State v. Nguyen, 01-006.
| Citation | 795 A.2d 538 |
| Decision Date | 14 February 2002 |
| Docket Number | No. 01-006.,01-006. |
| Court | United States State Supreme Court of Vermont |
| Parties | STATE of Vermont v. Minh NGUYEN. |
Present AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.
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 prose 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) ().
Relying on a Kansas case, State v. Calderon, 270 Kan. 241, 13 P.3d 871, 874-75 (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...
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...was defendant's burden to seek a modification of the record under Vermont Rule of Appellate Procedure 10(e). See State v. Nguyen, 173 Vt. 598, 601, 795 A.2d 538, 542 (2002) (mem.) (finding defendant's failure to invoke V.R.A.P. 10(e) procedure for fixing transcript waived his claim of error......
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