the vestibule of the restaurant, a friend of Tran's was holding Tam Pham , a friend of Nguyen's, in a bear hug. Nguyen stat ed, "I'm bringing in a toy," which is slang for "bringing in a weapon." Upon hearing this, Tran's friend releas ed Pham and reached for Nguyen. He was unsuccessful . Pham and Ng uyen left the vestibule, and two shot s were fired. Davi d Nguyen, an other of Tran's friends and a pa rticipant in the melee, heard the shots and

- 2 -looked up to see Nguyen 's arm pointed at Tran who was lying on the floor. Nguyen and Pham fled the restau rant. Both were apprehende d outside. Nguyen's account of what occu rred after the fighting began differs from the Common wealth's. According to Nguyen, he and a friend were in the re stroom when th e fight began. When they emerged, he saw one of his friends on th e floor and he perceived that some of his othe r friends might be in danger. As a result, he immediately went to their assist ance. As he en tered the melee, Tran confronted him. Nguyen testified that Tran had a broken beer bottle in his hand and came toward him in a menacing mann er. Nguyen attempted to retreat, but was bloc ked by the crowd and by tables and chairs. Tran continued his ag gressive moves. Fe aring for hi s safety, Nguyen pulled a pistol from his pants and sh ot twice at Tran. Tran was hit once in th e back. Once the shot s were fired, patrons and combatants hurriedly left the restaurant. Nguyen was apprehended outside the restaurant.
B. TRIAL Nguyen was indicted for first-degree murder, in violation of Code § 18.2-32, and fo r use of a firearm in the commissi on of a felony, in violation of Code § 18.2-53.1. He waived trial by jury, and a bench trial was held. Beth Liper, Nguyen's one time foster moth er, was called as a witness for the Co mmonwealth. Ms. Liper te stified that she went

- 3 -to visit Nguyen in jail. The purp ose of the visit was to help her decide whether she woul d post his bond. She did not speak to the police prior to the visit. On direct examination, Ms. Li per testified to the content of the conversati on with Nguyen. Nguyen objected, argu ing that she was an agent of the Co mmonwealth and that her statemen t had not been provided prior to trial. The tria l court over ruled the objection. Cont inuing, Ms. Liper stated that Nguyen admitted leaving the rest aurant, obtainin g a gun from his car, and returning to shoot Tran . She said when she asked him how he could shoot someone twic e and in the back, he ju st lowered hi s head and did not answer. After the Common wealth rested its case , Nguyen objected to Ms. Liper's testim ony. He asserted that she was a police agent and that his statemen ts to her were excu lpatory and therefore should have been provided pre-trial, pursuant to Brady v. Maryland , 373 U.S. 83 (196 3). The trial co urt overruled the objection, holding that the statements were properly admitted because they were not exculpatory. In his case-in- chief, Nguyen called Ha nh Nguyen as a witness to testify as to Tran's reputation for viol ence in the community. Hanh Nguyen, who was no t at the restaurant du ring the events on trial, testified that he had seen Tran involv ed in two fights in the past. The Commonwe alth's attorney object ed to the testimony

- 4 -of specific acts of violence. The tria l court over ruled the objection. Th e defense attorn ey then asked: MR. BYNUM [DEFENSE ATTORNEY]: Now, does or did the deceased have a reputation for violence and fighting in the community? THE COURT: Wait a minute now. If the victim [Tran] wasn't a friend of his, I'm not, I don't think he can testify to that. I'm not going to allow that. MR. BYNUM: I'm sorry, Judge, I didn't hear that. THE COURT: If the victim wasn't a friend of his and he didn't know him much, didn't know him much, I'm not going to allow that. MR. BYNUM: Judge, I, I, the situation is that he observed him twice in a fight. THE COURT: That's right. MR. BYNUM: And as a result of that and he knows him, and he's certainly known in his community and I, and I, and I think he's very competent to testify what he has a reputation -- THE COURT: I'm not going to allow it. Well, go on. MR. BYNUM: All right. I will accept the Court's ruling. That's all the questions I have. Defense counsel made no proffer of Hanh Nguyen's expected answer as to the foundation question of whether he was familiar with Tran's reputation in the community for violence and fighting. He made no proffer of what, assuming a proper foundation was laid, Hanh Nguyen's testimony would be as to that reputation.

- 5 -The defense rested and moved the court to strike the Commonwealth's evidence on the ground that it did not prove his guilt beyond a reasonable doubt. Nguyen further moved for a mistrial, asserting the Commonwealth's failure to provide him exculpatory statements made by Ms. Liper. Both motions were denied. The trial court convicted Nguyen of second degree murder, in violation of Code § 18.2-32, and use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. It sentenced him to twenty years incarceration, with ten years suspended, for second-degree murder, and to three years incarceration for using a firearm during the commission of a felony. He appeals that judgment.

II. ANALYSIS Nguyen contends that the trial court erred (1) in refusing to allow evidence of Hung Tran's reputation for violence in the community; and (2) in denying his motion for a mistrial on the ground that the Commonwealth failed to provide him exculpatory statements. We disagree.

A. REPUTATION EVIDENCE Nguyen contends that the trial court erred in rejecting evidence of Hung Tran's reputation in the community for violence. However, he failed to proffer a proper foundation that his witness was familiar with Tran's reputation. He made no proffer to Hanh Nguyen's expected testimony as to that reputation. Thus he has provided us no basis on which to grant

- 6 -the relief that he seeks. See Brant v. Commonwealth , 32 Va. App. 268, 280, 527 S.E.2d 476, 481-82 (2000).

B. EXCULPATORY EVIDENCE WAS NOT WITHHELD Nguyen next contends that the trial court erred in denying his motion for a mistrial, arguing that the Commonwealth failed to provide him with exculpatory evidence in violation of Brady , 373 U.S. 83. We disagree. Due process is violated if the prosecution suppresses requested evidence favorable to the accused and the evidence suppressed is material to guilt or punishment. Id. at 87. Nguyen claims that his statements to Liper that he had no choice but to shoot Tran because "it was either him or me" and that he had to defend himself were exculpatory and should have been disclosed prior to trial. He argues that had he had the benefit of those statements his trial strategy would have been altered to maximize and bolster his self-defense theory. Nguyen's statements were not exculpatory. He told Liper that he left the restaurant to get a gun and returned to shoot Tran. He further told her that he returned from the safety of the parking lot to confront Tran. His statements to Liper did not support his self-defense theory and were not exculpatory. Furthermore, the statements came in at trial, and he had the full benefit of them. He made no showing that the Commonwealth's failure to disclose the statements prior to trial

- 7 -in any way prejudiced him either in his conduct of the trial or in the trial's outcome. The judgment of the trial court is affirmed. Affirmed.

- 8 -