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Du v. Commonwealth

Supreme Court of Virginia

September 22, 2016

MINH DUY DU
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

         PRESENT: All the Justices

          OPINION

          D. ARTHUR KELSEY JUSTICE.

         Minh Duy Du pleaded guilty to statutory rape of his 13-year-old half-sister, aggravated malicious wounding of his father, and malicious wounding of his stepmother. Du filed a petition for appeal with the Court of Appeals, contending that the trial court abused its discretion by ordering lifetime probation following his incarceration and by ordering no contact with the victims as a condition of his suspended sentences. The Court of Appeals denied Du's petition for appeal in a per curiam order, holding the trial court did not abuse its discretion. We agree and affirm.

         I.

         Du was born in Vietnam. He never knew his father, who immigrated to the United States when Du was a small child. When Du tuned 18, Du's father asked Du's mother to inform Du that his father was in the United States and that he wanted Du to live with him, his wife, and their young daughter. Du accepted the offer and traveled to the United States in 2009, having had no previous relationship with his father, his father's wife, or their daughter. He did not know any of them prior to his arrival in the United States. J.A. at 165.

         At some point after his arrival, Du developed "a big grudge" against his father and stepmother, "got really mad, " and then "left" their home with no apparent intention of returning. Id. at 127. Thereafter, in 2013, four years after Du's arrival to the United States, Du returned to his father's home and entered through a window of his half-sister's bedroom. She was 13 years old at that time. Du, then 22 years old, engaged in vaginal and oral sex with her.[1] When her mother discovered Du naked in her daughter's bedroom, her attempt to intervene led to a fight between Du, his stepmother, and his father. Du ended the episode by taking a metal baseball bat and striking his father and stepmother multiple times in their heads, knocking both unconscious. A portion of the attack was recorded by a surveillance camera the family had installed in their home. As they lay on the floor bleeding, Du told his half-sister, "They're dead." Id. at 69. When the stepmother unexpectedly regained consciousness, Du again struck her in the head with the baseball bat causing her to fall again to the floor unconscious.

         Both Du's father and stepmother sustained serious injuries. His father was flown to a Roanoke hospital where a neurosurgeon stated that the father was in the process of "dying" due to his head injury. Id. at 70. Surgeons performed a craniotomy to remove a portion of the father's skull. His condition continued to worsen, and, as of the time of trial, Du's father was receiving full-time care at a nursing home and was "dependent on others for daily living activities." Id. His head injuries have severely damaged his cognitive capacities, leaving him at times unable to recognize his wife and daughter when they visit him.

         Du's stepmother was also severely injured. The blows to her head from the baseball bat required 11 stitches to close the wound and extensive follow-up care. Since the attack, she has suffered from chronic panic attacks, emotional instability, insomnia, and a lingering sense of paranoia. She was unable to work as a tailor for three months during her recovery period and has incurred, along with her husband, non-reimbursable medical expenses.

         Prior to trial, Du wrote several letters to his father and stepmother attempting to obstruct the ongoing investigation of his charges and to keep them from testifying against him at trial. Stating that he had received advice from "other inmates, " Du wrote:

I am writing this quick letter in hopes and asking that you will not answer the detectives' questions nor make a statement and please do not appear in court on 1/22/14. That is the first day, after the second day, I hope that mother will not appear. Dear mother, after 2miss[ed] court appearances, the case will be dropped and the charges will be dismissed therefore the courts will let me go. That is the first thing that I eluded [sic] to in my previous letters and the 1/22/14 date is closely approaching.
I am writing this letter to you concerning the upcoming court appearance 1/22/14. . . . I am requesting that mother and father do not answer the detectives' questions prior to 1/22/14 and I am asking that mother and father do not appear in court on 1/22/14 until I can retain another attorney.
I have asked a few other inmates and they said the best way for me to get an opportunity to return home to father and mother is 1. to ask mother not to appear in court on the first court date 1/22/14. The courts will appoint another date and if father and mother do not appear again then the courts will dismiss the case. 2. [I]f father and mother do appear in court and the courts ask you to recall the events, then all father and mother have to say is "I want PLEA TO THE 5th (fifth)" it is the right to refuse to make a statement. Just answer the questions pertaining to your address, name, birth date, social security number, etc. . . . [I]f the courts or anyone ask you mother and father about the events or your health, the hospital or anyone ask about the events or any aspects pertaining to the situation, all father and mother have to say is "I want PLEA TO THE 5th" and I will do the same. Except stating my name, age and address, I will also only respond, "I want PLEA TO THE 5th". Those [are] the words of advice from the inmates that have been incarcerated for a long time.
[P]lease give me word that you will not make accusations against me in court. . . .

Id. at 87-90 (emphases added).

         Du's father and stepmother did not respond to these letters. Nor did they take his several phone calls. His last letter expressed his ongoing dissatisfaction with her failure to comply with his demands: "At the court appearance you could have asked the courts to pardon me and request bond; however, you still have not granted me that request." Id. at 90.

         Having failed in his attempt to pressure his father and stepmother into obstructing the prosecution, Du decided to plead guilty to statutory rape of his 13-year-old half-sister, aggravated malicious wounding of his father, and malicious wounding of his stepmother. At his sentencing hearing, the Commonwealth offered into evidence the victim impact statements, including one from Du's stepmother. The trial court received the victim impact statements and made them part of the evidentiary record. See id. at 156-58.

         Du's counsel represented that the stepmother was present in the courtroom, but she was never called to testify at the sentencing hearing. Her victim impact statement, however, expressed her views clearly.[2] In her statement, she said that she remembered her daughter, immediately after the beating, pleading with Du to "leave immediately." Victim Impact Statement at 1.[3] Appearing "very calm, " Du responded, "Don't panic, they are dead." Id. As the stepmother struggled to remain semi-conscious, she worried that she and her husband would both die and that their daughter "would fall into [Du's] hand." Id. "Ever since this incident, " the stepmother explained, "I have lived in constant fear. Every day is a constant reminder of that horrible night." Id. She has had nightmares "every night" since the beating, and on "[m]any nights" she "can see [Du] beating [her] and taking a knife to slit [her] throat." Id. She continued, "I constantly imagine that [Du] is hiding in the corners of the house and could jump out to beat and kill me." Id. This constant, chronic state of fear has left her "deteriorated" and "very discouraged." Id. at 2.

         At no point in the stepmother's statement did she say anything that could be interpreted as a desire to have an ongoing relationship with Du. Exactly the opposite is true. The stepmother's statement reveals that Du's crimes against her, her husband, and her daughter have left her in a constant state of fearful panic at the very thought of Du.

         At the sentencing hearing, the prosecutor confronted Du with "gruesome" pictures that he had drawn of a "mother and daughter who have been injured." J.A. at 163. The "mother's arm is hacked off, there's blood, there seems to be a lot of violence" portrayed in the picture, the prosecutor asserted. Id. In response, Du acknowledged his picture but explained he meant it only as a "story" of the "sacrifice of a mother for her child." Id.

         Upon hearing the evidence and Du's allocution, the trial court stated that the "brutal beating" Du had given his father and stepmother was "beyond understanding." Id. at 169. The court found Du's attempt "to express shame or remorse" through his "huddled" demeanor wholly unbelievable. Id. The court imposed a sentence of life imprisonment on the aggravated malicious wounding charge, a 20-year sentence on the malicious wounding charge, and a 10-year sentence on the statutory rape charge. The active period of incarceration, after the court suspended portions of these sentences, required Du to serve 50 years in the penitentiary. The court placed Du, upon release from imprisonment, on probation for the remainder of his life.

         Given the unique circumstances of the case, the trial court also conditioned Du's suspended sentences on the requirement that he have "no contact with any of the three victims." Id. at 170. After the court announced that condition, the prosecutor - unaccompanied by any supportive remarks by Du's defense counsel - stated that Du's stepmother "requested that it not be ordered for her." Id. No other explanation was given. Nothing in the record, save this one sentence, discussed the point further.

         Earlier in the sentencing hearing, Du's counsel had represented to the trial court that the stepmother was present in the courtroom. Id. at 165. At no point during the hearing, however, did she personally explain her view of the no-contact condition. Nor did the prosecutor offer any clarification of what the stepmother meant, why she felt that way, or how she came to that decision. The court, however, responded with its own clarification: "I don't want him to have any contact with her. . . . If she wishes to write him she can." Id. at 170. Du's counsel did not object to the court's ruling or make any response to it.

         After the entry of the final sentencing order, Du filed a motion to reconsider seeking to undo the court's imposition of lifetime probation as well as the condition forbidding him from contacting the victims. Du's motion did not state that counsel had consulted his stepmother about the motion or that she joined in Du's requested relief. Nor did Du's stepmother seek leave to file any pleading on her own behalf. The court denied the motion to ...


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