                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2005-DR-00523-SCT

THONG LE

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                           08/23/2002
TRIAL JUDGE:                                HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED:                  JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    MISSISSIPPI OFFICE OF CAPITAL POST
                                            CONVICTION COUNSEL
                                            BY: ROBERT M. RYAN
                                                  LOUWLYNN VANZETTA WILLIAMS
ATTORNEYS FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                            BY: PAT MCNAMARA
                                                  MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                          KEITH MILLER
NATURE OF THE CASE:                         CIVIL - DEATH PENALTY - POST
                                            CONVICTION RELIEF
DISPOSITION:                                DENIED - 08/16/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    Thong Le and Ngan Tran were indicted for capital murder in the beating and

strangulation deaths of Minh Heiu Thi Huynh and her two daughters, Thuy, age eleven, and

Than, age fifteen. Ngan Tran, who was believed to have committed the actual killings, took

his own life while in custody. Le went to trial and was sentenced to death by lethal injection.
                        FACTS AND PROCEDURAL HISTORY

¶2.    At Le’s trial the State presented evidence which showed that the pair had gone to

Huynh’s home for the purpose of robbing her. The two were admitted into the apartment by

the children, who were home alone. When Huynh returned, she and the children were bound,

savagely beaten and strangled to death. Le and Tran spent hours attempting to sanitize the

scene with water and bleach. The two left with $1,300 cash and a book bag containing some

household items. Following their arrest, Tran hanged himself in his cell. Le went to trial

where he was convicted of capital murder committed during the course of a robbery. He was

sentenced to death by lethal injection. On direct appeal, Le’s conviction and sentence were

affirmed by this Court. Le v. State, 913 So. 2d 913 (Miss. 2005). Le now files a motion for

post-conviction relief arguing ten issues, which are each discussed below.

                                         ANALYSIS

              I.      Ineffective Assistance of Counsel.

¶3.    Ineffective assistance of counsel was raised as an issue on direct appeal (Le, 913 So.

2d at 950-55) and should be procedurally barred from consideration on collateral appeal.

Miss. Code Ann. § 99-39-21(Rev. 2000). Le now raises other instances of alleged ineffective

assistance and argues that trial counsel rendered ineffective assistance in failing to pursue a

change of venue, failing to strike a particular juror, and in failing to retain an expert in the

field of false confessions. Despite the procedural bar, this discussion follows:

       The benchmark for judging any claim of ineffectiveness [of counsel] must be
       whether counsel's conduct so undermined the proper functioning of the
       adversarial process that the trial cannot be relied on as having produced a just
       result.



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Strickland v. Washington, 466 U.S. 668, 686 (1984) 104 S.Ct. 2052, 8 L. Ed. 674.

¶4.    One who claims ineffective assistance of counsel must demonstrate that counsel's

performance was deficient and that the deficiency prejudiced the defense of the case. Id. at

687. "Unless a defendant makes both showings, it cannot be said that the conviction or death

sentence resulted from a breakdown in the adversary process that renders the result

unreliable." Stringer v. State, 454 So. 2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S.

at 687).

¶5.    Defense counsel is presumed competent. Washington v. State, 620 So. 2d 966 (Miss.

1993). But even where professional error is shown, the reviewing court must determine

whether there is "a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Mohr v. State, 584 So. 2d 426, 430

(Miss. 1991). In death penalty appeals, the most important inquiry is "whether there is a

reasonable probability that, absent the errors, the sentencer--including an appellate court, to

the extent it independently re-weighs the evidence--would have concluded that the balance

of the aggravating and mitigating circumstances did not warrant death." Strickland v.

Washington, 466 U.S. at 695.

¶6.    Le first claims that trial counsel erred in failing to seek a change of venue because of

extensive pre-trial publicity in local newspapers. The fact that at least two jurors had simply

“heard a little bit on the news”seems woefully inadequate when claiming that the jury venire

was not impartial. A review of the transcript of the voir dire process indicates that most of

the venire was largely unaware of this particular case and those members who were unaware

of it assured counsel and the trial court that they could be impartial. This Court has held that

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defense counsel is under no duty to attempt to transfer venue; therefore, the decision not to

seek a change of venue falls within the realm of trial strategy. Bishop v. State, 882 So. 2d

135, 142 (Miss. 2004). This assertion is without merit.

¶7.    Le next claims that trial counsel’s performance was deficient in failing to strike juror

number eleven from the panel. When asked about prior knowledge of the case, this particular

juror volunteered that shortly after being summoned for jury duty, the name “T. Le” had

appeared on her telephone’s caller ID and that she reported the matter to the District

Attorney’s office.    The trial court and counsel examined this juror at the bench and

discovered that she knew little else of the case other than that it had occurred. The juror

assured the trial court that the incident would not influence her decision making if she were

selected to serve on the jury. This assertion is without merit.

¶8.    Finally, Le argues that his confession was “inaccurate, misleading, false in material

particulars, and totally unreliable” such that trial counsel must be faulted for failing to retain

an expert in the field of false confessions. Petitioner further characterizes this omission as

a failure to investigate. Although couched as a claim of ineffective assistance of counsel, this

Court thoroughly considered the matter on direct appeal as part of Le’s challenge regarding

his pretrial motion to suppress the confession. Le, 913 So. 2d at 930-34.

¶9.    There was testimony at the suppression hearing that Le had been given his Miranda

warnings on two separate occasions and that Le was a nineteen-year-old born in this country

whose native language was English. This Court considered the entire record (including the

hearing on the pre-trial motion to suppress) and still found no error in the trial court’s




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decision to admit the statement. Id. at 934. Petitioner makes no convincing showing that he

was incompetent to give the statement or that he was psychologically coerced to confess.

¶10.   Instead, much of petitioner’s argument on this issue goes to whether Le was the type

of individual to have taken an active role in the commission of the killings. Petitioner

submits the affidavit of a clinical psychologist who opines that Le is not by nature a violent

person. Le’s legal culpability as an accomplice is not reduced by this sort of argument. His

willing participation in the successive killings of three defenseless people makes him every

bit as responsible as the ring leader. It therefore cannot be said that the testimony of an

expert would have changed the outcome at trial. This assertion is without merit.

              II.    Weight of the Evidence as to Intent and a Disproportionate
                     Sentence.

¶11.   Le next argues that, given his minimal role in the crime, the jury’s finding concerning

his intent to kill was not supported by the evidence, and the death sentence was

disproportionate. This issue was thoroughly considered on direct appeal and found to be

without merit. Le, 913 So. 2d at 943-47. Specifically, this Court held that the jury had found

more than just contemplation by Le that lethal force would be employed with regard to all

three murders. Id. at 945. The Court found that “Le’s argument that he was guilty of nothing

more than contemplation of lethal force is without merit.” Id. In doing so, this Court noted

Le’s admission that he knew Tran had a gun and that he assisted Tran in binding the victims

and even choked Huynh and helped to sanitize the crime scene. Id. at 946. The Court further

held that imposition of the death penalty under these circumstances was not disproportionate

to those death sentences imposed in other cases. Id. at 947. The issue was found to be



                                              5
wholly without merit and reconsideration on collateral appeal is procedurally barred by

statute. Miss. Code Ann. § 99-39-21(2) and (3)(Rev. 2000).

              III.    Failure to Suppress Confession as Fundamental Reversible
                      Error.

¶12.   This is the same argument put forth as an alleged instance of ineffective assistance of

counsel. Le now argues that he was psychologically incompetent to give a reliable statement

to law enforcement authorities and that this condition was not known at the time of trial.

This issue is essentially a restatement of the ineffective assistance claim presented earlier

under the guise of failure to retain a false confession expert. As mentioned previously, the

admissibility of the statement was discussed thoroughly on direct appeal. Le, 913 So. 2d at

930-34. Reconsideration on collateral appeal is now procedurally barred pursuant to Miss.

Code Ann.§ 99-39-21(2) and (3)(Rev. 2000).

              IV.     Inadmissible Statement of Deceased Co-defendant.

¶13.   This issue was considered in great detail on direct appeal and found to be without

merit. Le, 913 So. 2d at 940-43. Le argued that Tran’s custodial statement to police was

inadmissible hearsay because Tran was no longer available for cross-examination. Le further

argued that the statement fell within no exception to the hearsay rule. This Court found no

constitutional violation because the statement was offered only in rebuttal and was not used

against Le in the State’s case-in-chief. Id. at 942.

¶14.   Le called witnesses in his defense to testify concerning Tran’s statements and thereby

opened the proverbial door to rebuttal testimony. Tran’s statement was not introduced for the

primary purpose of proving Le’s guilt and was therefore not constitutionally impermissible.



                                               6
Having been considered on direct appeal, the issue is now procedurally barred from collateral

review. Miss. Code Ann. § 99-39-21(3)(Rev. 2000).

              V.      Use of Religious Beliefs to Coerce a Confession.

¶15.   This issue was thoroughly considered by this Court on direct appeal and found to be

without merit. Le, 913 So. 2d at 930-34. The issue centered on a discussion between Le and

Sergeant Joseph Nicholson, who asked Le if he believed that three souls had been taken that

night. Le, however, continued to maintain his innocence. Id. at 931. This Court noted that

Le had already confessed to his participation in the robbery and that the killings had taken

place during the course of the robbery. Id. at 933. Having been considered on direct appeal,

the matter is now procedurally barred from collateral review pursuant to Mississippi Code

Annotated Section 99-39-21(3)(Rev. 2000).

              VI.     Use of Peremptory Challenges Against African-American
                      Veniremen.

¶16.   This issue also was thoroughly discussed on direct appeal and found to be without

merit. Le, 913 So. 2d at 925-930. Specifically, the Court held, “we are unable to find the trial

court erred in accepting the race-neutral reasons offered by the State for the strikes of the

seven African-American jurors.” Id. at 930. Having been considered on direct appeal, this

issue is now procedurally barred from collateral review pursuant to Mississippi Code

Annotated Section 99-39-21(3)(Rev. 2000).

              VII.    Failure to Charge Aggravating Circumstances in the
                      Indictment.

¶17.   Le argues that his death sentence must be vacated because the aggravating

circumstances which invoked the death penalty were not charged in the indictment. This

                                               7
issue could have been raised on direct appeal and is now procedurally barred from

consideration. Miss. Code Ann. § 99-39-21(Rev. 2000). Despite the procedural bar, the

Court notes the following.

¶18.   Counsel for Le cites (as is done in almost every capital PCR) the rulings of the United

States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.

2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)

in which that Court held unconstitutional a sentencing scheme where a judge rather than a

jury determined whether there were aggravating circumstances present to warrant imposition

of enhanced punishment.

¶19.   Apprendi was charged with firing shots into the home of an African-American family

in New Jersey. He pled guilty to possession of a firearm for unlawful purposes and, after the

judge accepted the guilty plea, the prosecutor moved for an enhanced sentence on the basis

that it was a hate crime. Apprendi argued that he was entitled to have the finding on

enhancement decided by a jury. The U.S. Supreme Court held, "Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi,

530 U.S. at 490.

¶20.   In 2002, the U.S. Supreme Court decided Ring v. Arizona. 536 U.S. 584 Ring

addressed the issue of whether the Arizona capital sentencing process as upheld in Walton

v. Arizona, 497 U.S. 639 (1990) with a jury deciding guilt and a judge making findings on

aggravating factors, could survive the Apprendi decision. The Supreme Court decided it

could not. Id.

                                              8
       [W]e overrule Walton to the extent that it allows a sentencing judge, sitting
       without a jury, to find an aggravating circumstance necessary for imposition
       of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because
       Arizona's enumerated aggravating factors operate as "the functional equivalent
       of an element of a greater offense," Apprendi, 530 U.S., at 494, n. 19, 120
       S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609. The Court specifically noted, "Ring's claim is tightly delineated: He

contends only that the Sixth Amendment required jury findings on the aggravating

circumstances asserted against him."      Id. at 597, n.4. Ring did not contend that his

indictment was constitutionally defective as does Le.

¶21.   As a practical matter, Rule 7.06 of the Uniform Circuit and County Court Rules

provides that an indictment shall be “a plain, concise and definite written statement of the

essential facts constituting the offense charged and shall fully notify the defendant of the

nature and cause of the accusation.” A defendant is not entitled to formal notice of the

aggravating circumstances to be employed by the prosecution. An indictment for capital

murder puts a defendant on sufficient notice that the statutory aggravating factors will be

used against him. Smith v. State, 729 So. 2d 1191, 1224 (Miss. 1998) (relying on Williams

v. State, 445 So. 2d 798 (Miss. 1984)).

              We believe that the fact that our capital murder statute lists and defines
       to some degree the possible aggravating circumstances surely refutes the
       appellant's contention that he had inadequate notice. Anytime an individual
       is charged with murder, he is put on notice that the death penalty may result.
       And, our death penalty statute clearly states the only aggravating
       circumstances which may be relied upon by the prosecution in seeking the
       ultimate punishment.

Williams, 445 So. 2d at 804-05. This Court has consistently found this issue (failure to

charge the aggravating factors in the indictment) to be without merit. Havard v. State, 928



                                              9
So. 2d 771(Miss. 2006); Berry v. State, 882 So. 2d 157, 172 (Miss. 2004). As raised by Le,

the issue continues to be without merit.

              VIII. Lethal Injection Violates the Eighth Amendment.

¶22.   This issue was capable of being raised on direct appeal and is procedurally barred

from further consideration on collateral appeal. Miss. Code Ann. § 99-39-21(1)(Rev. 2000).

In Jordan v. State, the petitioner failed to raise lethal injection as an Eighth Amendment

claim and this Court employed the procedural bar.

       Jordan failed to make any claim relating to the method of execution at trial or
       on direct appeal. Therefore, this claim is barred for consideration for the first
       time on application for leave to seek post-conviction relief. See Miss. Code
       Ann. § 99-39-21(1); Bishop v. State, 882 So. 2d 135, 149 (Miss. 2004);
       Grayson v. State, 879 So. 2d 1008, 1020 (Miss. 2004).

918 So. 2d 636, 661. Despite the procedural bar, this Court looked to merits of the claim and

found none based on Jordan’s failure to submit any sworn proof as required by Mississippi

Code Annotated Section 99-39-9(1)(e)(Rev. 2000). Id. at 662. Likewise, counsel for Le

fails to submit any affidavit which legitimately questions the lethal injection protocol

employed by the Mississippi Department of Corrections. This issue is without merit.

              IX.    Cumulative Error.

¶23.   Le argues generally that the alleged preceding errors, taken as a whole, deprived him

of a fair trial. The standard of review for an appeal from a capital murder conviction and

death sentence is that it must be subjected to "heightened scrutiny." Balfour v. State, 598

So. 2d 731, 739 (Miss. 1992) (citing Smith v. State, 499 So. 2d 750, 756 (Miss. 1986); West

v. State, 485 So. 2d 681, 685 (Miss. 1985)). All doubts are to be resolved in favor of the

accused because "what may be harmless error in a case with less at stake becomes reversible

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error when the penalty is death." Id. (quoting Irving v. State, 361 So. 2d 1360, 1363 (Miss.

1978)). See also Fisher v. State, 481 So. 2d 203, 211 (Miss. 1985).

¶24.   With regard to the issue of alleged cumulative error, the Court previously has taken

note of those capital cases in which the opinions of this Court articulated differing analyses.

For example, in McFee v. State, 511 So. 2d 130, 136 (Miss. 1987) (rape conviction and life

sentence affirmed), this Court individually addressed each assignment of error and found

none (harmless or otherwise) by the trial court. Based on that finding, the Court stated:

       In sum, McFee contends that the cumulative effect of the alleged errors was
       sufficient to prejudice the jury, essentially allowing the State to convict him
       not of rape, but of murder. Yet, as discussed, neither the introduction of the
       photographs nor the prosecutor's comments constituted reversible error. As
       there was no reversible error in any part, so there is no reversible error to the
       whole.

Id. However, in Jenkins v. State, 607 So. 2d 1171, 1183-84 (Miss. 1992) (capital murder

conviction and death sentence reversed and remanded), in which this Court found both

harmless error and reversible error by the trial court, the Court stated:

       If reversal were not mandated by the State's discovery violations, we would
       reverse this matter based upon the accumulated errors of the prosecution.
       This Court has often ruled that errors in the lower court that do not require
       reversal standing alone may nonetheless taken cumulatively require reversal.

Id. (citing Griffin v. State, 557 So. 2d 542, 552-53 (Miss. 1990)). In Manning v. State, 726

So. 2d 1152, 1198 (Miss. 1998), overruled on other grounds by Weatherspoon v. State; 732

So. 2d 158 (Miss. 1999) (capital murder convictions and death sentence affirmed), after

addressing twenty-one assignments of error with sub-parts, and after making numerous

findings of no "reversible error," the Court stated:




                                              11
       This Court has held that individual errors, not reversible in themselves, may
       combine with other errors to make up reversible error. Hansen v. State, 592
       So. 2d 114, 142 (Miss. 1991); Griffin v. State, 557 So. 2d 542, 553 (Miss.
       1990). The question under these and other cases is whether the cumulative
       effect of all errors committed during the trial deprived the defendant of a
       fundamentally fair and impartial trial. Where there is "no reversible error in
       any part, . . . there is no reversible error to the whole." McFee v. State, 511
       So. 2d 130, 136 (Miss. 1987).

Manning, 726 So. 2d at 1198.

¶25.   To reconcile these different views, the Byrom court held:

       What we wish to clarify here today is that upon appellate review of cases in
       which we find harmless error or any error which is not specifically found to be
       reversible in and of itself, we shall have the discretion to determine, on a case-
       by-case basis, as to whether such error or errors, although not reversible when
       standing alone, may when considered cumulatively require reversal because
       of the resulting cumulative prejudicial effect. That having been said, for the
       reasons herein stated, we find that errors as may appear in the record before us
       in today's case, are individually harmless beyond a reasonable doubt, and when
       taken cumulatively, the effect of all errors committed during the trial did not
       deprive Michelle Byrom of a fundamentally fair and impartial trial. We thus
       affirm Byrom's conviction and sentence.

Byrom, 863 So. 2d at 846-47. In the present case, the record supports no finding of error,

harmless or otherwise, upon the part of the trial court or on the part of trial counsel.

Consequently, there can be no prejudicial cumulative effect and no adverse impact upon Le’s

constitutional right to fair trial.

               X.      Double Prejudice Through Consideration of the
                       Armed Robbery Charge as well as Reference to
                       Pecuniary Gain.

¶26.   The same issue was presented to this Court in Brawner v. State and found to be

without merit. Brawner, 947 So. 2d 254 (Miss. 2006). The Court there held:

             We have consistently upheld the use of the underlying felony as an
       aggravating factor during sentencing. Goodin v. State, 787 So. 2d 639, 654

                                              12
       (Miss. 2001) (citing Walker v. State, 671 So. 2d 581, 612 (Miss. 1995)). The
       argument is the familiar "stacking" argument. It contends that it is
       unconstitutional for the State to elevate murder to capital murder and then,
       using the same factor, elevate the sentence to death. As pointed out in Lockett
       v. State, 517 So. 2d 1317, 1337 (Miss. 1987), this Court has consistently
       rejected this argument. Goodin, 787 So. 2d at 654; Davis v. State, 684 So. 2d
       643, 664 (Miss. 1996). However, this Court has found impermissible doubling
       where the trial court in a sentencing proceeding submits as separate
       aggravating factors both the fact that the capital murder was committed during
       the commission of a robbery and for pecuniary gain. Goodin, 787 So. 2d at
       654. In that case the two aggravating factors essentially comprise one
       circumstance. Id. (citing Willie v. State, 585 So. 2d 660 (Miss. 1991)).

               The Florida cases cited by Brawner do not stand for the proposition he
       asserts. Rather, they stand for the proposition that the use of two aggravating
       factors which essentially comprise one circumstance results in impermissible
       doubling. Barnhill, 834 So. 2d at 851; Griffin, 820 So. 2d at 914-15;
       Robertson, 611 So. 2d at 1233. This is identical to our law as announced in
       Goodin and Willie. Therefore, this assertion is without merit.

Brawner, 947 So. 2d at 265. The same argument is put forth by Le and must fail for the

same reasons. The issue is without merit.

¶27.   LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.

      WALLER, P.J., EASLEY, CARLSON, GRAVES, RANDOLPH AND LAMAR,
JJ., CONCUR. SMITH, C.J., AND DIAZ, P.J., NOT PARTICIPATING.




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