P. v. Nguyen
Defendant Bao Quoc Nguyen challenges his convictions for first degree murder, attempted premeditated murder, and conspiracy to commit murder. Defendant contends: (a) the evidence was insufficient to support his convictions; (b) the trial court erred by not excluding a statement obtained from him in violation of his Miranda rights;[1](c) the prosecutor committed prejudicial misconduct; (d) lengthy preindictment delay violated his right to due process; and (e) the introduction of statements from an alleged coconspirator violated his Sixth Amendment right to confrontation.
We agree the evidence introduced at trial was insufficient to support defendants conviction for first degree murder. Specifically, defendant was convicted under a provocative act murder theory, but the prosecution produced no evidence demonstrating defendant or his accomplices instigated the gunfight with their rivals. Sufficient evidence, however, supported the attempted murder and conspiracy convictions. Moreover, defendant has failed to demonstrate either prosecutorial misconduct or any prejudice resulting from preindictment delay. Finally, the challenged coconspirator statements did not violate defendants right to confrontation because they were not offered for their truth. Accordingly, Court reverse defendants murder conviction, but affirm his convictions for attempted murder and conspiracy to commit murder. Court remand for resentencing.
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