State v. Nguyen

State v. Nguyen (2001-006); 173 Vt. 598; 795 A.2d 538

[Filed 14-Feb-2002]

[Motion for Reargument Denied 14-Mar-2002]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-006

                             JANUARY TERM, 2002


State of Vermont 	             }	      APPEALED FROM:
                                     }
                                     }
     v.	                             }	      District Court of Vermont,
                                     }	      Unit No. 2, Chittenden Circuit
Minh Nguyen	                     }
                                     }	      DOCKET NOS. 6777/6778-11-99Cncr

                                              Trial Judge: Michael S. Kupersmith

             In the above-entitled cause, the Clerk will enter:


       Defendant Minh Nguyen was convicted in the Chittenden District Court
  of two counts of  attempted second degree murder.  During the trial, he
  communicated with his attorney and the court  almost exclusively through a
  Vietnamese interpreter.  Defendant raises four arguments on appeal: (1)  he
  was denied his constitutional right to be present at every stage of his
  trial because he was denied  an interpreter at his arraignment; (2) he was
  denied due process at trial because the interpreter  assigned to him did
  not accurately translate the testimony, and the court committed plain error
  when  it did not hold an evidentiary hearing on defendant's concerns
  regarding the translation; (3) the record  for review on appeal is
  incomplete, because it does not contain the Vietnamese version of
  testimony,  and review cannot proceed without a new trial; and (4) the
  court committed plain error when it failed  to instruct the jury on the
  lesser included offense of attempted voluntary manslaughter.  We affirm.

       Defendant was charged with two counts of attempted second degree
  murder after he attacked  two men with a meat cleaver in a dispute over a
  wallet.  Defendant was born in Vietnam and does  not speak English
  fluently; he is also illiterate in both Vietnamese and English.  The
  investigating  police officers were able to communicate with defendant
  initially but eventually sought the aid of an  interpreter.  The Chittenden
  County Public Defender's Office represented defendant at arraignment,  at
  which the court queried whether an interpreter was necessary.  The public
  defender declined an  interpreter, stating that he and defendant could
  communicate sufficiently for the purposes of the  arraignment.  Defense
  counsel did, however, request an interpreter for defendant in all
  subsequent  proceedings.  After the public defender's office notified the
  court that it could not represent defendant  because of a conflict of
  interest, the court appointed a private attorney to represent defendant.

 

       At a bail review hearing and all subsequent proceedings except
  sentencing, interpreter Phi  Doane was present at the defense table,
  translating the proceedings so that defendant could  understand them. 
  Also, defense counsel used Doane's services to communicate with defendant. 
  Just  prior to jury selection, the court asked defendant if he was
  satisfied with the translation services of  Doane, and defendant approved. 
  The court also asked defense counsel if he was satisfied with  Doane's
  services.  Counsel agreed that defendant appeared to understand the
  proceedings through  Doane and that Doane was "immensely" helpful to him in
  communicating with his client.  During the  trial Doane had difficulty
  explaining some DNA evidence and some complicated legal concepts to 
  defendant.  But, neither defendant nor his counsel objected to Doane's
  translation.

       In addition to Doane, the court appointed Phi Nguyen to serve as an
  additional interpreter for  the testimony of witnesses who testified in the
  Vietnamese language.  Rather than have Phi Doane  translate the English
  translation of a witness's Vietnamese testimony back into Vietnamese, the
  court  asked the Vietnamese witnesses to elevate their voices so that
  defendant could hear their testimony.   Phi Nguyen admitted that on a
  couple occasions he had some minor difficulties translating a  witness's
  testimony, but he promptly clarified the testimony with the court and the
  court properly  informed the jury of the clarifications.  Again, neither
  defendant nor defense counsel made any  objection to Phi Nguyen's
  translation.

       At the charge conference, both parties agreed that the jury should
  receive instructions on  attempted second degree murder and the lesser
  included offense of aggravated assault.  Both parties  also agreed that
  they did not want the jury instructed on the other lesser included offense
  of  attempted voluntary manslaughter.  The jury found defendant guilty of
  attempted second degree  murder on both counts.

       After the verdict on January 27, 2000, the court gave defendant until
  February 11 - the  required ten days - to file post-trial motions. 
  Defendant failed to file any post-trial motions within  the deadline set by
  the court and the Vermont Rules of Criminal Procedure.  See V.R.Cr.P. 29(c) 
  (judgment of acquittal); 33 (new trial); 34 (arrest of judgment).  During
  the period between the  verdict and sentencing, a period of almost a year,
  defendant started to raise his dissatisfaction with  his lawyer and also
  with Phi Doane.  In May, he apparently filed a pro-se post conviction
  relief  (PCR) petition in the superior court, and a copy of the petition
  was eventually provided to the district  court.  The PCR petition basically
  complained of ineffective assistance of counsel but added that "the 
  translator, Phi Doane, is known to the alleged victims, and a friend of my
  lawyer."  The court also  received two letters written on defendant's
  behalf complaining of the same problems.  At a June 27  sentencing hearing,
  the court addressed these concerns by allowing defendant's trial attorney
  to  withdraw and by appointing a new interpreter to replace Phi Doane. 
  Replacement counsel sought to  file a motion for a new trial, but it was
  denied as untimely.  On December 19, defendant was  sentenced to two
  concurrent terms of forty-five years to life.

       On appeal, defendant first claims that he was denied his
  constitutional right to a fair trial  because he was denied an interpreter
  at arraignment.  We recognize that both the federal and  Vermont
  constitutions give a defendant the right to be present during every stage
  of his trial.  U.S. 

 

  Const. amends. V, VI, XIV; Vt. Const. ch. I, art. 10.  This right is not
  absolute, but it is "fundamental  to the basic legitimacy of the criminal
  process."  In re Cardinal, 162 Vt. 418, 419, 649 A.2d 227, 229  (1994). 
  This right is codified in V.R.Cr.P. 43(a), which specifically gives
  defendant the right to be  present at arraignment, any plea offerings,
  every stage of the trial, and imposition of sentence.  The  right to be
  present is waivable, however.  Cardinal, 162 Vt. at 421, 649 A.2d  at 230. 
  In Cardinal, we  held that the defendant waived his right to be present
  during voir dire where he failed to notify the  court that he could not see
  and hear individual voir dire proceedings at the bench.  Id.  The defendant 
  attempted to approach the bench, but his lawyer told him to wait at the
  defense table.  We held  defendant's silence constituted a waiver because
  "[a] rule permitting invalidation of the results of  voir dire because of a
  . . . defendant's after-the-fact testimony, would create great potential
  for  sandbagging the trial court."  Id.; see also Cardinal v. Gorczyk, 81 F.3d 18, 20 (2d Cir. 1996) (same  case on federal habeas corpus; defendant
  waived right to presence by failing to assert it).

       Relying on a Kansas case, State v. Calderon, 13 P.3d 871, 874-75 (Kan.
  2000), defendant  contends that denying him an interpreter amounts to
  denying him his fundamental right to be present  during all stages of his
  trial.  Assuming we followed Calderon, defendant's failure to raise his 
  inability to understand the proceedings, coupled with his counsel's
  explicit representation that no  interpreter was needed for arraignment,
  was a waiver under Cardinal.

       Moreover, defendant's failure to raise this issue prior to this appeal
  means that we can reverse  only for plain error.  Plain error exists "only
  in exceptional circumstances where a failure to  recognize error would
  result in a miscarriage of justice, or where there is glaring error so
  grave and  serious that it strikes at the very heart of the defendant's
  constitutional rights."  State v. Pelican, 160  Vt. 536, 538, 632 A.2d 24,
  26 (1993) (citations omitted).  Defendant has failed to identify any 
  prejudice that resulted from his inability to understand arraignment
  proceedings.  There is no plain  error.  Cf. United States v. Maniego, 710 F.2d 24, 26 (2d. Cir. 1983) (no plain error unless lack of  interpreter
  affected defendant's "right to testify and to articulate his defense").

       Next, defendant claims that the record shows that Phi Doane was unable
  to properly translate  the evidence, and the court failed to hold an
  evidentiary hearing about this complaint.  Our waiver  discussion above
  covers the first part of this claim.  At trial, defendant and his counsel
  indicated that  they were satisfied with Phi Doane's translation.  The
  record references cited by defendant show that  the interpreter had trouble
  fully understanding the complexity of DNA evidence and legal arguments 
  over the jury charge.  We cannot tell by the statements in the record alone
  whether the interpreter  accurately and sufficiently translated the words
  into Vietnamese.  We know only that she did not  fully understand the
  testimony.

       Defendant acknowledges that we must find plain error to reverse on
  this issue.  Without any  showing of prejudice, we cannot find plain error,
  even if there is any error at all.  The pervasive  difficulty with
  defendant's position on this and the earlier issue is that defendant failed
  to trigger a  factual examination of his complaint by seeking a new trial
  within ten days under V.R.Cr.P. 33.  We  have only the trial record before
  us, and that record is not adequate alone to demonstrate the  translation
  deficiencies defendant now seeks to raise.

 

       In answer to this point, defendant argues that the PCR petition and
  the two related letters to the  judge should have triggered the factual
  inquiry.  All of these documents were sent to the court after  the guilty
  verdict and after the period for filing a new trial motion had ended.  The
  PCR petition was  addressed to the superior court as required by statute,
  13 V.S.A. § 7131; apparently, the district court  received a copy with one
  of the letters.  In its discretion, the court responded to these 
  communications by appointing another interpreter for defendant for future
  proceedings.  We do not  believe that letters from third parties, and
  notice that a PCR petition had been filed in another court,  are a
  substitute for the timely new trial motion that was never filed.  In the
  absence of a timely new  trial motion, the court had no obligation to hold
  an evidentiary hearing.

       Third, defendant argues that the record on appeal is incomplete
  because, for witnesses who  testified in the Vietnamese language, it does
  not show both the English and Vietnamese version of  the testimony.  He
  says this deficiency is important in this case because the official
  interpreter  admitted on several occasions that he did not correctly
  translate particular testimony.  The record on  appeal includes the
  "transcript of proceedings," see V.R.A.P. 10(a), but there is no
  requirement that  this transcript include non-English versions of the
  testimony.  Indeed, up until relatively recently, it  would have been
  impossible to produce a non-English version of testimony because the
  testimony  was taken by a stenographic reporter who would not know the
  non-English language.  Moreover, the  trial interpreter, who is sworn to
  translate accurately, see V.R.E. 604, is the witness the jury hears.

       This claim is governed by V.R.A.P. 10(e) which requires a party who
  claims the record does  not "truly disclose[] what occurred in the . . .
  District Court" to submit the question to that court to  settle.  Defendant
  failed to invoke this procedure and has, therefore, waived any claim of
  error.

       Finally, defendant argues that it was plain error for the court not to
  instruct the jury on the  lesser included offense of attempted voluntary
  manslaughter.  In general, defendant controls the  tactical decisions in
  the trial, including the decision whether to waive a charge on a lesser
  included  offense.  See In re Trombly, 160 Vt. 215, 218, 627 A.2d 855, 857
  (1993).  Once defendant has made  a tactical decision on jury instructions,
  he is bound by it on appeal.  See State v. Crannell, 170 Vt.  387, 408-09,
  750 A.2d 1002, 1019-20 (2000) (in first degree murder trial, defendant
  bound by  decision to forego jury instructions on second degree murder and
  manslaughter); Trombly, 160 Vt. at  219-20, 627 A.2d  at 857 (in attempted
  murder trial, defendant bound by decision to forego  instructions on
  attempted manslaughter); State v. Grenier, 158 Vt. 153, 157, 605 A.2d 853,
  856  (1992) (where defendant requested instruction on lesser included
  offense at trial, it was not plain  error for the court to so instruct the
  jury).  If the court concludes, however, that defendant's strategy is  "so
  ill-advised that it undermines a fair trial, the court may instruct the
  jury according to its  considered view."  Trombly, 160 Vt. at 219, 627 A.2d 
  at 857.  The court's decision to act sua sponte  in this matter is
  discretionary, "and so long as the court's exercise of discretion is not
  abused, we will  not disturb it."  Id.

       At the jury charge conference, the court had a lengthy discussion with
  the parties on whether to  instruct the jury on attempted voluntary
  manslaughter.  Neither the state nor defendant requested the  instruction;
  in fact, both parties expressly opposed it.  Defense counsel then
  double-checked the 

 

  decision with defendant, and defendant agreed.  Defendant's decision makes
  tactical sense because  the parties had already agreed that the jury should
  be instructed on a different lesser included offense:  aggravated assault. 
  Respecting the decisions of the parties, the court instructed the jury on
  attempted  second degree murder and the lesser included offense of
  aggravated assault and did not instruct the  jury on the elements of
  attempted voluntary manslaughter.  Defendant made no objection to the 
  charge.  Under these circumstances, the court's decision to follow the will
  of the parties in instructing  the jury was not plain error.

       Affirmed.	


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice