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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. LONG THANH NGUYEN
Filed: 18 July 2006
1. Confessions and Incriminating Statements_Miranda warnings_Vietnamese
The trial court's conclusion that a Vietnamese defendant's waiver of his Miranda rights
was knowing and voluntary was supported by the findings, to which he did not assign error.
Although defendant finds fault with the use of a police officer to translate rather a certified
interpreter, there was no evidence that the officer was deceitful or acted improperly; furthermore,
the officer was raised in Vietnam and could communicate clearly with defendant.
2. Criminal Law_instructions--prior acts of violence_limited to intended purpose
Questions in a first-degree murder prosecution about reports of domestic violence were
within the scope of cross-examination of plaintiff's expert about his testimony regarding
defendant's ability to form the intent to kill. An instruction limiting the testimony to its purpose
3. Criminal Law_prosecutor's closing argument_spousal abuse_statements repeated
A prosecutor's closing argument about evidence of a first-degree murder defendant's
abuse of his wife (the victim) were not grossly improper. The remarks referred to statements
repeated by defendant's expert and properly admitted as impeachment of his conclusions, and the
fact that the court had refused to allow the people who gave those statements to testify without
stating reasons did not necessarily indicate that the evidence was prejudicial.
4. Criminal Law; Constitutional Law_right to have consulate contacted on arrest_not
raised at trial_not ineffective assistance of counsel
A first-degree murder defendant's claim that the State violated his right to have his
consulate contacted upon his arrest was not reached because defendant did not raise the claim at
trial. Defendant's contention that the failure to raise the claim constituted inadequate
representation failed because he did not show how contacting the consulate would have changed
the outcome of the case.
Appeal by defendant from judgment entered 24 September 2004 by
Judge Steve A. Balog in Guilford County Superior Court. Heard in
the Court of Appeals 22 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Massengale & Ozer, by Marilyn G. Ozer, for the defendant-
Long Thanh Nguyen (defendant) was convicted of first degree
murder and now appeals the judgment entered against him. The
State's evidence tended to show that defendant, who was born and
educated in Vietnam, came to the United States in 2001 after his
marriage to Thu Nguyet-Thi Doan (Thu). Defendant and Thu fought
often about their marriage, and Thu had previously told defendant
that she wanted to separate from him.
On the morning of 13 April 2003, defendant and Thu had been
arguing. After a heated oral altercation, defendant began hitting
Thu. Thu initially hit defendant back, but she eventually sat down
on the floor in the family's dining room. With Thu sitting on the
floor, defendant retrieved a large knife from a drawer in the
kitchen and approached Thu. After struggling for a while, Thu
became tired and laid down on her back on the floor. As Thu lay in
a prone position, defendant picked up the knife and stabbed her
twelve times in her neck, arms, and chest. Thu died from
exsanguination after the left and right carotid arteries and
jugular veins in her neck were severed.
After stabbing Thu, defendant rinsed the knife and returned it
to its kitchen drawer. Then, defendant grabbed his 18-month-old
son and was attempting to exit the house when he was confronted by
his brother-in-law, Minh Tran (Minh). Minh, having seen Thu lying
on the floor injured, attempted to call an ambulance; however,
defendant jerked the telephone wires out of the wall and exited thehouse. Minh eventually flagged down a passing motorist who called
Once outside, defendant placed his son in the family minivan,
which was parked in their driveway. In an apparent attempt to kill
himself, defendant opened the minivan's gas tank and tried to place
a lit piece of tissue paper in the minivan's gas nozzle.
After the failed attempt, defendant climbed into the minivan
and drove erratically down the highway. Defendant soon lost
control of the vehicle, causing the minivan to leave the roadway,
become airborne, and crash into an automobile traveling on the
highway below. Defendant received only minor injuries from the
accident, consisting of airbag burn on his lower arms and a cut on
his right ankle. Police who arrived at the accident scene placed
defendant in handcuffs and transported him to the Greensboro
Criminal Investigation Department.
After defendant's arrest, Greensboro Police Detective Leslie
Lejune (Officer Lejune) contacted Officer Hein Nguyen
(See footnote 1)
Nguyen), also of the Greensboro Police Department (GPD), to
interpret statements for defendant. Officer Nguyen was a
Vietnamese native who grew up fifteen miles from defendant's home
town of Saigon.
Upon his arrival, Officer Nguyen, speaking in Vietnamese,
introduced himself to defendant as a police officer and informed
defendant of his Miranda rights. Defendant, who appeared to becalm, orally indicated that he understood each of his rights and
signed a Miranda waiver form, placing his initials next to each
right to indicate his understanding. Defendant then gave a
statement, translated by Officer Nguyen and written by Officer
Lejune, in which he admitted to stabbing Thu. Defendant was
offered but declined food and bathroom breaks and medical attention
for the cut on his ankle until he had finished giving his
Defendant was indicted on 7 July 2003 for first degree murder.
On 16 April 2004 defendant filed a motion to suppress evidence of
any and all statements made by him to the Greensboro Police
Department. Defense counsel asserted that defendant did not
knowingly, intelligently, and voluntarily waive his Miranda rights,
contending that, therefore, defendant's confession was made in
violation of his United States and North Carolina Constitutional
rights. Defendant's motion to suppress was denied in a court order
dated 21 September 2004.
(See footnote 2)
At trial, defendant offered testimony by an expert, Dr.
Michael Schaefer (Dr. Schaefer), a forensic psychologist. Dr.
Schaefer interviewed defendant in prison one year after Thu's
killing and reviewed documents from witnesses and people who knew
defendant and his wife. Dr. Schaefer diagnosed defendant with an
adjustment disorder with mixed anxiety and depressed mood, and
dysthemic disorder, a type of ongoing low-grade depression. Dr.Schaefer concluded that defendant's disorders, combined with the
stressors leading up to 13 April 2003, rendered defendant incapable
of forming a specific intent to kill Thu.
On cross-examination, Dr. Schaefer admitted that defendant's
counsel had requested that the psychoanalysis be performed on
defendant; also, Dr. Schaefer stated that the purpose of the
evaluation was to find possible grounds for a diminished capacity
defense, and that defendant was aware of this purpose.
Dr. Schaefer further admitted that some of the documents
containing statements by persons who knew defendant went against
defendant's responses to interview questions, including reports of
an ongoing pattern of domestic disturbance. However, Dr. Schaefer
failed to conduct interviews with those persons who knew defendant
and had made recorded statements regarding defendant's
(See footnote 3)
Dr. Schaefer admitted that the statements made by
these persons, if true, could change his diagnosis of defendant's
Defendant admitted to the jury that he committed second degree
murder in killing Thu. The only element of first degree murder
that defendant disputed was that he killed with premeditation and
deliberation. On 24 September 2004 a jury found defendant guilty
of first degree murder. Defendant gave notice of appeal in open
court on the same day.
 By his first assignment of error, defendant argues that
the trial court erred in failing to suppress defendant's confession
in the face of evidence that defendant did not waive his Miranda
rights understandingly, knowingly, and voluntarily. The trial
court concluded as a matter of law that defendant understandingly,
knowingly, and voluntarily waived his Miranda rights before being
interviewed by Officer Nguyen.
In its landmark decision in Miranda v. Arizona, 384 U.S. 436,
16 L. Ed. 2d 694 (1966), the United States Supreme Court held that
a suspect in the custody of police must be advised of the following
(1) that the individual has the right to
remain silent; (2) that as a consequence of
foregoing the right to remain silent, anything
the individual says may be used in court
against the individual; (3) that the
individual has the right to consult with an
attorney in order to determine how best to
exercise his or her rights prior to being
questioned; and (4) that if the individual
cannot afford an attorney, one will be
State v. Hyatt, 355 N.C. 642, 654, 566 S.E.2d 61, 69 (2002). Here,
defendant does not contest the fact that he initialed and signed a
form commonly used to waive a suspect's Miranda rights; rather, he
argues that his waiver and subsequent written statement to police
should have been suppressed because he did not understandingly,
knowingly, and voluntarily waive his Miranda rights before making
In considering a motion to suppress a statement for lack of
voluntariness, the trial court must determine whether the State hasmet its burden of showing by a preponderance of the evidence that
the statement was voluntarily and understandingly given. State v.
Mlo, 335 N.C. 353, 363-64, 440 S.E.2d 98, 102, cert. denied, 512
U.S. 1224, 129 L. Ed. 2d 841 (1994). On appeal, the findings of
the trial court are conclusive and binding if supported by
competent evidence in the record. Id. at 364, 440 S.E.2d at 102;
see also State v. Hyde, 352 N.C. 37, 44, 530 S.E.2d 281, 287
(2000); State v. James, 321 N.C. 676, 685-86, 365 S.E.2d 579, 585
Here, however, defendant failed to separately assign error to
any of the numbered findings of fact in the trial court's order
denying defendant's motion to suppress. Therefore, our Court's
review of this assignment of error is limited to whether the trial
court's findings of fact support its conclusions of law. State v.
Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999).
In its pretrial order denying defendant's motion to suppress,
the trial court found that, before beginning defendant's interview,
Officer H. Nguyen used the GPD Miranda rights
form to advise the defendant of his rights
pursuant to Miranda v. Arizona and to document
defendant's responses . . . . Officer H.
Nguyen translated into Vietnamese the
introductory paragraph: Before asking you
any questions, we want to advise you of your
rights and determine that you understand what
your rights are.
Next Officer H. Nguyen translated into
Vietnamese each of the five numbered rights on
the form . . . . After each numbered right,
before proceeding to the next one, [Officer
Nguyen] asked the defendant if he understood
that right. When the defendant responded as
to each that he did understand it, his
affirmative answer was recorded in the form inEnglish as yes. To further indicate that he
had been advised of these rights and that he
understood them, the defendant signed the form
beneath the fifth right.
Next Officer H. Nguyen read to the defendant
in Vietnamese the WAIVER OF RIGHTS paragraph
as set forth on the form. The defendant
waived his rights and agreed to make a
statement and confirmed this by signing the
form below the Waiver of Rights paragraph.
The court also found that another qualified interpreter had
been called by the GPD before the interview and had arrived
approximately thirty minutes after the interview began. This
interpreter, who would be paid by the GPD for his services, was
released because defendant's interview had already begun.
We must now determine whether these findings support the trial
court's conclusion that defendant's Miranda waiver was
understandingly, voluntarily, and knowingly made. The trial
court's conclusion of law that defendant's statements were
voluntarily made is a fully reviewable legal question. Hyde, 352
N.C. at 45, 530 S.E.2d at 288. [T]he court looks at the totality
of the circumstances of the case in determining whether
[defendant's] confession was voluntary. Id. (quotation omitted).
In making our determination, this Court must consider:
whether defendant was in custody, whether he
was deceived, whether his Miranda rights were
honored, whether he was held incommunicado,
the length of the interrogation, whether there
were physical threats or shows of violence,
whether promises were made to obtain the
confession, the familiarity of the declarant
with the criminal justice system, and the
mental condition of the declarant.
Id. (quoting State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608
Applying these principles, we determined that the trial court
did not err in concluding that defendant's Miranda waiver and
confession were understandingly, voluntarily, and knowingly made.
No evidence appears in the record that tends to show that defendant
was deceived; that defendant was held incommunicado; that defendant
was interrogated for an unreasonable length of time; or that any
promises, physical threats, or shows of violence were made to
obtain defendant's consent to waiver or his confession.
Defendant finds fault with the GPD's decision to use Officer
Nguyen, a Greensboro police officer, in lieu of a certified
Vietnamese interpreter to translate during the police
investigation. However, defendant offers no evidence showing that
Officer Nguyen was deceitful or acted in an otherwise improper
manner during his dealings with defendant. To the contrary, the
record tends to show the following: that neither Officer Nguyen
nor Officer Lejune carried a firearm into the interview room; that
neither officer raised his or her voice during the interview, and;
that Officer Nguyen read defendant's entire statement back to
defendant in Vietnamese and allowed defendant to make changes to
his statement. Additionally, the evidence shows that Officer
Nguyen, who was raised in South Vietnam, could communicate clearly
with defendant. In summary, while defendant argues that Officer
Nguyen was not a neutral interpreter because he was a policeofficer, he offers no legal authority to support his claim of
Defendant also asserts that his mental condition at the time
of the interview precluded him from understandingly waiving his
rights and making his confession. Defendant points to the fact
that he had been in an automobile accident and had attempted
suicide a few hours before making his statement. However, the
trial court found that defendant was offered but declined medical
treatment for his minor injuries until he concluded giving his
statement. Defendant also declined food, beverage, and bathroom
breaks offered during the interview. Finally, throughout the
interview, defendant remained calm and unemotional, not crying or
shaking. Based on these findings, defendant's argument is without
In summary, the trial court's findings regarding defendant's
motion to suppress support its conclusion that defendant's Miranda
waiver and statement were made understandingly, knowingly, and
voluntarily. See Cheek, 351 N.C. at 63, 520 S.E.2d at 554. None
of defendant's federal or state constitutional rights were violated
by his Miranda waiver or confession. See id. Defendant's
assignments of error relating to the suppression of his confession
are, therefore, overruled.
 Next, defendant contends that the trial court erred in
giving a jury instruction that limited the purpose of evidence
introduced regarding defendant's prior bad acts. Defendant's expert witness, Dr. Schaefer, testified that based
on his interviews with defendant and information contained in
various reports, defendant was not able to form specific intent to
kill Thu. On cross-examination, however, Dr. Schaefer admitted
that if defendant had ever hit his wife, such an act might signify
an antisocial personality disorder, a condition which he did not
originally diagnose. Without objection from defense counsel, the
State questioned Dr. Schaefer about details from reports he had
reviewed prior to reaching his conclusions regarding defendant's
mental state. The State pointed to four instances in which persons
familiar with defendant reported that defendant had threatened or
physically assaulted Thu. Dr. Schaefer admitted that he did not
perform personal interviews with any of the persons mentioned in
the reports to ascertain whether the reported statements might be
true; however, Dr. Schaefer admitted that if they were, then his
diagnosis might change.
After cross-examining Dr. Schaefer, the State moved to call
the persons who gave statements to testify at trial. Defendant
objected to calling these witnesses, arguing that doing so would
not help to prove any substantive facts. The judge refused to
allow the testimony as evidence under Rule 403 but did not explain
the specific reasoning behind his decision.
The relevant part of the contested jury instruction read as
Evidence has been received that may tend to
show that on earlier occasions, the defendant
slapped the victim; or the defendant stated
that he would kill the victim, and just go toprison; or that the victim had a bruise on the
back of her neck and said the defendant had
hit her; or that the victim stated that the
defendant tried to strangle her and hit her
head against the wall, after she fainted.
This evidence was received solely for the
purpose of showing that the defendant had the
intent, which is a necessary element of the
crime charged in this case.
Defendant argues that the prior acts instructed on were not
introduced as competent evidence before the jury. However, the
questions by the prosecutor to Dr. Schaefer regarding statements of
defendant's prior bad acts were within the proper scope of
cross-examination of an expert witness.
Our Supreme Court has consistently stated that:
North Carolina Rules of Evidence permit broad
cross-examination of expert witnesses. N.C.
Gen. Stat. § 8C-1, Rule 611(b) (1992). The
State is permitted to question an expert to
obtain further details with regard to his
testimony on direct examination, to impeach
the witness or attack his credibility, or to
elicit new and different evidence relevant to
the case as a whole. "'The largest possible
scope should be given,' and 'almost any
question' may be put 'to test the value of his
testimony.'" 1 Henry Brandis, Jr., Brandis on
North Carolina Evidence § 42 (3d ed. 1988)
(footnotes omitted) (citations omitted).
State v. Gregory, 340 N.C. 365, 410, 459 S.E.2d 638, 663-64 (1995)
(quoting State v. Bacon, 337 N.C. 66, 88, 446 S.E.2d 542, 553
(1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995)).
The Court in Gregory concluded that the prosecutor's questions
regarding the defense expert's nonreliance on certain statements
were admissible to impeach his credibility. Gregory, 340 N.C. at
410, 459 S.E.2d at 664; see also State v. Morganherring, 350 N.C.
701, 728-29, 517 S.E.2d 622, 638 (1999) (The degree of [theexpert's] familiarity with the sources upon which he based his
opinion is certainly relevant as to the weight and credibility the
jury should give to [the expert's] testimony.).
Here, the prosecutor called into question whether Dr. Schaefer
adequately considered certain recorded statements in diagnosing
defendant. The impeachment of testimony given by Dr. Schaefer on
direct examination was within the broad scope of cross-examination
allowed by our courts. See Gregory, 340 N.C. at 409-10, 459 S.E.2d
Defendant also argues that the challenged jury instruction
referenced evidence that the court had previously excluded as
prejudicial. Specifically, defendant contends that the trial court
refused to allow the State to call persons who made statements to
testify because their testimony would have been inadmissible. This
argument is without merit, as the evidence of defendant's prior bad
acts was admissible under Rule 404(b).
While evidence of a person's character or a trait of his
character is generally not admissible, evidence of other wrongs or
acts may be admissible for the purpose of proving intent. See
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005); see also State v.
Scott, 343 N.C. 313, 331, 471 S.E.2d 605, 616 (1996) (concluding
that testimony about defendant's violent acts towards victim was
admissible under Rule 404(b) to prove intent, malice,
premeditation, and deliberation); State v. Haskins, 104 N.C. App.
675, 679, 411 S.E.2d 376, 380 (1991). Here, defendant offered Dr.
Schaefer's testimony to show that defendant was unable to form thespecific intent to kill Thu. To prove the disputed issue of
defendant's intent to kill, the State elicited testimony on
defendant's prior misconduct toward his wife. Dr. Schaeffer's
testimony regarding the statements of defendant's prior bad acts
was properly admitted under Rule 404(b). See Scott, 343 N.C. at
331, 471 S.E.2d at 616; State v. Syriani, 333 N.C. 350, 376-78, 428
S.E.2d 118, 132, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341
Because Dr. Schaefer's testimony regarding certain statements
was properly admitted as evidence of defendant's intent, we find no
error in giving a jury instruction limiting Dr. Schaefer's
testimony to that very purpose. In fact, in overruling this
assignment of error, we note that the challenged limiting
instruction likely proved favorable to defendant. See Hyatt, 355
N.C. at 662, 566 S.E.2d at 74-75 (stating that the trial court
guarded against prejudice by giving limiting instruction regarding
permissible uses of Rule 404(b)).
 Next, defendant contends that the trial court erred in
allowing the prosecutor to make statements about certain evidence
during his closing statements. The evidence in question concerns
Dr. Schaeffer's testimony on prior bad acts performed by defendant
and statements by witnesses to these alleged acts.
In his closing argument, the prosecutor made the following
remarks, to which defendant assigns error:
What kind of a man slaps his wife? Keep
going. What kind of a man tells his wifethat he's going to just kill her and go to
prison? He told that to Hang Doan, his
sister. Hang Doan could have testified . . .
. What kind of man hits his wife on the back
of the neck and leaves bruises? Deborah
Bettini could have told you about that.
Defense counsel did not object when these remarks were made by the
prosecutor. In fact, before the prosecutor's closing remarks,
defense counsel told the jury:
Dr. Schaefer testified that my client, Long
Nguyen, slapped his wife on one occasion. . .
. Dr. Schaefer said he read [that defendant
had slapped his wife] in the report. Dr.
Schaefer also mentioned the fact that one of
Mr. Nguyen's . . . wife's coworkers saw
bruises on Mr. Nguyen's wife. Dr. Schaefer
testified to that. He wasn't trying to hide
that from you.
Where, as here, a defendant fails to timely object to the
prosecution's closing argument, this Court must determine whether
the argument was so grossly improper that the trial court erred in
failing to intervene ex mero motu. State v. Walters
, 357 N.C. 68,
101, 558 S.E.2d 344, 364 (2003); State v. Jones
, 355 N.C. 117,
133, 558 S.E.2d 97, 107 (2002)
. As a general rule, counsel are
given wide latitude in arguments to the jury and are permitted to
argue the evidence that has been presented and all reasonable
inferences that can be drawn from that evidence. Jones
, 355 N.C.
at 128, 558 S.E.2d at 105. To constitute reversible error:
the prosecutor's remarks must be both improper
and prejudicial. Improper remarks are those
calculated to lead the jury astray. Such
comments include references to matters outside
the record . . . . Improper remarks may be
prejudicial either because of their individual
stigma or because of the general tenor of the
argument as a whole.
at 133, 558 S.E.2d at 107-08. It is commonly recognized that
it is not
improper for the prosecutor to comment on a defendant's
failure to produce witnesses. See, e.g., State v. Ward,
231, 262, 555 S.E.2d 251, 271 (2001); State v. Skeels
, 346 N.C.
147, 153, 484 S.E.2d 390, 393 (1997)
A review of the record reveals that the prosecutor's remarks
were not improper. Defendant first argues that the prosecutor's
closing argument referenced facts outside the evidence. In
closing, the prosecution referenced statements made by certain
persons regarding defendant's prior acts. But these statements
were properly admitted as impeachment of Dr. Schaefer's conclusions
regarding defendant's mental state during the killing. In fact,
defense counsel referred to these statements during her own closing
argument. Therefore, these statements were not outside the record;
rather, they represented evidence presented at trial. See Bacon
337 N.C. at 93, 446 S.E.2d at 555-56 (concluding no error in
overruling defense counsel's objection where prosecutor's argument
was based on testimony by the defendant's own witness . . . during
Defendant next urges this Court to find the prosecutor's
statements grossly improper because the trial judge denied the
State's request to allow the persons who gave statements to
testify. While relevant evidence may be excluded under Rule 403
due to the danger of unfair prejudice, such evidence may also be
excluded because of considerations such as undue delay, waste of
time, or needless presentation of cumulative evidence. N.C. Gen.Stat. § 8C-1, Rule 403 (2005). Although the trial court did not
state its reason(s) for refusing to allow the persons who made
statements to testify, the court could have concluded that such
testimony would have merely wasted time. Defendant's contention
that this evidence was necessarily prejudicial is unpersuasive.
It was not improper for the prosecutor to call to the
attention of the jury the fact that defendant chose not to have the
persons who made statements about defendant testify at trial.
(See footnote 4)
, 354 N.C. at 261-62, 555 S.E.2d at 271. We hold that the
prosecutor's statements were not grossly improper and the trial
court's failure to intervene ex mero motu was not error.
 Defendant lastly contends that, as a citizen of a foreign
country, he was entitled pursuant to Article 36 of the Vienna
Convention on Consular Relations (the Vienna Convention) to have
his consulate notified upon his arrest. This contention is without
Article 36 of the Vienna Convention states that, upon the
arrest of a foreign national:
[United States] authorities . . . shall,
without delay, inform the consular post of the
[foreign State] if . . . a national of that
State is arrested or committed to prison or to
custody pending trial or is detained in any
other manner. Any communication addressed to
the consular post by the person arrested . . .
shall also be forwarded by the saidauthorities without delay. The said
authorities shall inform the person concerned
without delay of his rights under this
done at Vienna
April 24, 1963, 21 U.S.T. 77, 100-01, 1969 U.S.T.
LEXIS 284, 28-29
. However, the applicability of the Vienna
Convention to state court proceedings is often limited because
while states may have an obligation . . . to comply with the
provisions of the Vienna Convention, the Supremacy Clause [of the
United States Constitution] does not convert violations of treaty
provisions . . . into violations of constitutional
, 116 F.3d 97, 100 (4th Cir. 1997) (emphasis in
Here, we need not reach defendant's Vienna Convention claim on
its merits because defendant failed to raise this claim in his
written motion to suppress, during the suppression hearing, or at
any time during the trial proceedings. As a result, defendant has
waived his right to appeal this issue to our Court. See State v.
, 162 N.C. App. 419, 430, 590 S.E.2d 898, 906 (Defendant's
final argument is based on the fact that defendant was not advised
of his rights under the Vienna Convention upon his arrest. The
record contains no evidence that defendant presented this issue to
the trial court and the question is therefore not properly before
this Court.), disc. review denied
, 358 N.C. 378, 598 S.E.2d 138
Defendant alternatively contends that defense counsel's
failure to move to have his confession suppressed on Vienna
Convention grounds constitutes ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel,
a defendant must first show that his counsel's
performance was deficient and then that
counsel's deficient performance prejudiced his
defense. . . . Generally, to establish
prejudice, a defendant must show that there is
a reasonable probability that, but for
counsel's unprofessional errors, the result of
the proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
State v. Allen
, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006)
(internal quotations and citations omitted); see also Strickland v.
, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693 (1984).
Whether or not defense counsel's failure to raise the Vienna
Convention issue constituted a deficient performance, defendant's
ineffective assistance of counsel claim must fail because defendant
has not shown prejudice. First, defendant has failed to establish
prejudice from the alleged violation because he is unable to
explain how contacting the Vietnamese consulate would have changed
the outcome of his case. See Murphy
, 116 F.3d at 100-01.
Defendant was advised of his right to an attorney and voluntarily
waived that right. Even assuming that defendant would have
contacted his consulate for assistance if notified of this right,
it is unclear what assistance, if any, the Vietnamese consulate
would have provided to defendant.
Second, even without defendant's confession to police, the
physical evidence and eyewitness evidence presented during trial
overwhelmingly supports the jury's verdict. In summary, the
defendant has not met the burden of showing a reasonableprobability that, but for defense counsel's failure to raise the
Vienna Convention issue at trial, the result of his proceedings
would have been different. See Allen
, 360 N.C. at 316, 626 S.E.2d
at 286. This assignment of error is overruled.
Judges STEELMAN and JACKSON concur.
Officer Hein Nguyen is of no relation to defendant, Long
Defense counsel also objected at trial when the State
first moved to introduce defendant's confession into evidence;
this objection was overruled.
Defendant's expert also failed to obtain and review
defendant's medical records.
We note that it is unclear whether or not the
prosecution's comments were in fact meant for this purpose. The
prosecutor's closing comments may have simply been a final
attempt to impeach Dr. Schaefer's testimony.
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