State v. Van Tran

REID, Chief Justice,

concurring and dissenting.

I concur with the majority’s holdings that the three convictions of first degree murder be affirmed and that the sentences of death for the murders of Amy Lee and Arthur Lee be reversed, because the evidence is insufficient to support a finding that they were especially heinous, atrocious, or cruel. T.C.A. § 39-2-203(0(5) (1982).

I also would reverse the sentence of death for the murder of Kai Yin Chuey and impose a sentence of life imprisonment upon each conviction, for the reasons stated in Justice Daughtrey’s dissent and for the additional reasons that the evidence is insufficient to support the aggravating circumstance of mass-murder, T.C.A. § 39-13-204(0(12) (1991) (formerly T.C.A. § 39-2-203(0(12) (1982)), the proof does not establish that the defendant was death-eligible under the holding of State v. Middlebrooks, 840 S.W.2d 317 (Tenn.1992), and the sentence of death is disproportionate to the penalty imposed in similar cases, T.C.A. § 39-13-206(e)(l)(D) (1991) (formerly T.C.A. § 39-2-205(c)(4) (1982)).

The evidence summarized in the majority opinion shows that the homicides were committed during a melee that resulted when the four victims forcibly resisted the three would-be robbers turned murderers. The brawl began when one victim, Arthur Lee, grabbed robber Bounnam’s hand and elbowed him in the chest. Bounnam fell against another victim, “the old lady,” who in turn fell against the defendant, “eaus[ing] the gun to go off.” Arthur Lee then kicked robber Chung causing him to “shoot one or two times.” Then Arthur Lee was shot by Chung when he “tried to grab the gun.” When the defendant told Mr. Lee not to try for Chung’s gun, Mr. Lee “tried to get [the defendant’s] gun” and the defendant shot him. Mr. Lee fell, but “was moving around” and the defendant shot him again. When the defendant walked into another room, he saw the “old lady roll over.” He “thought she had something in her hand” and shot her in the head. Upon leaving the room, the defendant saw Bounnam holding Ging Sam Lee and “told Bounnam not to hurt her.” There is no evidence in the record as to who killed Amy Lee, only that she died of a single gunshot wound.

The record shows that the defendant initially intended to rob, not kill. This intent is demonstrated by three incidents that occurred during the event: when the defendant told Arthur Lee not to grab Chung’s gun; when he shot the “old lady” only because he thought she had something in her hand; and when he told Bounnam not to hurt Ging Sam Lee. The absence of intent to kill is reflected in the jury’s verdict of not guilty on the three charges of premeditated murder, and in the jury’s finding that the evidence did not support the charge of aggravating circumstance (i)(3), that the defendant knowingly created a great risk of death to two or more persons other than the victim during his act of murder.

The majority opinion recognizes that these facts are not sufficient to support the sentence of death as to Arthur Lee or Amy Lee. The evidence found by the majority to be sufficient to justify the death sentence for the murder of Kai Yin Chuey, the victim identified by the defendant as the “old lady,” was that she “was lying on the floor unable to protect herself when the defendant put a gun to the back of her head and shot her.” Omitted from this account is the defendant’s statement that he “thought she had something in her hand.” In any event, these facts do not establish a constitutional basis for imposing a sentence of death.

That mass-murder as an aggravating circumstance is unique to Tennessee may be seen as an indication of its lack of usefulness in determining those first-degree murderers who are deserving of death as a punishment. A majority of this Court, after essentially rewriting the statute, found the aggravating circumstance of mass murder to be constitutional in State v. Bobo, 727 S.W.2d 945 (Tenn.1987). Again, a majority of this Court found in State v. Black, 815 S.W.2d 166, 184 (Tenn.1991) that mass murder as an aggravating *484 circumstance may be applicable to multiple murders “committed close in time.” However, neither the language of the statute nor either case demonstrate how this circumstance has, in the words of the dissent in Bobo, 727 S.W.2d at 957 , added anything of “substance” to the process of narrowing the class of death-eligible murderers. Since its use in this case added nothing to the constitutionally required procedure, reliance upon mass murder as justification for the sentence of death was error of constitutional dimension. Middlebrooks v. State, 840 S.W.2d at 345-46 .

For the reasons stated above and also those stated in Justice Daughtrey’s dissent, the facts of this case do not show that the defendant is a member of the death-eligible class of murderers. In Middlebrooks v. State, the Court articulated the standards of proof required to impose a sentence of death. The Court found that the imposition of a sentence of death upon a conviction of felony murder does not, per se, violate the constitutional prohibition against cruel and unusual punishment. Id. at 323 . However, in that case the Court also found that for a sentence of death to be valid, the aggravating circumstances must in fact narrow the class of death-eligible persons. The Court stated as follows:

As a constitutionally necessary first step under the Eighth Amendment, the Supreme Court has required the states to narrow the sentencers’ consideration of the death penalty to a smaller, more culpable class of homicide defendants than the pre- Furman class of death-eligible murderers. A state, however, must not only genuinely narrow the class of death eligible defendants, but must do so in a way that reasonably justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder. A proper narrowing device, therefore, provides a principled way to distinguish the case in which the death penalty was imposed from the many cases in which it was not, and must differentiate a death penalty case in an objective, even-handed, and substantially rational way from the many murder cases in which the death penalty may not be imposed. As a result, a proper narrowing device insures that, even though some defendants who fall within the restricted class of death-eligible defendants manage to avoid the death penalty, those who receive it will be among the worst murderers — those whose crimes are particularly serious, or for which the death penalty is peculiarly appropriate.

Id. at 343 (citations omitted).

The aggravating circumstances found by the jury in this case do not, in fact, narrow the class of death-eligible defendants, and the imposition of the sentence of death violates the constitutional prohibition against cruel and unusual punishment.

I also would hold that the majority’s comparative proportionality review does not meet the standards set forth in T.C.A. § 39-13-206(c)(1)(D), which requires a consideration of “both the nature of the crime and the defendant.” See State v. Harris, 839 S.W.2d 54, 84-85 (Tenn.1992) (Reid, C.J., dissenting). The proportionality review in this case is entirely conelusory. It merely recites, in summary fashion, the facts of the killing and then states as justification for the sentence of death, that “the defendant chose without provocation to shoot a second, unresisting victim in the back of the head.” Even here, the majority omits, perhaps as being immaterial, that the defendant thought the victim had something in her hand. The record falls far short of establishing the crime to be, in comparison with other first-degree murders, one of the most egregious.

The defendant, as a person, obviously is not one of the worst of the bad. He is a native of Vietnam and, at the time the murders were committed, he was 20 years of age. He was the child of a Vietnamese woman and an American soldier who died in Vietnam in 1968. When the defendant was a small child, he was very sick and did not talk until he was six years of age. According to the clinical psychologist and professor of psychiatry at the University of Tennessee Medical School who had interviewed and tested the defendant, the defendant described to him a very difficult childhood in Vietnam, where he had lived in an orphanage and also with an aunt, who disciplined him by tying him naked to a *485 tree where ants bit him. According to his account to the psychiatrist, the defendant had lived for some time on the street and had become exposed to marijuana at an early age. He stopped school when Saigon fell in 1975.

Under the auspices of a program sponsored by the Catholic Church, the defendant and his mother arrived in Memphis in 1983, when he was 17 years of age. He dropped out of school after one year. His American sponsor, Mrs. Mitchell, testified that the defendant lived with her for one and a half years, during which time he cooked and cared for Mrs. Mitchell, who was ill with cancer, and her children. She described the defendant as “very, very humble” and honest. The personnel manager of the defendant’s former employer and his immediate supervisor described him as a very good employee, responsible and well-mannered. An FBI agent testified that he had cooperated with the FBI in their search for Chung and Bounnam. The defendant had no prior criminal record or history of arrest. The psychiatrist described the defendant as depressed, suffering from low esteem, and truly remorseful for the crimes he had committed. This is not the portrait of a person for whom, pursuant to a rigorous and searching proportionality review, the death sentence is warranted.

The process followed by the majority in its proportionality review and the proof relied upon in affirming the sentence of death are further subject to the criticisms made in Middlebrooks v. State, 840 S.W.2d at 354-55 (Reid, C.J., concurring and dissenting).

I would reverse the sentence of death and impose three sentences of life imprisonment.