Le v. State

• Decision Date: 02 October 1997
• Docket Number: No. F-95-1303,F-95-1303
• Parties: 1997 OK CR 55 Hung Thanh LE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 535

947 P.2d 535

1997 OK CR 55

Hung Thanh LE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-95-1303.

Court of Criminal Appeals of Oklahoma.

Oct. 2, 1997.

Rehearing Denied Nov. 17, 1997.

Irven Box, Stephen Box, Oklahoma City, for Defendant at trial.

William H. Luker, Deputy Division Chief, Capital Direct Appeals, Oklahoma Indigent Defense System, Norman, for Appellant on appeal.

Robert H. Macy, District Attorney, Stephen Deutsch, Assistant District Attorney, Oklahoma City, for the State at trial.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker Assistant Attorney General, Oklahoma City, for Appellee on appeal.

OPINION

CHAPEL, Presiding Judge:

Hung Thanh Le was tried by jury and convicted of Count I, Malice Murder in the First Degree in violation of 21 O.S.1991, § 701.7(A); Count II, Robbery with a Dangerous Weapon in violation of 21 O.S.1991, § 801; Count III, Assault and Battery with Intent to Kill in violation of 21 O.S.Supp.1992, § 652; Count IV, Larceny of a Motor Vehicle in violation of 21 O.S.1991, § 1720; and Count V, Grand Larceny in violation of 21 O.S.1991, § 1704, in the District Court of Oklahoma County, Case No. CF-92-6838. The jury found (1) Le knowingly created a great risk of death, and (2) the murder was especially heinous, atrocious, or cruel. In accordance with the jury's recommendation, the Honorable Nancy L. Coats sentenced Le to death (Count I), ninety-nine years imprisonment (Count II), twenty years imprisonment (Counts III and IV), and five years imprisonment (Count V). Le appeals from these Judgments and Sentences and raises eighteen propositions of error. ¹

This case involves friendship betrayed. Le and Hai Nguyen each fled Vietnam as young men and met in a refugee camp in Thailand. Each made his way to the United States where, by 1992, Le was a machinist in Cleveland while Nguyen owned a beauty shop in Oklahoma City. In July 1992 Le visited Nguyen, his wife Thuy, and their daughter Carolyn. Le stopped for a brief visit early in November 1992, then arrived by taxi around 9:30 p.m. on Monday, November 9, 1992. He spent the night. The following day the beauty shop was closed; the Nguyens loaned Le $200 and they went shopping. On Wednesday Nguyen cut Le's hair, then Le returned to the empty house, where he packed up the Nguyen's stereo and karaoke equipment and shipped it to Cleveland. The Nguyens suspected Le had stolen their property but did not confront him.

Thursday, November 12, Carolyn went to school. Nguyen sat on the couch watching television. Le crept up behind Nguyen and hit him on the back of the head with a bar from Nguyen's weightlifting set. The blows caused several contusions and bled, but Nguyen remained conscious. Thuy was still in bed when Nguyen called her name and said Le was killing him; she rushed into the room. Le dropped the bar and Nguyen picked it up. As Thuy called 911 Nguyen threatened Le with the bar and hit his forearm. Nguyen dropped the bar when Thuy said she had called 911. Le went to the kitchen and got a butcher knife and a meat cleaver. He returned, told Nguyen not to make him do it, backed Nguyen across the room, and stabbed him with the butcher knife. When Thuy begged him to stop, Le attacked her and said she should not have called 911. During the attack Le told the Nguyens he had been paid $20,000 to kill them and told Thuy he would stop if she wrote him a check for $20,000. Nguyen fell across the coffee table, and Le began chopping at his back and head with the meat cleaver. Thuy ran out the back door. She saw an EMSA ambulance which had just arrived, and begged the attendants to go inside and save her husband. The attendants treated Thuy for knife wounds to her hands and head. While waiting for police, they saw Le leave the house and drive off in the Nguyen's car. When attendants reached Nguyen he was still conscious, laying in a large pool of blood. He told them he was dying, asked them to help him, and asked about Thuy. Nguyen went into arrest in the ambulance and died of blood loss. He had been stabbed many times.

Le took Nguyen's car keys, car, and safe deposit box key. He drove to a farm pond near the highway where he washed and changed clothes. He drove to Nguyen's bank, where he used Nguyen's key to open his safe deposit box. He took the contents, including $36,000 in cash and a diamond ring, and put them in an empty bag. Le left the car at the bank and took a taxi downtown Le was apprehended the next day at the airport. He admitted stabbing Nguyen but insisted he had not intended to kill him. Le told police he knew about the money in the safe deposit box and came to Oklahoma City to rob the Nguyens. He said he intended to hit Nguyen and "put him to sleep" so he could get the safe deposit box key. When Nguyen remained conscious and grabbed the bar, Le said he feared for his life and got the knives to defend himself. He admitted he told Thuy he had been paid $20,000 to kill them but said that was a lie. During the second stage of trial Le testified that in July, 1992, he gave Nguyen $10,000 to start a joint business; after his family came in September he needed the money but Nguyen refused to return it so he came to Oklahoma City to get it back. Le did not tell the police about $10,000 or a business deal, although he did tell them he knew Nguyen had $10,000. Thuy testified there were no plans for a joint business and Le never gave them any money.

where he went shopping and stayed the night.

PRETRIAL ISSUES

In Proposition I Le claims the trial court erred in admitting his custodial statement into evidence over defense objections because the State failed to show that he had sufficient command of the English language to voluntarily, knowingly and intelligently waive his constitutional rights before making the statement. Le was arrested on November 13, 1992, waived his Miranda ² rights, and gave a videotaped statement in which he admitted stabbing Nguyen several times but insisted he had only intended to rob him. Le admits Miranda warnings were properly given, but argues his statement should not have been admitted because he could not understand English well enough to waive his rights. He notes an interpreter was present for preliminary hearing, at least one motions hearing, and trial. He refers to Dr. King's apparent recommendation that Le would be competent if a translator were present for court proceedings (see Proposition V). The State notes no interpreter was present when Le changed counsel or at sentencing, and Le testified without an interpreter in the second stage. Le replies that he of course became more fluent in English during his three years in jail pretrial, and the question is whether Le understood Officers Bemo and Cook in November 1992.

The State must prove a defendant's waiver of rights was (1) the product of a free and deliberate choice rather than intimidation, coercion, or deception, and (2) made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. ³ The State must prove a waiver is valid by a preponderance of the evidence, ⁴ and must show Le understood English well enough to knowingly and voluntarily waive his rights. ⁵ This Court will review the totality of the circumstances surrounding the interrogation, including a defendant's characteristics and the details of the interrogation. ⁶ Where sufficient evidence taken in camera supports a trial court's ruling that a defendant's statements are voluntary and admissible, that ruling will not be disturbed on appeal. ⁷ The trial court determined Le's statement was uncoerced and voluntary and specifically remarked that the language difference "did not appear to be a problem or represent a barrier at all."

A thorough review of the videotape shows that officers asked some leading questions In Valdez this Court found a knowing and voluntary waiver where the defendant spoke broken English in simple phrases but understood officers' questions and read and signed waiver forms. Valdez considered (1) the lack of specific evidence to support the defendant's lack of comprehension claim; (2) assurances on the record that he understood his Miranda warnings; and (3) his "objectively verifiable ability to understand and answer the questions" during interrogation. ⁸ Le distinguishes Valdez on the facts. He notes Le never read or signed a Miranda waiver and nobody asked whether he could read English before he signed the rights waivers. ⁹ Valdez received three Miranda warnings, while Le only had one, so he argues there was no opportunity for clarification by repetition. Le argues there is support for his claim of lack of comprehension in the interview itself, where he was confused by the role of an attorney. Le says officers must have doubted his ability to speak English since they said they understood he was not fluent in English and he replied "Not really." This misstates the evidence: actually Cook said they understood Le did speak very fluent English. Le claims he did not say he understood his Miranda rights until Bemo told him to say yes or no; actually he did respond with "uh-huh," but the response is very difficult to hear. Le also points to his Jackson-Denno testimony where he testified through an interpreter that he was unfamiliar with this country's criminal justice system, did not "much" understand his right to silence, and thought Bemo and Cook would turn him upside down and put fish salt in his nose if he did not talk to them.

                and Le gave some yes-or-no answers.  However, most of the questions were open-ended;  Le had to comprehend their meaning and formulate answers based on his own knowledge of events.  Le also volunteered several statements.  At the beginning of the interview Officer Cook said he understood Le spoke fluent English, and Le answered "Not really."   Officers read Le his Miranda rights and asked whether he understood, and he grunted "Uh-huh" almost

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