STATE оf Wisconsin, Plaintiff-Respondent, v. Xiong YANG, Defendant-Appellant.
No. 95-0583-CR
Court of Appeals of Wisconsin
Decided April 18, 1996
549 N.W.2d 769
Submitted on briefs March 11, 1996. Petition to review denied.
For the plaintiff-respondent the cause was submitted on the brief of James E. Doyle, attorney general, and Sharon Ruhly, assistant attorney general.
Before Dykman, Sundby and Vergeront, JJ.
VERGERONT, J. Xiong Yang appeals from a judgment of conviction for sexual assault of a child contrary to
We conclude that the trial court had notice before the trial of a language difficulty such that the court was required to make a determination under
BACKGROUND
Yang was born in Laos in 1960 and moved to the United States in 1980. After his arrival in the United States, he continued to speak Hmong at home. He took beginning-level English courses at a technical college and enrolled in a welding course designed for Hmong individuals. With the assistance of the minority coordinator at the technical college, Yang obtained a welding job in 1988 at the Toro Company and remained employed there until 1993.
Yang met Paulette A. in 1986, and they had a relationship lasting until July 1992, with periods of living together and periods of separation. Paulette does not speak Hmоng. Paulette and Yang had three children together. Paulette had three other children, one named Adrian. On August 30, 1992, Adrian, then eight years old, told Paulette that Yang had sometime previously put his penis in or on her buttocks. Yang was charged with the sexual assault of Adrian.
The court appointed counsel for Yang. Jury selection was scheduled for January 11, 1993, with the trial to begin on January 12, 1993. Yang did not appear on January 11 in court, and the trial court issued a warrant. Yang appeared the next day in court with his counsel. Counsel explained that he had found Yang at work. Yang indicated to counsel that he knew the trial was scheduled for that week but did not realize he had
Yang‘s counsel did not mention the issue of an interpreter again to the court, and the trial took place on May 11, 1993, without an interpreter. The testimony of all the witnesses for the State was in English. Yang was the only witness for the defense. He testified at trial in English and denied having any sexual contact with Adrian. Through cross-examination of the State‘s witnesses, defense counsel brought out that Adrian had not mentioned Yang to professionals who interviewed her before August 30, 1992, about possible sexual abuse, еven though the incident Yang was charged with had already occurred. The defense also attempted to show that Paulette was extremely jealous of Yang, and was preoccupied with child sexual abuse because she had been abused as a child and Adrian knew this.
The jury found Yang guilty. In his postconviction motion, Yang alleged that the trial court erred in not conducting an inquiry to determine if an interpreter was necessary; that defense counsel was ineffective for failing to obtain an interpreter; and that the real controversy was not fully and fairly tried because of the lack of an interpreter. After the evidentiary hearing, at which a Hmong interpreter translated, the trial court denied the postconviction motion. The court concluded that it was not required to make a determination on the necessity of an interpreter before trial because defense counsel had not requested one. It also determined that Yang had not needed an interpreter.
[1]
Whether the trial court erred in not conducting an inquiry before trial to determine if an interpreter was necessary requires a construction of
If a court has notice that a person [charged with a crime] has a language difficulty because of the inability to speak or understand English . . . the cоurt shall make a factual determination of whether the language difficulty . . . is sufficient to prevent the individual from communicating with his or her attorney, reasonably understanding the English testimony or reasonably being understood in English. If the court determines that an interpreter is necessary, the court shall advise the person that he or she has a right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided for him or her at the public‘s expense.
Yang argues that the trial court had notice of his language difficulty because of the misunderstanding concerning his appearance at jury selection and his counsel‘s comments to the court on January 12, 1993. The State responds that the trial court did not have notice because no evidence was presented to the court giving rise to a reason to doubt Yang‘s competence in English. The State relies on cases concerning a defendant‘s competency to stand trial, such as State v. Weber, 146 Wis. 2d 817, 433 N.W.2d 583 (Ct. App. 1988), in which we held that before mental competency
The Neave court‘s language in describing the procedure is essentially tracked in the statute:1
[W]henever a trial court is put on notice that the accused has a language difficulty, the court must make a factual determination of whether the language disability is sufficient to prevent the defendant from communicating with his attorney or reasonably understanding the English testimony at the preliminary hearing or trial.
Id. at 375, 344 N.W.2d at 188-89 (footnote omitted). Although the court in Neave did not expressly define “put on notice,” its discussion indicates what it intended by the term. In describing the trial court proceedings, the Neave court noted that “the trial judge was aware of the defendant‘s language disability,” because of a statement by the district attorney at the preliminary hearing that the defendant spoke Spanish quite exclusively and spoke very little English. Id. at 363, 344 N.W.2d at 183. The court also framed the issue as “whether the trial court was еffectively alerted to the need for an interpreter.” Id. at 368, 344 N.W.2d at 185.
We also find instructive the Neave court‘s explanation of the nature of the determination the trial court must make once it has notice of a language difficulty:
A hearing to determine the defendant‘s ability to understand English need not be elaborate. Normally the court should be able to decide whether an interpreter is necessary by simply asking a few questions. If the court suspects fraud, other testimony may be necessary to establish the extent of defendant‘s ability to speak English.
Neave, 117 Wis. 2d at 375 n.6, 344 N.W.2d at 189 (citation omitted).
We conclude that a court has notice of a language difficulty within the meaning of
We appreciate the trial court‘s concern with minimizing unnecessary and premature determinations on the need for an interpreter. However, since the determination does not require an elaborate proceeding, we believe our interpretation of
We also conclude that the trial court had notice on January 12, 1993, that Yang had a difficulty with English that might impair his ability to communicate with counsel, understand English or be understood in English. Counsel‘s statements on that date were notice to the court of a language difficulty sufficient to trigger a determination of whether Yang needed an interpreter.
NEED FOR INTERPRETER
Yang implicitly concedes that even if the court erred in not determining the need for an interpreter, he is not entitled to a new trial unless he did need an interpreter. Yang argues that the trial court‘s postconviction determinatiоn that he did not need an interpreter is based on clearly erroneous findings of fact. As Yang recognizes, the standard of our review of a trial court‘s findings of fact places a heavy burden on the challenger. We do not set aside a trial court‘s finding unless it is clearly erroneous, and we must give due regard to the trial court‘s opportunity to judge the credibility of the witnesses.
The court found that Yang did not have a language difficulty that prevented him from communicating with his attorney or from reasonably understanding the questions asked of him at trial. Implicit in the trial court‘s determination are also findings that Yang reasonably understood the English testimony at trial and that he was able to make himself reasonаbly understood in English. See Schneller v. St. Mary‘s Hospital Medical Ctr., 162 Wis. 2d 296, 311-12, 470 N.W.2d 873, 879 (1991)
The court based its findings on Yang‘s actual testimony at trial; on Paulette‘s testimony at the postconviction hearing that Yang communicated exclusively in English with her and her family, friends and members of a soccer team during the six years of their relationship; and on trial counsel‘s testimony.
The court properly emphasized in its analysis the transcript of Yang‘s testimony at trial.4 There are, as
Yang testified at the postconviction hearing that he brought his brother with him to meet with his attorney on two occasions to help him communicate with his attorney. He also brought his uncle. He asked his brother to translate at the trial for him, but his brother could not because of his classes. Yang testified that he did not say much at the trial because he did not feel he would be understood; he did not understаnd many questions; he did not understand the questions his attorney asked at times; and there was no time to ask his attorney to explain. Had he known he had the right to an interpreter, he would have asked for one.
Yang provided no details at the postconviction hearing of what he misunderstood at trial. The details
Yang also testified that he wanted to explain more details at trial about an incident that took place at a motel in Rochester, Minnesota, while he and Paulette were there for medical treatment for one of their children. Adrian testified at trial that she was staying at the motel and asked Yang to rub her back. She stated that Yang then touched her buttocks with his hand under her clothes.5 Yang testified at trial that he remembered Adrian asking him to rub her back when they were at the motel. He stated that he did rub her back, but he did not touch her buttocks. Yang did not explain, even with an interpreter, what else he wanted to sаy at trial about the Rochester incident.
Yang‘s trial counsel testified that prior to trial, he did at times feel that Yang did not understand him and that they would have to go over issues more than once. There were also some misunderstandings with Yang about court proceedings, which counsel described. Counsel thought about obtaining an interpreter, but he felt the problem was more one of communication skills than language ability on Yang‘s part. Counsel was very
Neither Yang‘s postconviction testimony nor that of trial counsel persuades us that the trial court‘s implicit finding that Yang could reasonably make himself understood in English is clearly erroneous. As for Yang‘s ability to understand the English testimony, Yang‘s argument focuses on his inability to understand questions asked of him. Yang does not point to the testimony of other witnesses that he was unable to understand. The trial court found, and the record supports, that Yang reasonably understood what was being asked of him, judging by the appropriateness of his responses. There were, as we have said above, instances when Yang said he did not understand a question or term. But, as the trial court noted, that is not unusual for a witness. There are also a few instances when Yang‘s answer is not responsive or
With respect to Yang‘s ability to communicate with trial counsel, the court considered trial counsel‘s testimony as evidence that Yang was able to generally communicate with him, in spite of some misunderstandings. The court noted that trial counsel‘s frustration over Yang‘s testimony at trial was not unusual because clients sometimes testify differently than how they have indicated to counsel they will. The court placed significance on counsel‘s testimony that he knew if an interpreter were needed, one would have been provided. Although there are portions of trial counsel‘s testimony that might support a contrary finding, his testimony supports the court‘s implicit finding that Yang‘s difficulty with English did not prevent him from communicating with his attorney. Yang‘s testimony on his difficulty in communicating with his attorney is general, with only the few details we have already mentioned. Some instances of misunderstanding or lack of communication do not require a finding that Yang was prevented by a language disability from communicating with his attorney.
We have also considered the other testimony Yang prеsented at the postconviction hearing, not mentioned by the court. The testimony of Yang‘s English instructor and the minority affairs coordinator at the technical college concerned the time period before and during Yang‘s first year of employment at Toro, which was 1988. The testimony of Yang‘s supervisor and coworker at Toro shows that Yang had some difficulty
The trial court had the opportunity to hear Yang testify at trial and observe him throughout the trial, as well as the opportunity to obsеrve the witnesses who testified at the postconviction hearing. A significant basis for the court‘s findings was its determination that Yang‘s understanding of English displayed at the trial was greater than that he displayed at a later date, when he had a motive to minimize the depth of his understanding. The court placed more reliance on its own observations than it did on the psychologist‘s testimony that he was confident Yang was not “faking” on the tests.7 The court also credited Paulette‘s description of the various ways Yang functioned in exclusively English-speaking environments over a number of years. Giving appropriate deference to the
This conclusion disposes of Yang‘s ineffective assistance of counsel claim. Since the trial court‘s finding that Yang did not need an interpreter is not clearly erroneous, Yang cannot meet his burden of proving that trial counsel was deficient in not asking for an interpreter or that Yang was prejudiced by the failure to request an interpreter. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (defendant must prove both deficient performance and prejudice).
Yang requests that we exercise our discretionary power of reversal under
JURY POLLING
Yang contends that he was denied effective assistance of counsel because his trial counsel failed to inform him of his right to poll the jurors individually and failed to consult with him before waiving this right. The right to poll jurors individually is such a significant right, Yang argues, that counsel is deficient as a matter of law if he or she fails to consult the
Yang was present with his counsel when the jury returned the verdict. After the clerk read the verdict of guilty, the court asked the jurors to raise their right hands if this “is the verdict of each of you.” The court noted on the record that all twelve jurors raised their right hands. The court asked defense counsel whether there was any reason to poll the jury and he answered “no.” Yang‘s affidavit avers that his trial counsel did not tell him that he had a right to individually poll the jury; that he did not know he had a right to individually poll the jury; and that he did not understand what the judge meant when he asked trial counsel whether there was any reason to poll the jury.
In State v. Jackson, 188 Wis. 2d 537, 525 N.W.2d 165 (Ct. App. 1994), we held that when a defendant is represented by counsel at the time the jury returns its verdict, the trial court need not find that the defendant knowingly and voluntarily consented to trial counsel‘s waiver of his or her right to poll the jurors individually. We also concluded: “Jackson was represented by counsel when the verdict was entered, and the decision to assert or waive certain rights, including whether to poll the jury, was delegated to that counsel.” Id. at 542-43, 525 N.W.2d at 168. We read Jackson as holding that the decision whether to request аn individual polling is one delegated to counsel.
We concludе the better rule is that when defense counsel is present at the return of the jury verdict and does not request an individual polling, whether counsel‘s performance is deficient depends on all the circumstances, not simply on whether counsel
The relevant circumstances in this case are that the court read the standard jury instruction on a unanimous verdict before the jury began its deliberations. The jurors answered affirmatively when the court read their verdict and asked if it was their verdict by raising their hands to so indicate. The only question the jurors had during deliberations was this: “In the Rochester incident, did the alleged sexual abuse take place after Adrian came back from Christmas vacation?” The trial court discussed the appropriate answer with the prosecutor and defense counsel. The prosecutor pointed out that Paulette had testified that Adrian was in Rochester, went back to La Crosse for a period of time and returned to Rochester for the Christmas vacation, but that Adrian was not specific on the dates. Both counsel agreed with the trial court that the appropriate response to the jury was that it should rely on its collective memory of the testimony. Yang argues, in one sentence, that this question indicates the jury‘s verdict was not unanimous, but we do not see the conneсtion.
In the absence of any indication that the jury‘s verdict was not unanimous, we conclude the decision not to request an individual polling was a reasonable one in the circumstances of this case and was not deficient performance. Yang is therefore not entitled to an evidentiary hearing on this claim.
By the Court.—Judgment and order affirmed.
SUNDBY, J. (dissenting). Defendant-Appellant Xiong Yang obtained a fourth-grade education in Laos,
Yang was convicted of sexual contact with a child. He filed a postconviction motion asking for a new trial, claiming he did not understand the proceedings and that the trial court should have appointed an interpreter to assist him. Alternatively, he alleged that his counsel was ineffective for failing to obtain an interpreter for him. The trial court denied his motion.
On appeal, Yang asks that we remand this case to the trial court to determine whether he was denied effective assistance of counsel because counsel did not poll the jury individually and did not inform him that he had a right to such polling. We permitted Yang to raise this request in his appellate reply brief. Because I would grant the remand, I respectfully dissent.
The majority concludes that when a defendant is represented by counsel, the decision whether to poll the jury may be made by counsel without informing the
The defendant‘s right to poll the jury is not merely one of those abstract constitutional rights which is of little or no practical value. In State v. Cartagena, 140 Wis. 2d 59, 409 N.W.2d 386 (Ct. App. 1987), a juror
It is especially important that this important right be carefully explained to a defendant who is of limited intelligence or does not have a firm grasp of the English language or any understanding at all as to how the criminal justice system works. I would therefore grant Yang‘s request to remand this case to the trial court for a hearing as to whether trial counsel informed Yang of his right to poll the individual members of the jury and whether Yang understood the purpose of such polling.
If there is a petition for review of our decision, I urge the supreme court to grant review to clаrify the respective rights and responsibilities of trial counsel and the trial court with respect to this important right. Our decisions are not consistent. As the majority opinion notes, Majority op. at 738-39 n.8, in State v. Reichling, No. 94-1818-CR, unpublished slip op. (Wis. Ct. App. July 6, 1995), we initially held that the defendant‘s right to poll the jury was personal to the defendant, and counsel was deficient if he or she failed to inform the defendant of this right. Subsequently, we withdrew this opinion and on September 28, 1995, reissued our opinion in which we held that when counsel is present with the defendant when the jury returns its verdict, failure to inform the defendant of his or her right to poll jurors individually is not, in itself, deficient performance. State v. Reichling, No. 94-1818-CR, unpublished slip op. (Wis. Ct. App. Sept. 28, 1995).
Perhaps the simplest way to avoid this confusion and recognize that the right to poll the jurors individually is a valuable right, is for the supreme court to make mandatory the recommendation of the Criminal Benchbook Committee that the trial court poll the jurors individually in every case.