Luong v. State (Ex parte State)

199 So.3d 139

Ex parte State of Alabama.

(In re Lam LUONG

v.STATE of Alabama).

1121097.

Supreme Court of Alabama.

March 14, 2014.

As Modified on Denial of Rehearing May 23, 2014.

Luther Strange, atty. gen., and James R. Houts, asst. atty. gen., for John C. Neiman, Jr., deputy atty. gen., petitioner.

Anna Arceneaux and Cassandra Stubbs, ACLU Capital Punishment Project, Durham, North Carolina; and Glenn L. Davidson of Collins, Davidson LLC, Mobile, for respondent.

STUART, Justice.

In February 2008, a Mobile County grand jury charged Lam Luong with five counts of capital murder in connection with the deaths of his four children. 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; and (2) each child was less than 14 years of age when he or she was murdered, see § 13A–5–40(a)(15), Ala.Code 1975. Following a jury trial, Luong was convicted of five counts of capital murder. The trial court sentenced Luong to death for each of the five capital-murder convictions. The Court of Criminal Appeals reversed Luong's convictions and death sentences, holding that the trial court erred by refusing to move the trial from Mobile County because, it reasoned, the pretrial publicity was presumptively prejudicial and by refusing to conduct individual questioning of the potential jurors regarding their exposure to that publicity. The Court of Criminal Appeals also held that the trial court erred in denying defense counsel funds to travel to Vietnam to investigate mitigation evidence and in admitting into evidence during the sentencing hearing a videotape simulation using sandbags approximately the weight of each child illustrating the length of time it took for each child to fall from the bridge to the water.¹ Luong v. State, 199 So.3d 98 (Ala.Crim.App.2013). This Court granted the State's petition to review the decision of the Court of Criminal Appeals. We reverse and remand.

Facts

In its sentencing order, the trial court presented the following facts surrounding the offenses:

“[Luong] met Kieu Phan, the children's mother[,] in 2004. She lived in Irvington and he was working on a shrimp boat in Bayou La Batre. At the time, she was pregnant with Ryan, and although not [Luong's] biological child, he treated Ryan as his own. Thereafter, [Luong] and Kieu had the three other children, Hannah, Lindsey, and Danny.

“Some time after Hurricane Katrina in August of 2005, they moved to Hinesville, Georgia. Kieu worked in a nail salon and [Luong] first worked at a car wash and then took a job as a chef at a restaurant. But it was also in Hinesville that marital problems arose. [Luong] took a girlfriend, he wouldn't work, and he was smoking crack. Kieu was upset by this and decided to move back to Irvington with the children and move in with her mother. [Luong] followed along. This was in December of 2007, approximately a month before he killed the children. Back in Irvington things did not improve. He still had a girlfriend, still did not work regularly, was asking Kieu and her mother, Dung, for money, and was using the money to buy crack and was staying out all night. The family was not happy with his behavior and communicated their displeasure to him.

“Monday morning, January 7, 2008, around 8:30 a.m., [Luong] took Hannah, Lindsey, and Danny and put them in the family van and left the house. A few minutes later, he returned and got Ryan. It was then that he made the 15–20 minute drive with his children to the top of the Dauphin Island Bridge and threw them to their deaths.

“Ryan Phan was 3 years and 11 months old, Hannah Luong was 2 years and 8 months old, Lindsey Luong was 1 year and 11 months old and Danny Luong was 4 months old. On Jan. 7, 2008, [Luong] put them in the family van, drove them from their home in Irvington to the top of the Dauphin Island Bridge. There, he pulled the van over to the side of the roadway and threw all four children, one by one, over the rail, some 106 feet, to their deaths in the water below.

“After leaving the bridge, the van was running out of gasoline. Luong set about trying to get gas and then obtaining money from Kieu to buy crack. Several witnesses testified about their encounters with [Luong] as he was trying to enlist their assistance in obtaining gasoline. They all said that he did not appear to be under the influence of drugs or alcohol. A video from a Chevron gas station also showed [Luong] attempting to obtain gas shortly after throwing the children from the bridge. He did not appear at all impaired.

“[Luong's] day's travels, after killing his children, ended around 5:30 p.m. when the van had a flat tire and a wrecker towed him home. Kieu's mother, Dung, had been calling him all day to find out where the children were but Luong would not answer the phone. [Luong] informed her that he gave the children to a woman named Kim who acted like she knew the family and Kim had not returned the children. When Kieu learned of this, she insisted he report the children missing, which he did.

“At the Bayou La Batre police station the night of January 7, 2008, [Luong] maintained the story that he gave the children to a woman named Kim who never returned the children. There were some variations in the different versions he related, but the essential ‘theme’ was that he gave the children to a woman named Kim.

“The next day he told Captain Darryl Wilson that if Wilson would take him to Biloxi, Mississippi, that maybe they could find Kim. Captain Wilson took [Luong] to Biloxi, but after riding around for about an hour, [Luong] stated that he did not know where to find the children. They returned to the Bayou La Batre police department and shortly thereafter [Luong] told his wife, Kieu, that the children were dead. He further informed Captain Wilson that the children were in the water, and he agreed to take Captain Wilson to the location. [Luong] directed Captain Wilson to the top of the Dauphin Island Bridge and pointed out the exact locations where he parked the van and threw the children into the water below.

“[Luong] subsequently gave a recorded statement in which he admitted throwing his children into the water from the bridge. He stated, ‘My family they make me.’ He said his family and his wife looked down on him like he was nothing. Captain Wilson asked [Luong] if he contemplated killing himself when he was on the bridge and [Luong] said he did. However, when Captain Wilson inquired why he did not, [Luong] said, ‘I wanted to see what my wife and family looked like.’ Wilson replied, ‘You wanted to watch your wife's face after you told her that you had killed them?’ [Luong] nodded in the affirmative and said, ‘Uh-huh.’

“Several witnesses driving across the bridge at the time [Luong] was in the act of throwing his children off of the bridge one at a time witnessed various parts of the events. Howard Yeager saw a van matching the description of [Luong's] van on top of the bridge during the relevant time period. Jeff Coolidge saw [Luong] parked in the location where [Luong] pointed out he was parked, and saw [Luong] throw something over the side. As Coolidge got closer to the van he saw three toddlers in the van. Alton Knight, in another vehicle, saw a van matching the description of [Luong's] van and observed a little girl, a toddler, with dark hair and pigtails in the van. (The children's grandmother, Dung, testified that Lindsey had pigtails when she left that morning.) Frank Collier, who was in the vehicle with Alton King, saw a van matching the description of [Luong's] van and saw [Luong] straddling the rail of the bridge.

“The next day ... [Luong] was interviewed again, and at this time he recanted his earlier statement, and reverted back to the ‘Kim’ story. He smiled and told Captain Wilson, ‘If you find the bodies, then you charge me.’

“Before any of the bodies were found, but after he had been arrested and was in jail, Luong called his wife from the jail and during the conversation laughed and told her that no one would find the children.

“A massive search effort began. On Saturday, January 12, 4–month–old Danny was found 12.5 miles west of the bridge on the banks of an isolated marsh area. On Sunday, January 13, 3–year–11–month–old Ryan was found 16.4 miles west of the bridge. On Tuesday, January 15, 1–year–ll–month–old Lindsey was found in Mississippi, 18 miles west of the bridge and five days later, on January 20, 2–year–ll–month–old Hannah was located floating in the Gulf of Mexico, south of Venice, Louisiana, 144 miles west of the bridge.

“The cause of death for Ryan, Danny and Lindsey was blunt force trauma and asphyxia due to drowning. The cause of death for Hanna was drowning.

“....

“The most convincing evidence of Luong's guilt was his confession to throwing his children off the Dauphin Island Bridge, which was corroborated by [Luong] pointing out the location of the murders, and by witnesses who saw either him or children matching the description of his children on the bridge at the time he said he threw them into the water. This was further corroborated by the locations where the bodies of the children were later found.”

Analysis

I.

First, the State contends that the decision of the Court of Criminal Appeals that “Luong's case represents one of those rare instances where prejudice must be presumed,” 199 So.3d at 122, conflicts with Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), and Ex parte Fowler, 574 So.2d 745 (Ala.1990). The State maintains that the holdings of the Court of Criminal Appeals that the evidence indicated presumed prejudice against Luong and that his case should have been transferred to another venue ignores two important principles: the principle that criminal trials should be held in the communities where the crimes occurred and the principle that the law vests the trial court with discretion in determining how to ensure the impartiality of a jury....