Opinion
24A-CR-137
12-03-2024
Van Thawng, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT TALISHA GRIFFIN INDIANAPOLIS, INDIANA KEVIN WILD INDIANAPOLIS, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL JODI KATHRYN STEIN DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Cynthia L. Oetjen, Judge Trial Court Cause No. 49D30-2203-F3-5957
ATTORNEYS FOR APPELLANT TALISHA GRIFFIN INDIANAPOLIS, INDIANA KEVIN WILD INDIANAPOLIS, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL JODI KATHRYN STEIN DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Altice, Chief Judge
Case Summary
[¶1] Van Thawng appeals his conviction, following a jury trial, of Level 3 felony rape, raising two issues that we restate as:
1. Did the trial court commit reversible error when it denied Thawng's several motions for mistrial that stemmed from the State's failure to disclose an individual who Thawng claims might have provided exculpatory or impeaching testimony?
2. Was Thawng's statement to police improperly admitted into evidence due to ineffective advisement of Miranda rights through an interpreter?
[¶2] We affirm.
Facts &Procedural History
[¶3] On February 19, 2022, fourteen-year-old N.Z., a quiet and shy girl, and her older sister, R.S., who are of Chin descent, went to a Chin National Day church celebration, dressed in their cultural attire. A family friend named Uvan drove them there and dropped them off. At some point R.S. left, and N.Z. called Uvan for a ride home. When he arrived to pick her up, twenty-six-year-old Thawng - also of Chin descent and a friend of N.Z.'s brother - was with Uvan in the car. They went to a restaurant, where Thawng sat beside N.Z. He drank alcohol, tried to joke and talk to her, and rubbed the side of her leg, all of which made her uncomfortable. Thawng later admitted that he had a "crush" on N.Z. Exhibit Vol. 1 at 20; Transcript Vol. 3 at 29, 31.
[¶4] After leaving the restaurant, Uvan stopped by his apartment, where he and Thawng went inside while N.Z. waited in the car. Only Thawng returned, stating to N.Z. that he would be driving her home. On the way, he pulled into a school parking lot and parked. He told her she was pretty and that he loved her, and he began kissing her lips and touching her face and chest. She told him to stop and tried to push him away, but Thawng responded that it was "fine." Transcript Vol. 2 at 132. He moved to the back seat and pulled her back with him. Although N.Z. told him to stop and tried to get away, he removed her underwear and put two fingers in her vagina, which hurt her. Thawng put his penis in her vagina "multiple times" which caused "sharp pain." Id. at 135, 136. Thawng then took her home, instructing her not to tell anyone.
[¶5] Once home, N.Z. ran to the bathroom and tried to clean blood from her legs and vagina. She then texted her boyfriend, A.N. (Boyfriend), and told him what Thawng had done. Boyfriend, in turn, sent a direct message via Instagram to R.S., who then tried to talk to N.Z. about what had happened. N.Z. was reluctant to disclose anything because she feared that she would get in trouble with her mother (Mother). R.S. sought the help of her friend and that friend's older sister, who came to the home, as did N.Z.'s brother and his wife, V.K. The group gathered, and Mother was told what had happened. Due to cultural norms, Mother was angry and disappointed in N.Z. and blamed her for the incident. V.K. called 911.
[¶6] N.Z. gave a statement to police at her home and was referred to Riley Children's Hospital (Riley). Mother and V.K. accompanied N.Z. to Riley. The sexual assault examination, which occurred around twelve hours after the incident, revealed that N.Z. was still bleeding from her injuries. N.Z. was quiet, upset, and in pain during the exam.
[¶7] On March 1, 2022, Thawng was interviewed by Detectives Marcus Wilson and another detective. Thawng stated he could understand English but that his preferred language was Hakha Chin, so Detective Wilson connected by phone with an interpreter (Police Interview Interpreter), who interpreted as Detective Wilson read each of the Miranda rights in English to Thawng. After each one, Thawng confirmed that he understood. Thawng thereafter signed the waiver of rights form, and Detective Wilson proceeded with questioning. In his statement to police, Thawng stated that he stopped at a school parking lot, kissed and touched N.Z., and tried to have sex with her. He maintained that "[n]othing [he] did to her was against her will" and that he "didn't use force." Exhibits Vol. at 30 (State's Exhibit 8A, transcript of interview). Thawng acknowledged that N.Z. told him that she did not like it and stated that he "quit trying to penetrate [his] penis" because N.Z. told him to stop. Id. at 32.
[¶8] On March 3, 2022, the State charged Thawng with Level 3 felony rape and Level 4 felony sexual misconduct with a minor. A two-day jury trial was held on November 20-21, 2023. An interpreter (the Trial Interpreter), was sworn in, as was Thawng. Thawng testified that, while he understood "quite a bit" of English, he desired to have an interpreter for the court proceedings. Transcript Vol. 2 at 11.
For reasons not clear in the record, a different interpreter was sworn in later, before the first trial witness, and utilized during trial.
[¶9] Before the jurors were selected, Thawng moved to suppress his statement to police on the basis that the translation of his Miranda rights through the Police Interview Interpreter was sometimes inaccurate or differed from the rights as stated in English. The court held a hearing, at which the Trial Interpreter listened to the advisements given to Thawng and translated them into English. Specifically, the Trial Interpreter testified that the Police Interview Interpreter had stated - in Hakha Chin - the following to Thawng: You must understand your rights; you have the right to remain silent; everything you say can be used against you in court; you have the right to obtain a lawyer and the lawyer will be with you in the court; if you cannot obtain a lawyer on your own, a court can appoint you one with no cost; when I talk to you today, if you are not willing to say anything without a lawyer present, you have the right to be silent and get a lawyer and then talk to me after; I'm signing this document willingly; at this time I do not need a lawyer, but I understand everything I'm doing right now. Id. at 21-22.
[¶10] Thawng had his own interpreter (Defendant's Interpreter) present at the suppression hearing. When asked if he disagreed with any of the Trial Interpreter's translations, Defendant's Interpreter, who also was under oath, responded, "No." Id. at 22. Upon further questioning, however, Defendant's Interpreter stated that one of the statements to Thawng during the interview was more accurately: "[Y]ou have the right to hire a lawyer and you can ask questions in the court." Id. at 23 (emphasis added). The Trial Interpreter agreed with that.
[¶11] Counsel for Thawng argued that Thawng was not advised, in his native language, of his right to have an attorney present at the time of police questioning. The State maintained that Thawng received Miranda advisements in two languages "both of which he understood" given that Thawng answered Detective Wilson's initial introductory questions in English and at least one of the Miranda advisements before its translation. Id. at 27. The trial court granted Thawng's request to admit, for purposes of the suppression hearing, the portion of the police interview that had been played (Defendant's Exhibit A). After taking the matter under advisement during jury selection, the court denied Thawng's motion to suppress, noting that it had listened to Defendant's Exhibit A and "that the defendant was answering the question 'yes' before . . . it was even translated to him, which leads me to believe that he understood what was being said in English as well." Id. at 108.
[¶12] During her testimony, N.Z. described the events with Thawng, including that when she was alone in the car with Thawng, he was speaking English. In relating the timeline of events, N.Z. testified that after Thawng dropped her off at home, she texted Boyfriend about what happened. Before beginning with cross-examination of N.Z., and outside of the jury's presence, Thawng moved for a mistrial, stating that the State had never disclosed that N.Z. had texted a boyfriend, nor was a boyfriend mentioned, generally or by name, in the probable cause affidavit or police reports. Id. at 145. Thawng argued that the defense would have investigated Boyfriend had it known about him and may have called him as a witness to impeach N.Z. Given that Boyfriend was N.Z.'s initial disclosure, Thawng urged it was "extremely probative [as] to what she told him." Id.
[¶13] The State advised the court that it had just learned, during trial preparation a few days earlier, that N.Z. had texted Boyfriend. In opposing the request for mistrial, the State noted that Thawng was aware that the initial disclosure involved a number of people and if Thawng had deposed them, it would have been revealed that the first person N.Z. told was Boyfriend, who then told R.S. The State maintained that there was no indication Boyfriend would provide exculpatory information and further that any sexual contact or interactions with Boyfriend would have been inadmissible under Ind. Trial Rule 412. The trial court denied Thawng's motion.
[¶14] R.S., then age seventeen, testified that she was at home when she received a message from someone - she could not remember who - telling her that N.Z. had been raped. Because N.Z. was unwilling to talk about it, friends and family members, including V.K., came over and, in a group, explained to Mother what had happened. In cross-examination, Thawng asked R.S. about how Mother would react if she learned that a daughter had engaged in premarital sex, with R.S. responding that Mother would be ashamed and disappointed. In V.K.'s testimony, she described that, after she arrived at the home, she spoke to N.Z. privately and then called 911. She testified on cross-examination that she had no knowledge about N.Z. having a boyfriend at that time. The sexual assault nurse examiner, in addition to testifying about N.Z.'s injuries, testified that she was not aware whether N.Z. had called or texted anyone before she told her family about the events.
[¶15] On the second day of trial, before the jurors were brought in, Thawng renewed his motion for a mistrial regarding the State's failure to disclose Boyfriend. Counsel for Thawng stated that she, along with the prosecutor, had spoken by phone to Boyfriend the prior evening. Counsel advised the court:
[H]e gave us different statements about who knew about him than what her sisters told us about and he talked about how he had talked about the case with [N.Z.] also. So . . . if Defense had known about him before, he's definitely a material witness in the case, it's possible that trial strategy would've been completely different and that more investigation would've been done.Id. at 237.
[¶16] The State objected and argued that the defense's comments were "a mischaracterization," as Boyfriend had confirmed in the phone call that he and N.Z. had "been dating" but he had been "kept secret" from certain people. Id. at 239, 240. As to Thawng's claim that Boyfriend had discussed the case with N.Z., the State reported that, in the phone call, Boyfriend said that N.Z. had only mentioned the matter on three occasions, once in her initial text to him about the incident and then two other times when she told him she had a court date. Following a brief recess to consider the matter, the court denied the motion for mistrial.
[¶17] Detective Wilson testified about the police interview with Thawng, including that Thawng spoke two languages, English and Hakha Chin and that, as he went through the Miranda rights and the subsequent waiver of rights form, Thawng answered some questions in English without the use of the interpreter. During Detective Wilson's testimony, a "Stipulation of Defendant's Statement," State's Exhibit 7, was admitted without objection and read into the record. The Stipulation stated, in part, that an interview was conducted, that throughout the interview an interpreter was available, that "the transcription, State's Exhibit 8 is a true and accurate representation of Defendant's Statement on March 1, 2022," and that State's Exhibit 8 contains accurate translations of Thawng's statements. Exhibit Vol. 1 at 12.
[¶18] State's Exhibit 8A, a transcript, was admitted without objection, distributed to the jury, and read into the record as the jury followed along. Transcript Vol. 3 at 3. After the printed copies of the transcript were collected from the jurors, the State moved to admit "for purposes of the record," State's Exhibit 8B, "the unredacted" videotaped interview. Id. Thawng objected "for the record based on the suppression issue," and the court admitted Exhibit 8B over objection.
[¶19] Following the detective's testimony, the jury was excused while Thawng advised the court that he intended to call Boyfriend as a witness, that Boyfriend was in school, but that they were trying to get him to court. Thawng asserted: "We need him here to present a defense under the Sixth and Fourteenth Amend[ment], and for impeachment, very clear impeachment testimony through him. So we're trying to make effort -- every effort we can to get him here." Id. at 13. The court, frustrated by the proposed delay, suggested that Thawng's counsel should have arranged that the prior night, during parties' phone call with Boyfriend, but agreed to allow defense fifteen minutes.
[¶20] Trial resumed, the State rested, and Thawng testified in his defense. He stated, consistent with N.Z.'s testimony, that while driving her home, he stopped in a school parking lot, touched and kissed her, put his fingers in her vagina, and "tried" to put his penis inside her vagina. Id. at 35. Thawng characterized the encounter as consensual, stating that she "wanted to" and that he did not force anything. Id. at 24, 26. Thawng acknowledged on cross-examination that, before that day, he had seen but never spoken to N.Z. and that he had a "crush" on her. Id. at 29, 31. He stated that he had not planned or intended to have sexual activity with N.Z. "but it just happened." Id. at 33. He also testified that, after the first time she told him to stop, he continued to put his fingers or penis in her vagina. Id. at 38.
[¶21] The jury was excused, and Thawng moved for a mistrial a third time pertaining to non-disclosure of Boyfriend, making a record that defense took steps to secure Boyfriend's appearance including sending a subpoena to his school. The school was unwilling to release Boyfriend until his guardian was served with the subpoena, which was not possible to accomplish during trial due to lack of guardian information. Thawng reasserted that he was denied the opportunity to present a complete defense without "this exculpatory witness that could impeach the witnesses that testified in this trial." Id. at 47. The trial court denied Thawng's motion for mistrial.
[¶22] The jury convicted Thawng as charged, and the trial court merged Count II (sexual misconduct with a minor) into Count I (rape) and vacated Count II. Thawng was sentenced to ten years executed in the Indiana Department of Correction. Thawng now appeals.
Discussion &Decision
1. Motion for Mistrial
[¶23] Thawng claims that the trial court committed reversible error when it denied his several motions for mistrial stemming from the State's failure to disclose Boyfriend.
We review a trial court's decision whether to grant or deny a mistrial only for an abuse of discretion, as the trial court is in the best position to judge the surrounding circumstances of the event and its impact on the jury. A mistrial is an extreme remedy that should be granted only where other remedies cannot satisfactorily rectify the error. To prevail on appeal from the denial of a motion for mistrial, the appellant must demonstrate the statement or conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected. Gravity of peril is determined by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct.Turner v. State, 216 N.E.3d 1179, 1184 (Ind.Ct.App. 2023) (internal citations and quotations omitted).
[¶24] Thawng argues that the State's non-disclosure of Boyfriend resulted in the withholding of potentially exculpatory or impeaching evidence and violated Brady v. Maryland, 373 U.S. 83 (1963). The three components of a Brady violation are: (1) the evidence at issue must be favorable to the accused, either because the evidence is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued (materiality inquiry). Davis-Martin v. State, 116 N.E.3d 1178, 1189 (Ind.Ct.App. 2019), trans. denied. Evidence is material when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. Id. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Bunch v. State, 964 N.E.2d 274, 297 (Ind.Ct.App. 2012), trans. denied.
[¶25] Thawng's position is that Boyfriend's testimony "may have called into question information given by other witnesses including N.Z." and "could have put credibility questions into the jurors' minds sufficient to undermine the confidence in the outcome of [] trial," especially in this "he-said she-said case that to a great extent turned on the jury's credibility determination of the witnesses." Appellant's Brief at 9-10, 21. We are unpersuaded that a Brady violation occurred or that a mistrial was otherwise required.
[¶26] We have held that if a defendant fails to request a continuance when the disclosure is first made at trial, that failure may be viewed as negating any claim of actual prejudice. Bates v. State, 77 N.E.3d 1223, 1226 (Ind.Ct.App. 2017). Here, Thawng learned during N.Z.'s testimony on the first day of trial about Boyfriend but did not request a continuance. Although counsel spoke to Boyfriend by phone that evening, Thawng did not arrange at that time for Boyfriend's attendance at trial nor did he request a continuance after speaking with him. And he did not subpoena Boyfriend until sometime during the second day of trial.
[¶27] Furthermore, "[o]ther evidence of guilt is an important consideration when reviewing the trial court's denial of a mistrial." Warren v. State, 757 N.E.3d 995, 999 (Ind. 2001). By his own admission, Thawng stopped at a parking lot while driving N.Z. and then kissed her, touched her face and chest, put his fingers in her vagina, and penetrated her vagina, to some degree, with his penis multiple times. The evidence established that he did so with sufficient force to cause injuries, some of which were still bleeding approximately twelve hours afterward. Thawng acknowledged that he continued with his conduct after N.Z.'s first request that he stop. There is no indication of what exculpatory information Boyfriend could have provided.
[¶28] It appears that Thawng's primary argument is that Boyfriend may have provided impeachment evidence as to N.Z. or other witnesses, although it is not entirely clear in what way. If the argument is that Boyfriend's testimony would have impeached N.Z.'s credibility by showing she did not tell others about him, thus calling into question what else she may not have disclosed, the jury already knew that N.Z. had not told others about Boyfriend as V.K. and Detective Wilson each testified that they were not aware of any boyfriend. If the theory is that Boyfriend would testify that N.Z.'s siblings in fact knew that N.Z. had a boyfriend, contrary to their testimony at trial, the impact of such would have been minimal, at best.
[¶29] In sum, Thawng has not established that he was placed in a position of grave peril to which he should not have been subjected. Accordingly, we find no error with the court's decision to denial his motions for mistrial.
2. Admission of Thawng's Statement to Police
[¶30] Thawng asserts that the trial court committed reversible error when it admitted his statement to police into evidence because he was not properly advised of his Miranda rights. The admission of evidence is within the sound discretion of the trial court, and the decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in the denial of a fair trial. Martin v. State, 779 N.E.2d 1235, 1238 (Ind.Ct.App. 2002), trans. denied. In determining the admissibility of evidence, we will only consider the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Id. Even if a trial court errs in admitting evidence, "no error . . . is ground for reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties." Ind. Appellate Rule 66(A). "[T]he party seeking relief bears the burden of demonstrating how, in light of all the evidence in the case, the error's probable impact undermines confidence in the outcome of the proceeding below." Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023).
[¶31] Here, the court denied Thawng's motion to suppress his statement prior to the start of trial. Later, during Detective Wilson's testimony, the following was admitted, without objection: (1) Thawng's signed waiver of rights form, (2) a Stipulation that "State's Exhibit 8" was a true and accurate representation of Thawng's statement to police and that it contained accurate translations of Thawng's statements as made in Hakha Chin; and (3) State's Exhibit 8A, a redacted transcript, which was read to the jury. Upon completion of Thawng's statement to police being read into evidence, the State moved to admit State's Exhibit 8B, an unredacted copy of the videotaped interview, and Thawng objected "based on the suppression issue [] raised before trial." Transcript Vol. 3 at 3. On appeal, Thawng asserts that the trial court committed reversible error when it admitted Exhibit 8B into evidence over his objection. Appellant's Brief at 9.
[¶32] Initially, we address that Thawng makes no similar claim about Exhibit 8A -the transcript that was read into evidence and to which he posed no objection at trial. Indeed, Exhibit 8A "was the only evidence of Defendant's statement that the jury received and considered." Appellee's Brief at 15. In that exhibit, the jury heard Thawng's admission to inserting his fingers into N.Z.'s vagina and his repeated attempts to try to insert his penis into N.Z.'s vagina. The statement was consistent with and cumulative of his trial testimony, in which he testified that he touched N.Z.'s vagina with his fingers, he tried to put his penis into her vagina, and at one or more points, she told him that she did not like it and to stop.
According to the State, Exhibit 8B was "the unredacted, recorded statement that was not published" and "the jury did not receive." Appellee's Brief at 12, 16. Thawng has not argued otherwise.
[¶33] Having not objected to Exhibit 8A, we find that Thawng has waived any claimed error as to the admission of his statement to police. Laird v. State, 103 N.E.3d 1171, 1175 (Ind.Ct.App. 2018) (recognizing defendant must make a contemporaneous objection at the time the evidence is introduced to preserve claim of error), trans. denied. Although a claim that has been forfeited by the failure to make a timely objection can still be reviewed on appeal if the court determines that a fundamental error occurred, Thawng makes no claim of fundamental error. Id. at 1176.
[¶34] Waiver aside, we are unpersuaded that Thawng was not sufficiently advised of his Miranda rights such that his statement should not have been admitted. For a statement to be admissible, the State must show that a defendant's waiver was knowing and voluntary. Johnson v. State, 829 N.E.2d 44, 50 (Ind.Ct.App. 2005), trans. denied. A waiver of one's Miranda rights occurs when the defendant, after being advised of those rights and acknowledging that he understands them, proceeds to make a statement without taking advantage of those rights. Id. To determine whether a valid waiver was made, courts look to the totality of the circumstances. Id.
[¶35] Thawng points to two translations that he maintains were ineffective advisements: (1) "You have the right to hire a lawyer and you can ask questions in the court", and (2) "When I talk to you today, if you are not willing to -- to say anything without lawyer present, you have the right to be silent and get a lawyer and then talk to me after[.]" Appellant's Brief at 14 (emphases added). Thawng argues the latter advisement "presents as if a conversation between Thawng and the detectives is a foregone conclusion," and he argues that both of the advisements fail to explain that he could have a lawyer present during questioning. Id.
[¶36] The totality of the circumstances, however, reflects that Thawng - who initially answered the detective's questions about name, address, and date of birth in English and stated that he reads and writes some English - was advised in both English and via an interpreter that: he had the right to remain silent; everything he said could be used against him in court; he had the right to obtain a lawyer and if he could not the court could appoint one at no cost to him; and he had "the right to be silent and get a lawyer and then talk to [police] after." Transcript Vol. 2 at 21-22. In addition, at least once during the Miranda advisements, Thawng answered the detective prior to translation. On the record before us, we are satisfied that Thawng knowingly and intelligently waived his Miranda rights such that the court did not err when it admitted his statement to police into evidence. Compare Morales v. State, 749 N.E.2d 1260, 1266 (Ind.Ct.App. 2001) (concluding Spanish-speaking defendant did not knowingly and voluntarily waive Miranda rights given in Spanish where interpreter asked defendant if she understood the translation of each right read to her but did not ask defendant whether she understood her rights and did not advise her that she would be waiving those rights by signing the advice of rights form).
[¶37] Judgment affirmed.
Bailey, J. and Mathias, J., concur.