199 So. 3d 173
Ala. Crim. App.2016Background
- Lam Luong was convicted (2009) of five counts of capital murder for throwing his four children (ages 4 months–3 years) from the Dauphin Island Bridge; he confessed and led police to the location. The jury unanimously recommended death and the trial court imposed it.
- This Court previously reversed on venue/pretrial-publicity and other grounds (Luong I); the Alabama Supreme Court reversed that reversal and remanded (Luong II). On remand the Court reviews additional issues Luong raised but that were not previously addressed.
- The opinion applies the heightened plain-error standard required in death-penalty appeals (Rule 45A, Ala. R.App. P.). Many issues were not preserved at trial, so review is for plain error.
- The court addresses claims including juror misconduct/voir dire adequacy, denial of sequestration, Batson challenges, competency proceedings, identification admissibility, evidentiary rulings (photos, video), prosecutor misconduct, jury instructions (guilt and penalty phases), sentencing findings, and mitigation weighting.
- The court affirms conviction and death sentence, finding no plain error that affected Luong’s substantial rights and independently weighing aggravating and mitigating circumstances.
Issues
| Issue | Plaintiff's Argument (Luong) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Juror misconduct during voir dire (panel chatter) | Court should have investigated/polled venire and granted mistrial because panel was "tainted." | Trial judge questioned the juror who reported overheard comments; voir dire was sufficient and broader polling would be futile. | No abuse of discretion; voir dire adequate; no relief. |
| Denial of sequestration | Sequestration was granted then revoked; Luong argued denial prejudiced impartiality due to publicity. | Sequestration is discretionary; court repeatedly admonished jurors and had alternates; Rule/Statute favors discretion. | Denial within trial court’s discretion; no relief. |
| Batson/J.E.B. (peremptory strikes by race/gender) | State used disproportionate strikes against blacks and women, showing purposeful discrimination. | Numbers alone insufficient; record shows nonracial, non-gender neutral reasons (family criminal history, death-penalty views, etc.). | No prima facie showing in record; plain-error not established. |
| Competency hearing / sua sponte jury for competency | Trial court should have empaneled a jury sua sponte to decide competency (Pate). | Two court-appointed experts and defense expert all found competency; judge observed defendant and deemed competent. | No reasonable doubt of competency; no plain error in declining sua sponte jury. |
| In‑court eyewitness identifications (pretrial exposure in media) | Pretrial exposure made in-court IDs unreliable and suggestive. | No state action produced the pretrial exposure; reliability is for cross-examination; Perry v. New Hampshire controls. | No due-process bar to admission absent state action; Neil/Biggers factors satisfied; any error harmless. |
| Admission of autopsy photos & recovery video | Photographs and video were gruesome, irrelevant, and unduly prejudicial. | Photos/video were relevant to cause and manner of death and corroborated testimony; admission discretionary. | Within trial court’s discretion; admissible; no plain error. |
| Jury instructions — intoxication, reasonable doubt, circumstantial evidence, intent | Instructions misstated law (e.g., imposed insanity-level standard for voluntary intoxication; limited definition of reasonable doubt; incomplete circumstantial-evidence charge; intent instruction not specific). | Instructions tracked Alabama law and pattern charges; intoxication standard reflects Alabama precedent requiring extreme intoxication to negate specific intent; reasonable-doubt instruction was pattern language; intent and circumstantial-evidence instructions proper. | Instructions correct under Alabama law and not plain error. |
| Prosecutorial misconduct in closing ("evil", defense is "excuse") | Prosecutor improperly expressed opinion, impugned defense and misstated evidence. | Argument consisted of permissible inferences and advocacy; not a statement of personal belief about admissible facts. | Comments not reversible error and did not deprive defendant of due process. |
| Sentencing order — factual inaccuracies, mitigation weighting | Sentencing order contained unsupported factual assertions and failed to credit statutory and nonstatutory mitigation (mental disturbance, drug abuse, remorse, childhood abuse). | Findings are supported by record or are reasonable inferences; court considered mitigation but assigned weight; some minor errors were invited or harmless. | No plain error warranting remand; aggravators (heinous/cruel; multiple deaths in one scheme) outweigh mitigation; death sentence affirmed. |
Key Cases Cited
- Batson v. Kentucky, 476 U.S. 79 (Equal Protection prohibits race-based peremptory strikes)
- Pate v. Robinson, 383 U.S. 375 (trial court must hold competency hearing if reasonable doubt exists)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (admission of eyewitness ID does not require pretrial reliability check absent state action)
- Cage v. Louisiana, 498 U.S. 39 (reasonable-doubt instruction must not lower burden of proof)
- Irvin v. Dowd, 366 U.S. 717 (juror impartiality standard — exposure does not automatically disqualify jurors)
- Lockett v. Ohio, 438 U.S. 586 (sentencer must consider any relevant mitigating evidence)
- McCleskey v. Kemp, 481 U.S. 279 (statistical disparities in capital sentencing do not alone establish constitutional discrimination)
- Chapman v. California, 386 U.S. 18 (constitutional error may be harmless beyond a reasonable doubt)