IN THE PASCUA YAQUI COURT OF APPEALS

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

Docket No. CA-01-003

Pascua Yaqui Tribe, )

Appellant, )

) OPINION

v. ) AND

) ORDER

Randy Baltazar, )

Appellee. )

Appearances: Tamara Walters, Chief Prosecutor, for the Appellant;

Vincent Gonzalez, Public Defender, for the Appellee.

Before: Richard A. Monette, Chief Justice;

Carolyn Abeita, Associate Justice;

Carey N. Vicenti, Associate Justice.

C.N. Vicenti, Justice, for a unanimous Court.

This matter comes before the Court of Appeals by an appeal submitted by the

Chief Prosecutor on behalf of the Pascua Yaqui Tribe of Arizona. This Court requested

and received brief in this matter. Oral arguments were held on June 14, 2001. Having

fully considered the arguments and the authorities cited, this Court hereby holds in favor

of the Appellant, Pascua Yaqui Tribe, and remands this matter to the trial court for

further consideration consistent with this ruling.

I. Jurisdiction

The Appellant has appealed an Order of the Court entered on March 2, 2001.

Section 1.22 of the Court of Appeals Procedures Act allows such appeal. This Court has

jurisdiction over the present appeal.

Il. Facts

On August 4, 2000, at about 8:30 in the evening, a crime was allegedly committed

on South Kau Bo-oh Street. The crime resulted in bodily injury to Ernesto Flores. As a

result of a cursory investigation the Office of the Prosecution then filed this case against

Randy Baltazar. The Complaint filed in this case relied principally upon an affidavit

prepared by Officer Vincent Pettis. Apparently, as a matter of mere clerical error, the

Officer cited the date of the incident as August 4 rather than the correct day of August 5.

As the Prosecution became aware of this mistake, she requested counsel for the defense

to stipulate to an amendment to change the ‘4’ to a ‘5’. Defense Counsel refused. The

Prosecution then filed a Motion to Dismiss and re-filed the Complaint making the

necessary alteration. The new complaint was filed on November 14, 2000.

As the new complaint advanced through the criminal process, Ernesto Flores, the

alleged victim, then disclosed that the alleged crime occurred at 7600 South Kau Bo-oh --

--thus contradicting yet another prosecution fact, that the event took place at ‘7700’ South

Kau Bo-oh Street. The Prosecution then, based upon this new information, directed

Officer Pettis to re-interview Mr. Flores and revise his original affidavit. He did so. The

Prosecution filed a Motion to Amend the Complaint. As the matter went forward,

however, it was soon discovered that the date had been reverted to the originally

erroneous 4" of August, 2001. Upon the Defense Counsel’s assertions that such mistakes

of date and location would prejudice the defenses available to the defendant the Court

summarily dismissed the complaint with prejudice, recognizing that these errors “can

prejudice the defendant”. Order of March 2, 2001. (Emphasis added.) This appeal then

ensued. The appeal essentially asks whether such dismissal constituted an abuse of

discretion on the part of the presiding judge.

I. Discussion

The appeal in this matter is rather direct and simple. It asks whether, upon initial

examination of a complaint, a judge possesses the discretion to dismiss a complaint with

prejudice which is technically defective upon its face with respect to foundational facts.

Our primary guidance in this question is presented by the Pascua Yaqui Tribal Code at

Chapter 1, Sections 1.28 to 1.30. Specifically, Section 1.30 of that Chapter states that the

form of the Complaint must contain (a) the name of the Jurisdiction where it is filed, (b)

the name of the party, if the defendants be known, and if not, then such names as may be

given by them by the complainant, and a statement signed by the complainant of the acts

constituting the offense and the time and place of the commission of the offense, as near

as may be ascertained.

It is in the latter requirement regarding a statement of “the time and place” of the

alleged offense from which this appeal arises. Section 1.57 of Chapter 1 give us further

guidance in stating that a court must set aside a complaint (a) where it is found not to

comply with the requirements of Sec. 1.29 or 1.30... (b) the defendant has been charged

without reasonable of probable cause, [or] (c) upon a determination that the Court has no

jurisdiction over the person of the offense. The mandatory nature of this provision

suggests that a court upon first examination of a complaint has no discretion in rendering

a determination of the sufficiency of a complaint. If a complaint does not meet the

requirements of Section 1.30 in its recitation of foundational facts, it would appear that

the complaint must be dismissed. But this is misleading.

The terms of Section 1.30 are, themselves, cast in very liberal fashion. For

instance, it is not necessary to identify the defendant with precision. See Section 1.30

(b). The “time and place” requirements themselves only require a precision “as near as

they can be ascertained”. Section 1.30(c). This suggested tolerance of imprecision built

into the criminal process recognizes the immense potential for error or mistake early in

the initiation of criminal proceedings. At this point in the criminal process, there has

been insufficient time to determine the reliability and veracity of witnesses. The court’s

role here is to determine whether the basic information necessary to go forward with a

criminal prosecution have been met, whether reasonable or probable cause exists that a

crime has been committed and whether the case involves an incident having occurred

within the territorial boundaries and involving a person within the Tribe’s jurisdiction.

The court is determining whether there has been any mistake ab initio as to whether this

is even the proper court for the filing of the criminal case; the court is determining

whether a gross error exists leading to an erroneous conclusion as to the reasonableness

or probability of the conclusion that a crime has been committed.

The appellant cites to United States v. Orbiz, 358 F. Supp. 200 (D. Ct. Puerto

Rico, 1973) in which the federal court states that “common sense and reason prevail over

mere technicalities”. We are in agreement. When a case of this nature is filed, not only

is it a question of fairness to the defendant that provides a court with a policy basis to

render determinations. The court must also recognize that a victim, too, relies upon the

Tribe to recognize that some harm has occurred and that the Tribe sits in a position of

trust to remedy that harm. The court’s superior concern, therefore, must be whether a

justice can be accomplished which takes into account these competing concerns. This

becomes more important in the early stages of the criminal process when a

confrontational opportunity to examine the factual basis for the complaint has not yet

happened.

The appellee has argued that the trial court dismissed the case “not for a

deficiency in the complaint but rather , [for] the unfairness of subjecting Mr. Baltazar to

multiple affidavits regarding the same incident.” Brief in Response at 4. (Emphasis in the

original). More precisely, the court stated that it could not allow any amendment to the

complaint because to do such “can prejudice the defendant”. Order of March 2, 2001.

(Emphasis added.) The basis for the dismissal is not inconsequential here. When a

dismissal is reached so early in the criminal process, it is incumbent upon the court to

state with specificity how such errors do prejudice the defendant. It is not enough that it

is an inconvenience to the defendant----it is a truism that all legal process involves

inconvenience. But, in a ‘victim’ case, as stated above, the Tribe stands in a trust

position to ensure that justice is accorded to all parties. A technical failure early in the

legal process must point to a fatal failure on the prosecution’s part, or, to a clear violation

of the defendant’s rights. An order at this juncture dismissing a case with prejudice serves

as an explanation to the tribal public, in general, and the victim, in particular, why any

further pursuit of the criminal prosecution would result in a manifest injustice to the

defendant, either through the violation of his rights or through the sabotage of an

available defense.

The appellant fulfilled the requirements of 1 PYTC Section 1.30 in the filing of

the charges against the appellee. The mere fact that certain allegations were in error

could not work a prejudice either against a defense possessed by the defendant or against

any rights he may have.

IV. Conclusion

For the foregoing reasons, we conclude that the trial court abused its discretion in

dismissing this case with prejudice. We reverse the trial court and remand this case for

further consideration consistent with this opinion and order.

IT IS SO ORDERED, this 12" day of September, 2001.

Mie EE

Carey N. Vicehti, Associate Justice

2 Ses wee mete eee Va ee wv Ss

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

Docket No. CA-01-004

Pascua Yaqui Tribe )

Appellant J

)

Vv. ) ORDER

)

Baltazar, Randy )

Appellee )

This Court received the Appellee’s Motion to Preclude Appellant’s Reply Bnef,

Appellant’s Opposition to Motion to Preclude, and Appellee’s Reply to Motion to Preclude.

This Court has taken the all of the documents under advisement and will issue its ruling on the

Motion to Preclude Appellant’s Reply Brief at the time of the hearing in this case scheduled for

June 15, 2001.

IT IS SOORDERED this //”* day of June 2001.

Richard A. Monette, Chief Justice

VL. tS

Associate Justice

cita,

Sbpleniicle

~ apenas) bf 4

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J. Vincent Gonzalez, SBN 018372

Pascua Yaqui Public Defender

7474 S. Camino de Oeste

Tucson, AZ 85746

Attorney for Appellee KY

IN THE PASCUA YAQUI TRIBAL COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, Case No.: CA-01-003

(Tribal Court No. CR-01-024)

Appellant,

REPLY TO APPELLANT’S OPPOSITION

TO APPELLEE’S MOTION TO

PRECLUDE

Vs.

BALTAZAR, RANDY,

Appellee

ws ws ws Ww SS SSS

Pursuant to Rule 1.20 of the Rules of Appellate Procedure,

Appellant had seven (7) days to respond to Appellee’s Motion to

Preclude. Since Appellant did not file its Response within seven

days, this Court “will consider the motion unopposed.” Appellant

filed its response fifteen days after receipt of the Motion,

eight days late. Appellee requests that this Court declare this

motion unopposed and grant Appellee’s Motion to Preclude.

If this Court does entertain the Opposition, then Appellee

offers this Reply. Appellant is incorrect in its Opposition that

“It was alleged that Appellant was served by placing a copy of

the Brief in Response in the Appellant’s In-Box at the Pascua

Yaqui Tribal Court...”*

1 See Appellant’s Opposition, page 1, lines 22-24.

Page 10 of Appellee’s Brief in Response states “the

foregoing hand-delivered this date to Prosecutor’s Office

(Appellant)” and to the Court in its In-box.?

Our offices do not have access to the other party’s in-box

at court, nor do those in-boxes serve as a mailbox. Custom and

procedure between the two offices is to hand-deliver all

documents. Appellant knows of this procedure, and in this case,

Appellee did not deviate from that procedure, especially given

the importance of this particular pleading and this Court’s

rules. Appellee hand-delivered its Response to Appellant on

April 19, 2001, as indicated.

Reviewing the Appellant’s Exhibit B proves that Appellee

does not deliver any document via Appellant’s in-box at Court,

let alone this motion. Only court clerks deliver documents this

way; this is the Tribal Court’s method of delivery to parties,

and the parties ourselves hand-deliver documents to each other.

Appellant’s claim has deceived this Court to prevail on

this issue. Appellant knows the practices and the established

delivery procedure between offices. Whether or not Appellant’s

staff stamped “received” in a timely manner is irrelevant. The

court’s stamp states April 19, 2001 and Appellee hand-delivered

Appellant’s copy before the end of business on that same day.

Appellant, by filing its Opposition over a week late, shows

its disregard to this court’s rules. This pleading is the second

consecutive late document in the same case. Ironically, this

pleading argues the first deadline violation. These repeated

? Emphasis mine, clarification mine.

violations show Appellant’s propensity to file documents in an

untimely manner and/or its total disregard to this Court’s

rules.

Appellee only asks that this court enforce its own rules.

Ignoring the rules, or bending them without cause sets a

dangerous precedence. Accordingly, Appellee requests that this

court preclude Appellant’s reply brief.

RESPECTFULLY Submitted this 23™* day of May 2001.

J. Vincent Gonzal

Deputy Public Defend

ORIGINAL a four copies hand-delivered this date to

Court by:

COPY of the forggoing hand-delivered this date to

Appellant by: A,

i)

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PASCUA YAQUI TRIBE

OFFICE OF THE PROSECUTOR

7474 S. Camino de Oeste

Tucson, Arizona 85746

(520) 879-5780

Tamara Walters, SBN 10510

Chief Prosecutor

IN AND FOR THE PASCUA YAQUI RESERVATION, ARIZONA

PASCUA YAQUI TRIBE,

)

Appellant, ) NO. CA-01-003

) (Tribal Court No. CR-01-024)

Vs. )

BALTAZAR, RANDY, ) OPPOSITION TO MOTION TO PRECLUDE

Appellee. )

)

COMES NOW The Pascua Yaqui Tribe, by and through counsel

undersigned, and hereby opposes Appellee’s Motion to Preclude

Appellant’s Reply Brief for the reason that it was timely filed.

Appellant agrees that the Reply Brief was to be filed within

seven (7) days from the date the Brief in Response was received.

Appellant received the Brief in Response on April 20, 2001, and

was stamped in as Received by the Pascua Yaqui Prosecutor’s

Office on April 20, 2001, as indicated in Exhibit A attached

hereto and incorporated herein by reference. Appellee filed the

Brief in Response on April 19, 2001 at 4:38 p.m. (Refer to the

Court stamp on Exhibit A.) It was alleged that Appellant was

served by placing a copy of the Brief in Response in the

Appellant’s In-Box at the Pascua Yaqui Tribal Court on April

19th. However, a review of the Prosecutor’s Sign Out Sheet kept

by the Pascua Yaqui Tribal Court, attached hereto as Exhibit B,

does not indicate that a copy of the Brief in Response was left

for Appellant in PY In-Box.

Appellant was not served with the Brief in Response until

the next day, April 20°*. Seven days from the date of receipt

was April 27, 2001. This is the date the Reply Brief was filed.

Appellant’s Reply Brief was timely filed, and should be

considered in this Court’s Ruling. Appellee’s Motion to Preclude

must be denied.

In support of Appellant’s contention that the Brief in

Response was not served on Appellant until April 20, 2001 is the

fact that Appellee’s Motion to Preclude was filed May 1, 2001 at

3:20 p.m., and it was alleged that a copy was hand-delivered to

Appellant that same date. It was not delivered to the Appellant

until today, May 16, 2001. When delivered, it had been hole

punched, indicating that it was inadvertently filed in a file and

when discovered fifteen days later, served on Appellant.

Appellant then date stamped it when received, and filed this

Opposition to Motion to Preclude. Appellant’s copy of the Motion

to Preclude is marked as Exhibit C, attached hereto, and

incorporated herein by reference.

Repectfully submitted this 16th day of May, 2001.

OFFICE OF THE PROSECUTOR

PASCUA YAQUI TRIBE

ar, \A\ .

(- tim oro Nal wer 2

Tamara Walters

Chief Prosecutor

Original and four copies of the foregoing delivered/mailed

This date to:

Clerk of the Court, Pascua Yaqui Tribe Court of Appeals

Copy delivered/mailed to:

Vincent Gonzalez

Deputy Public Defender

7474 S. Camino de Oeste

Tucson, Arizona 85746

Attorney for Appellee

By

| See Appellant’s Brief on Appeal, Section B: Facts of the Case. . Ny om

J. Vincent Gonzalez, SBN 018372

Pascua Yaqui Public Defender

7474 S. Camino de Oeste

Tucson, AZ 85746

Attorney for Appellee

Oe tara ice

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) Case No.: CA-01-003

) (Trial Court No. CR-01-024)

Appellant, )

) BRIEF IN RESPONSE

VS. )

)

BALTAZAR, RANDY, )

)

Appellee )

)

COMES NOW, Appellee, Randy Baltazar, by and through counsel undersigned to file his

Brief in Response as prescribed by Section 1.22 of the Court of Appeals procedures.

A. Jurisdiction

Appellee concurs that this Court of Appeals has jurisdiction over this matter.

B. Facts of the Case

Appellee agrees with Appellant’s Facts of the Case, however, Appellee contests several

points of interest, specifically, the Appellant’s non-compliance with Rule 3.1(B) of the Tribal

Rules of Criminal Procedure.

1. Location/address of alleged incident.

After the arraignment hearing for case number CR-00-166,' the Appellant properly

disclosed the names and addresses of potential witnesses. Appellee, through counsel had each

/ 4

Exinibtk fy

1 || mistakes and thus, the errors in the Appellant’s pleadings could have been avoided if Appellant

2 || was more diligent in its pre-trial investigations.

3 Appellant had its chance to prove its case. Appellant actually had two chances. Now, it

4 || wants a third. The constant re-filing is harassing. Appellant’s disregard for properly following

5 || the Rules of Criminal Procedure proves a “conscious indifference.” Either way, the trial court

6 || had proper discretion to dismiss this matter. But, more simply, the trial court’s decision was

7 |\ based on common sense, justice, and fairness. Time after time, Appellant ignored details, refused

8 || to investigate its case prior to filing, speak to its own witnesses, and review its own pleadings

9 || prior to submitting them. Appellant relied on amended pleadings and the option of a dismissal

10 |\'without prejudice. All the while, Appellant’s fate lay in the balance.

an The trial court did what was just. Its ruling did not prejudice Mr. Flores, as asserted by

12 || the Appellant. The Appellant's negligence got this case dismissed. The trial court only ruled on

13 || the information presented before it. Appellant blames the trial court, yet its failure to zealously

14 || advocate for the Tribe and Mr. Flores is the real reason.

a8 Appellant misinterpreted the Motion to Dismiss and the trial court’s ruling. As a result,

16 || its argument in its brief is not on point and neither is the case law presented. The trial court has

17 || the discretion to dismiss when the prosecutor has displayed harassment or intentional or

18 || conscious indifference” to important procedures. Appellee has provided supporting case law.

x9 WHEREFORE, Appellee prays that this court uphold the trail court’s ruling.

ae RESPECTFULLY Submitted this 19" day of April 2001.

21

: A “tidatlle

“3 (JS J. Vincent Gonzalez _ O)

Deputy Public Defender

24

25 || COPY of the foregoing hand-delivered thiSAlate to

- Prosecutor’s Office, PY Ct. In-box by:

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J. Vincent Gonzalez, SBN 018372

Pascua Yaqui Public Defender

7474 S. Camino de Oeste 9 ‘ Pei fycee

Tucson, AZ 85746

Attorney for Appellee

crae

Us

IN THE PASCUA YAQUE-PREB

i

;

URT OF APPEALS

SRO

CO

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, Case No.: CA-01-003

(Tribal Court No. CR-01-024)

Appellant,

MOTION TO PRECLUDE

BALTAZAR, RANDY,

)

)

)

; )

vs. )

)

)

)

Appellee )

)

COMES NOW, Appellee, Randy Baltazar, by and through counsel

undersigned to move this Court to preclude the Appellant's Reply

Brief from the record and disregard its contents. The basis for

this Motion is that Appellant did not file this Reply Brief

within seven (7) days of being served the Brief in Response, as

mandated by Section 1.22 of the new Rules of the Court of

Appeals.

Section 1.22 provides that “..The Appellant shall have seven

(7) calendar days after being served a Brief in Response to

submit a Brief in Reply...” Appellee filed and served Appellant

the Brief in Response on April 19, 2001. The deadline for

Appellant’s Reply was April 26, 2001. Appellant did not file its

reply Brief until April 27, 2001, which is beyond the time

allotted.

Joy 3

Ext eit

For this reason, Appellee respectfully requests that this

{| Court preclude the Appellant's Reply Brief from the record and

disregard its contents.

RESPECTFULLY Submitted this 1°* day of May 2001.

J. Lied | Ke ie

Deputy Public Def

ORIGINAL an our copies hand-delivered this date to

Court by:

COPY of thé foregoing harid-delivered this date to

Appellant by: A

24

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IN THE APPELLATE COURT OF THE YAQUI NATION

PASCUA YAQUI TRIBE

Case No. CA-01-003

Appellant

VS. ORDER

BALTAZAR, RANDY

eee a Oa aa aS aS

Appellee

The Appellee’s counsel filed a Motion to continue oral arguments scheduled in the above matter.

The Appellate court is informed that the Appellant has no objection to the continuance.

IT IS ORDERED that the Appellee’s motion is granted and the oral argument is hereby rescheduled to

Friday, June 15, 2001 at 10:30 a.m.

so ORDERED THIS 77“ payor 2%/ LbO/

Va Y KY

Aong CHIEF JU; PISO YAQUI COURT OF APPEALS

Pascua Yaqui Public Defender

7474 S. Camino de Oeste

Tucson, Arizona 85746

J. Vincent Gonzalez, SBN 018372 - na Ce

! dt CGO

COUNSEL FOR: Appellee CA-O1,00 5

IN THE APPELLATE COURT OF THE YAQUI NATION

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE,

Appellant Case No.: CA-01-003

vs. MOTION TO CONTINUE

BALTAZAR, RANDY,

Appellee

ws ws was SS SS

COMES NOW, Appellee, Randy Baltazar, by and through counsel

undersigned to request a continuance for Oral Arguments in this

matter currently scheduled for May 30, 2001 at 10:30 a.m. The basis

for this motion is that this Counsel will be at a Drug Court

Conference out of state from May 29, 2001 through June 2, 2001.

Counsel avows that this motion is made in good faith and not for the

purpose of improper delay. Chief Prosecutor Tamara Walters has been

contacted and has no objections.

RESPECTFULLY SUBMITTED this 10° day of May 2001.

J. = TeRCENS “ed oe

Deputy Public Defended

COPY of the foregoing delivered this dat

Prosecutor’s Office, PY Ct. in-box by:

27

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J. Vincent Gonzalez, SBN 018372

Pascua Yaqui Public Defender

7474 S. Camino de Oeste

Tucson, AZ 85746

Cp -a-a3

y

Attorney for Appellee

IN THE PASCUA YAQUI TRIBAL COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, Case No.: CA-01-003

(Tribal Court No. CR-01-024)

Appellant,

MOTION TO PRECLUDE

BALTAZAR, RANDY,

)

)

)

)

vs. )

)

)

)

Appellee )

)

COMES NOW, Appellee, Randy Baltazar, by and through counsel

undersigned to move this Court to preclude the Appellant’s Reply

Brief from the record and disregard its contents. The basis for

this Motion is that Appellant did not file this Reply Brief

within seven (7) days of being served the Brief in Response, as

mandated by Section 1.22 of the new Rules of the Court of

Appeals.

Section 1.22 provides that “..The Appellant shall have seven

(7) calendar days after being served a Brief in Response to

submit a Brief in Reply...” Appellee filed and served Appellant

the Brief in Response on April 19, 2001. The deadline for

Appellant’s Reply was April 26, 2001. Appellant did not file its

reply Brief until April 27, 2001, which is beyond the time

allotted.

For this reason, Appellee respectfully requests that this

Court preclude the Appellant’s Reply Brief from the record and

disregard its contents.

RESPECTFULLY Submitted this 1®* day of May 2001.

J. Vincent Gonzale

Deputy Public Def

ORIGINAL an our copies hand-delivered this date to

Court by:

COPY of thé foregoing hand-delivered this date to

Appellant by: a

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PASCUA YAQUI TRIBE

OFFICE OF THE PROSECUTOR a r.rd

7474 S. Camino de Oeste Ui poe

Tucson, Arizona 85746

(520) 879-5780 CA-Ol-003

Tamara Walters, SBN 10510

Chief Prosecutor

IN THE PASCUA YAQUI TRIBE COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI RESERVATION, ARIZONA

PASCUA YAQUI TRIBE,

)

Appellant, ) NO. CA-01-003

) (Tribal Court No. CR-01-024)

Vs. )

BALTAZAR, RANDY, ) REPLY BRIEF

Appellee. )

)

COMES NOW The Pascua Yaqui Tribe, by and through counsel

undersigned, and hereby files its Reply Brief to Appellee’s Brief

in Response as follows.

A. Location/address and date of alleged incident.

At the time the first Complaint was filed (CR-00-166), it

was unknown to Appellant that the location of the incident was

7600 S. Kau Bo-oh instead of 7700 S. Kau Bo-oh, which was the

address identified to the police officer by the victim. The

police officer, in good faith, based the facts submitted in his

affidavit on information he had received from the victim and his

investigation of the incident. The fact that the process server

could not serve the witness, Josie Valencia, at 7700 S. Kau Bo-oh

would not necessarily have put Appellant on notice that the

incident occurred at a different address, as it was just as

likely that Josie Valencia had changed her address from 7700 S.

Kau Bo-oh and was no longer there when service was attempted.

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When the second Complaint was filed, it was still unknown

that the victim had provided the police officer with an

inaccurate address. The victim did not know the exact address,

but pointed at a map of the Reservation and indicated by pointing

where he believed the incident to take place. The fact that a

witness, Josie Valencia, was not living at 7700 S. Kau Bo-oh when

service was again attempted, does not mean that Appellant had

knowledge that the location of the offense was not accurate. It

was not until January of 2001, when the victim himself identified

the error, when the Appellant had knowledge, and it then took

immediate action to correct the error by asking the officer to

re-interview the victim and prepare a new Affidavit, and then

filed a motion to amend the pleadings.

Appellant has sufficiently explained why the date of the

offense was stated in error, and will not again explain the same

facts.

Appellee raises the issue that he was prejudiced by multiple

Complaints and Affidavits being filed. The purpose of the

Initial Hearing is to only determine whether there is sufficient

probable cause to believe a crime has been committed and that

Defendant committed it. There was sufficient supporting

information in all of the affidavits to find probable cause that

Appellee may have committed a battery upon Ernesto Flores,

regardless of the date or location. Appellee was well aware of

the errors and could not possibly have been prejudiced by the

change of the date and location of the offense so early in the

proceedings. The Initial Hearing is not the time to question the

merits of the complaint and affidavit. Appellee would have an

opportunity at trial to question the police officer and the

victim as to the different recordings of the date and address if

he so desired to make Appellant’s witnesses look less credible.

However, the dismissal of the charge with prejudice at this stage

and under these circumstances was an abuse of the trial court’s

discretion.

B. The Trial Court did abuse its discretion in dismissing

with prejudice.

The Trial Court found that “the Court cannot allow the Tribe

to continue to amend their errors which can prejudice the

defendant.” Although the Court made no specific finding of

prejudice and only that the defendant “may” be prejudiced, the

trial court found good cause to grant defendant’s motion to

dismiss with prejudice. The Tribe was not given an opportunity

to respond to Appellee’s Motion to Dismiss With Prejudice.

Appellee contends that the Trial Court acted appropriately

because Appellee was being harassed by the filing of new

complaints. Appellee cites case law from the State of Nevada and

the Nevada Supreme Court as support for their position. However,

these cases are not applicable to the facts at hand.

Appellee cites several Nevada cases about failing to comply

with important procedural rules, which are distinguishable from

the facts of the case at hand. State v. Austin, 482 P.2d 284

(1971) regarded speedy trial rights. The State had made three

motions to continue due to not being prepared. The rules of

Nevada required that any motion to continue be supported by an

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affidavit setting forth the reasons for the request. The State

did not follow this rule and the case was dismissed at the

Justice Court level. The State then re-filed in the District

Court and they were not allowed to bring new proceedings for the

same offense when the original proceeding was dismissed due to

willful failure of the prosecutor to comply with important

procedural rules (i.e. filing an affidavit of good cause to

continue) .

Likewise, in Maes v. Sheriff, Clark County, 468 P.2d 332

(1970), and McNair v. Sheriff, Clark County, 514 P.2d 1175, (1973),

both cases involve the State requesting continuances for not being

prepared or able to proceed and not filing the required affidavit

or giving adequate facts of good faith for the reason for the

continuance. The Tribe in the case at hand violated no procedural

rules requiring a dismissal with prejudice. There was no violation

of the Tribe of speedy trial rights, nor was there an agenda to

prolong the proceedings or harass Appellee.

In U.S. v. Cox, 342 F.2d 167 (5 Cir., 1965), cert. denied

June 1, 1965, the U.S. Attorney was presenting cases to the Grand

Jury for a return of an Indictment, or True Bill. The Grand Jury

requested the U.S. Attorney to draft certain indictments, and the

Court entered an Order that the U.S. Attorney draft those

indictments. The U.S. Attorney declined to do so, and the Court

gave him a one hour time limit to comply with the Court’s ruling.

The U.S. Attorney declined to file the Indictments and was held

in contempt of court and jailed. The U.S. Attorney appealed and

the lower court’s decision was overruled, finding it

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was within the executive discretion of the prosecutor to bring or

not to bring criminal proceedings.

The Court considered the Constitutional requirement of an

indictment or presentment as a predicate to a prosecution for a

capital or infamous crime has for its primary purpose the

protection of the individual from jeopardy except on a finding of

probable cause by a group of his fellow citizens, and is designed

to afford a safeguard against oppressive actions of the

prosecutor or court. (Id., Page 170.) Furthermore, Rule 48(a)

Fed. Rules of Crim. Proc., 18 USCA, now provides that the U.S.

Attorney may by leave of court file a dismissal of an indictment.

The purpose of the Rule is to prevent harassment of a defendant

by charging, dismissing, and re-charging without placing a

defendant in jeopardy. (Page 171, citing Woodring v. U.S., 311

F.2d 417, (8 Cir, 1963). Substantial compliance rather than

technical exactness meets the requirement of the Rule.

In Woodring v. U.S., the prosecutor moved to dismiss without

prejudice one count of the indictment at the conclusion of the

evidence at trial and before the jury began deliberation. The

Court granted the motion without the defendant’s consent. Rule

48(a) requires that a dismissal of the indictment may not be

filed during trial without the defendant’s consent. Because the

count was dismissed because there was insufficient evidence, and

a motion for a directed verdict would have been entered, the

dismissal should have been with prejudice and the prosecutor

could not re-file.

In the case at hand, Appellant was at the Indictment stage

2]

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where the court was only to consider probable cause to proceed

when the case was dismissed with prejudice, not during trial or

when a determination of burden of proof on the merits was being

made. There was no prejudice or double jeopardy or harassment to

Appellee.

In Mende v. United States, 282 F.2d 881 (9*® Cir., 1960), a

defendant was subjected to three indictments for the same offense

and the defendant claimed harassment. The Courts held that if the

defendant was indicted within time, then approximately the same

facts may be used for the basis of any new indictment within the

next term, if the earlier indictment runs into legal pitfalls. The

Court stated, “We are not impressed with arguments that successive

indictments during the extra term might be used to harass.

Experience has shown that such an evil certainly has not been

commonplace during the basic statutory period for indictment. (Page

883.)

There are no limitations to the number of times a complaint

can be amended for technical, formal, typographical or clerical

errors, nor are there any time limits for re-filing or amending the

complaint in the Pascua Yaqui Tribe Law and Order Code. The Code

does specifically say in 1 PYTC Sec. 1.58 that an order to set

aside the complaint, as provided for in this chapter, is no bar to

further prosecution for the same offense, except in the case

wherein the Trial Court has no jurisdiction.

C. Conclusion.

Appellant’s requested relief must be granted as it is

supported by the Code and case law. It is requested that this

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Court overturn the Order of the Trial Court denying a motion to

modify the complaint and/or overturn the Order of the Trial Court

dismissing the charge with prejudice.

Repectfully submitted this 27th day of April, 2001.

OFFICE OF THE PROSECUTOR

PASCUA YAQUI TRIBE

CMe rare NW 0 Le Ag

Tamara Walters

Chief Prosecutor

Original and four copies of the foregoing delivered/mailed

This date to:

Clerk of the Court, Pascua Yaqui Tribe Court of Appeals

Copy delivered/mailed to:

Vincent Gonzalez

Deputy Public Defender

7474 S. Camino de Oeste

Tucson, Arizona 85746

Attorney for Appellee

By tu)

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