State of Louisiana v. Khoi Q. Hoang

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #014

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 26th day of March, 2019, are as follows:

PER CURIAM:

2017-K-0100 STATE OF LOUISIANA v. KHOI Q. HOANG (Parish of Orleans)

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.” Accordingly, we
reverse the court of appeal’s decision and reinstate defendant’s
conviction and sentence for obstruction of justice. REVERSED.

JOHNSON, C.J., dissents and assigns reasons.

WEIMER, J., dissents and assigns reasons.

03/26/19

SUPREME COURT OF LOUISIANA

No. 2017-K-0100

STATE OF LOUISIANA

VERSUS

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

1
R.S. 47:519(H) provides in pertinent part:

Temporary registration plates or markers shall expire and become void upon the
receipt of the annual registration plates or upon the expiration of sixty days from
the date of issuance, depending on whichever event shall first occur.

2

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

3

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

4

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

5

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.

6

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

7

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

8

03/26/19

SUPREME COURT OF LOUISIANA

No. 2017-K-0100

STATE OF LOUISIANA

VERSUS

KHOI Q. HOANG

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

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,

1

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 in
LaPlace.

***
State: Now, on the day that Mr. Hoang talked to you about
this vehicle, did you have a license plate on that
vehicle?

Ms. Booker: Yes, ma’am

***
State: And, when Mr. Hoang asked you to borrow this
vehicle, what did you do?

Ms. Booker: I allowed him to borrow it. I trusted that what he
said he was going to do, he was going to do. He was
going to pick up dog kennels in LaPlace.

***
State: All right. Now, did you personally give your keys
to Mr. Hoang?

2

Ms. Booker: Yes, I did.

State: And so can you explain to us how that happened?

Ms. Booker: He came in and he gave me the crack and I gave him
the keys and he told me he would only be a couple
of hours and then he left.

State: Did Mr. Hoang have anybody else with him at that
time?

Ms. Booker: Not that I remember.

State: And so did you give him your vehicle on that day?

Ms. Booker: Yes, I did.

State: And did he - - did you tell him a time that you
wanted your vehicle back?

Ms. Booker: Well, he told me he would be like two or three
hours, so I was expecting him around five, five-
thirty because I think it was like three o’clock in the
afternoon that he came to get my keys.

State: Okay. And, to the best of your knowledge, you
don’t have any sort of independent knowledge
about how this man died on - - in the 4200 block of
McCoy Street, correct?

Ms. Booker: No. I didn’t know nothing about it until Detective
Hamilton hunted me down.

***
State: All right. Now, how can you be certain of the day
that Mr. Hoang came to you and asked you for your
vehicle?

Ms. Booker: How can I be certain?

State: Of the day?

Ms. Booker: There’s really - - I can’t be certain of date, but I’m
certain of it because I know he’s the one that I
handed by keys to and then I found out later by
Detective Hamilton - - and then later I found out
what had happened, actually happened on that date.

***

3

State: Did you get your vehicle back within that two to
three hour period that Mr. Hoang told you he would
give it back to you?

Ms. Booker: No, ma’am.

State: When did you get your vehicle back?

Ms. Booker: It was actually after midnight.

State: And how do you know that it was after midnight?

Ms. Booker: Because around eight o’clock I tried calling Khoi
and I never got an answer, so I left - - I tried calling
again and when he answered I said, “Look, I need
my truck back. If you don’t bring it back I’m going
to call the police.” So he was like, “All right, I’m”
you know, “I’m going to bring it right back. We’ll
be there shortly.” And I don’t know who “we” were,
but he said, “We’ll be there shortly.” So it still, I’m
still getting high, of course, so the time after
midnight comes, there was a knock at the door and
I know it was after midnight because I was just
getting ready to call again and I had picked up the
phone. I didn’t know exactly how long after
midnight, but I know it was after midnight. And
somebody knocked at the door and just handed the
keys and two-hundred dollars to “Shorty”, who
answered the door. I don’t even know who that
person was.

***
State: Okay. And so did you see the person who returned
the vehicle?

Ms. Booker: I didn’t see them, but he had a hood on. They were
tall. That’s all I know. And it’s dark there. There’s
no lights back there on the end of Dwyer, Michoud.

State: When you got your vehicle back did you get your
keys back?

Ms. Booker: Yes, I did.

***
State: Now, Ms. Booker, after this incident happened, this
is the following day, correct, you have your vehicle
back, correct?

Ms. Booker: Uh-huh.

4

State: Okay. At some point did you go outside to look at
your vehicle?
Ms. Booker: It didn’t dawn on me to like check it for anything
because, like I said, I trusted that what he said he
was going to do he went to do. And I didn’t - - later
on a friend of mine was driving it and they realized
there was no license plate on the truck and they was
like, “Why did you let me drive your truck without
a license plate?” And I was like, “What you mean
there’s - - there’s a license plate on my truck.” He
was like, “No, there is none.” So - -

State: And, when you found out that your license plate had
been missing, what did you do?

Ms. Booker: I was questioning anybody that had been around the
apartment building, if they seen anything and some
- - they said, “Oh, somebody else’s license plate
came up missing,” so then we throwed it off as if
somebody was running around stealing license
plates.

State: Okay. Did you get a temporary tag?

Ms. Booker: Yes, we did.

State: And when did you do that?

Ms. Booker: Actually Bud did.

State: And who is Bud?

Ms. Booker: Another friend of mine that I was let driving my
truck because he would like give me - - him and his
old lady been giving me a place to stay, so I let him
use my truck because his vehicle was down and,
Bud, he got from a friend of his that was a
dealership owner, he got a license, a temp tag from
him.

***
State: Alright. Now, this temporary tag that you obtained
for your vehicle, if I were to show it to you, do you
think you would be able to identify it?

Ms. Booker: Yes, Ma’am, I know it was issued on the 24th.

State: Alright. Do you know what month on the 24th, the
month of the - - what day the 24th, what month?

Ms. Booker: 4/24/13.
5

State: Okay. Now, why are you back dating it for the
temporary tag?

Ms. Booker: Uh?

State: You said 4/24 of 2013. What do you mean by that?

Ms. Booker: April.

State: Okay, you mean April 24 of 2013. What
significance does that date mean?

Ms. Booker: It might be May.

State: Okay, If I - -

Ms. Booker: I know the date, the day of it was the 24th because
when my father-in-law and mother-in-law came to
get the truck, I had told them that somebody stole it
out of the parking lot at the motel and that I had just
got a temp tag and it was like two weeks. Oh, he’s
like, “Why would they predate it? If you just got it
yesterday why would they predate if for the 24th?”

No evidence was presented at trial to demonstrate that the license plate was

removed during the time defendant was in possession of the vehicle. Not only did

Ms. Booker fail to provide the date she realized the license plate was missing, she

did not suggest it was the next day or shortly after the vehicle was returned. She

specifically denied checking or inspecting the vehicle when it was returned the next

day. Moreover, Ms. Booker never suspected defendant removed the plate, instead

believing it was one of several plates that were stolen in the neighborhood. Clearly,

the timing of the issuance of the temporary plate is crucial in determining whether

there was enough circumstantial evidence for a rational jury to find that Ms. Booker

noticed her license plate missing the day after defendant borrowed her vehicle,

thereby essentially eliminating the possibility that the license plate was removed or

stolen by someone other than defendant. Yet, Ms. Booker’s testimony falls far short

of establishing a reliable time frame. The majority even concedes the evidence on

6

this issue is equivocal. Although Ms. Booker first testified the temporary tag was

issued on April 24, 2013, she immediately backpedaled and stated “it could be May.”

Additionally, Ms. Booker’s testimony suggests the tag was obtained by a friend, and

may have been purposefully pre-dated or back-dated. Although the temporary tag

was introduced into evidence, it does not include the date of issuance.1

In reversing the appellate court’s decision, the majority simply notes in a

conclusory manner that while there was equivocal evidence as to when the

temporary tag was issued, a rational juror could conclude 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. It is compelling that the majority does not point to a single piece of evidence

to support its conclusory assertions. There is reason for that: no such evidence exists

in the record. Not only is there a complete lack of evidence to support a finding that

defendant removed the plate or directed removal of the plate, there is also a complete

lack of evidence from which a jury could find defendant had the requisite specific

intent. Considering Ms. Booker’s testimony, and the lack of any other evidence, I

find the record before us wholly inadequate to support defendant’s conviction for

obstruction of justice.

I agree with the court of appeal that “the only evidence presented by the State

was circumstantial and of a speculative nature.” State v. Hoang, 16-1479 (La. App.

4 Cir. 2/21/16), 207 So. 3d 473, 477. In considering a challenge to the sufficiency of

the evidence, speculation and conjecture cannot take the place of reasonable

inferences and evidence. Maquiz v. Hedgpeth, 907 F.3d 1212, 1217 (9th Cir. 2018).

1
The tag provides an expiration date of 6/24/13. The state argues in this court that it is “common
knowledge” that temporary tags expire after sixty days, citing La. R.S. 47:519(H). The majority
apparently finds merit in this argument. However, I do not find this information to be “common
knowledge” such that we can assume it was known to the jury. Additionally, this information was
not provided to the jury, nor was the district court asked to take judicial notice of the statute.
7

“A conviction must be overturned if it is based on speculation alone because [a]

verdict may not rest on mere suspicion, speculation, or conjecture, or on an overly

attenuated piling of inference on inference.” United States v. Rojas Alvarez, 451 F.3d

320, 333 (5th Cir. 2006) (quoting United States v. Pettigrew, 77 F.3d 1550, 1521 (5th

Cir. 1996)). For these reasons, I find the court of appeal correctly reversed the

conviction, and therefore I respectfully dissent.

8

03/26/19

SUPREME COURT OF LOUISIANA

NO. 2017-K-0100

STATE OF LOUISIANA

VERSUS

KHOI Q. HOANG

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

WEIMER, J., dissents and assigns reasons.

I agree with the dissenting opinion of the Chief Justice.

Additionally, I note that circumstantial evidence can be powerful evidence, if

it essentially establishes an inescapable circle of guilt around a defendant’s actions.

The law requires that the pieces of evidence adduced by the state collectively form

a complete circle, inasmuch as the circumstantial evidence “must exclude every

reasonable hypothesis of innocence.” La. R.S. 15:438.

Here, continuing with that analogy, the state presented–at most–one curve that

the state never built on to form a completed circle. The defendant was charged with

second degree murder, solicitation to commit second degree murder, conspiracy to

commit second degree murder, and obstruction of justice. At trial, the state’s focus

was on securing a guilty verdict on one of the charges directly tied to the murder; the

state presented precious little evidence on the obstruction charge. The majority of

this court tacitly concedes there was insufficient evidence to show any obstruction by

removing a surveillance system, and instead finds sufficient evidence of obstruction

by the defendant being responsible for removing the pickup truck’s license plate

around the time of the crime. However, the witness who loaned the defendant the

pickup truck used in the crimes was unable to establish when the license plate was

removed; her testimony described two possible months. The witness also described

that another license plate had been removed from a vehicle in her apartment buildings

parking lot. There was simply nothing to show the critical facts of when, where, and

by whom the license plate was removed.

In conclusion, the appellate court correctly determined the state failed to prove

obstruction beyond a reasonable doubt. For the obstruction charge, I would hold that

“the lack of sufficient evidence to sustain the conviction would entitle defendant to

an acquittal under Hudson v. Louisiana, 450 U.S. 40, 44–45, 101 S.Ct. 970, 67

L.Ed.2d 30 (1981).” State v. Crawford, 2014-2153, p. 19 (La. 11/16/16), 218 So.3d

13, 25. However, because the jury was deadlocked on the murder charge and the

related conspiracy and solicitation charges, it appears the defendant may be subject

to being re-tried for those charges.

Thus, I respectfully dissent.

2