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People v. Hoang

Court of Appeals of Michigan

May 7, 2019

HIEU VAN HOANG, Defendant-Appellant.

          Chippewa Circuit Court LC No. 15-001826-FC

          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 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 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 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.


         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.


         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 N.W.2d 267 (2004). Additionally, we review de novo the proper interpretation of statutes and court rules. People v Skinner, 502 Mich. 89, 99; 917 N.W.2d 292 (2018); People v Traver, 502 Mich. 23, 31; 917 N.W.2d 260 (2018).

         B. ANALYSIS

         Both the United States and Michigan Constitutions guarantee a criminal defendant the right to counsel. U.S. 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." U.S. 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 N.W.2d 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 N.W.2d 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, 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 ...

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