Hung Thanh Le v. State

able, arbitrary subsequent per- action a second or conviction of a unconscionable and proper taken without consideration son convicted of two or more crimes must pertaining facts and law to the matter sub- commence the termination of the on sentence conviction, judg- mitted.” on the first unless a later expressly provides ment and sentence First, proof Appellant presented has no concurrently run the sentence shall with sen- nor the record in this case show that does conviction). Appellant tence on the first has alleged in fact “unwritten law” is present failed to this Court evidence to show County. in practice established Tulsa See something his sentences were the result of (Okl.Cr.1978), 475, Cavaness v. 581 P.2d operation other than the of law which man- denied, 1117, rt. 439 U.S. 99 S.Ct. ce consecutively. dates be I sentences served (1979). Second, 1024, while 59 L.Ed.2d nothing find in record which would war- this judge trial no factors used in mak offers sentence, rant consideration of a concurrent ing impose sen his decision to consecutive based on the facts of this case. tences, otherwise, proven pre will unless we compliance in with the sume his decision was LANE, Judge, concur in results: passion prejudice. Ac law and without cordingly, proposition is denied. I would find that the information was suffi requiring Finding no error modification or cient, therefore, I would concur in re reversal, judgments we AFFIRM the my regard sults in I. See sentences of the trial court. special vote in Parker v. — 990(Okl.Cr.1996) U.S.-, cert. denied CHAPEL, P.J., STRUBHAR, V.P.J., 777, 136 117 S.Ct. L.Ed.2d 721 Since concur. sufficient, the Information is Parker does not apply. LANE, JJ., in concur

LUMPKIN

results.

LUMPKIN, Judge, concur in results: by

I concur in the results reached agree that under the

Court this ease case,

facts of this lewd is a lesser molestation However, rape.

included offense of whether supports a includ-

or not the evidence lesser presented is based on the facts ed offense LE, Hung Appellant, Thanh result, join I cannot in the each case. As “any carte blanche statement case years where the victim is under sixteen Oklahoma, Appellee. STATE age” molestation is a lesser included lewd No. F-95-1303. rape. offense argument Appeals

In his that he should have been of Criminal of Oklahoma. Court sentence, a concurrent considered for 2,Oct. simple Appellant disregards the fact that law, operation sentences are to be served Rehearing Denied Nov. consecutively. See Beck v. (Okl.Cr.1970) (When judgment imposed in one or more cases

and sentence separate

on the same date for offenses and judgment specify does not that sentences concurrently, run sentences must be

shall consecutively); parte Griffen, Ex

served 597, 599, 132, 135, 216 cert.

Okl.Cr.

denied, 95 L.Ed. 340 U.S. (A (1950) penitentiary sentence Box, Box, Stephen City,

Irven Oklahoma for Defendant at trial. Luker, Chief, Deputy H.

William Division Capital Appeals, Indigent Direct Oklahoma Norman, System, Appellant for on Defense appeal. Attorney, Macy, H. District Ste-

Robert Deutsch, Attorney, phen District Assistant City, for the trial. Oklahoma State Edmondson, Attorney W.A. Drew General Oklahoma, Assistant At- Robert Whittaker General, City, Appellee torney Oklahoma for appeal. up Nguyen and crept Le behind television. OPINION the head with a bar hit him on the back of CHAPEL, Judge: Presiding Nguyen’s weightlifting set. The blows fi-om by jury and was tried Hung Thanh Le bled, Ngu- caused several contusions and I, in the Malice Murder convicted of Count Thuy still in yen remained conscious. O.S.1991, Degree in violation of First Nguyen called her name and said bed when II, 701.7(A); Robbery § with a Dan- Count him; killing rushed into the Le was she O.S.1991, Weapon in violation of 21 gerous dropped Nguyen room. Le the bar and 801; III, Battery § with Count Assault Thuy Nguyen picked up. it As called 911 O.S.Supp. of 21 Intent to Kill violation threatened Le with the hit his fore- bar.and 652; TV, Larceny § of a Motor Count Thuy dropped arm. the bar when Nguyen O.S.1991, 1720; § Vehicle in violation of n said she had called 911. Le went to the V, Larceny in violation of Grand Count got kitchen and a butcher knife and a meat O.S.1991, 1704, § the District Court returned, Nguyen cleaver. He told not to County, Case No. CF-92-6838. Oklahoma it, Nguyen make him do backed across the (1) knowingly Le created found room, him and stabbed with the butcher (2) death, great the murder risk Thuy begged stop, him to knife. When heinous, atrocious, or especially cruel. and said she should not have attacked her recommendation, jury’s accordance with During the attack Le told the called Nancy L. sentenced the Honorable Coats $20,000 Nguyens paid had to kill been (Count I), years ninety-nine impris- to death if Thuy stop he would she (Count them and told II), twenty years imprison- onment $20,000. Nguyen him a check for fell (Counts wrote IV), years ment III and and five table, began chop- (Count V). the coffee and Le across appeals from imprisonment ping at and head the meat his back Judgments and and raises these Sentences Thuy ran out the back door. She cleaver. eighteen propositions of error.1 just saw an EMSA ambulance which had betrayed. friendship This case involves arrived, begged go the attendants young fled and Hai each Vietnam her The attend- inside and save husband. refugee camp in Thailand. men met in a Thuy wounds to her ants treated for.knife way Each made his to the United States waiting police, hands and head. While where, a machinist in Cleve- Le was off in saw Le leave the house and drive beauty shop in Nguyen owned a land while reached Nguyen’s car. When attendants City. July Le visited Oklahoma conscious, laying in Nguyen he still a was daughter Nguyen, Thuy, and their his wife them he large pool of blood. He told was early in Carolyn. stopped Le for a brief visit him, help and asked dying, asked them to 1992, by then arrived taxi around November Thuy. Nguyen went into arrest in the about 9, p.m. Monday, November 1992. He 9:30 on He had ambulance and died of blood loss. night. following day the beau- spent the The many been stabbed times. closed; Nguyens Le ty shop the loaned was shopping. On Wednes- and went $200 car, keys, Nguyen’s took ear and safe Le hair, day Nguyen cut Le’s then Le returned key. pond a farm deposit box He drove to house, packed up the empty where he to highway near where he washed and equipment and Nguyen’s and karaoke stereo Nguyen’s to changed clothes. He drove Nguyens it to The sus- shipped Cleveland. bank, key Nguyen’s open to where he used property did pected Le had stolen their but contents, He took the deposit his safe box. him. not confront $36,000 ring, including in cash and a diamond empty bag. Le left the 12, put them in an Carolyn went to and Thursday, November downtown, watching at the bank and took a taxi Nguyen the couch car sat on school. because, although Le had an On court allowed this occurred in November 1992. 1. The murder 18, 1993, hearing, interpreter plea trial court plea in the a blind October Le entered charges. Sentencing record did not show Le understood guilty was set for believed the all the to 28, Sep- plea). began changed consequences Trial of his Le December 27. On December continuances, any speedy waived trial tember 1995. Le attorneys. Le with- After several (the plea trial claims. drew his on October rights. to his He stayed English enough well waive shopping where he went and prelimi- interpreter present an notes was night. hearing, at nary hearing, least one motions apprehended day at the Le was the next King’s apparent to trial. He refers Dr. and stabbing Nguyen airport. He admitted but competent Le that would be recommendation him. Le insisted he had not intended to kill present pro- for court if a translator were money police in the told he knew about (see V). ceedings Proposition The State City deposit to Oklahoma safe box and came interpreter present no when Le only to rob him. Le admits he had intended at all.” er given, but warnings properly

Miranda were thorough videotape A of the not have been review argues his statement should leading ques- asked he could not understand shows that officers some admitted because 1186, State, (Okl.Cr.1994), Arizona, 436, U.S. 86 6. Mitchell v. 884 P.2d 1194 Miranda v. 384 S.Ct. 1602, denied, -, 95, (1966). rt. -U.S. 116 S.Ct. 16 L.Ed.2d 694 ce Burbine, (1995); 50 v. 475 133 L.Ed.2d Moran 412, 421, Burbine, 475 106 S.Ct. Moran v. U.S. 421, 106 at 1141. U.S. S.Ct. 1135, 1141, (1986). 89 L.Ed.2d 410 292, (Okl.Cr.1995), v. 7. LaFevers 168, 157, Connelly, v. 479 U.S. 4. Colorado U.S.-, denied, 820, S.Ct. rt. ce 522, 515, (1986). L.Ed.2d 473 Denno, (1996). 133 L.Ed.2d 763 Jackson v. 1774, (1964), (Okl.Cr.), U.S. 12 L.Ed.2d 908 S.Ct v. 5. Valdez - denied, -, right established a defendant’s to an in camera U.S. cert. hearing on the voluntariness of his confession. L.Ed.2d 341 (2) claim; comprehension gave yes-or-no answers. dant’s lack of as- tions and Le some However, questions open- on the record that he understood most of the were surances (3) his Miranda ended; warnings; “objec- comprehend meaning his Le had to their ability tively on his own verifiable to understand and and formulate answers based during interrogation.8 questions” answer knowledge of events. Le also volunteered Valdez on the facts. He beginning distinguishes At the of the Le several statements. a Miranda signed said he understood Le notes Le never read or interview Officer Cook nobody spoke English, and Le answered “Not waiver and asked whether he could fluent his Miranda rights really.” rights English signed read before he Officers read Le received three Miranda understood, and he waivers.9 and asked whether he Valdez one, only grunted inaudibly; warnings, Bemo while Le had so he ar- “Uh-huh” almost yes gues opportunity him or no and Le said there was no for clarifica- told to answer they by repetition. sup- is “Yes.” Officer Bemo testified would tion there they thought comprehension if lack interpreter port have used an for his claim of itself, he could not understand or communicate with the interview where was confused them, interpreter attorney. says but did not believe an was the role of an officers difficulty ability speak En- needed because Le had no answer- must have doubted questions, appeared glish they they of his said he ing their aware since understood was To- not fluent in English replied doing. and knew what he was and he “Not situation really.” tape, the end of the Cook and Bemo This misstates the evidence: actual- wards understood Le did ly anything speak if he wanted to tell them said asked Le Cook say, very replied English. he know what to fluent Le claims he did not else. didn’t confused, he understood his Miranda lawyer. say rights until he didn’t have a he no; say yes actually him lawyer asked if he wanted a he an- Bemo told he When “uh-huh,” respond response suggests for is it?” Le this did but the swered “What very points means he did not understand he difficult to hear. Le also to his statement Jackson-Denno light attorney testimony he testified had a to an because he did not where attorney through interpreter an unfamil- know what an would do. con- he was text, actually indicating country’s justice sys- appears it Le was he iar with this criminal tem, attorney right to point having no an since he did not “much” understand his saw silence, thought given After this ex- Bemo and Cook would had his statement. upside put turn him fish salt in his change officers told Le was dead. down and During signed interview Le two search nose if he did not talk to them. II). (see Proposition

waivers objections light Considering these taking totality of In Valdez this Court found knowing videotape, into account the surrounding interrogation, voluntary spoke the defendant circumstances waiver where especially given “objectively English simple phrases but under- Le’s verifia- broken signed ability to understand and answer” the questions officers’ and read and ble stood (1) ruling cor- forms. Valdez considered questions, the lack the trial court’s waiver nervous; appear unduly support the defen- rect. Le did not specific evidence to Valdez, urges lan- Court to Short illustrates a situation where 900 P.2d at 372. Le own. Short, waiver, may impair States v. 790 F.2d guage consider United but that difficulties (6th Cir.1986). There, pains officers took 468-69 present situation is not here. warnings explain defen- Miranda to a German German, dant, spoke officer some and one Marquez 9. Le relies on was inadmissible since defendant’s the statement English (Okl.Cr. 1995), where read the Mi officers very knowledge poor, no of was she had warning Marquez but did not ask whether randa mag- justice system, and a the American criminal rights, understood or waived his then neither understand found the defendant could not istrate Marquez read nor found out whether could read interpreter. Howev- proceedings without an signed rights it. This case waiver before he er, English skills were in Short the defendant’s clearly distinguishable, Le told Bemo is since Le's, apparently was able much worse than who rights his and (see and Cook he understood Miranda difficulty, apparent without and her to converse words, clearly explained the search waivers were own statement was not in her written II). clearly Proposition videotaped was his while Le’s statement argu- He relies on his questions have been admitted. the officers’ and understood both afternoon; I. that claim has Proposition in Since throughout the he volun- ments nuances failed, as proposition anx- must fail well. and seemed this teered several statements Bemo to understand that ious for and Cook the trial argues Proposition V that Le Ngu- attempt to kill he had not intended to a failing post-exam- to conduct court erred distinguish yen. attempts Le to between In competency hearing. March 1993 ination understanding ability words— to converse— application Le for determination of filed an understanding a of what and cultural hearing a the trial competency. At March 26 may suggests while he words mean. He that compe- found doubt of Le’s court sufficient telling the words him he have understood an Dr. tency to order examination. Edith silence, lawyer right a to or a to right had report apparently her King submitted significance he was unable to understand 22, 1993, Le April would be and indicated rights. He this claim on the of those bases rationally able to assist in his own defense that he unfamiliar with our throughout only present if a translator was that, Vietnam, justice system criminal legal Dr. proceedings. of the course they cooper- risked torture if did not citizens record, and this report is not in the King’s police. argues Le Bemo and Cook ate with only subsequent appears in Le’s information have made some effort to ensure that should appointment interpreter. motion meaning of the Miranda he understood the competen- is no There other reference warnings as as the words which well cy post-ex- no proceedings and indication a they officers must expressed. were Police hearing Le competency amination was held. Where, separately. each evaluate situation statutory argues competency this violates the here, objectively appears to as a defendant post-examina- proceedings, require a which questions, is able commu- understand the hearing is hearing.10 tion Le claims this freely ap- English, gives nicate in what mandatory. waiver, pears this Court will not to be valid proceedings governing Under Oklahoma’s require police to ask cultural differ- about cases, competency in criminal Section err in admit- ences. The trial court did not 1175.4(A) post-examination compe states confession, ting videotaped and this tency hearing follows a medical evaluation proposition is denied. competency. v. State11 determine Scott 1175.4(A) argues § trial post-exami II this Court held the required fruits of suppressed hearing have competency court should nation belongings requests his be whether or not defendant the consent searches product hearing. recently were the have re alleged cause the consents As 1994 we interrogation. holding illegal peated an Towards the end this rule when that certain interrogation signed search waivers circumstances result in waiver mandatory hearing.12 to search his brief The State allowing Bemo and Cook otherwise Scott, money that, ring) and (containing the not contest Le’s claim under case does case, bags. hearing whether Le could Cook did ask should have been held in painstakingly merely ex English, read and the hear read Le waived signed. ing by pleading guilty. Le before Le plained each waiver to did not times told he have Several Cook This continued reliance on Scott is Each time to these searches. to consent O.S.1981, interpreted 22 inexplicable. Scott explanation Cook’s he understood indicated 1175.4(A), § which stated: affirmatively officers did not told doctor, bags. After the doctors technicians mind Le claims if searched required have made determination from these searches should the evidence Castro, 1175.4(A). plea). interpreted apre-1991 ver- § which O.S. statute, cited sion of the several cases which (Okl.Cr.1986). 11. 8-9 hearing relied on Scott rule that mandatory. pre- interpreted All those cases also (Okl.Cr.1994) P.2d 433 Castro 1991 versions. (defendant guilty hearing by entering waived act, she would assess hearing on the cumstances under which 3 of this a Section replied It the death and she “No. competency person penalty, of the shall be held. objected any long.” Le and asked takes too held, unreasonably, that the final Scott not pres- questioning be done outside the further held”, phrase be combined with other “shall jurors, other but the State moved to ence of Act, specific directions in the showed her, saying inexplicably that Le could excuse hearing Legislature’s intent that a should be juror capital a in a case. Le not rehabilitate held in each case whether the defendant yet noted had not been asked all Secondi requested Legislature The evi- it or not. death-qualifying questions but did not want statute, dently disagreed. The current jurors philosophy to hear Secondi’s other tried, effect when Le was reads: was). (whatever pointed it The trial court doctor, or technicians After the doctors did whether could assess out she ask Secondi required in have made the determination circumstances, penalty any the death under title, hearing 1175.3of this a Section objected admitted would and Le but Secondi person be held competency of the shall say “key mandating probably words” she only upon application defendant questioned if were further. be excused she setting a upon the state or the formal inability jurors excused for Two other were hearing by competency [Em- the court. penalty; the death the trial court to consider phasis added.]13 significantly more or different did not ask Scott, clause, clearly The last added after jurors questions of those but their state- Legislature’s indicates the intent that a hear- straightforward ments were declarations of 1175.4(A) mandatory. § ing under is not inability impose capital punishment. was an accurate statement of While Scott existed, changed. law as it then the law has juror may A not be excused post-examination competency hearing is A prevent or cause unless her views would O.S.1991, mandatory under substantially impair performance of her 1175.4(A). § with her instructions duties accordance correctly argues and oath.14 Le any party in the ease Neither Le nor other questioning which did Court has criticized competen- requested post-examination ever a ability go juror’s impose the death to a 1175.4(A). § cy hearing under The statute alternatives, legal penalty of three as one require mandatory hearing, and does not a precisely that the trial court here asked failing not err in to con- the trial court did unequivocal statements question. Secondi’s proposition hearing. This is denied. duct in and would not that she did not believe Proposition Le claims the trial court VI any penalty under circum impose the death impartial jury right to a fair and violated his the trial court to determine stances allowed juror by removing prospective for cause prevent or substan her views would whether established she could not follow before it was tially impair performance of her duties. penalty along the death the law and consider excusing not err in Secon- The trial court did degree punishments other for first with the proposition cause and this denied. di for was removed for murder. Juror Secondi he was de- objection XVI Le’s after she indicated cause over assessing punish- jury composed of a fair cross section might problem nied she have community persons over the in the death of the because ment because “I don’t believe if, systematically exempted age seventy were after con- penalty.” The trial court asked jury panel. from Le claims Oklahoma’s finding sidering all the evidence excusing persons over 70 from all three statute guilty, would not consider Secondi by a deprived jury composed him of a replied service equally, and she “Yes.” punishments community.15 if eir- fair cross section trial court asked there were no O.S.1991, O.S.1991, 1175.4(A). Supreme § Court de 28. The § 15. 38 13. 22 jury rep were entitled to termined defendants cross section of the commu resentative of a fair nity Witt, 412, 423, Wainwright U.S. Missouri, 439 U.S. in Duren v. 844, 852, (1985). 83 L.Ed.2d 58 L.Ed.2d 579 546 provocation, in rejected Nguyen adequate with consistently has killed

admits this Court design to effect argument,16 passion, heat of without the and offers no reason to re- a proposition these This is consider decisions. death.

denied. support this theo

Evidence does not statement, in videotaped Le on ry. relies his RELATING TO GUILT ISSUES only Ngu to knock he wanted which said OR INNOCENCE picked up yen Nguyen the bar and out but Le III that claims hjm forearm, causing him to fear hit on the instruct, by refusing to the trial court erred Thuy that for his life. testified jury degree manslaughter a the on first and Le. Le picked up the bar threatened charge the of first lesser included offense to subsequent attack as mutual describes. requested degree murder. Le an instruction suggests Nguyen became combat. He that heat-of-passion manslaughter in the first on striking aggressor threatening or him degree. specifically The trial court found suggests he left Le when with bar. provocation there no evidence of trying further room he was to avoid combat. case, request. In a murder denied the ignores facts This characterization that every trial court instruct must room, with a Le left armed himself supported included homicide offense lesser cleaver, and knife a meat re butcher a by the Whether to instruct on evidence.17 Nguyen, attack who did not attack turned to a matter of law.18 lesser included offense is began again or defend himself after manslaughter requires evi Heat-of-passion stabbing “aggression”- in Nguyen’s him. that a defendant committed homicide dence actually threatening Le with the an bar death, design in a a to effect heat without attempt from to defend himself Le’s initial byor passion, in a cruel and unusual manner adequate provocation is for attack. This dangerous weapon.19 The ele means of heat-of-passion manslaughter. Le left the 1) passion adequate are ments of heat of weapons, which room obtain the murder 2) passion such as provocation; or emotion his This is not an at he used on return. 3) fear, terror, resentment; rage anger, tempt to from withdraw combat. passion the homicide occurred while still of immi- opportunity suggests his unreasonable fear existed and before reasonable 4) cool; mitigated bodily harm the murder to passion causal nent for “imperfect provocation, manslaughter as an self defense.” connection exists between pas- suggests finding Le relies on cases that heat passion and homicide.20 The State anger can which improper is wherever sion result from fear the instruction clearly precludes thought, but in is rational reasonable there intent. This inaccurate; theory had heat-of-pas each case the victim attacked defen- under dangerous appropriate provocation without with a instruction never be dant sion would weapon.21 Le on Smith v. of malice murder. relies State22 where there was evidence whether, claim the instruc- question is in addition evi Camron v. State23 intent, given even without evidence of there was evidence that tion be dence 338, 754, See, State, (Okl.Cr. State, Bryan e.g., 935 365 20. Charm v. 760 16. v. P.2d State, 371, 1996); (Okl.Cr. State, (Okl.Cr.1989), (Okl.Cr. 1997); v. 821 Allen P.2d 374 v. 779 P.2d 562 Fox 1991). denied, 1060, t. 494 U.S. cer 1538, (1990). L.Ed.2d 777 751, (Okl.Cr. State, Hayes v. 21. 1981) (victim knife); attacked defendant with State, (Okl.Cr. Malone P.2d 17. (Okl.Cr. P.2d Farmer v. 1994); (Okl.Cr.1992), Boyd v. P.2d 1977) (victim first); Williams v. shot denied, 908, 113 t. 509 U.S. (victim (Okl.Cr.1973) cer 336-8 attacked L.Ed.2d 697 and threatened to cut his defendant scissors out). heart Boyd, 839 P.2d at 1367. (Okl.Cr. 1996). 22. 932 P.2d 521 (Okl.Cr.1992). O.S.1991, § 829 P.2d 47 19.21 dropped Nguyen picked up, it if there is some evi- the bar and adequate provocation Le, him dangerous weapon threatened and hit on the forearm. he without dence used life, was whether Le was afraid for his so he went to the malice. The issue Camron kitchen, knives, by got living means of a to the the murder was committed returned room, unusual dangerous weapon Nguyen. or in a cruel and and attacked He admitted manner, opinion prov- Nguyen and the did not discuss at times he stabbed least five and ocation, case show the Ngu- but the facts of that longer no considered him a threat after the homicide. victim attacked Camron before yen giving table. Even fell across coffee In Smith we did not determine whether every possible Le the benefit of doubt this degree manslaughter instructions on first support does not a claim of self-de- were sufficient since evidence Smith’s fense, aggres- an which is not available to dysfunction negate his intent to brain did not original aggres- sor.26 Le admits he was the kill, gave trial court but noted that the sor, argues regained right that he his but Smith instruction because evidence showed dropped and self-defense when he the bar angry provoked when the victim became contrary, Nguyen threatened him. On the him, him, fought struck then Nguyen exercising right his of self-de- sug- grabbed a knife.24 These cases do not point. if fense at that Even Le’s claim were gest appropriate this instruction is absent true, aggressor again when became adequate provocation. evidence of himself, returned, he left the room to arm again Nguyen. attacked As no evidence Alabama,25 Finally, Le on Beck v. relies supported theory, the trial self-defense jury Supreme Court held that the where failing court did not err in to instruct on noncapital be instructed on lesser of- must proposition This is denied. self-defense.27 by supported fenses the evidence order to provide option them with a viable other than argues Proposition rights IX that his already acquittal or death. We have deter- trial, process, a fair and to due a fair supported manslaughter mined no evidence Sixth, sentencing hearing reliable under the addition, case. Beck instruction Le’s Eighth and Fourteenth Amendments to the apply because the Oklahoma death does United States Constitution were violated jury penalty allows the to choose scheme display highly prejudi- the admission and life, parole, or acquittal, life without between inflammatory photographs. cial and Over provides options law viable death. Oklahoma objection nine Le’s the trial court admitted death, jury acquittal between and the head, photographs Nguyen’s which showed express about opportunity had the doubts neck, The medi- shoulder and arm wounds. sentencing phase. culpability during the Le’s photographs explain cal examiner used the proposition This is denied. jury. argues testimony his to the He pictures were cumulative and irrelevant. argues tri IV Le examiner also used charts claims the medical failing al court erred in to instruct wound, which the location of each showed request a self- on self-defense. did pictures and the were not relevant since trial, defense instruction controversy about the cause of there was no the trial court should have instructed self- death, any location of wounds or other rele- sponte on the evidence of defense sua based vant issue. According to his videotaped confession. Nguyen on the head statement Le struck set, Photographs may be admissible weightlifting in from the

with the bar nature, and location of Nguyen re to show the extent tending knock out. Le; the medical exam- Le wounds or to corroborate conscious and confronted mained (Okl.Cr. Smith, 27. Nance P.2d at 532. (Okl.Cr. 1992); Orr v. L.Ed.2d 392 25. 447 U.S. 1988). (Okl.Cr. 26. Ruth v. 1978). single gives rise of- testimony.28 pho- If a criminal act

iner’s Otherwise relevant tographs distinct, if dan- should not be admitted separate which are not fenses ger prejudice substantially outweighs their objective, are to another ultimate a means probative remarked that value.29 We have offenses, are or are inci- lesser included gruesome gruesome photo- crimes make offense, that dents or facets of some other pictures graphs; question are the is whether punished not be under more conduct unnecessarily produce an so hideous as to the one The elements of than statute. impact jury.30 a The of unfair admission they into may be dissimilar if fall offenses photographs is within the trial court’s discre- categories. point the The of one of these tion and Court will not disturb that analysis is the neither whether offenses ruling an of There absent abuse discretion.31 from conduct nor whether arise the same photo- The was no abuse of discretion here. evidence, proved by must the be same autopsy procedures and re- graphs show no whether, whole, a taken as defendant only They the flect Le’s handiwork.32 show punished for one criminal has been twice nature, Nguyen’s of extent and location his course of conduct where offenses were the medical examin- wounds and corroborate objective. testimony. photographs are dis- incident to one er’s prejudicial turbing but their effect does argues Le claimed he used the the State value. substantially outweigh probative their force to commit the murder and accom- same proposition is This denied. objective plish robbery, get- with the of the pun- Propositions multiple X XI and raise ting Nguyen’s property from their safe the X Proposition In Le claims ishment issues. and deposit He contends the murder box. robbery dangerous his conviction for with robbery though were even he inextricable be weapon should reversed dismissed of murder. was convicted malice Since and the murder were because that offense the knife II named both the bar and Count of same course conduct both incidents robbery, argues, jury as the means to same and were committed to achieve the weapon had to both choose the and deter- objective. I of Le was convicted Count robbery mine malice and in Count II of its manner of use. murder dangerous orig- I weapon. with a Count (1) Le’s claim must fail because he was inally alternative malice charged (2) murder, Count II convicted malice murder, felony robbery with with murder jury and the knife. The named both the bar weapon dangerous underlying as the felo- guilty robbery have found Le with a could alleged ny. Le [the Count II used bar dangerous weapon use based on his “pipe”] and knife to Information refers to keys. Nguyen’s The conviction bar to obtain key Nguyen’s deposit car take safe box jury for malice murder found keys. indicates At trial Le demurred to unsuccessfully asked separate of malice murder and intent to kill from formed the murder, I, felony merge with that Count robbery, of the and evidence course II, robbery, only felo- Count so one count of showed the murder was committed with ny go jury. murder to the would cleaver, knife and meat not the bar. Evi- supports by dence the conclusion that robbery Le claims his convictions objec- two time of the murder had formed statutory § malice murder violate him; tives: to rob kill thus multiple punishment.33 prohibition against § 11. In v. held: the convictions do not violate As Hale State34 we Mitchell, (Oki. Livingston 32. 884 P.2d at 1196. Le’s reliance on 28. v. 907 P.2d Cr.1995). (Okl.Cr. v. Oxendine 1958) misplaced. photographs is There the O.S.1991, 2403; Mitchell, § P.2d at 29. 12 procedures autopsy showed the results of rather 1196. reflecting than the actions defendant. 1094; Livingston, at P.2d McCormick (Okl.Cr.1993). O.S.1991, § 33. 21 1094; Mitchell, Livingston, (Okl.Cr.1995). 34. 888 P.2d P.2d at 1196. admits, requires proof prosecution each of these crimes Le claims the stacked not, charges purposely prejudice these him. the other the convictions facts does so argues He his conviction for murder and jeopardy.35 propo- do not violate double This death sentence are unreliable because the sition is denied. must have been affected the list of that, XI Le if his A thorough crimes. review of the record robbery dangerous conviction for support does not this claim. The murder (see weapon permitted Proposi- to stand surely Thuy’s conviction was the result of X), larceny tion then his convictions for of a videotaped evidence and Le’s confession. grand larceny jury obviously motor vehicle and should be The considered the sentence carefully; addition, aggra the fact it reversed and did find one dismissed. vating charged suggests circumstance claims his conviction for murder and result- jury swayed by passion prejudice. was not ing sentence of death should be reversed proposition This has merit and Counts IV prejudice resulting because the from the dismissed, and V are remaining but the con stacking charges rights of these violated his victions and sentences need not be modified. process sentencing pro- to due and a rehable ceeding. In II Le Count was convicted ISSUES RELATED TO SENTENCING

Robbery Dangerous Weapon with a for tak- ing Nguyen’s deposit key safe ear box and argues XII Le the evidence keys. convicted of Count IV he was steal- prove aggravating was insufficient to cir- ear, ing Nguyen’s and Count V he was jury cumstances. The Le found created a grand larceny taking convicted great per- risk of death to more than one Nguyen’s deposit contents of At safe box. especially son37 and that the murder was III, merge trial Le asked the court to Counts heinous, atrocious and cruel.38 This Court contemporaneous and IV V were and whether, light will consider in the most favor- request each act facilitated the others. That able to the the evidence is sufficient to preserved appeal. the issue for support alleged aggravating circum- supported

stance.39 Evidence find- ing circumstance, aggravating of each argues these convictions vio proposition this is denied. § jeopardy. late both 11 and double This engage in Court will not traditional double argues Le first analysis § jeopardy app unless 11 does not prove knowingly insufficient to that he creat (see ly.36 Applying Proposi the test above great ed a risk of death to more than one X) robbery tion it seems clear that person. aggravating This circumstance is merely II Count was means to the offenses proved by a defendant’s acts which create a charged in argues, Counts IV and V. As Le proximity, risk of death to another “in close keys deposit he didn’t take the car and safe time, location, in terms of and intent” to the sakes; keys box for their own he intended to killing.40 may only appropriate It be where money take the car and steal the in the safe killed, person one more than one where deposit Although requires box. each offense killed, person is or where more than one act, proof comprises separate different person is killed but the murders are not clearly objective. they are directed at one contemporaneous.41 argues prove knowingly Counts IV and V must be dismissed. State failed to he created States, 299, Allen, Blockburger 35. v. United 284 U.S. 40. 923 P.2d at 621. 304, 180, 182, (1932). L.Ed. Allen, 621; Valdez, 41. 923 P.2d at 900 P.2d at Hale, 888 P.2d at 1029. 382-83; (Okl. Snow v. O.S.1991,§ 701.12(2). 37. 21 denied, Cr.1994), cert. U.S. 115 S.Ct. (1995); Pennington 130 L.Ed.2d 1120 O.S.1991, 701.12(4). § 38. 21 (Okl.Cr.1995), cert. denied,-U.S.-, Charm, 770; Valdez, 136 L.Ed.2d at 900 P.2d at pain during and

great He alive and suffered after points risk of death. to his testi- was argues He that this circum- planned the attack. first mony Nguyen that he to knock un- requires gra- it apply stance cannot because suggests rob him and if conscious order to beyond killing.44 act tuitous violence things gone according plan, to there had Nguyen fight began when Le claims Thuy. been no to attack would have need bar, Nguyen’s picked inflicted up the He claims he could not have foreseen that him. Even if this Court back, wounds to subdue Nguyen Thuy try fight would fail. Le adopted facts the claim would those responsible and should not be held for his police longer that he no believed admitted to Thuy. attack on He that his also claims Nguyen fell Nguyen was threat after Thuy attack on was motivated a different table, across the coffee continued Nguyen, and intent than his assault on this Nguyen the meat hack cleaver. subsequent support attack cannot be used to aggravating circumstance.42 Le also claims this circumstance apply he did not intend to should not because argument all This fails consider gratuitous pain. Nguyen or inflict torture fight Nguyen the evidence. in which merely He that he intended knock injured began Thuy killed not when things got Nguyen and rob him and out out bar, Nguyen hit Le with but when of hand. He cites-cases in which the victims returned to the room and attacked as experienced prolonged mental torture well During Thuy a knife. and butcher physical injury support his claim that as attack, Thuy calling to kill for threatened requires proof specific intent to this Court of head, 911, cut and and demanded her hands suffering.45 Le v. inflict cites Robinson $20,000 to the assault. on cease The attacks support State 46 to his claim that the Court Thuy Nguyen contemporaneous; and were killing will look at intent and the manner of attacking Thuy, Nguyen before Le stabbed Robinson, physical suffering. In as well as Nguyen then struck several times with the victim, the defendant threatened the shot at Thuy to kill and meat cleaver. His threats run, in him shot him his feet to make money demand did not after the for occur back, in looked him as he and the face shot Despite Nguyen attack on had Le’s finished. again. him held the ruthless This Court testimony, he in other evidence indicated killing pitiless manner of and atti Robinson’s to harm victims. Sufficient evi tended both tude, physical with the combined victim’s suf jury’s finding. supports dence fering, requirements satisfied the for this aggravating evidence circumstance. Le mistakes this Le also contends the finding in prove that the murder was Court’s of sufficient evidence indi was insufficient atrocious, heinous, requirements proof. for of Evi especially cruel. This vidual cases requires proof of dence of a intent to inflict torture or aggravating circumstance killer’s pitiless support physical abuse or torture attitude some cases conscious serious death; finding jury’s aggravating prior to evidence a victim was con of circum stance, certainly supports aware the attack but that evidence is scious and Moreover, Nguyen required every case.47 even finding of torture.43 admits that Allen, (attack (1996); Hawkins, 740 891 P.2d at P.2d at 621 driven intent 133 L.Ed.2d 923 597; escape separate Berget, earlier attack on 824 P.2d at 373. from to victim). State, 389, (Okl.Cr. v. 900 P.2d 402 Robinson 92, State, (Okl.Cr. v. 909 P.2d 118 43. Romano 1995). 151, 1995), denied,-U.S.-, 117 S.Ct. cert. State, (1996); Berget v. 824 L.Ed.2d 96 P.2d 136 See, Charm, 771; Rogers e.g., at v. 924 P.2d denied, 364, (Okl.Cr.1991), 373 cert. 506 U.S. State, 959, (Okl.Cr.1995), de 890 P.2d 977 cert. 841, 124, (1992). L.Ed.2d 79 113 S.Ct. 121 nied, 312, -U.S.-, 116 133 S.Ct. L.Ed.2d 1157, State, (1995); Hogan 877 v. P.2d 586, State, (Okl.Cr.1994), v. 891 P.2d 596-97 44. Hawkins 1174, 1994), denied, (Okl.Cr. cert. 513 U.S. - denied, -, t. U.S. 116 S.Ct. cer 480, 1154, (1995); 130 L.Ed.2d Romano v. 133 L.Ed.2d 408 368, (Okl.Cr.1993), aff'd, (1994); (Okl.Cr. U.S. 114 S.Ct. 129 L.Ed.2d 45. Neill v. 555-57 (Okl.Cr.), 1994), denied,-U.S.-, cert. Woodruff argu- “quick glimpse” a victim’s characteristics adopt Le’s construction his were we to By admission Le and the effect of the victim’s death on surviv- ment would fail. his own ors,50 to the finan- Nguyen long after he was and should be restricted continued to stab threat; cial, emotional, psychological, physical and longer Nguyen’s Le attacked no him; personal in front of effect of the crime itself and some wife and threatened her pain, pleaded help for and characteristics of the victim.51 Le claims Nguyen was in Thuy’s testimony eulogy dying. supports This evidence brief knew he was inflame jury’s purpose with no but to decision. encourage them to reach a verdict based XIII Le emotional factors rather than a “reasoned aggravation was not sufficient the evidence spe- response”.52 moral The State does Le recites support the sentence of death. argument, claiming only cifically address this trial, presented mitigating any that the issue was case the waived prior criminal notes there was no evidence testimony was so brief it could not have been conduct, suggests this Court or even bad course, prejudicial. prejudice is deter- Of age, into account his habit of should take by testimony’s length by its mined not but others, history caring and turbulent when contents. reviewing the death sentence. He insists in an that this crime was an aberration other Thuy response questions de life, escape good describes his arduous wise good man who loved her scribed and the obstacles he overcame from Vietnam Carolyn. Nguyen was a talent She said achieving productive life in the Unit before ed, complained, never hard worker who States, and claims for these reasons ed cooked, clean, helped and ironed at home. penalty is unwarranted. misunder death stepdaughter said he treated his as his She scope appellate review. On stands child, school, taking her to and from own independently appeal will review this Court Thuy they good together. that time had sup it the evidence to determine whether saving money put said were their to jury’s finding aggravating circ ports the of Carolyn buy a private school and house. may not substitute The Court umstances.48 things Ngu testified were hard after She findings jury’s where no error its for the death; own yen’s nightmares, scared she had was mandatory In the sentence re occurred.49 very lonely; at knives and Caro to look not view we determine Le’s sentence was lyn nightmares, quiet, and did also had prej imposed passion, influence of under the Thuy long talk time. had not or smile for factor, udice, any arbitrary or other we recently Nguyen, loved remarried but still jury’s finding of supports the find evidence often, grave visited his and wished were That is the ex aggravating circumstances. testimony the emotion alive. This described proposition This tent of this Court’s review. al, financial effects of the psychological, and denied. is describing Nguyen’s person crime as well as unduly prejudi It was not al characteristics. Proposition argues in XIV that appropri of cial and well within the bounds impact violated his irrelevant victim evidence impact testimony. ate victim Nguyen’s Thuy testified about rights. wife irrelevant Carolyn argues Le also the evidence was Nguyen’s death on the effect jury. object any properly issue before the Okla- Le did not to this evidence herself. juries weigh aggravating capital homa must plain all but error. Vic trial and has waived mitigating provide against evidence. impact is intended to circumstances tim evidence State, (Okl.Cr. denied, Cargle 50. v. 909 P.2d 828 U.S. 126 cert. Tennessee, 808, 823, 1995); Payne U.S. (1993). v. L.Ed.2d 2597, 2607, 115 L.Ed.2d 365; Bryan P.2d at Malone v. v. 984; Cargle, § O.S.Supp.1993, 909 P.2d at 51. 22 (Okl.Cr.1994). (Okl.Cr. 52. Conover v. Bryan, at 365. 1997). impact argues has the limitation in the sec Le claims victim no place in thus this scheme and is irrelevant is because rea paragraph ond insufficient jury. legislature and cannot aid the The has juror fact of could believe mere sonable impact determined that victim evidence is killing physical to serious abuse. amounted Thuy’s both relevant and evi- admissible.53 contrary, ap not language On the does unduly prejudi- dence was relevant not every ply its face to homicide. This limi on error, plain propo- is no cial. There and this aggravating tation ensures the circumstance sition is denied. only apply to cases where the State will proves beyond a reasonable doubt especially XV by preceded murder of the victim was tor heinous, aggravating or cruel cir- atrocious abuse, physical may ture or serious “which cumstance, as applied this Court and great physical include the infliction of either instructions, jury in the not defined does cruelty.”56 anguish or extreme mental perform narrowing required process insufficient be claims the instruction is aggravating it is un- circumstances because explanation not included. We cause this constitutionally vague applied in and can be suggestion that reject the “torture or serious any murder case. Le claims the standard physical definition. abuse” needs further aggravating circumstance instruction for this sufficiently category not narrow the does support claim that Le cites Robinson persons apply.54 it He whom relies interpretation aggravating of this the Court’s Maynard Cartwright,55 in which the perform a circumstance true limit- does Supreme held circumstance un- Court this ing function. Robinson Court dis- to im- constitutional and directed Oklahoma defining physical cussed cases “serious limiting pose construction which would abuse” and stated: jury’s discretion. channel the point As much as like to we would gave court 436: trial OUJI-CR criteria, specific, applicable to uniform all instructions, the term As used these cases, appli- murder which would make the extremely “heinous” means wicked “heinous, cation or cruel” atrocious evil; “atrocious” means outra- shockingly aggravator procedure, a mechanical that is vile; geously “cruel” means wicked Rather, simply possible. the examina- high degree to pitiless, designed or inflict every tion the facts of each and case is to, enjoyment pain, utter or indifference necessary determining ag- in the whether of, sufferings the of others. Unfortunately, gravator proved. no present identical two cases fact scenarios heinous, phrase “especially The atro- consideration, partic- for our therefore the cious, to or cruel” is directed those crimes ulars of each case become the focus of our preced- where the death of the victim was inquiry, opposed similarity as one case’s the ed torture of victim or serious another, resolving sufficiency in physical abuse. the State, 1273, (Okl.Cr.1993), 984 et seq. O.S.Supp.1993, §§ 22 862 P.2d 1282 cert. 53. denied, 1100, 1870, U.S. 511 114 S.Ct. 128 1, 14 967, California, Tuilaepa U.S. 54. v. 512 S.Ct (1994); Romano, 386; 847 L.Ed.2d 490 P.2d 2630, (1994) (aggravating 129 L.Ed.2d 750 cir State, 373; Berget, 824 P.2d at v. 816 Battenfield eligibility define for the death cumstances must denied, 555, (Okl.Cr.1991), 565 cert. P.2d 503 may penalty, neither be so broad to include all 943, 1491, U.S. 112 S.Ct. 117 L.Ed.2d 632 unconstitutionally vague). murders nor be State, (1992); 591, v. 779 P.2d Foster 592-93 denied, 1032, (Okl.Cr.1989), cert. 497 U.S. 110 1853, 356, 108 S.Ct. 100 L.Ed.2d U.S. 3293, (1990); 111 L.Ed.2d 801 v. Stouffer (1988). 562, (Okl.Cr.1987), 563-64 cert. denied, 1036, 763, 74, 484 U.S. 108 S.Ct. 98 L.Ed.2d (Okl.Cr.1995); Cheney P.2d v. 909 State, (1988). upheld see, 521, Supreme Court similar e.g., Perry 533-34 v. language .(Okl.Cr.1995); an v. Arizona statute. Walton Ari Medlock v. zona, - -, (Okl.Cr.1994), denied, 497 U.S. 110 S.Ct. 111 L.Ed.2d cert. U.S. (1995); 133 L.Ed.2d Hooks heinous, rejected arguments, and rea- these offers no the supporting claim evidence the to reconsider earlier deci- son for Court aggravator.57 cruel atrocious or proposition is denied. sions. This “case-by-case” interpreta- suggests this jury consistent, the instruc readily Le first claims provide visi- tion does not jury that its find jury tions failed to inform guide the in determin- ble factors which mitigating penalty ings regarding circumstances did eligible for the death ing who is not have to unanimous. He admits this circumstance. He be aggravating this under rejected argument, this but asks Court has Robinson does misunderstands Robinson. suggests He jurors “specific, uni- us to reconsider this issue. suggest lack that may interpreted be stage second instructions on which to base their deter- form criteria” jury mitigating mination, rejects require that to determine rather the notion but unanimously. Oklahoma does be circumstances for this circumstance criteria unanimously require jury find murder cases. mechanically applied to all circumstances, decide, mitigating and the trial jury must in each case Just as case, instruct is not error.58 whether a court’s failure to so on the facts of that based specific criteria for this meets the defendant Next, Le the instructions on claims circumstance, must this Court aggravating so permitted jurors mitigation issue jury on an indi- those determinations review altogether, ignore mitigating evidence question the Robinson does not vidual basis. mitigat seriously the effect of the diminished aggravating this specificity of the criteria for argues ing present in his case. He limiting provided criteria circumstance. The jury Instruction which stated the sufficiently narrow the jury instruction extenuating “may” circumstances consider eligible ag- of who is determination blame, reducing culpability or created moral proposition is gravating circumstance. This jury should consid a doubt as to whether denied. possi mitigating evidence. He claims this er bility compounded jury because Instruction XVII mitigating circumstances re punishment stage of the listed without in the instructions them, jury accurately quiring the to consider but the instruct the trial did not listing defining aggrava it was to use and consid- instructions the manner which jurors ting required to consid mitigation. Le combines circumstances er evidence im before could stage er those circumstances complaints about second three common contrary, all penalty. On the pose his federal the death preserve in order to instructions aggravating objected juries must find an to these Oklahoma appeal rights. Le neither considering capital proposed circumstance before at trial nor submitted instructions held, the instructions, As this has often plain all sentence.59 Court has waived permissive language in Instruction 8 reflects repeatedly He admits this Court has error. Robinson, mitigating 8 defines circumstances Instruction 900 P.2d at 401. unanimity; 9 not discuss Instruction does State, 364; specific mitigating and does circumstances Knighton lists Bryan v. v. 935 P.2d at (Okl.Cr.), unanimity; requires 10 Instruction cert. de not discuss -, aggra- nied, jury unanimously find at least one 136 L.Ed.2d the to -U.S. 117 S.Ct. (1996). unanimously vating Oklahoma find that second edition of the circumstance The n Criminal, Instructions, any mitigating Jury outweighs contains a Uniform circumstance spe mitigating which penalty; circumstances imposing definition of the death Instruction before findings cifically jurors aggra- unanimous jurors unanimously informs that requires find an to mitigating any given circumstance are not requires writing, of vating but nei- circumstance (OUJI-CR 4-78). required This instruction 2d findings mitigat- written unanimous of ther nor juries may It assist future circumstances; restates settled law. requires ing a Instruction deliberations, give a failure to similar their but imposition of the death unanimous verdict for not error. instruction in this case was parole. imprisonment penalty, or life without life aggravating circum- The distinctions between mitigat- complains jury on the instructions Le mitigating evidence are clear and stances and among ing the in- evidence were sandwiched unambiguous. circumstances, aggravating which structions for aggra- unanimity. required Instruction 7 defines O.S.1991, unanimity; § requires 701.11. vating 59.21 circumstances and stage, first sympathy for the victims. the the correct constitutional standard n jury’s duty prosecutor Nguyen’s happy any infringement to the contrasted avoids on body lying punishment.60 with his on individual home life lifeless determine morgue. jury slab in the He told cold argues Finally, the trial court Le of a friend- crime was the result broken this jurors to erred when it failed instruct ways ship emphasized in which Le they of that could consider a sentence life betrayed Nguyen’s argues trust him. Le imprisonment imprisonment or life without The that these comments were irrelevant. parole find the though even should exis irrelevant, may have first comment been aggravating circum of one more tence arguably the second of comments ex- series beyond A life a reasonable doubt. stances panded committing the Le’s motive for jury if given be even finds sentence crime. outweigh mitigat circumstances aggravating However, an ing instruction circumstances. stage complains In the Le second required.61 jury is Le’s was to effect arguments by prosecutors series of both impose noncapital sentence if instructed essentially unfair suggested it was which jurors entertained a reasonable doubt as Nguyen dead. Le should live while was guilt charges in the Bill of Particu his jury to asked the remember Prosecutors lars. mercy his Nguyen’s pleas and consider for

daughter’s suffering. They noted twice that while, lived, he Nguyen dead if Le would TO RELATING GUILT ISSUES be well-cared-for and well-fed with visits OR INNOCENCE AND family. prosecutor his The contrasted from SENTENCING Thuy’s description Nguyen as hardwork- argues VII Le, shopped ing family man who sentencing fair deprived of fair trial and Remington and went to Park. The Harold’s tactics, remarks, hearing by improper why prosecutor explicitly also asked prosecution. Le arguments of the claims good should be to live while a man allowed subpropositions prosecutorial in five was butchered. closing argument poisoned misconduct in comments, objected only trial. a few He encourage should not State majority proposition is re and the impose penalty death out parties plain only. error Both viewed for sympathy has for the victims.63 This Court closing arguments to wide latitude in have many specifically of the com condemned the evidence and reasonable infer discuss stage, stating “[t]here ments made second ences, grant only will and this Court relief is no reason them and counsel knows grossly improper ar where and unwarranted go far in better and does not need to so gument rights.62 affects the defendant’s argues persuasively that the future.”64 argu is unfair for Le to live prosecutor’s contention —it State’s played upon jury’s super-ag- improperly ments since dead —creates a 978; Rogers, give a v. failure to similar in this case 890 P.2d at Pickens instruction denied, (Okl.Cr.1993), was not error. cert. 942, 127 U.S. L.Ed.2d 232 See, e.g., Spears - (Okl.Cr.), denied, -, cert. U.S. 678, State, (1995); v. 133 L.Ed.2d 527 Hammon 364; Knighton, Bryan, 1287, (Okl.Cr.1995). 935 P.2d at 912 P.2d at 61. 898 P.2d 1307 Mitchell, 895; P.2d 1206. The second 884 at State, 445; Spears, 900 P.2d at Walker v. 887 Jury the Uniform edition of Oklahoma Instruc- - denied, 301, (Okl.Cr.1994), cert. Criminal, tions, includes an instruction that U.S.-, (1995); 133 L.Ed.2d 108 may impose jury of life or life without sentence State, (Okl.Cr. McCarty v. 765 P.2d aggravating parole even if the circumstances out- (Okl.Cr. 1988); Jones v. 738 P.2d (OUJI-CR weigh mitigation 2d 4- circumstances 1987). 80). settled It This instruction restates law. deliberations, (Okl.Cr.1995). juries in Duckett v. 919 P.2d assist future their but Thuy inadvertent. appears to have been No every in death case. gravator applicable had not decided they suspected Le but can counter said mitigating evidence amount of do; they police that jury agrees Le told if the what argument, this stealing the stereo the morn- mitigating evidence. accused him of may not even consider However, jury the This is not error. ing he has not shown of the murder. in mitigating the

failed to consider prosecutor’s complains of the Le wholly jury evidently not The his case. theory, argued length at in first and second swayed by argument since counsel’s Nguyens to kill the stage, that he intended charged aggravating find one of the failed to absolutely There is he left Cleveland. before argu- prosecution the circumstances. While theory, and Le of support no evidence to this error, certainly this claim does ments were never intended to hurt the course claimed he review. plain not withstand error prosecutor and the con victims. The State prosecutor misstat contends the Le inference from the this is a reasonable tend stage. during punishment the the ed law evidence, Le must have known he since told stage closing prosecutor second final Nguyens and return to couldn’t rob the jury amounted to none of Le’s evidence knowledge. their Wheth without Cleveland circumstances, miti mitigating as it did not reasonable, jury inference is er or not the what any less horrible gate, relieve or make by this appear not to have been affected does did, any guilty. make Le less Counsel Le or stage specifically it argument. In second objected comment but the trial to the latter find that Le had committed refused to objection and the rule on the court did not avoiding arrest or purpose murder for argument in the same prosecutor continued swayed by jury prosecution. Had the been mitigat argued the instruction on vein. He claim, avoiding this it should have found say anything not about ing circumstances did Le cannot aggravating arrest circumstance. good. Le past Le’s behavior was whether by argument, this prejudiced he was show argument the law re misstated claims any error is harmless. course, since, mitigating evidence garding improperly prosecutor Le claims to consider a defendant’s is entitled prosecu and ridiculed him. The demeaned as the circum character and record as well consistently argued Le was cold-blooded tor mitigat determining the crime stances of remorseless, icicle calling him cold as an argu prosecutor’s The ing circumstances.65 compassion “very in his lack of special” question certainly The irrelevant. ment was refrain feelings. the State should While mitigation makes is not whether evidence personal criticism or from unwarranted any guilty, or the crime the defendant less comments do not reach namecalling, these horrible, provides it any but whether less prosecutor referred to that level. The things, the defen why, despite those reason that was reasonable “small stature” but argument also not die. dant should the evidence. comment on purely personal improper as appears to be However, argument did not opinion. argued complains prosecution jurors they could not consider clearly tell the jurors duty to find for the State. had a moral mitigation. Le has not Le’s evidence stage closing argu and second In both first in a which was it resulted verdict shown jury they could prosecutor ment the told response. moral a reasoned by justice finding guilty and only do This Court bringing in a verdict death. prosecutors argued facts Le claims argu prosecutor against this pros has warned the stage, the in evidence. In the first before, warning repeat and we to confront ment argued the victims decided ecutor explicitly prosecutor did not system night here.66 The their stolen stereo about opinion, and the personal as his the facts state this This misstated before the crime. (1995); 104, 114, Oklahoma, McCarty, L.Ed.2d 106 Eddings v. 455 U.S. 869, 877, L.Ed.2d 1220-21. (Okl.Cr. 66. Hooker denied,-U.S.-, 164, 1994), 116 S.Ct. cert. grounds of of of the lack dispose their a claim on could have reached conclusions prejudice, whether ignoring entirely,

after we need not determine this evidence so relief In was performance is deficient.72 not warranted. counsel’s determining counsel’s acts or omis- whether object Finally, Le admits he did not to range profes- sions were outside the wide most of the but their comments above assistance, sionally competent we consider prejudicial as to ad- combined effect was so the mak- fulfilled function of whether counsel versely affect the fairness and fundamental testing process ing the adversarial work73 impartiality proceedings. Under the requirements, and this Le cannot meet these case, thorough circumstances of review proposition should be denied. the record shows the combined effect initially provide claims counsel failed argument prejudice the not Le. errors did stage in the effective assistance first because “continually This Court remains astounded subject State’s case for first he did not the prosecutors jeopardize experienced meaningful degree malice murder adver- cases, overwhelming, is in which the evidence videotaped testing. Le in his sarial insisted argument.”67 with A review of borderline testimony stage and his second confession cer- prosecutors’ the conduct and comments Nguyen, to kill that he never intended However, tainly reveals error. consid- some him, Ngu- only wanted to rob and inflicted whole, ering improper the trial as injuries him yen’s after attacked argument did not the verdict. contribute to argued that Le with bar. The State proposition This is denied. certainly Nguyen by intended to kill the time knife, he used the have formed VIII claims intent to kill before he ever reached Okla- counsel was ineffective in first sec City. Le claims trial counsel failed to homa stages ond of trial. Le must show his attor things would have tested do several which ney’s is performance so deficient that he did theory. and countered the State’s guaranteed by as have counsel Sixth Amendment, perfor complains trial deficient First Le counsel and counsel’s deprive Nguyen. Thuy He mance created errors so serious as to failed cross-examine him fair several differences between her testi law, manslaughter impartial, follow the and not be to a fair and quate provocation support emotions, certainly by would make the swayed The evidence and should instruction. supported prove an for self- each of each crime. not have instruction element State testimony Thuy’s very graphic argued trial was not defense. Le’s confession Counsel largely by confession voluntary was corroborated Le’s he did the because not understand effectively have im- not been compared and would this case to proceedings. Counsel discrepancies. peached by bringing trial, out these Simpson noting that these offi- the O.J. failure was a Trial counsel’s to cross-examine planted neither cheated nor evidence cers strategy trial and Le has not reasonable this trial was neither a circus nor prejudiced by that decision. shown he was mockery, jurors not and reminded this was These rea- like television. comments were complains did not trial counsel complains the Le also counsel told sonable. testify in stage him the first of trial. call to Thuy jury he did not cross-examine because jury his argues He should have heard intelligence or he didn’t want to insult her $10,000 story him to show owed jury’s. In fact he did not counsel said robbery. He simple was more than this Thuy [personally] jury’s want to insult or shielding Le admits counsel have been evidence, stage intelligence. Given first why about he didn’t from cross-examination attempt to appears this to be reasonable story, argues he had to police tell but and, extension, Le, by ingratiate himself anyway. stage in the He explain this second jury. that, story, he lost the argues without this Nguyens to show visited opportunity Le’s dissatisfaction with counsel’s visit, July deposit box after his their safe argument rests that his closing on his claim story. have his which would corroborated videotaped an asser statement amounted to Ngu- Even if he had been able to show the obli tion of self-defense which counsel was box, inferring they deposited yens visited the explore. anything, If Le’s state gated to $10,000, that neither affect nor his would passion heat of than ment went to rather showing the evidence he intended overcome (and provide did self-defense not sufficient Nguyen in under to kill November. Counsel support heat-of-passion instruc evidence to standably jury this evi wanted to hear III). tion, Proposition failure see Counsel’s sentence, mitigation of but dence in the death argue Le lacked not amount to to malice did it in chief decision to omit from his case his time, guilt. concession of At the same strategy. trial Le fails to was reasonable guilt unusually strong. prejudiced by how he was this decision show argue malice could Counsel’s decision Nguyen or he intended to rob since whether strategy trial to save his real be a reasonable just money, sufficient evidence retrieve stage. for second argument jury’s that he in supported conclusion Nguyen. provide tended to murder Le also contends failed to counsel stage punishment assistance in effective complains that did not ask trial counsel object clos- he did not to the State’s because No evi- an instruction self-defense. for ing arguments. complains counsel failed supported have this instruction dence would object stage closing to the State’s second (see Proposition Le was not entitled to it implying Le live since argument should not IV). Trial counsel cannot be ineffective object twice Nguyen was dead. Counsel did request it. failing to court on each the trial failed to rule inef- Finally, Le trial counsel was objection. argument The State’s is discussed closing argument because he did fective Proposition Although VII. some of the theory came the State’s that Le not contest improper, re- were those errors remarks City intending Ngu- to kill the Oklahoma As neither reversal modification. quired merely yens. Le claims counsel asked case, counsel be ineffective that is the cannot race, jury to be influenced to follow object. for failure instructions, oaths, read the and consid- their accu- rights. In fact XVIII Le claims the whether Le understood his er obliged deprived error in this argued to be mulation of case counsel 558 (Okl.Cr. sentencing 933 P.2d process

due of law and reliable Ledbetter 1997). proceeding. the combined effect deprived of claimed above him of a the errors impact in that the victim evidence I find error, fair there is individual trial. Where no § 701.10 as permissible matter is under of A thor- there is no accumulation error.74 impact on the about the victim and evidence ough proposi- review of record and Le’s the family. prejudicial no error occurred

tions shows closing argu- in the other than errors State’s LUMPKIN, concurring in Judge, ment, require Although which do not relief. part/dissenting part. in dismissed, and must be these Counts IV V affect murder convic- convictions did not Le’s Judg- in to affirm the I concur the decision proposition is tion or death sentence. This degree for first mur- ments and Sentences denied. der, dangerous weapon robbery with battery kill. with intent to How-

assault and larceny ever, of the I dissent to the dismissal REVIEW MANDATORY SENTENCE larceny grand convic- of a motor vehicle and O.S.1991, accordance of these Prosecution and conviction tions. (1) 701.13(C), § we must determine whether by double last two offenses were not barred imposed the of was under the sentence death jeopardy separate as each was distinct any passion, prejudice, or other influence of offense. (2) factor, arbitrary evi- whether the Further, 11 is to be used as Section supports jury’s finding aggrava- dence opportunity allow to shield to a defendant the ting Upon of the rec- circumstances. review any separate, distinguish- commit number ord, say cannot the sentence of death was we merely impunity because able crimes without by imposed influenced because the was objective specific have had a ultimate any arbitrary passion, prejudice, or other in commits of- mind. Where defendant 701.13(C). O.S.1991, contrary § factor to offense, subject properly after he is to fense careful, independent review and con- After punishment I do not find for each offense. supporting the val- sideration the evidence separate pun- Legislature prohibited has circumstances, as well as the aggravating id ishments for these offenses under facts mitigation, in we evidence offered find See Hale v. case. factually of death substantiated sentences (Okl.Cr.1995) J., (Lumpkin, Concur in appropriate. Results). analysis its Using the Court’s modification, warranting no Finding error illogical conclusion would mean that since of the Judgments objective and Sentences District beginning from Appellant’s County box, AFFIRMED Court of Oklahoma are money deposit in the steal the safe in part part. in and DISMISSED then all as a “means to crimes committed objective” only

another ultimate could be punished sentencing on ulti- through the V.P.J., J., STRUBHAR, JOHNSON, objective only crime. would mean mate That concur. money deposit the safe theft of the from LUMPKIN, J., in part/dissents in concurs punished in box could be this case. Needless part. say, patently that result would be absurd. LANE, J., concurs result. addressing Finally, in claim of ineffec- counsel, opinion relies tive assistance of LANE, Judge, concurring in results. Washington. on That case has Strickland v. Fretwell, analyze impact I victim since been clarified Lockhart v. would 364, 369-70, 838, 842-43, § O.S.Supp.1992 701.10 and not light of U.S. (1993) § rely wherein the O.S.Supp.1993 on 22 994 used L.Ed.2d Su- my preme majority in stated: footnote See vote Court McGregor, solely mere focusing analysis [A]n determination, without attention

outcome proceeding whether the result unreliable, is fundamentally unfair or set aside a conviction

defective. To solely the outcome would because

sentence for counsel’s error different but

have been a windfall

may grant the defendant him. See law does not entitle

which the [648], Cronic, 466 U.S.

[United v.] States [2039], [80 at 2046

at (1984)].

L.Ed.2d

Therefore, inquiry “ultimate focus of fundamental fairness

must be on the challenged,” being result is

proceeding whose

Strickland, 696,104 at 466 U.S. proceed- merely the outcome of

and not

ings. Mukatla Abdur-Rahim Imanu

Sharieff

SALLAHDIN, (Formerly Michael Petitioner,

Pennington), Oklahoma, Respondent.

The STATE

No. PC-96-1570. Appeals of Oklahoma.

Court of Criminal 8, 1997.

Oct. notes was Nguyens. he to to rob the He said intended changed sentencing, and Le counsel or Nguyen “put sleep” and to so he hit him interpreter in the second testified without an get deposit key. the safe box When could stage. replies that he of course became Le grabbed the Nguyen remained conscious and years English during in his three more fluent bar, got he for his life and said feared jail pretrial, question and the is whether He he knives to defend himself. admitted Officers Bemo and Cook in Le understood $20,000 to kill Thuy paid told he had been November During was a lie. them but said that July, stage of that second trial testified a prove The must defendant’s State $10,000 joint he to a gave Nguyen start (1) rights product of a waiver of free business; family September after came in his than intimi and deliberate choice rather money Nguyen he needed the refused (2) dation, coercion, deception, and made or City to get it he return so came Oklahoma with a full awareness both the nature police not tell the about it back. did right being and the conse abandoned $10,000 deal, although he or a business did it.3 The quences of the decision to abandon $10,000. tell them he knew had prove a waiver is valid State must joint Thuy plans no for a testified there were evidence,4 preponderance of the and must gave any money. and Le them business never English enough well show understood rights.5 knowingly voluntarily and waive his PRETRIAL ISSUES totality Court will review the of the This interrogation, I Le claims the trial court surrounding circumstances including admitting his custodial statement erred a defendant’s characteristics and objections because interrogation.6 into evidence over defense the details Where suf supports failed to show that had sufficient the State ficient evidence taken camera English language to volun- ruling command of trial defendant’s state court’s tarily, knowingly intelligently admissible, his voluntary waive ments are rul rights making the state- ing appeal.7 constitutional before be will not disturbed on November ment. Le arrested trial court determined Le’s statement was rights, gave voluntary specifically waived Miranda2 re uncoerced videotaped language in which he admitted “did statement marked that the difference stabbing Nguyen problem represent several times but insisted a barri appear be

Notes

of a trial reliable'results.68 notes cases, hearing, capital mony preliminary there must be a reasonable at trial and errors, that, suggests preliminary hearing probability absent the sentencer statements aggra supported have the balance of his version of crimes. A thor would concluded Thuy’s vating mitigating ough comparison did not review and testi circumstances that, support mony There even if had death sentence.69 shows counsel discrepancy, presumption brought out each this would not strong that counsel’s conduct most, had professional argues. and the defendant must have the effect he At Thuy Nguyen hit presumption overcome the that counsel’s con would have said Le with bar, picked up equaled strategy.70 tried duct sound trial This and she the bar and stop Nguyen. challenged con while stabbed This Court will consider counsel’s change fact that Le remained duct on the facts of the case viewed at does aggressor. preliminary hearing professional Thuy’s time ask if the conduct and, so, testimony “clumsy if ly whether the error neither showed this was unreasonable jury’s judgment.71 fight people” If we can three nor showed ade- affected between Hammon, 1366, (Okl. McGregor 67. P.2d at 1307. 71. Cr.1994), denied,-U.S.-, 95, cert. 116 S.Ct. 668, 687, Washington, 68. Strickland v. U.S. (1995). 133 L.Ed.2d 50 L.Ed.2d (Okl.Cr.1984). P.2d 72. Coleman v. 361; LaFevers, Bryan, at at 69. 306. Strickland, 466 at U.S. 361; Hammon, Bryan, 935 P.2d at 898 P.2d at 1309; Camron, 829 P.2d at 55-56.

Case Details

Case Name: Hung Thanh Le v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 2, 1997

Citation: 947 P.2d 535

Docket Number: F-95-1303

Court Abbreviation: Okla. Crim. App.