Opposition Brief — Tam Le, Petitioner v. Louisiana

Respondent’s

Appendix

STATE OF LOUISIANA NUMBER: 506845

DIVISION: F

VERSUS 22%? JUDICIAL DISTRICT COURT

PARISH OF ST. TAMMANY

TAMQ. ST. OF LOUISIANA

FL 4

REASONS FOR DENYING APPLICATION AND SUPPLEMENTAL

APPLICATION FOR POST-CONVICTION RELIEF

Petitioner, Tam Q. Le, was found guilty by a jury on October 31, 2012 of two

counts of aggravated rape, with the victims being under thirteen years old. His

convictions and sentences were affirmed and became final when the Louisiana

Supreme Court denied writs on May 23, 2014. The petitioner filed an “Application

for Post-Conviction Relief’, and the State filed a response to the application. The

petitioner subsequently fled a “Supplemental Application for Post-Conviction

Relief” on April 6, 2017. The Court addresses both Applications for Post-Conviction

Relief in these Reasons,

1) ORIGINAL APPLICATION FOR POST-CONVICTION RELIEF:

Claim One:

In Claim One, petitioner alleges that his trial counsel was ineffective because

he: 1) failed to object to “the lead detective’s opinion regarding the credibility of Le

and his accusers” and 2) failed to request a limiting jury instruction concerning the

admission of “bad character evidence” namely, the fact that the defendant bad

previously filed for bankruptcy.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Bd. 2d 674

(1984), the United States Supreme Court held that to establish a claim for ineffective

assistance of counsel, a defendant must show both that 1) that counsel’s performance

6 Kesp- A

fell below an objective standard of reasonableness under prevailing professional

norms, and 2) counsel's inadequate performance prejudiced defendant to the extent

that the trial was rendered unfair and the verdict suspect. State v. Legrand, 2002-

1462 (La. 12/3/03), 864 So. 2d 89.

There is a strong presumption that counsel’s performance is within the wide

range of effective representation. Effective counsel does not mean errorless counsel

and the reviewing court does not judge counsel's performance with the distorting

benefits of hindsight but rather determines whether counsel was reasonably likely to

render effective assistance. State Ex Rel. Smith v, State, 2015-0233 (La. 4/8/16), 188

So. 3d 1042 (2016).

Areview of the trial transcript shows that defense counsel, during opening and

closing statements, attacked the credibility of Detective Nicaud, by painting a picture

that Detective Nicand, after hearing the allegations against defendant, made a

determination in the beginning of the investigation that defendant committed the

crimes and failed to following up on anything the defendant told him. Therefore,

defense counsel’s decision not to object to the testimony may be considered a

reasonable trial strategy because it supported the defendant’s theory of the case.

Because this “might be considered trial strategy,” Strickland, 466 U.S. at 689, the

petitioner has failed to demonstrate that trial counsel performed deficiently by failing

to object to that testimony.

The Court points out that petitioner has also failed to demonstrate that had his

trial counsel made these objections, they would have been meritorious. Jurisprudence

on this issue has allowed lay witnesses to opine as to whether or not they believe a

particular individual’s statement is credible, as long as those opinions are rationally

based upon first-hand perceptions. State v. Carter, 10-0614, p. 12-13 (La. 1/24/ 12),

2

66

84 So. 3d 499, 512-513; State v. Hubbard, 97-0916 (La. App. 5 Cir. 1/27/98), 708

So. 2d 1099, 1106. Therefore, the petitioner has failed to prove any prejudice.

Petitioner asserts that even though Detective Nicand was not tendered as an

expert, because of Nicaud’s position as a Jaw enforcement officer he was given a

“high level of credibility” by the jury which prejudiced the petitioner. The Court

notes that the jury was instructed on the Jaw as it relates to the testimony of

“witnesses”. The jury was specifically instructed regarding ovaluating the credibility

of witnesses and the weight to be given to the witnesses testimony as follows: “In

your evaluation you should carefully scrutinize the circumstances under which the

witness has testified. You may consider a witness’ ability and opportunity to observe

and remember the facts, his or her manner while testifying, and any bias or prejudice

inherent in their testixnony.” (“Jury Instructions”, Record on Appeal, pp. 513-514)

Detective Nicaud was not an expert wituess, but an investigating officer on the case

who provided testimony based on his personal observations. The petitioner has failed

to demonstrate any prejudice.

The petitioner also alleges that his counsel was ineffective because he failed

to request a limiting jury instruction concerning the admission of “bad character

evidence”, specifically that defendant had previously filed for bankruptcy. During

cross-examination of the defendant, the prosecutor asked whether the defendant ever

hadany “money problems”, and the defendant answered “Never”. (Record on Appeal,

at 455:16-455:21) The prosecution then presented evidence that the defendant had

previously filed for bankcuptcy. The defendant’s objection to this evidence was

overruled by the Court because, although not relevant to the particulars ofthe charge,

it was relevant to the defendant’s veracity.

On appeal, the First Circuit Court of Appeal noted in its decision that "evidence

the defendant had filed for bankruptcy protection was not ‘other crimes evidence.’

Further, the trial court did not abuse its discretion in allowing the challenged

evidence. The evidence was properly admitted to contradict the defendant’s testimony

that he ‘never (had) bad money problems.”"!

The petitioner claims that it was error for the court to fail to provide a limiting

instruction to the jury after the admission of other crimes evidence, and that his

counsel should have asked the court to instruct the jury “that they could notinfer Le’s

guilt due to the bankruptcy.” As the Court of Appeal noted in affirming the

defendant’s conviction, evidence that the defendant had previously filed for

bankruptcy was not other crimes evidence. It was properly admitted to contradict the

defendant’s testimony that he had never had money problems. Extrinsic evidence

contradicting a witness’ testimony is admissible when offered solely to attack the

etedibility of a witness. La. CE. art. 607 (D)(2). Credibility of the witnesses was a

critical issue in defendant’s case. The jury was instructed sufficiently on the law.

This claim is denied.

As to petitioner's claim of ineffective assistance of counsel on this issue, the

Court finds that petitioner has failed to demonstrate that counsel’s performance fell

below an objective standard of reasonableness under prevailing professional norms

or that counsel’s performance prejudiced defendant to the extent that the trial was

rendered unfair or the verdict suspect. Therefore, the Court finds this claim to be

without merit and is denied.

Claim Two:

In claim two, petitioner asserts that Code of Criminal Procedure article 782,

which allows for non-unanimous jury verdicts, is unconstitutional. This issue was

' State v. Le, 13-0611, p. 8 (La. App. I Cir. 11/04/13), 2013 WL 5935677, at *5.

4

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—_

raised on appeal, and the Court of Appeal found no merit to the argument. Therefore,

this claim is denied.

2) SUPPLEMENTAL APPLICATION FOR POST-CONVICTION RELIEF:

Yo petitioner’s “Supplemental Application for Post-Conviction Relief’ he

alleges that the trial court erred in allowing Ms. Denise Matheme to testify as an

expert witness for the State because her testimony was not reliable under the factors

set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and

subsequent jurisprudence. Petitioner cites many medical articles relating to

psychology, child sexual abuse, sexual behavior in children and forensic

examinations, as well as case law from other jurisdictions. However, none of the

medical articles or jurisprudence cited by petitioner can be construed as the discovery

of new facts or a new interpretation of constitutional law that would warrant the

granting of a new trial.

Further, defendant's reliance on the case of State v. Ayo, 167 So. 34 608 (La.

* 6/30/15) is also misplaced, as the facts of that case are distinguishable from the facts

of petitioner’s case. In Ayo, the Court found that previously undisclosed pre-trial

statements to witnesses by the victim that were inconsistent with statements she gave

attrial constituted newly discovered evidence, There is no newly discovered evidence

in petitioner’s case. The Court also points out that petitioner had the opportunity

prior to trial to request a Daubert hearing regarding the admissibility of Denise

Matherne’s testimony, and further did not raise this issue as an error on appeal. This

claim is denied.

Petitioner also raises the issue that his counsel was ineffective because he

failed to object to the admissibility of Ms. Matherne’s testimony. The Court finds

that this allegation made by petitioner is conclusory and speculative, and petitioner

has not made the requisite showing that had his counsel objected to the admissibility

ofMs. Matherne’s testimony or requested a Daubert hearing, thatthe outcome would

have been meritorious or would bave changed the outcome of the trial. Therefore,

this claim has no merit and is denied.

Based on the above, the Court finds defendant’s claims in both his

“Application for Post-Conviction Relief” and “Supplemental Application for Post-

Conviction Relief” lack merit and are denied. Further, based on a review of the

record in this matter, the “Application for Post- Conviction Relief’, the

“Supplemental Application for Post-Conviction Relief’; and the Response by the

State of Louisiana, the Court finds it is able to reach a summary disposition of the

petitioner’s application and supplemental application without the need for an

Accordingly, the “Application for Post Conviction Relief” and “Supplemental

Application for Post-Conviction Relief” are dismissed.

Covington, Louisiana, this } day of May, 2017.

Lue pe

Fadge Martin’ Coady

70

STATE of Louisiana

v.

Tam LE

2017 WL 6055438

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

Court of Appeal of Louisiana,

First Circuit.

NO. 2017 KW 1354

December 07, 2017

In Re: Tam Le, applying for supervisory writs, 22nd Judicial District Court, Parish of St.

Tammany, No. 506,845.

BEFORE: WHIPPLE, C.J., MCDONALD AND CHUTZ, JJ.

Opinion

*1 **] WRIT DENIED.

All Citations

Not Reported in So.3d, 2017 WL 6055438, 2017-1354 (La.App. 1 Cir. 12/7/17)

Resp. BD

STATE of Louisiana

v.

TAM LE

263 So.3d 422 (Mem)

Supreme Court of Louisiana.

2018-0085 (La. 2/18/19)

02/18/2019

Applying For Supervisory and/or

Remedial Writs, Parish of St. Tammany,

22nd Judicial District Court Div. F, No.

506845; to the Court of Appeal, First

Circuit, No. 2017 KW 135

ON SUPERVISORY WRITS TO THE

TWENTY-SECOND JUDICIAL

DISTRICT COURT, PARISH OF ST.

TAMMANY

PER CURIAM:

**1 Denied. Relator fails to show he

received ineffective assistance of counsel

under the standard of _Strickland_v.

Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984).

Relator has now fully litigated his

application for post-conviction relief in

state court. Similar to federal habeas

relief, see 28 U.S.C. § 2244, Louisiana

post-conviction procedure envisions the

filing of a second or successive application

only under the narrow circumstances

provided in La.C.Cr.P. art. 930.4 and

within the limitations period as set out in

La.C.Cr.P. art. 930.8. Notably, the

legislature in 2013 La. Acts 251 amended

that article to make the procedural bars

against successive filings mandatory.

Relators claims have now been fully

litigated in accord with La.C.Cr.P. art.

930.6, and this denial is final. Hereafter,

unless he can show that one of the narrow

exceptions authorizing the filing of a

successive application applies, relator has

exhausted his right to state collateral *423

review. The district court is ordered to

record a minute entry consistent with this

per curiam.

Hughes, J., would grant and assigns

reasons.

Hughes, J., dissents and would grant the

writ.

**] In this case a police officer with

twenty-two years experience testified

before the jury that the victims were

telling “one-hundred percent the truth,”

and a school counselor was accepted as an

expert and testified that from her

“professional perspective” that she saw

nothing “inconsistent” with sexual child

abuse. It cannot be said that the jury’s

verdict was surely attributable to these

errors, and they are therefore not

harmless.

All Citations

263 So.38d 422 (Mem), 2018-0085 (La.

2/18/19)

Rese C

Ghetti, Michelle 6/25/2019

For Educational Use Only

State v. Le, Not Reported in So.3d (2013)

2013-0611 (La.App. 1 Cir. 11/4/13)

2013 WL 5935677

UNPUBLISHED OPINION. CHECK COURT RULES

BEFORE CITING.

NOT DESIGNATED FOR PUBLICATION

Court of Appeal of Louisiana,

First Circuit.

STATE of Louisiana

Vv.

Tam Q. LE.

No. 2013 KA 0611.

|

Nov. 4, 2013.

Appealed from the Twenty-Second Judicial District

Court, In and for the Parish of St. Tammany, State of

Louisiana, Docket Number # 506845, Division “F”

Honorable Martin E. Coady, Judge Presiding.

Attorneys and Law Firms

Walter P. Reed District Attorney Covington, LA. Counsel

for Plaintiff/Appellee State of Louisiana.

Kathryn W. Landry Special Appeals Counsel Baton

Rouge, LA, State of Louisiana.

Andre Robert Belanger Baton Rouge, LA, Counsel for

Defendant/Appellant Tarn Q. Le.

Before PARRO, GUIDRY, and DRAKE, JJ.

Opinion

GUIDRY, J.

*1 The defendant, Tarn Q. Le, was charged by amended

grand jury indictment with two counts of aggravated rape,

violations of — La. R.S. 14:42, and pled not guilty on

both counts. Following a jury trial, he was found guilty as

charged on both counts, with ten of twelve jurors voting

guilty. On each count, he was sentenced to life

imprisonment at hard labor without benefit of probation,

parole, or suspension of sentence. The trial court ordered

the sentences to mun concurrently. The defendant moved

for reconsideration of sentence, but the trial court denied

the motion. The defendant now appeals, contending: the

trial court erred in allowing the case detective to offer

opinion evidence concerning the credibility of the victims

and the defendant; the trial court erred in allowing the

presentation of other crimes evidence; the trial court erred

in giving an Allen’ charge to the jury; the proceedings

were defective, because the jury returned less than

unanimous verdicts; and the trial court erred in imposing

unconstitutionally excessive sentences. For the following

reasons, we affirm the convictions and sentences on

counts one and two.

t Allen v. United States, 164 U.S, 492, 17 S.Ct. 154

41 L.Ed. 528 (1896).

FACTS

The victim of count one, N.N.V., was twelve years old at

the time of her testimony at trial on October 30, 2012. She

indicated that when her mother was in Vietnam, the

defendant, her stepfather, tried “to put his private part into

mine.” She stated the incident happened after she fell

asleep while watching a movie in her mother’s room.

According to N.N.V., when she woke up during the night,

her shorts “were gone,” and the defendant was on top of

her. She picked up her shorts and ran to her room.

The State also played a recording of the February 22,

2011 interview of N.N.V. N.N.V. discussed the incident

she had testified about and used sketches of an adult male

and a female child to indicate the defendant had tried to

put his penis in her vagina. She stated that incident

occurred when she was eight or nine years old. He told

N.N.V. not to tell her mother what he had done.

The victim of count two, N.D.V., testified her date of

birth was October 18, 2000. She indicated the defendant

licked her vagina while her mother was in Vietnam. She

also indicated the defendant had put his hand in her

vagina. She stated the incidents occurred when she was

sleeping with the defendant.

The State also played a recording of the February 22.

Regp. D

Ghetti, Michelle 6/25/2019

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State v. Le, Not Reported in So.3d (2013)

2013-0611 (La.App. 1 Cir. 11/4/13)

2011 interview of N.D.V. N.D.V. used a sketch of a

female child to indicate the defendant had licked her

vagina. She stated that when she was eight or nine years

old, the defendant had called her into her mother’s room

and told her to lie on the bed. He then took her pants and

underwear off, pulled her vaginal lips apart, and licked

her vagina. N.D.V. stated the incidents involving the

defendant putting his hand into her pants occurred in the

living room while her mother was using the computer in

her room. In regard to those incidents, N.D.V. stated that,

on two or three occasions, the defendant put his hand in

her pants and touched or rubbed her vagina after telling

her to sit in his lap.

*2 The mother of the victims testified that she had been

married to the defendant and had lived with him in Slidell

in 2008 and 2009. They had one child together (a son).

They separated on January 15, 2009, and divorced on

December 13, 2010. On January 15, 2009, she returned

from Vietnam, told the defendant she had an affair while

there, and she no longer wanted to stay with him. She did

not learn of the victims’ allegations against the defendant

until she was contacted by their school counselor on

February 8, 2011. At that time, she was married to

someone other than the defendant, and had a son with her

new husband. She denied “‘put[ting] [the victims] up to

lying about [the defendant].”

The defendant testified he had never committed any crime

in his life and denied molesting the victims. He indicated

the victims’ mother went to Vietnam between December

of 2008 and January of 2009 to get an “extra facial

license.” He claimed their relationship deteriorated,

because she kept talking to the man with whom she had

an affair in Vietnam. He stated she was arrested for

assaulting him and told him, “I am going to get you when

everything done.”

IMPROPER TESTIMONY

In assignment of error number 1, the defendant argues the

trial court erred in allowing Slidell Police Department

Detective Brian Nicaud to “more or less” provide an

expert opinion concerning the veracity of the victims,

based on his years of experience. He argues that Detective

Nicaud improperly gave opinion testimony concerning:

the mother’s demeanor being consistent with a person

receiving “devastating mews”; Vietnamese culture

frowning on reporting these kinds of cases; believing the

victims had provided consistent testimony and had given

“100% truth’; and, although the defendant denied

culpability, the defendant’s statement confirming

Detective Nicaud’s belief that an arrest was justified.

™ La CE. art, 702 addresses the admissibility of expert

testimony and provides, “[i}f scientific, technical. or other

specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in

the form of an opinion or otherwise.” Notably, the

Louisiana Supreme Court has placed limitations on this

codal provision in that. “[e]xpert testimony. while not

limited to matters of science, art or skill, cannot invade

the field of common knowledge, experience and

education of men.” State_v. Young, 09-1177, p. 8

(La.4$/10), 35 So.3d 1042. 1046-47, cert. denied, US.

— 131 + S.Ct. 597, — US. . 131 S.Ct. 597

178 L.Ed.2d 434 (2010).

Testimony in the form of an opinion or inference

otherwise admissible is not to be excluded solely because

it embraces an ultimate issue to be decided by the trier of

fact. However, in a criminal case, an expert witness shall

not express an opinion as to the guilt or innocence of the

accused. La. C.E. art. 704. Additionally, expert

assessment of witness credibility is improper. State.

Foret, 628 S.2d 1116, 1130 (La.1993).

*3 Initially, we note Detective Nicaud was neither

offered, nor accepted, as an expert witness in this case. He

indicated he had worked for the Slidell Police Department

for twenty-two years and investigated the instant case. He

testified without objection that the demeanor of the

victims’ mother was “very soft spoken and consistent

with a mother that just learned some, you know,

devastating news. but she was a little apprehensive.” He

also testified without objection that she was apprehensive,

“just, you know, by what she spoke to me and me asking

her questions as far as her culture, this is not something

that is reported. It is a disgrace and so. she was a little

apprehensive and she even admitted herself that if the

school did not notify her and she had learned this

information ahead of time she would have dealt with this

in the family unit.” In response to a State question if there

were “other things” consistent with what you have found

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State v. Le, Not Reported in So.3d (2013)

2013-0611 (La.App. 1 Cir. 11/4/13)

in your experience with child abuse, he replied, without

objection, “[y]es. It was consistent.” In response to a State

question, “[iJf you had believed that the children were

lying to you and that the mother had put them up to it,

would you have obtained that arrest warrant?,” he replied,

without objection, “[n]Jo.” In response to a State question,

“[a]fter your interview with the defendant, did that change

your mind in any way about the status of the case?,” he

replied, without objection, “[{cJonfirmed it.”

The defense cross-examined Detective Nicaud concerning

why he had not interviewed the parents of the victims’s

mother. Detective Nicaud replied they were in Vietnam

when the allegations were made. The defense asked

Detective Nicaud if he had a phone number for the

grandparents and, without objection, he replied:

They would be home in about a

month and I was very confident

that what the girls said and what

(the victims’ mother] said that what

they said happened, based on my

investigation, the initial report from

the officer and which is our

protocol to do a forensic interview.

We did a forensic interview. It was

my understanding from my

experience and my years of

investigations on the Slidell Police

Department | felt those girls were

telling me one-hundred percent the

truth.

The defendant failed to object to the challenged

testimony. Accordingly. he failed to preserve the issue of

Detective Nicaud’s improper testimony, if any, for

review. See La. C.E. art. 103(A)(1) (“Error may not be

predicated upon a ruling which admits ... evidence unless

a substantial right of the party is affected, and ... a timely

objection ... appears of record, stating the specific ground

of objection”); La. C. Cr. P. art. 841(A) (“An irregularity

or error cannot be availed of after verdict unless it was

objected to at the time of occurrence”). The grounds for

objection must be sufficiently brought to the court’s

attention to allow it the opportunity to make the proper

ruling and prevent or cure any error. See State _v.

Trahan, 93-11 16, p. 16 (La.App. ist Cir.5/20/94), 637

So.2d 694, 704.

*4 This assignment of error is without merit.

OTHER CRIMES EVIDENCE

In assignment of error number 2, the defendant argues the

trial court erred in allowing the prosecution’s presentation

of “other crimes evidence” not previously ruled

admissible and failed to provide a limiting instruction to

the jury.

It is well settled that courts may not admit evidence of

other crimes to show the defendant as a man of bad

character who has acted in conformity with his bad

character. See La, C.E. art. 404(B)(1). Evidence of other

crimes, wrongs, or acts committed by the defendant is

generally inadmissible because of the substantial risk of

grave prejudice to the defendant. However, the State may

introduce evidence of other crimes, wrongs, or acts if it

establishes an independent and relevant reason, such as

proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

La, C.E. art. 404(B)(1). Upon request by the accused, the

State must provide the defendant with notice and a

hearing before trial if it intends to offer such evidence.

Even when the other crimes evidence is offered for a

purpose allowed under Article 404(B)(1), the evidence is

not admissible unless it tends to prove a material fact at

issue or to rebut a defendant's defense. The State also

bears the burden of proving that the defendant committed

the other crimes, wrongs, or acts. State_v. Rose,

06-0402, p. 12 (La.2/22/07), 949 So.2d 1236, 1243.

Any inculpatory evidence is “prejudicial’ to a defendant,

especially when it is “probative” to a high degree. State v.

Germain, 433 So.2d 110, 118 (La.1983). As used in the

balancing test, “prejudicial” limits the introduction of

probative evidence of prior misconduct only when it is

unduly and unfairly prejudicial. Id: see also Old Chief

v. United States, 519 U.S ... 172, 180, 117 S.Ct. 644, 650,

136 L.Ed.2d $74 (1997) (“The term ‘unfair prejudice,’ as

to a criminal defendant. speaks to the capacity of some

concededly relevant evidence to lure the factfinder into

declaring guilt on a ground different from proof specific

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2013-0611 {La.App. 1 Cir. 11/4/13)

to the offense charged.”).

So.2d at 1244.

Rose, 06-0402 at p. 13, 949

On direct examination, the defendant testified he treated

the victims “just like my kid.” He claimed he moved them

to Chalmette to provide them with better schools. He also

claimed he used money from damages to his house caused

by Hurricane Katrina to have a house in Slidell so the

victims could have a better education than if they lived in

New Orleans. On cross-examination, the State asked the

defendant if he was having financial problems around the

time of the allegations, and if he had ever had financial

problems. The defendant answered, “I never have bad

money problems.” The State also asked the defendant if

he had owned property in Jefferson Parish, and he replied.

“{nJo,”

On direct examination of the mother of the victims, the

State asked if she was aware the defendant had declared

bankruptcy. The defense objected, arguing, “that has

nothing to do with this case.” At a bench conference. the

State indicated the defendant had testified he never had

property on the west bank, never had problems with the

property, and never in his life had money problems. The

defense questioned the relevance of the evidence. The

trial court ruled the evidence was not relevant to the

particulars of the charge, but was relevant to the

defendant's veracity, and noted the defense had failed to

object when the defendant was questioned about whether

he had any financial troubles. Thereafter, the State asked

the mother of the victims if it was true the defendant had

declared bankruptcy. She replied, “I don’t recall that.”

The State showed her a document supporting its claim

and asked if the document reflected the defendant had

declared bankruptcy, would she have any reason to doubt

the document. She replied. “[i]f that’s what it says it is

then it is.”

*5 Initially, we note evidence the defendant had filed for

bankruptcy protection was not “other crimes evidence.”

Further, the trial court did not abuse its discretion in

allowing the challenged evidence. The evidence was

properly admitted to contradict the defendant's testimony

that he “never [had] bad money problems.” Except as

otherwise provided by legislation, extrinsic evidence

contradicting a witness’s testimony is admissible when

offered solely to attack the credibility of a witness. unless

the court determines that the probative value of the

evidence on the issue of credibility is substantially

outweighed by the risks of undue consumption of time.

confusion of the issues, or unfair prejudice. La C.E. art.

607(D)(2).

We also note that the defense failed to request a limiting

instruction concerning the challenged evidence. A party

may not assign as error the failure to give a jury charge

unless an objection thereto is made before the jury retires

or within such time as the court may reasonably cure the

alleged error. The nature of the objection and grounds

therefore shall be stated at the time of objection. La. C.

Cr, P. art. 801(C).

This assignment of error is without merit.

ALLEN CHARGE

In assignment of error number 3, the defendant argues the

trial court erred in providing an A//en charge to the jury

when they advised they were deadlocked.

An Alfen charge is an instruction acknowledged to be

calculated to dynamite jury deadlocks and achieve jury

unanimity. State _v. Nicholson, 315 So0.2d_ 639, 641

(La.1975). Such a charge, and any coercive modification

thereof, is banned in the courts of Louisiana. /d. An Allen

charge emphasizes that the jury has a duty to decide the

matter at hand, which implies that the trial judge will not

accept a mistrial in the case. Additionally. when the duty

to reach a verdict is coupled with the trial court's

admonition that those in the minority should reconsider

their position, there exists an almost overwhelming

pressure to conform to the majority's view. State v.

Washington, 93-2221. p. 11 (La.App. Ist Cir.11/10/94),

646 So.2d 448. 454-55.

In the instant case, on October 31. 2012, at 1:03 p.m., the

jury retired for lunch and deliberation. They returned to

the courtroom at 2:25 p.m. and requested transcripts of

the forensic interviews, the letter that the victim of count

one wrote to her teacher, and a description of lesser

charges. The trial court advised the jury they could not be

provided with the requested transcripts or letter, but

recharged them on the lesser charges. The jury returned to

the courtroom at 4:00 p.m. with a note indicating they

were “currently hung.”

Ghetti, Michelle 6/25/2019

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State v. Le, Not Reported in So.3d (2013)

2013-0611 (La.App. 4 Cir. 11/4/13)

The trial court instructed them as follows:

I have indicated to counsel that your second note came

out, it reading currently hung, not disclosing the

number you put, that’s not appropriate for me to do. All

I can ask you is it has been a few day(s] trial. It is a

serious matter. You went in around 1:00, you have had

lunch, you have been at it a few hours. I would ask you

to please go back and consult with one another again,

consider each other["]s views, discuss the evidence

with the objective of reaching a just verdict. Again, of

course, you have to decide the case for yourself, but

you have to be open to a discussion with your fellow

jurors with the objective of reaching a just verdict.

*6 So, I ask you to please go back and give it another

try.

Thank you.

The defense objected to the instruction, stating it was

“close to an Allen charge,” and the court noted the

objection, but stated, “I don’t believe it is anywhere near

an Allen charge.” Thereafter, the jury returned to the

courtroom at 7:00 p.m. and returned a verdict.

The trial court did not give a prohibited Al/en charge in

this matter. The court did not admonish the minority

members of the jury to reexamine the reasonableness of

their opinion or adherence to their original convictions,

Nor did the court state that it would not accept a mistrial,

The charge does not appear coercive in its total context

and does not rise to an Allen/Nicholson level. It was not

so fundamentally unfair that it deprived the defendant of

due process. The court merely recognized the jury had

only been deliberating for a few hours and asked the

jurors to consult with one another again. consider each

other’s views, and discuss the evidence with the objective

of reaching a just verdict. Indeed, the note from the jury

stated they were “currently hung,” and thus, it was logical

to conclude that further deliberations might result in their

atriving at a verdict.

This assignment of error is without merit.

CONSTITUTIONALITY OF NON-UNANIMOUS

VERDICTS

In assignment of error number 4, the defendant argues the

proceedings were defective because the jury returned less

than unanimous verdicts.

The motion for a new trial is based on the supposition that

injustice has been done the defendant, and, unless such is

shown to have been the case, the motion shall be denied.

no matter upon what allegations it is grounded. La. C. Cr.

P. art. 851. The trial court’s denial of a motion for new

trial will not be disturbed absent a clear abuse of

discretion. State v. Maize, 94-0736, p. 28 (La.App. 1st

Cir.5/5/95), 655 $0.2d 500, 517, writ denied, 95-1894

(La.12/15/95). 664 So.2d 451.

Prior to sentencing, the defendant moved for a new trial,

arguing, inter alia, his convictions by “10-2 verdict[s]”

were inconsistent with our legal history and violated his

Sixth Amendment and procedural due process rights.

Following a hearing, the motion was denied.

There was no clear abuse of discretion in the denial of the

motion for new trial. The provisions of La. Const. art. I, §

17(A) and La. C. Cr. P. art. 782(A) are constitutional and

do not violate the Fifth, Sixth, and Fourteenth

Amendments, State v. Bertrand, 08-2215 and 08-2311, p.

8 (La_ 3/17/09), 6 So.3d_738, 743: State_y. Jones,

09-0751, p. 11 (La.App. Ist Cir.10/23/09), 29 So.3d 533,

540. There is no authority to the contrary. Accordingly.

the trial court was not, and we are not. at liberty to ignore

the controlling jurisprudence of superior courts on this

issue. See Bertrand, 08-2215 and 08-2311 at p. 8, 6

So.3d at 743.

This assignment of error is without merit.

EXCESSIVE SENTENCES

*7 In assignment of error number 5, the defendant argues

the mandatory life sentences imposed upon him were

unconstitutionally excessive, because he was a law

abiding citizen prior to the instant offenses; because the

factual allegations proffered by the prosecution render

application of a life sentence overly broad; because plea

negotiations indicated the State ‘was comfortable” with

sentences less than life in this matter: and because the

defendant maintained stable employment and honored his

Ghetti, Michelle 6/25/2019

For Educational Use Only

State v. Le, Not Reported in So.3d (2013)

2013-0611 (La.App. 1 Cir. 11/4/13)

bail obligation.

Article I, Section 20, of the Louisiana Constitution

prohibits the imposition of excessive punishment.

Although a sentence may be within statutory limits, it

may violate a defendant’s constitutional right against

excessive punishment and is subject to appellate review.

Generally, a sentence is considered excessive if it is

grossly disproportionate to the severity of the crime or is

nothing more than the needless imposition of pain and

suffering. A sentence is considered grossly

disproportionate if, when the crime and punishment are

considered in light of the harm to society, it is so

disproportionate as to shock one’s sense of justice. A trial

judge is given wide discretion in the imposition of

sentences within statutory limits, and the sentence

imposed should not be set aside as excessive in the

absence of manifest abuse of discretion. State v. Hurst,

99-2868, p. 10 (La.App. Ist Cir.10/3/00). 797 So.2d 75,

83, writ denied, 00-3053 (La.10/5/01), 798 So.2d 962.

In State _v. Dorthey, 623 So.2d_ 1276, 1280-81

(La.1993). the Louisiana Supreme Court recognized that

if a trial judge determines that the punishment mandated

by the Habitual Offender Law makes no “measurable

contribution to acceptable goals of punishment” or that

the sentence amounts to nothing more than “the

purposeful imposition of pain and suffering” and is

“grossly out of proportion to the severity of the crime.” he

is duty bound to reduce the sentence to one that would not

be constitutionally excessive.

However, the holding in Dorthey was made only after.

and in light of, express recognition by the court that, “the

determination and definition of acts which are punishable

as crimes is purely a legislative function. It is the

Legislature's prerogative to determine the length of the

sentence imposed for crimes classified as felonies.

Moreover, courts are charged with applying these

punishments unless they are found to be

unconstitutional.” Dorthey, 623 So.2d_at_1278

{citations omitted).*

The sentencing review principles espoused in Dorthey

were not restricted in application to the mandatory

minimum penalties provided by Led La. R.S. 15:529.1.

State _v. Henderson, 99-1945 (La.App._Ist_ Cir.

6/23/00), 762 So.2d 747, 760 n. 5. writ denied.

00-2223 (La.6/15/01), 793 So.2d 1235.

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d

672, the Louisiana Supreme Court reexamined the issue

of when Dorthey permits a downward departure from the

mandatory minimum sentences in the Habitual Offender

Law. The court held that to rebut the presumption that the

mandatory minimum sentence was constitutional, the

defendant had to “clearly and convincingly” show that:

fhe] is exceptional, which in this

context means that because of

unusual circumstances this

defendant is a victim of the

legislature’s failure to assign

sentences that are meaningfully

tailored to the culpability of the

offender, the gravity of the offense,

and the circumstances of the case.

*8 Johnson, 97-1906 at p. 8. 709 So.2d at 676.

Whoever commits the crime of aggravated rape shall be

punished by life imprisonment at hard labor without

benefit of parole, probation, or suspension of sentence.

La. R.S. 14:42(D)(1). Following the denial of post-trial

motions. the defense waived sentencing delays, and the

court sentenced the defendant, on counts I and II, on each

count, to life imprisonment at hard labor without benefit

of probation. parole. or suspension of sentence. The trial

court ordered the sentences to run concurrently.

The defendant failed to clearly and convincingly show

that, because of unusual circumstances, he was a victim of

the legislature’s failure to assign sentences that were

meaningfully tailored to his culpability. the gravity of the

offenses, and the circumstances of the case. Accordingly,

there was no reason for the trial court to deviate from the

provisions of | La. R.S. 14:42(D){1) in sentencing him.

Additionally, the sentences imposed were not grossly

disproportionate to the severity of the offenses. and thus.

were not unconstitutionally excessive.

This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED ON

COUNTS ONE AND TWO.

Ghetti, Michelle 6/25/2019

For Educational Use Only

State v. Le, Not Reported in So.3d (2013)

2013-0611 (La.App. 1 Cir. 11/4/13)

Not Reported in So.3d, 2013 WL 5935677, 2013-0611

(La.App. | Cir. 11/4/13)

All Citations

End of Document © 2019 Thomson Reuters. No claim to onginal U.S. Government Works.

STATE of Louisiana

Vv.

TAM Q. LE.

140 So.3d 724 (Mem)

Supreme Court of Louisiana.

2013-2828 (La. 5/23/14)

May 23, 2014.

Prior report: La.App., 2013 WL 5935677.

Opinion

In re Le, Tam Q.;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St.

Tammany, 22nd Judicial District Court Div. F, No. 506845; to the Court of Appeal, First

Circuit, No. 2013 KA 0611.

Denied.

All Citations

140 So.3d 724 (Mem), 2013-2828 (La. 5/23/14)

Appendix E

Trial

Transcript

Record

Wednesday, October 31, 2012

COURT MET THIS DAY PURSUANT TO ADJOURNMENT PRESENT AND

PRESIDING HIS HONOR MARTIN E COADY, JUDGE, DIVISION "F", HAROLD

BARTHOLOMEW, ASSISTANT DISTRICT ATTORNEY, RODNEY J STRAIN, JR.,

SHERIFF AND MALISE PRIETO, CLERK OF COURT (Ronnie Plaisance and Willie

Cooper, Bailiffs and Karen Jenkins, Court Reporter)

506845 STATE OF LOUISIANA

VS

TAM QLE

The defendant being present in open Court attended by Counsels Marion B. Farmer and

James G. Burke III and this matter being on assignment for felony jury trial, the trial

having been recessed from October 30, 2012, the jury was brought to their proper seats in

the courtroom.

Court-approved Vietnamese Interpreter Hai Hoang was sworn as interpreter and evidence

was heard on behalf of the State, with the following named person sworn to testify:

6. Hung Lam

The State rested at this time.

Evidence was heard on behalf of the Defense, with the following named person sworn to

testify: 1. Tam Q. Le

Bench conference was held with State and Defense.

Court took a brief recess and the jury was retired to the jury room.

The defendant being present in open Court attended by Counsels Marion B. Farmer and

James G. Burke III, the jury was returned to the courtroom.

Evidence was heard on behalf of the Defense, with the following named person sworn to

testify: 2. Tuyen Nguyen

Bench conference held with State and Defense. Defense objected to State questioning

witness regarding defendant filing for bankruptcy. Argument heard on behalf of State

and Defense; whereupon, Court allowed State’s line of questioning and noted Defense’s

objection.

31

Court took a brief recess and the jury was retired to the jury room.

The defendant being present in open Court attended by Counsels Marion B. Farmer and

James G. Burke Il, the jury was returned to the courtroom.

Evidence was heard on behalf of the Defense, with the following named persons swom to

testify: 3. Victoria Le

4, Amber Dang

The Defense rested at this time.

Evidence was offered, introduced and filed on behalf of the State, with the following

item: S-10 Westlaw Bankruptcy Filing Record for Tam Q Le

State had no rebuttal evidence.

Closing argument was heard on behalf of the State, followed by closing argument by

Defense Counsel and concluding with the State’s rebuttal argument.

Court charged the jury, thanked and excused the alternate jurors and retired the jury for

lunch and deliberation at 1:03 p.m.

The defendant being present in open Court attended by Counsels Marion B. Farmer and

James G. Burke III, the jury was returned to the Courtroom at 2:25 p.m. with note #1,

requesting the following: "Transcripts of Forensic Interviews"; “Letter Ngoc Ni wrote to

Teacher" and, "Description of Lesser charges". Court advised jury they cannot be given

the transcripts or the letter. Court recharged the jury as to the lesser charges and the jury

was returned to deliberate at 2:35 p.m.

The defendant being present in open Court attended by Counsels Marion B. Farmer and

James G. Burke III, the jury was returned to the courtroom at 4:00 p.m. with note #2,

indicating they were currently hung. Court instructed jurors to return to the jury room to

discuss further and consider each other’s views with the objection to reach a just verdict

and the jury was returned to deliberate at 4:02 p.m.

Court ordered note #2 sealed.

Defense objected to Court’s instruction to the jury as it was close to being an Allen

charge and Court so noted.

The defendant being present in open Court attended by Counsels Marion B. Farmer and

James G. Burke III, and after mature deliberation, the jury was returned to the courtroom

at 7:00 p.m. and through their foreperson, returned their written verdict to the Count,

32

STATE OF LOUISIANA NUMBER: 506845 “F”

228° JUDICIAL DISTRICT

VERSUS PARISH OF ST. TAMMANY

OF LOUISIANA

MOTION FOR NEW TRIAL PURSUANT TO LA.C.CR.P. ART 851

D, 2), (4) & (5) AND MOTION FOR POST JUDGEMENT OF

ACQUTTAL PURSUANT TO LA. C.CR.P. ART. 821 B &C

NOW INTO COURT, through undersigned counsel comes defendant, Tam Q. Le who

tespectfully represents the following:

1,

Defendant was indicted for two counts of aggravated rape.

2.

On October 31, 2012 a twelve person jury returned a ten —two verdict of guilty as

charged as to both counts of the indictment.

3.

Defendant now moves for a new trial on both counts of the indictment pursuant to the

following provisions of La. C.Cr.P. art.851;

4.

Pursuant to La. C.Cr.P. art 851 (1), the verdict is contrary to the law and the evidence;

5.

Pursuant to La. C.Cr.P. art. 851 (2), the court’s rulings on written motions or objections

made during the proceedings, shows prejudicial error;

6.

Pursuant to La. C.Cr.P. art. 851 (4) defendant has discovered, since the verdict a

prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable

diligence by him was not discovered before the verdict or judgement.

7.

Pursuant to La. C.Cr.P. art 851 (5) the ends of justice would be served by the granting of

a new trial, although defendant may not be entitled to a new trial a matter of strict legal right.

8.

106

Conjunctively and alternatively, defendant moves for a post verdict judgment of acquittal

pursuant to La. C.Cr.P, art 821 B because the evidence, viewed in the light most favorable to the

state, does not reasonably permit a finding of guilt.

9,

Alternatively, defendant moves for a motion for post verdict judgment of acquittal

pursuant to La. C.Cr.P. art 821 C because the evidence viewed in the light most favorable to the

state does not reasonably permit a finding of guilty.

10.

Defendant has filed a memorandum in support of his motions.

WHEREFORE, defendant prays that he be granted a new trial as to both counts of the

indictment against him pursuant to La. Cr.P. art 851 (1), (2), (4), (5) and conjunctively and

alternatively that he be granted a post verdict judgment verdict of acquittal pursuant to La.

C.Cr.P. art 821 B or alternatively 821 C.

ES G. BURKE, IH #¥8148

404 EAST GIBSON

70433

Certificate of Service

I HEREBY CERTIFY that a copy of the pleadings has been served on counsel for all

7 Nee bey?

parties by either hand delivery or facsimile on the 18" day of himy, 2012.

S

JAMES G. BURKE, Il

107

TWENTY-SECOND JUDICIAL DISTRICT

STATE OF LOUISIANA FILED

PARISH OF ST. TAMMANY

APR 15 2013

SGARRYT-EACOMER .

DEPUTY ‘

THE STATE OF LOUISIANA DIVISION: “F”

VERSUS NUMBER: 506845

TAMQ.LE

THE HONORABLE MARTIN E, COADY

JUDGE

A Transcript of the Proceedings

Taken in Open Court at Covington, Louisiana, on

October 30, 2012

sum GOPY

APPEARANCES:

REPRESENTING THE STATE OF LOUISIANA:

HAROLD BARTHOLOMEW, JR., ESQ.

Assistant District Attorney

REPRESENTING THE DEFENDANT:

JAMES G. BURKE, IH, ESQ.

AND

MARION FARMER, ESQ.

REPORTED BY: KAREN CARITE JENKINS, C.C.R.

Official Court Reporter

314

This certificate is valid only for a transcript accompanied by my

original signature and original required seal on this page.

I, KAREN CARITE JENKINS, Official Court Reporter in

and for the State of Louisiana, employed as an official court

reporter by the Twenty-Second Judicial District Court for the State

of Louisiana, as the officer before whom this testimony was taken,

do hereby certify that this testimony was reported by me in the

stenotype reporting method, was prepared and transcribed by me or

under my direction and supervision, and is a true and correct

transcript to the best of my ability and understanding; that the

transcript has been prepared in compliance with the transcript

format guidelines required by statute or by rules of the board or by

the Supreme Court of Louisiana, and that I am not related to

counsel or to the parties herein nor am I otherwise interested in the

outcome of this matter.

Fin end for the State

af Low

Cactieste Number 91227

KAREN CARITE JON |

JENKINS

Certified Gout Reporter}

313

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