NGUYEN NGOC TIEU v. State

358 S.E.2d 247, 257 Ga. 281, 1987 Ga. LEXIS 1015

• Court: Supreme Court of Georgia
• Decided: July 9, 1987
• Docket: 44494
• Status: Published

Opinions

Marshall, Chief Justice.

The appellant, Nguyen Ngoc Tieu, was convicted of felony murder. In this case, the jury was impaneled and sworn, and prosecution witnesses testified, after which it was discovered that the individual who had been brought into court and placed on trial was not in fact the defendant. Over defense objection, the trial court granted a mistrial. At the subsequent trial, a conviction was obtained. The defendant appeals, arguing that the trial court erred in overruling his plea of double jeopardy and in admitting in evidence a taped statement made by the defendant in the course of a custodial police interrogation. The state asserts that, “the factual situation in the case at bar appears to be without precedent in the annals of American jurisprudence.” For reasons which follow, we affirm.¹

The appellant is Vietnamese, and he was a boarder in a trailer owned by the victim, Debra Marie Rollins. On the day of the murder, the victim had returned to her trailer with a carload of people after going grocery shopping. As she approached the entrance to her trailer, the appellant came out of the door and proceeded to stab the victim in the chest with a knife. She exclaimed, “He stabbed me, he stabbed me.” The appellant pushed the victim off the porch at the entrance to the trailer, and she fell onto the ground. As the appellant began to run away, a male occupant of the automobile attempted unsuccessfully to subdue him. However, he was apprehended later that day by law-enforcement authorities.

When law-enforcement authorities arrived on the scene of the crime, they found a bloodied knife beneath the porch and near the victim’s body. The victim was pronounced dead on arrival at the medical facility to which she was taken. The medical examiner testified that the victim received a six-and-three-quarters-inch stab wound through the heart with an object that was consistent with the murder weapon introduced in evidence by the state.

After the appellant was taken into custody by law-enforcement authorities, he was advised of his Miranda rights through a Vietnamese interpreter, Mrs. Lee Sheridan. Although Mrs. Sheridan’s translation of the appellant’s Miranda rights from English to Vietnamese was, as stated by the appellee, “[c]oncededly imperfect,” Mrs. Sheridan did testify that she explained these rights to the appellant and that he understood his rights. She further testified that he was explicitly told that he could “talk now, or . . . wait for the lawyer to come, and he say [sic] he didn’t need a lawyer to talk, he will talk now.”

The appellant then proceeded to tell the police that he had lived in the victim’s trailer for approximately two weeks. He was told he would have to move out, and this upset him. He drank a couple of beers, and when the victim returned to the trailer he was so upset that he “opened the door and saw her and just started to stab her.”

The individual who served as the Vietnamese interpreter at trial was Mr. Nguyen. Before the jury was impaneled at the first trial, Mr. Nguyen informed the trial judge that he was having trouble communicating with the defendant. The trial judge determined that the problem was attributable to the defendant’s nervousness, and the trial judge concluded that, with the help of the interpreter, the defendant could understand the proceedings “as we move along.”

Fourteen prosecution witnesses were called to testify. Among them were two eyewitnesses to the crime, who identified the individual who had been placed on trial as the perpetrator of the murder. Mrs. Lee Sheridan was called to testify, and the taped statement made by the appellant was played to the jury after the trial judge ruled at the Jackson-Denno hearing that this statement was freely and voluntarily given.

After it was brought to the attention of the court that the person who had been brought into court to stand trial was not in fact the defendant, defense counsel was called as a witness. He testified that he thought that the person brought into the court was the defendant. With regard to the fact that this individual was not providing the defense with any assistance, defense counsel testified that, “we frankly thought that he was trying to pretend, or play games with us, due in part to the background we heard yesterday about. . . the difficulty Mr. Nguyen had with him. It was a little bit disarming that he was unable to work with us, and we didn’t know whether it was intentional or not.”

The state moved for a mistrial on grounds of “manifest necessity,” and if a mistrial was not granted “the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U. S. 579 (9 Wheat. 579) (1824). Over defense counsel’s objection, the trial court granted the motion.

At the subsequent trial, essentially the same evidence was introduced, except that an additional eyewitness identified the appellant as the perpetrator of the crime.

1. “One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U. S. 370 (1892).” Illinois v. Allen, 397 U. S. 337, 338 (90 SC 1057, 25 LE2d 353) (1970). As we interpret decisions of the United States Supreme Court, commencing with Diaz v. United States, 223 U. S. 442 (32 SC 250, 56 LE 500) (1912), and culminating with Taylor v. United States, 414 U. S. 17 (94 SC 194, 38 LE2d 174) (1973), it is doubtful that a defendant who has been charged with a capital felony and who is in police custody has the capacity to waive his right to be present at the commencement of the trial.

And, the general rule, which obtains in Georgia, is that in a jury trial a person is placed ip legal jeopardy when he is put on trial before a court of competent jurisdiction, on indictment which is sufficient in form and substance to sustain a conviction, and a jury has been impaneled and sworn. Shaw v. State, 239 Ga. 690 (1) (238 SE2d 434) (1977). See generally 21 AmJur2d 456, Criminal Law, § 260. Here, we hold that the appellant was not placed in legal jeopardy in the earlier proceeding, since it was another individual and not the appellant who was placed on trial.

2. The trial court’s findings that the appellant was informed of his Miranda rights, that he understood these rights, and that his subsequent statement to the police was freely and voluntarily given, are supported by the evidence and are not clearly erroneous. E.g., Cameron v. State, 256 Ga. 225 (9) (345 SE2d 575) (1986).

Judgment affirmed.

All the Justices concur, except Smith, J., who dissents.

1 The crime was committed on June 21, 1985. The first trial commenced on October 23, 1985, and a mistrial was declared on October 24, 1985. The second trial commenced on November 18, 1985, and the jury returned its verdict finding the appellant guilty of felony murder on November 21, 1985. A motion for new trial was filed on December 20, 1985, and the transcript was filed in the superior court on June 19, 1986. The motion for new trial was denied on February 20, 1987. The notice of appeal was filed on March 23, 1987, and the record was docketed in this court on March 30, 1987. The case was orally argued on June 1, 1987.