Le v. State
| Docket Number: | 2002-DP-01855-SCT Linked Case(s): 2002-DP-01855-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-03-2005 Holding: AFFIRMED - 03/03/2005 MOTION FOR REHEARING FILED: 03/16/2005; DENIED & OPINION MODIFIED AT ¶ 143 - 04/28/2005 |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Individual sequestered voir dire - Peremptory challenges - Fair cross-section of community - Batson challenge - Suppression of statement - Opinion testimony - M.R.E. 103(a) - Gang and drug involvement - Co-defendant’s statement - Disproportionate sentence - Character instructions - Ineffective assistance of counsel - Photographs - Weight of evidence Non Participating Judge(s): Smith, C.J., Diaz and Graves, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
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| Trial Court: |
Date of Trial Judgment: 08-23-2002 Appealed from: Jackson County Circuit Court Judge: James W. Backstrom Disposition: Le was convicted of three counts of capital murder and sentenced to death. District Attorney: Keith Miller Case Number: 2002-10,067(1) |
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| Note: | State's Motion to Strike Portions of Appellant's Reply Brief is denied. State's Motion to Strike Exhibit "A" to Appellant's Brief and Objection to Appellant's Motion to Supplement is denied. Motion to Supplement Appellant's Exhibits is granted. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Thong Le |
DAPHNE L. PATTISON |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JUDY T. MARTIN MELANIE; KATHRYN DOTSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Death penalty direct appeal - Individual sequestered voir dire - Peremptory challenges - Fair cross-section of community - Batson challenge - Suppression of statement - Opinion testimony - M.R.E. 103(a) - Gang and drug involvement - Co-defendant’s statement - Disproportionate sentence - Character instructions - Ineffective assistance of counsel - Photographs - Weight of evidence |
| Summary of the Facts: | Thong Le was convicted of three counts of capital murder and sentenced to death. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Individual sequestered voir dire Le argues that the denial of his motion for individual sequestered voir dire on the issue of the death penalty was error. The decision of whether to allow individual sequestered jury voir dire should be left to the sound discretion of the trial court. Here, the court allowed juror questionnaires and open voir dire. The judge further offered the option of small group voir dire, and he allowed many prospective jurors to approach the bench to answer questions posed during voir dire. Finally, he offered Le’s counsel the opportunity to have any additional questions put to the prospective jurors. Therefore, there was no error. Issue 2: Peremptory challenges Le argues that had the trial court allowed individual voir dire, he might have been able to convince the court to strike some of those jurors for cause, leaving him more peremptory strikes and therefore, the court erred in denying his request for additional peremptory challenges. In selecting the jury, Le did not exercise all of his peremptory challenges. Having left peremptory challenges on the table, Le can hardly demonstrate prejudice for lack of additional peremptory challenges. Issue 3: Fair cross-section of community Le argues that the jury panel did not represent a fair cross-section of the community because it did not include Asians. To establish a prima facie violation of the fair cross-section requirement for an impartial jury, the group alleged to be excluded is a “distinctive” group in the community; the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and this under representation is due to systematic exclusion of the group in the jury selection process. Given the circuit clerk’s testimony that the potential jurors in Le’s case were selected by computer, there is no proof that Asians are excluded from the jury pool, other than the fact that some Asians do not wish to vote and, therefore, willfully exclude themselves from the voter roll. Issue 4: Batson challenge Le argues that, for racially motivated reasons, the State struck all African Americans from the venire. Seven of the State’s peremptory challenges were used to strike African-Americans. Reasons for the strikes included the juror’s lack of understanding, employment and knowing a defense witness, previous service on a jury that did not convict, failure to complete the jury questionnaire, and strong opposition to the death penalty. These are all race-neutral reasons. Issue 5: Suppression of statement Le argues that his confession was not voluntary, because based on his age, his inexperience with the justice system, his limited skill with the English language and the manner in which the rights were read to him, under the totality of the circumstances, he did not knowingly and intentionally waive his constitutional rights, and because the police induced admissions by taking advantage of his religious beliefs when telling Le that the souls of the victims would never be free unless he confessed. After observing Le and hearing his testimony, the judge concluded that Le knowingly, intelligently and voluntarily waived his right to remain silent. The judge did not apply an incorrect legal standard, did not commit manifest error, and his decision was not contrary to the overwhelming weight of the evidence. With regard to the mention of his religion, Le had already confessed to the robbery and to the fact that the killings occurred during the course of the robbery, before any mention of his religion. In addition, there are no admissions in response to the religious line of questioning. Issue 6: Opinion testimony Le argues that a crime scene technician was not qualified to give expert testimony and, even if he was, his testimony should have been excluded because of a discovery violation. To give expert testimony, the witness must be qualified and tendered as an expert. If the expert witness has not been first tendered as an expert, the expert opinion should not be allowed. Here, the witness was not tendered as an expert witness. Nevertheless, he was allowed to provide an opinion that the injuries to the victims were the result of blunt force trauma. Giving Le the benefit of every doubt, the most that can be said of this expert testimony is that he provided cumulative evidence that the victims suffered blunt force trauma, a conclusion which hardly required expert evaluation. The photographs introduced into evidence require little imagination regarding whether the victims suffered blunt force injuries. Even if expert testimony was necessary to establish the fact, the State called another witness who testified that one of the victims had a massive head injury to the back of her head. Furthermore, since Le admitted that all three victims were beaten, including blows to the head with a fire extinguisher, he can hardly claim prejudice from surprise testimony, expert or not, which established nothing more than an opinion of blunt force injuries to the victims. With regard to the alleged discovery violation, admission of a report, Le did not demonstrate that previously undisclosed evidence introduced at trial affected his substantial rights as required by M.R.E. 103(a). Issue 7: Gang and drug involvement Le argues that he was entitled to a mistrial because the prosecutor did not produce information regarding Le’s possible gang and drug involvement, although told by the court to do so. The record shows that Le never requested a mistrial on this point. Therefore, this issue is procedurally barred. Le also argues that the court erred by not conducting a balancing test on proposed testimony about his gang and drug involvement. Because the court had ruled the testimony inadmissible in the guilt phase, the threat of such testimony did not prevent Le from testifying during the guilt phase. In the sentencing phase, no such testimony was offered. The court cannot be held in error for failing to rule on the admissibility of any prior bad acts or previous convictions until the State seeks to introduce such evidence. Issue 8: Co-defendant’s statement Before Le’s co-defendant committed suicide, he made certain statements to law enforcement. Le argues that by allowing these statements in on rebuttal, the court violated his constitutional right to confront the witness, and further that the statement was hearsay which did not fall within any hearsay exception. The introduction of testimonial out-of-court statements is prohibited under the Confrontation Clause unless the defendant had prior opportunity for cross-examination. In this case, the statement in this case was offered by the State only in rebuttal and Le actually opened the door for this testimony. In addition, the court gave a limiting instruction that the statement was not to be considered in determining Le’s guilt or innocence, but was only to be considered for limited purposes of determining the credibility of the statements. Issue 9: Disproportionate sentence Le argues that his death sentence was disproportionate, and that the evidence was insufficient for a jury to find that he intended a killing take place. He also argues that Mississippi’s death penalty statute is unconstitutional as applied to felony capital murder. The Supreme Court has repeatedly held that Mississippi’s capital sentencing scheme, as a whole, is constitutional. Le’s argument that he was guilty of nothing more than contemplation of lethal force is without merit. The jury found that beyond a reasonable doubt that Le attempted to kill; intended the killing; and contemplated that lethal force would be employed. Le also argues that a limiting instruction should have been given, advising the jury that contemplation – without more – was insufficient to find that he intended a killing to take place. Le did not request a limiting instruction at trial and, therefore, is procedurally barred from raising the issue now. With regard to his claim of a disproportionate sentence, the jury was properly instructed as to the law and returned a verdict of guilty on all three counts of capital murder. Therefore, the sentence of death was not disproportionate. Le has not presented any evidence that his sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and there is no evidence in the record that Le’s sentence was imposed under such influences. Considering the crime and the defendant, the sentence of death is not disproportionate to the penalty imposed in similar cases. Issue 10: Character instructions Le argues that the court erred in refusing his instructions which would allow the jury to consider his alleged peaceful character, because it prevented the jury from knowing that the defendant’s peacefulness was something that could be considered when evaluating his guilt. Evidence of good character of the accused should go to the jury as any other fact, and its influence in the determination of a case should be left to the jury, without any intimation of the court of its value. The court should not tell the jury that satisfactory evidence of the good character of the accused is or is not sufficient to raise a reasonable doubt of his guilt. Issue 11: Ineffective assistance of counsel Le argues that he was denied effective assistance of counsel, because his attorney called no witnesses during the penalty phase of the trial. Le points out that defense counsel served the prosecutor with a subpoena to appear as a witness in the sentencing phase of the trial regarding a conversation that took place in which the prosecutor informed the defense counsel that the father and husband of the victims returned to Vietnam and did not want to come back to actively pursue the death penalty. The prosecutor advised the court that this information could be brought in through an FBI agent. The defense counsel failed to call the agent to testify in sentencing. Le’s counsel chose not to introduce the statements, presumably for reasons of trial strategy. In any case, regardless of his counsel’s reason, Le suffered no prejudice for failure of his counsel to make the jury aware that the father and husband of the victims went back to Vietnam, and did not want to testify. Le’s failure to testify on his own behalf was his choice. Le claims that his counsel failed to properly investigate and pursue witnesses or evidence for the penalty phase. Le has not shown what mitigating evidence his attorney failed to present at his sentencing. Had defense counsel called Le or Le’s mother to testify, he would have opened the door for harmful testimony about Le’s alleged gang and drug activity. As for the failure to call the FBI agent, Le has not provided any specific information with regard to the FBI agent or what his or her testimony would have been. Le argues that he was denied effective assistance of counsel as a result of defense counsel’s failure to use peremptory challenges. Le’s counsel conducted an extensive voir dire. He challenged certain jurors for cause, and successfully defended some of the State’s challenges for cause. Additionally, he raised and argued a Batson challenge, and exercised eleven peremptory challenges on the regular jury panel and all peremptory challenges available for the alternate jurors. Le fails to demonstrate any prejudice as a result of his counsel’s failure to strike one of the enumerated jurors. Issue 12: Photographs Le argues that photographs of the victims were not relevant because neither the identity of the victims nor the manner of death was contested. Photographs of a victim have evidentiary value when they aid in describing the circumstances of the killing, describe the location of the body and cause of death, or supplement or clarify witness testimony. Here, the photographs were used to demonstrate what the technician found at the crime scene and to explain his diagram of the crime scene and to explain and describe the victims’ injuries. As such, Le was not unfairly prejudiced by the admission of the photographs. Issue 13: Weight of evidence Le argues that the verdict is against the overwhelming weight of the evidence, because there is no physical evidence which refutes his contention that the co-defendant committed the murders wholly on his own and because he did not have the requisite intent to commit murder. Le participated in the murders while committing a robbery. Intent to commit murder is not an element of capital murder. |
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