Lam Luong v. State

199 So.3d 98

LAM LUONG

v.STATE of Alabama.

CR–08–1219.

Court of Criminal Appeals of Alabama.

Feb. 15, 2013.

As Modified on Denial of Rehearing June 7, 2013.

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, asst. atty. gen., for appellee.

PER CURIAM.

In February 2008, a Mobile County grand jury returned an indictment against the appellant, Lam Luong, charging him with five counts of capital murder in connection with the deaths of his children, four-month-old Danny Luong, one-year-old Lindsey Luong, two-year-old Hannah Luong, and three-year-old Ryan Phan. The murders were made capital because: (1) two or more persons were killed “by one act or pursuant to one scheme or course of conduct,” see § 13A–5–40(a)(10), Ala.Code 1975 (count I of the indictment); (2) Danny Luong was less than 14 years of age when he was murdered, see § 13A–5–40(a)(15), Ala.Code 1975 (count II of the indictment); (3) Ryan Phan was less than 14 years of age when he was murdered, see § 13A–5–40(a)(15), Ala.Code 1975 (count III of the indictment); (4) Lindsey Luong was less than 14 years of age when she was murdered, see § 13A–5–40(a)(15), Ala.Code 1975 (count IV of the indictment); and (5) Hannah Luong was less than 14 years of age when she was murdered, see § 13A–5–40(a)(15), Ala.Code 1975 (count V of the indictment).

Following a jury trial, Luong was convicted of all five counts of capital murder, as charged in the indictment. The jury recommended, by a vote of 12–0, that Luong be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Luong to death for the five capital-murder convictions. This appeal followed.

The State's evidence tended to show that on January 7, 2008, Luong drove his four children to the top of the Dauphin Island bridge and threw each child off the bridge to the water 100 feet below. Danny's body was discovered on January 12 in a marshy area approximately 12 miles from the bridge; Lindsey's body was discovered on January 15 approximately 18 miles from the bridge, in Mississippi; Hannah's body was discovered on January 20 approximately 144 miles from the bridge, in Louisiana; and Ryan's body was discovered on January 13 approximately 16 miles from the bridge. The medical examiner testified that all four children were alive when they were thrown off the bridge; that Danny, Ryan, and Lindsey died as a result of blunt-force trauma and asphyxia due to drowning; and that the cause of Hannah's death was drowning.

Kieu Luong, Luong's common-law wife,¹ testified that around 10:00 a.m. on January 7, 2008, Luong came to the nail salon where she worked and asked her for money. She gave him $31, she said, so that he could get gasoline for their van. Kieu stated that after Luong left the salon she tried repeatedly to reach Luong by telephone but was unsuccessful. At around 7:00 p.m. that evening she finally spoke to Luong and he told her that he had left the children with “somebody else,” a woman named “Kim.” (R. 1036.) Later that night Kieu and Luong reported to police that the children were missing. The next morning, Kieu said, she and Luong went to the police station and were questioned separately by police. Kieu asked police if she could speak with Luong. Luong then told Kieu that the children were all dead, that he had thrown them off a bridge, and that he would take police to the bridge.

The jury convicted Luong of five counts of capital murder. Following a separate sentencing hearing, the jury unanimously recommended that Luong be sentenced to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A–5–53, Ala.Code 1975.

Standard of Review

Because Luong has been sentenced to death, this Court must review the circuit 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.”

In discussing the plain-error standard of review, 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).

With these principles in mind, we review the claims raised by Luong in his brief to this Court.

I.

Luong first argues that the circuit court erred in denying his motion for a change of venue because, he says, there was excessive prejudicial pretrial publicity surrounding the case, which made it impossible for him to receive a fair trial in Mobile County. In a related issue, Luong argues that the circuit court erred by not allowing him to conduct individual voir dire of the prospective jurors on the issue of prejudicial pretrial publicity.

Article I, § 6, Alabama Constitution of 1901, states, in part: “That in all criminal prosecutions, the accused has a right to ... a speedy public trial, by an impartial jury....”

Section 15–2–20, Ala.Code 1975, provides:

“(a) Any person charged with an indictable offense may have his trial removed to another county, on making application to the court, setting forth specifically the reasons why he cannot have a fair and impartial trial in the county in which the indictment is found.”

“The burden is upon the defendant to show to the reasonable satisfaction of the court that a fair and impartial trial and an unbiased verdict cannot be reasonably expected in the county in which the defendant is to be tried.” See Rule 10.1(b), Ala. R.Crim. P. “Whether to change venue is discretionary with the trial judge.... In determining whether there has been an abuse of that discretion, an appellate court reviews the trial judge's order de novo, without any presumption in favor of that order.” Ex parte Fowler, 574 So.2d 745, 748 (Ala.1990).

The record indicates that in April 2008, Luong moved for a change of venue. In that motion, counsel argued, in part, as follows:

“Heightened publicity has surrounded [Luong] and the crime for which he is charged from the very first moment. Articles in the Mobile Register with a circulation in excess of 350,000 publications weekly in Mobile County, publicized the acts with which [Luong] is charged, and has given extensive news coverage to allegations that [Luong] has confessed to the above referenced crime....”

(C.R.182.) Luong also moved for approval of expenses so that he could obtain the services of a polling expert. (C.R.188.) The circuit court granted that motion.

At a pretrial hearing, the circuit court indicated that “the case might have to be moved.” (R. 57.)² At another hearing, the circuit court said that it believed that individual voir dire was going to be necessary and that the voir dire examination would probably take at least a week to complete. (R. 46.) However, the circuit court deferred ruling on the motion for a change of venue until after the prospective jurors had completed voir dire examination. (R. 48.) Also, Luong's motion to sequester the jury was granted. (R. 291.)

On March 5, 2009, four days before Luong's trial was scheduled to begin, Luong indicated that he wished to plead guilty. (R. 309.) The circuit court said that because Luong was pleading guilty it was not necessary to consider the motion for a change of venue. (R. 335.) A colloquy with Luong was conducted concerning the ramifications of his guilty plea. (R. 350.)³ On March 9, 2009, the date Luong's trial was scheduled to begin, the circuit court again went over with Luong the ramifications of pleading guilty. At this time, Luong asked the circuit court why the process was so complicated if he was pleading guilty and told the court that he had been told by a fellow prisoner at the jail that the proceedings would be over if he pleaded guilty. (R. 361.) Luong then indicated that he wished to withdraw his guilty plea. (R. 379.) The circuit court allowed Luong to withdraw his plea.

After Luong withdrew his plea, defense counsel renewed the motion for a change of venue. Counsel also moved that the trial be continued because of the prejudicial publicity surrounding Luong's guilty plea and his decision to withdraw that plea. (R. 380.) The following occurred:

“[Defense counsel]: Your Honor, because of the publicity that has come

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