Vorgvongsa v. State

• Citation: 785 A.2d 542
• Decision Date: 03 December 2001
• Docket Number: No. 2000-152-C.A.,2000-152-C.A.
• Parties: Lamphone VORGVONGSA v. STATE of Rhode Island.
• Court: United States State Supreme Court of Rhode Island

785 A.2d 542

Lamphone VORGVONGSA v. STATE of Rhode Island.

No. 2000-152-C.A.

Supreme Court of Rhode Island.

December 3, 2001.

Present: WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Mark Laroche, Providence, for plaintiff.

Jane M. McSoley, Aaron L. Weisman, Providence, for defendant.

OPINION

PER CURIAM.

Lamphone Vorgvongsa (Vorgvongsa or applicant) was originally tried before a Superior Court jury and convicted on a charge of first-degree murder. His motion for a new trial was granted, and the state petitioned this Court for certiorari to review that decision. This Court quashed the order granting a new trial and remanded the case to the Superior Court with directions to reinstate Vorgvongsa's conviction and to impose sentence. On remand, the Superior Court reinstated the conviction and sentenced Vorgvongsa to life imprisonment. Vorgvongsa appealed, and this Court denied and dismissed his appeal. Vorgvongsa later filed an application for postconviction relief, claiming a due process violation and ineffective assistance by his trial counsel. After a hearing, his application was denied. Vorgvongsa now appeals that decision.

At a prebriefing conference before a justice of this Court, both Vorgvongsa and the state were ordered to appear and show cause why this appeal should not be summarily decided. The parties didappear. After hearing their arguments and considering their legal memoranda, we conclude that cause has not been shown, and we proceed to summarily decide the appeal.

Facts

The facts of this case as set forth in our opinions in State v. Vorgvongsa, 670 A.2d 1250, 1251-52 (R.I.1996) (Vorgvongsa I) and State v. Vorgvongsa, 692 A.2d 1194, 1195-96 (R.I.1997) (Vorgvongsa II) are as follows:

"On March 2, 1990, some friends of Viengsavoth Syharath who knew he was leaving this state to take up residence in California gathered in a second-floor apartment at 29 Moy Street in Providence to wish him well. At about 10:15 p.m., the party guests were enjoying food, beer, and cognac while seated on the floor in the unfurnished living room in the apartment, when one of the guests, the victim, Phommachanh, went over to Leuthavone, and offered him a drink of cognac. Leuthavone refused the cognac, and Phommachanh, speaking in Laotian, called him a `chicken.' Leuthavone, angered by that name, got up from his seated position and pushed Phommachanh. A pushing and grabbing melee erupted, and in short order, some guests began scattering for shelter while others attempted to quell the fracas. Within minutes, despite broken plates and glass all over the living room floor, peace settled in on the festive skirmish, but the party spirit had understandably dissipated and the guests began leaving the apartment. Leuthavone and the defendant, Vorgvongsa, were the first to leave. Others followed and gathered on the sidewalk in front of the apartment to bid their last farewells. Leuthavone and Vorgvongsa, however, were not among those talking on the sidewalk, but Phommachanh, whose fertile `chicken' epithet had triggered the party fracas was there, attempting to persuade the party guests to return to the apartment and resume the social occasion. As Phommachanh was pleading with guests, a silver Toyota, with Leuthavone and Vorgvongsa as driver and passenger, drove up to the scene. Leuthavone exited the Toyota and approached Phommachanh, speaking briefly to him in Laotian. The others present, assuming that all was now well, decided to return to the apartment. As they did, Leuthavone and Vorgvongsa remained outside. Within minutes, however, Leuthavone and Vorgvongsa did reenter the apartment together.

"They did not, however, join the other partygoers in the living room. Instead, they walked directly through the living room and into the kitchen. At this point, Phommachanh, who was with the other guests, walked over to the kitchen and extended his hand to shake hands with Leuthavone and to apologize for having earlier called him a `chicken.' Without warning, Leuthavone pushed Phommachanh back into the living room and came after Phommachanh with a handgun. Immediately behind Leuthavone, the defendant Vorgvongsa rushed out, also with gun in hand.Phommachanh tried to find shelter by hiding behind some of the partygoers and was moving about the living room. Vorgvongsa was pointing his handgun around the room, looking for Phommachanh, and when he located him, Vorgvongsa attempted to shoot him, but the handgun misfired several times. Vorgvongsa then began banging the gun on its side, attempting to remedy the cause of its misfiring. The party guests began running for cover. Leuthavone also attempted to shoot Phommachanh, but his weapon also misfired. Leuthavone then unloaded and reloaded his gun, hoping that it would then properly function. As Leuthavone was reloading his gun, one of the partygoers, sensing that Phommachanh was targeted for doom, pushed Phommachanh toward a stairway exit leading from the apartment and told him to go. Phommachanh ran down the stairway. Leuthavone and Vorgvongsa then followed Phommachanh down the stairway, and about fifteen seconds later three shots were heard from the Moy Street sidewalk area. At that, Annette St. Louis (St. Louis) one of the ill-fated party guests, who fortuitously during the apartment gun chase had telephoned for 911 assistance from an apartment bedroom, ran out of the bedroom and saw that all of the party guests except Phommachanh, Leuthavone, and Vorgvongsa were present. She then ran down the exit stairway and out onto Moy Street. She did not see Leuthavone or the defendant, Vorgvongsa, and she noticed that the silver Toyota they had arrived in earlier was gone. She looked a short distance away and saw rescue-wagon personnel exiting their vehicle to tend to someone lying face down on the sidewalk. It was Phommachanh. He had been fatally shot in the back.

"A short time later police responded and, after preliminary questioning of some of the party guests, learned that Leuthavone lived nearby at 34 Homer Street. Police went to that address, saw the silver Toyota parked there, and while surveilling the car, observed Leuthavone and another person, not Vorgvongsa, leave 34 Homer Street and enter the Toyota. As the police approached, Leuthavone, seated in the passenger seat, attempted to hide and conceal a gun under his seat. He was arrested and the gun seized. When the gun was later test fired, the test-fired bullet, when compared with the fatal bullet recovered from Phommachanh's body, confirmed that the bullet that killed Phommachanh had not been fired from Leuthavone's gun. Vorgvongsa was later arrested, but his gun was never found." Vorgvongsa II, 692 A.2d at 1195-96 (quoting Vorgvongsa I, 670 A.2d at 1251-52).

Vorgvongsa raises multiple issues in his appeal from the denial of his application for postconviction relief. Among those are eight issues that were not raised in his postconviction relief application or during the hearing on that application. In his application he had contended that his due process rights had been violated at his original trial because the trial jury's first-degree murder verdict inthat case was against the weight of the evidence and that he received ineffective assistance of counsel at trial.

Under G.L.1956 § 10-9.1-1(a)(1), postconviction relief is available to a defendant convicted of a crime who contends that his original conviction or sentence violated rights secured him by our state or the federal constitution. The hearing justice's findings made at such a hearing "are entitled to stand undisturbed on appeal in the absence of clear error or a showing that material evidence was overlooked or misconceived." Simpson v. State, 769 A.2d 1257, 1265 (R.I.2001) (quoting Heath v. Vose, 747 A.2d 475, 477 (R.I.2000)). However, on appeal "the ultimate determination concerning whether [a defendant's] constitutional rights have been infringed must be reviewed de novo." Simpson, 769 A.2d at 1265 (quoting Powers v. State, 734 A.2d 508, 514 (R.I.1999)). In carrying out our de novo review in the context of reviewing an alleged violation of a defendant's constitutional rights, we note that "a reviewing court should take care * * * to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts * * *." Simpson, 769 A.2d at 1265-66 (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996)). Therefore, although we undertake here to review de novo Vorgvongsa's appeal challenging the hearing justice's denial of his application for postconviction relief, we give appropriate deference to the fact findings made by the postconviction relief hearing justice.

I. Newly Raised Claims

On appeal Vorgvongsa raises eight issues that had not been raised or considered at his postconviction relief hearing. Those new issues include the following: (1) ineffective assistance of counsel in not requesting an instruction on aiding and abetting; (2) ineffective assistance of counsel in not requesting an instruction that inconsistent statements constitute substantive proof of innocence; (3)ineffective assistance of counsel in not obtaining blood, hair, and clothing samples; (4) ineffective assistance of counsel in not pursuing certain issues on direct appeal; (5) ineffective assistance of counsel by the applicant's postconviction relief hearing attorney; (6) the failure of the trial justice to instruct as requested on credibility; (7) the failure of the trial justice to permit the jury to consider sworn testimony elicited at a previous mistrial; and (8) the trial justice's improper instruction on aiding and abetting.

According to § 10-9.1-8 of the postconviction relief statute:

"All grounds for relief available to an applicant at the time he or she commences a proceeding under this chapter must be raised in his or her original, or a supplemental or amended, application. ...