Le v. State, 2002-DP-01855-SCT.

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtDickinson, Justice
Citation913 So.2d 913
PartiesThong LE v. STATE of Mississippi.
Docket NumberNo. 2002-DP-01855-SCT.,2002-DP-01855-SCT.
Decision Date28 April 2005
913 So.2d 913
Thong LE
STATE of Mississippi.
No. 2002-DP-01855-SCT.
Supreme Court of Mississippi.
April 28, 2005.

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Daphne L. Pattison, attorney for appellant.

Office of the Attorney General by Judy T. Martin, Jackson, Melanie Kathryn Dotson, Birmingham, attorneys for appellee.


DICKINSON, Justice, for the Court:

¶ 1. On November 1, 2001, Ngan Tran ("Tran") and Thong Le ("Le") planned to rob the home of Minh Heiu Thi Huynh ("Minh"), where she lived with her two daughters, Thuy Hang Huynh Nguyen ("Thuy"), age fifteen, and Thanh Truc Huynh Nguyen ("Thanh"), age eleven. Armed with a gun, the two men went to Minh's home, knocked on the door, and were allowed in by Thuy who was home with her sister. Tran and Le tied and gagged the girls and waited for Minh to return home. At some point, Tran briefly left the home to move the car, leaving Le with the girls.

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¶ 2. When Minh returned home, she was overpowered and hogtied with electrical cord. When Tran demanded money, she directed him to her purse. The victims were beaten and strangled until they died. After attempting to sanitize the crime scene with bleach and water for several hours, Tran and Le left with approximately $1,300 and a bookbag containing some household items.

¶ 3. When Le was later arrested and charged with the crimes, he was carrying some of the money. He confessed to the robbery but maintained that he had no idea Tran planned to kill the mother and the girls. He insisted he took no part in the murders. Prior to Le's trial, Tran committed suicide. Le was convicted of three counts of capital murder and sentenced to death, and he now appeals, raising fifteen issues for our review.


1. Did the trial court err in overruling defendant's motion for individual sequestered voir dire and the defendant's motion for additional peremptory challenges?

Individual sequestered voir dire

¶ 4. Le filed a motion for individual sequestered voir dire on the issue of the death penalty. At the hearing on Le's motion, his counsel claimed the pretrial publicity surrounding his case, coupled with additional publicity surrounding the his co-defendant's suicide, together with the attitudes of the death penalty in general, justified individual sequestered voir dire. The State disagreed, stating that individual voir dire should be allowed only in cases where the general questioning of the jury demonstrates the need for individual questioning.

¶ 5. In denying Le's motion, the trial court stated:

I believe we primarily would have individual voir dire from jurors who indicate that they have some knowledge of the facts of the case, and we wouldn't want them blurting out what they heard, or their opinions about this particular case, or whether the defendant should or shouldn't get the death penalty in this particular case. So we would certainly allow or consider allowing upon request, individual voir dire along those lines on that issue. Generally we don't allow individual voir dire as to the basic questions about the death penalty or their belief, but if somebody begins to enter into an area that might be prejudicial, then, of course, we can always stop them and do that on an individual basis. But I think we'll just wait on that until the time comes and see what responses we get.

¶ 6. Le contends the denial of his motion was error, citing URCCC 3.05, which states that "individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court."

¶ 7. Prior to voir dire, the prospective jurors filled out a questionnaire. During voir dire, Le's counsel requested all prospective jurors to stand who responded in the questionnaire that they believed a person convicted of murder should automatically receive the death penalty. Twelve stood. Noticing that some prospective jurors remained seated who he believed should have stood up, Le's counsel requested the trial court to individually voir dire those prospective jurors who answered the question in the affirmative in the questionnaire, but did not stand in response to his request. The trial court denied this request and instructed counsel to ask his questions in public. Le's counsel then asked the venire if any would vote for the death penalty regardless of the

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circumstances if they found the defendant guilty of capital murder. Twenty-one prospective jurors responded that they would. Le contends that this was an unusually large number of prospective jurors predisposed to vote for the death penalty. He stated he could not freely explore the matter in open court for fear of tainting the remaining prospective jurors. Le contends that had the trial court allowed individual voir dire, defense counsel may have been able to demonstrate to the court to strike some prospective jurors for cause, leaving more peremptory strikes for the defense.

¶ 8. The record reflects, however, that Le requested only three of the prospective jurors in question be stricken for cause. In fact, the record reflects that the trial court struck (for cause) seven of the prospective jurors in question at the State's request. The record further reflects that all of the prospective jurors Le contends were "predisposed to the death penalty" were stricken as prospective jurors, either by the peremptory challenges or for cause.

¶ 9. Le cites Jones v. State, 461 So.2d 686 (Miss.1984), in support of his argument that the trial court erred by not allowing individual voir dire. However, in Jones, defense counsel objected to individual voir dire. This Court held that "it is well within the discretion of the trial judge to allow individual voir dire in a proper case." Id. at 692. Our refusal to reverse a trial judge for allowing individual voir dire is not authority for the proposition that we should reverse a trial judge for refusing to allow it.

¶ 10. Le contends that "[t]he safer practice in situations involving possible prejudice is to interrogate each juror separately and out of the presence of the other jurors," quoting from United States v. Schrimsher, 493 F.2d 848, 854 (5th Cir.1974). In Schrimsher, the trial judge questioned the jury en masse regarding a newspaper article. Although the Fifth Circuit stated that individual interrogation of each juror would be a safer practice, it found that there was no error in the trial court's failure to do so. Id.

¶ 11. The State tells us Le fails to demonstrate any question Le was prevented from asking a single juror. Furthermore, at the conclusion of defense counsel's questions, the following took place:

THE COURT: Let me ask the attorneys to approach the bench briefly.


Are y'all satisfied with all the answers that were given on the death penalty?


THE COURT: Do you want me to ask anything else?

MR. MILLER: I'm fine.

THE COURT: Are you okay?



¶ 12. The State contends that the individual voir dire issue on appeal is procedurally barred because Le's counsel declined the trial court's offer to ask any additional questions. Alternatively, the State cites Edwards v. State, 737 So.2d 275 (Miss.1999), for the proposition that the denial of individual sequestered voir dire does not constitute error. In Edwards, the defendant claimed the trial court erred by denying his request for individual sequestered voir dire under circumstances similar to those in the case sub judice. Id. at 307. Quoting Rule 3.05 of the Mississippi Uniform Circuit and County Court Rules, this Court stated "that the rule does not require more than what it states on its face," and trial judges act "within

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their discretion granted by the rule," when they deny motions for individual sequestered voir dire. Id. at 308 (citations omitted). This Court has also held:

While the Court has stated that Rule [3.05] allows a circuit court, in its own discretion, to utilize individualized, sequestered voir dire, this Court further held that Rule [3.05] does not require more than what is stated on its face. Russell v. State, 607 So.2d [1107], 1110. (internal citations omitted). In Russell, this Court stated that the "contention that he [Russell] should have been allowed to individually voir dire jurors out of the presence of the others is not supported by the decision of the Court.

Russell, 607 So.2d at 1110; White v. State, 532 So.2d at 1218.

¶ 13. The State reminds us that "[a]n appellant must show actual harm or prejudice before this Court will reverse a trial court's limitation on voir dire." Morris v. State, 843 So.2d 676, 678 (Miss.2003) (citing Stevens, 806 So.2d at 1054). Furthermore, "this Court will treat with deference a venire person's assertions of impartiality." Id.

¶ 14. We reaffirm our holding in numerous cases, including Stevens v. State, 806 So.2d 1031, 1054-55 (Miss.2001), and again state that the decision of whether to allow individual sequestered jury voir dire should be left to the sound discretion of the trial court. The trial court in the case sub judice allowed juror questionnaires and open voir dire. He 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. We find no error here.

Additional Peremptory Challenges

¶ 15. Prior to trial, based on the heightened sensitivity of a death penalty case and issues related to the death penalty, Le's counsel requested additional peremptory challenges. Le contends that the denial of individual sequestered voir dire compelled him to use...

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