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State v. Hoang

Supreme Court of Louisiana

March 26, 2019

STATE OF LOUISIANA
v.
KHOI Q. HOANG

          ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

          PER CURIAM

         Lien Nguyen was abducted from his home during the night on April 23, 2013. His hands were bound behind and his back, he was shot twice, and he was left to die in an area off Old Gentilly Highway. He was still alive when he was found by James Mushatt, who called 911. Mr. Mushatt reported seeing a Nissan Titan truck speeding away and said the victim told him that his wife was responsible for the crime. The victim died at the scene shortly after.

         Video surveillance captured a Nissan Titan truck as it pulled into the victim's driveway on the night of the murder and then drove off in the direction in which the victim was later found. During the investigation, a detective learned that Irene Booker owned a Nissan Titan truck, which she would loan out in exchange for narcotics. According to Ms. Booker, she loaned her truck to defendant on the afternoon of the murder. When defendant failed to return the truck to her at the time promised, she called him and he assured her, "We'll be there shortly." Someone other than defendant then returned the truck to her well after midnight and gave her $200. Ms. Booker later learned that her truck's license plate was missing. She obtained a temporary license plate with an expiration date of June 24, 2013.[1]

         Defendant was indicted with conspiracy to commit second degree murder, solicitation to commit second degree murder, second degree murder, and obstruction of justice. At trial, the State presented evidence that defendant and the victim's wife began an intimate relationship immediately after the murder. The State also presented evidence that the two had asked Joseph Hoang to kill the victim for them. The victim's wife denied conspiring to kill her husband but suggested defendant killed the victim over money owed for drugs. The victim's wife did not report his disappearance nor did she report it when defendant told her on the morning after the murder that he had "finished Lien . . . everything is done." Although a detective believed, based on the dust found around where the victim's missing security system had sat, that the security system was removed very recently, the victim's wife claimed the system had not functioned for some time and had been removed earlier.

         The jury found defendant guilty as charged of obstruction but was unable to reach a verdict on the remaining charges. Defendant was sentenced to life imprisonment without parole eligibility as a third-felony habitual offender. The court of appeal reversed because it found the evidence insufficient to support the conviction. State v. Hoang, 16-0479 (La.App. 4 Cir. 2/21/16), 207 So.3d 473. The majority found the jury could only speculate from the State's circumstantial evidence that defendant removed the license plate from Ms. Booker's truck and removed the security system from the victim's home. See Hoang, 16-0479, pp. 4- 5, 207 So.3d at 476 ("While the circumstantial evidence presented at trial established that these two events may have occurred, no reasonable juror could have determined that Defendant was the person responsible for either the removal of the license plate or the security system based on the scant circumstantial evidence presented by the State."). According to the majority, the State, at best, proved only that defendant borrowed the Nissan Titan truck from Ms. Booker the afternoon of the murder. Hoang, 16-0479, p. 6, 207 So.3d at 466. Thus, "[w]hile the State was able to connect Defendant and Ms. Nguyen to the victim, the State failed to connect him to either [the removal of the license plate or the removal of the surveillance system]." Hoang, 16-0479, p. 7, 207 So.3d at 477.

         Judge Lobrano dissented because she found the evidence sufficient to prove defendant acted as a principal to the crime of obstruction. In addition to finding the State presented sufficient evidence that defendant was a principal to the removal of the license plate and the surveillance system, Judge Lobrano agreed with the State's contention that the jury could also have rationally concluded defendant was a principal to the disposal of the murder weapon and return of the truck after it was used to abduct and murder the victim, which acts also constitute obstruction. Thus, where the majority viewed the circumstantial evidence as only providing grist for the jury to speculate as to defendant's guilt, the dissent found it provided the jury a sufficient basis to reject the "extraordinary coincidence" of defendant's hypothesis of innocence. See Hoang, 16-0479, pp. 9-10, 207 So.3d at 484-485 (Lobrano, J., dissenting).

         Jurors were instructed that they could find defendant guilty of obstruction if they found he engaged in two specific acts (emphasis added):

In order to convict the defendant of obstruction of justice, you must find, first, that the defendant knew or had good reason to believe that his act may affect an actual, potential, present, past, future criminal proceeding, and two, that the defendant tampered with evidence by disconnecting a video surveillance system and removing a license plate from a vehicle, and three, that the defendant had a specific intent to distort the results of any actual, potential, present, past, future criminal proceeding or investigation, and four, that the evidence was reasonably likely to be relevant to an actual, potential, present, past, future criminal investigation or proceeding.

         The State argued in this court, consistent with the views of the dissenting judge below, that the jury, after reading the jury charges as a whole, could have found defendant guilty based on his commission of other acts beside removing the license plate or surveillance system-such as by disposing of the murder weapon or by returning the truck after it was used to commit the crime. We need not reach that issue, however, because we find the evidence sufficient, under the due process standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to prove defendant was a principal to the removal of the license plate, which was one of the means by which the jury was instructed defendant could commit obstruction.

         First, however, we note that the jury was incorrectly instructed that they could find defendant guilty of obstruction if they found he disconnected the video surveillance system and removed the license plate (i.e. he committed two acts) when all the law requires is that he commit a single act. The State did not object to the use of the conjunction "and" in the jury charge. Regardless, the United States Supreme Court has held that "when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction." Musacchio v. United States, 577 U.S. ___, ___, 136 S.Ct. 709, 715, 193 L.Ed.2d 639 (2016). The jury in Musacchio was erroneously instructed using the conjunction "and" when describing two ways in which the charged crime (a violation of 18 U.S.C. § 1030(a)(2)(C)) could be committed, similar to how the jury was instructed here, and the Government failed to object, as the State failed here. See Musacchio, 577 U.S. at ___, 136 S.Ct. at 714 ("By using the conjunction 'and' when referring to both ways of violating § 1030(a)(2)(C), the instruction required the Government to prove an additional element. Yet the Government did not object to this error in the instructions."). Nonetheless, the United States Supreme Court found, for purposes of reviewing the sufficiency of the evidence, it did not matter that the prosecution acquiesced to incorrectly instructing the jury it must find an additional element that the prosecution had failed to prove:

A reviewing court's limited determination on sufficiency review thus does not rest on how the jury was instructed. When a jury finds guilt after being instructed on all elements of the charged crime plus one more element, the jury has made all the findings that due process requires. If a jury instruction requires the jury to find guilt on the elements of the charged crime, a defendant will have had a "meaningful opportunity to defend" against the charge. [Jackson v. Virginia], at 314, 99 S.Ct. 2781. And if the jury instruction requires the jury to find those elements "beyond a reasonable doubt," the defendant has been accorded the procedure that this Court has required to protect the presumption of innocence. Id., at 314-315, 99 S.Ct. 2781. The Government's failure to introduce evidence of an additional element does not implicate the principles that sufficiency review protects. All that a defendant is entitled to on a sufficiency challenge is for the court to make a "legal" determination whether the evidence was strong enough to reach a jury at all. Id., at 319, 99 S.Ct. 2781. The Government's failure to object to the heightened jury instruction thus does not affect the court's review for sufficiency of the evidence.

Musacchio, 577 U.S. at ___, 136 S.Ct. at 715. Thus, under Musacchio, the district court's error here in using the conjunction "and" when instructing the jury of two ways in which the crime could be committed-i.e. by disconnecting the surveillance system and removing the license plate-does not alter this court's determination that the evidence is sufficient based solely on the State's proof of one of those two means-i.e. defendant's role as a principal in the removal of the license plate.

         The crime of obstruction of justice is defined in R.S. 14:130.1 in part as follows:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as described in this Section:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal, or addition of any object or substance either:
(a)At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or
(b)At the location of storage, transfer, or place of review of any such evidence.

         In addition, the law of principals provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

R.S. 14:24.

         "In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) . . . . [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Captville, 448 So.2d 676, 678 (La. 1984). Where a conviction is based on circumstantial evidence, as is the case here, the evidence "must exclude every reasonable hypothesis of innocence." La. R.S. 15:438.

         In addition, the Jackson standard of review does not allow a jury to speculate on the probabilities of guilt where rational jurors would necessarily entertain a reasonable doubt. State v. Mussall, 522 So.2d 1305, 1311 (La. 1988) (citing 2 C. Wright, Federal Practice & Procedure, Criminal 2d, § 467). The requirement that jurors reasonably reject the hypothesis of innocence advanced by the defendant in a case of circumstantial evidence presupposes that a rational rejection of that hypothesis is based on the evidence presented, not mere speculation. See State v. Schwander, 345 So.2d 1173, 1175 (La. 1978).

         Here, from all of the evidence presented, a jury could reasonably infer (without speculating) that defendant removed the truck's license plate or directed someone else to do so because the truck was going to be used in a murder or had just been used in a murder. Thus, the majority of the panel of court below erred in finding that "circumstantial evidence connecting Defendant to the removal of the license plate was nonexistent." Hoang, 16-0479, p. 6, 207 So.3d at 476. Defendant argued one could not even conclude the truck he borrowed from Ms. Booker was the one used in the abduction and murder of the victim. However, despite discrepancies in whether the truck, viewed at night, was perceived as silver, grey, or dark grey, Ms. Booker reviewed the surveillance video and identified her truck, which was just that day borrowed by defendant, as the one shown in it being used to abduct the victim. While defendant argued that the person who returned the truck was not defendant, defendant assured Ms. Booker that "we" would return the truck, and indeed the truck was returned. While there was equivocal evidence as to when the temporary tag was issued-with Ms. Booker first testifying it was issued on April 24 but then stating it might have been issued in May-a rational juror could conclude, viewing the evidence in the light most favorable to the prosecution, that defendant either removed the license plate or directed the removal of the license plate with the specific intent to distort any investigation into the abduction and murder of the victim. See generally State v. Mussall, 523 So.2d 1305, 1310 (La. 1988) ("If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all of the evidence most favorable to the prosecution must be adopted. Thus, irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law.") (emphasis in original). To accept defendant's hypothesis of innocence, that the license plate went coincidentally missing at some point after the murder, would indeed be to accept an "extraordinary coincidence" when viewed in the context of the entirety of the State's case, as noted by the dissent in the court below. See Hoang, 16-0479, p. 10-11, 207 So.3d at 484-485 (Lobrano, J., dissenting). Accordingly, we reverse the court of appeal's decision and reinstate defendant's conviction and sentence for obstruction of justice.

         REVERSED.

          JOHNSON, Chief Justice, dissents and assigns reasons.

         In this case there is absolutely no rational interpretation of the circumstantial evidence by which a jury could convict this defendant of obstruction of justice. Thus, I find the appellate court correctly overturned defendant's conviction.

         In reinstating the conviction, the majority of this court finds that, based on the evidence presented, "a jury could reasonably infer that defendant removed the truck's license plate or directed someone else to do so because the truck was going to be used in a murder or had just been used in a murder." (Emphasis added). My review of the record does not support this conclusion. The minimal evidence presented by the state proved, at best, that defendant borrowed the Nissan Titan truck from Ms. Booker the afternoon April 23, 2013, the vehicle was returned to Ms. Booker after midnight by a different unknown individual, and that at some point later in time, Ms. Booker realized the vehicle's license plate was missing. There is not a scintilla of evidence proving defendant removed the license plate or ordered it removed.

         The state's evidence connecting defendant to the Nissan Titan truck consisted solely of the testimony of Ms. Irene Booker. Ms. Booker, an admitted cocaine addict, testified that she routinely lent out the vehicle to people in the neighborhood in exchange for drugs. Interestingly, although Ms. Booker claimed to specifically remember that she lent defendant the vehicle on the afternoon of April 23, 2013, she could not specify any other particular dates she lent out the vehicle to anyone else in 2013. It is noteworthy that detectives talked to Ms. Booker months later, on August 7, 2013, and showed her surveillance video of the victim's home taken on April 23, 2013, after which she stated she lent defendant her vehicle on that date and identified the Titan truck in the video as her vehicle. It is obvious to me that Ms. Booker did not have an actual independent recollection of lending her vehicle to this defendant on that date. Additionally, Ms. Booker's testimony regarding the missing license plate was inconsistent and confusing.

         Relative to defendant's connection to the vehicle and the missing license plate, Ms. Booker testified:

State: All right. Now, on the day of this incident, did you receive a phone call from Mr. Hoang, Khoi Hoang?
Ms. Booker: Well actually in person he asked me could he borrow my truck to go pick up dog kennels ...

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