State of Louisiana VS Tam Q Le
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL T FIRS CiRCUIT NiJMBER 2 kA 061 l 13 STATE OF LOUISIANA VERSUS TAM Q LE Judgment Rendered NOV 0 4 2Q13 a Appealed from the Second Twenty Judicial District Court In and for the Parish of St Taminany State of Louisiana t Docket Number 506845 Division F Honorable Martin E Coady Judge Presiding Walter P Reed Counsel for Plaintiff Appellee District State of Louisiana Attorney Covington LA Kathryn W Landry State ofLouisiana Special Appeals Counsel Baton Rouge LA Andre Robert Baton Rouge Belanger LA BEFORE Counsel far Defendant Appellant Tam Q Le PARRO GUIDRY AND DRAKE JJ GUIDRY J The defendant Tam Q Le was charged by amended grand jury indictment with two counts of aggravated rape violations of La R 14 and pled not S 42 guilty on both counts Following a jury trial he was found guilty as charged on both counts with ten of twelve juro voting guilty rs On each count he was sentenced to life imprisonment at hard iabor without benefit of probation parole or suspension of sentence The trial court ordered the sentences to run concurrently The defendant moved far 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 ixi imposing unconstitutionally excessive sentences For the following reasons we affirm the convictions and sentences on counts one and two FACTS The victim of count one N was twelve years old at the time of her V testimony at trial on October 30 2012 She indi that when her mother was in cated 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 room According to N when she woke up during the night her s V shorts were gone and the defendant was on top of her She picked up her shorts and ran to her room i Allen v United States Ct 164 U 492 17 S 154 41 L1896 S 528 Ed The State also played a recording of the February 22 2011 interview of V V N N 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 ine occ when she was eight or nine years ident rred old He told NN not to tell her moth what he iad done V r The victim of count two N testified her date of bir was October 18 V D th 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 2011 interview of V V D D N N 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 room and told her to lie on the bed He then took her s pants and underwear off pulled her vaginal lips apart and licked her vagina V D N 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 Istated that on two or three occasions the V D defendant put his hand in her pants and touched ar rubbed her vagina after telling her to sit in his lap he Imother of the victims te5tified 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 retumed 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 counselar on February 8 2011 At that time she was married to someone other than the defendant and had a son wiih her new husband She denied put the victims up to lying about the defendant ting The defendant testified he had never committed any crime in his life and denied molesting the victims He indicated the victims mother went to Viemam between December of 2008 and January of 2009 to get an facial license extra 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 mare ar 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 demeanar being consistent with a person s receiving devastating news 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 s defendant statement confirming Detective Nicaud belief that an arrest was s justified La C art 702 addresses the admissibility of expert testimony and provides E fscientific tecl or other specialized knowledge wi11 assist the trier of fact to i nical understand the evidence or to determine a fact iri 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 testimony while not xpert limited to matters of science art or skill cannot invade the field of common knowledge eaperience and education of inen State v YounQ 09 p 8 1177 La 3d 47 10 5 4 35 So 1042 1046 cert denied S U 131 S 597 178 Ct 2d Ed L434 2010 Testimony in the form of af o or inferer otherwise admissible is not inion ce 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 art 704 Additionally expert E assessment of witness credibility is improper State v Foret 628 S 1116 1130 2d La 1993 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 years and investigated the instant case two 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 Yo a State question if there were other things consistent with what you have found in your experience with child abuse he replied without objection y It was consistent In response to a State question es fyou i had believed that the children were lying to you and that the mother had put them up to it would you ha obtained that arrest warrant he replied without e objection n o In response to a State question a your interview with fter the defendant did that change your rn in anv way a Lhe status of the case he nc3 oat replied without objection c it onfrmed The defense cross I examined etective Nicaud concerning why he had not interviewed tha parents ofthe vic mother Iaetective Nicaud replzed they were ims in Vietnam when the allegations were mad 7 defense asked Deteciive Nicaud if he he had a phone number for th2 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 Departrnent I felt those girls were telling me one percent the truth hundred The defendant failed to object to the challenged testimony Accordingly he failed to preserve the issue of Detective Nicaud improper testimony if any for s review See La C art 103 Emar may not be predicated upon a ruling E 1 A which admits rimely objection evidence unless a substantiai right of the party is affected and a appears of record stating the specific ground of objection La C Cr P art 841 An irregularity or error cannot be availed of after verdict A unless it was objected to at the time of occurren The grounds for objection must ce be sufficiently brought to the court attention to allow it the opportuniry to make the s proper ruling and prevent ar cure any enor 3ee State v Trahan 93 16 p 16 La ll App lst Cir 5637 So 694 704 94 20 2d 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 presentation of other crimes evidence not previously s ruled admissible and failed to provide a limiting instruction to the jury I It is well settled that cow may not adn evidence of other crimes to show it the defendant as a man of bad character who has acted in conformity with his bad character See La C art 404 11 Evidence of other crimes wrongs or acts E Bj committed by the defendant is generally inadnr because of the substantial ible is risk of grave ce prejud to the defendant Hawzver the Stace may introduce evidence of other crimes wrongs r acts ii it establishes an in and ependent relevant reason such as proof of motive opportunity intent preparation plan knowledge identity or absence of mistake ox accident La C art 04 E 1 B 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 the 1 B evidence is not admissible unless it tends to prove a material fact at issue ar to rebut a defendant defense The State also bears the burden of proving that the s defendant committed the other crimes wrongs or acts State v Rose 06 0402 p 12 La 2949 So 1243 07 22 1236 2d Any inculpatory evidence is prejudicial to a defendant especially when it is probative to a high degree State v Germain 433 So 10 118 La 1983 2d As used in the balancing test pYejudicial limits the introduction of probative evidence of prior misconduct ora when it s unduly and unfairly prejudicial Id Iy see also Old Chief v United States 519 U 172 180 117 S 644 650 136 S Ct 2d Ed L 574 1997j The ternn unfair prejudice as to a criminal defendant speaks to the capacity of some concededly relevant evidence to lu the factfinder re into declaring guilt on a ground different from proof specific to the offense charged Rose 06 at p 13 949 Sa2d at 1244 0402 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 r fret arnzges to his house caused by Hurrieane Katrina to have a housz in Slidell eca th s ictims could have a better education than if they lived n New O n eross the State asked eans examination the defendant if he ivas hain finar problem round the tirrie fthe allegations l i and if he ad ever had finaxici Yrc lbierns ap fer answer ll nt ddI never have bad money problems The S alsc ask tYz c if he d ovvned property ate d nclamt i in Jefferson Parish and he replied n o On direct examination of the mother of the victims the 3tate asked if she was aware the defendant had declared bankruptcy has nothing to do with this case The defense objected arguing that t 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 c ruled the evidence was not relevant to urt the particulars of the charge but u relevanr tca the defendant veracity and noted as s the defense had failed to object when the defen was questioned about whether he iant had any financial troubles Thereail rYhe State asked the mother of the victims if it was true the defendant had declared ar She replied I don iptcy kr trecall that The State showed her a document supporting its ciaim and asked if the document reflected the defendant had declared banka would she have any reason to doubt uptcy the document She replied i what it says it is then it is s fthat Initially we n e the defendant had filed for bankniptcy protection te idence was not other crimes evidenee Further the trial eourt did not abuse its discretion in allowing the challenged evidence The evidence was properly admitted to contradict the detendant testimony that he nev s rhad ad money prc blems Except as otherwise provided by legislation extrinsic evidenc contradiating a s witness testimony is admissible when offered solely to attack the credibility of a witness unless the ec determiraes thaY ie rof the evidence on the urt alue v e b issue of credibility s substan ut y tihe rietrs of ui nsumption of ally rei rdl due time confusion oftha issues or unfaax prejudice I C art 607 a E 2 D We also note that the defense failed t4 request a limiting instruction concerning the ihallenged vide 7 party nav not assign as rror the failure to ice give a jury cha unless an objectian there mad before tY ge ois ejury retires or within such time as the court may reasonably cure th 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 deiendant argues the trial court enred in providing an Allen charge to the jury when they advised they were deadlocked An Allen charge is an instruction acknowledged to be calculated to dynamite jury deadlocks and achieve jury unanimity State v Nicholson 315 So 639 641 2d La 1975 Such a charge and any coerciv modification thereof is banned in the courts of Louisiana Id An Allen charge emphaszzes 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 du to reach a verdict is coupled with the trial ty s court admonition that those in thE min shQUld reconsider their position there rity exists an almost overwhelmzng pressape to conforri to tYie majority sview Statie v ton93 Washin 2221 p 11 La App 1 st Cir 1 U10 646 So 44 454 94 2d S 55 In the instant case on October 31 2012 at 1 p the jury retired for lunch 03 m and deliberation They returned to the courtroom at 2 p and requested 25 m transcripts of the forensic interviews the ietter 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 rAquest pt c letter but recharged them on dtraziscr r the lesser charges The jury rettrrned to the tiourtroom at 4 p with a note 00 m indicating they were currently hung The trial court instructed them as fo low I have indicated to co that your second note came out it ansel reading currently hung not discic ae i put that not sing rmber you s appropriate for me to do All Iask you is it has been a few day an s triaL It is a serious matter You ent in aroi 1 you have had nd Q0 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 views s discuss the evidence with the objective ot 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 So I ask you to please go back and give it another try Thank you The defense objected to the instruction stating itwas close to an Allen charge and the court noted the objection but stated I don tbelieve it is anywhere near an Allen charge Thereafter the jury returned to the courtroom at 7 p and returned a 00 m verdict The trial court did not give a prohibited Allen charge in this matter Tl court e did not admonish the minority membezs of t1a jury to reexam nthe reasonableness oftheir opinion or adherence to their original convictians 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 level It was not so fundamentally Nicholson unfair that it deprived the defendant of due proeess The court merely recognizzd the jury had only been deliberating for a few hours and asked the jurors to consult with one another again consider each other views anc discuss the evidence with the s objective of reaching a just verdict Indeed the note from jury the stated they were currently hung and thus it was lo t carzclude thaY furkher deliberations might ical result in their arriving at a verdi t This assignment ofenror is rithout rnerit TIONALITY CONSTITL OF NON VERDICTS TANIMOUS LT In assignmen9 of error n 4 he efe argues the proceedings were amber ant a defective because the jury returne less th zananimaas verdicts i n The motion far 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 denial of a motion for new trial will not be disturbed absent a clear s abuse of discretion State Maize 94 p 28 La App lst Cir 5 655 0736 95 2d So 500 517 writ denied 95 La 12 664 So 451 1894 95 15 2d Prior to sentencing the defendant moved for a new trial arguing inter alia his convictions by 10 verdict 2 swere inconsistent with our legal history and violated his Sixth Amendment and procedwal due process rights Following a hearing the motion was denied There was no clear abuse of discreti nzn he dezaial fthe motion for new trial The provisions of La Const art I A 17 and La C Cr P art 782 are A constitutional and do not violate the Fifth Sixth and Fourteentti Atnendments State v Bertrand 08 and 08 p 8 3 6 So3d 738 743 State v 2215 2311 La 17 09 Jones 09 p 11 La App lst Cir 1Q123i09 29 So3d 533 540 There is no 0751 authority to the co Accordingly the trial court was not and we are not at ary nU liberty to ignore the cantrolling jurisprudence of su courts on this issue See erior Bertrand 08 and 08 at p 8 6 So3d at 743 2215 2311 This assignment of error is without merit EXCESSIVE SENTENCES In assignment of error number S tt defendant argues the mandatory life ae sentences imposed upon httn rvere unconstitutionally excessive because he was a law abiding citizen prior te the instant offenses because the factual allegations proffered ky the prosecutio render application of a life sentence overly broad because plea negotiations indi ihe State was comfortable wiY sentences less ated than life in this matter and because the defendant maintained stable employment and honored his 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 sconstitutional right agalnst excessive punishment and is subject to appellate review Generally a sentenee i considered excessive if it is s 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 sense ofjustice A trial s judge is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed should not be set asid as excessive in the absence of manifest abuse of discretion State v Hurst 99 p 10 La App 1 st Cir 2868 00 3 10 797 So 75 83 writ denied 00 La 10 798 So 962 2d 3053 O1 5 2d In State v Dorthev 623 So 1276 1280 La 1993 the Louisiana 2d 81 Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no amaasurable 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 h i d bound to reduce the sentence to one that t would not be coz exces stitutionally ike However the holding in Doortk u made only after and in light of ev as express recagnition by the c tY th determination and definition of acts urt at which are punishable as s crim is ely pu re gislati function l It is the s Legislature prerogative to dete the ength of the sentence imposed for nine crimes classified as felonies Nloreover courts a charged with applying these re punishments unless they are f to be unconstitutional Dorthev 623 So at und 2d 1278 citations omitted In State v Johnson 97 La 3 709 So 672 the Louisiana 1906 4i98 2d 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 nd convincingiy show that he is exceptional which in this context means that because of unusual circumstances this defendant is a victizn of the legislature s failure to assign sentences that are meaningfially tailored to the culpability of the offender the gravity oiF the offense and the circumstances of the case Johnson 97 at p 8 709 So at 676 1906 2d Whoever commits the crime of aggravated rape shall bE punished by life imprisonment at hard labor wit benefit of p probation or suspension of out role sentence La R 14 Following the denial of post motions the S 42 1 b trial defense waived sentencing delays and the court sentenced the defendant on counts I and II on each count to life irrxprisonmerzt at hard labor withou benefit of 3 The pxinciples espoused in Dorthev were not restricted in application to the mandatory minimum penalties provided by La R 15 State v Henderson 99 S 529 1 sentencing review 1945 I App lst Cix 6 762 So 747 760 n writ denied 00 La 6 a 00 23 2d 5 2223 Ol 15 793 So 1235 2d I probation parole or suspension cr sentenere Th t court or the sentences ial iered to run concurrently The defendant failed to clearly and con show that because of ly incin unusual circumstances he was a victim of the legislature failure to assign s sentences that re w meaningfully tailored kiis ulpability the gravity of the offenses and the circuimstances of xhe case ccordin triere waa no reason for ly the trial court to deviate from the pro of La K 14 in sentencing isions S 42 1 D him Additionally the sentences imposed w r rossly disproportionate to the re t 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
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