Luong v. State

• Decision Date: 17 April 2015
• Docket Number: CR–08–1219.
• Citation: 199 So.3d 173
• Parties: LAM LUONG. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

199 So.3d 173

LAM LUONG.

v.STATE of Alabama.

CR–08–1219.

Court of Criminal Appeals of Alabama.

April 17, 2015.

Opinion on Rehearing July 10, 2015.

Certiorari Denied Sept. 18, 2015.

Alabama Supreme Court 1141133

Glenn L. Davidson, Mobile; Anna Arceneaux and Cassandra Stubbs, Durham, North Carolina, for appellant.

Troy King and Luther Strange, attys. gen., and Stephanie E. Reiland and James R. Houts, asst. attys. gen., for appellee.

After Remand from the Alabama Supreme Court

PER CURIAM.

In 2009, Lam Luong was convicted of five counts of murder made capital because he killed his four children, all under the age of 14 years, by one act or pursuant to one scheme or course of conduct, see § 13A–5–40(a)(15) and § 13A–5–40(a)(10), Ala.Code 1975. Luong was sentenced to death. On appeal, this Court reversed Luong's convictions after finding that Luong had been denied his constitutional right to a impartial jury when the circuit court denied his motion for a change of venue based on pretrial publicity.See Luong v. State, 199 So.3d 98 (Ala.Crim.App.2013) (“Luong I ”). We also held that the circuit court erred in denying Luong's motion for funds to investigate mitigating evidence and in admitting a videotaped reenactment of the murders. The State petitioned for a writ of certiorari to the Alabama Supreme Court. The Supreme Court reversed this Court's decision and remanded the case for proceedings consistent with that court's opinion. See Luong v. State, 199 So.3d 139 (Ala.2014) (“Luong II ”). In this Court's opinion reversing Luong's convictions, we did not address some of the issues raised in Luong's original brief to this Court. We now consider the remaining issues that were raised but that were not previously addressed by this Court. The facts surrounding Luong's convictions are set out in detail in both this Court's opinion and the Supreme Court's opinion. Luong was convicted of murdering his four children—four-month-old Danny Luong, one-year-old Lindsey Luong, two-year-old Hannah Luong, and three-year-old Ryan Phan—by throwing them off the Dauphin Island Bridge in Mobile County. Luong confessed to murdering his four children and led police to where he threw the children off the bridge. The coroner testified that Danny, Ryan, and Lindsey died of blunt-force trauma and asphyxia

due to drowning and that Hannah's cause of death was drowning. The jury unanimously recommended that Luong be sentenced to death, and the circuit court followed the jury's recommendation.

Standard of Review

Because Luong has been sentenced to death, this Court must review the lower-court proceedings for “plain error.” Rule 45A, Ala. R.App. P., provides:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

“The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal.” Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999). In discussing the scope of the plain-error standard, the Alabama Supreme Court has stated:

“ ‘ “ ‘Plain error’ arises only if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.” ' Ex parte Womack, 435 So.2d 766, 769 (Ala.1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981) ). See also Ex parte Woodall, 730 So.2d 652 (Ala.1998). ‘ “In other words, the plain-error exception to the contemporaneous objection rule is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ ” ' Ex parte Land, 678 So.2d 224, 232 (Ala.1996) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting in turn United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) )). ‘To rise to the level of plain error, the claimed error must not only seriously affect a defendant's “substantial rights,” but it must also have an unfair prejudicial impact on the jury's deliberations.’ Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998), aff'd, 778 So.2d 237 (Ala.2000), cert. denied, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001). This Court may take appropriate action when the error ‘has or probably has adversely affected the substantial rights of the appellant.’ Rule 45A, Ala. R.App. P. ‘[A] failure to object at trial, while not precluding our review, will weigh against any claim of prejudice.’ Ex parte Woodall, 730 So.2d at 657 (citing Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.1991) ).”

Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002).¹

Many of the issues raised in Luong's brief were not first presented to the circuit court. “[Luong's] failure to object at trial does not bar our review of these issues; ... it does weigh against any claim of prejudice he now makes on appeal.” Brooks v. State, 973 So.2d 380, 387 (Ala.Crim.App.2007).

With these principles in mind, we review the remaining issues raised in Luong's brief.

I.

First, Luong argues that the circuit court erred in failing to conduct an investigation into juror misconduct that allegedly occurred during the voir dire proceedings. Specifically, he argues that the circuit court erred in not granting his motion for a mistrial after he asserted a claim of juror misconduct and the circuit court failed to conduct an investigation into the claim.

The record shows that during voir dire examination Luong's counsel notified the circuit court that juror E.L. had indicated on her juror questionnaire that she had heard other prospective jurors talking about the case. The following discussion occurred:

“The Court: There was something in your questionnaire that indicated that you had heard from another juror. Is that right?

“[E.L.]: When you sent the two panels upstairs right after we were put in panels and sent two panels upstairs to possibly sit on a case in Judge [Joseph] Johnston's court—

“The Court: Okay.

“[E.L.]—which ended up being settled, but in the interim we stood there like ducks in a row for like 30 minutes in the hall waiting to see what was going to happen. And there was just a few people on the panel standing next to me talking about, you know, what they would do.

“The Court: Okay. What did they say they would do?

“[E.L.]: Well, they were talking about that the death penalty would be too quick, and that they were thinking of other items, you know, like hanging in Bienville Square, whipping with reeds, that kind of thing.

“The Court: All right. You heard that. That wasn't your mind-set, was it?

“[E.L.]: No.

“The Court: You just heard.

“[E.L.]: I'm just standing there going la, la, la.

“The Court: Has it affected you in any way that you heard that? Would it change your opinion with regard to guilt or innocence?

“[E.L.]: No. I just—like I say, I heard that, and I felt the need to write it down, you know.

“The Court: Thank you. And you have told me that you have heard things about this case or at least most people have. And you have also indicated to me that you could lay that aside and put it aside and judge this case on the evidence?

“[E.L.]: Correct.

“....

“[Defense counsel]: Ma'am, the jurors that you heard, I wasn't clear about that, that you heard making these statements—

“[E.L.]: Yes, sir.

“[Defense counsel]:—were they part of the people who have been in here?

“[E.L.]: Yes, sir. And I can't give you names because there was, what, a hundred and fifty—something of us.

“[Defense counsel]: Do you know how many people were chit-chatting about that out of the jury panel?

“[E.L.]: Oh, about three.

“....

“[Defense counsel]: Given this juror's statements about what conversations were going on out in the jury panel, we would at this time, her saying that people were making statements about he should be hung or whipped or thrown off the bridge or whatever that was, at this point we would move for a mistrial on the grounds that the jury panel is tainted. We don't know who it is. We cannot weed these people out. We can't find out who it is. She can't identify them, but they are out there. And with that, we submit that the jury panel is tainted and we would ask for a mistrial and start over.

“The Court: Okay. So that the record is clear about how—where and how—when that occurred, when I empaneled the jury on Monday morning, before even this group was told that they were going to fill out questionnaires and as to what case they may be hearing, Judge Johnston was the only judge in the courthouse that required a group of jurors be sent to him.

“They were placed in panels and she apparently was on one or two or three of the panels that were sent down to Judge Johnston's court. And it sounded to me like when they were standing in the hall waiting to go into Judge Johnston's court that she heard that.

“Now, whether or not all of these people that were on that jury, some of them got on this panel, I have no idea. Because many of them I excused because they couldn't stay longer than two-and-a-half weeks or couldn't stay two-and-a-half weeks. So they may or may not have been on here.

“But one thing I know for sure, nobody has indicated what she said on these panels. And I'm not going to grant mistrial based on speculation. I haven't heard any evidence—any evidence whatsoever that anyone has been tainted. She said she certainly wasn't.”

(R. 902–06) (emphasis added). The three jurors were never identified and juror E.L. indicated that the conversation she had overheard would have no affect on her ability to be impartial.

“In cases involving juror misconduct, a trial court generally will not be held to have abused its discretion ‘where the trial court investigates the

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