People of Michigan v. Hieu Van Hoang

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
May 7, 2019
Plaintiff-Appellee, 9:05 a.m.
v No. 336746
Chippewa Circuit Court
HIEU VAN HOANG, LC No. 15-001826-FC
Defendant-Appellant.
Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ.
CAMERON, J.
Defendant, Hieu Van Hoang, appeals his jury-trial convictions of assault with intent to
murder, MCL 750.83, attempted murder, MCL 750.91, and first-degree arson, MCL 750.72. The
trial court sentenced Hoang as a second-offense habitual offender, MCL 769.10, to life
imprisonment for each offense. On appeal, Hoang argues that he was denied his Sixth
Amendment right to counsel because his court-ordered Vietnamese interpreter was not
physically present during his pretrial meetings with his attorney. He also raises numerous errors
that he contends denied him the effective assistance of counsel. We affirm.
I. BACKGROUND
Hoang and his then wife, Anh Thi-Ngoc Nguyen, lived in an apartment above a nail salon
that they owned and operated in Sault Ste. Marie. Nguyen testified that on June 16, 2015, she
and Hoang had been arguing before she went to bed alone. Later that night, Hoang woke
Nguyen by throwing a phone at her. Hoang was shouting at her as he poured gasoline on the
bed. Hoang threatened to stab Nguyen if she tried to leave the room, and he pushed his wife
back toward the bed and lit either a match or a lighter.1 Because her clothing was soaked in
gasoline, Nguyen opened the window to escape, causing the unsecured air conditioning unit to
1
Nguyen was not clear at trial whether Hoang used matches or a lighter to start the fire.
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fall out of the window opening, and she jumped out the second-story window to the sidewalk
below. Nguyen suffered severe injuries from the fall requiring hospitalization.
A neighbor testified that she saw an air conditioning unit fall out of Nguyen’s apartment
window and then saw Nguyen jump down immediately after. The neighbor called 911 and then
went to assist Nguyen. An on-duty United States Border Patrol agent saw the neighbor with
Nguyen, who was sitting on the sidewalk crying. The agent looked up and, seeing smoke
billowing from the apartment window, called Central Dispatch. Firefighters, paramedics, and
police officers then responded to the scene, and the fire was quickly contained. The paramedics
treated Nguyen, who smelled strongly of gasoline, and took her to the hospital in an ambulance.
Firefighters found a gas can in the bedroom, a broken back window, and a broken back door, and
they alerted the police to these suspicious circumstances. The fire department’s investigator
recovered a green cigarette lighter from outside the building near the blood on the sidewalk
where Nguyen had landed and placed it into evidence. A police investigator concluded that the
fire was the result of arson because of the irregular burn pattern on the mattress, the presence of
gasoline in the bedroom, and gasoline found on samples collected from the mattress, the
bedding, and the clothing worn by Nguyen and Hoang.
A police officer transported Hoang from the hospital to the police station where a police
detective interviewed Hoang. According to the detective, Hoang appeared intoxicated and at
times spoke in broken English, but the two were able to communicate without an interpreter. In
fact, Hoang denied an offer for an interpreter and gave a statement to police about the
circumstances surrounding the fire, claiming that he was asleep when the fire started. After a
short interview, a search warrant was executed, and police officers seized Hoang’s clothing and
searched the apartment. Hoang was then arrested on charges of assault with intent to murder.
At the outset of the proceedings, the trial court appointed Hoang a Vietnamese interpreter
who was physically present and provided interpretation services for all hearings and the trial. In
March 2016, Hoang sent the first of many letters from jail to the trial court insisting that he
needed an interpreter for his pretrial discussions with his attorney. Other inmates, who were
apparently fluent in both Vietnamese and English, transcribed the letters for Hoang. The first
letter, sent in March 2016, asserted that Hoang needed an interpreter “because of the language
barrier” between him and his attorney. Hoang also asserted that the translation of his jail calls
between him and Nguyen was not accurate and asked the trial court to have the recordings be
retranslated. Six days later, Hoang wrote another letter, requesting “to have his court appointed
interpreter present to go over plea offers and evidence because of his language barrier,” and he
again asked that the jail calls be retranslated. Hoang then wrote another letter in March,
expressing his desire “to go over all evidence and plea offers with his interpreter so there are no
misunderstandings before court proceedings continue.” In April 2016, before his plea hearing,
Hoang wrote another letter to the trial court in which he acknowledged that an interpreter was
available via speakerphone when he met with his attorney. According to Hoang, however, he
needed to have the interpreter physically present at the meeting to go over evidence “so there is
no confusion.” Hoang expressed his need to personally meet with the interpreter on the day of
his upcoming hearing in order to understand the evidence.
On April 19, 2016, the trial court held a plea hearing. The interpreter was physically
present at the hearing, and Hoang explained to the trial court that he wanted the jail calls between
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him and his wife retranslated because the transcripts of the calls were inaccurate and incomplete
because they included only a portion of their conversations. The trial court denied Hoang’s
request, explaining that the evidence of the jail calls was an issue for trial. Thereafter, Hoang
confirmed that he wanted his case to proceed to trial. During the hearing, neither Hoang nor his
attorney raised the issue that an interpreter needed to be physically present during attorney-client
discussions at the jail.
After the plea hearing, however, Hoang wrote another letter to the trial court,
acknowledging again that, although the interpreter participated in his recent discussion with his
attorney via speakerphone, she was not physically present. Hoang challenged the trial court in
his letter: “How [am I] suppos[ed] to review all the evidence and pleas with someone over a
phone that does not have the same paperwork [I have]?” According to Hoang, he could not take
a plea “when he does not understand the evidence or the evidence is incomplete.” In three more
letters sent to the trial court before trial, Hoang continued to express his need for an interpreter to
be physically present when meeting with his attorney to review the paperwork and evidence in
his case. Hoang explained that “[t]he interpreter has only appeared via speakerphone, which [he]
has found to be fruitless.” Hoang also reiterated that he had not received the complete transcripts
to the jail calls with his wife.
The trial began on September 19, 2016. Hoang testified at trial that on the night of the
fire he drank one or two beers, as he did every night before bed, and fell asleep before Nguyen
went to bed. He stated that he was asleep when the fire started, but his wife was still awake.
When Hoang awoke, he saw a fire on his side of the bed. He claimed that he was able to jump
out of bed and avoid injury from the fire, but in doing so he kicked the gas can that had been
moved to the bedroom because their dogs had knocked it over earlier that day where it was
usually stored.
The jury found Hoang guilty of assault with intent to murder, attempted murder, and first-
degree arson. The trial court sentenced Hoang to life imprisonment for each offense. On appeal,
Hoang filed an appellate brief, claiming the denial of his Sixth Amendment right to counsel
because his court-appointed interpreter was not physically present to help Hoang review
discovery and facilitate communications with trial counsel. Additionally, Hoang filed a Standard
4 brief, along with a motion to remand in this Court, requesting an evidentiary hearing to develop
the record regarding his claims that trial counsel failed to impeach Nguyen’s testimony, failed to
introduce a letter Nguyen allegedly wrote to Hoang stating that she lied to the police about him
starting the fire, and failed to introduce evidence of the jail calls between Nguyen and Hoang,
which were improperly translated and proved his innocence.
This Court remanded the case to allow Hoang the opportunity to submit the letter from
Nguyen, to appoint a new translator, and to have the trial court determine whether an evidentiary
hearing was required. 2 On remand, the trial court inquired into the letter that Nguyen allegedly
2
People v Hoang, unpublished order of the Court of Appeals, entered November 20, 2017
(Docket No. 336746).
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wrote and had a different translator retranslate two of the jail calls between Nguyen and Hoang.
After reviewing an affidavit from trial counsel, a letter from Nguyen stating that no such letter to
Hoang existed, and the new translations of the jail calls, the trial court determined that an
evidentiary hearing was not warranted. The trial court entered an order following remand, and it
concluded there was insufficient evidence to corroborate Hoang’s claim that Nguyen wrote an
exculpatory letter, and it further concluded that the new translations were substantially similar to
the old ones. Therefore, the trial court denied an evidentiary hearing, completing all actions in
compliance with our Court’s remand. Having retained jurisdiction, this Court now addresses
Hoang’s claims on appeal.
II. THE USE OF AN INTERPRETER DURING PRETRIAL PREPARATIONS
In his appellate brief, Hoang argues that he was denied his Sixth Amendment right to
counsel at critical stages of the proceedings—trial preparation and plea discussions—because his
court-appointed interpreter was not physically present during his attorney-client discussions,
including reviewing the evidence, developing a trial strategy, and determining whether defendant
should accept a plea offer. We disagree.
A. STANDARD OF REVIEW
Generally, whether a defendant’s right to counsel was violated is a constitutional issue
that this Court reviews de novo. People v Hickman, 470 Mich. 602, 605; 684 NW2d 267 (2004).
Additionally, we review de novo the proper interpretation of statutes and court rules. People v
Skinner, 502 Mich. 89, 99; 917 NW2d 292 (2018); People v Traver, 502 Mich. 23, 31; 917 NW2d
260 (2018).
B. ANALYSIS
Both the United States and Michigan Constitutions guarantee a criminal defendant the
right to counsel. US Const, Am VI; Const 1963, art 1, § 20. The Sixth Amendment states, in
relevant part: “In all criminal prosecutions, the accused shall enjoy . . . the Assistance of Counsel
for his defence.” US Const, Am VI. The Michigan Constitution states: “In every criminal
prosecution, the accused shall have the right . . . to have the assistance of counsel for his or her
defense.” Const 1963, art 1, § 20. “The right to counsel guaranteed by the Michigan
Constitution is generally the same as that guaranteed by the Sixth Amendment; absent a
compelling reason to afford greater protection under the Michigan Constitution, the right to
counsel provisions will be construed to afford the same protections.” People v Marsack, 231
Mich. App. 364, 373; 586 NW2d 234 (1998).
One’s right to counsel does not attach until “after adversarial legal proceedings have been
initiated against a defendant by way of indictment, information, formal charge, preliminary
hearing, or arraignment,” id. at 376-377, and it extends to every critical stage of the proceedings,
People v Anderson (After Remand), 446 Mich. 392, 402; 521 NW2d 538 (1994). “The pre-trial
period constitutes a ‘critical period’ because it encompasses counsel’s constitutionally imposed
duty to investigate the case,” and “[c]ounsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on information supplied by the
defendant.” Mitchell v Mason, 325 F 3d 732, 743 (CA 6, 2003), citing Strickland v Washington,
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466 U.S. 668, 691; 104 S. Ct. 2052; 80 L. Ed. 2d 657 (1984) (reviewing our Supreme Court’s
decision after the defendant filed a petition for habeas relief and concluding that the defendant
was denied his Sixth Amendment right to counsel when his attorney was suspended for 30 days
during the pretrial period and was unable to communicate with the defendant and form a trial
strategy).
Hoang argues that he was denied his Sixth Amendment right to counsel because his
interpreter was not physically present during trial preparation and plea discussions with his
attorney, making it difficult to review the paperwork and the evidence in the case. Thus, without
an interpreter physically present at the meetings between himself and his attorney, Hoang claims
that he and his attorney were unable to properly prepare for trial, and Hoang could not fully
understand any offered pleas, which effectively denied him his right to counsel during a critical
stage of the proceedings. This argument is without merit.
Hoang’s argument implicates both statutory and constitutional considerations, neither of
which have been directly addressed by this Court. Significantly, our courts have yet to
determine whether the absence of an in-person interpreter during the pretrial stage of the
proceedings implicates a defendant’s constitutional right to counsel. However, on the record in
this case, we do not detect a statutory or constitutional error with regard to the trial court’s
appointment of an interpreter or trial counsel’s utilization of that interpreter.
1. RIGHT TO AN INTERPRETER UNDER MCL 775.19a AND MCR 1.111
MCL 775.19a provides the standard upon which trial courts must appoint an interpreter:
If an accused person is about to be examined or tried and it appears to the judge
that the person is incapable of adequately understanding the charge or presenting
a defense to the charge because of a lack of ability to understand or speak the
English language, the inability to adequately communicate by reason of being
mute, or because the person suffers from a speech defect or other physical defect
which impairs the person in maintaining his or her rights in the case, the judge
shall appoint a qualified person to act as an interpreter.
In 2013, our Supreme Court adopted MCR 1.111, which governs the requirements of foreign
language interpreters. Under MCR 1.111(B)(1):
If a person requests a foreign language interpreter and the court determines such
services are necessary for the person to meaningfully participate in the case or
court proceeding, or on the court’s own determination that foreign language
interpreter services are necessary for a person to meaningfully participate in the
case or court proceeding, the court shall appoint a foreign language interpreter for
that person if the person . . . is a party.
While not raised by Hoang, we first consider the statute and court rule governing
interpretation services. The record shows that the trial court complied with the requirements
provided under both MCL 775.19a and MCR 1.111(B)(1). At the outset of the case, the trial
court appointed Hoang a Vietnamese interpreter, and the interpreter was physically present and
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provided interpretation services during all hearings and at trial. Thereafter, the trial court had an
ongoing obligation under MCR 1.111(B)(1) to ensure that Hoang received such interpretation
services as were necessary to “meaningfully participate in the case or court proceeding.” For
example, under MCR 1.111(F)(3), the trial court is allowed to appoint more than one interpreter
after considering the nature and duration of the proceeding, the number of parties in interest and
witnesses requiring interpretation services, the languages of those people, and the quality of
remote technology used to ensure effective communication.
Importantly, our court rules define “case or court proceeding” as “any hearing, trial, or
other appearance before any court in this state in an action, appeal, or other proceeding,
including any matter conducted by a judge, magistrate, referee, or other hearing officer.” MCR
1.111(A). Therefore, a party shall receive interpreter services as necessary for the person “to
meaningfully participate” in any hearing, trial, etc. A fundamental principle to meaningfully
participating in preliminary examinations, plea hearings, and trial is the ability to engage in
pretrial preparation with trial counsel. Thus, we conclude that the broad standard set forth under
MCR 1.111(B)(1) mandates interpretation services during pretrial preparations when necessary
for a defendant to meaningfully participate in the case or court proceeding.
In this case, Hoang was entitled under the court rule to interpretation services during
pretrial preparations with his attorney. We further conclude, however, that Hoang received such
services, and therefore, cannot show a violation under MCL 755.19a and MCR 1.111. As will be
discussed in more detail below, Hoang’s trial counsel did not detect a communication
breakdown, but even after receiving letters from his client, trial counsel ensured that Hoang had
access to an interpreter. Hoang’s interpreter participated telephonically during pretrial
preparations between Hoang and his attorney, and Hoang did not raise any issue as to
interpretation services at the plea hearing. Hoang has not shown that he could not meaningfully
participate in the case or court proceedings. Thus, we do not detect any violation of the court
rules, and the trial court did not err by failing to ensure the interpreter’s physical presence during
pretrial meetings with trial counsel.
2. SIXTH AMENDMENT RIGHT TO COUNSEL
A defendant also has a constitutional right to consult with counsel and prepare a defense.
As stated in Mitchell, “[b]ecause the Supreme Court [of the United States] has repeatedly made
clear that there is a duty incumbent on trial counsel to conduct pre-trial investigation, it
necessarily follows that trial counsel cannot discharge this duty if he or she fails to consult with
his or her client.” Mitchell, 325 F 3d at 744.3 We conclude there are both state and federal
constitutional implications based on a defendant’s right to counsel during critical stages of the
3
The court in Mitchell explained that “[i]t cannot seriously be argued that defense counsel’s
obligation to consult with his client at least once is a new or novel obligation being imposed on
the government or that the Supreme Court’s cases in Powell[ v Alabama, 287 U.S. 45; 53 S. Ct. 55;
77 L. Ed. 158 (1932)], Strickland, and [United States v] Cronic, [466 U.S. 648; 104 S. Ct. 2039; 80
L. Ed. 2d 657 (1984),] do not compel this result.” Mitchell, 325 F 3d at 744 n 5.
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proceedings when a defendant, who is entitled to an interpreter, is prevented from
communicating with his attorney because he has been denied an interpreter as mandated under
MCL 755.19a and MCR 1.111.
This Court has held that the failure to use an interpreter necessary for simultaneous
translation during a defendant’s trial without a valid waiver from the defendant implicated both
state and federal constitutional protections. In People v Gonzalez-Raymundo, 308 Mich. App.
175, 181-182; 862 NW2d 657 (2014), the trial court appointed a Spanish interpreter, but at the
start of trial, the trial court granted defense counsel’s request to waive the interpreter’s services
because of the possible prejudice that defense counsel speculated such services might have on
the jury, and the interpreter would then “explain things to the defendant on break.” The
Gonzalez-Raymundo Court concluded that this was not a valid waiver because defendant did not
personally waive his right, and “[t]he lack of simultaneous translation implicated defendant’s
rights to due process of law guaranteed by the United States and Michigan Constitutions.” Id. at
188. Moreover, this Court held that “a defendant’s lack of understanding of the proceedings
against him renders him effectively absent,” and the “lack of simultaneous translation impairs a
defendant’s right to confront witnesses against him and participate in his own defense.” Id. This
Court held that “[t]he right at issue is thus not merely statutory as codified by MCL 775.19a, but
constitutional, and thus subject to every reasonable presumption against its loss.” Id.
Depriving a defendant from communicating with his attorney during pretrial
preparations—a critical stage of the proceedings—prevents that attorney from fulfilling his duty
to investigate and prepare possible defenses. See Powell v Alabama, 287 U.S. 45, 59; 53 S. Ct. 55;
77 L. Ed. 158 (1932) (“[A] defendant, charged with a serious crime, must not be stripped of his
right to have sufficient time to advise counsel and prepare his defense.”). In Powell, the trial
court had appointed “all the members of the bar” to represent seven African American men
during their arraignment on rape charges of two white women. Id. at 49, 56. However, the one-
day trials for each of the men commenced six days from their arraignment, and the trial court did
not identify the defendants’ trial attorneys until the day trial began. Id. at 56. In the words of the
Supreme Court, the trial court’s appointment of counsel was “little more than an expansive
gesture, imposing no substantial or definite obligation upon any one.” Id. According to the
Powell Court, “during perhaps the most critical period of the proceedings against these
defendants, that is to say, from the time of their arraignment until the beginning of their trial,
when consultation, thorough-going investigation and preparation were vitally important, the
defendants did not have the aid of counsel in any real sense, although they were as much entitled
to such aid during that period as at the trial itself.” Id. at 57. Thus, the Powell Court held that
the effective deprivation of counsel was a violation of the defendants’ constitutional rights. See
United States v Cronic, 466 U.S. 648, 661; 104 S. Ct. 2039; 80 L. Ed. 2d 657 (1984) (“Powell was
thus a case in which the surrounding circumstances made it so unlikely that any lawyer could
provide effective assistance that ineffectiveness was properly presumed without inquiry into
actual performance at trial.”)
The Sixth Circuit Court of Appeals, relying on cases like Powell and Cronic, addressed
the deprivation of a defendant’s right to counsel even though the trial court had appointed a trial
attorney. In Mitchell, the court explained that “[w]hen counsel is appointed but never consults
with his client and is suspended from practicing law for the month preceding trial, and the court
acquiesces in this constructive denial of counsel by ignoring the defendant’s repeated requests
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for assistance,” there is a violation of the defendant’s constitutional right to counsel as governed
by the Supreme Court of the United States’ decision in [Cronic]. Mitchell, 325 F 3d at 744. In
Cronic, the Supreme Court of the United States stated that it “has uniformly found constitutional
error without any showing of prejudice when counsel was either totally absent, or prevented
from assisting the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n
25.
While we conclude that Hoang had a constitutional right to use of an interpreter during
attorney-client pretrial preparations, under the facts of this case, there was no Sixth Amendment
violation. Hoang acknowledges the fact that he was granted the appointment of an interpreter.
He further admits that an interpreter participated via speakerphone while Hoang and his attorney
prepared the case and discussed the prosecution’s plea offer. Hoang contends, however, that
because the interpreter was not physically present while Hoang met with his attorney, he was
prevented from fully understanding his attorney, preparing his case, and understanding any plea
offers from the prosecution. Consequently, Hoang’s contention is not that he was denied his
right to counsel for the trial court’s failure to provide an interpreter, but that he was denied his
right to counsel because he could not effectively communicate with his trial counsel through the
interpreter. Hoang’s argument is without merit. Prior to trial, trial counsel wrote a letter to
Hoang and explained that they had communicated effectively in writing and in person on several
occasions while preparing the case. In fact, trial counsel told Hoang, “The day I told you what
the plea offer was you then told me that you did not speak English, or read or write English.” At
that point, trial counsel took steps to ensure that the interpreter was available via speakerphone.
Trial counsel’s letter also shows that trial counsel was satisfied with using the interpreter via
speakerphone. Thus, unlike the circumstances in Powell and Mitchell, trial counsel’s actions
showed that he worked closely and diligently with Hoang to prepare a defense. 4 We cannot
conclude that the failure to have an interpreter physically present during Hoang’s pretrial
meetings with his attorney amounted to the constructive deprivation of counsel. Therefore, we
conclude that there was no violation of Hoang’s constitutional right to counsel.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his Standard 4 brief, Hoang argues that trial counsel was ineffective because (1) he
should have requested that the interpreter be physically present during pretrial preparations, (2)
he failed to impeach Nguyen at trial, (3) he failed to provide rebuttal evidence, (4) he failed to
obtain forensic evidence, (5) he failed to introduce a letter from Nguyen, and (6) he failed to
introduce the complete and accurately translated transcripts of jail calls he made to Nguyen. We
disagree.
A. STANDARD OF REVIEW
4
We note that the trial court—located in the upper peninsula—also ensured that an interpreter
from the southern region of the lower peninsula was physically present for all hearings and trial.
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Generally, an ineffective assistance of counsel claim presents a mixed question of fact
and constitutional law. People v Matuszak, 263 Mich. App. 42, 48; 687 NW2d 342 (2004).
Constitutional questions are reviewed de novo, while findings of fact are reviewed for clear
error. People v LeBlanc, 465 Mich. 575, 579; 640 NW2d 246 (2002). This Court reviews an
unpreserved ineffective assistance of counsel claim for errors apparent on the record. People v
Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012).
B. ANALYSIS
To demonstrate ineffective assistance of counsel, a “defendant must show that his
counsel’s performance was deficient, and that there is a reasonable probability that but for that
deficient performance, the result of the trial would have been different.” Matuszak, 263 Mich
App at 57-58. “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001) (quotation marks
and citation omitted). A defendant must establish a factual basis for an ineffective assistance of
counsel claim. People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999). Matters of strategy that
were not successful, in hindsight, do not constitute deficient performance. People v Unger, 278
Mich. App. 210, 242-243; 749 NW2d 272 (2008). When reviewing an ineffective assistance of
counsel claim, “the inquiry is not whether a defendant’s case might conceivably have been
advanced by alternate means.” LeBlanc, 465 Mich. at 582.
1. REQUEST FOR AN INTERPRETER DURING PRETRIAL PREPARATIONS
“[I]t has been recognized that the right to counsel is the right to the effective assistance of
counsel.” Cronic, 466 U.S. at 654. “Cases on the continuum range from actual to constructive
denial of counsel to instances where the performance of counsel is so deficient that there has
been a functional denial of counsel guaranteed by the Sixth Amendment.” People v Mitchell,
454 Mich. 145, 153; 560 NW2d 600 (1997), vacated on other grounds in Mason v Mitchell, 536
U.S. 901 (2002). While Hoang argues in his appellate brief that there was an actual denial of his
right to counsel, he argues in his Standard 4 brief that he was denied the effective assistance of
counsel when his requests for an interpreter to be present at attorney-client meetings went
unanswered. Hoang’s argument fails.
First, Hoang has not shown that his trial counsel’s actions—i.e., having an interpreter
available via speakerphone—constituted deficient performance. In fact, trial counsel responded
to Hoang’s requests in a July letter and explained that he had not detected any communication
issues between the two of them but that, after Hoang expressed his concerns, trial counsel
ensured that an interpreter was made available to Hoang during pretrial preparations. We cannot
conclude that trial counsel’s use of the interpreter via speakerphone constitutes deficient
performance sufficient to prove an ineffective assistance of counsel claim.
Finally, even if trial counsel should have requested that the interpreter be physically
present for trial preparation to ensure that Hoang understood the proceedings, any deficient
performance in this regard was not prejudicial. Hoang’s contention is that, without an interpreter
to help him review the file, he could not fully understand the evidence against him or the terms
of the plea offer. However, Hoang had every opportunity to discuss his file—including the plea
offer—at his meetings with the interpreter. Additionally, Hoang never raised any concern
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regarding the terms of the plea offer to the trial court at the plea hearing. Instead, he continually
maintained his innocence and focused only on the fact that he wanted the accurate and complete
transcripts of his jail calls with his wife—which he believed would exonerate him. For that
reason, Hoang has not shown that he would have taken the plea had the interpreter been
physically present during trial preparation; therefore, we do not detect prejudice.
2. FAILURE TO IMPEACH WITNESS
In his Standard 4 brief, Hoang challenges several strategic decisions made by trial
counsel, including that the failure to impeach Nguyen’s testimony constituted deficient
performance. Hoang first argues that trial counsel failed to impeach Nguyen’s testimony with
her own contradictory testimony. This argument is unavailing because trial counsel did, in fact,
impeach Nguyen’s testimony in an attempt to create a reasonable doubt about Hoang’s guilt.
Trial counsel highlighted Nguyen’s inconsistent statements during trial, where she first claimed
Hoang used a match to light the fire, but later said he had used a lighter. Trial counsel then
highlighted Nguyen’s inconsistent testimony from the preliminary examination, where she had
stated that she saw Hoang with only a lighter, not matches. After being confronted with her
conflicting testimony, Nguyen insisted that she meant a lighter and explained that the
inconsistency was the result of the translation. Hoang argues that trial counsel should have asked
the interpreter to clarify Nguyen’s conflicting testimony, especially since she alleged that the
difference in her testimony was due to translation errors. Hoang is essentially asserting that trial
counsel should have called the interpreter to testify about the translation of the words for match
and lighter. However, trial counsel adequately brought the issue to the jury’s attention.
Therefore, trial counsel’s performance was not deficient.
Hoang also argues that trial counsel failed to impeach Nguyen’s trial testimony that she
and Hoang did not normally keep a gas can in the apartment because she had testified at the
preliminary hearing that they normally kept a gas can in the bathroom. Hoang’s argument fails
because trial counsel asked Nguyen about the gas can at trial and elicited confusing and
inconsistent testimony from her about whether and where they kept the gas can in the apartment.
Hoang also makes several other claims challenging specific areas of trial counsel’s cross-
examination—even though it did not necessarily involve the impeachment of the witness. Hoang
contends that Nguyen contacted him in jail and sent him money in jail, evidenced by the
purportedly incorrect translations of the jail calls. Hoang argues that trial counsel failed to
question Nguyen about this contact with Hoang despite a no-contact order. However, trial
counsel questioned Nguyen about her communications with Hoang after he was arrested, and
Nguyen admitted that she sent him money after he called her and asked for it. Accordingly, trial
counsel did ask Nguyen about her contact with Hoang, and trial counsel’s decision not to persist
in questioning Nguyen about this contact was entirely reasonable.
Hoang also contends that his consoling of Nguyen after she jumped out of the window
and at the hospital were inconsistent with guilt, and trial counsel should have highlighted
Nguyen’s reaction to Hoang immediately after her injuries. Hoang fails to explain the relevance
of this testimony, and regardless, any decision on the part of trial counsel to refrain from eliciting
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testimony on the subject constitutes trial strategy. Considering the evidence as a whole, trial
counsel could very well have avoided the subject because a jury might reasonably infer that
Hoang manipulated the situation to look like he was playing the part of a worried husband to
avoid suspicion, but he really was using it as an opportunity to talk to Nguyen alone and coach
her about what to say to the authorities about the fire.
Lastly, Hoang contends that Nguyen’s testimony was inconsistent as to when gasoline
was poured on her clothing relative to when the fire started. Hoang also argues that the police
did not recover the phone in the apartment that Hoang allegedly threw at Nguyen to wake her,
the police found his and Nguyen’s phones in Nguyen’s car, and Hoang was not given copies of
the police reports by counsel. Hoang has provided this Court with no factual support for this
claim, and he has not made a documented request for the police records. Therefore, this claim
has no merit. Hoang is correct that trial counsel did not ask Nguyen about every aspect of her
testimony, but again, he has failed to defeat the presumption that counsel’s failure to inquire into
these matters was a strategic decision designed to highlight only the most inconsistent evidence
without bogging the jury down with insignificant details. Cross-examining a victim in an
attempted murder case about every potentially inconsistent detail in their testimony can be
counterproductive and draw attention to details that support an inference of guilt. For example,
our Supreme Court has approved of a defense attorney’s decision not to call an expert witness to
rebut the prosecution’s expert witness when trial counsel explained that creating a battle of the
experts tended to bolster the importance of the testimony of the expert witnesses, particularly the
prosecution’s expert witness. LeBlanc, 465 Mich. at 580-583. In sum, Hoang has not
demonstrated that trial counsel’s handling of the defense was anything but reasonably strategic.
Witness credibility is a matter for the jury to decide. People v Lemmon, 456 Mich. 625, 637; 576
NW2d 129 (1998). Accordingly, having heard both Nguyen’s and Hoang’s testimony, the jury
reasonably chose to credit Nguyen’s testimony, in addition to the corroborating evidence, to find
Hoang guilty.
3. FAILURE TO REBUT EVIDENCE
Hoang argues that trial counsel should have rebutted Nguyen’s testimony regarding a
jewelry box that fell off the air conditioning unit when she opened the window. When Nguyen
testified about opening the window to jump out of the apartment to avoid the fire, she stated that
she had stacked things, including a jewelry box, on top of the air conditioning unit. According to
Hoang, trial counsel failed to demonstrate that it was impossible for a jewelry box to sit on top of
the air conditioning unit, and therefore, it could not have fallen to the ground when his wife
opened the window. Hoang claims that the available space on top of the air conditioning unit
was too small. Trial counsel asked some of the police officers who testified at trial about the
jewelry box and the photographs taken of the bedroom, which showed the jewelry box lying on
the ground, but they were not able to provide any details about the size or contents of the jewelry
box, or where it was located during the fire.
Hoang appears to be suggesting that Nguyen set the fire to kill him and take the jewelry
with her, or some variation on this theme, but the string of inferences necessary to arrive at this
conclusion is speculative and does not warrant reversal on this record. Further, on cross-
examination, trial counsel did ask Nguyen whether she was upset that Hoang may have been
having an affair and confirmed that Nguyen would become the sole owner of the nail salon if
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they divorced. After this line of questioning, trial counsel ended cross-examination, having
attempted to leave the jury with the impression that Nguyen had a motive for lying about Hoang
starting the fire. Trial counsel’s performance was not deficient for failing to rebut the evidence
presented.
4. FAILURE TO OBTAIN FORENSIC EVIDENCE
Hoang raises other challenges to trial counsel’s strategy that involved the use of forensic
evidence. Hoang cites trial counsel’s closing argument about the lighter to argue that trial
counsel should have had the lighter tested for DNA or fingerprints because that evidence would
have shown that Nguyen, not Hoang, actually started the fire. In his closing argument, trial
counsel argued that the lighter was the only piece of evidence the police failed to test for DNA or
fingerprints. Trial counsel made this argument after attacking Nguyen’s credibility, arguing that
she was jealous about an affair Hoang was having, and stating that she should not have gotten the
entire business because they were only married for one year before divorcing. Read in context,
trial counsel’s point in raising the police’s failure to test the lighter was to plant a seed of doubt
in the jurors’ minds to argue for an acquittal. Hoang’s argument on appeal is flawed because it
presupposes that testing the lighter would return exonerating evidence. But Hoang has presented
no factual basis to support this presupposition and to show that counsel was ineffective for not
having the lighter tested, especially because counsel highlighted the police’s failure to test the
lighter as a point in Hoang’s favor.
Hoang also argues that trial counsel was ineffective for failing to clarify whether gasoline
found on Hoang’s shoes was on the top of the shoes, consistent with splashing, or on the bottom
of the shoes, consistent with stepping in gasoline. A forensic scientist testified that there was
gasoline on the shoes without specifying where on the shoes. Hoang does not adequately explain
why this detail matters or how it would show that Hoang did not start the fire, particularly in
light of witness testimony that the apartment, Hoang, and Nguyen all smelled of gasoline. Thus,
this argument is without merit.
5. FAILURE TO INTRODUCE LETTER
In his Standard 4 brief, Hoang also argues that trial counsel failed to introduce into
evidence a letter that Nguyen allegedly wrote to Hoang, or question Nguyen about this letter, in
which he alleges that she explained that the police threatened to charge her with conspiracy to
commit arson if she did not tell them that Hoang started the fire and in which she apologized to
Hoang for lying to the police. Hoang preserved this issue by pursuing a remand for an
evidentiary hearing. On remand, trial counsel produced an affidavit stating that Hoang had given
him no such letter, and Nguyen wrote a letter stating that she had no further contact with Hoang
after they spoke when he was in jail and she sent him money. During the jail calls, Nguyen told
Hoang that the police told her not to deny knowing what happened and asked her whether she
and her husband were plotting something. Nguyen’s description of what the police said to her
does not support Hoang’s claim that the police directed Nguyen to say that Hoang started the
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fire, nor does this conversation between Nguyen and Hoang substantiate the existence of a letter
Nguyen wrote to Hoang stating that she lied to the police. In addition, the police had other
evidence and other witnesses, and the jury chose to credit the evidence presented, showing that
Hoang started the fire and attempted to kill Nguyen. Hoang has not shown that it was
unreasonable for the jury to credit the other witnesses’ testimony over his version of events.
6. FAILURE TO INTRODUCE JAIL CALLS
Hoang argues that trial counsel failed to introduce complete and accurate transcripts of
the jail calls, which Hoang continues to maintain were translated erroneously. Hoang raised this
issue when he sought a remand for an evidentiary hearing, and the trial court had the recordings
of the jail calls retranslated by a different translator. First, the transcripts of the calls show that
Hoang initiated the calls and that he told Nguyen to say that nothing happened when she testified
at the preliminary examination. Hoang also told Nguyen the story he told the police. When
Hoang raised the issue of the transcripts at the sentencing hearing, trial counsel stated that he did
not introduce the transcripts of the calls into evidence because they tended to show Hoang’s
guilt. We have reviewed the transcripts and agree with trial counsel. Further, Hoang has
described no attempt to have a third party interpret the recordings, and he has provided no details
about what part of the recordings were incorrectly translated. Hoang has not supported this
claim with a factual basis that warrants remand.
In an affidavit attached to the Standard 4 brief, Hoang stated that the interpreter did not
interpret everything that the witnesses said at trial, the interpreter and trial counsel refused to
respond to Hoang’s concerns, and the interpreter refused to ask the trial court and trial counsel
for clarification of witness testimony on his behalf, such as his belief about the location of the
gas can. Hoang also claims that he did not understand when trial counsel tried to explain the
plea offer to him and that trial counsel got frustrated with Hoang when he refused to plead guilty.
Hoang did not raise this issue in the remand motion or in his arguments on appeal. Nonetheless,
even accepting these statements as properly presented arguments, they are inconsistent with the
specificity of Hoang’s claims that trial counsel failed to impeach Nguyen’s testimony properly,
failed to introduce an exculpatory letter that Nguyen allegedly wrote to Hoang, and failed to
introduce transcripts of calls between Nguyen and Hoang. Accordingly, these claims have no
merit and do not warrant a new trial.
In sum, Hoang raises challenges to various aspects of the trial court proceedings, but the
specificity of his ineffective assistance of counsel claims, particularly those presented in the
Standard 4 brief, belie his overall claim that he did not understand what was happening
throughout the proceedings. Further, Hoang has not demonstrated a factual basis supporting his
claims. Neither a remand for an evidentiary hearing nor a new trial is warranted.
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Affirmed.
/s/ Thomas C. Cameron
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
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