People v. Truong

553 N.W.2d 692 (1996) 218 Mich. App. 325

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Tuan TRUONG, Defendant-Appellant.
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Tai Van NGUYEN, Defendant-Appellant.

Docket Nos. 162306, 162307.

Court of Appeals of Michigan.

Submitted April 17, 1996, at Grand Rapids. Decided August 16, 1996, at 9:15 a.m. Released for Publication September 27, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for people.

State Appellate Defender by Peter Jon Van Hoek, Detroit, for Tuan Truong.

Martin J. Beres, St. Clair Shores, for Tai Van Nguyen.

Before: McDONALD, P.J., and MARKMAN and JOHNSON,^[*] JJ.

AFTER REMAND

MARKMAN, Judge.

Defendants appeal as of right their 1992 jury trial convictions of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). The Court of Appeals consolidated the appeals. The Court of Appeals granted Truong's motion to remand to the trial court to allow him to move for a new trial and seek other relief. Unpublished order of the Court of Appeals, entered April 14, 1994 (Docket No. 162306.) On remand, the trial court denied Truong's motions. The Court of Appeals granted Nguyen's motion to remand to the trial court to allow him to move for a new trial. Unpublished order of the Court of Appeals, entered November 8, 1994 (Docket No. 162307). On remand, the trial court denied Nguyen's motion. After remand, we affirm.

Defendants both shot at the decedent, who died of multiple gunshot injuries. Defendants, who had had previous altercations with the decedent, claimed that they shot him in self-defense. They testified that, two days before the shooting at issue, the decedent and some of his friends broke into defendants' apartment and beat them up while searching for the decedent's gun, which defendant Nguyen had stolen. Defendant Truong testified that the decedent threatened to kill them the next time that he saw them.

On appeal, Truong first claims that his convictions should be vacated because the circuit court did not have valid jurisdiction over him because he was only fourteen years old at the time of the offense. He initially raised this issue in a suppression hearing before trial and it was one of the issues on which this Court remanded this matter to the circuit court after trial. Truong's immigration papers list his birth year as 1978. Before he was arrested, however, he successfully petitioned the Kent County Probate Court to correct his birth date to May 5, 1974. Among the evidence presented to the probate court by Truong was a letter from a dentist indicating that, on the basis of his dental radiographs, Truong was at least sixteen years old in July 1990. A caseworker who assisted Truong when he moved to Michigan testified that Truong consistently told her that he was born in 1974. Truong now contends that he was lying when he petitioned the probate court to change his birth date and that he did so only to make himself appear eighteen years old to facilitate getting a job.^[1] On remand, Truong produced a document purporting to be a birth certificate that indicates a birth date of June 4, 1978. This differs from his resident alien card, which lists his birth date as December 31, 1978. The birth certificate and immigration papers also differ regarding the birth dates of his parents.

The trial court held that the probate court order raised a rebuttable presumption that Truong's birth date was May 5, 1974. It found that Truong failed to produce evidence to overcome this presumption. The trial court correctly held that the birth certificate did not meet the self-authentication requirements of MRE 902(3). It also found the birth certificate untrustworthy because it was a report of a birth made eleven years after the alleged birth, when Truong's father may have had an incentive to make Truong appear as young as possible to facilitate his emigration from Vietnam. The trial court denied Truong's motion for a new trial or for relief from judgment.

This Court reviews trial court findings of fact for clear error. MCR 2.613(C). The trial court reasonably found that the probate court order, solicited by Truong himself and supported by dental and other evidence, raised a rebuttable presumption regarding his age that the birth certificate and immigration papers were insufficiently reliable to overcome. Therefore, we find no clear error in the trial court's reliance on the probate court's determination of Truong's age.

Truong also now claims, for the first time, that the trial court's reliance on the birth date indicated in the probate court order violated the Supremacy Clause, U.S. Const., art. VI, cl. 2. "Generally, the existence of federal laws or regulations in a particular area can preempt state action in the same field where preemption is either express, implied, or the result of a conflict between state and federal law." People v. Hegedus, 432 Mich. 598, 607, 443 N.W.2d 127 (1989). "Consideration of any issue arising under the Supremacy Clause begins with the assumption that the historic police powers of the state are not to be superseded by federal law unless that is the clear and manifest purpose of Congress." Ryan v. Brunswick Corp., 209 Mich.App. 519, 521, 531 N.W.2d 793 (1995), lv. gtd 451 Mich. 883, 549 N.W.2d 573 (1996).

States have the authority to determine the age of their residents. The historic police power of a state to determine age is necessary to state governance of such issues as compulsory education, marriage, eligibility for public benefits, and driver's licenses. The United States Constitution does not bar states from making such determinations.

However, Congress has broad authority to regulate matters relating to immigration, Graham v. Richardson, 403 U.S. 365, 379, 91 S.Ct. 1848, 1855-56, 29 L.Ed.2d 534 (1971), and age is a factor that may sometimes bear on an alien's immigration status. Accordingly, we must decide if a state determination of an immigrant's age, which differs from an Immigration and Naturalization Service (INS) determination, interferes with the exercise of federal authority over immigration.^[2]

Here, the probate proceeding at issue merely determined Truong's age, not any immigration matter. Truong has presented this Court with no authority that would preclude a state from making, for any of a variety of legal purposes, a determination of the age of one of its citizens or residents. The fact that a person's age may also have consequences for immigration matters, e.g., when or how the person may apply for citizenship, does not make a state's determination of an immigrant's age an infringement on Congress' authority over immigration. There is nothing in the probate court's order here that impinges upon the ability of the INS to fully carry out its responsibilities. Similarly, the conviction of an alien for a felony might affect the alien's immigration status, but such consequences do not preclude states from prosecuting aliens on felony charges. State determinations that have such incidental consequences on immigration do not usurp federal authority over immigration. Indeed, we recognize that the INS could, if it so chose, continue to rely on its own determination of Truong's age for immigration purposes.^[3] Parties must meet a heavy burden to establish a Supremacy Clause violation as the result of a state's legitimate exercise of the police power. Ryan, supra. Here, Truong argues generally that age bears on an alien's immigration status but fails to demonstrate how the probate court's determination of his age has affected his immigration status in any manner. There is no indication that the authority of the INS over immigration has been, or will be, compromised in any way by the probate court's determination of Truong's age. Truong accordingly fails to establish a Supremacy Clause violation. For these reasons, we find that the probate court's determination of Truong's age was not preempted by Congress' authority over immigration matters.

Truong next claims that he was denied simultaneous translation of the trial proceedings in violation of his constitutional rights to due process, confrontation, and to be present at trial. The trial court found that there was a word-for-word translation of all questioning of witnesses but that there may have been instances where the translator summarized attorney colloquy. The only mistranslations, however, cited by Truong were with respect to the translation of his testimony to the jury.^[4] The court concluded that Truong received a fair trial in light of all the circumstances and denied Truong's motion for a new trial or for relief from the judgment.

This Court recently addressed this issue in People v. Cunningham, 215 Mich.App. 652, 654-655, 546 N.W.2d 715 (1996), in which it stated:

As a general rule, the proceedings or testimony at a criminal trial are to be interpreted in a simultaneous, continuous, and literal manner, without delay, interruption, omission from, addition to, or alteration of the matter spoken, so that the participants receive a timely, accurate, and complete translation of what has been said. Although occasional lapses will not render a trial fundamentally unfair, adequate translation of trial proceedings requires translation of everything relating to the trial that someone conversant in English would be privy to hear. [Citation omitted.]

The evidence here indicated that a translator was present during all stages of this matter and that Truong received a word-for-word translation of all questions to and answers from witnesses. The only evidence of summarized translation to Truong was during attorney colloquies. At most, these constituted occasional, minor lapses in simultaneous translation that, under Cunningham, did not render the trial unfair or deprive Truong of his rights to due process, confrontation, or to be present at trial.

Truong next claims that the trial court erred in denying his motion to suppress his statement to the police. He contends that he did not knowingly, intelligently, and voluntarily waive his constitutional right to counsel or privilege against self-incrimination. He contends that his lack of basic language skills made it impossible for him to understand the translation of the Miranda^[5] rights. The trial court found that the police read him his rights, a translator translated them into Vietnamese, defendant said that he understood them, and he signed and initialed the waiver form. It found that Truong then proceeded to respond to police questions in a logical manner that belied any claim that he did not understand what was being asked of him. The court noted that Truong did not allege that the police coerced him or made any false promises to him and acknowledged that he understood the words used in translating the rights to him, but contended that he did not understand the meaning of the rights. The court held that the translator appropriately attempted to translate the rights word-for-word instead of trying to explain them. It found that the police were within their rights in taking Truong at his word that he understood the rights and waived them, in this context. It concluded that Truong's statement to the police was voluntary.

This Court reviews trial court rulings regarding suppression motions under the clearly erroneous standard. People v. Bordeau, 206 Mich.App. 89, 92, 520 N.W.2d 374 (1994). However, "[a]pplication of constitutional standards by the trial court is not entitled to the same deference as factual findings." Id.

In People v. Garwood, 205 Mich. App. 553, 556, 517 N.W.2d 843 (1994), this Court cited with favor the following language from Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987):

First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Here, the evidence bears out the trial court's findings summarized above. By his own admission, Truong understood the words used in translating the rights, told the police that he understood the rights, signed and initialed the waiver form, did not request any clarification, and responded in a logical manner to the subsequent questioning by the police. We emphasize that a person speaking to the police through a translator is subject to the same standards as a person fluent in English. There is no greater obligation on the part of the police to ascertain comprehension of Miranda rights with respect to a person using a translator than with respect to a person fluent in English. The trial court did not clearly err in determining that Truong had a requisite level of understanding under these circumstances.

Truong next claims that he was denied a fair trial when the jury heard evidence that codefendant Nguyen exercised his right to silence during a custodial interrogation. He claims that this information raised an improper inference that Nguyen had something to hide that tainted the proceedings against Truong as well. Improper testimony concerning a codefendant's assertion of constitutional rights may prejudice a defendant's defense to the extent that reversal of the defendant's conviction is required. People v. Gallon, 121 Mich.App. 183, 191, 328 N.W.2d 615 (1982). Here, the prosecutor questioned a police officer regarding Nguyen's interview and the fact that it was interrupted for a gun residue test. The prosecutor asked if "no further interviewing took place" after the test and the officer responded affirmatively and continued, "at that point [Nguyen] said that he wanted an attorney and didn't want to talk to us anymore." Neither defendant objected to this exchange. When preserved, this Court reviews claims of prosecutorial misconduct by evaluating the prosecutor's comments in context to determine if the defendant was denied a fair and impartial trial. People v. Allen, 201 Mich. App. 98, 104, 505 N.W.2d 869 (1993). This Court is precluded from review of prosecutorial misconduct allegations that were not objected to at trial unless the prejudicial effect could not have been cured by a jury instruction or failure to consider the issue would result in manifest injustice. Id.

It is generally inappropriate for the prosecution to comment regarding an accused's exercise of the constitutional privilege against self-incrimination. People v. Sain, 407 Mich. 412, 415, 285 N.W.2d 772 (1979). However, reversal is not required where such a comment is not a "studied attempt by the prosecution to place [the] matter before the jury." Id. Here, the prosecutor's question required only a "yes" or "no" answer and did not elicit the officer's comment regarding Nguyen's exercise of his constitutional rights. Further, Nguyen's exercise of his constitutional rights was not mentioned by the prosecutor during closing argument. This trial involved overwhelming evidence that defendants shot the decedent; defendants' sole theory was self-defense. The comment at issue did not undermine their self-defense theory. Under these circumstances, the comment did not deprive Nguyen of a fair trial. As a consequence, it did not deprive Truong of a fair trial.

We now turn to Nguyen's claims on appeal. Nguyen first claims that there was insufficient evidence to disprove his self-defense claim. To review claims of insufficiency of the evidence to sustain a verdict, this Court views the evidence in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime proved beyond a reasonable doubt. People v. Reddick, 187 Mich. App. 547, 551, 468 N.W.2d 278 (1991). "Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime." People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993).

In People v. Fortson, 202 Mich. App. 13, 19-20, 507 N.W.2d 763 (1993), this Court held:

"[T]he killing of another in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm." People v. Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990). Once evidence of self-defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable doubt.

Here, while defendants had reason to fear the decedent on the basis of prior assaults and threats, the evidence did not indicate that they were in imminent danger from him at the time they shot him. A gun was found on the decedent, but it was in still in his waistband. Evidence demonstrated that defendants shot the decedent eight times in the back. At a posttrial hearing regarding Nguyen's motion for a new trial, the trial court aptly stated:

[D]efendants executed what might be called a preemptive strike on a man who had previously beaten them and threatened them, and shot him in the back before he could come around and bother them again. Whatever else it may be, a preemptive strike is not, under Anglo-American law, any form of self-defense.

We specifically affirm the trial court's focus on "Anglo-American" law. We recognize that other cultures may have adopted legal doctrines that differ from American legal doctrine—as in what constitutes self-defense, for example. However, persons in America are bound to abide by American legal doctrine and American courts are obligated to apply such doctrine. Accordingly, the evidence was sufficient for a rational factfinder to find beyond a reasonable doubt that the prosecution disproved Nguyen's self-defense theory.

Nguyen next argues that he was denied effective assistance of counsel. His main contention is that his rejection of a plea to the lesser offense of second-degree murder resulted from ineffective assistance of counsel. In order to justify reversal of an otherwise valid conviction on the basis of ineffective assistance of counsel, "a defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the representation so prejudiced the defendant as to deprive him of a fair trial." People v. Pickens, 446 Mich. 298, 303, 521 N.W.2d 797 (1994).

The trial court considered this claim in a posttrial motion for a new trial, which it denied. Nguyen's trial counsel testified that he recommended that Nguyen consider the plea bargain, that he explained the meaning of mandatory life (the maximum penalty if Nguyen went to trial), and that he went to the prison with an interpreter on at least one occasion.^[6] He testified that Nguyen indicated that he understood the plea bargain but would not plead guilty because he felt he had not done anything wrong. The trial court recalled that on the morning of the trial, it allowed defense counsel additional time with defendants to resolve the matter but counsel "insisted with some exasperation that their clients were adamant that they would not admit guilt." It found that Nguyen's counsel met regularly with him and clearly laid out the options and that Nguyen understood the options. It concluded that trial counsel's representation of Nguyen was effective. We agree. Nguyen's other claims of ineffective assistance of counsel are conclusory claims relating to alleged failures to prepare for trial, appropriately cross-examine witnesses, and object to hearsay testimony. Here, the only disputed issue was whether defendants acted in self-defense. In the context of overwhelming evidence that they were not in immediate fear for their lives, any such errors did not prejudice Nguyen's right to a fair trial. Accordingly, they do not constitute ineffective assistance of counsel.

Nguyen next claims that the prosecutor engaged in misconduct during closing argument by vouching for the truthfulness of witnesses, denigrating Nguyen, and making a civic-duty argument. Here, there was no objection to the prosecutor's argument. The disputed comments were simply arguments based on the evidence. The prosecutor neither vouched for witnesses nor denigrated Nguyen. His final comment that "on behalf of the Wyoming Police Department and on behalf of the State of Michigan, I am asking you to convict Tai Van Nguyen" was not a "civic-duty" argument because it neither injected issues broader than Nguyen's guilt or innocence of the charges nor encouraged the jurors to suspend their powers of judgment. See People v. Crawford, 187 Mich.App. 344, 354, 467 N.W.2d 818 (1991). Accordingly, none of the disputed comments denied Nguyen a fair trial. See Allen, supra.

Finally, Nguyen contends that the trial court improperly failed to instruct the jury in connection with his self-defense theory that a person has no duty to retreat from his place of business. He also claims that his counsel was ineffective in failing to request such an instruction.

In People v. Dabish, 181 Mich.App. 469, 450 N.W.2d 44 (1989), this Court contemplated possible extensions of the rule that there is no duty to retreat and avoid using deadly force in one's home. It considered People v. Johnson, 75 Mich.App. 337, 254 N.W.2d 667 (1977), in which a private security guard was found to have no duty to retreat when acting in the course of his employment, and People v. Crow, 128 Mich.App. 477, 340 N.W.2d 838 (1983), in which a defendant was found not to have a duty to retreat from his car when attacked by a hitchhiker. Dabish at 475-476, 450 N.W.2d 44. The Dabish Court concluded at 476, 450 N.W.2d 44:

Presently, Michigan simply does not apply a broad rule allowing no-retreat from a place of business.

Here, Nguyen testified that he worked part-time at the restaurant where the shooting occurred but that on the day at issue he told his boss he could not work. Because he was not working at the time of the shooting, the present case does not properly raise the issue whether the "no retreat" rule should be extended to one's place of business. Here, Nguyen did not request such an instruction. The failure of a trial court to instruct on any point of law is not grounds for setting aside a jury verdict unless such an instruction is requested by the accused. M.C.L. § 768.29; M.S.A. § 28.1052. Trial counsel's failure to request an instruction inapplicable to the facts at bar does not constitute ineffective assistance of counsel. See Pickens, supra.

For these reasons, we affirm defendants' judgments of sentence.

Affirmed.

NOTES

[*] Charles W. Johnson, 57th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.

[1] Truong contends that the trial court should have granted relief from the probate court judgment on the basis of Truong's admitted fraud on that court pursuant to MCR 2.612(C)(1)(f) or (C)(3). However, if Truong seeks relief from the probate court order, the appropriate remedy would appear to be for him to petition the probate court directly for such relief, so that the court that received the evidence and entered the order may consider the effect of his current contention that he lied.

[2] To characterize the INS as having "determined" Truong's age probably suggests more of an affirmative investigation on the part of the INS than the facts here indicate. In "determining" Truong's age, the INS apparently accepted at face value information provided by Truong.

[3] However, we believe that if the INS reconsidered the issue on the basis of the physical evidence available to the probate court, it would likely agree with the birth date determined by the court. We also believe that defendant Truong has a much greater incentive to falsify his age in the instant context than when he sought probate court redetermination of his age.

[4] There was evidence that individual words in Truong's testimony were mistranslated to the jury (e.g., the threat from the decedent that he would "shoot" defendants was translated that he would "kill" them.). These imperfect translations did not prejudice defendants, and, if anything, aided their claim of self-defense.

[5] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[6] Nguyen, unlike Truong, was fluent in English.