COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Senior Judge Hodges 

Argued at Richmond, Virginia 

THANG DUE NGUYEN 

 MEMORANDUM OPINION* BY 

v. Record No. 1806-01-2 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 11, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Patrick R. Bynum, Jr., for appellant. 

 Margaret W. Reed, Assistant Attorney General 

(Jerry W. Kilgore, 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 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. 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 Commonwealth failed to 

provide him with exculpatory 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 Restaurant in Henrico County. One of Nguyen's 

friends, Bien Lien, and the victim, Hung Tran, went outside to 

talk. While Lien and Tran spoke outside, a female friend of 

Nguyen went to a window to listen to what became an argument. 

 When Tran returned, the female friend threw a bottle at him 

and they began to argue. Concerned that a fight would occur, one 

of Tran's friends ran over and grabbed him. Tran broke free, and 

a melee ensued. The facts regarding what occurred thereafter are 

in dispute. 

 The Commonwealth presented evidence that once the melee 

began, Nguyen and an unidentified man went outside to the parking 

lot. A witness testified that, while in the parking lot, Nguyen 

passed a machete and nightstick to the 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 stated, "I'm bringing in a toy," which is slang 

for "bringing in a weapon." 

 Upon hearing this, Tran's friend released Pham and reached 

for Nguyen. He was unsuccessful. Pham and Nguyen left the 

vestibule, and two shots were fired. David Nguyen, another of 

Tran's friends and a participant 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 restaurant. Both were 

apprehended outside. 

 Nguyen's account of what occurred after the fighting began 

differs from the Commonwealth's. According to Nguyen, he and a 

friend were in the restroom when the fight began. When they 

emerged, he saw one of his friends on the floor and he perceived 

that some of his other friends might be in danger. As a result, 

he immediately went to their assistance. As he entered the melee, 

Tran confronted him. 

 Nguyen testified that Tran had a broken beer bottle in his 

hand and came toward him in a menacing manner. Nguyen attempted 

to retreat, but was blocked by the crowd and by tables and chairs. 

Tran continued his aggressive moves. Fearing for his safety, 

Nguyen pulled a pistol from his pants and shot twice at Tran. 

Tran was hit once in the back. Once the shots 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 for use of a firearm in the commission 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 mother, was called as a 

witness for the Commonwealth. Ms. Liper testified that she went 

- 3 -
to visit Nguyen in jail. The purpose of the visit was to help her 

decide whether she would post his bond. She did not speak to the 

police prior to the visit. 

 On direct examination, Ms. Liper testified to the content of 

the conversation with Nguyen. Nguyen objected, arguing that she 

was an agent of the Commonwealth and that her statement had not 

been provided prior to trial. The trial court overruled the 

objection. Continuing, Ms. Liper stated that Nguyen admitted 

leaving the restaurant, obtaining a gun from his car, and 

returning to shoot Tran. She said when she asked him how he could 

shoot someone twice and in the back, he just lowered his head and 

did not answer. 

 After the Commonwealth rested its case, Nguyen objected to 

Ms. Liper's testimony. He asserted that she was a police agent 

and that his statements to her were exculpatory and therefore 

should have been provided pre-trial, pursuant to Brady v. 

Maryland, 373 U.S. 83 (1963). The trial court overruled the 

objection, holding that the statements were properly admitted 

because they were not exculpatory. 

 In his case-in-chief, Nguyen called Hanh Nguyen as a witness 

to testify as to Tran's reputation for violence in the community. 

Hanh Nguyen, who was not at the restaurant during the events on 

trial, testified that he had seen Tran involved in two fights in 

the past. The Commonwealth's attorney objected to the testimony 

- 4 -
of specific acts of violence. The trial court overruled the 

objection. The defense attorney 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 -