Le v. State


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Docket Number: 2005-DR-00523-SCT
Linked Case(s): 2005-DR-00523-SCT ; 2005-DR-00523-SCT ; 2005-DR-00523-SCT

Supreme Court: Opinion Link
Opinion Date: 08-16-2007
Opinion Author: DICKINSON, J.
Holding: Denied

Additional Case Information: Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Weight of evidence - Suppression of confession - Admission of statement - Peremptory challenges - Aggravating circumstances - Eighth amendment claim - Double prejudice
Judge(s) Concurring: Waller, P.J., Easley, Carlson, Graves, Randolph and Lamar, JJ.
Non Participating Judge(s): Smith, C.J., and Diaz, P.J.
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 08-23-2002
Appealed from: Jackson County Circuit Court
Judge: James W. Backstrom
Disposition: Thong Le and Ngan Tran were indicted for capital murder. Ngan Tran, who was believed to have committed the actual killings, took his own life while in custody. Le went to trial and was sentenced to death by lethal injection.
District Attorney: Keith Miller
Case Number: 2002-10,067(1)

  Party Name: Attorney Name:  
Appellant: THONG LE




MISSISSIPPI OFFICE OF CAPITAL POST CONVICTION COUNSEL



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL  

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Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Weight of evidence - Suppression of confession - Admission of statement - Peremptory challenges - Aggravating circumstances - Eighth amendment claim - Double prejudice

Summary of the Facts: Thong Le was convicted of capital murder and sentenced to death by lethal injection. On direct appeal, Le’s conviction and sentence were affirmed. Le now files a motion for post-conviction relief.

Summary of Opinion Analysis: Issue 1: Ineffective assistance of counsel Le argues that trial counsel rendered ineffective assistance in failing to pursue a change of venue, failing to strike a particular juror, and in failing to retain an expert in the field of false confessions. A review of the transcript of the voir dire process indicates that most of the venire was largely unaware of this particular case and those members who were unaware of it assured counsel and the trial court that they could be impartial. The decision not to seek a change of venue falls within the realm of trial strategy. With regard to the juror, the trial court and counsel examined this juror at the bench and discovered that she knew little else of the case other than that it had occurred. The juror assured the trial court that the incident would not influence her decision making if she were selected to serve on the jury. With regard to an expert, Le makes no convincing showing that he was incompetent to give the statement or that he was psychologically coerced to confess. His willing participation in the successive killings of three defenseless people makes him every bit as responsible as the ring leader. It therefore cannot be said that the testimony of an expert would have changed the outcome at trial. Issue 2: Weight of evidence Le next argues that, given his minimal role in the crime, the jury’s finding concerning his intent to kill was not supported by the evidence, and the death sentence was disproportionate. This issue was thoroughly considered on direct appeal and found to be without merit. Reconsideration on collateral appeal is procedurally barred. Issue 3: Suppression of confession Le argues that he was psychologically incompetent to give a reliable statement to law enforcement authorities and that this condition was not known at the time of trial. The admissibility of the statement was discussed thoroughly on direct appeal and is now procedurally barred. Issue 4: Admission of statement Le argues that the deceased co-defendant’s custodial statement to police was inadmissible hearsay because he was no longer available for cross-examination. Having been considered on direct appeal, the issue is now procedurally barred from collateral review. Issue 5: Peremptory challenges Having been considered on direct appeal, this issue is now procedurally barred from collateral review. Issue 6: Aggravating circumstances Le argues that his death sentence must be vacated because the aggravating circumstances which invoked the death penalty were not charged in the indictment. A defendant is not entitled to formal notice of the aggravating circumstances to be employed by the prosecution. An indictment for capital murder puts a defendant on sufficient notice that the statutory aggravating factors will be used against him. Issue 7: Eighth amendment claim Le argues that lethal injection violates the Eighth Amendment. This issue was capable of being raised on direct appeal and is procedurally barred from further consideration on collateral appeal. In addition, counsel for Le fails to submit any affidavit which legitimately questions the lethal injection protocol employed by the Mississippi Department of Corrections. Issue 8: Double prejudice Le argues that he suffered double prejudice through consideration of the armed robbery charge as well as reference to pecuniary gain. The same issue was considered in Brawner v. State and found to be without merit.


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