On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-04-0577.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Baxter.
Defendant Mai T. Nguyen appeals from a January 25, 2007 order denying his first petition for post-conviction relief (PCR). In a trial by jury, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant was acquitted of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1) and (2). The court sentenced defendant to a ten-year term of imprisonment, subject to an eighty-five percent parole disqualifier as required by N.J.S.A. 2C:43-7.2 (NERA). After defendant filed a notice of appeal from the December 22, 2005 judgment of conviction, he moved before this court for a stay of appellate proceedings and for a temporary remand. By order of June 22, 2006, we dismissed defendant's appeal without prejudice and remanded the matter to the Law Division for consideration of defendant's petition for post-conviction relief. When the trial judge denied his petition, defendant filed the instant appeal. He presents the following claims for our consideration:
I. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, WHICH CAUSED HIM TO SUFFER AN ADVERSE RESULT.
A. THE OMITTED EVIDENCE WAS EXCULPATORY.
B. HAD THE JURY HEARD THE OMITTED EVIDENCE, THERE IS A REASONABLE PROBABILITY THAT THE RESULT AT TRIAL WOULD HAVE BEEN DIFFERENT.
II. THE CUMULATIVE EFFECT OF THE INSTANCES OF PROSECUTORIAL MISCONDUCT WAS TO DEPRIVE THE DEFENDANT OF A FAIR TRIAL.
We disagree with those claims, and affirm the denial of defendant's petition for post-conviction relief.
In the morning of November 19, 2002, defendant, his friend Binh Nguyen (Binh), his brother Hai Le (Teo), and his sister Uyen Nguyen (Wendy) were at the Miss Saigon Bar in Jersey City. Hung Nguyen,*fn1 no relation to defendant, met his girlfriend, Lihn Dand, at the bar after completing his shift as a New York City police officer. The two sat near defendant's table. At approximately 2:00 a.m., Lee Do, the manager of the bar, announced that the bar was closing and that everyone must leave. According to Dand, defendant's group became angry when asked to leave. Do testified that Nguyen approached defendant's group and told them to calm down and leave, or else they would get in trouble. When defendant and his group became more agitated, Nguyen advised Do to call the police. After hearing Nguyen urge Do to call police, defendant became more animated, stating that he wanted to fight. At the point, Wendy grabbed a stool and threw it at Nguyen, but missed him. After throwing the stool, Wendy left the bar. Shortly before Wendy exited the bar, defendant walked outside at the same time as Dand, who testified that defendant remained angry while outside the bar.
Do testified that within a couple of minutes, defendant, Teo, and a "couple guys went [back] inside." According to Do, they immediately attacked Nguyen. Do explained that Teo threw the first punch, knocking Nguyen to the ground. Do testified that defendant then reached down to strike Nguyen while he lay on the floor. Defendant and Teo continued to strike Nguyen with bar stools while he lay helpless on the floor. As the beating continued, Do called 9-1-1. Do also testified that Nguyen had done nothing to provoke the attack, and had never punched defendant.
Nguyen also testified. He explained that within a few seconds of leaving the bar, "[t]hey storm[ed] right back in, Mike*fn2 [defendant] leading the way." The group continued to strike him, "hitting [him] with the chair one after another." Nguyen maintained that it was defendant, while wielding a chair, who first attacked him. Nguyen explained that he saw defendant's face, and it was defendant, not Teo, who had initiated the attack on him. He stated that his attempts to protect himself were unsuccessful. Nguyen explained that it was defendant who smashed a bar stool across his back and broke his spine. He knew that his spine was broken because he immediately experienced a "tingling" sensation in his legs. On cross-examination, Nguyen acknowledged that he may have only seen defendant at the bar on one previous occasion.
When Dand testified, she was unable to remember if anyone else ran back into the bar with defendant. When she returned inside, she saw Mike pick up a chair and saw her boyfriend on the floor. Although she saw defendant and Teo throwing bar stools, she did not realize her boyfriend was lying on the ground where the two men had been throwing the stools.
Officer Marc Dinardo was on patrol in the early morning hours of November 19, 2002 when he received a communication dispatching him to the Miss Saigon Bar. When he arrived, he found Nguyen on the floor with blood flowing from his head. Nguyen told police he had no sensation in his legs. Dinardo did not attempt to take a formal statement from Nguyen. Dinardo later prepared an incident report indicating that three people were involved with the assault--two males and one female. Dinardo's report also indicated that "[t]he individual who struck [Nguyen] over the head shared the last name Nguyen, the first name was [Wendy.]"
While at the scene, Dinardo interviewed Do, who explained that the man on the floor had been beaten with stools by two other men that Do was familiar with. Do explained that both males grabbed bar stools, one trying to strike Nguyen with the bar stool from the front while the second male struck him from behind. Do described the three as "Asian males, medium height, medium build, and one Asian female."
On cross-examination, Dinardo was asked about his grand jury testimony, and acknowledged that at the bar the victim said that he had been struck over the head with a bar stool, and that it was Wendy who had done so. On redirect, Dinardo stated that based upon his investigation, and that of the detective who was assigned, Wendy was not the only individual who struck Nguyen with a bar stool that night. After reading a stipulation to the jury describing the injuries and the doctors' opinion that the injuries had been life threatening, the State rested.
The defense rested without calling any witnesses. Outside the presence of the jury, the judge questioned defendant about his decision not to testify, and defendant acknowledged that the decision was his and he confirmed that he did not want to testify.
During the State's summation, the assistant prosecutor argued that if the jury were to accept defense counsel's argument that defendant was not one of the people who struck Nguyen, the jury would "have to completely ignore Lee Do's testimony and . . . completely ignore Hung Nguyen's testimony." He added that "[i]n order for you to make that leap that his conduct was not as grievous as the other individuals . . . [i]f that's so, . . . that must make Officer Nguyen a very bad person." There was no objection to that argument. The jury deliberated and returned the verdict that we have described.
Before defendant's trial began, both Wendy and Binh entered pleas of guilty to third-degree aggravated assault. The State did not call either one as a witness during the trial. During the PCR hearing, defendant argues that trial counsel's failure to call Wendy or Binh as defense witnesses constituted ineffective assistance of counsel because both would have provided exculpatory evidence had they been called. Defendant also argued that trial counsel should have called his live-in girlfriend, Ngoc Thao Pham Thi, who was a witness to the incident.
When Binh pled guilty, he acknowledged picking up a bar stool and swinging it at Nguyen. During the plea colloquy, Binh was asked to describe the attack on Nguyen. The following colloquy occurred:
Q: And--Mike was also involved in the fight; is that correct?
A: Yes, but he--was after me so I didn't see it.
Q: Okay. Did you see Mike strike Hung Nguyen with a bar stool?
A: I don't see, I'm not there.
Q: Who struck Hung Nguyen with a bar stool when he was laying on the floor?
A: That's--that's Teo, that's my best friend.
Q: And what did you observe Teo do with that bar stool?
A: I saw the person, the victim was on--like lying on the ground, but repeatedly hit that person.
Q: Who repeatedly hit that person while he was laying on the ground?
A: Yes, Teo, Teo continued to hit.
Q. And--did Teo have a bar stool in his hands while he was hitting the victim who was on the ground?
A: Yes, he hit with his hand, and in the meantime, he hit--
Q: With the bar stool, correct?
Q: Okay. Mike was with you in the ...