Bui v. State

• Decision Date: 26 September 1997
• Docket Number: CR-95-0855
• Citation: 717 So.2d 6
• Parties: Quang Ngoc BUI v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 6

717 So.2d 6

Quang Ngoc BUI v. STATE.

CR-95-0855.

Court of Criminal Appeals of Alabama.

Sept. 26, 1997.

Rehearing Denied March 20, 1998.

Certiorari Denied June 19, 1998

Alabama Supreme Court 1971134.

Kathryn V. Stanley and Bryan A. Stevenson, Montgomery, for appellant.

Bill Pryor, atty. gen., and Michael Billingsley, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, Quang Ngoc Bui, appeals from the denial of his petition for post-conviction relief filed pursuant to Rule 32, Ala.R.Crim.P. On June 12, 1986, the appellant was convicted of the murder of his three children, an offense made capital by § 13A-5-40(a)(10), Ala.Code 1975. ¹ In accordance with §§ 13A-5-45 and -46, Ala.Code 1975, a sentencing hearing was held before the jury, after which the jury, by a vote of 10-2, returned an advisory verdict recommending that the appellant be sentenced to death. The trial court, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, sentenced the appellant to death by electrocution.

This court and the Alabama Supreme Court affirmed the appellant's conviction and death sentence. Bui v. State, 551 So.2d 1094 (Ala.Cr.App.1988), aff'd, 551 So.2d 1125 (Ala.1989). On April 22, 1991, the United States Supreme Court vacated the Alabama Supreme Court's affirmance and remanded the case for consideration in light of Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), which holds that a defendant, regardless of race, has standing to raise a Batson ² challenge to the state's exercise of peremptory strikes against black prospective jurors. See Bui v. Alabama, 499 U.S. 971, 111 S.Ct. 1613, 113 L.Ed.2d 712 (1991). Thereafter, pursuant to a directive from the Alabama Supreme Court, see Ex parte Bui, 627 So.2d 848 (Ala.1991), this court remanded the case to the trial court with instructions that that court conduct a hearing on the state's use of its peremptory strikes. Bui v. State, 627 So.2d 849 (Ala.Cr.App.1992). After an evidentiary hearing, the trial court found that the state's use of peremptory strikes against black prospective jurors was not based on race. On return to remand, this court disagreed and reversed the appellant's conviction and sentence, holding that the state had engaged in intentional discrimination in its use of peremptory strikes. Bui v. State, 627 So.2d 849 (Ala.Cr.App.1992). The Alabama Supreme Court, however, reversed this court's judgment and affirmed the appellant's conviction and sentence in Bui v. State, 627 So.2d 855 (Ala.1992). The United States Supreme Court denied certiorari review in Bui v. State, 508 U.S. 975, 113 S.Ct. 2970, 125 L.Ed.2d 669 (1993). All issues cognizable on direct appeal have been scrutinized, including those cognizable under the "plain error" doctrine.

The appellant filed his Rule 32 petition on November 9, 1994. The trial court held a lengthy evidentiary hearing on the allegations in the appellant's petition on October 27, 1995, and, in a thorough 24-page order, denied all relief on January 3, 1996. Judge Charles Price, the circuit judge who presided over the appellant's trial, also presided over the evidentiary hearings on the Rule 32 petition.

The essential facts of this case were recited by this court in Bui v. State, 551 So.2d at 1098-99, and are as follows:

"This case arises out of an incident which occurred around midnight on the night of February 5-6, 1986, at appellant's residence, located at 3081 Simmons Road in Montgomery. Around midnight, Montgomery uniformed police officers, in response to a disturbance call, went to appellant's residence. Appellant's estranged wife had become concerned about the safety of her children, who were with appellant, and had asked the police to check on them. Upon arriving at the residence, the officers knocked on the door and, after considerable delay, appellant's mother-in-law, who also lived at the residence, opened the door. The officers told her that they wanted to talk with appellant and see the children. The mother-in-law went to notify appellant and, after some delay, returned to the door without appellant. The officers insisted on seeing him and the children, and the mother-in-law tried again, without success, to get appellant to come to the door. Finally, at the insistence of the police, the mother-in-law admitted the officers to the residence, and the officers entered appellant's bedroom, where they discovered appellant and the bodies of his three children, Phi Ngoc Bui (age 8), Julie Quang Bui (age 7), and April Nicole Bui (age 4), lying on the bed.

"The first officer in the room observed a large kitchen-type knife beside appellant on the bed. As the officers approached appellant, he seized the knife and struck at the officers three times before the officers were able to take the knife away from him. The three children were dead, and their bodies were covered with blood. Each child's throat had been cut. The fatal wounds were remarkably similar--an incision on the right side of the neck of each child, which severed the jugular vein and caused the child to bleed to death. Appellant had cuts on each side of his neck, and on one side, the jugular vein had been 'nicked.' Although appellant was bleeding, the wounds were not life-threatening. Appellant's wounds were self-inflicted. At first, appellant refused medical assistance, and he was restrained with handcuffs so that the paramedics could administer first aid. Appellant was transported to the hospital, where he received further treatment and stitches. While at the hospital, appellant asked an officer if his wife were coming, and when the officer said that he did not know, appellant said, 'I cut my kids. I didn't want her to get them.' He also stated several times that he wanted to 'die with [his] babies.' After being treated at the hospital, appellant was released to the police and transported to police headquarters. Shortly after arriving at police headquarters and being advised of his rights, in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant made a statement admitting that he killed the children because he was mad at his wife and did not want her to have them.

"The record discloses that Mr. and Mrs. Bui had experienced marital difficulties for several years. There had been several separations, and appellant suspected that his wife was seeing other men. At the time of the murders, Mrs. Bui had been absent from the home for two days and, during part of this time, she was in the company of a male friend. During the two days preceding the murders, Mrs. Bui called appellant several times on the telephone, and during these telephone conversations, appellant urged his wife to return home and made threats implying that if she did not, she might never see him and the children alive again. One such call occurred at approximately 11:00 on the night of the murders. Appellant told Mrs. Bui she would have to get there within 15 minutes if she wanted to see the children alive again. During this conversation, Mrs. Bui heard one of the children crying in the background. Shortly after this call, Mrs. Bui called the Montgomery Police Department to have someone check on the children. After waiting 15 minutes, appellant 'lost his temper,' he said in a confession, and killed the children.

"Appellant did not testify at any stage of the proceedings. He presented witnesses who testified that he was a 'hard worker' and supported his family. Mrs. Bui testified that he was a loving and caring father; however, on cross-examination, she stated that he had a violent temper and had threatened to harm her and the children on numerous occasions during the marriage. Mrs. Bui also testified, on cross-examination, that appellant admitted to her that he killed the children because he was mad at her for not coming home and because he thought she was 'running around on him.' The fact that appellant killed the children is not disputed. Appellant's theory of defense, as disclosed in the opening statements of his counsel, was two-fold: (1) appellant is guilty of manslaughter instead of capital murder because the acts were caused by a sudden heat of passion caused by legal provocation, or (2) appellant was insane at the time of the killings. Appellant presented the testimony of a psychiatrist and a 'cross-cultural' counselor in support of his insanity plea."

I.

In his petition, the appellant presents numerous claims regarding the performance of his counsel, most alleging acts and omissions of counsel at trial. He contends that as a result of counsel's alleged errors, he was denied the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

466 U.S. at 687, 104 S.Ct. at 2064.

"The performance component outlined in Strickland is an objective one: that is, whether counsel's assistance, judged under 'prevailing professional norms,' was 'reasonable considering all the circumstances.' " Daniels v. State, 650 So.2d 544, 552 (Ala.Cr.App.1994), cert. denied,...