Albert LARAMIE, Appellant,
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Albert LARAMIE, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP94-017, 2 CTCR 10, 22 ILR 6072, 6 NALD 7001
3 CCAR 1
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Wayne Svaren, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 94-17014]
Arguments heard November 18, 1994. Decided May 1, 1995.
Before Presiding Justice Nelson, Justice Bonga and Justice Miles
NELSON, P.J.
This matter came before the Appellate Panel for hearing on the appeal of Albert Laramie of his denial to
trial by a jury on the grounds that he failed to confirm his demand for a jury trial in a timely manner.
FACTS
Albert Laramie was arraigned on January 10, 1994, on various misdemeanor charges. He entered pleas of
Not Guilty and demanded a jury trial. A trial date was set and he was given a Notice of Court Appearances and
Advisement of Rights which included the following paragraph:
"I understand that if I have requested a JURY trial, I must confirm my request
on the date indicated above or my trial will be changed to a JUDGE trial. The
request must be made in writing and received by the Court by the date
indicated."
The date indicated was March 14, 1994. The Court also advised Mr. Laramie orally of the "10 day rule"
which states:
"The Court must be notified by the defendant ten (10) days prior to a scheduled
jury trial that a jury trial is Still requested, or the right to a jury trial is waived."
CTC 4.1.05.
On March 14 Mr. Laramie's attorney, Jeffrey Rasmussen, filed written confirmation of the request for a
jury trial. It was later learned, however, he would be unavailable for trial and the date was continued to April 21,
1994.
Eight days before the re-scheduled trial date he filed another confirmation of the request for a jury trial. The
appellee, Colville Confederated Tribes, subsequently moved for an order finding Mr. Laramie had waived his right
to trial by jury by not filing the confirmation of jury trial in a timely manner.
Judge Stewart heard the motion on April 19 and determined the Mr. Laramie had waived his right to a jury
trial. He was subsequently tried before and convicted by Judge Wynne.
He appeals the denial of his right to trial by jury.
RIGHT TO TRIAL BY JURY
In considering this matter the panel looks in order of priority to the following: the Constitution and Bylaws
of the Tribes, applicable laws of the Tribes, tribal case law, state common law, federal statutes, federal common law
and international law. CTC 4.1.11.
The Constitution and By-laws of the Confederated Tribes of the Colville Reservation do not address the
rights of individual Tribal members, including the right to trial by jury. These rights have been established, however,
in several titles of the Colville Tribal Codes.
Court of Appeals Reporter
1
3 CCAR ___
All accused persons are guaranteed the civil rights secured under the Tribal Constitution and federal laws
specifically applicable to Indian tribal courts. CTC 2.6.09.
25 U.S.C. 1302 et seq. is known as the Indian Civil Rights Act. Its purpose is to "secur(e) for the American
Indian the broad constitutional rights afforded to other Americans, and thereby to protect individual Indians from
arbitrary and unjust actions of tribal governments." Santa Clara Pueblo v. Martinez, 486 U.S. 89, 98 S.Ct. 1670, 56
L.Ed2d 106, (1978).
25 U.S.C. 1302(8) states in pertinent part: "No Indian tribe in exercising powers of self-government shall
deny to any person accused of an offense by imprisonment the right, upon request, to a trial by jury ...".
CTC 56.02(j) states "The Confederated Tribes of the Colville Reservation in exercising powers of self
government shall not ... deny to any person accused of an offense punishable by imprisonment the right, upon
request, to a Tribal jury of not less than six persons."
The provision authorizing the "ten day rule", CTC 4.1.05, is found in the Tribal Law and Order Code in the
Chapter entitled "Rules of Court - General Provisions". It is clear that the chapter encompasses both civil and
criminal law. Our analysis concerns only its application to the criminal law and procedure.
CTC 4.1.05 is the later enacted provision and
"It is assumed that whenever the legislature enacts a provision it has in mind
previous statutes relating to the same subject matter. In the absence of any
express repeal or amendment, the new provision is presumed in accord with the
legislative policy embodied in those prior statutes." Sutherland Statutory
Construction, Section 51.02, 5th Edition.
Prior enactments relating to the same subject should be compared to the new provision. If reasonable
construction permits, both should be construed to give effect to every provision of them. Sutherland at 51.02.
In our effort to "give effect to every provision of them" we have looked to other jurisdictions for guidance.
Particularly helpful are comments contained in Confederated Salish and Kootenai Tribes v. Peone, 16 ILR 6136,
6137 (1989), Seattle v. Williams, 101 Wn.2d 445, 680 P.2d 1051 (1984) and Duncan v. Louisiana, 391 U.S. 145, 20
L.Ed.2d 491, 88 S.Ct. 1444 (1968).
In Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444 (1968), the United States Supreme
Court stated in pertinent part:
"The guarantees of jury trial in the Federal and State Constitutions reflect a
profound judgment about a way in which law should be enforced and
administered. A right jury trial is granted to criminal defendants in order prevent
oppression by the Government. Those who wrote our Constitutions knew from
history and experience that it was necessary to protect against unfounded
criminal charges brought to eliminate enemies and against judges too responsive
to the voice of higher authority. The framers of the constitutions strove to create
an independent judiciary but insisted upon further protections against arbitrary
action. Providing an accused with the right to be tried by a jury of his peers gave
him an inestimable safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased or eccentric judge .... (T)he jury trial provisions in
the Federal and State Constitutions reflect a fundamental decision about the
exercise of official power - a reluctance to entrust plenary powers over the life
and liberty of the citizen to one judge or group of judges. Fear of unchecked
power, so typical of our State and Federal Governments in other respects, found
expression in the criminal law in the insistence upon community participation in
the determination of guilt or innocence. The deep commitment of the Nation to
the right of jury trial in serious criminal cases as a defense against arbitrary law
enforcement qualifies for protection under the Due Process Clause of the
Fourteenth Amendment, and must therefore be respected by the States.
Court of Appeals Reporter
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3 CCAR ___
At 20 L.Ed.2d 500.
The parties agree that the defendant is entitled to a jury trial upon request and that a request was made. The
remaining question is
Whether a Criminal Jury Trial Can Be Presumed Waived by Failure to Confirm a Demand for Jury Trial
The sole assignment of error in this appeal is whether the Trial Court wrongfully denied Albert Laramie his
right to a jury trial in a criminal case.
The parties have given much consideration to issues variously related to the assignment of error. These
include, but are not limited to: whether an attorney can waive a defendant's right to trial by jury; whether requiring a
defendant to confirm his demand for trial by jury is an impermissible burden on the defendant; and whether the
prosecution can elect to try a defendant by a judge trial.
The only issue the Appellate Panel need consider is whether the fundamental right to trial by jury, once
demanded, can be presumed waived by failure of the defendant to confirm his demand at least ten days before trial.
We conclude that it cannot.
Whether a waiver of jury trial can be presumed was considered in Seattle v. Williams, 101 Wn.2d 445, 680
P.2d 1051 (1984). That court held:
"In company with the United States Supreme Court, we are now committed to
the principle that waiver of an important constitutional right, such as the right to
trial by jury, cannot be assumed from a silent record even though the defendant
was represented by counsel. Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2nd 274,
89 S. Ct. 1709 (1969); State v. Wicke, 91Wn.2d 638, 591P.2d 452 (1980); State
v. Rinier, 93 Wn.2d 309, 609 P.2d 1358 (1980). The burden is on the
prosecution to establish that the waiver was knowing and voluntary. Boykin v.
Alabama, supra .....
"Additional guidance is found in our decision in State v. Wicke, 91Wn.2d 638,
645, 645 P.2d 452 (1979):
"In examining a claimed waiver by a criminal defendant of a right
constitutionally guaranteed to protect a fair trial, it would seem that every
reasonable presumption should be indulged against the waiver of such a right,
absent an adequate record to the contrary."
The Tribe argues that the difficulties of bringing in jurors over long distances and the efficient
administration of justice mandate the need for defendants to confirm the jury demand at least ten days before the
trial date scheduled.
The Tribe further argues that should a defendant not confirm his demand for jury he can move to continue
the trial and then renew his demand for a jury trial. This is referred to as the "safe harbor" doctrine and, therefore,
the right to a jury trial is guaranteed. The parties agree that such motions for continuance are routinely granted.
Mr. Laramie contends that he should not have to confirm his jury demand because trial by jury is a
fundamental right and, once demanded, should not be subject to additional conditions. The Tribe agrees the right to
a jury trial in criminal cases is a fundamental right. It responds, however, that the interests of efficiently
administering justice does not impose a substantial burden on defendants.
While we are sympathetic to the concerns of the Tribe, the fundamental right of a criminal defendant to a
trial by jury cannot be diluted because of administrative difficulties.
The issue whether the right to trial by jury in criminal cases can be presumed waived was considered
previously in Colville Confederated Tribes v. Randy L. Thomas, No. 89-12425 (1990) and William Coleman v.
Colville Confederated Tribes, No AP92-15405, [1 CTCR 74, 2 CCAR 1], (1993). After due consideration, we now
over-rule our decisions in those cases to the extent that they are inconsistent with our holding today. We hold for the
Court of Appeals Reporter
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3 CCAR ___
reasons stated that CTC 4.1.05 is not applicable to criminal trials.
The conviction of the defendant, Albert Laramie, is reversed and the matter is remanded to the trial court
for a jury trial.
Noreen LEZARD, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP94-019, 2 CTCR 11, 22 ILR 6135, 6 NALD 7009
3 CCAR 4
[Dianna Caley, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Stephen Suagee, Office of the Reservation Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 94-17039]
Argued June 23, 1995. Decided August 7, 1995.
Before Presiding Justice Bonga, Justice Miles and Justice Nelson
BONGA, P.J.
The Appellate Panel of [Presiding Justice] David Bonga, [Justice] Wanda Miles and [Justice] Dennis
Nelson convened for oral arguments in this matter on June 23, 1995 at the Colville Tribal Courthouse. Attorneys
present were Dianna Caley for the appellant and Stephen H. Suagee for the appellee.
After reviewing the file and hearing oral arguments the Appellate Panel holds that Judge Collins did act
within the scope of his authority in determining that the defendant had committed contempt of a court.
However, the Panel holds that Judge Collins did abuse his judicial discretion as to the sentence. The Panel
therefore holds that the sentence below regarding jail time is reversed and that the fine and costs assessed below are
affirmed.
FACTS
This matter arose when defendant Lezard who was scheduled for a jury trial on June 23, 1994 at 9 a.m.
failed to appear when Judge Wynne called for the case to convene. A bench warrant was issued by Judge Wynne
and the trial date was struck at 9:15 a.m.
Defendant appeared in Court at 9:30 a.m. on June 23, 1994. A hearing was held before Judge Collins who
found defendant in contempt of Court for not timely appearing at 9:00 a.m. for her jury trial.
Judge Collins sentenced the defendant to pay the Court Clerk ½ the fees allocated to the jury venire
assembled and (1) hour in attorney time based upon ½ hour each for the prosecutor and defense counsel at the rate
of $100.00 per hour.
The defendant was further sentenced to a jail term of 16 days, with 12 days conditionally suspended. The
defendant was to immediately serve two (2) days in jail and then serve two (2) additional days in jail beginning
August 23, 1994 to insure that defendant appeared for her jury trial that was set for August 25, 1994.
DISCUSSION
The Appellate Court finds that the Colville Tribal Court derives its contempt powers through the Court’s
inherent authority and by statutory authority found in Colville Tribal Code (CTC) sections 1.12.02 and 1.12.03.
Court of Appeals Reporter
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3 CCAR ___
The Court disagrees with Appellant’s position that under CTC 1.12.02 and CTC 1.12.03 summary
proceedings are only authorized for criminal contempt. The Appellate Court holds that the Trial Court has the
inherent power to use summary proceedings to deal with contempt committed in the face of the Court. The Panel
does not agree that if the Court is relying on its inherent powers rather than the statutory provided procedures that it
must make a finding on the record that the statutory provided procedures are insufficient. Therefore the Panel agrees
with the position that the Trial judge has broad authority, within reason, to initiate any proceedings necessary to
assure compliance with Court orders.
The Panel also adopts the position that the broader construction of the notion “contempt in the face of the
Court” is appropriate under Tribal law to enable the Court to assert its authority consistent with CTC 1.5.05 in order
to utilize such means as are necessary to carry its jurisdiction into effect. That is, the Court finds that a failure to
timely appear such as that which occurred in the instant case is “contempt in the face of the Court” under Tribal law
and justifies the utilization of summary proceedings.
However, the fact that Judge Collins presided over the summary proceedings does not negate the Court’s
decisions regarding the defendant’s contemptible actions, as the Appellate Panel finds that the Court’s discretionary
powers provide a great latitude to a presiding judge in determining appropriate punishment for contempt. However
where jail time is a part of the punishment which denies a defendant their Constitutionally guaranteed right of
freedom, which cannot be ended or cured by the contemner, the Appellate Panel holds that the defendant must be
provided Constitutionally guaranteed due process rights of appropriate notice, the right to a hearing to present
evidence and call witnesses.
In the case at bar defendant Lezard was sentenced to a jail term of 16 days, with 12 days suspended
conditionally. The defendant was ordered to immediately serve 2 days in jail and serve two (2) additional days in jail
at a later date. Thus there were no remedial actions which the defendant could have taken which would have
precluded the jail sentence. The defendant was not provided with an opportunity to cure her situation which would
have prevented her from spending a minimum of four (4) days in jail. The defendant was therefore denied her Due
Process rights and the Panel, through its appellate power, dismisses the jail time imposed by the Trial Court.
Court of Appeals Reporter
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3 CCAR ___
In Re the Welfare of J.A.M., K.A.M, P.M., S.Z.
M. Z., Appellant.
Case No. AP94-030, AP95-010, AP95-011 3 CTCR 14
3 CCAR 6
[Dianna Caley, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant/Mother.
Steven Aycock, Legal Services, Colville Confederated Tribes, Nespelem WA, counsel for the minor.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Children & Family Services.
Juvenile Court Case Numbers J94-13041, J94-13042, J94-13043, J94-13044]
Argued June 23, 1995. Decided August 7, 1995.
Before Presiding Justice Bonga, Justice Miles and Justice McGeoghegan
BONGA, P.J.
The Appellate Panel of Presiding Justice David Bonga, Justice Wanda Miles and Justice Earl
McGeoghegan convened for the oral arguments in this matter on June 23, 1995 at the Colville Tribal Courthouse.
Attorneys present were Dianna Caley, counsel for the mother; Lin Sonnenberg, counsel for appellee, Tribal Children
& Family Services (hereinafter CFS); and Steven D. Aycock, spokesperson for the children.
After reviewing the file and hearing oral arguments the Appellate Panel holds that the Colville Tribe had
proper jurisdiction to decide this matter.
The Panel further holds that the Order from November 1, 1994 review hearing is vacated and that this
matter is remanded so that a new hearing to modify the dispositional order may be held that will allow proper notice
to the parties.
FACTS
The Colville Tribes Children’s Court first exercised jurisdiction in this matter in June 1994 by issuing a
protective custody warrant for the subject minors.
In July of 1994 a Petition for Minor-In-Need-Of-Care (hereinafter MINOC) was filed by the Tribes. At an
adjudicatory hearing on July 27, 1994 the parties stipulated to the facts in the Petition.
On August 12, 1994, an Order from the adjudicatory hearing was entered which concluded that the Colville
Tribal Court had exclusive, original jurisdiction under CTC 12.5.01(a).
In late September 1994, CFS moved the Children’s Court for a hearing on placement of the minors,
because the mother had left the children with a babysitter and had not returned at the appointed time.
On October 6, 1994 a hearing was held to determine if the Dispositional Order should be modified to
change placement from the mother to placement at the discretion of the Tribes. The parties agreed to allow the
mother to keep physical custody subject to the emergency removal of the Tribes. The parties agreed that if such
removal occurred then a hearing would be held within 48 hours of the removal.
November 3, 1994 a motion was filed to hold an emergency hearing pursuant to the October 13, 1994
order.
On November 4, 1994 a hearing was held on the motion for an emergency hearing. The mother, M. Z., was
not at the hearing and had no notice of it. The minors made a motion to continue since the mother had no notice and
was not at the hearing. The motion was joined by the spokesperson for the mother. The Court denied the motion and
changed physical custody of the children.
Court of Appeals Reporter
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3 CCAR ___
DISCUSSION
Jurisdiction
It is the holding of this Panel that generally speaking the question of jurisdiction of a court may be raised at
any time. However, the rule is not as broad as it may seem.
At the June 1994 custody hearing, Appellant moved to dismiss because the Court lacked jurisdiction. This
was denied by the Court. The judge ruled that the Tribes had at least concurrent jurisdiction in this case.
The adjudicatory order was issued on August 12, 1994. That order states that the Tribes have exclusive,
original jurisdiction over the case. Pursuant to statue, this order was a final order. CTC 12.7.21. In order to perfect
an appeal from that order a Notice of Appeal must be filed within ten days (CTC 1.9.30), which would have been by
August 22, 1994. No Notice of Appeal was filed until November 9, 1994. Therefore the appeal on the jurisdiction
issue was not perfected.
This Court has ruled in a similar case before. In [Elaine] Smith v. CCT, AP90CV89-952, [1 CTCR 54, 1
CCAR 48], (Colville Court of Appeals, 1991) the trial court had addressed the issue of jurisdiction and found that it
did have jurisdiction. It then ruled against Appellant on the merits. Appellant perfected an appeal. Appellee, by
motion rather than a cross-appeal, then moved this Court to dismiss based upon lack of jurisdiction.
The Court ruled that since the issue of jurisdiction had been raised below and adjudicated by the Trial
Court, the only way to raise the issue on appeal was through a cross-appeal. In other words, if the issue is raised and
litigated, the party harmed by the ruling must perfect an appeal on that issue. As indicated above, a perfected appeal
on the jurisdiction issue in this case would have required a Notice of Appeal to be filed by August 22, 1994.
In Smith, supra., at pages 1-2, this Court held: “[W]e find that even though the argument as to jurisdiction
can normally be raised at anytime, the fact that it was litigated below is dispositive and that disposition is reviewable
only by a properly filed appeal.” As stated above Appellant did not properly file an appeal on the jurisdiction issue
in this case and as such the issue was waived.
NOTICE
The Tribal Civil Rights Ordinance requires the Tribes to meet due process requirements. CTC 56.02(h).
Although federal and state law on due process are not binding on this Court, the Tribal Court has held over the years
that due process is required and that notice and hearing are fundamental to due process.
The Colville Code recognizes the importance of family within the Tribes and states that it is the preference
of the Tribes that children be given care and guidance in their own homes and that family ties be preserved and
strengthened whenever possible. Accordingly the Code set forth detailed procedures to protect the rights of parents
and to avoid needlessly shattering families where less drastic intervention would suffice. Under CTC 12.7.24 the
Court is required to give the parents and their counsel notice of a hearing to modify a dispositional order.
The Court finds that substantive rights of M. Z. were adjudicated at the November 4, 1994 hearing which
required her to receive proper notice of the November 4, 1993 hearing which modified the existing dispositional
order as physical custody of her children was removed from her and given to other family members.
Based upon this lack of notice the November 4, 1994 order is vacated and this matter is Remanded to the
Children’s Court for setting of hearing on the issue of placement, with proper notice thereof.
Court of Appeals Reporter
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3 CCAR ___
Sylvester SAM, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP95-005, AP95-006, 2 CTCR 15, 2 CTCR 26, 2 CTCR 27
3 CCAR 8
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Wayne Svaren, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 92-15379, 92-15280]
Decided August 25, 1995
Before Presiding Justice Nelson, Justice Chenois and Justice Stewart (AP95-005, 2 CTCR 26)
Before Presiding Justice Nelson, Justice McGeoghegan and Justice Miles (AP95-006, 2 CTCR 27)
NELSON, P.J.
BACKGROUND
In March 1993, Sylvester Sam was convicted of Driving While License Suspended and was sentenced to
one year in jail. His appeal of the sentence was denied and the matter was remanded to the Trial Court on March 8,
1994.
In April 1994, he filed a second appeal, this time challenging the law upon which he was convicted. He was
again unsuccessful and the matter was remanded to the Trial Court on March 16, 1995.
On April 20, 1995, Mr. Sam appeared before the Trial Court for a status conference to determine whether
to lift the Order Staying Judgment and Sentence. He requested and was denied an additional thirty days in order to
prepare a Motion to Modify Judgment and Sentence.
Mr. Sam then requested thirty days to get his affairs in order before reporting for his jail service. The Court
granted him twenty four hours.
Immediately following the hearing, he filed this appeal claiming the Court had wrongfully delayed his
report date for jail service for thirty days.
On April 28, 1995, the Trial Court heard Mr. Sam’s Motion to Stay (apparently oral as there is no written
record of it). The Motion was denied on the grounds the appeal had not been perfected.
DISCUSSION
Mr. Sam was ordered to report for jail service by 5:00 p.m., April 21, 1995. He has not reported and the
thirty days he requested to get his affairs in order has long since elapsed.
The issue is moot whether the Trial Court has authority to delay the reporting date for jail service by thirty
days. “It is a general rule that, where only moot questions or abstract propositions are involved...the appeal
should...be dismissed.” Sorenson v. Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972).
ORDER
Therefore it is Ordered that the appeal is Dismissed and this matter remanded to the Trial Court for an order
committing the appellant to jail forthwith.
Albert LARAMIE, Appellant,
Court of Appeals Reporter
8
3 CCAR ___
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP94-017, 2 CTCR 48, 22 ILR 6250
3 CCAR 9
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Wayne Svaren, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 94-17014]
Decided September 11, 1995.
Before Presiding Justice Nelson, Justice Bonga and Justice Miles
NELSON, P.J.
The Appellate Panel has reviewed the Trial Court’s Order Staying Proceeding; Order Certifying Issues to
Appellate Court; and Order Striking Jury Trial filed July 7, 1995, and again orders the matter remanded for trial by
jury.
There is no established procedure authorizing the Trial Court to certify issues to the Appellate Court and
this Panel is without authority to promulgate one. The Trial Court is instructed to proceed in the matter established
by previous practice.
It is the judgment of the Panel that the Memorandum Opinion heretofore entered is clear on its face
regarding which laws are applicable in Tribal Court and no explanation is required.
The Appellant’s Motion to Dismiss Appeal or in the Alternative to Dismiss Case is denied.
Court of Appeals Reporter
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3 CCAR ___
In Re the Welfare of A.S.
L.S., Mother/Appellant.
Case No.AP95-019, 3 CTCR 15
3 CCAR 10
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant/Mother.
Steven D. Aycock, Legal Services, Colville Confederated Tribes, Nespelem WA, counsel for the minor.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Tribes.
Juvenile Court Case Number J95-14107]
Decided on September 28, 1995.
Before Presiding Justice Nelson, Justice Bonga and Justice Fry
FRY, J.
This matter came regularly before the Colville Tribal Court of Appeals by conference call on September
20, 1995. The following persons were present: Presiding Justice Dennis Nelson, Justice David Bonga, Justice
Elizabeth Fry, and Court Clerk Diana Aiken.
The Court, having reviewed the records and files herein, and being fully advised in the premises, found that
the Order of Disposition was invalid in that it had not been signed by the presiding judge, and further that this was
significant in that the presiding judge had heard three witnesses during that hearing prior to ruling, and the Court
further finds that Judge Mary T. Wynne needs to file an Order of Disposition with the Court, now, therefore,
It is Ordered that:
1. The order dated August 31, 1995 and signed by Judge Brian Collins is invalid.
2. Judge Mary T. Wynne needs to sign an order from the disposition hearing of August 8, 1995.
3. The appeal on file in this case, numbered AP95-019, is hereby Remanded to the Trial Court for entry of
the proper Order of Disposition.
It is so Ordered.
Court of Appeals Reporter
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3 CCAR ___
Gerald SEYMOUR, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP94-004, 2 CTCR 12, 23 ILR 6008
3 CCAR 11
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 93-16449 to 93-16452]
Arguments heard March 24, 1995. Decided November 17, 1995.
Before Presiding Justice Collins, Justice Bonga and Justice Miles
COLLINS, P.J.
These consolidated appeals were brought before the Court for review by Gerald Seymour who seeks to
overturn his criminal convictions in the Colville Tribal Court for four misdemeanor offenses. Seymour contends that
the Trial Court erred in denying his pre-trial motion for a competency hearing. Seymour also asserts that he was
incompetent to be tried or sentenced and that his Judgment and Sentence should be overturned.
The Appellate Panel consisting of [Justices] David Bonga, Wanda Miles and [Presiding Justice] Brian
Collins having fully reviewed the record below, the appellant's brief and heard oral argument, now affirms the
appellant's convictions.
1
I. FACTUAL AND PROCEDURAL HISTORY
During the night of September 24, 1993, Seymour was seen along a roadside within the Colville
Reservation by two patrolling Tribal police officers. As the officers were about to pass by, Seymour jumped in front
of their patrol car. When Officers Graham and Dunne contacted Seymour they observed that he appeared highly
intoxicated and agitated. Seymour kicked the side of the patrol car, threatened the officers and tried to instigate a
fight. After arresting Seymour for disorderly conduct, officers Dunne and Graham put him in the patrol car, where
he began spitting and kicking the interior of the car. Seymour was described as having violent mood swings during
which he tried to attack the officers followed by periods of calm.
Officers Dunne and Graham called their supervisor, Sergeant Evans, who assisted in the handling and
transport of Seymour following his arrest. Seymour was transported to the police station and, while Sergeant Evans
was removing Seymour from the patrol car, Seymour kicked him in the chest.
On September 28, 1993, Seymour was charged with Battery, Intimidation of a Public Officer, Resisting
2
Arrest or Process, and Disorderly Conduct. The Court appointed the Office of the Public Defender to represent him.
At Pretrial Hearing on October 11, 1993, the defense made no pretrial motions related to Seymour's competence to
stand trial. Seymour was scheduled for jury trial on October 28th and was held in jail pending trial.
On October 27, 1993, the day before trial, defense counsel Jeffrey Rasmussen filed an Agreed Motion To
Continue with appended affidavit of counsel. Defense Counsel asked to continue the trial because "defendant is
1
2
The Tribes' counsel did not file a Responding Brief in this appeal, saying she forgot.
Battery, CTC 5.1.04; Intimidation of a Public Officer, CTC 5.4.11; Resisting Arrest or Process, CTC 5.4.17; Disorderly Conduct, CTC 5.5.04.
Court of Appeals Reporter
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3 CCAR ___
unable to participate or assist in his own defense." In his affidavit, defendant's attorney stated that he had visited
Seymour in jail on two occasions. The first visit was on or about October 5th and again on October 26, 1993.
Counsel stated that during the first visit he was able do discuss the facts of the case, the defenses and possible
punishments with Seymour. However, during the second visit, which lasted approximately one-half hour, Counsel
stated that Seymour "did not appropriately respond to any of my questions and so we were unable to discuss any
issues." Counsel goes on to state that if the matter went to trial on October 28, 1993, he did not believe Seymour
would be able to assist with his own defense, and if called to testify, he would be unable to respond to questions.
Counsel also stated that Seymour was not taking his medication.
Defense counsel also stated in his affidavit that both the Public Defender's office and the Prosecutor's office
were working to obtain the "appropriate mental health evaluations and statutory requirements to determine if
defendant should be committed to Eastern State Hospital." Affidavit of Jeffrey Rasmussen.
On October 28, 1993, the day of trial, the appellant's motion to continue trial was heard, and Defense
3
Counsel orally moved for a competency hearing under RCW 10.77. Seymour appeared for hearing and was
examined by counsel for the defense and prosecution. In addition, the trial judge questioned Seymour at length.
During questioning, Seymour knew he was in court for a plea, responded to events which occurred during
the incident which led to his arrest, was able to recite the charges against him. The record shows that Seymour's
responses to questions were at times muffled, that he seemed to be distracted, was nonresponsive to some questions
and gave inappropriate answers to others. The record also shows that Seymour followed the proceedings. At the
conclusion of the hearing the Court denied Defendant's Motion To Continue the Trial and defense counsel's Motion
For Competency Hearing, finding him competent to stand trial.
Subsequently, Seymour was tried and convicted at jury trial. He now appeals asserting that the Court erred
in not ordering a psychiatric examination, convening a competency hearing and finding him competent to stand trial.
Seymour asks the Court to overturn his conviction alleging that his right to due process of law was violated.
II. DISCUSSION
A. Failure To File Brief
Appellee's counsel failed to file a Response Brief on behalf of the Confederated Tribes. supra, n.1. The
appellee urges the Court to reverse the Tribal Court on those grounds. We decline to do so. While we have
dismissed appeals because the appellant failed to file a brief, we will not automatically reverse a decision of the
Tribal Court when the appellee does not file its brief. The burden rests with the appellant to make out his case on
appeal.
If the Court adopted a rule whereby reversal would automatically occur when appellee's counsel either
forgot or refused to file a brief, the obvious result would be that counsel, and not the Court, could determine the
4
law. The Court simply will not engage in that practice.
B. Due Process
It has long been recognized that a criminal defendant who is incompetent should not be required to stand
3
A review of the court file does not reveal that a Motion For Competency Hearing was filed.
4
Depending on the facts of the particular case, an attorney's failure to file a brief, as ordered by the Court, calls into question the quality of the
attorney's representation of the client, adherence to required practice standards of attorneys appearing before the Court and other standards
adopted by the Business Council concerning Tribal Court practice which are sworn to by the attorney. CTC 1.6.03(4).
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trial. Dusky v. United States, 362 U.S. 402 (1960). This principle is well established as a matter of federal
constitutional law and deeply rooted in common law predating the United States Constitution. Drope v. Missouri,
420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), citing 4W. Blackstone, Commentaries 24. Under federal
constitutional principles, requiring an incompetent person to stand trial violates the Due Process Clause of the
Fourteenth Amendment.
Similarly, a body of state common law has developed over the years applying federal due process
principles. Until legislative bodies codified standards and procedures to guide the courts in making determinations
regarding competency, the courts were required to rely exclusively on their inherent judicial powers to make such
determinations. State v. Wicklund, 96 Wn.2d 798, 801, 638 P.2d 1241, (1982). (Citations omitted)
This is the first opportunity we have had to review a determination of the Tribal Court in which a criminal
defendant has asserted incompetency to stand trial, and the Court, after examining the defendant, denied a motion
for a competency hearing and ordered the defendant to stand trial.
The Business Council has adopted, as part of the Colville Tribal civil Rights Act (CTCRA), CTC 56.02(h),
which recognizes that criminal defendants may not be deprived of liberty or property without due process of law. In
addition, the United States Congress in enacting the Indian Civil Rights Act (ICRA), 25 U.S.C. Sec. 1302 (8),
requires that persons coming before tribal courts be afforded due process of law. The due process guarantee to a fair
trial under the CTCRA and the ICRA include the right of a defendant not to be convicted or sentenced while
incompetent. That being said, we do not conclude that the Tribal Court must adopt the same criteria as applied in
other jurisdictions as to making a determination when a person is incompetent to stand trial.
We note that many criminal defendants coming before the Tribal Court are not familiar with court
procedures and may well find the process intimidating. Such defendants may react or respond differently than they
would be expected to based upon the standards applied in other courts. Therefore, we give deference to the first hand
observations of a sitting judge in the Tribal Court and view precedent from other jurisdictions with caution as to its
applicability in Tribal Court. Nor do we conclude that the Tribal Court is required to follow the same procedures in
deciding whether to order a competency hearing or in making a competency determination as under state or federal
statutory law. Thus, we do not hold that due process guarantees under the Tribal Civil Rights Act and Indian Civil
Rights Act are necessarily identical to those under the federal constitution.
5
C. Standard of Review
The Colville Business Council has enacted no statutes to guide the Tribal Court as to the circumstances
under which it is required to order a competency hearing for a defendant alleging incompetency to stand trial. Nor
are there Tribal statutes defining incompetency or establishing a procedure for the Court to follow in making
competency determinations. Until uniform standards and procedures are adopted by the Business Council, the Tribal
Court must, like other courts have done prior to enactment of competency statutes in their jurisdictions, rely on its
inherent authority for those purposes.
6
5
We have previously held and again emphasize that statutory due process under the Indian Civil Rights Act and Colville Tribal Civil Rights Act
is not coextensive with constitutional due process. The Congress intended that protections included within the Indian Civil Rights Act which are
similar to those in the Bill Of Rights are to be applied in accordance with Tribal standards. In looking to federal or state common law due process
principles, we do so with caution. Tribal values must always be the background to which those standards are applied.
6
The Court must necessarily exercise its inherent authority by making inquiry as to a defendant's mental condition when it is suspected that the
person may not be competent to stand trial. Secondly, the Court must exercise its inherent authority to ensure that an incompetent defendant's due
process guarantees will not be violated by requiring that person to stand trial while incompetency persists.
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The Business Council has provided the Court with broad discretion, in the absence of statutory direction, to
"adopt a process or mode of proceeding" to determine whether further inquiry should be made as to a criminal
defendant's competency and, if so, how the proceeding will take place. CTC 1.5.05. Thus, we will not disturb the
process or mode of proceeding adopted by the Tribal Court or reverse the Tribal Court's refusal to make further
inquiry as to a defendant's competency to stand trial unless clear abuse of discretion is shown. The Tribal Court
judge is in a far better position to question the person alleging incompetence, observe his demeanor and evaluate the
factors bearing on the question of a defendant's ability to participate in his own defense. Thus, the Panel will not
disturb a decision of the Tribal Court in that regard unless manifest abuse of discretion is clearly shown.
D. Applicable Law
The parties have not provided the Court with Tribal statutory or case law which govern the outcome of the
question before the Court. Therefore, the Court looks to the choice of law provisions set out in the Colville Tribal
7
Law and Order Code to determine what law to apply. CTC 4.1.11. Although both the appellant and the Tribes urge
the Court to adopt RCW Chapter 10.77, which contains the procedural and substantive statutory law of the State of
Washington, we decline to do so.
If the Colville Business Council intended the Court to apply State statutory law to address issues involving
a defendant's competency to stand trial, it would have provided for doing so by statute or incorporated by reference
RCW Chapter 10.77. For the Court to adopt state statutory law, as both the appellant and Tribal prosecutor urge, the
Court would have to ignore the choice of law priorities set out in CTC 4.1.11, which does not include State statutes.
Instead, we look to state common law to guide the Tribal Court with regard to competency procedures, together with
federal common law for reference on how procedural and substantive standards applied by the Tribal Court affect
due process guarantees under the Indian Civil Rights Act and Tribal Civil Rights Act.
E. Applicable Competency Standard
The test for determining competency of a criminal defendant to stand trial, as articulated by the Washington
Supreme Court, is whether "he is capable of properly understanding the nature of the proceedings against him and if
he is capable of rationally assisting his legal counsel in the defense of his cause." State v. Gwaltney, 77 Wn.2d 906,
907, 468 P.2d 433 (1970). (Citations omitted)
F. Procedure to Assess Competency To Stand Trial
The conviction of an accused person while legally incompetent violates due process. Drope v. Missouri,
supra; Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 76 L.Ed.835 (1956). Under federal due process
standards, procedures employed by the Court to assess competency must be adequate to safeguard the defendant's
rights. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815, 818 (1966).
It appears to the Panel that the Tribal Court placed the burden on the appellant to show that a competency
hearing should be convened to establish whether he was competent to stand trial. This is in accord with Washington
common law predating RCW 10.77.
A person is presumed to be sane in ordinary affairs. After indictment the
presumption of sanity continues until it is call in question from a reputable
7
CTC 4.1.11 provides:
In all cases the Court shall apply, in the following order of priority unless superseded by a specific section of the Law and Order Code,
any applicable laws of the Colville Confederated Tribes, tribal case law, state common law, federal statutes, federal common law and
international law.
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source and a sufficient specific declaration to the contrary. (Citation omitted)
State v. Henke, 196 Wash. 185, 194, 82 P.2d 567 (1938)
The United States Supreme Court has upheld a California statute on due process grounds which create a
presumption that criminal defendants are mentally competent unless it is proved by a preponderance of the evidence
that the defendant is incompetent. Medina v. California, 505 U.S. , 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). In that
case the Court observed:
In the field of criminal law, we have defined the category of infractions that
violate fundamental fairness very narrowly based upon the recognition that,
beyond the specific guarantees enumerated in the Bill of Rights, the Due Process
Clause has limited operation. (Citations omitted) (Internal quotations omitted)
120 L.Ed.2d at 362.
In addressing the appellant's contention that the Tribal Court was required to order a competency hearing
under RCW 10.77, we reject the contention for the reason state statutory law is not applicable. However, we review
the Court's refusal to make further inquiry as to the appellant's competency for abuse of discretion. An early
Washington case concerning the Court's duty with regard to ascertaining a criminal defendant's competency to stand
trial is instructive. The Washington State Supreme Court stated:
[W]e are of the opinion that it is a matter within the discretion of the trial court
as to whether or not it will enter upon an examination of the question of sanity
of the accused with a view of determining the right of the state to put him upon
trial and render judgment against him. We know of no statute of this state which
makes it mandatory upon the trial court to enter upon such an inquiry or to
appoint a commission looking to the determination of such a question. In states
having statutes authorizing appointment of such a commission .... the rule seems
to be that it is with the discretion of the trial court as to whether or not it will so
proceed. (Citation omitted)
State v. Peterson, 90 Wash. 479, 482, 156 P. 542 (1916). Thus, the Washington courts adopted the "rule of
discretion" in the absence of a specific statute directing the courts to order a competency evaluation for an accused
alleging incompetency to stand trial. Accord, Henke, supra at 192.
From the above discussion, we conclude that when a question is raised by either party as to a criminal
defendant's competency to stand trial, a two step process occurs. The threshold question is whether the party raising
the issue presents evidence raising a significant question as to a defendant's competency to stand trial from which
the Court should make further inquiry. Such inquiry ordinarily begins by ordering that the accused be examined by a
psychiatrist or psychologist with demonstrated skills to render an opinion as to whether the defendant "is capable of
properly understanding the nature of the proceedings against him and if he is capable of rationally assisting his legal
counsel in the defense of his cause."
The second stage of this analysis is for the Court to make a competency determination, based upon
evidence, whether the defendant is able to stand trial. The Tribal Court has wide discretion in selecting the process
or mode of proceeding to make the determination. CTC 1.5.05. If the defendant is found to be incompetent, the
condition is presumed to continue until the contrary is shown. Henke, supra at 194 (Citations omitted).
G. Did the Court Abuse its Discretion by Refusinq To Convene a Competency Hearing?
The question presented is whether there was a substantial doubt shown at hearing as to Seymour's
competency to stand trial such that the Tribal Court should have made further inquiry. For the reasons stated above,
we review the Tribal Court's denial of the motion to continue the trial and order a competency hearing for abuse of
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discretion. See also, State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985), cert. denied, 476 U.S. 1144 (1986) .
In addressing the above question, we look to how courts from other jurisdictions have reviewed similar
issues. A motion to determine competency does not have to be granted just because it has been filed. State v. Lord,
117 Wn.2d 829, 901, citing United States v. McEachern, 465 F.2d 833, 837 (5th Cir.), cert. denied, 409 U.S. 1043
(1072). There must be some factual basis in support of the motion. The Court will then inquire as to the facts
asserted, and in doing so give consideration to the following:
1.The defendant's apparent understanding of the charge and the consequences of conviction;
2. The defendant's apparent understanding of the facts giving rise to the charge;
3. The defendant's ability to relate the facts to his attorney in order to help prepare the defense.
Seattle v. Gordon, 39 Wn. App. 437, 441 (1985).
The record shows that the Tribal Court did inquire as to the above points and, together with testimony
elicited through examination by counsel, we find the Court did not err in concluding that Seymour understood the
charges against him and the consequences of conviction. Further, the record shows that Seymour was able to
recollect and, although with some lack of clarity, relate an understanding of the facts which gave rise to his arrest.
The record also shows that Seymour was unresponsive to some questions asked and gave inappropriate responses to
others during examination by counsel and the Court. The Tribal Court judge was in a position to observe Seymour's
demeanor, listen to his responses on examination, assess whether his not taking medication affected his mental state
to the extent that a substantial question was raised as to his competence to stand trial. The Tribal Court judge was
also in a position to determine whether Seymour might be malingering and trying to avoid trial.
Although the record below raises some question as to Seymour's competence, we conclude that the
appellant has not shown that the Tribal Court clearly abused its discretion in concluding that the appellant
understood the charges against him, the consequences if convicted or the facts giving rise to his arrest.
As to Seymour's ability to assist his attorney in preparation of a defense, the Tribal Court could have given
more weight to the opinion of defense counsel as to Seymour's ability to assist. However, the record shows that the
trial judge questioned Seymour on issues relevant to his ability to assist in his own defense at trial. The Tribal
prosecutor, also presented her opinion as to Seymour's mental capacity and ability to assist at trial. However, the
Tribe's counsel was not in the same position as Seymour's attorney to assess his ability to assist.
The appellant argues that under state law, Washington courts have indicated that the Court should give
considerable weight to defense counsel's opinion regarding his client's competency. State v. Crenshaw, 98 Wn.2d
789, 659 P.2d 488 (1983). We also note that while the Court is not required to accept the attorney's representations
as to the defendant's competency, the attorney's opinion is a factor which should be considered. Drope v. Missouri,
420 U.S. 162, 177 n.13, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
In addition, a criminal defendant's ability to assist defense counsel does not mean that he be able to suggest
a particular trial strategy or choose among alternative defenses. State v. Harris, 114 Wn.2d 419, 428, 789 P.2d 60
(1991). See also, State v. Hahn, 106 Wn.2d 885, 726 P.2d 25 (1986); State v. Ortiz, supra at 483. The ability to
assist even at trial is a minimal requirement. A criminal defendant is not automatically incompetent to stand trial
because he suffers from the disease of schizophrenia. Harris at 429.
We observe that before the October 28, 1995 hearing, counsel for the defense and prosecution apparently
concluded that there was a substantial question as to Seymour's competence to stand trial, and they set about
arranging for a mental health examination. Affidavit of Jeffrey Rasmussen, supra. The record does not show that
counsel did so with involvement of the Court. Thus, it appears to the Panel that counsel accepted as a foregone
conclusion that Seymour's mental disease might well have rendered him incompetent to stand trial and strenuously
advocated that position to the Tribal Court. Under the circumstances, the Panel finds that defense counsel's opinion
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was given sufficient weight by the Tribal Court as to Seymour's ability to assist in his defense.
III. CONCLUSION
From the foregoing, we conclude that the Tribal Court did not abuse its discretion in denying the appellant's
motions to continue trial and order a mental health examination, or by concluding that Seymour was competent to
stand trial. Accordingly, it is Ordered that the appellant's convictions in the above matters are Affirmed.
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3 CCAR ___
Matthew BOYD Jr., Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP95-001, 2 CTCR 16, 2 CTCR 28, 23 ILR 6245
3 CCAR 18
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 93-16767, 93-16768]
Argued July 21, 1995. Decided January 19, 1996.
Before Presiding Justice Fry, Justice Bonga and Justice Miles
FRY, P.J.
This matter came regularly before this court for Oral Arguments on July 21, 1995. The following persons
were present: Lin Sonnenberg, Prosecutor for Appellee, and Jeff Rasmussen, Public Defender.
The Court of Appeals, having reviewed the records and files herein, having heard the arguments of the
parties, and being fully advised in the premises, bases its decision upon the following:
I. REVIEW OF CASE
The defendant plead guilty to the charges of Battery and Assault on March 10, 1994, and at the Sentencing
Judge Brian Collins granted the plaintiff’s motion to dismiss two charges of Intimidation.
The defendant was sentenced by Judge Collins on May 2, 1994 to the following:
1. Payment of a fine of $2,500.00 with $1,500.00 suspended conditionally.
2. Jail time of 180 days with 160 days suspended conditionally.
Conditions of suspension were that the defendant file an alcohol, anger, and sexual perpetrator
evaluation from Tribal Community Counseling Services (TCCS) by August 2, 1994. The
defendant was to follow their recommendations for one year, and was additionally ordered to file
progress reports from TCCS.
The defendant was ordered to “fully comply with all portions of this order.”
On July 15, 1994, the plaintiff moved to clarify the Judgment and Sentence, noting that TCCS had filed a
memorandum with the Court that it did not have the certified personnel to complete the sexual perpetrator
evaluation. The plaintiff asked the court to interpret its Judgment and Sentence to primarily mean that the defendant
was required to complete a sexual perpetrator evaluation, and further requested that a new evaluator be assigned.
On August 2, 1994, a hearing was held on the motion and the plaintiff failed to appear. The Court denied
the plaintiff’s motion to clarify for want of prosecution.
On October 25, 1994, the plaintiff moved to show cause against the defendant for failure to file required
evaluations and reports for alcohol, anger, and sexual perpetrator potential.
On December 14, 1994, the Court held a show cause hearing concerning the allegations. The Court found
that the defendant had completed all the evaluations except the sexual perpetrator evaluation, and that it wasn’t the
defendant’s fault that TCCS had failed to file the other evaluations. The Court found that the main purpose of the
sexual perpetrator evaluation was rehabilitative, and additionally, that the Court would entertain a motion to apply
up to the entire remaining balance of the defendant’s fine ($500.00) to pay for a sexual perpetrator evaluation from a
private mental health provider (which the defendant estimated to be approximately $300.00). The plaintiff moved to
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3 CCAR ___
so modify the Judgment and Sentence to reflect the change and the defendant stipulated to the agreement. The Court
granted the motion. Later that day the defendant refused to sign the proposed order modifying the Judgment and
Sentence.
On December 15, 1994 the Court signed the Order from Show Cause Hearing; Modification of Judgment
and Sentence, giving defendant thirty days to file copies of all his evaluations with the Court, including a sexual
perpetrator evaluation from a private mental health provider, and the remaining provisions of the Judgment and
Sentence were to remain in effect.
On December 22, 1994, the defendant moved to reconsider the Trial Court’s denial of finding that the
defendant had violated the condition of his sentence that he obtain a sexual perpetrator evaluation. By affidavit the
defendant argued that the price of a private provider’s evaluation was higher than had been discussed in court.
On January 20, 1995, the Court denied the defendant’s motion to reconsider on the grounds that the
defendant had stipulated to the evaluation and recommendation of TCCS, and that the defendant had waived his
right to re-address the matter by stipulating to the evaluation and order which applied the balance of the fine to the
private provider evaluation.
On February 2, 1995, the defendant filed an appeal.
On March 20,1995, the Trial Court judge stayed the Judgment and Sentence.
II. ISSUE
Did the court err in modifying the defendant’s sentence to require that he obtain a sexual
perpetrator evaluation from a program other than TCCS?
III. DISCUSSION
Since the defendant stipulated to the modification of the Judgment and Sentence, it seems appropriate for
this Court to question his argument that he should not have been found in violation of the Judgment and Sentence.
The Show Cause hearing’s purpose, besides determining violations of the Judgment and Sentence, was clearly held
to determine ways for the defendant to implement the Judgment and Sentence. It seems that a generous solution was
agreed upon by the parties, and that later the defendant changed his mind.
According to the Black’s Law Dictionary, Fifth Edition, 1979, at page 1269, the definition of “stipulation”
includes,
“A material condition, requirement, or article of an agreement.”
“The name given to any agreement made by the attorneys engaged on opposite
sides of a cause (especially if in writing), regulating any matter incidental to the
proceedings or trial, which falls within their jurisdiction. Voluntary agreement
between opposing counsel concerning disposition of some relevant point so as to
obviate need for proof or to narrow range of litigable issues, Arrington v. State,
Fla., 233 S.2d 634, 636. An agreement, admission or confession made in a
judicial proceeding by the parties thereto or their attorneys. Bourne v. Atchison,
T. & S. F. Ry. Co., 209 Kan. 511, 497 P.2d 110, 114.
It is clear from the definition of stipulation that it is an agreement between the parties, it is voluntary, and
that its purpose is to dispose of or agree to some relevant matter in the proceeding. In this case, there was a dispute
as to the meaning of the original Judgment and Sentence regarding the sexual perpetrator evaluation. However, the
defendant agreed to forgo that argument when he stipulated in open court, on record, to evaluation by the private
provider. Of course the advantage to him was that he would be allowed to offset the cost of the evaluation against
the balance due on his fine. This was a substantial advantage to him.
The defendant then later changed his mind about the stipulation. However, there has been insufficient
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evidence by the defendant to show that the stipulation was either unfairly obtained or unduly prejudicial in order to
warrant reversal. Therefore, this Court affirms the decision of the Trial Court.
IV. DECISION
Based on the foregoing discussion, this Court affirms the decision of the Trial Court to modify the
Judgment and Sentence herein, and remands this matter to the Trial Court to carry out its decision in that order dated
December 15, 1995, and titled Order From Show Cause; Modification of Judgment and Sentence.
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3 CCAR ___
John C. CLARK, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP94-027, 2 CTCR 17, 2 CTCR 30, 25 ILR 6066
3 CCAR 21
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 94-16642]
Arguments heard October 27, 1995. Decided January 26, 1996.
Before Presiding Justice Bonga, Justice Miles and Justice McGeoghegan
BONGA, P.J.
An initial hearing on the Appeal occurred by conference call on January 3, 1995 with the Appellate Panel
of [Justice] Wanda Miles, [Justice] Earl McGeoghegan and [Presiding Justice] David Bonga. The Appellate Court
considered the Notice of Appeal and requested the parties submit a briefing schedule by January 13, 1995. Further,
the Appellate Panel requested copies of the trial tapes for the September 20,1994 hearing and the Appellate Clerk
issued notice to the Trial Court to provide copies to the Panel.
FACTS
On October 20, 1993, Appellant John C. Clark appeared pro se before the Trial Court, the Hon. Judge
Howard Stewart presiding, for arraignment on the charge of Driving While Under Influence of Intoxicating Liquor.
Appellant pled guilty, and the Court accepted his plea. Without objection from the parties, the Court then proceeded
to sentencing Appellant on the charge.
The Court’s oral order regarding sentencing was a fine of $1000, with $550 suspended, 30 days in jail, with
30 suspended, with conditions that defendant commit no alcohol-related offenses on the reservation, file an alcohol
evaluation from TCCS and follow their evaluation for one full year.
On September 20, 1994 Appellant appeared before the Trial Court, the Hon. Judge Brian Collins presiding,
in answer to a Summons to show cause why the Court should not re-impose the suspended portions of the Judgment
and Sentence for Appellant’s failure to file quarterly progress reports. After being sworn, Appellant testified that he
had been going by what the Court had ordered and stated that Judge Stewart had not mentioned quarterly reports.
Defendant also testified that he had not received the Court’s written Judgment and Sentence.
The Court and Prosecution questioned Defendant regarding receipt of the Court order, and the prosecution
expanded his cross examination to cover new issues relating to compliance with the TCCS evaluation. Defendant
was asked whether he had abstained and remained sober. The defendant initially invoked his right not to incriminate
himself but, when later asked a similar question, Defendant testified that he had told his alcohol counselor that he
had “slipped a few times” during his recovery.
The Court found that Defendant had violated the terms of his suspended sentence in two manners: first, that
he had not filed quarterly progress reports, and second, that Mr. Clark had consumed alcohol during the year’s
probation. The Court reinstated the full suspended sentence.
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DISCUSSION
Issue
Does the Trial Court have Jurisdiction to hold a Show Cause hearing prior to the date of the Pre-Dismissal
hearing?
It is the decision of the Appellate Panel that the Trial Court has statutory, as well as inherent and implied
authority, to enforce its orders during the term of its jurisdiction over a criminal defendant. CTC 1.5.05. The Panel
does not agree with Appellant’s position that the Court lacked jurisdiction to hold a Show Cause hearing prior to the
pre-dismissal hearing, as it would prevent the Court from enforcing any of its orders in a criminal case until the PreDismissal hearing, that would effectively hamstring the Trial Court’s ability to maintain order, function as a court or
administer justice.
The Colville Tribal Code mandates that the Court must schedule a Show Cause Hearing within 10 days of
the Pre-Dismissal Hearing if it appears a defendant is out of compliance with the Court’s order, CTC 2.4.05, but
does not, by its own terms, prohibit the Court from holding Show Cause Hearings on other occasions when it
appears that a defendant is out of compliance with the Court’s orders. Id. It is the opinion of the Appellate Court that
the Code is clear on its face, mandating a Show Cause Hearing under one specific set of circumstances and not
denying the Court the use of Show Cause Hearings on other occasions to enforce the Court’s orders. See CTC
1.5.05.
The Appellate Panel therefore holds that the Trial Court has authority to hold Show Cause hearings for the
purpose of enforcing its orders during the pendency of its jurisdiction over a criminal defendant.
Issue
Does the Trial Court’s oral order take precedence over the written order?
In the captioned matter, there is a conflict between the oral order of the Court and the written order filed in
the Court file. The legal rule related to such conflicts is that the oral order takes precedence over the Court’s written
order.
The Appellate Panel finds merit in the holding of U.S. v. Villano, 816 F.2d 1448 (10th Cir. 1987) which
stated, “It is a firmly established and settled principle of federal criminal law that an orally pronounced sentence
controls over a judgment and commitment order when the two conflict. This rule is recognized in virtually every
circuit.”
While the Colville Tribal Court is not bound by federal court holdings, Stead v. CCT, [AP91-14281, 2
CTCR 02, 2 CCAR 27, 21 ILR 6005] (Colville Appellate Court, 1993) the Appellate Panel believes the Villano is
based on important considerations of fairness to defendant and of the right to be present during sentencing. Villano,
supra. at 1452. The Appellate Panel believes that these considerations of fairness apply to the Colville Tribal Court,
and the Tribes guarantee of due process and the right to notice and a hearing. CTC 56.02.
The Panel also agrees with the appellant’s position that the Colville Tribal Court is not a traditional justice
system for any of the tribes of the Reservation, and that the Tribal Court therefore has a greater need to insure that
tribal defendants understand the system and the conditions of the Anglo-modeled sentence. It is the opinion of this
Panel that explanation and understanding of these concepts is best achieved through oral, face-to-face
communications, as demonstrated by Judge Stewart in this matter.
However, the record reveals that Judge Stewart did not specifically order the defendant to submit quarterly
progress reports. Therefore, it is fundamentally unfair to punish the defendant, who in good faith, relied on the
words of the Trial Court judge, when his sentence was imposed. Allowing a judge to add written conditions at a later
date, may at best be confusing to the defendant and may not adequately explain to the defendant the terms of his
sentence.
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Issue
Whether the Trial Court erred in finding that Appellant violated the recommendations in the alcohol
evaluation by TCCS.
The Colville Tribal Court follows the rule that a criminal defendant is entitled to notice regarding the issues
to be raised at a Show Cause hearing. In this case it was undisputed that the notice for the Show Cause hearing listed
only failure to file progress reports as an issue. The Trial Court at the Show Cause hearing ruled that the defendant
had, in addition to failing to file quarterly reports, failed to follow the recommendations of TCCS.
The Appellate Panel finds that Trial Court ruling in error.
For all the above reasons the Order from the Show Cause hearing in this matter is reversed and the matter is
remanded to the Trial Court for appropriate action.
Richard KUHNS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case No. AP95-007, 2 CTCR 18, 2 CTCR 29, 24 ILR 6017
3 CCAR 23
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Russell Hansen, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 94-17447]
Argued October 27, 1995. Decided January 26, 1996.
Before Justice Fry, Justice Chenois and Presiding Justice LaFountaine
FRY, J.
This matter came regularly before this court for oral arguments and to hear the motion to settle on October
27, 1995. The following persons were present: Russell Hansen, Prosecutor, and Jeff Rasmussen, Public Defender.
The Court, having reviewed the records and files herein, having hearing oral arguments of the parties, and
having specifically reviewed the tape of the Sentencing hearing, finds that the defendant’s Notice of Appeal does not
address the language in the Judgment and Sentence or the language on the tape of the Sentencing hearing, both of
which mandate a hearing on the payment of the fine. The Court further finds that the tape also includes language
considering the possibility of community service in lieu of fine, all of which the defendant failed to address, and
about which the defendant misled the Appellate Court. Therefore, this Court finds that the Trial Court should be
affirmed, and further that the matter should be remanded to the Trial Court to hold a hearing regarding payment of
the fine.
It is Ordered that:
1. The decision of the Trial Court in this matter is affirmed.
2. This matter is remanded to the Trial Court to follow the Judgment and Sentence and hold a hearing
regarding the payment of the fine by the defendant.
It is so Ordered.
Court of Appeals Reporter
23
3 CCAR ___
Terrence LARAMIE, Appellant.
vs
COLVILLE CONFEDERATED TRIBES,
Case No. AP95-014, 2 CTCR 31
3 CCAR 24(1)
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Wayne Svaren, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 95-18158 to 95-18162]
Decided January 29, 1996.
Before Chief Justice Dupris, Justice Fry and Justice LaFountaine
DUPRIS, C.J.
This matter came before the Colville Tribal Appellate Court for hearing on motions and preliminary
matters on this date, and the Appellate Panel, after reviewing the record and files, and hearing arguments, finds
cause to enter the following orders, now, therefore
It is Ordered, Adjudged and Decreed that:
1. The appellee’s Motion to Extend the Time to File its brief is granted in that the Appellate Panel does
consider the arguments made therein on this date.
2. The appellant’s Motion to Recuse Justice Frank LaFountaine is denied as (1) untimely; and (2) the case
before this Appellate Court has not involved Justice LaFountaine, so there is no conflict of interest.
3. The parties’ joint Motion to Dismiss is granted, but not for the grounds requested in the proposed order.
4. The appellant’s Motion to Remand for Dismissal is denied as not properly pleaded to the Court.
In Re the Welfare of A.S.
L.S., Mother/Appellant.
Case No.AP95-019, 3 CTCR 16
3 CCAR 24(2)
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant/Mother.
Steven D. Aycock, Legal Services, Colville Confederated Tribes, Nespelem WA, counsel for the minor.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Tribes.
Juvenile Court Case Number J95-14107]
Decided on February 8, 1996.
Before Presiding Justice Nelson, Justice Bonga and Justice Fry
On July 28,1995, A.S. was adjudicated a Minor-In-Need-Of-Care by Judge Mary T. Wynne. The Order of
Disposition was entered on August 31, 1995.
L.S., mother of A.S., appeals the Order of Disposition on the grounds that she has been ordered to attend a
“parenting class which is of unknown content or relevance” and to “read a book which is of unknown content or
relevance.” Other grounds for appeal are: denial of due process; lack of opportunity to introduce evidence; lack of
opportunity to controvert contents and conclusions of the pre-disposition report; lack of opportunity to examine
Court of Appeals Reporter
24
3 CCAR ___
witnesses; and lack of opportunity to be heard on her own behalf.
The Findings of Fact entered by Judge Wynne are not challenged by the appellant. The pertinent findings
are:
“4. The minor is diagnosed with type 1 diabetes mellitus with juvenile onset,
which is treatable through regular injections of insulin daily, regular periodic
testing daily for blood sugar level and regular ingestion of nutritious food.
Failure to properly utilize insulin, monitor blood sugar levels and regularly
ingest food can result in a significant rise or drop in blood sugar, leading to
organ damage, coma and/or death.
5. The minor has also been diagnosed with depression and oppositional defiance
disorder, has expressed suicidal ideation and has been treated at Pinecrest
Hospital, Coeur d’Alene, Idaho; Sacred Heart Hospital, Spokane, Washington;
and Tamarack Center, Spokane, Washington. The minor has refused to
participate in outpatient mental health therapy since she was released from the
Tamarack Center in March 1995.
6. The minor has not progressed during the last school term and was removed
from the mainstream because of behavioral problems.
7. The minor has run away from the family home as well as other placements,
including residential centers on the Colville Reservation and the home of her
maternal aunt, L.S.
8. The minor has repeatedly been away from the family home after the hour of
11:00 p.m., without the permission of her mother and not in the company of any
adult approved by her mother.
9. The minor’s mother has been unable to control the minor’s behavior, in that
the minor’s oppositional behavior has precluded academic achievement, the
minor has regularly run away from adult supervision, the minor has jeopardized
her health and actually become ill by failing to properly take her insulin
injections, monitor her blood sugar level, and/or regularly ingest appropriate
food and the minor has not participated in outpatient counseling.
10. The minor has been truant from school.”
From the Findings of Fact, the Court concluded, inter alia, that “The mother, L.S., has been unable to
provide the supervision and care necessary for the minor’s health and well-being, in that she has been unable to
control the minor’s self-destructive behavior and has been unable (to) provide regular medical attention for the
minor’s juvenile diabetes.” This conclusion is unchallenged by the appellant.
On August 8, 1995, a dispositional hearing was held wherein the Court heard the testimony and comments
of those present, among whom were L.S. and her attorney.
The Order of Disposition directed the appellant, L.S., inter alia, to “read and report on the book, Back in
Control” and to “attend ‘Parenting with Love and Logic”, a class provided through the Tribal Vocational
Rehabilitation Program.”
The Appellate Panel holds, after reviewing all assignments of error and the record herein, that the appeal of
8
the Order of Disposition is frivolous in the sense that, when reviewed in context, “there are no debatable issues
8
There is no Tribal law regarding the nature of frivolous appeals. Therefore, the Panel in accordance with CTC 4.1.11 has looked to Washington
State common law.
Court of Appeals Reporter
25
3 CCAR ___
upon which reasonable minds might differ and [that the appeal]... is so totally devoid of merit that there was no
possibility of reversal.” Streater v. White, 26 Wash.App. 430, 435, 613 P.2d 187 (1980)
9
The trial judge ordered the appellant to read Back in Control (which from its title implies regaining control
in the parent-child relationship - certainly helpful here as the court has concluded the parent lacks supervisory skills)
and attend parenting classes. These are not unusual or irrelevant orders in cases involving minors-in-need-of-care.
Therefore it is Ordered that the appeal of L.S. of the Order of Disposition entered August 31, 1994, is
Dismissed.
10
Harold PALMER Jr., Appellant,
vs.
Stan MILLARD, Chris EVANS, Lloyd FERRIER and
COLVILLE CONFEDERATED TRIBES, Appellees.
Case Number AP94-005, 2 CTCR 13, 23 ILR 6098
3 CCAR 26
[Steven D. Aycock, Legal Services, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Andrea Geiger, Office of the Reservation Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellees.
Trial Court Case Number CV91-11034]
Decided March 22, 1996.
Before Presiding Justice Collins, Justice Bonga and Justice Miles
COLLINS, P.J.
The appellant, Harold Palmer Jr. filed a Motion to Supplement the Record on May 26, 1995. On June 7,
1995, the appellees filed their Opposition to Motion to Supplement the Record. The Panel concludes that its review
in the instant matter should be confined to the file and record from the Tribal Court. Palmer cites the Panel to no
authority in support of his Motion. Nor is the Panel aware of authority under the Tribal Law which would authorize
the Court to supplement the record below with materials generated outside the Tribal Court.
Therefore, It is Ordered that the appellant’s Motion to Supplement the Record is Denied.
9
In the event reasonable minds might differ on the issues, the Panel also finds that any error of law which could possibly have been committed is
harmless. Harmless error is error which is trivial, formal, or academic. State v. Thacker, 94 Wash.2d 276, 616 P.2d 655 91980).
10
During a related hearing on December 15, 1995, the Panel announced the decision herein indicating it was based upon or analogous to the
legal maxim of de minimis non curat lex (“the law cares not for trifles”). This maxim “is often, perhaps typically, used ... to denote types of harm,
often but not always trivial, for which the courts do not think a legal remedy should be provided.” Hessel v. O’Hearn, 977 F.2d 299, 304 (7th Cir.
1992). A review of the files and records herein indicates that the maxim is not applicable at this point of the case.
Court of Appeals Reporter
26
3 CCAR ___
Harold PALMER, Appellant,
vs.
Stan MILLARD, Chris EVANS, Lloyd FERRIER, and
COLVILLE CONFEDERATED TRIBES, Appellees.
Case Number AP94-005, 2 CTCR 14, 23 ILR 6094
3 CCAR 27
[Steven D. Aycock, Legal Services, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Andrea Geiger, Office of the Reservation Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellees.
Trial Court Case Number CV91-11034]
Arguments heard June 24, 1994. Decided March 22, 1996.
Before Presiding Justice Collins, Justice Bonga and Justice Miles
COLLINS, P.J.
This appeal has come before the Appellate Panel consisting of Associate Justices David Bonga, Wanda
Miles, and Brian Collins, Associate Justice Pro-Tem. The Panel has been asked to review a decision of the Tribal
Court, Wynne, C.J., presiding, which granted the Tribes' Motion To Dismiss a civil action brought by Harold
Palmer, Jr.'s for injunction and declaratory judgment and damages.
I. FACTUAL AND PROCEDURAL BACKGROUND
The appellant asserts the following facts in this case.
11
On November 8, 1990, Palmer's three Rottweiler
dogs were taken from his fenced yard and destroyed by Animal Control Officer Millard, and Police Officers Evans
and Ferrier, all of whom were then employed by Colville Tribal Police Services.
12
Palmer alleges that the officers
were acting within their official capacities at the time of the incident.
The enclosure from which the dogs were removed consists of a chain link fence five feet high. There was
no adjudication or administrative proceeding in which the dogs were found to be vicious before they were seized
and destroyed. According to the Complaint, all three dogs were being kept for breeding purposes. Palmer also
contends that a litter of rottweilers was born prior to initiation of this action.
In his First Cause of Action, Palmer seeks damages for violation of his civil rights under the Colville Tribal
Civil Rights Act (CTCRA), Title 56. Palmer contends that his dogs were seized and disposed of without proper
administrative process, including a finding by the Tribal Court that the dogs were vicious. Palmer contends that the
appellees' actions were contrary to the Animal Control Ordinance CTC 11.3, and violated his due process and equal
protection guarantees, CTC 56.02(h). Palmer seeks monetary damages for the loss of his dogs.
In his Second Cause of Action, Palmer also seeks damages for violation of his civil rights. CTC 56.02.
Palmer contends that the rottweilers were seized and destroyed without notice and without a hearing under CTC
11.3 to determine whether they should be destroyed. He seeks monetary damages for violating his due process and
equal protection guarantees under CTC 56.02(h).
In his Third Cause of Action, Palmer seeks a declaration that the actions of the above officers violated his
11
Appellant's Complaint For Injunction, Declaratory Judgment And Damages filed February 11, 1991.
12
The record shows that on October 18, 1990, the three Rottweilers got out of the fenced yard. Subsequently, Palmer's wife was cited for a
violation of the Animal Control Ordinance, CTC 11.3.
Court of Appeals Reporter
27
3 CCAR ___
statutory civil rights under CTCRA and an injunction against the officers and the Tribes for further seizure and
destruction of dogs in a similar manner. Palmer also seeks a declaration that the officers' actions violated his due
process and equal protection guarantees in applying CTC 11.3 such that the rottweilers were seized and destroyed
when they were not in the act of damaging property or causing injury to people. Moreover, Palmer seeks to enjoin
the Tribes and the officers from applying CTC 11.3 to seize and destroy domestic animals on the Reservation in a
similar manner without notice and hearing. As part of his Third Cause of Action for declaratory and injunctive
relief, Palmer seeks monetary damages.
On August 16 1993, the Tribal Court heard a Palmer's Motion For Partial Summary Judgment and the
Tribes' Motion To Dismiss based upon the assertion that Palmer failed to state a claim upon which relief could be
granted.
13
The Tribes contend that the Tribal Court lacks jurisdiction to entertain the claim. The Tribes contended
that, at the time Palmer's dogs were seized and destroyed, the officers were performing law enforcement services
under a federal contract between the United States and the Confederated Tribes pursuant to the Indian SelfDetermination Act, 25 U.S.C. § 450 et seq. to provide law enforcement services.
Of Motion To Dismiss at 2.
15
14
Tribes' Memorandum In Support
The Tribes argued that the Tribal Court lacked jurisdiction to hear the case and that
the Tribes and officers were entitled to protections under the Federal Tort Claim Act (FTCA), 28 U.S.C. § 26712680.
The record shows at the prior to filing this matter in Tribal Court and at the time of hearing, Palmer had not
filed an administrative claim under 28 U.S.C. § 2675, which, with two exceptions, is a prerequisite to instituting a
civil suit for damages against federal employees. On February 3, 1994, the Court granted the Tribes' Motion To
Dismiss for failure to state a claim upon which relief could be granted, and Palmer timely appealed.
STANDARD OF REVIEW
This matter was dismissed on grounds which included the contents of the Complaint and additional
pleadings filed in support of the Motion To Dismiss. The Parties stipulate that appellate review should be the same
as that for summary judgment. Summary Judgment is proper when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Tribe's Response Brief at 3. Because the Tribal
Court dismissed the case below as a matter of law, we review the matter de novo. Colville Confederated Tribes v.
Naff, APCvF 9312001-12003, [2 CTCR 08, 2 CCAR 50, 22 ILR 6032] (1995).
III. DISCUSSION
A. Claims for Damages
Palmer's First, Second and part of his Third claims are tort actions for monetary damages. The exclusive
means for a plaintiff to bring a common law tort claim for damages against a federal employee acting within the
scope of his employment is through the Federal Tort Claim Act (FTCA), 28 U.S.C. §§ 2671-2680. Because the
FTCA constitutes a waiver of sovereign immunity by the United States, the notice requirements established by the
13
The Tribes' motion corresponds to a 12(b) (6) motion under FRCP 12(b) (6) for failure to state a claim. We have previously held that Federal
and State rules of civil procedure do not apply to actions brought in Tribal Court.
14
The correct citation is P.L. 101-512, Title III, § 314, 104 Stat. 1959.
15
The Tribes refer to attached contracts which were approved by the Colville Business Council. The attachments were not included as part of
the appellate file. Presumably, the contracts referred to are copies of federal-tribal Self-Determination contracts for law enforcement services in
effect on November 8, 1990.
Court of Appeals Reporter
28
3 CCAR ___
Act are strictly construed. 28 U.S.C. § 2675. Cizek v. United States, 953 F.2d 1232 (10th Cir. 1992). A jurisdictional
prerequisite for initiating a civil lawsuit under FTCA is the filing of an independent, separate administrative claim
with the appropriate federal agency for review and possible settlement. McNeil v. United States, 508 U.S. 106, 113
S.Ct. 1980, 1981-82, 124 L.Ed. 2d 21 (1993); Brady v. Smith, 686 F.2d 466 (9th Cir. 1981).
The Act provides two exceptions to the mandatory filing of an administrative claim where the federal
employee violated the United States Constitution or a statute of the United States under which an action for damages
against an individual is authorized. 28 U.S.C. § 2679(b) (2).
Tribal employees performing services under contracts authorized under the Indian Self-Determination and
Education Act, when acting within the scope of their employment, are deemed employees of the Bureau of Indian
Affairs. 25 U.S.C. § 450f, P.L. 101-512, Title III, § 314, 104 Stat. 1915, 1959. That section also provides:
After September 30, 1990, any civil action or proceeding brought hereafter
against any tribe, tribal organization, Indian contractor or tribal employee
covered by this provision shall be deemed to be an action against the United
States and will be defended by the Attorney General and be afforded the full
protection and coverage of the FTCA... (Emphasis provided)
Id. Thus, if the officers were acting within the scope of their employment at the time the described incident
occurred, each of the named defendants, including the Confederated Tribes, would be deemed as federal employees
or federal contractors. In addition, this civil action would be deemed an action against the United States.
In response to the Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), the Congress
enacted the Federal Employees Liability Reform and Tort Compensation Act. P.L. 100-694, § 6, 102 Stat. 4564, 28
U.S.C. § 2679(d) (1). The Westfall Amendment to the FTCA, in part, reinstated pre-Westfall federal employee
immunity to common law tort actions. The Act also provides for removal of actions commenced in state court to the
federal district court and substitution of the United States as defendant in cases where the federal employee acted
within the scope of his employment. The remedy is exclusive, precluding any other civil action for damages against
the federal employee. The Westfall Amendment also makes it clear that the exclusive remedy provision under the
Act does not extend to constitutional torts or to actions brought under another federal statute. 28 U.S.C. § 2679(b)
(2). See, Woods v. McGuire, 954 F.2d 388 (6th Cir. 1992) .
The appellees did not forward this matter to the United States Attorney General for a scope of employment
certification consistent with 28 U.S.C. § 2679(c). Palmer argues that the burden rests with the appellees, not the
claimant to forward the claim for a scope of employment certification, and because the appellants have not done so
they have lost FTCA immunity through substitution of the United States and removal to federal court. 28 U.S.C. §
2679(d) (1), (2). Palmer further contends that because the Appellees failed to seek a scope of employment
certification, the Tribal Court should have concluded that the Tribal officers acted within their personal capacity and
retained jurisdiction over the case.
Thus, we are faced with a situation in which, on one hand, the appellees did not seek a scope of
employment certification and on the other, Palmer did not name the United States as defendant or exhaust his
administrative remedies under § 2675. Regardless of a determination by the Attorney General that a federal
employee was acting within the scope of his employment, under the facts of this case we believe filing an
independent administrative claim remains a jurisdictional prerequisite to filing suit.
In Jackson v. United States, 789 F.Supp. 1109 (D. Colo. 1992), the court dismissed an action commenced
against a federal employee after it had been removed to federal court and the United States was substituted as
defendant. There the court held that a plaintiff cannot avoid the procedural requirements of FTCA by suing the
individual federal employee rather than the United States. The court explained that a diligent plaintiff can usually
determine whether the tortfeasor is a government employee, but not whether the attorney general will issue a scope
Court of Appeals Reporter
29
3 CCAR ___
of employment certification. "We think it would be extraordinary if a plaintiff could improve his procedural position
by bringing his action against the wrong party." Id. at 111, quoting Bradley v. United States, 856 F.2d 575, 578 (3rd
Cir. 1988), vacated on other grounds, 490 U.S. 1002, 109 S.Ct. 1634, 104 L.Ed.2d 150 (1989), on remand, 875 F.2d
65 (3rd Cir. 1989).
In the cases involving tribal employees performing services under 25 U.S.C. § 450f, the claimant must file
an administrative claim with the Bureau of Indian Affairs. Palmer did not do so prior to commencing suit in the
Tribal Court. Therefore, even it the Tribal Court had jurisdiction under the FTCA to entertain a lawsuit for damages
against the named defendants, the suit was barred by the appellant's failure to satisfy the requirements of 28 U.S.C.
S2675(a).
Moreover, the appellant's reasoning is at odds with Bencenti v. Vigil, 902 F.2d 777 (10th Cir. 1990), which
held that removal jurisdiction under 28 U.S.C. §1442(a) (1), and Sections 1441 and 1443(1) is limited to removal of
those actions commenced in state court. Following its holding in Basso v. Utah Power & Light Co., 495 F.2d 906
(10th Cir. 1974), the court held that removal jurisdiction does not extend to actions brought in tribal court. Based
upon the reasoning set forth in the seminal case of Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) at 349, the court
held that until Congress extends removal jurisdiction of Federal courts to tribal court actions, the Federal courts may
not exercise jurisdiction over them. BencentI at 780.
The appellant next argues that the officers' actions fall within an exception for FTCA in that they
committed a constitutional tort. 28 U.S.C. § 2679(b) (2) (A). Palmer contends that the officers' actions in seizing and
destroying his dogs violated Chapter CTC 11.3 and the due process and equal protection guarantees afforded under
CTC 56.02(h). While Palmer acknowledges that FTCA extends personal liability to federal employees who commit
a tortious acts in violation of the United States Constitution, he argues that the same principle should apply to
violations of his statutory civil rights under Tribal Law. Palmer also contends that violation of a tribal statute should
result in personal liability for the officers based upon a second exception to employee immunity under FTCA. 28
U.S.C. § 2679(b) (2) (B).
1. Violation of the United States Constitution
The Federal Tort Claim Act specifically excepts the requirement of filing of an independent administrative
claim with the appropriate federal agency in cases which a federal employee violates the United States Constitution.
28 U.S.C. § 2679(b) (2). In Tribal Court, federal constitutional protections extend to individual Indians only to the
extent incorporated by the Indian Civil Rights Act. Wheeler v. Swimmer, 835 F.2d 259 (10th Cir. 1987). It has long
been recognized that the United States Constitution is not binding on Indian Tribes. Talton v. Mayes, 163 U.S. 376
(1896). That fundamental principle of tribal sovereignty applies to statutes enacted by the Colville Business Council
and to the administrative process followed by tribal agencies applying the law, and to proceedings before the Tribal
Court.
We have previously held that statutory due process and equal protection guarantees under the Indian civil
Rights Act are not coextensive with similar protections afforded under the Bill of Rights. St. Peter v. Colville
Confederated Tribes, [AP93-15400, AP93-15507-10], 1 CTCR 75, [2 CCAR], 20 ILR 6108, 6109-10 (1993). As
emphasized in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), tribal forums
are available to vindicate rights created under ICRA; however, we do not read FTCA as providing a constitutional
basis for an action under the Act. The Federal courts agree. See also, Nero v. Cherokee Nation of Oklahoma, supra
at 1462.
Significantly, the Indian Self-Determination and Education Assistance Act provides:
Nothing in this Act shall be construed as...
Court of Appeals Reporter
30
3 CCAR ___
(1)affecting, modifying, diminishing, or otherwise impairing sovereign immunity from suit
enjoyed by an Indian tribe.
25 U.S.C. § 450n(1). At most, such contracts contain a limited waiver of immunity authorizing the United States to
seek indemnification against the tribe. 25 U.S.C. § 450f(c) (3) (A), (B).
In that regard, the court in Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989) observed:
A third party who is injured by a BIA agent could bring an action against the
government under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971), or the Federal Tort Claim Act. The government
could then bring a claim against the Tribe, pursuant to the Tribe-BIA contract
seeking indemnification. The Tribe, in turn, would call upon its insurer to
indemnify the Tribe for its liability to the government. At that juncture the
insurance company would be precluded from asserting that it has no duty to
indemnify the government because of tribal immunity.
Id. at 1347, n.4.
Thus, it appears that the officers and Tribes' immunity with regard to Palmer's theory of constitutional tort
requires that any such action be brought against the United States, not the individual officers and the Tribes.
Moreover, Palmer's contention that the statutory due process and equal protection guarantees under CTCRA should
be treated as a constitutional tort is contrary to the view adopted by the United States Supreme Court, which refused
to imply a third exception to FTCA employee immunity. United States v. Smith, 499 U.S. 160, 111 S.Ct. 1180, 113
L.Ed.2d 134 (1991). This view is entirely consistent with the principle that,"unlike constitutional violations, there is
no per se divestiture of sovereign immunity when statutes or regulations are violated while an agent is pursuing his
authorized duties." United States v. Yakima Tribal Court, 806 F.2d 853, 860 (9th Cir. 1986).
2. Violation Of A Federal Statute
The violation of a federal statute, standing alone, does not create a cause of action under FTCA. Federally
imposed obligations, whether general or specific, do not provide a basis for suit under the Act. Carlson v. Green,
446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Younger v. United States, 662 F.2d 580, 582 (9th Cir. 1981).
The Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303 does not abrogate tribal sovereign immunity with respect to its
due process and equal protection guarantees. Santa Clara Pueblo v. Martinez, 436 U.S. at 58. See also, Nero v.
Cherokee Nation of Oklahoma, 892 F.2d 1457, 1462-63 (10th Cir. 1989).
The appellant has not directed the Court's attention to, and the Panel is unaware of, any Federal statute
under which a civil action for damages could be maintained against the Tribes or the individual officers in Federal
court under the facts of this case. Unless there is an express waiver of the Tribes' sovereign immunity or
congressional authorization for such suit the Court is without jurisdiction. Kennerly v. United States, 721 F.2d 1252,
1258-59 (9th Cir. 1983). Moreover, the Federal courts have held that nothing within the Section 102(c) of the Indian
Self-Determination Act, 25 U.S.C. § 450n(1), constitutes a waive of tribal sovereign immunity. Evans v. McKay,
869 F.2d supra at 1347.
We conclude, as the Tribal Court did in Kiser v. Carter, et al., CV90-1282 (Colv. Tr. Ct. 1991), that the
Court lacks jurisdiction to hear Palmer's tort claims as the subject has been pre-empted by federal law.
B. CLAIM FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Palmer seeks a declaration by the Court that CTC 11.3 violates Palmer's civil rights. Palmer also seeks a
declaration that the actions of the officers violated CTC 11.3 and CTC 56.02(h) of the Tribal Law and Order Code
and to enjoin the Tribes and the officers from similar acts of seizing and destroying animals without first going
Court of Appeals Reporter
31
3 CCAR ___
through an administrative process involving the Tribal Court.
The Colville Tribal Civil Rights Act, CTC 56.03, provides a right of action, under limited circumstances,
for declaratory and/or injunctive relief against any executive officer or employee of the Colville Tribes, or any
employee or officer of any governmental agency acting within the jurisdiction of the Colville Tribal Court. The
Confederated Tribes has waived sovereign immunity for the limited purpose of seeking declaratory and injunctive
relief in connection with the due process and equal protection guarantees enumerated in CTC 56.02(h). The Tribes
immunity is not waived for purposes of seeking monetary damages. CTC 56.05. Nor does CTCRA apply to laws of
the Confederated Tribes which do not violate the rights enumerated in the act. CTC 56.06.
The Tribes argue that Palmer's request for declaratory and injunctive relief is no more than a component of
his damages claim. Tribe's Response Brief at 13. The Tribes also argue that Palmer lacks standing to challenge CTC
11.3 as applied to other persons on the Reservation. Similarly, the Tribes assert Palmer lacks standing to seek
injunctive relief because he does not allege that he owns other dogs which could be seized and destroyed in a similar
manner. However, it appears that at the time of bringing this action, Palmer owned offspring of the deceased
rottweilers.
We note that Palmer's Third Cause of Action for equitable relief is tightly inter-woven with his claim for
monetary damages and for that reason we are inclined to agree with the Tribes. However, because Palmer raises
serious questions concerning the enforceability of the Animal Control Ordinance and procedural issues concerning
the seizure of domestic animals, the Panel concludes that the issues should be addressed.
The doctrine of judicial standing requires that the person seeking relief show a direct and palpable injury.
Warth v. Selden, 422 U.S. 4990, 95 S.Ct. 2197, 45 L.Ed.2d 343, 354-56 (1975). The Panel concludes that Palmer has
standing to seek equitable relief on his own behalf.
1. Whether the Statute, as applied, Violates Palmer's Civil Rights
Palmer contends that Chapter 11.3 of the Tribal Law and Order Code violates his right to due process
because no administrative process in place under which his dogs could be declared "vicious dogs" or seized and
destroyed by the Tribes or the officers.
The appellant is correct in that Title 11.3 sets out no administrative process for a dog to come within the
definition of the term.
A "vicious dog" is any dog that when unprovoked:
inflicts bites on a human or a domestic animal either on public or private
property, or
chases or approaches a person upon the street, sidewalks, or any public grounds
in a menacing fashion or apparent attitude of attack, or any dog with a known
propensity, tendency or disposition to attack unprovoked to cause injury or
otherwise to threaten the safety of humans or domestic animals. (Emphasis
provided)
CTC 11.3.01(d) (1), (2). The statute also does not require that a procedure be promulgated through administrative
rule making or by the Tribal Court by which a dog can be declared vicious for purposes of Chapter 11.3. However,
based upon the statutory definition of the term "vicious dog", the Panel concludes that the owners of such animals
are given adequate notice as to when their dog's behavior falls within the meaning of the term. The Panel also
concludes that no formal administrative or judicial finding is required for an dog with "known propensity, tendency
or disposition to attack unprovoked" to being treated as such under CTC 11.3.
16
16
It is clear to the Panel that Palmer
In contrast with the law of some other jurisdictions which allow a dog one free bite, the Business Council's intent in dispensing with judicial
Court of Appeals Reporter
32
3 CCAR ___
was aware that Tribal officials considered his dogs to fall within the definition long before they were destroyed.
Affidavit of John Dick, Infra.
In order to lawfully keep a vicious dog within the Reservation, the owner must keep the dog in a proper
enclosure.
Proper enclosure of a vicious dog means, while on the owners property, a
vicious dog shall be securely confined indoors or in a securely enclosed and
locked pen or structure, suitable to prevent the entry of young children and
designed to prevent the animal from escaping. Such pen or structure shall have
secure sides and a secure top, and shall also provide protection from the
elements for the dog.
CTC 11.3.01(e). Thus, it is clear that the owner of a vicious dog is not only required to keep the animal securely
enclosed, but to ensure that the enclosure be designed to keep children and the unwary from entering and being
harmed.
Tribal Law is also clear that keeping a vicious dog on the Reservation is unlawful except as follows:
No person shall keep, own or possess within the boundaries of the Colville
Indian Reservation any vicious dog unless muzzled and restrained by a
substantial chain or leash and under the physical restraint of a responsible person
or confined in a proper enclosure as defined in Section 11.3.01(e) in such a way
as to prevent it from biting any human being...
CTC 11.3.04.
While Tribal law requires owners to keep vicious dogs under the most stringent statutory standards, the law
also imposes a duty upon the owner to kill their dog if it is found to have killed livestock or other domestic or game
animal. The owner must destroy the dog within 48 hours after receiving notice from the owner of stock or other
domestic animal killed or the Animal Control Authority. CTC 11.3.06. If the owner fails to timely destroy the
offending dog, the statute allows the Animal Control Authority to do so. Id.
The provisions of Chapter 11.3, when read together, show that the Business Council has little tolerance for
dogs causing personal injury or property damage. Tribal law requires that owners of offending dogs be held liable
for damages caused by their animal without proof that the dog is vicious or otherwise has a propensity for mischief.
CTC 11.3.07.
The Animal Control Authority is authorized to immediately confiscate and destroy vicious dogs not
maintained in a proper enclosure as described in CTC 11.3.01(e) or outside of such enclosure or not properly
restrained. CTC 11.3.12(c), (d). It is implicit from reading Chapter 11.3 in its entirety that Tribal law does not
recognize a property interest in vicious dogs. It is equally clear that the Tribes may exercise its regulatory authority
to protect the health, safety and welfare of the residents of the Reservation by destroying such dogs.
The facts adduced at hearing clearly show that Palmer’s rottweilers had a history of depredations on other
dogs and biting residents in the community. Palmer’s dogs had a history of creating such problems in the community
for more than two years prior to being destroyed. It also appears to the Panel that Palmer had been repeatedly
warned by Tribal Police to properly confine the animals. Palmer was waned if the dogs were not properly enclosed
or outside of an impoundment cellar, they would be destroyed. Further, it appears that Valerie Palmer complained of
police harassment with regard to the type of restraint and insurance coverage required by the police. Affidavit
Supporting Defendant’s Reply Brief - John Dick.
process for establishing that a dog has a propensity for causing harm is also reflected in CTC 11.3.07, concerning liability of owners for damages
caused by their dogs.
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The file does not show that Palmer instituted an action for equitable relief against the Tribes in response to
the above requirements. However, the record shows that during October, 1990, more than two years following the
first report that one of Palmer’s dogs bit a member of the community, and after being repeatedly warned to properly
confine the dogs, the rottweilers again escaped from Palmer’s property. The five foot chain link fence on Palmer’s
property was not a suitable barrier to confine Palmer’s dogs. Palmer’s fenced yard also did not comply with the
requirements of a “proper enclosure” for a vicious dog. CTC 11.3.01(e).
The Panel concludes, under the facts of this case, and under CTC 11.3.12 and CTC 11.3.01(e), the
appellants did not violate CTC 11.3 by destroying Palmer’s dogs without additional notice and an administrative or
judicial hearing. We further conclude that Palmer maintained no protectable property interest in his dogs which were
not kept or owned in compliance with the above statutory requirements.
The Panel rejects Palmer’s argument that CTC 11.3 is not enforceable with regard to its application to the
facts of this case. This is not a case in which the owner is being cited for basic licensing of a dog and no dog licenses
are issued by the Tribes. The Panel further concludes that CTC 11.3 does not violate Palmer’s right to due process
and equal protection under CTC 56.02(h). In reviewing the facts contained in the record below, we conclude that
Palmer had a statutory notice of the requirements to maintain such dogs on the Reservation and failed to comply
with them.
For the reasons stated above, it is hereby ordered that the Tribal Court’s order dismissing the instant case is
affirmed.
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3 CCAR ___
Gary WATERS, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP94-012, 2 CTCR 19, 23, ILR 6120
3 CCAR 35
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Wayne Svaren, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 94-17005]
Arguments heard March 25, 1995. Decided May 20, 1996.
Before Presiding Justice Baker, Justice Bonga and Justice Miles
BAKER, P.J.
Gary Waters appeals from a Judgment and Sentence entered pursuant to a jury verdict rendered March 10,
1994, finding him guilty of battery in violation of CTC 5.1.04. The charges arose out of an incident alleged to have
occurred January 1, 1994.
The defendant assigns error to the Tribal Court's denial of his motion for a mistrial arising out of what he
asserts were three instances of prosecutorial misconduct. He also assigns error to the Tribal Court's allowance of a
witness whom he submits the Tribes called for the primary purpose of impeaching her. We agree with each
assignment of error and, accordingly, reverse the defendant's conviction and remand to the Tribal Court for a new
trial.
PROCEDURAL BACKGROUND
Defendant Gary Waters was arrested as a result of an incident which came to the attention of the Colville
Tribal Police on January 1, 1994. The police were dispatched to a HUD home in Nespelem as a result of a call from
a different Nespelem location, evidently initiated by one T.J. Flett who was, however, not the caller. The incident
resulted in the filing of a charge of battery, alleged to have been committed by the defendant against his girlfriend,
Jackie LaFountaine.
The defendant was tried by a jury on March 10, 1994. During testimony of the Tribes' first witness, a police
officer, the Court ruled that a written statement and oral statements offered by the Tribes and purported to be those
of Defendant's girlfriend, Jackie LaFountaine, were inadmissible hearsay. The Tribes' prosecuting attorney
attempted, on ten (10) subsequent occasions during his case-in-chief, each of which was in the presence of the jury,
to introduce either the written or one or more of the oral statements of Ms. LaFountaine. The Trial Court sustained
defense objections each time but denied a defense motion for mistrial.
Also in its case-in-chief, the Tribes' prosecuting attorney called Jackie LaFountaine as a witness and, after
eliciting from her the testimony that she did not recall the evening well, that she had signed a statement, but that she
could not vouch for its accuracy, attempted to introduce through her a copy of the written statement. A defense
objection on hearsay was once again sustained, but, over the defendant's objection, the prosecuting attorney was
allowed to impeach Ms. LaFountaine by asking her whether she remembered being hit and her foot "stomped" on by
Defendant, to which she responded in the negative.
Through subsequent testimony by police officers, the Tribes' prosecuting attorney was allowed--again over
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35
3 CCAR ___
defense objections--to introduce the substance of the prior statements of Jackie LaFountaine as impeachment of her
in-court denials of the events described in her statements. All argument as to the admissibility and purpose of this
testimony occurred fully in the presence of the jury.
During closing argument, the prosecuting attorney mischaracterized the defendant's closing argument as
claiming that the evidence of an injury to Ms. LaFountaine "came from police officers who he [defense counsel]
tells you lied about everything else." Defense counsel objected and, outside the jury's presence, again moved for a
mistrial. Whereas at oral argument on appeal the prosecuting attorney conceded that his closing argument
mischaracterized defense counsel's position on closing argument, at trial, he went so far as to request a "curative
instruction" -- not as to his mischaracterization, which he at the time denied having made, but as to what he called
defense counsel's "outburst" in response to it. While the Court denied the prosecuting attorney's request, it issued a
mild curative instruction as to the mischaracterization, in spite of finding that to do so would call undue attention to
the problem, and the Court denied the defendant's motion for a mistrial. Instead, the Court, in addition to issuing a
brief curative instruction to the jury, employed its own rather unorthodox solution: allowing the defendant's counsel
to have the last word on closing argument. In doing so, the Court found that the prosecutor's mischaracterization did
not "rise to the level of prosecutorial misconduct."
Also in his closing argument, the prosecuting attorney, in spite of the Court's apparent intent to limit
LaFountaine's prior statements to the purpose of impeachment,
17
the prosecuting attorney argued in closing that "it
would appear from the testimony at the time and the testimony today by Mr. Waters" that Mr. Waters was not in
danger and that "from the testimony of the officers concerning what they were told that night and the statements as
they were given to the officers and as the witnesses said they gave them to the officers" that the defendant's selfdefense argument should fail. The defendant, however, failed to object to the Tribes' usage of this testimony,
although he assigns error to it on appeal.
ASSIGNMENTS OF ERROR
The defendant's remaining assignments of error,
18
in a somewhat different order than presented by
defendant, are as follows:
1. That the Tribes engaged in prosecutorial misconduct by repeatedly seeking to introduce testimony
previously ruled to be inadmissible hearsay.
2. That the Tribes called Jackie LaFountaine primarily for the improper purpose of impeaching her, and
that the Court should thus have disallowed her testimony altogether.
3. That the Tribes engaged in prosecutorial misconduct in its closing argument in referring to evidence
admitted solely for impeachment as if it were substantive evidence.
4. That the Tribes engaged in prosecutorial misconduct in mischaracterizing Defendant's closing argument
as claiming the police officers were lying.
Based on these assignments of error, the defendant submits he was denied a fair trial.
17
It should be noted that the Court gave no instruction to the jury as to the impeachment limitation, although this was its apparent reason for
allowing the testimony in. Nor does the record reveal that a limiting instruction was requested by Defendant. The absence of a limiting instruction
contributes to our conclusion in this appeal.
18
The defendant, in his opening brief, withdrew other assignments of error advanced in his Notice of Appeal.
Court of Appeals Reporter
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3 CCAR ___
SUMMARY OF DECISION
We conclude that it constituted prosecutorial misconduct for the Tribes' prosecuting attorney to have
attempted repeatedly to introduce testimony he knew was inadmissible hearsay. We conclude 'that Jackie
LaFountaine was quite clearly called by the Tribes for the improper purpose of impeaching her. We also conclude -though we do so in dicta, since the defendant did not properly preserve this issue for appeal -- that the Tribes
engaged in prosecutorial misconduct in referring, in its closing argument, to evidence admitted for the limited
purpose of impeachment as if it had been substantive evidence. And we conclude that the Tribes'
mischaracterization of Defendant's closing argument also constituted prosecutorial misconduct. We, finally,
conclude that, while if committed alone some of these irregularities might have been harmless error, their
cumulative effect was of a denial of Defendant's right to a fair trial in that the jury was allowed -- indeed,
encouraged by the Tribes' prosecuting attorney -- to rely on inadmissible hearsay and/or impeachment testimony in
finding Defendant guilty as charged. We further conclude that, in repeatedly allowing the bulk of the argument and
colloquy as to the reasons for admission or exclusion of the hearsay and impeachment evidence to occur in the
presence of the jury, the Court compounded the effect of the prosecuting attorney's misconduct and thus denied
Defendant a fair trial.
We, accordingly, reverse and remand to the Tribal Court for a new trial in accordance with this opinion.
DISCUSSION
A. Repeated Attempts to Introduce Evidence Already Ruled Inadmissible Hearsay Constituted Prosecutorial
Misconduct.
Defendant's Assignment of Error No. 2 submits that the prosecuting attorney's repeated attempts to
introduce the hearsay statements of Defendant's girlfriend, Jackie LaFountaine, made on the night of Defendant's
arrest, were offered with the knowledge of their inadmissibility with the design of unfairly prejudicing the
defendant; thus they not only constituted prosecutorial misconduct, but also provided grounds for a mistrial.
We begin our analysis of this issue by first noting that the Trial Court's sustaining of Defendant's hearsay
objection is conceded by the Tribes to have been correct under Federal Rule of Evidence 801(c).
19
The Colville
Tribal Code's express provision on the parameters of allowable evidence in criminal trials seems to grant
considerable latitude to the Tribal Court in admitting and excluding evidence. Specifically, CTC 2.6.02 provides:
2.6.02 Evidence
The court shall not be bound by common law rules of evidence, but shall use its
own discretion as to what evidence it deems necessary and relevant to the charge
and the defense.
Yet the code also requires the charge to be proven beyond a reasonable doubt and that the defendant be "afforded a
full opportunity to present his defense." CTC 2.6.03. This "Trial Procedures" Chapter of the "Criminal Actions"
Title of the Code goes on to say, in CTC 2.6.08, that "[a]ll additional procedures set out in this Code will be
19
We note that, in any event, the Tribes has neither appealed the Trial Court's hearsay ruling nor found fault with it in its brief. This is in spite of
the reference in its brief to CTC 1.6.03(5), the Spokesman's Oath, implying that there was a good faith argument for offering the evidence.
Court of Appeals Reporter
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3 CCAR ___
followed in any criminal action to the extent that they are applicable.”
Of course, nowhere in the Code has the Tribal Business Council expressly adopted any established body of
evidence rules, and the only Rules of Court set forth in the Code are in Chapter 4, which sets forth only 27 quite
generalized provisions touching on such matters as "Conduct" (CTC 8.1.01), “Time” (CTC 0.1.02), "Criminal/Civil
Recording Tape Retention" (CTC 4.1.12), "Impanelling the Jury" (CTC 0.2.01), "Jury Instructions" (CTC 4.3.01 .05), "Appeal" (CTC 0.3.0S), and the like. Only two of Title 4's provisions might provide any guidance on matters of
evidence. One of these is found at CTC 4.1.11, "Applicable Law”, which reads as follows:
In all cases the Court shall apply, in the following order of priority unless
superseded by a specific section of the Law and Order Code, any applicable
laws of the Colville Confederated Tribes, tribal case law, state common law,
federal statutes, federal common law and international law.
We have noted previously the conflict of the wording of the above section with that of CTC 3.4.03, also entitled
"Applicable Law," but contained in Chapter 3.4 which is entitled "Civil Procedure." It reads:
In all civil cases the Court shall apply, ill the following order of priority, any
applicable laws of the Colville Confederated Tribes, tribal case law, tribal
customs, state statute, state common law, federal statues [sic.l, and federal
custom [sic.] law, and international law.
As a reviewing court, we cannot help but wonder whether the Civil Procedure "Applicable Law" section,
CTC 3.4.03, was merely overlooked or was actually purposely ignored in the Tribal Business Council's year-later
adoption of CTC 4.1.11, since the latter section omits any reference to "tribal customs" or "state statute, although the
remaining list of priorities, including, curiously, "state common law”, is identical in terms of its order of
preference.
20
Yet, unfortunately, nowhere in these "Applicable Law" sections are "rules of court, whether federal or State
of Washington rules, listed. At the same time, it is apparent from the record that the entire trial in the Tribal Court
was conducted as if the Federal Rules of Evidence were the governing principles on the issue of evidence or at least
on the two issues of hearsay and impeachment. This is in spite of the expression by this Court, in Condon v. CCT,
No. AP92-15313, [1 CTCR 71, 1 CCAR 70, 20 ILR 6107], that another body of federal court rules, specifically, the
Federal Rules of Criminal Procedure, are not controlling in this court system. Rather, as we held in Condon, this
Court must review the proceedings below in light of whether the Tribal Court provided "adequate constitutional
safeguards to fair process within the framework of the Indian Civil Rights Act, 25 U.S.C. §1301 et seq.[,] and the
Colville Tribal Civil Rights Act, Title 56.02." Condon v. CCT, supra, at 5.
We note that the hearsay rule has some basis, at least in the criminal arena, in the Confrontation Clause of
the U.S. Constitution, adopted by Congress in analogous form and made applicable to Indian Tribes as the Indian
Civil Rights Act, and by the Tribal Business Council as the Colville Tribal Civil Rights Act, CTC Title 56, both of
which Acts, as concluded by this Court in Condon. supra, control, where applicable, the operations of the Colville
20
This assumes that the reference in CTC 3.4.03 to "federal statues" means "federal statutes" and that the reference to "federal custom law" must
mean "federal common law"; however, we are certain all Tribal Court practitioners would welcome a clarification of these points by the Tribal
Business Council itself, since we can think of no reason why these two sections should read differently, although they certainly do.
Court of Appeals Reporter
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3 CCAR ___
Tribal Court. Indeed, a section in Title 2, namely, CTC 2.6.09, entitled "Civil Rights," expressly provides that "[a]lI
accused persons shall be guaranteed all civil rights secured under the Tribal Constitution and federal laws
specifically applicable to Indian tribal courts." The language of CTC 56.02 (f) and (h) guarantee the right of
confrontation of witnesses and the right to due process by providing:
CTC 56.02 Civil Rights of Persons Within Tribal Jurisdiction
The Confederated Tribes of the Colville Reservation in exercising powers of
self-government shall not:
(f) deny to any person in a criminal proceeding the right to be confronted with
the witnesses against him ; [or]
(h) deprive any person of liberty or property without due process of law
We conclude that, at least pertaining to the questions presented here as to the admissibility of hearsay and
impeachment evidence in Tribal Court criminal proceedings, the Federal Rules of Evidence, and the federal case law
interpreting them, are the current law of the Colville Confederated Tribes. We reach this conclusion in part because
we detect from the Tribal Business Council an apparent disapproval of state law analogies in directing us, in effect,
to ignore state statute, and then to apply "state common law, federal statutes, and federal common law," in that order
(CTC 4.1.11). Then, we note that, certainly, "state common law" as to matters of evidence has been all but overruled
by the adoption in recent years of the Washington Rules of Evidence, although there is now some state case (i.e.,
common) law interpreting these rules, which in many cases have simply codified their common law predecessor
principles. Yet, since there are no "federal statutes" applicable to the issues of hearsay and impeachment, and since
the "federal common law" has also been superseded by the Federal Rules of Evidence, our choice of the federal
version of the Rules of Evidence is admittedly based upon the sketchiest of guidance in the language of the Colville
Tribal Code itself. Still, we believe that, at least as to the questions presented in this appeal, which involve the
hearsay rule and its exceptions, and the use of impeachment testimony, the Federal Rules of Evidence and its case
21
law progeny should be the guiding principles for our analysis .
That said, the statements of Ms. LaFountaine which the Tribes sought to introduce were clearly
"statement[s] other than one made by the declarant while testifying at the trial
... offered as evidence to prove the
truth of the matter asserted," and thus hearsay. FRE 801(c). Nor is any federal hearsay exception advanced by the
Tribes at trial applicable to the statements in question, and, as we have stated, supra, the Tribal Court correctly ruled
the statements inadmissible. See FRE 801(d)(l), 803(1), and 803(3) as to the arguments advanced by the Tribes at
trial, rejected by the Tribal Court, and conceded by the Tribes on appeal. Otherwise stated in terms of the
confrontation clause and CTC 56.02 (f), Defendant asserts that the allowance of the hearsay statements effectively
denied the defendant the right to confrontation of Ms. LaFountaine, because of the out-of-court context of the
statements offered. The question, then, becomes: Were the prosecuting attorney's ten (10) additional attempts to
introduce the statements -- citing the identical grounds which had initially been found lacking by the Trial Court,
with all ten (10) attempts and the resulting argument occurring in the presence of the jury -- designed to prejudice
21
This is not to say that this Court would not welcome the express adoption, by the Tribal Business Council or the Court itself, of a uniform set
of court rules, even if it involved simply the wholesale adoption of the FRCP, FRCrP, and/or FRE. One thing is for certain: Our admittedly
strained interpretation of CTC 4.I.11 leads us to note how difficult it is to conduct the business of the court without a definitive set of rules on the
important topic of evidence, and on other topics as well.
Court of Appeals Reporter
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3 CCAR ___
the jury and thus deny Defendant due process of law in violation of CTC 56.02(h)?
We believe the prosecuting attorney's conduct, under the circumstances of this case, is susceptible to no
other interpretation. Our conclusion is reached because of the repeated nature of the misconduct, as illustrated by the
following excerpt from the prosecutor's direct examination of Colville Tribal Police Corporal Richard Hamilton,
after the Court had already ruled inadmissible the Corporal's proffered testimony as to oral statements made by Ms.
LaFountaine to him on the night of Defendant's arrest:
Mr. Svaren:
Corporal, do you, in fact, recognize that document that's before you?
Corporal Hamilton:
Yes, I do.
Q.
How do you recognize it?
A.
It was a document that I--a statement that I took from
Jackie LaFountaine the day of the incident.
Q.
Does that document bear any signatures'?
A.
Yes, it does.
Q.
Whose?
A.
My signature, and Jackie LaFountaine's signature.
Q.
And did you witness Ms. LaFountaine sign this
document'?
A.
Yes, I did.
Mr. Svaren:
Your Honor, the Tribes offer plaintiff's Exhibit Number 1 into evidence.
The Court:
Any objection?
Mr. Rasmussen: Yes, Your Honor, the document is, is hearsay; it's Ms. LaFountaine's statement taken
sometime after the previous hearsay which you've already excluded. Additionally, at
pretrial in this matter, the prosecution said they would not offer any physical or
documentary evidence, so for that reason it also should not be admitted. But especially in
this case because it is hearsay.
Mr. Svaren:
Your Honor, may the counsel approach the bench, please? In chambers,
actually--
The Court:
22
Just a second, please; just a second. My notes of the pretrial indicate that what
he's saying is true. Do you have any arguments that you want to make in
response to his objection?
Mr. Svaren:
Yes, Your Honor. My notes indicate that the question was never asked whether
the--by the defense--whether or not there would be documentary evidence
introduced. And that the Tribes did not make any statement about what evidence
would be introduced.
22
The prosecuting attorney seems here to have been attempting to conduct the argument on the evidentiary point outside the presence of the
jury; however, a close review of the record suggests he may have desired the discussion of his noncompliance with pretrial hearing
representations to occur outside the jury's presence. Nevertheless, the record is unmistakable in that his later, repeated attempts to introduce the
hearsay were presented with the distinct flavor of grandstanding. Still, it must be emphasized that it is, in the end, the court's duty to assure a fair
trial by not only making the technically correct ruling, as was done here, but also by sparing the jury of the nearly inescapable notion that the
objecting party is trying to hide something by raising an objection. Unfortunately, the Tribal Court in conducting this trial allowed numerous
discussions to take place in open court in full view of the jury when these discussions should assuredly have been conducted outside their
presence. The result of the prosecutor's conduct, and of the court's allowance of it, was unfair prejudice to this defendant.
Court of Appeals Reporter
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3 CCAR ___
The Court:
Is that your only response to his objection?
Mr. Svaren:
That's my response to his objection about the pretrial conference, Your Honor,
and I would ask that the Court issue a curative instructive statement to the jury
that there was no such statement made by the plaintiff at pretrial. As to the
statement, Your Honor?
The Court:
Just a second. The Court won't grant a curative instruction, and do you have any
other response to his hearsay objection?
Mr. Svaren:
Yes, I do, Your Honor. The statement, once again, is the present sense
impression and the existing mental, emotional, and physical condition of that
declarant at that time, signed off on by her and therefore authenticated, and
passing both authenticity, best evidence and hearsay exception rules.
The Court:
The Court is going to sustain the objection.
The above colloquy, as we have noted, took place entirely in the presence of the jury.
23
Key to our analysis
is the point that the Tribes' purported grounds for the evidence's introduction were identical to the grounds stated in
conjunction with the Court's previous ruling excluding the testimony. After his ninth attempt to introduce the written
or oral statements of Ms. LaFountaine, the prosecuting attorney was admonished by the Court to desist from further
attempts to introduce the hearsay. Yet a tenth attempt was made, and the question was withdrawn before an answer
was given by the witness. And the prosecuting attorney went so far as to call attention to the unadmitted written
statement of Jackie LaFountaine as Corporal Hamilton left the courtroom; this, again, occurred in the presence of the
jury.
This behavior constituted prosecutorial misconduct, and the sheer redundancy of the prosecutor's attempts
was enough to prejudice the defendant unfairly and to entitle him to a new trial, as our discussion, infra,
demonstrates.
Once again we note that, on appeal, the Tribes "offers no plausible rationale for the admission of [the
excluded] evidence." State v. Pemberton, 796 P.2d 80, 83 (Hawaii 1990). Indeed, the Tribes, on appeal, offers no
rationale whatsoever. In Pemberton, the court noted:
Defendant alleges numerous acts of misconduct. We find that a number of these
acts, while not individually sufficient to warrant reversal, cumulatively
prejudiced Defendant to the extent of denying him a fair trial. The trial court
was continuously forced to sustain objections by defense counsel due to the
prosecutor's repeated attempts to bring inadmissible evidence to the jury's
attention ....
23
We cannot avoid emphasizing that much of the prejudice to the defendant could have been avoided had the Court conducted its consideration
of the parties' arguments outside the presence of the jury. Indeed, the admissibility of the LaFountaine statements could have been determined
during a hearing on a defense motion in limine, had one been made. In fairness to defense counsel, however, it should be noted that he should
have the right to rely on pretrial representations of the prosecuting attorney, who, the Trial Court evidently found, had indicated that there would
be no documentary evidence offered at trial on behalf of the Tribes. Perhaps the use of the out-of-court written or oral statements of Ms.
LaFountaine would seem to be such an elementary example of the applicability of the rule against hearsay that it is understandable that the
prosecution's attempts to introduce them would not be anticipated by defense counsel. Still, this case illustrates how much trouble can be avoided
by the use of the motion and hearing in limine. At a minimum, though, the Court should have excused the jury from the courtroom during the
colloquy on the hearsay objection, thereby avoiding the inadvertent or purposeful inference that the defense had something to hide by objecting to
the out-of-court statements.
Court of Appeals Reporter
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3 CCAR ___
796 P.2d at 83-84. The facts at bar are indistinguishable, at least in principle. The Tribes' prosecuting attorney
attempted a total of eleven (11) times to introduce inadmissible hearsay; ten (10) were after the Court had ruled
against the Tribes on its first attempt, After the defendant's first objection was sustained, the prosecuting attorney
should have desisted from further attempts to introduce the evidence. Instead, the Tribal Court "was continuously
forced to sustain objections by defense counsel" due to these attempts, id. What is worse, after the tenth objection,
the prosecutor persisted in yet another attempt after being specifically admonished by the court to quit. This was
similar to the occurrences at the trial court level in State v. McLeod, 740 P.2d 672 (Mont. 1987), where, as here, 'the
defendant argued that "by repeatedly forcing his counsel to object to questions about [inadmissible evidence], the
county attorney led the jury to believe that he had much to hide, denying him a fair trial.” 760 P. 2d at 672. Despite
the Tribes' argument in its brief that McLeod is distinguishable because it involved a "multitude" of sustained
objections to the same inadmissible evidence, we follow the reasoning of McLeod and of Pemberton in holding that
the defendant was effectively denied a fair trial due to this prosecutorial misconducts Otherwise stated, ten attempts
to introduce inadmissible evidence after a court's ruling excluding it are enough of a "multitude" to meet McLeod's
test.
B. The Tribal Court Erred in Allowing the Tribes to Call Jackie LaFountaine as a Witness, Since the
Prosecuting Attorney's Sole Purpose in Doing So Was to Impeach Her Testimony.
The Tribes called its first police officer witness before calling Jackie LaFountaine. The prosecuting
attorney, as previously described, repeatedly tried to introduce through this first officer witness the substance of
what Ms. LaFountaine had allegedly said on the night Defendant was arrested, through each and every witness.
Then, when Ms. LaFountaine took the stand, she was not asked what happened on the night in question. Instead, she
was asked if she recalled what she had, at the time, stated had happened. The Court sustained another hearsay
objection.
The record makes it clear that the prosecuting attorney knew that Ms. LaFountaine was going to testify that
she had no recollection of the events of January 1, 1994. Yet the Tribes sought to introduce the version of the facts
which she had alleged occurred on the night itself. This was attempted not just through Ms. LaFountaine herself but
through other witnesses who were then called to "impeach" her lack of recollection.
Using our previous analysis, we look to the Federal Rules of Evidence and its progeny in formulating a rule
on the propriety of calling a witness whom one seeks primarily to impeach, so as to get in otherwise inadmissible
hearsay through the "back door”, so to speak. As we have stated previously, the hearsay rule makes inadmissible
out-of-court statements offered to prove the truth of the matters stated. FRE 801(c). Thus, Ms. LaFountaine’s
statements made on the night of the alleged incident, being out-of-court statements, offered to prove the truth of
what she stated then, are hearsay and inadmissible. If, however, Ms. LaFountaine had testified that completely
different events had occurred, the prosecuting attorney would have been allowed to bring up her prior inconsistent
statement in order to impeach her credibility. FRE (801)(d)(1).
Such was not the case here, however. Ms. LaFountaine simply stated that, due to her intoxicated state at the
time, she had no clear recollection of the events or, for that matter, of what she told the officers had occurred at the
time. She went on to say that she could not be sure what she said to the officers was true because she could well
Court of Appeals Reporter
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3 CCAR ___
have been speaking out of anger at the time.
24
In short it was apparent from the outset of Ms. LaFountaine's
testimony that the prosecuting attorney knew before she took the stand that Ms. LaFountaine would testify as she
did.
The defendant asserted that the Tribes' presentation of this otherwise inadmissible hearsay was a ploy to get
improper evidence to the jury. His objection was overruled, and not only was the prosecuting attorney allowed to
bring in, through Ms. LaFountaine, specific statements she had made to the officers in question; but also, the Tribes
proceeded to call other witnesses, including one officer, Charles Dunne, who testified at length to the details of Ms.
LaFountaine's statements, both oral and written, made on the night of Defendant's arrest.
FRE 607 does provide that "the credibility of a witness may, be attacked by any party, including the party
calling him." Moreover, it is true that “a prior inconsistent statement of the witness may be admitted to attack his
credibility even if the statement tends to directly inculpate the defendant." (Citations omitted.) United States v.
Hogan, 763 F.2d 697, 702 (5th Cir., 1985). See also FRE 801(d)(1). A corollary to this rule, however, is the caveat
that "the prosecutor may not use such a statement under the guise of impeachment for the primary purpose of
placing before the jury substantive evidence which is not otherwise admissible. United States v. Miller, 664 F.2d 94,
97, (5th Cir., 1981), cert. denied, 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 106 (1982) (emphasis in original). All the
federal circuit courts to consider the issue have ruled likewise. See, e.g., Kuhn v. United States, 24 F.2d 910, 913,
cert. denied, 278 U.S. 605, 49 S.Ct. 11, 73 L.Ed. 533 (1928).
The Tribes called Jackie LaFountaine "solely to present otherwise inadmissible hearsay testimony to the
jury under the guise of impeachment," United States v. Hogan, supra, 763 F.2d at 701. The Tribes "may not call a
witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony,
for such a scheme merely serves as a subterfuge to avoid the hearsay rule." Hogan, at 701. This "'straw man' ploy"
(Hogan, at 702) succeeded, resulting in a conviction in the case at bar; in the process, the defendant was deprived of
a fair trial.
C. The Prosecuting Attorney's References to Impeachment Testimony as if It Had Been Introduced as
Substantive Evidence Compounded the Error of Its Improper Admission.
Our ruling as to the improper admission of the hearsay statements of Ms. LaFountaine would lead us to
consider favorably the defendant's next assignment of error. However, Defendant made no objection at trial to the
prosecuting attorney's argument in closing that “it would appear from the testimony at the time and the testimony
today by Mr. Waters" and "from the testimony of the officers concerning what they were told that night and the
statements as they were given to the officers and as the witnesses said they gave them to the officers” that the
defendant's self-defense argument should fail.
While this issue was not properly preserved for appeal because it was not objected to, we feel it important
to give our analysis of the concern it presents on retrial of this case.
Once again we note that, even had the testimony been properly admitted for the purpose of impeachment,
the defendant should have requested a limiting instruction, and the Court should have instructed the jury as to the
limitation to be applied to the testimony. This was not done. And the prosecuting attorney's remarks -- slip of the
24
For this same reason, we note, the statement could not have come in under FRE 803(5) as a "recorded recollection,
requires that the witness be able to vouch for the statement's accuracy at the time it was made.
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because that rule
3 CCAR ___
tongue or not -- could have served only to further the error of admitting the testimony. As the Second Circuit Court
of Appeals stated in United States v. Richter, 826 F.2d 206 (2d Cir., 1987):
Although the inherent controversial nature of litigation permits substantial
latitude in closing arguments of counsel, the prosecutor in a criminal case has a
"special duty not to mislead.., and should not deliberately misstate the evidence.
(Citations omitted.) 826 F.2d at 209. We find that the Tribes' prosecuting attorney deliberately used testimony
limited to impeachment purposes as if it were substantive proof of the matters stated. As such, compounding as it
did the Court's error in admitting the evidence in the first place, this misconduct cannot be said to have resulted in
harmless error.
D. The Tribes Engaged in Prosecutorial Misconduct in Mischaracterizing Defense Counsel’s Closing
Argument as Claiming the Police Officers "Lied."
During his closing argument the prosecuting attorney argued to the jury that the evidence for Ms.
LaFountaine's injury "came from three police officers who he [defense counsel] tells you lied to you about
everything else." Defendant objected 'to the mischaracterization of his argument and, stating he did not "see any way
of curing" the problem created by the mischaracterization, moved for a mistrial. Ruling that the argument did not
"rise to the level of prosecutorial misconduct," the Court declined to grant the defendant’s motion for mistrial,
though ultimately it issued a rather vague curative instruction. The Court also allowed defense counsel to make a
supplemental closing argument to clarify that he did not claim the police officers were lying.
First, it should be noted that the prosecuting attorney's argument did, in fact, mischaracterize the
defendant’s argument. Far from questioning the officers' credibility, defense counsel simply questioned the accuracy
of what Ms. LaFountaine told them on the night in question as being influenced by her anger and misplaced blame.
But even if the defense had attacked the credibility of the police officers, it would still have been prosecutorial
misconduct to have pitted the officers' credibility against the defendant's in his closing argument. As the court stated
in United States v. Richter, 826 F.2d 206 (2d Cir , 1987), in reversing the conviction of a defendant because the
prosecuting attorney submitted in closing argument that the defendant could not be telling the truth unless the
government agents committed perjury:
[P]rosecutors have been admonished time and again to avoid statements to the
effect that, if the defendant is innocent, government agents must by lying.
(Citations omitted.) The prosecutor's comments in the instant case are strikingly
similar to those that were condemned in People v. Yant, 75 A.D.2d 653, 427
N.Y.S.2d 270 (1980) (mem,), There, the court found error in the prosecutor's
"statements on summation to the effect that, in order to acquit defendant, the
jury would have to find that the officers had committed perjury and risked their
careers which totaled over 30 years of service." Id. at 654, 427 N.Y.S. 270. See
also People v. lngram, 09 A.D.2d 865, 370 N.Y.S.2d 327 (1975) (mem.) ("the
prosecutor improperly argued in summation that an acquittal would be
tantamount to a finding that the police officers who testified for the People were
guilty of perjury.").
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826 F.2d at 209-210.
Nor is State of Washington common (case) law silent on this subject. (See CTC 4.1.11.) In State v. Stith, 71
Wn.App. 14 (Div. I, 1993), the prosecuting attorney had remarked in closing argument that the defense counsel was
"asking you to call the officers liars; that they planted the drugs; that they
fabricated this whole thing; ... lied; that this didn’t happen, that somehow these
officers are willing to just impugn their integrity, risk incredible consequences
by acting in a way that's illegal and is offensive ....”
71 Wn.App. at 17. Citing State v. Stover, 67 Wn.App. 228, 834 P.2d 671 (1992), review denied, 120 Wn.2d 1025
(1993), State v. Barrow, 59 Wn.App. 869, 809 P.2d 209, review denied, 118 Wn.2d 1007 (1991), and State v.
Casteneda-Perez, 61 Wn.2d 354, 810 P.2d 74, review denied, 118 Wn.2d 1007 (1991), the court in Stith said:
This court has previously determined, and the State concedes, that cross
examination or comments in closing argument which seek to compare the
honesty of the defendant with law enforcement officials or comments which
express a personal opinion of witness veracity are improper.
(Citations omitted.) 71 Wn.App. at 19.
The objection and motion for mistrial in the Tribal Court were met with a finding by the Court that the
argument did not "rise to the level of prosecutorial misconduct." This finding was in error, as the remarks made
during argument were, indeed, prosecutorial misconduct. As quoted with approval in State v. Reed, 102 Wn.2d 140,
684 P.2d 699 (1984), the New York court in People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497, 46 L.R.A. 641
(1899), gave the following description of the prosecuting attorney's role:
Language which might be permitted to counsel in summing up a civil action
cannot with propriety be used by a public prosecutor, who is a quasi-judicial
officer, representing the People of the state, and presumed to act impartially in
the interest only of justice. If he lays aside the impartiality that should
characterize his official action to become a heated partisan, and by vituperation
of the prisoner and appeals to prejudice seeks to secure a conviction at all
hazards, he ceases to properly represent the public interest, which demands no
victim, and asks no conviction through the aid of passion, sympathy or
resentment.
102 Wn.2d at 146-147. In the case at bar, the Court did ultimately issue a curative instruction to the jury to
"disregard the comment by Mr. Svaren -- regarding Mr. Rasmussen saying that the three officers lied." The Court
then applied a rather novel solution of letting defense counsel have another round of argument. We find that this
action may have cured the error had the misconduct been a single, isolated instance. Occurring as it did here, as one
of numerous attempts to distort and misuse the evidence, its proper remedy was in this case to declare a mistrial.
In other words, because of the other incidents of prosecutorial misconduct, which we have found denied
Defendant a fair trial, we need not determine whether the court’s single action in failing to grant a mistrial on this
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basis constituted, of itself, reversible error. We can say, however, that the record reflects that this instance of
prosecutorial misconduct alone may well have affected the outcome of the trial, and we think it important that the
mistake not be repeated by prosecutors in future criminal trials in this court system.
SUMMARY
The defendant was denied a fair trial by the actions of the Tribes' prosecuting attorney, who was guilty of
prosecutorial misconduct in repeatedly seeking to introduce testimony previously ruled to be inadmissible. The
Court erred in allowing in the testimony of Jackie LaFountaine, when the primary purpose for calling her as a
witness was to admit improper hearsay through the ploy of impeachment. We note in passing that the error was
compounded when the prosecuting attorney again committed misconduct by treating the impeachment testimony as
if it were substantive evidence in his closing argument. And, the prosecuting attorney's mischaracterization of
Defendant's closing argument as claiming the police officers "lied" was prosecutorial misconduct which should have
resulted, under the egregious circumstances of this case, in a mistrial.
For all of the above reasons, and particularly because of the cumulative effect of the errors, the defendant
was denied a fair trial .
The defendant's conviction is, therefore, Reversed and the case Remanded for a new trial.
Leann HARGRAVE, Appellant,
vs.
Richard W. BURRIS, Appellee.
Case Number AP96-002, 2 CTCR 61
3 CCAR 47
[Leann Hargrave, Appellant, pro se.
Stephen L. Palmberg, Attorney at Law, Grand Coulee, Washington, counsel for Appellee.
Trial Court case number CV94-14591]
Conference call May 17, 1996. Decided May 21, 1996.
Before Presiding Justice LaFountaine, Justice Fry and Justice Stewart
LaFOUNTAINE, P.J.
This matter came regularly before the Court of Appeals for a conference telephone call among [Presiding]
Justice Frank LaFountaine, Justice Elizabeth Fry and Justice Howard Stewart, on May 17, 1996.
After reviewing the records and files herein, and being fully advised in the premises, the Court orders as
follows:
It is Ordered that the appeal in the above-entitled matter is hereby dismissed on the following grounds:
(1) the Motion to Appoint a Guardian Ad Litem for Cody J. Burris, A Minor Child, was not properly before
the Trial Court at January 12, 1996 hearing, for the following reasons:
(a) the Show Cause-Contempt of Court Hearing on January 12, 1996 was not about said motion;
(b) the appellee’s attorney had not been properly served with said motion before the Show CauseContempt of Court Hearing on January 12, 1996, and
(c) the appellant had failed to properly note said motion for a hearing before the Trial Court before
the January 12, 1996 Hearing;
(2) because said motion was not properly before the Trial Court on January 12 1996, there is no final court
order to appeal; and
(3) the appellant, Leann Hargrave, also failed to perfect her right to appeal by failing to file a notice of
appeal within ten (10) days from the date of hearing on January 12, 1996.
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3 CCAR ___
It is also noted by the undersigned Court of Appeals justices that the appellant may renew her motion for
appointment of a guardian ad litem before the Trial Court if she follows proper court procedures.
It is also noted that Justice Elizabeth Fry will be filing a separate dissenting opinion.
It is So Ordered.
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3 CCAR ___
Brian L. CONDON, Appellant,
vs.
COLVILLE CONFEDERATED TRIBES, Appellee.
Case Number AP93-16290, 2 CTCR 20, 23 ILR 6127
3 CCAR 48
[Jeff Rasmussen, Office of Public Defender, Colville Confederated Tribes, Nespelem WA, counsel for Appellant.
Lin Sonnenberg, Office of Prosecuting Attorney, Colville Confederated Tribes, Nespelem WA, counsel for Appellee.
Trial Court Case Number 93-16290]
Arguments heard March 25, 1994. Decided June 11, 1996.
Before Presiding Justice Collins, Justice Bonga and Justice Miles.
COLLINS, P.J.
The Appellant, Brian L. Condon, brings this matter before the Appellate Panel consisting of Associate
Justices David Bonga, Wanda Miles, and Associate Justice Pro-tem Brian Collins for review of his criminal
conviction in the Colville Tribal Court. Condon was convicted at jury trial of Possession of an Alcoholic Beverage
by a Person Under 21, CTC 5.5.13.
25
FACTUAL AND PROCEDURAL BACKGROUND
During the late evening hours of June 24, 1994, Condon and his companions gathered to play basketball on
an outdoor court located in the Moccasin Flat HUD Housing Area in Omak, Washington, which is located within the
Colville Indian Reservation. Condon and his friends were then under age 21. Members of the group were consuming
beer while they were playing basketball.
At approximately 2:00 a.m. on June 25, 1994, the Colville Tribal Police were called to the Moccasin Flat
Housing Area in response to a reported fight involving a carload of juveniles. The police stopped a car occupied by
Condon and his friends. After the occupants exited the vehicle, the police officers discovered that members of the
group exhibited telltale signs of consuming alcoholic beverages.
At trial, Sgt. William Evans testified that he detected the odor of alcohol on Condon and that "he appeared
to have been drinking." Evans testified that he recognized Condon and knew him to be under 21 from previous
contacts. Evans testified that the other members of the group appeared intoxicated. Condon and his companions
were arrested and taken to the Omak Police Station where they were individually interviewed. Both Sgt. Evans and
Officer Rotter, who interviewed Condon, testified that they smelled alcohol on his breath.
Although Condon denied consuming alcohol, he testified that members of the group drank beer while
playing basketball and that containers of beer were in the car at the time of the stop. Both the police and Condon
testified that the containers of beer found in the car were unopened. The record does not reflect which member of the
group owned the car.
Among the instructions given to the jury, the Court gave the following:
You are instructed that possession may be either actual or constructive. Actual
possession means possession in person, upon the person, and within his actual
25
CTC 5.5.13 provides in relevant part: any person who, being under the age of 21 year old, shall possess, purchase, consume, obtain, or sell
any beer, wine, ale, whiskey or other alcoholic beverage or misrepresent his age for the purpose of buying or otherwise obtaining an alcoholic
beverage shall be guilty of Possession of an Alcoholic Beverage by a Person Under 21.
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3 CCAR ___
physical control, of the substance involved. Constructive possession means such
dominion and control over a place where the substance was found so as to give a
person in possession of such a place the right to complete access to, or
disposition of, the substance found.
Jury Instruction No. 5.
The Panel has repeatedly reviewed the taped record from trial. From our review the Panel concludes that
defense counsel did not object on the record to the any of the jury instructions given by the Tribal Court, including
Instruction No. 5.
The jury found Condon guilty and he was sentenced to pay a fine of $600.00, with $400.00 conditionally
suspended upon his compliance with conditions of sentencing.
I. ISSUES
There are two primary issues raised on this appeal. The first is whether there was sufficient evidence
adduced at trial to for the jury to convict Condon of the offense. In his Notice Of Appeal, Condon alleges, based
upon the evidence presented at trial, that the Court erred by instructing the jury on the theory of constructive
possession.
II. DISCUSSION
A. The Offense
The required elements to be support Condon's conviction for Possession of an Alcoholic Beverage by a
Person Under 21 are: 1) that Condon was under the age of 21 at the time of the offense; 2) that he possessed,
purchased, consumed, obtained or sold an alcoholic beverage; 3) that the offense occurred within the Reservation.
CTC 5.5.13. Thus, the prohibited conduct encompassed by the statute includes more than mere possession of
alcohol.
B. Sufficiency of Evidence to Support a Conviction
We have previously had an opportunity to review criminal cases in which reversal was sought on grounds
that there was insufficient evidence adduced at trial to support a conviction. In Cora L. Pakootas v. Colville
Confederated Tribes, AP92-15148, [1 CTCR 67, 1 CCAR 65], we held that the Court will not reverse a conviction,
based upon sufficiency of evidence, unless "after reviewing the evidence in a light most favorable to the
prosecution, no rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt."
Id. at 4. All reasonable inferences from the evidence must be drawn in favor of the prosecution and interpreted most
strongly against the defendant. Simply stated, on appeal the appellant must show that, from the evidence at trial, no
reasonable jury would have found that he possessed or consumed an alcoholic beverage in violation of the statute.
It is unchallenged that Condon was under age 21 when the offense occurred. It is also unchallenged that the
offense took place within the Reservation. Thus, our inquiry is whether there was sufficient evidence presented that
any reasonable jury could have found that Condon "possessed, purchased, consumed or sold an alcoholic beverage."
From the facts of this case, the relevant prohibited conduct under CTC 5.5.13 concerns whether Condon
"possessed" or "consumed" alcohol. Although there was conflicting testimony at trial as to whether Condon
consumed alcoholic beverages prior to his arrest, two police officers testified that they detected the odor of alcohol
on Condon's breath and body at the time of arrest and during questioning at the Omak Police Station.
The officers testified that they were in a position to detect the odor of alcohol and to observe the defendant,
and it appeared to them that Condon had been drinking. The police officers also testified that there was beer in the
automobile in which Condon was riding and that Condon's companions were intoxicated. The officers' testimony
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3 CCAR ___
was partially corroborated by Condon, who testified that there was beer in the car when it was stopped. The officers'
testimony was further corroborated by Condon's companions, who testified that they had beer in their possession
and had been consuming beer.
While there were certain discrepancies in the officers' testimony, we find that their testimony concerning
the material points in this case was consistent. The evidence presented at trial was not such that a reasonable jury
should have concluded that the officers' testimony lacked credibility and that it should have been given less weight
than needed to support a conviction.
Although defense witnesses came forward with testimony that Condon had consumed no alcohol during the
night in question and was not generally known to consume alcohol, there was also testimony presented that Condon
had, on at least one occasion, consumed alcohol. In addition, there was no evidence presented to show that Condon
was an unwilling participant in the group's activities, which included drinking beer, or that he attempted to leave the
group when his friends began consuming alcoholic beverages.
C. Consumption
Although the defense witnesses denied that they saw Condon consume alcoholic beverages, there was
evidence presented that he had done so. In Colville Confederated Tribes v. Terry Dean Fry, Case Nos. 80-3351, 803352, 80-3353, [1 CTCR 02] (Colv. Tr. Ct. 1981), the Tribal Court determined that "consumption" is a continuing
process which begins when alcohol is swallowed and ends when the substance has been fully metabolized. There is
record evidence, from the police officers' testimony, that the smell of alcohol was detected on Condon's breath.
Thus, a reasonable inference can be drawn, based on the reasoning in Fry, that Condon was then in the process of
consuming alcohol. There was also evidence presented that beer could have been made available to Condon and that
he was present when his friends were consuming alcohol. We therefore conclude that the evidence adduced at trial
was such that a reasonable jury could have found, beyond a reasonable doubt, that Condon consumed alcohol, as
well as the remaining elements of the offense.
D. Possession
A conviction for Possession of Alcohol by a Person Under 21 may be supported by proving either one of
the Tribe's theories of the case...that Condon either possessed or consumed alcohol. Under the facts of this case, the
more complex question presented is whether the jury could have found that Condon possessed alcohol. We have
found that Condon's conviction is supported by evidence that he consumed alcohol. Therefore, the inquiry stops
there unless other issues are properly preserved for appeal.
In his Notice Of Appeal, Condon contends that the Tribal Court erred by instructing the jury on the theory
that he constructively possessed an
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