            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                             MARCH 1999 SESSION
                                                               FILED
STATE OF TENNESSEE,            *      C.C.A. # 02C01-9803-CR-00095

      Appellee,                *      SHELBY COUNTY
                                                                 August 16, 1999
VS.                            *      Hon. L. Terry Lafferty, Judge

KONG CHUNG BOUNNAM,            *      (Murder in the Perpetration of a Felony,
                                      Three Counts, and Robbery with a
                                                               Cecil Crowson, Jr.
      Appellant.               *      Deadly Weapon, Four Counts)
                                                             Appellate Court Clerk




For Appellant:                        For Appellee:

Charles P. Roney, Attorney            John Knox Walkup
P.O. Box 542                          Attorney General and Reporter
Union City, TN 38281-0542
                                      Elizabeth T. Ryan
                                      Assistant Attorney General
                                      425 Fifth Avenue North, Second Floor
                                      Cordell Hull Building
                                      Nashville, TN 37243-0493

                                      Robert Carter and Daniel Byer
                                      Assistant District Attorneys General
                                      District Attorney General's Office
                                      201 Poplar Avenue, Third Floor
                                      Memphis, TN 38103



OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

               The defendant, Kong Chung Bounnam, was convicted on three counts

of murder in the perpetration of a felony and four counts of robbery with a deadly

weapon. The trial court sentenced the defendant to terms of life on each of the

murder convictions and to terms of twenty-five years for each robbery conviction.

Two of the three life sentences were ordered to be served consecutively. Each of

the four robbery terms were ordered to be served concurrently but consecutively to

the sentences for murder.



               In this appeal of right, the defendant contends that the trial court erred

by excluding as evidence a sworn statement by Hung Van Chung, who was tried

separately for the same offenses. We find no error and affirm the judgment of the

trial court.



               On October 20, 1987, the victims, Arthur Lee, Amy Lee, and Kai Yin

Chuey, were shot and killed in a robbery at the Jade East Restaurant in Memphis.

John Lee, the owner of the restaurant, had five children, all of whom worked in the

restaurant at various times. Ging Sam Lee, the mother of John Lee, and Kai Yin

Chuey, the mother of Mrs. John Lee, also worked in the restaurant, as did Amy Lee,

the wife of Mr. and Mrs. John Lee's son, Chester Lee. Jerry Lee, the oldest son,

operated a jewelry business in the restaurant. Mr. and Mrs. John Lee's other

children were Arthur Lee, who was the manager of the restaurant, and Jeff and

Jessie Lee.



               On the afternoon of October 20, 1987, while Arthur Lee, Amy Lee, Kai

Yin Chuey, and Ging Sam Lee were preparing to open the restaurant, Hung Van

Chung and the defendant entered an open back door and Chung said, "We're


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looking for a job." The defendant then grabbed Arthur Lee by the neck and pointed

a .44 Magnum to his head. When Arthur attempted to grab the weapon, Hung Van

Chung shot him. Duc Phuoc Doan and Heck Van Tran, who had accompanied

Chung and the defendant, then involved themselves in the fray. Van Tran shot Kai

Yin Chuey twice, the second time in the head. When Van Tran obtained a key to

open the storage room, Amy Lee, who was in the front of the restaurant, began to

scream. Hung Van Chung ran in that direction. There were several more shots and

Amy was killed. Duc Phuoc Doan took two rings from the body of Kai Yin Chuey

and was handed a jewelry case by Van Tran. Three of the men left the restaurant

and a few seconds later, the defendant limped towards his car, bleeding from a

wound to the leg. The defendant, who had driven the three other men to the

restaurant, told the others that he had been shot but was able to drive a couple of

blocks before asking Van Tran to take over the operation of the vehicle.



             Duc Phuoc Doan, Heck Van Tran, and Hung Van Chung, all

Vietnamese, had planned the robbery on the day before. The defendant, who is

Laotian and who speaks a different language from the others, learned of their plans

on the date of the robbery and murders. Hien Huynh was aware of their plans to rob

the restaurant and the defendant was transported to Huynh's residence immediately

after the robbery. Van Tran was unable to remove the bullet from the defendant's

leg. On October 23, three days after the murders, the police questioned Duc Phuoc

Doan. He admitted to police on October 27 that he had participated in the crimes.

The defendant, Van Tran, and Van Chung left the state but were arrested sometime

later. Van Chung pled guilty to the murders and robberies and received two

consecutive life sentences. Van Tran was convicted of the crimes and sentenced to

death. State v. Heck Van Tran, 864 S.W.2d 465 (Tenn. 1993).




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              Huynh had apparently provided the men with information about the

location of the jewelry inside the Jade East Restaurant. According to Van Chung,

the defendant was not originally involved in the plan but was included later at the

request of Van Tran. All four of the men involved in the robbery had weapons. Van

Chung and Phuoc Doan had .22 caliber automatic weapons, Van Tran a .22 caliber

revolver, and the defendant a .44 Magnum. The defendant was instructed not to fire

his weapon because it was too loud and might be heard.



              The defendant left the state with Van Chung and Van Tran within an

hour after the commission of the crimes. The three men drove to Washington, D.C.,

where they left the jewelry, and then to Houston, Texas. An unidentified person met

them in Houston and gave them $5,000.00. The defendant stayed in Texas for

about two months until his leg healed and then flew to either North Carolina or

South Carolina to stay with an uncle.



              Huynh denied being involved in the planning of the robbery but

admitted receiving a telephone call wherein he was asked to buy some rubbing

alcohol and cotton balls, apparently to be utilized for the treatment of the

defendant's wound. Huynh stated that he met Van Tran and Van Chung at a

residence sometime after the robbery but contended that the defendant was not

present.



              At trial, Van Tran admitted his participation in the robbery, claimed that

his gun went off when Kai Yin Chuey fell into his arms, and acknowledged having

shot Arthur Lee. He explained that he shot Kai Yin Chuey a second time because

he thought she had something in her hand. Van Tran maintained that the defendant

stayed only one day in Texas before he was paid to go away.


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              Gary Bradley Wright saw an Asian driver leave the Jade East parking

lot in a blue Camaro near the time of the robbery. W hen Wright stopped at the post

office, he saw an Asian woman screaming for an ambulance. That evening, Wright

contacted police and later made a positive identification of the Camaro. Wright was

able to identify the defendant from several photographs as the driver of the vehicle.

After receiving information from Wright and from Crime Stoppers, Sergeant Dennis

Hodges obtained the names of the defendant, Van Tran, and Van Chung. Hodges

questioned Duc Phuoc Doan who admitted his participation in the crimes and who

identified the three other participants. Ultimately, the defendant was extradited from

Ontario, Canada.



              An autopsy revealed that Kai Yin Chuey died from two gunshot

wounds, one to the right jaw and the other to the top of her head. Amy Lee died

from a contact gunshot wound which traversed through her brain. Both were killed

by .22 caliber bullets. Arthur Lee was shot eight times. All of the wounds were

caused by .22 caliber bullets. While any one of the shots would have caused Lee's

death, the bullet which penetrated the right temple caused instantaneous death.



              During the course of the trial, the defense attempted to offer into

evidence a sworn statement of Hung Van Chung. The content of the statement

apparently conflicted with his trial testimony. Generally, extrinsic evidence of

impeachment is inadmissible except under the terms of Tenn. R. Evid. 613(b):

              Extrinsic evidence of a prior inconsistent statement by a
              witness is not admissible unless the witness is afforded
              an opportunity to explain or deny the same and the
              opposite party is afforded an opportunity to interrogate
              the witness thereon, or the interests of justice require
              otherwise. This provision does not apply to admissions
              of a party opponent as defined in Tenn. R. Evid.
              803(1.2).

See State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). The purpose of Rule

                                           5
613(b) is to allow introduction of otherwise inadmissible extrinsic evidence for

impeachment. State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998). A prior

inconsistent statement introduced for purposes of impeachment may be considered

only on the issue of credibility and not as substantive evidence. Reece, 637 S.W.2d

at 861. Extrinsic evidence of a prior inconsistent statement remains inadmissible

when a witness unequivocally acknowledges having made the prior statement.

Martin, 964 S.W.2d at 567. When presented with a prior inconsistent statement a

"witness has several possible responses: the witness can admit, deny, or not

remember making all or part of the statements." Neil P. Cohen, Sarah Y.

Sheppeard, and Donald F. Paine, Tennessee Law of Evidence § 613.4 (3rd ed.

1995 & Supp. 1998). If the witness admits making the prior inconsistent statement,

any extrinsic proof of the statement would be cumulative. Id.



              During the examination of Van Chung by the state, he admitted that he

had signed a paper prepared by the defendant in which Van Chung had stated that

he had forced the defendant to participate in the robbery; the statement included an

admission by Van Chung that he had shot the defendant during the course of the

robbery. At trial, Van Chung testified as follows:

              I signed the paper because I checked with him. I thought
              I signed a piece of paper ... his witness, you see. Then
              later he give me a copy. He said I shoot him. I made
              him do all them things. I never did anything to him.



              After signing the statement, Van Chung testified that he did not force

the defendant to participate in the robbery and that the defendant was a free and

willing participant. On cross-examination, Van Chung admitted that he had signed

the document under oath in the presence of a notary public. Van Chung admitted

signing a statement which, in part, provided as follows:

              I asked God to forgive me, and I asked [the defendant]

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               Bounnam to forgive me for making him get involved in
               something he ... wanted no part of.

Van Chung also admitted that he had made a similar statement to defense counsel

during their investigation. Van Chung then explained that the defendant had "asked

me to lie to you." Van Chung contended that he had been "tricked" by the

defendant into signing the statement. He explained that by signing the document,

he thought he was simply agreeing to be a witness for the defendant. Van Chung

explained he could not read English very well.



               In Martin, our supreme court ruled that "extrinsic evidence remains

inadmissible until the witness either denies or equivocates as to having made the

prior inconsistent statement. 964 S.W.2d at 567. Here, because Van Chung

acknowledged during his trial testimony having made the statement but denied the

truthfulness of its content, the trial court properly excluded the written statement. In

context, however, any error would have been harmless. The jury heard during

cross-examination the content of the statement and observed the defendant's

concession that he had made the statement under oath. The overwhelming

evidence of his participation in the robbery and the resultant death of the victims

was such that, in our view, the introduction of the affidavit would not have had any

effect on the results of the trial.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:


_____________________________
Joseph M. Tipton, Judge


_____________________________
Thomas T. Woodall, Judge


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