People v. Truong

Decision Date16 August 1996
Docket NumberDocket Nos. 162306,162307
Citation553 N.W.2d 692,218 Mich.App. 325
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tuan TRUONG, Defendant-Appellant. (After Remand) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tai Van NGUYEN, Defendant-Appellant. (After Remand)
CourtCourt of Appeal of Michigan — District of US

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.

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 Unpublished order of the Court of Appeals, entered April 14, 1994 (Docket No. 162306.)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 Unpublished order of the Court of Appeals, entered November 8, 1994 (Docket No. 162307).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...

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