                       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.


     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.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                             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

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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

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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



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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.




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     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

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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.




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