PUEBLO OF ACOMA LAWS 2003 (2019 Replacement)

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TITLE 5

RULES OF CRIMINAL PROCEDURE

This Replacement includes laws enacted since the Pueblo of Acoma Laws 2003

pursuant to Tribal Council Resolutions dated January 1, 2016 through December 31, 2018.

Pueblo of Acoma Laws 2003 (2019 Replacement)

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PUEBLO OF ACOMA LAWS 2003 (2019 Replacement)

TITLE 6

RULES OF CRIMINAL PROCEDURE

These laws may be cited by Title, Chapter, Section and Year as Section or

§__-__-__ Pueblo of Acoma Laws 2003 (2019 Replacement

PUEBLO OF ACOMA LAWS 2003 (2019 Replacement

Pueblo of Acoma Laws 2003 (2019 Replacement)

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PUEBLO OF ACOMA LAWS 2003

TITLE 5

RULES OF CRIMINAL PROCEDURE

TABLE OF CONTENTS

Chapter

Page

General Matters ..................................................................................... 5-1

5-1-0

Purposes ...................................................................................... 5-1

5-1-1

Applicability of Title ...................................................................... 5-1

5-1-2

Abolition of Common Law Offenses............................................. 5-2

5-1-3

Rule of Construction .................................................................... 5-2

5-1-4

Definitions .................................................................................... 5-3

Accomplice ........................................................................ 5-3

Act ..................................................................................... 5-3

Benefit ............................................................................... 5-3

Conduct ............................................................................. 5-3

Crime ................................................................................ 5-3

Culpable mental stat ........................................................ 5-3

Intentionally or with the intent to ..........................................................5-3

Knowingly ............................................................... 5-3

Recklessly .............................................................. 5-3

Criminal negligence ............................................... 5-4

Dangerous drug ................................................................ 5-4

Dangerous instrument ....................................................... 5-4

Deadly physical force ........................................................ 5-4

Deadly weapon ................................................................. 5-4

Enterprise .......................................................................... 5-4

Felony .............................................................................. 5-4

Firearm .............................................................................. 5-4

Government ...................................................................... 5-4

Government function ........................................................ 5-4

Intoxication ....................................................................... 5-5

Misdemeanor ................................................................... 5-5

Narcotic ............................................................................ 5-5

Offense ............................................................................. 5-5

Omission .......................................................................... 5-5

Peace officer .................................................................... 5-5

Person .............................................................................. 5-5

Petty offense .................................................................... 5-5

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5-1-5

5-1-6

5-1-7

5-1-8

5-1-9

5-1-10

5-1-11

5-1-12

5-1-13

5-1-14

5-1-15

5-1-16

5-1-17

5-1-18

5-1-19

5-1-20

5-1-21

5-1-22

5-1-23

Physical force ................................................................... 5-5

Physical injury .................................................................. 5-5

Possess ............................................................................ 5-5

AA. Possession ........................................................................ 5-5

BB. Property ............................................................................ 5-5

CC. Public servant ................................................................... 5-5

DD. Serious physical injury ..................................................... 5-6

EE. Unlawful ........................................................................... 5-6

FF.

Vehicle .............................................................................. 5-6

GG. Voluntary act .................................................................... 5-6

HH. Voluntary intoxication ........................................................ 5-6

Time Limits .................................................................................. 5-6

Territorial Applicability .................................................................. 5-7

Disposition of Property Taken from Defendant; Receipts ........... 5-8

Complaint .................................................................................... 5-8

Arrest by Warrant Upon Complaint .............................................. 5-8

Arrest without Warrant ................................................................ 5-8

Arraignment ................................................................................ 5-9

Pleas .......................................................................................... 5-11

Bail ............................................................................................. 5-12

Motions During Arraingnment ................................................... 5-13

Joinder of Defendants of Offenses of Trial ............................... 5-13

Pretrial Motions ......................................................................... 5-13

Discovery .................................................................................. 5-14

Subpoena .................................................................................. 5-16

Trial by Court ............................................................................ 5-16

Trial by Jury .............................................................................. 5-17

Motions at Trial ......................................................................... 5-19

Evidence ................................................................................... 5-20

Verdict ........................................................................................ 5-25

Sentencing Procedure .............................................................. 5-26

Procedural Rights of Criminal Defendants .................................................. 5-26

5-2-1

Former Jeopardy or Acquittal as Bar to Same or Lessor Offenses .

................................................................................................... 5-26

5-2-2

Former Conviction or Acquittal in Another Jurisdiction ............. 5-27

5-2-3

Speedy Trial; Counsel; Witnesses and Confrontation ................ -27

5-2-4

Presumption of Innocence and Benefit of Doubt; Degree of ...........

Guilt ........................................................................................... 5-28

5-2-5

Defendant as Witness; No Comment on Failure to Testify ........ 5-28

5-2-6

Double Punishment ................................................................... 5-28

5-2-7

Right to a Jury Trial with Impartial Jury ..................................... 5-29

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5-2-8

5-2-9

5-2-10

5-2-11

5-2-12

5-2-13

Every defendant is entitled to those rights enumerated in the Indian

Civil Rights Act, 25 U.S.C. §1302 ............................................. 5-31

Every defendant has the right to effective assistance of counsel at

least equal to that guaranteed by the United States Constitution ....

................................................................................................... 5-31

Right to Counsel for Indigent Defendant .................................... 5-31

In any criminal proceeding, the presiding judge shall ............... 5-31

In any criminal proceeding, the court shall maintain a record ... 5-31

Every defendant has the privilege of the writ of habeas corpus in a

court of the United States to test the legality of their detention by

order of the Pueblo of Acoma ................................................... 5-31

Rules Applicable to Determining Guilt or Innocence ...................................... 5-34

5-3-1

Requirements for Criminal Liability ........................................... 5-34

5-3-2

Construction of Statutes with Respect to Culpability ................ 5-35

5-3-3

Causal Relationship Between Conduct and Result; Relationship to

Mental Culpability ..................................................................... 5-35

5-3-4

Effect or Ignorance of Mistake upon Criminal Liability .............. 5-36

5-3-5

Criminal Liability Based upon Conduct ..................................... 5-36

5-3-6

Criminal Liability Based upon Conduct of Another ................... 5-36

5-3-7

Nondefenses to Criminal Liability Based upon Conduct of Another .

................................................................................................... 5-37

5-3-8

Conviction for Attempt Although Crime Committed .................. 5-38

5-3-9

Criminal Liability of Enterprises; Definitions............................... 5-38

5-3-10

Criminal Liabilities of an Individual for Conduct of an Enterprise .....

................................................................................................... 5-39

5-3-11

Unavailability of Justification Defense; Justification as Defense ......

................................................................................................... 5-39

5-3-12

Justification; Execution of Public Duty 5-39 ......................................

5-3-13

Justification; Use of Physical Force; Deadly Force 5-40 ..................

5-3-14

Justification; Self-defense .......................................................... 5-41

5-3-15

Justification; Defense of a Third Person ................................... 5-41

5-3-16

Justification; Use of Physical Force in Defense of Premises .... 5-42

5-3-17

Justification; Use of Physical Force in Defense of Property ..... 5-42

5-3-18

Justification; Use of Physical Force in Law Enforcement; Deadly

Physical Force .......................................................................... 5-42

5-3-19

Justification; Use of Force in Crime Prevention ........................ 5-44

5-3-20

Duress ....................................................................................... 5-44

5-3-21

No Civil Liability for Justified Conduct ........................................ 5-44

5-3-22

Immaturity ................................................................................. 5-45

5-3-23

Mental Disease or Defect: Burden of Proof .............................. 5-45

5-3-24

Effect of Intoxication; Consideration by Jury.............................. 5-55

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Sentencing Rules .................................................................................................. 5-46

5-4-1

Classification of Offenses ......................................................... 5-46

5-4-2

Designation of Offenses ........................................................... 5-47

5-4-3

Authorized Disposition of Offenders ......................................... 5-47

5-4-4

Dangerous and Repetitive Offenders ....................................... 5-49

5-4-5

Diagnostic/evaluative Commitment ........................................... 5-49

5-4-6

Civil Commitment after Imposition of Sentence ........................ 5-50

5-4-7

Sentence of Imprisonment ......................................................... 5-51

5-4-8

Sentencing ................................................................................ 5-51

5-4-9

Concurrent Terms of Imprisonment .......................................... 5-53

5-4-10

Calculation of Terms of Imprisonment ...................................... 5-53

5-4-11

Fines for Felonies ..................................................................... 5-54

5-4-12

Fine of Restitution for Offense Causing Death, Physical Injury or

Economic Loss .......................................................................... 5-54

5-4-13

Fines Against Enterprises ......................................................... 5-55

5-4-14

Time and Method of Payment of Fines ...................................... 5-55

5-4-15

Consequences of Nonpayment of Fines or Restitution ............ 5-55

5-4-16

Community Service .................................................................... 5-56

5-4-17

Disposition of Fines .................................................................. 5-57

5-4-18

Probation................................................................................... 5-58

5-4-19

Periods of Probation ................................................................. 5-58

5-4-20

Calculation of Periods of Probation .......................................... 5-58

Other Proceedings .......................................................................................... 5-59

5-5-1

Jurisdiction of the Court in Proceedings after Trial and Sentencing

................................................................................................... 5-59

5-5-2

Forfeiture ................................................................................... 5-59

5-5-3

Suspension of Civil Rights and Occupational Disabilities ......... 5-61

5-5-4

Restoration of Civil Rights; Person Completing Probation ........ 5-62

5-5-5

Applications by Persons Discharged from Jail ........................... 5-63

5-5-6

Setting Aside Judgment ............................................................ 5-64

5-5-7

Restoration of Civil Rights in the Discretion of the Tribal Court

Judge ........................................................................................ 5-64

5-5-8

Restoration of Civil Rights; Persons Completing Probation for

Federal Offense ....................................................................... 5-64

5-5-9

Applications by Persons Discharged from Federal Prison ........ 5-65

5-5-10

Restoration of Civil Rights; Automatic for First Offenders ......... 5-65

REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK

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PUEBLO OF ACOMA LAWS 2003

TITLE 5

RULES OF CRIMINAL PROCEDURE

Origins: These laws were adopted by the Pueblo of

Acoma Tribal Council as part of the 1985 Law and Order

Code unless otherwise noted. The 1995 Law and Order

Code re-formatted the provisions of the 1985 Law and

Order Code by sub-dividing the Title into Chapters and

providing Chapter headings, and re-numbering the

sections accordingly.

Chapter 1.

GENERAL MATTERS.

5-1-0.

Purposes. It is declared that the public policy of this Pueblo and the

general purposes of the provisions of this title are:

To proscribe conduct that unjustifiably and inexcusably causes or

threatens substantial harm to individual or public interests;

To give fair warning of the nature of the conduct proscribed and of

the sentences authorized upon conviction;

To define the act or omission and the accompanying mental state

which constitute each offense and limit the condemnation of

conduct as criminal when it does not fall within the purposes set

forth;

To differentiate on reasonable grounds between serious and minor

offenses and to prescribe proportionate penalties for each;

To insure the public safety by preventing the commission of

offenses through the deterrent influence of the sentences

authorized; and

To impose just and deserved punishment on those whose conduct

threatens the public peace.

Annotations: This section was previously located at

Section 5-0.0 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement and as reformatted by the

Pueblo of Acoma Laws 2003.

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Page 6 - 1

5-1-1.

Applicability of Title.

Except as otherwise provided by law, the procedure governing the

accusation, prosecution, conviction and punishment of offenders

and offenses is regulated by this title, the rules of criminal

procedure.

This title does not affect any power conferred by law upon federal

authorities, a court-martial or other military authority or officer to

prosecute and punish conduct and offenders violating military

codes or laws, nor any power conferred by law to impose or inflict

punishment for contempt.

This title does not bar, suspend or otherwise affect any right or

liability to damages, penalty, or other remedy authorized by law to

be recovered or enforced in a civil action, regardless of whether

the conduct involved in the proceeding constitutes an offense

defined in this title.

Except as otherwise expressly provided, or unless the context

otherwise requires, the provisions of this title shall govern the

construction of and punishment for offenses defined outside this

title.

Annotations: This section was previously located at

Section 5-1.0 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

At subsection A, the 1985 Law and Order Code stated

that the procedure governing the accusation,

prosecution, conviction and punishment is not regulated

by this title, but by the Rules of Criminal Procedure.

Since this title is entitled the Rules of Criminal

Procedure, the 1995 Restatement revised subsection

In light of the existing section concerning forfeiture which

appeared to address both criminal and civil forfeiture (in

rem), the reference to Aforfeiture@ after Apenalty@ in

subsection C was removed in the 1995 Restatement.

5-1-2.

Abolition of Common Law Offenses. All common law offenses are hereby

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abolished. No conduct or omission constitutes an offense unless it is an

offense under this title or under another statute or ordinance.

Annotations: This section was previously located at

Section 5-1.1 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-1-3.

Rule of Construction. The general rule that a penal statute is to be strictly

construed does not apply to this title, but the provisions herein must be

construed according to the fair meaning of their terms to promote justice

and effect the objects of the law, including the purposes stated in [Section

1.0 of this Title].

Annotations: This section was previously located at

Section 5-1.2 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement. The 1995 Restatement

supplied the bracketed information to add clarity.

5-1-4.

Definitions. In this title, unless the context otherwise requires:

"Accomplice" means a person, other than a peace officer acting in

his official capacity within the scope of his authority and in the

line of duty, who with the intent to promote or facilitate the

commission of an offense:

Solicits or commands another person to commit the offense;

Aids, counsels, agrees to aid or attempts to aid another

person in planning or committing the offense;

Provides means or opportunity to another person to

commit the offense.

"Act" means a bodily movement.

"Benefit" means anything of value or advantage, present or

prospective.

"Conduct" means an act or omission and its accompanying

culpable mental state.

Pueblo of Acoma Laws 2003 (2019 Replacement)

Page 6 - 3

"Crime" means a misdemeanor or a felony.

"Culpable mental state" means intentionally, knowingly, recklessly,

or with criminal negligence as those terms are defined:

"Intentionally" or "with the intent to" means, with respect to a

result or to conduct described by a statute defining an

offense, that a person's objective is to cause that result or to

engage in that conduct.

"Knowingly" means, with respect to conduct or to a

circumstance described by a statute defining an offense,

that a person is aware or believes that his or her conduct is

of that nature or that the circumstance exists.

"Recklessly" means, with respect to a result or to a

circumstance described by a statute defining an offense that

a person is aware of and consciously disregards a

substantial and unjustifiable risk that the result will occur or

that the circumstance exists. The risk must be of such

nature and degree that disregard of such risk constitutes a

gross deviation from the standard of conduct that a

reasonable person would observe in the situation. A person

who creates such risk but is unaware of such risk solely by

reason of voluntary intoxication also acts recklessly with

respect to such risk.

"Criminal negligence" means, with respect to a result or to a

circumstance described by a statute defining an offense,

that a person fails to perceive a substantial and unjustifiable

risk that the result will occur or that the circumstance exists.

The risk must be of such nature and degree that the failure

to perceive it constitutes a gross deviation from the standard

of care that a reasonable person would observe in the

situation.

"Dangerous drug" means any dangerous drug which according to

common usage alters one's mental state. It also includes any drug

identified on the list of controlled substances under federal law that

is not used or consumed in a legally approved way.

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Page 6 - 4

"Dangerous instrument" means anything that under the

circumstances in which it is used, attempted to be used or

threatened to be used is readily capable of causing death or

serious physical injury.

"Deadly physical force" means force which is used with the

purpose of causing death or serious physical injury or in the

manner of its use or intended use is capable of creating a

substantial risk of causing death or serious physical injury.

"Deadly weapon" means anything designed for lethal use. The

term includes a firearm.

"Enterprise" includes any corporation, association, labor union or

other legal entity.

"Felony" means any offense for which a sentence to a term of

imprisonment in excess of one year is authorized.

"Firearm" means any loaded or unloaded pistol, revolver, rifle,

shotgun or other weapon which will or is designed to or may

readily be converted to expel a projectile by the action of

expanding gases, except that it does not include a firearm in

permanently inoperable condition.

"Government" means the Pueblo, any political subdivision thereof

or any department, agency, board, commission, institution, or

governmental instrumentality of or within the Pueblo or political

subdivision.

"Government function" means any activity which a public servant is

legally authorized to undertake on behalf of a government.

"Intoxication" means any mental or physical incapacity resulting

from use of drugs, narcotics, toxic vapors or intoxicating liquors.

"Misdemeanor" means an offense for which a sentence to a term

of imprisonment of less than one year three hundred and sixty-four

days is authorized.

"Narcotic" means narcotic drugs as defined under the Acoma

Controlled Substances Act or the laws of the State of New Mexico.

Pueblo of Acoma Laws 2003 (2019 Replacement)

Page 6 - 5

"Offense" means conduct for which a sentence to a term of

imprisonment or of a fine is provided by any law of this Pueblo or

by any law, regulation or ordinance of a political subdivision of this

Pueblo.

"Omission" means the failure to perform an act as to which a duty

of performance is imposed by law.

"Peace officer" means any person vested by law with a duty to

maintain public order and make arrests.

"Person" means a human being and, as the context requires, an

enterprise, a public or private corporation, an unincorporated

association, a partnership, a firm, a society, a government or a

governmental authority.

"Petty offense" means an offense for which a sentence of a fine

only is authorized by law.

"Physical force" means force used upon or directed toward the

body of another person and includes confinement, but does not

include deadly physical force.

"Physical injury" means the impairment of physical condition.

"Possess" means knowingly to have physical possession or

otherwise to exercise dominion or control over property.

AA.

"Possession" means a voluntary act if the defendant knowingly

exercised dominion or control over property.

BB.

"Property" means anything of value, tangible or intangible.

CC.

"Public servant" means any officer or employee of any branch of

government, whether elected, appointed or otherwise employed,

including a peace officer, and any person participating as advisor,

consultant or otherwise in performing a governmental function.

The term does not include jurors or witnesses. "Public servant"

includes those who have been elected, appointed, employed or

designated to become a public servant although not yet occupying

that position.

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Page 6 - 6

DD.

"Serious physical injury" includes physical injury which creates a

reasonable risk of death, or which causes serious and permanent

disfigurement, or serious impairment of health or loss of protracted

impairment of the function of any bodily organ or limb.

EE.

"Unlawful" means contrary to law or, where the context so

requires, not permitted by law.

FF.

"Vehicle" means a device in, upon or by which any person or

property is or may be transported or drawn upon a highway,

waterway, airway or railroad.

GG.

"Voluntary act" means a bodily movement performed consciously

and as a result of effort and determination.

HH.

"Voluntary intoxication" means intoxication caused by the knowing

use of drugs, narcotics, toxic vapors or intoxicating liquors by the

defendant, the tendency of which to cause intoxication the

defendant knows or ought to know, unless the defendant

introduces them pursuant to medical advice or under such duress

as would afford a defense to an offense.

Annotations: This section was previously located at

Section 5-1.3 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. At subsection A, the

definition for AAccomplice@ formerly appeared at

Section 5-1.20 of the 1985 Law and Order Code. All

other definitions appeared collectively in Section 5-1.3 of

the 1985 Code.

5-1-5.

Time Limits.

A prosecution for any grievous bodily injury, misuse of public

monies, Pueblo felony or involving a falsification of public records

may be commenced within 5 years of the discovery by Pueblo

authorities of the offense. There are no time limits for commencing

prosecution where the victim of a first or second degree felony

offense is under age 18 years old.

Except as otherwise provided in this section, prosecutions for other

offenses must be commenced within two (2) years of the Pueblo

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Page 6 - 7

obtaining jurisdiction of the offense or discovery by the Pueblo

whichever is later.

For the purposes of subsection B, a prosecution is commenced

when a criminal complaint is filed.

The period of limitation does not run during any time when the

accused is absent from the Pueblo or has no reasonably

ascertainable place of abode within the Pueblo.

If a timely criminal complaint is dismissed for any error, defect,

insufficiency or irregularity, a new prosecution may be commenced

within six (6) months after the dismissal becomes final even if the

period of limitation has expired at the time of the dismissal or will

expire within six (6) months of such dismissal.

Annotations: This section was previously located at

Section 5-1.5 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. In the 1995 Restatement,

subsection E was revised to be compatible with Section

5-1-8 of that title which states Aall criminal actions shall

begin with a criminal complaint@. The words

Aindictment@ and Ainformation@ which appeared after

Acriminal complaint@ in the first line were deleted in the

1995 Restatement. This deletion was made globally in

the 1995 Restatement.

5-1-6.

Territorial Applicability.

This Pueblo has jurisdiction over an offense that a person commits

by his own conduct or the conduct of another for which such

person is legally accountable if:

Conduct constituting any element of the offense or a result

of such conduct occurs within this Pueblo; or

The conduct outside the Pueblo constitutes an attempt or

conspiracy to commit an offense within this Pueblo and an

act in furtherance of the attempt or conspiracy occurs within

this Pueblo; or

The conduct within this Pueblo constitutes an attempt,

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Page 6 - 8

solicitation, conspiracy or facilitation to commit, or

establishes criminal accountability for, the commission of

an offense in another jurisdiction that is also an offense

under the law of this Pueblo; or

The offense consists of an omission to perform a duty

imposed by the law of this Pueblo regardless of the location

of the defendant at the time of the offense; or

The offense is a violation of a statute of this Pueblo that

prohibits conduct outside the Pueblo.

This Pueblo includes the land and water and the air space above

the land and water.

Annotations: This section was previously located at

Section 5-1.6 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-1-7.

Disposition of Property Taken from Defendant; Receipts. When money or

other property is taken from a defendant arrested upon a charge of a

crime or public offense, the officer taking it shall at the time make duplicate

receipts therefor, specifying particularly the amount of money or the kind

of property taken.

Annotations: This section was previously located at

Section 5-1.14 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-1-8.

Complaint. All criminal actions shall begin with a criminal complaint filed

in the tribal court as outlined in Title 6.

Annotations: This section was previously located at

Section 5-1.71 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-1-9.

Arrest by Warrant Upon Complaint.

In lieu of a summons, an arrest warrant may be issued by the

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Page 6 - 9

Judge at his discretion following the filing of a complaint by a

complainant, officer, or the Tribal Prosecutor.

5-1-10.

When an accused is arrested under a warrant, he shall be taken

without unnecessary delay before the Judge who issued the

warrant and at such time a copy of the complaint and warrant shall

be given to him. Also, at such time, the Judge shall either:

Admit the accused to bail or release him upon personal

recognizance and give a summons to him; or

Order the accused held in custody and proceed without

unnecessary delay with arraignment according to this Code.

Arrest without Warrant.

A law enforcement officer may make an arrest without a warrant if

the officer has probable cause to believe that the person has

committed a crime, or for any other offense committed in the

officer’s presence, or if there is probable cause to believe the

person has violated a protective order.

A law enforcement officer may arrest a person without a warrant

when he is notified by telegraph, telephone, radio or other mode of

communication by another law enforcement officer of any other

jurisdiction that there exists a duly issued warrant for the arrest of a

person charged with a crime committed within his jurisdiction.

Arrest by Court Appointed Duly Authorized and Sworn Probation

Officer.

A duly authorized and sworn probation officer may arrest

any individual under pretrial or probation if he or she has a

warrant or probable cause to believe the arrested person

committed the crime. A probation officer making such an

arrest shall, without unnecessary delay, take the arrested

person before a judge.

In order to make the arrest a duly authorized and sworn

probation officer may use physical force as is justifiable.

However, a duly authorized and sworn probation officer shall

not carry fire arms but may carry nonlethal weapons such

Pueblo of Acoma Laws 2003 (2019 Replacement)

Page 6 - 10

as mace or a device that delivers an electronic nonlethal

shock.

5-1-11.

Arraignment.

An arraignment shall be conducted in open Court upon the

defendant's first appearance in Court unless defendant is granted

a continuance to seek assistance of counsel, to determine which

plea to enter, or for other good or sufficient reason. The Judge

shall advise each defendant of his right to have the arraignment

continued upon his request for good cause which may be made at

any time prior to pleading guilty or not guilty. If no such request is

made, the Judge may proceed with the arraignment in accordance

with this rule.

Except for good cause shown, or at the request of the defendant,

the Tribal Court shall hold an arraignment hearing for any

defendant in custody during the first 72 hours of custody. The

defendant may appear in person or by counsel.

Before defendant is called upon to plead guilty or not guilty, the

following proceedings shall be conducted by the Judge: The

complaint shall be read to the defendant or the substance of the

charge contained in the complaint shall be stated to him.

The defendant shall be given a copy of the complaint or

summons and complaint, if one has not been previously

served.

The defendant shall be advised of the maximum penalty

which the Judge may impose in event of conviction. The

judge shall inform the defendant of his rights, which shall

include, but not be limited to, the following:

The right to counsel and the right to a reasonable

continuance to obtain counsel. If the defendant

cannot afford counsel, one will be appointed for

them at the expense of the Confederated Tribes.

Pueblo.

The right to be informed of the charges against him.

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5-1-12.

The right to have the Court compel the witnesses

against him to appear and testify.

The right to cross-examine

witnesses against him.

The right to call witnesses in his own behalf and to

have the Court issue subpoenas within its

jurisdictional limits notifying the witnesses to appear.

The right to a speedy and public trial. The right to a

jury trial.

At trial, the right to testify or not to testify in his own

behalf, because he has the privilege against selfincrimination.

If found guilty, the right to appeal.

The right to file a writ of habeas corpus in the United

States District Court if defendant feels his rights have

been violated.

The right to be released on bail or on his own

recognizance pending trial.

The reading of any or all of these rights may be

waived by a defendant represented by legal counsel.

and

question

the

Pleas.

A defendant, personally or by counsel, may plead not guilty, guilty

or no contest.

Plea of Not Guilty. If defendant pleads not guilty, the Judge shall:

Ask the defendant if he wants a jury trial, or if he waives

his right to a jury trial. (If the maximum amount of time a

defendant may be imprisoned for any charge is six months

or less, the Court will inform the defendant of the

requirements for posting a bond to cover the cost of a jury

trial according to this code.) If defendant requests a jury trial,

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the case shall be placed on the jury trial calendar. If

defendant waives his right to a jury trial, the Judge shall

record the waiver in the case record. The Judge may

continue the case to allow defendant time to decide.

Set the date and time for trial, or for further proceedings.

Advise the defendant of his right to bail if the defendant is

still in custody upon arrest with or without warrant. If bail has

not yet been set, the Judge shall set bail, and if bail has

already been set, the amount shall be reviewed. Bail shall

be set or defendant released on personal recognizance

according to the Code.

Plea of Guilty or No Contest. The Court shall not accept the plea

of guilty or no contest without first addressing the defendant

personally and determining that the plea is made voluntarily with

understanding of the nature of the charge, and explaining fully to

the defendant his right to trial by jury, his right to engage counsel,

and the maximum penalty possible for the offense charged.

If a defendant refuses to plead or if the Judge refuses to

accept a plea of guilty or no contest, the Judge shall enter a

plea of not guilty. The Judge shall not enter a judgment upon

a plea of guilty unless he is satisfied that the defendant is

pleading guilty because he, in fact, committed the offense of

which he is charged.

A plea of guilty or no contest shall in no case be entered

except by the defendant in person.

A plea of guilty may be withdrawn:

At any time before judgment at the Judge's

discretion and a plea of not guilty substituted.

Before sentencing, upon a dequate or compelling

reason given by the defendant.

A defendant may be permitted to plead guilty to lesser

degree of the offense charged, or to a lesser offense

included within the offense charged, and if so, the reasons

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for the acceptance of such plea shall be set forth in the order

of the Court, and any recommendations by an officer or the

prosecutor, with the reasons therefore, shall be stated in

writing and filed in the official files of the case.

5-1-13.

Upon acceptance of a plea of guilty or no contest, the Judge

may sentence immediately or at a later date.

Bail.

Entitlement. Every defendant shall be entitled to bail. Bail shall be

set by the Judge. Bail is allowable pending appearance before the

Trial Court, or, if after conviction, during any state of execution or

pending appeal. Bail shall be set at the close of arraignment, unless

exceptional circumstances require it being set at an earlier

proceeding.

Amount. A defendant shall be admitted to bail in an amount which

in the judgment of the Judge is necessary and sufficient to insure

the defendant's presence at future Court proceedings at which

defendant's presence is required.

Form of Bail Bond and Place of Deposit. A defendant admitted to

bail shall execute a bond for his appearance in Court on a

designated day, and from day to day thereafter as the Judge may

deem appropriate. The bail bond may be in the form of cash, some

type of surety arrangement, or other kind of security as may be

acceptable in the judgment of the Judge. A personal recognizance

bond may be allowed by the Judge at his discretion in lieu of cash,

surety or other kind of security bond. The bond shall be made and

deposited in the office of the Clerk of the Court.

Disposition of Bail. 1) Forfeiture. If there is a breach of condition, of

a bond, the Judge shall declare a forfeiture of the bail. 2) Setting

Aside. The Judge may direct that a forfeiture be set aside, upon

such conditions as the Judge may impose, if it appears that justice

does not require the enforcement of the forfeiture. 3) Enforcement.

By entering into a bond each obligor, whether defendant or surety

submits to the jurisdiction of the Court. His liability under the bond

may be enforced, without the necessity of an independent action.

The Judge shall order the issuance of a citation directed to the

obligor to show cause why judgment should not be entered against

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him forthwith and execution issued thereon. The defendant and the

prosecutor shall be given notice of the hearing. At the conclusion of

the hearing, a judgment and execution shall issue thereon as on

other judgments. Judgment may be for Contempt of Court and bail

posted may also be forfeited.

5-1-14.

Motions During Arraignment. Any defense or objection which is capable

of determination without the trial of the general issue may be raised

during arraignment.

5-1-15.

Joinder of Defendants of Offenses of Trial. During arraignment, the Judge

may order two or more defendants to be tried together if the offenses and

defendants could have been joined in a single complaint. The joinder, if

ordered, must occur at least 15 days prior to trial, and notice shall be given

to defendant forthwith.

5-1-16.

Pretrial Motions.

Generally. Any defense or objection which is capable of

determination without the trial of the general issue and which are

not required to be raised during arraignment must be raised by

pretrial motion on or before the pretrial conference. The failure to

raise such motion may be grounds for denial if there is not good

cause for the late filed motion or it prejudices the other party.

Pretrial motions include but are not limited to the following:

Motions for use of interpreter;

Motion for continuance of the trial date;

Motion to dismiss complaint for lack of jurisdiction or for

failure to charge an offense;

Motion to suppress evidence. A motion to suppress

evidence may be made when it is learned through discovery

or other pretrial procedures that an opposing party intends

to introduce evidence that is inadmissible under these

rules.

Motion for pretrial conference. At any time after the filing of

the complaint, the Court, upon motion of any party or upon

its own motion, may order one or more conferences to

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consider such matters as will promote a fair and expeditious

trial. At the conclusion of a conference, the Judge shall

prepare and file a memorandum of the matters agreed

upon.

5-1-17.

Time and Manner of Making and Opposing Motions. Motions made

under this rule shall be written and supported by reasons therefore,

and shall be filed not later than 15 days before the trial date or not

later than the pretrial conference, whichever is first. Such motions

shall be served on the opposing party simultaneously with filing

thereof. Response in opposition to such motions shall be made in

writing and supported by reasons therefore, and shall be filed not

later than ten days after the original motion, unless the Court

orders a different schedule. Responses in opposition shall be

served simultaneously with the filing thereof. The Judge, at his

discretion, may direct that any motion be made orally.

Determination of Motions. The Judge may enter judgment on

pretrial motions solely on papers filed, or he may set a date and

time for hearing of pretrial motions.

Discovery.

Disclosure of evidence by prosecution, information subject to

disclosure.

Statement of Defendant. Upon request of a defendant the

tribe shall permit the defendant to inspect and copy or

photograph; any relevant written or recorded statements

made by the defendant, or copies thereof, within the

possession, custody or control of the Tribe, the existence of

which is known, or by the exercise of due diligence may

become known, to the attorney for the Tribe; the substance

of any oral statement which the Tribe intends to offer in

evidence at the trial made by the defendant whether before

or after arrest in response to interrogation by any person

then known to the defendant to be a Tribal agent; and

recorded testimony of the defendant which relates to the

offense charged.

Defendant's Prior Record. Upon request of the defendant,

the Tribe shall furnish to the defendant such copy of his

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prior criminal record, if any, as is within the possession,

custody or current control of the Tribe, the existence of which

is known, or by the exercise of due diligence may become

known, to the attorney for the Tribe.

Documents and Tangible Objects. Upon request of the

defendant the Tribe shall permit the defendant to inspect

any copy or photograph books, papers, documents,

photographs, tangible objects, buildings or places, or

copies or portions thereof which are within the possession,

custody or control of the Tribe, and which are material to the

preparation of his defense are intended for use by the Tribe

as evidence in chief at the trial, or were obtained from or

belong to the defendant. Where the defendant is indigent or

represented by the public defender the Court will provide,

upon request copies of documents to the defense counsel.

Reports and Examinations and Tests. Upon request of a

defendant the Tribe shall permit the defendant to inspect

and copy or photograph any results or reports of physical or

mental examinations and of scientific tests or experiments,

or copies thereof, which are within the possession, custody

or control of the Tribe, the existence of which is known, or

by the exercise of due diligence may become known, to the

attorney for the Tribe, and which are material to the

preparation of the defense or are intended for use by the

Tribe as evidence in chief at the trial. Where the defendant

is indigent or represented by the public defender the Court

will provide, upon request copies of documents to the

defense counsel.

Information not subject to disclosure. Except as provided in

paragraphs (1), (2) and (4) of subsection (A), this rule does

not authorize the discovery or inspection of reports,

memoranda or other internal Tribal documents made by the

attorney for the Tribe or other Tribal agents in connection

with the investigation or prosecution of the case, or of

statements made by Tribal witnesses or prospective Tribal

witnesses.

Disclosure of evidence by defense, information subject to

disclosure.

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5-1-18.

Documents and Tangible Objects. If the defendant requests

disclosures under subsection (A)(3) or (4) of this rule, upon

compliance with such request by the Tribe, the defendant,

on request of the Tribe, shall permit the Tribe to inspect and

copy or photograph books, papers, documents,

photographs, tangible objects, or copies or portions thereof,

which are within the possession, custody or control of the

defendant and which the defendant intends to introduce as

evidence in chief at the trial.

Reports of Examinations and Tests. If the defendant

requests disclosure under subdivision (A)(3) or (4) of this

rule, upon compliance with such request by the Tribe, the

defendant, on request of the Tribe, shall permit the Tribe to

inspect and copy or photograph any results or reports of

physical or mental examinations and of scientific tests or

experiments made in connection with the particular case, or

copies thereof, within the possession or control of the

defendant, which the defendant intends to introduce as

evidence in chief at the trial or which were prepared by a

witness whom the defendant intends to call at the trial when

the results or reports relate to his testimony.

Information Not Subject to Disclosure. Except as to scientific

or medical reports, this subdivision does not authorize the

discovery or inspection of reports, memoranda, or other

internal defense documents made by the defendant, or his

attorneys or agents in connection with the investigation or

defense of the case, or of statements made by the

defendant, or by Tribal or defense witnesses, or by

prospective Tribal or defense witnesses, to the defendant,

his agents or attorneys.

Subpoena

Attendance of Witnesses, Form, Issuance. A subpoena shall be

issued by the Judge or by the clerk under authority of the Judge. It

shall state the name of the Court and the title, if any, of the

proceedings, and shall command each person to whom it is

directed to attend and give testimony at the time and place

specified therein.

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5-1-19.

Service. A subpoena may be served by any officer, or by any

person, not a party, who is 18 years of age or over. Service of a

subpoena shall be made by delivering a copy thereof to the person

ordered to appear.

Proof of Service. Proof of service of a subpoena shall be made by

the to be served cannot be located, the person who attempted to

serve the subpoena shall file a statement of attempt to serve which

shall describe his efforts at service.

Contempt. Failure by any person without adequate excuse to obey

a subpoena served upon him may be deemed a contempt of the

Court from person who served the subpoena in accordance with

this Code. If the person which the subpoena is issued.

Trial by Court.

Upon the waiver by the defendant of his right to a trial by a jury he

shall have a trial by the Court in accordance with these rules. The

prosecution has the burden of proving beyond a reasonable doubt

that the defendant is guilty of an offense as charged. A person

does not have a right to a jury trial for civil infractions.

Opening Statements. Both parties shall have the right to make an

opening statement to summarize for the Court the facts, evidence

and arguments each will present and rely on during trial. The

prosecution shall present its statement first and the defense shall

have the option of making its opening statement at that time or

after the prosecution has completed the presentation of its case.

Either side may waive the opening statement.

Presentation of the Prosecution's Case. Upon the completion of

the opening statements, the prosecution shall present to the Court,

all of the evidence and testimony of witnesses on the prosecution's

side of the case.

Presentation of the Defendant's Case. Upon the completion of the

presentation of the prosecution's case and after making any

appropriate motions, the defense shall present to the Court all the

evidence in accordance and testimony of witnesses for the

defendant's case.

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5-1-20.

Reopening Case. After the presentation of both sides of the case

either side may ask that the case be reopened to allow the

presentation of evidence or testimony that was inadvertently

omitted, unavailable or non-existent earlier in the trial. Whether

such evidence or testimony will be received is in the discretion of

the Court.

Closing Arguments. After the presentation of both sides of the

case, both parties shall have the right to make closing arguments

in which they may interpret the facts and argue the law and

generally summarize the case as they interpret it. Either side may

waive their right to making closing arguments.

Trial by Jury.

The defendant shall have the right to a trial by a jury of his peers

composed of not less than six persons and one alternate unless

such right has previously been waived. The prosecution has the

burden of proving beyond a reasonable doubt that the defendant is

guilty as charged.

Selection of the Jury.

Voir Dire. The prosecution and defense, in that order, shall

have the opportunity to ask questions of the prospective

jurors as they are individually called upon by the court to

determine if there is any reason why a particular candidate

should not be seated as a juror. Either party may question

the propriety of any question asked by the other party of a

prospective juror and it shall be within the discretion of the

Court to rule on the propriety of the question.

Challenges. When both sides have completed their voir

dire questioning of the six prospective jurors and the one

alternate, they shall confer privately with the Judge and state

all challenges they have to make against any prospective

juror.

Preemptory Challenges. Both parties shall have four

preemptory challenges with which they may disqualify

any prospective juror and need not state any reason

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for doing so.

Challenges for Cause. When it is established that

any prospective juror is prejudiced, biased or

otherwise unable to sit as a fair and impartial juror,

he may be disqualified by a challenge for cause by

either side. The allowance or disallowance of a

challenge for cause shall be within the discretion of

the Court. The number of challenges for cause by

either party is unlimited.

Oath to Trial Jury. After the six members and one alternate

of the jury have been selected and seated, the Court shall

administer an oath by which the jury swears that it will act

fairly and impartially in the trial it will hear.

Opening Statements. Both parties shall have the right to make an

opening statement to summarize for the Court and the jury the

facts, evidence and arguments each will present or rely on during

trial. The prosecution shall present its statement first and the

defense shall have the option of making its opening statement at

that time or after the prosecution has completed the presentation

of its case. Either side may waive the opening statement.

Presentation of the Prosecution's Case. Upon the completion of

the opening statements, the prosecution shall present to the Court

and jury all of the evidence and testimony of witnesses on the

prosecution's side of the case.

Presentation of the Defendant's Case. Upon the completion of the

presentation of the prosecution's case and after making any

appropriate motions, the defense shall present to the Court and

jury, all of the evidence and testimony of witnesses for the

defendant's case.

Reopening Case. After the presentation of both sides of the case,

either side may ask that the case be reopened to allow the

presentation of evidence not discovered, unavailable or nonexistent earlier in the trial. Whether such evidence or testimony will

be received is in the discretion of the Court.

Closing Arguments. After the presentation of both sides of the

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case, both parties shall have the right to make closing arguments

in which they may interpret the facts and argue the law and

generally summarize the case as they interpret it. Either side may

waive their right to make closing arguments.

5-1-21.

Jury Deliberations. Upon completion of the closing arguments and

the reading of instructions to the jury by the Court, the jury shall

retire to a place where privacy and freedom from outside

interference and interruption is assured. The jury members shall

first elect from among their number a foreman who shall act as

spokesman for the jury. They shall then evaluate and weigh the

evidence, resolve the conflicts and inconsistencies, apply the law

to the facts as previously instructed by the Court and reach a

verdict of guilty or not guilty by unanimous vote. The foreman shall

notify the Judge when a verdict has been reached.

Objections. Objections may be made by either party to test the

validity of any procedural, substantive, or evidentiary matter before

the Court during any hearing or trial. All objections shall be made

at the time the objectionable matter arises and the specific grants

therefore shall be stated. The Court shall either rule immediately

on the objection or take the matter under advisement for a later

ruling in its discretion.

Motions at Trial.

Either party may make motions, all of which shall be oral unless

otherwise directed by the Court throughout the course of the trial.

Both parties shall have the opportunity to argue their respective

positions on any motion made. The motions that can be made shall

include but not be limited to the following:

Motion for a Directed Verdict.

At the close of the prosecution's case, the defense may

move that the Court direct a verdict of not guilty. Defendant's

motion shall be granted only if the prosecution has failed to

present a prima facie case.

Either party may make a motion for a direct verdict at the

close of the defendant's case. A directed verdict of not guilty

can be made when the prosecution failed to present a prima

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facie case and a directed verdict of guilty can be made if the

Court finds as a matter of law that no adequate defense was

presented.

5-1-22.

Motions for Exclusion of Witnesses. A motion to exclude all

witnesses who have not yet testified may be made by either party or

done by the Court on its own initiative, prior to the time any witness

has testified to insure that the testimony of all witnesses is his own

independent recollection of the facts and that he does not adopt the

testimony of a prior witness. It shall be within the discretion of the

Court to grant or deny a motion to exclude witnesses made by

either party.

Motion for Mistrial. A motion for a mistrial can be made at any

time during the trial and can be granted in the Court's discretion. A

party may make a motion for a mistrial when any action by any

person other than the moving party, has the effect of prejudicing the

outcome of the trial to the point that such prejudice could only be

overcome by holding a new trial.

Motion for Judicial Notice. Either party may, during the

presentation of its case, move the Court to take judicial notice of

matters which by their nature, are not properly the subject of

testimony or which are universally regarded as established by

common notoriety. Granting or denying the motion shall be within

the discretion of the Court.

Motion for a New Trial. The defendant may make a motion for a

new trial after a verdict of guilty has been rendered against him.

The motion must specifically allege the errors made by the Court

during the trial which forms the basis for the motion. The motion

shall be granted or denied as justice dictates.

Motion to Exclude Evidence. A motion to exclude evidence may

be made during the course of a trial when an opposing party

introduces evidence that is inadmissible under these rules.

Any motion for an alleged violation of defendant’s speedy trial

rights must be made no later than the pretrial conference or 30 days

prior to the trial date whichever is sooner.

Evidence.

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All evidence which the Court deems proper and necessary

for reaching a true and just verdict or which is in accordance with

Tribal customs and traditions, provided it is otherwise admissible

under the Court’s rules of evidence, shall be admitted subject to

rules governing the permissible scope of search and seizure. In

reaching a decision on the admissibility of any evidence, the Court

may avail itself of any materials, books or documents prior to

ruling. Unless otherwise specified the Pueblo of Acoma Tribal Court

relies upon Federal Rules of Evidence except where those rules are

in direct conflict with Tribal Tradition. Further, a party may motion

the Tribal Court to use New Mexico Rules of Evidence where

appropriate and the Court will consider whether a New Mexico

evidentiary rule is more appropriate where it conflicts with federal

rules.

In a case involving domestic or family violence as defined in Title

6, spousal privileges are inapplicable in criminal proceedings in

which a spouse or other family or household member is a victim of

an alleged crime involving domestic or family violence perpetrated

by the other spouse, this includes the privilege of confidential

communications between spouses and the testimonial privilege of

spouses.

Where the Pueblo of Acoma does not possess a specific

evidentiary rule the Court shall first examine the Federal Rules of

Evidence where it is not inconsistent with Pueblo traditions and

customs and/or other parts of this Code. A party may argue that

the New Mexico Rules of Evidence provide better authority as to a

specific point of law and the Court shall consider it as long as it is

not inconsistent with Pueblo traditions and customs and/or other

parts of this Code.

Witnesses. The testimony of witnesses shall be given orally

unless the witness, for good reason presented to the Court, is or

will be unable to appear personally in Court, in which case

arrangements shall be made by the party calling the witness, for

both parties to simultaneously question the witness under oath for

purposes of obtaining a written statement for presentation to the

Court at trial. Before either party relies or comments on a written

statement so taken at trial, it shall be presented to the Court and he

shall strike out any questions, answers or statements he deems

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improper. Any witness testifying in Court or being questioned for

purposes of a written statement shall be subject to direct

examination by the party who called him as a witness, crossexamination by the opposing party, redirect examination by the

party who called him and re-cross examination by the opposing

party.

The Defendant as a Witness. The defendant cannot be compelled

to testify as a witness. If the defendant invokes this privilege and

does not testify, the Court and jury shall not consider such action

as an indication of evidence of guilt. If the defendant voluntarily

testifies he shall be subject to direct, cross, redirect, and re-cross

examination, the same as any other witness.

Search and Seizure. Evidence obtained by unlawful search and

seizure is inadmissible. Lawful searches and seizures may be

made in accordance with the following subsections.

Permissible Objects of Search and Seizure. The following

are subject to search and seizure:

Evidence of or information

commission of a criminal offense;

Contraband, the fruits of crime, or things otherwise

criminally possessed;

Property that has been used, to commit or conceal

the commission of an offense; and

A person for whose arrest there is probable cause or

who is unlawfully held in concealment.

concerning

the

Issuance of Search Warrant.

A search warrant may be issued only by a Judge

Application for a search warrant may be made only

by a tribal attorney or by any tribal police officer.

The

application

shall

consist

proposed warrant in conformance with this

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section, and shall be supported by one or

more affidavits particularly setting forth the

facts and circumstances tending to show that

such things are in the places, or in the

possession of individuals, to be searched. If an

affidavit is based in whole or in part on

hearsay, the affiant shall set forth facts bearing

on any unnamed informants reliability and shall

disclose, as far as possible, the means by

which the information was obtained.

ii.

Instead of the written affidavit, the Judge may

take an oral statement under oath when

circumstances exist making it impractical for

a tribal attorney or police officer to obtain a

warrant in person. The oral statement shall be

recorded.

Contents of Search Warrant.

A search warrant shall be dated and shall be

addressed to and authorize its execution by an officer

authorized by law to execute search warrants.

The warrant shall state, or describe with particularity:

The identity of the Judge issuing the warrant

and the date the warrant was issued;

ii.

The name of the person to be searched, or the

location and designation of the premises or

places to be searched;

iii.

The things constituting the object of the search

and authorized to be seized; and

iv.

The period of time, not to exceed five (5) days,

after execution of the warrant except as

provided in subparagraph (c) of this paragraph,

within which the warrant is to be returned to the

issuing authority.

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Except as otherwise provided herein, the search warrant shall be

executed between the hours of 7:00 AM and 10:00 PM and within

five days from the date of issuance. The Judge issuing the warrant

may, however, by endorsement upon the face of the warrant,

authorize its execution at any time of the day or night and may

further authorize its execution after five days, but not more than ten

days from date of issuance.

Execution of Warrant.

A search warrant may be executed only within the period

and at the times authorized by the warrant and only by a

police officer. A police officer charged with its execution may

be accompanied by such other persons as may be

reasonably necessary for the successful execution of the

warrant with all practicable safety.

The executing officer shall, before entering the premises,

give appropriate notice of his identity, authority and purpose

to the person to be searched, or to the person in apparent

control of the premises to be searched, as the case

may be.

Before undertaking any search or seizure pursuant to the

warrant, the executing officer shall read and give a copy of

the warrant to the person to be searched, or to the person in

apparent control of the premises to be searched. If the

premises are unoccupied or there is no one in apparent

control, the officer shall leave a copy of the warrant suitably

affixed to the premises.

Scope of Search. The scope of search shall be only such as

is authorized by the warrant and is reasonably necessary to

discover the persons or things specified therein. Upon

discovery of the persons or things so specified, the officer

shall take possession or custody of them and search no

further under authority of the warrant. If in the course of the

search the officer discovers things, not specified in the

warrant, which he has probable cause to believe to be

subject to seizure under paragraph (1) which he did not

have probable cause to expect to find, he shall also take

possession of the things discovered.

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List of Things Seized. Promptly upon completion of the

search, the officer shall make a list of the things seized, and

shall deliver a receipt embodying the list to the person from

whose possession they are taken, or the person in apparent

control of the premises or vehicle from which they are taken.

If the vehicle or premises are unoccupied or there is no one

present in apparent control, the executing officer shall leave

the receipt suitably affixed to the vehicle or premises.

Return of the Warrant.

a. If a search warrant is not

executed within the time specified by the warrant, the officer

shall forthwith return the warrant to the issuing Judge. b.

An officer who has executed a search warrant shall, as soon

as is reasonably possible and in no event later than the date

specified in the warrant, return the warrant to the issuing

Judge together with a signed list of things seized and setting

forth the date and time of the search. c. Subject to the

provisions of this paragraph, the issuing Judge shall have

the Court file the warrant and list returned to him, with

the record of the proceedings on the application for the

warrant made.

Handling and Disposition of Things Seized.

If an officer makes an arrest in connection with the

seizure, he shall, as soon thereafter as is reasonably

possible, make a written list of the things seized and

furnish a copy of the list to the defendant.

If no claim to rightful possession has been

established, the court shall order that the things be

delivered to the officials having responsibility under

the applicable laws for selling, destroying or

otherwise disposing of contraband, forfeited or

unclaimed goods in official custody.

If things seized in connection with an arrest are not

needed for evidentiary purposes, and if a person

having a rightful claim establishes his identity and

right to possession beyond a reasonable doubt they

may be returned to their rightful possessor. If the

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things seized are perishable and it is not possible to

return them to their rightful possessor, the seizing

officer may dispose of the items as justice and the

necessities of the case require.

5-1-23.

Motion for Return or Restoration of Things Seized.

a. Within 90 days after actual notice of any seizure,

or at such later date as the court in its discretion may

allow:

An individual from whose person, property or

premises things have been seized may move

the appropriate court to return things seized to

the person or premises from which they were

seized.

ii.

Any other person a claim to rightful

possession of the things seized may move the

appropriate court to restore the things seized

to the movant

Verdict.

Upon the completion of the closing arguments, the Court or jury, as

the case may be, shall render its verdict.

Verdict by Court. The Court shall render a verdict of guilty if it

believes the defendant to be guilty beyond a reasonable doubt,

otherwise it shall render a verdict of not guilty. The Court shall have

the option of rendering a verdict immediately after closing

arguments or taking the case under advisement and ruling on it at a

later date.

Verdict by Jury. If a unanimous jury has found beyond a reasonable

doubt that the defendant is guilty, a verdict of guilty shall be

rendered. Otherwise, a verdict of not guilty or is the jury is split as

to guilt or not guilt then a mistrial is declared and defendant may be

retried or the prosecution may dismiss the charges.

Verdict of Not Guilty. If a verdict of not guilty is rendered by either

the Court or the jury, judgment shall be rendered immediately and

the defendant shall be immediately released from custody.

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5-1-24.

Verdict of Guilty. If a verdict of guilty is rendered by either the Court

or jury, the Court shall so advise the defendant in open Court, set a

date for sentencing, and enter a judgment of guilty in the Court's

records.

Sentencing Procedure.

On the date set for sentencing the defendant shall appear before

the Court and sentence shall be pronounced.

The purpose of

sentencing is to achieve restorative justice for the Pueblo,

community, victim(s) and/or defendant(s). This goal may be

achieved through where appropriate: incarceration, probation,

community service, and/or a deferral program such as Wellness

Court.

Pre-sentence Investigation. The Court may, in its discretion, order

that a pre-sentence investigation report shall inquire into the

characteristics, attitude, circumstances, needs, and potential of the

defendant, his criminal and social history, circumstances of the

offense and any other information pertinent to sentencing. The

report may also at the Court’s discretion, obtain any other

information necessary to achieve restorative justice for the Pueblo,

community, victim(s) and/or defendant(s) and the Court may ask

probation, social services, behavioral health services and/or any

other department or community members for relevant information.

Availability to Defendant. A pre-sentence investigation, if ordered,

shall be available to defendant and he shall have an opportunity to

rebut the contents thereof and offer information in addition thereto

prior to sentencing.

Chapter 2.

PROCEDURAL RIGHTS OF CRIMINAL DEFENDANTS

5-2-1.

Former Jeopardy or Acquittal as Bar to Same or Lessor Offenses. When

the defendant is convicted or acquitted, or has once been placed in

jeopardy upon a criminal complaint, the conviction, acquittal or jeopardy

is a bar to another criminal complaint for the offense charged or for an

attempt to commit the offense, or for any offense necessarily included

therein, of which he might have been convicted under the criminal

complaint.

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Annotations: This section was previously located at

Section 5-1.8 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-2-2.

Former Conviction or Acquittal in Another Jurisdiction. When in the trial of

an accused person it appears that upon a criminal prosecution under the

laws of the United States or of another state or country, founded upon the

act or omission in respect to which he is on trial he has been acquitted or

convicted, [the acquittal or conviction] may be pleaded as a defense at a

pre-trial hearing.

Annotations: This section was previously located at

Section 5-1.9 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. The 1995 Restatement

supplied the necessary information in brackets to add

clarity.

5-2-3.

Speedy Trial; Counsel; Witnesses and Confrontation.

In a criminal action a defendant is entitled to:

Have a speedy public trial by an impartial jury of six

members of the Pueblo de Acoma, or other jury pool

established by the Tribal Code of the Pueblo de Acoma.

Have counsel at his own expense, except where the Pueblo

is required by this Code to provide counsel.

Produce witnesses on his behalf, and to be confronted with

the witnesses against him in the presence of the court,

except that the testimony by deposition of a witness may be

received in evidence for good cause shown.

Upon conviction or [plea of guilty or no contest] a defendant may

be assessed the reasonable costs of his prosecution including the

cost of a jury trial and/or jail sentence. Pursuant to this Title a

defendant may have to post a bond to cover costs. Upon a

conviction of any of the charges the bond is forfeit. The bond is

returned (minus any fees/fines owed to the Court and/or Pueblo) if

there is an acquittal or dismissal of all charges.

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Annotations: This section was previously located at

Section 5-1.10 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. Pueblo of Acoma Laws

2003 supplied the necessary information in brackets to

add clarity.

5-2-4.

Presumption of Innocence and Benefit of Doubt; Degree of Guilt.

A defendant in a criminal action is presumed to be innocent until

the contrary is proved, and in case of a reasonable doubt whether

his guilt is satisfactorily shown, he is entitled to be acquitted.

When it appears that a defendant has committed a crime or public

offense, and there is reasonable ground of doubt in which of two or

more degrees he is guilty, he may be convicted of the lowest of

such degrees only.

Annotations: This section was previously located at

Section 5-1.11 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-2-5

Defendant as Witness; No Comment on Failure to Testify.

A defendant in a criminal action or proceeding shall not be

compelled to be a witness against himself, but may be a witness

in his own behalf. If he offers himself as witness in his own behalf,

he may be cross-examined to the same extent and subject to the

same rules as any other witness.

The defendant's neglect or refusal to be a witness in his own

behalf shall not in any manner prejudice him, or be used against

him in the trial or proceedings.

Annotations: This section was previously located at

Section 5-1.13 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-2-6.

Double Punishment.

An act or omission which is made punishable in

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different ways by different sections of the laws may be punished under

both. An acquittal or conviction and sentence under either one bars a

prosecution for the same act or omission under any other, to the extent

the Constitution of the United States or the laws of this Pueblo require.

Annotations: This section was previously located at

Section 5-1.12 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-2-7.

Right to a Jury Trial with Impartial Jury.

In any criminal proceeding, a defendant has a right to an impartial

jury drawn from sources that reflect a fair cross section of the

community and do not systematically exclude any distinctive group

in the community, including non-Indians.

The defendant shall have the right to a trial by a jury of his peers

composed of not less than six persons and one alternate unless

such right has previously been waived or a defendant refuses to

post any required bond. The prosecution has the burden of proving

beyond a reasonable doubt that the defendant is guilty as charged.

The jury’s verdict must be unanimous.

Eligibility, List, Record of Service.

Any resident within the boundaries of the Pueblo of Acoma

of the age of 18 or over is eligible to be a juror regardless of

race or tribal citizenship.

In addition, an individual who works for the Pueblo of

Acoma, or any other business located within the Pueblo who

is 18 years or older is also eligible to be a juror regardless of

race or tribal citizenship.

A list of eligible jurors shall be kept by the Clerk of the Court

and a record of each juror's service as a juror shall be noted

thereon. The list shall be compiled from the names kept by

the Tribal Enrollment Office, the county voting rolls for

individuals who reside within the Pueblo and the names of

individuals employed within Acoma. The governmental

departments for Acoma and Pueblo businesses shall

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cooperate with the Court in compiling this list.

Selection of Jury Panel. In January of each year, the Judge

shall select at least 80 names from the list of eligible jurors

and each shall be notified of his or her selection. This

selected list shall comprise the trial jury list for the ensuing

year from which jury panels shall be selected from time to

time. A jury panel shall consist of not less than 18 names.

Time and Manner of Notification. Those persons who are

selected to serve on a jury panel shall be notified at a

reasonable time prior to the trial date but not less than 10

days prior to trial and the notice shall state the date, time,

place and title of the proceeding for which they shall serve.

Exemption From Jury Service.

Any individual selected for jury service may motion the

Court to be excused for good cause.

Upon review of a motion or for other good cause shown, the

Judge may exempt any person from jury service.

The Judge shall order the exemption be either permanent or

for a specified period of time. If the exemption is temporary,

the name of the prospective juror shall be returned to the

annually selected jury list for possible selection for another

panel at the expiration of the exemption. In the Court's

discretion, the name of a person with a temporary

exemption may be removed for that year from the selected

list of jurors.

If the exemption is permanent, the name of the person shall

be removed from the list of eligible jurors.

Any individual selected for jury service and not exempted,

who does not report to Court when notified of service may

be held in contempt.

Bond for Jury Trial for Minor/Petty Offenses

In order to preserve scarce Tribal resources, for any offense

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where the maximum penalty for imprisonment is six months

or less the defendant will, prior to trial and/or at the time of a

request for a jury, post a bond to be set by the Court to

cover the cost of the jury.

If the defendant is found not guilty or the jury trial does not

take place the bond will be refunded to the defendant

(minus fines/fees the defendant owes the Pueblo that have

been properly assessed from any other matters). If the

defendant is found guilty by the jury of any single offense for

which he or she is charged the entire bond will be forfeit.

A defendant may for good cause timely file a motion to

waive this bond requirement that will be considered by the

Court. A defendant’s indigent is a factor but not dispositive

in the court’s consideration of the motion.

5-2-8.

Every defendant is entitled to those rights enumerated in the Indian Civil

Rights Act, 25 U.S.C. §1302.

5-2-9.

Every defendant has the right to effective assistance of counsel at least

equal to that guaranteed by the United States Constitution.

5-2-10.

Right to Counsel for Indigent Defendant.

5-2-11.

The Pueblo of Acoma shall provide any indigent defendant who is

charged with any offense where the maximum time of

imprisonment is more than six months, at trial, on appeal and for

each critical stage in the proceeding, the assistance of a defense

attorney licensed to practice law by any jurisdiction in the United

States, including tribes, provided that jurisdiction applies

appropriate licensing standards and effectively ensures the

competence and professional responsibility of its licensed

attorneys.

Where the public defender is not appointed by the court, any

defendant who that is charged with an offense for which the

maximum imprisonment that may be imposed is no more than six

months may petition the Court for access to the Pueblo’s public

defender.

In any criminal proceeding, the presiding judge shall:

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have sufficient legal training to preside over criminal proceedings;

and,

be licensed to practice law by any jurisdiction in the United States,

including the tribes.

5-2-12.

In any criminal proceeding, the court shall maintain a record of the

criminal proceeding, including an audio or other recording of the trial

proceeding. Further, in any criminal proceeding the court shall provide a

defendant with access to all criminal procedures, evidentiary procedures,

criminal statutes and ordinances and any other applicable rules or law of

the court from court clerk and/or on line.

5-2-13.

Every defendant has the privilege of the writ of habeas corpus in a court

of the United States to test the legality of their detention by order of the

Pueblo of Acoma.

Every defendant who has been detained in jail by the Pueblo of

Acoma shall be notified of this right at arraignment and any

additional rights and privileges they are entitled to by the court and

in writing under 25 U.S.C. §1304(e).

A defendant has the right to file a writ of habeas corpus in the

United States District Court if the defendant maintains his rights

have been violated. The written form will include the following:

NOTICE OF RIGHT OF HABEAS CORPUS PETITION

IN FEDERAL COURT

If you are detained by the Pueblo of Acoma, pursuant to

25 U.S.C. §1303, you have the privilege of the writ of

habeas corpus in a court of the United States to test the

legality of your detention.

In accordance with 25 U.S.C. §1304(e)(1), if you file a

petition for a writ of habeas corpus in a court of the United

States under 25 U.S.C. §1303, you may petition that court

to stay further detention by the Pueblo of Acoma.

Pursuant to 25 U.S.C. §1304(e)(2), the court of the

United States shall grant a stay of detention if that court

finds there is a substantial likelihood that the habeas

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corpus petition will be granted, and after giving each

alleged victim in the matter an opportunity to be heard,

the court finds by clear and convincing evidence that

under conditions imposed by that court, you are not likely

to flee or pose a danger to any person or the community

if released.

When a person is imprisoned or detained in custody by the Tribes

on any criminal charge for want of bail, such person is entitled to a

writ of habeas corpus for the purpose of giving bail upon averring

that fact in his petition, without alleging that he is illegally confined.

The writ of habeas corpus is not available to attack the validity of

the conviction or sentence of a person who has been adjudged

guilty of an offense by a court of competent jurisdiction and has

exhausted the remedy of appeal, nor is it available to attack the

legality of an order revoking a suspended or deferred sentence.

Moreover, a person may not be released on a writ of habeas

corpus due to any technical defect in commitment not affecting the

person’s substantial rights.

Petition. A person prosecuting a writ of habeas corpus shall state

in substance the following, which must be declared to be true to

the best of the declarant’s belief subject to the penalty of perjury:

(1) That the party in whose behalf the writ is petitioned is illegally

imprisoned or restrained of liberty; (2) How the person’s liberty has

been restrained; (3) That the petition is not barred by this Code; (4)

Why the restraint is illegal; (5) Where or by whom the petitioner is

restrained; and (6) Name the Chief of Police, or any other person

who the Petitioner claims has restrained their liberty, as

Respondent.

Granting of the Writ. The judge to whom a petition for writ of

habeas corpus is presented shall without delay, unless the petition

on its face is barred under this Code or is otherwise frivolous,

issue an order directing the Respondent to show cause why the

writ should not be allowed. The Tribal Prosecutor shall represent

the Chief of Police in the proceedings. Such order shall be served

on both the Respondent and Tribal Prosecutor. Upon issuance of

a show cause order, the following shall apply:

The judge shall order the Respondent to appear in writing in

opposition to the issuance of the writ as soon as is

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practicable and not more than 14 days from the date that

the show cause order issues.

The judge shall rule on the show cause order within 7 days

after either the Respondent files a written appearance in

opposition or the appearance period expires, whichever

comes first. Upon making a ruling, the judge shall do one of

the following, as appropriate:

If the motion and the files and records of the case

conclusively show that the Petitioner is entitled to no

relief, issue a judgment denying the petition without

prejudice and explain the reason for the denial.

Issue a writ of habeas corpus requiring that a return

be made and proceed in a summary way to hear

such evidence and argument as may be produced in

support of or against the petition and dispose of the

matter as law and justice may require. If a writ is

issued, it shall, at a specified time and place, require

the Respondent to file a return that states the time

and cause of the Petitioner’s restraint. The writ shall

not command the Respondent to produce the

Petitioner before the court issuing the writ unless the

court, in its discretion, so orders. If after hearing the

evidence and argument there is found to be no legal

cause for the restraint of liberty, the court shall

discharge the Petitioner from the restraint under

which the Petitioner is held.

Contents of Return. The person on whom a writ has been served

shall state in the return whether the person has the Petitioner in

custody or otherwise under restraint, and if not, whether they had

the Petitioner in custody or under restraint at any time, and at what

time, prior to or subsequent to the date of the writ. If the person has

the Petitioner in custody or otherwise under restraint, the return

shall state the authority and cause of such restraint. If the Petitioner

is restrained by written authority, a copy of that authority shall be

included with the return. If the person on whom the writ was served

had the Petitioner in custody or under restraint at any time before or

after the date of the writ, but has transferred custody or restraint to

another, the return shall state to whom, at what time, for what

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cause, and by what authority the transfer occurred. The return shall

be signed by the person making the return, and such return shall be

subject to the penalty of perjury.

Conclusiveness of Judgment. Any party to a proceeding by habeas

corpus may appeal any final order of the court. No question once

finally determined upon a proceeding by habeas corpus may be

reexamined through another habeas corpus proceeding unless the

court finds that: (1) Newly discovered evidence, viewed in light of

the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that no reasonable fact finder would have

found the Petitioner guilty of the offense; or (2) A new rule of tribal

constitutional law, tribal law interpreting the Code or binding federal

law addressing rights enumerated in the Indian Civil Rights Act that

are reflective of rights in the United States Constitution, made

retroactive to cases on collateral review by the Tribes’ Appellate

Court or the United States Supreme Court, that was previously

unavailable.

Chapter 3.

RULES APPLICABLE TO DETERMINING GUILT OR INNOCENCE

5-3-1.

Requirements for Criminal Liability. The minimum requirement for

criminal liability is the performance by a person of conduct which includes

a voluntary act or the omission to perform a duty imposed by law which

the person is physically capable of performing.

Annotations: This section was previously located at

Section 5-1.16 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-2.

Construction of Statutes with Respect to Culpability. If a statute defining

an offense prescribes a culpable mental state that is sufficient for

commission of the offense without distinguishing among the elements of

such offense, the prescribed mental state shall apply to each such

element unless a contrary legislative purpose plainly appears.

Annotations: This section was previously located at

Section 5-1.17 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

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5-3-3.

Causal Relationship Between Conduct and Result; Relationship to

Mental Culpability.

Conduct is the cause of a result when both of the following exist:

But for the conduct the result in question would not have

occurred.

The relationship between the conduct and result satisfies

any additional causal requirements imposed by the statute

defining the offense.

If intentionally causing a particular result is an element of an

offense, and the actual result is not within the intention or

contemplation of the person, that element is established if:

The actual result differs from that intended or

contemplated only in the respect that a different person or

different property is injured or affected or that the injury or

harm intended or contemplated would have been more

serious or extensive than that caused; or

The actual result involves similar injury or harm as

that intended or contemplated and occurs in a manner

which the person knows or should know is rendered

substantially more probable by such person's conduct.

If recklessly or negligently causing a particular result is an element

of an offense, and the actual result is not within the risk of element

of an offense, and the actual result is not within the risk of which the

person is aware or in the case of criminal negligence, of which the

person should be aware, that element is established if:

The actual result differs from the probable result only in the

respect that a different person or different property is

injured or affected or that the injury or harm intended or

contemplated would have been more serious or extensive

than that caused; or

The actual result involves similar injury or harm as the

probable result and occurs in a manner which the person

knows or should know is rendered substantially more

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probable by such person's conduct.

Annotations: This section was previously located at

Section 5-1.18 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-4.

Effect or Ignorance of Mistake upon Criminal Liability.

Ignorance or a mistaken belief as to a matter of fact does not

relieve a person of criminal liability unless:

It negates the culpable mental state required for commission

of the offense; or

It supports a defense of justification as defined in Section 53-11 through Section 5-3-21 of this Chapter.

Ignorance or mistake as to a matter of law does not relieve a

person of criminal responsibility.

Annotations: This section was previously located at

Section 5-1.19 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-5.

Criminal Liability Based upon Conduct. A person may be guilty of an

offense committed by such person's own conduct or by the conduct of

another for which such person is criminally accountable as provided in

this chapter, or both. In any prosecution, testimony of an accomplice

need not be corroborated.

Annotations: This section was previously located

at Section 5-1.21 of the 1985 Law and Order

Code. Removed to this section as a result of the reformatting of the 1995 Restatement, and as reformatted

by the Pueblo of Acoma Laws 2003.

5-3-6.

Criminal Liability Based upon Conduct of Another.

A person is criminally accountable for the conduct of another if:

The person is made accountable for such conduct by the

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statute defining the offense; or

Acting with the culpable mental state sufficient for the

commission of the offense such person causes another

person, whether or not such other person is capable of

forming the culpable mental state, to engage in such

conduct; or

The person is an accomplice of such other person in the

commission of the offense.

If causing a particular result is an element of an offense, a person

who acts with the kind of culpability with respect to the result that is

sufficient for the commission of the offense is guilty of that offense

if:

The person solicits or commands another person to engage

in the conduct causing such result; or

The person aids, counsels, agrees to aid or attempts to aid

another person in planning or engaging in the conduct

[causing] such result.

Annotations: This section was previously located at

Section 5-1.5 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. The Pueblo of Acoma

Laws 2003 supplied the bracketed information to add

clarity.

5-3-7.

Nondefenses to Criminal Liability Based upon Conduct of Another. In any

prosecution for an offense in which the criminal liability of the accused is

based upon the conduct of another under [Section 5-3-6], it is no defense

that:

The other person has not been prosecuted for or convicted of such

offense or has been acquitted of such offense, or has been

convicted of a different offense or degree of offense or has an

immunity to prosecution or conviction for such offense; or

The accused belongs to a class of persons who by definition of the

offense are legally incapable of committing the offense in an

individual capacity.

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Annotations: This section was previously located at

Section 5-1.23 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-8.

Conviction for Attempt Although Crime Committed. A person may

be convicted of an attempt to commit a crime, although it appears upon the

trial that the crime intended or attempted was perpetrated by the person

in pursuance of such an attempt, unless the court, in its discretion,

discharges the jury and directs the person to be tried for the crime.

Annotations: This section was previously located at

Section 5-1.7 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-9.

Criminal Liability of Enterprises; Definitions.

Notwithstanding any other provisions of law, an enterprise commits

an offense if:

The conduct constituting the offense consists of a failure to

discharge a specific duty imposed by law; or

The conduct undertaken in behalf of the enterprise and

constituting the offense is engaged in, authorized, solicited,

commanded or recklessly tolerated by the directors of the

enterprise in any manner or by a high managerial agent

acting within the scope of employment; or

The conduct constituting the offense is engaged in by an

agent of the enterprise while acting within the scope of

employment and in behalf of the enterprise; and

The offense is a misdemeanor or petty offense; or

The offense is defined by a statute which imposes

criminal liability on an enterprise.

As used in this section:

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"Agent" means any officer, director, employee of an

enterprise or any other person who is authorized to act in

behalf of the enterprise.

"High managerial agent" means an officer of an enterprise

or any other agent in a position of comparable authority with

respect to the formulation of enterprise policy.

Annotations: This section was previously located at

Section 5-1.24 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-10.

Criminal Liability of an Individual for Conduct of an Enterprise. A person

is criminally liable for conduct constituting an offense which such person

performs or causes to be performed in the name of or in behalf of an

enterprise to the same extent as if such conduct were performed in such

person's own name or behalf.

Annotations: This section was previously located at

Section 5-1.25 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-11.

Unavailability of Justification Defense; Justification as Defense.

Even though a person is justified under this chapter in threatening

or using physical force or deadly physical force against another, if

in doing so such person recklessly injures or kills an innocent third

person, the justification afforded by this chapter is unavailable in a

prosecution for the reckless injury or killing of the innocent third

person.

Except as provided in subsection A, justification, as defined in this

section is a defense to any prosecution for a criminal offense

pursuant to [the laws of the Pueblo].

Annotations: This section was previously located at

Section 5-1.26 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. The 1995 Restatement

supplied the necessary information in brackets at

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subsection B to add clarity. 1985 Law and Order Code

provided Athis title@ in lieu of the phrase in brackets.

Criminal offenses are contained in Title 6 of the Pueblo

of Acoma Laws.

5-3-12.

Justification; Execution of Public Duty.

Unless inconsistent with the other sections of this chapter defining

justifiable use of physical force or deadly physical force or with

some other superseding provision of law, conduct which would

otherwise constitute an offense is justifiable when it is required or

authorized by law.

The justification afforded by subsection A also applies if:

A reasonable person would believe such conduct is required

or authorized by the judgment or direction of a competent

court or tribunal or in the lawful execution of legal process,

notwithstanding lack of jurisdiction of the court or defect in

the legal process; or

A reasonable person would believe such conduct is required

or authorized to assist a peace officer in the performance of

such officer's duty, notwithstanding that the officer exceeded

the officer's legal authority.

Annotations: This section was previously located at

Section 5-1.27 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-13.

Justification; Use of Physical Force; Deadly Force.

The use of physical force upon another person which would

otherwise constitute an offense is justifiable and not criminal

when a parent, guardian, teacher or other person entrusted with

the care and supervision of a minor or incompetent person may

use reasonable and appropriate physical force upon the minor or

incompetent person when and to the extent reasonably necessary

and appropriate to maintain discipline.

Annotations: This subsection was previously located at

Section 5-1.28 of the 1985 Law and Order Code.

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Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

A person is justified in threatening or using deadly physical force

against another:

If such person would be justified in threatening or

using physical force against the other under Section 5-3-14;

and

When and to the degree a reasonable person would believe

that deadly physical force is immediately necessary to

protect himself against the other's use or attempted use of

unlawful deadly physical force.

Annotations: This subsection was previously located at

Section 5-1.30 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-14.

Justification; Self Defense.

Except as provided in subsection B of this section, a person is

justified in threatening or using physical force against another

when and to the extent a reasonable person would believe that

physical force is immediately necessary to protect himself against

the other's use or attempted use of unlawful physical force.

The threat or use of physical force against another is not justified:

In response to verbal provocation alone; or

To resist an arrest that the person knows or should know is

being made by a peace officer or by a person acting in a

peace officer's presence and at his direction, whether the

arrest is lawful or unlawful, unless the physical force used

by the peace officer exceeds that allowed by law; or

If the person provoked the other's use or attempted use of

unlawful physical force, unless:

The person withdraws from the encounter or clearly

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communicates to the other his intent to do so

reasonably believing he cannot safely withdraw from

the encounter; and

The other nevertheless continues or attempts to use

unlawful physical force against the person.

Annotations: This section was previously located at Section 51.29 of the 1985 Law and Order Code. Removed to this section

as a result of the re-formatting of the 1995 Restatement, and as

reformatted by the Pueblo of Acoma Laws 2003.

5-3-15.

Justification; Defense of a Third Person. A person is justified in

threatening or using physical force or deadly physical force against

another to protect a third person if:

Under the circumstances as a reasonable person would believe

them to be, such person would be justified under Sections 5-3-14

or 5-3-13(B) in threatening or using physical force or deadly

physical force to protect himself against the unlawful physical force

or deadly physical force a reasonable person would believe is

threatening the third person he seeks to protect; and

A reasonable person would believe that such person's intervention

is immediately necessary to protect the third person.

Annotations: This section was previously located at

Section 5-1.31 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-16.

Justification; Use of Physical Force in Defense of Premises.

A person or his agent in lawful possession or control of premises is

justified in threatening to use deadly physical force or in

threatening or using physical force against another when and to

the extent that a reasonable person would believe it immediately

necessary to prevent or terminate the commission or attempted

commission of a criminal trespass by the other person in or upon

the premises.

A person may use deadly physical force under subsection A only in

the defense of himself or third person as described in Sections 5-3-

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13(B) and 5-3-115.

In this section, "premises" means any real property and any

structure, movable or immovable, permanent or temporary,

adapted for both human residence and lodging whether occupied

or not.

Annotations: This section was previously located at

Section 5-1.32 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-17.

Justification; Use of Physical Force in Defense of Property. A person is

justified in using physical force against another when and to the extent that

a reasonable person would believe it necessary to prevent what a

reasonable person would believe is an attempt or commission by the

other person of theft or criminal damage involving tangible movable

property under his possession or control, but such person may use deadly

physical force under these circumstances as provided in Sections 5-3-15

and 5-3-19.

Annotations: This section was previously located

at Section 5-1.33 of the 1985 Law and Order

Code. Removed to this section as a result of the reformatting of the 1995 Restatement, and as reformatted

by the Pueblo of Acoma Laws 2003.

5-3-18.

Justification; Use of Physical Force in Law Enforcement; Deadly

Physical Force.

A person is justified in threatening or using physical force against

another if in making or assisting in making an arrest or detention or

in preventing or assisting in preventing the escape after arrest or

detention of that other person, such person uses or threatens to

use physical force and all of the following exist:

A reasonable person would believe that such force is

immediately necessary to effect the arrest or detention or

prevent the escape.

Such person makes known the purpose of the arrest or

detention or believes that it is otherwise known or cannot

reasonably be made known to the person to be arrested or

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detained.

A reasonable person would believe the arrest or detention to

be lawful.

Annotations: This subsection was previously located at

Section 5-1.34 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

The use or threatened use of deadly force by a person against

another is justified pursuant to Paragraph A only if a reasonable

person effecting the arrest or detention, or preventing the escape

would believe the suspect or escapee is:

Actually resisting the discharge of a legal duty with deadly

physical force or with the apparent capacity to use deadly

physical force; or

A felon who has escaped from lawful confinement; or

A felon who is fleeing from justice or resisting arrest with

physical force.

Notwithstanding any other provisions of this chapter, a peace

officer is justified in threatening to use deadly physical force when

and to the extent a reasonable officer believes it necessary to

protect himself against another's potential use of physical force or

deadly physical force.

Annotations: Subsections B and C were previously

located at Section 5-1.35 of the 1985 Law and Order

Code. Removed to this section as a result of the reformatting of the 1995 Restatement, and as reformatted

by the Pueblo of Acoma Laws 2003.

5-3-19.

Justification; Use of Force in Crime Prevention.

A person is justified in threatening or using both physical force and

deadly physical force against another if and to the extent a

reasonable person would believe the physical force or deadly

physical force is immediately necessary to prevent the other=s

commission of arson of an occupied structure under ' [6-7-3],

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burglary in the second or first degree under ' [6-5-6] or '[ 6-5-7],

kidnaping under ' [6-3-6], manslaughter under ________, sexual

assault under ' [6-4-5], child molestation under ' [6-4-9], armed

robbery under ' [6-9-3], or aggravated assault under ' [6-3-1],

subsection A, paragraphs 1 and 2.

There is no duty to retreat before threatening or using deadly

physical force justified by subsection A of this section.

Annotations: This section was previously located

at Section 5-1.36 of the 1985 Law and Order Code.

The 1985 Law & Order Code left blanks for the section

numbers at Subsection A. The Pueblo of Acoma Laws

2003 Restatement fills in the appropriate blanks. Pueblo

of Acoma Laws 1985-2003 did not have a provision for

manslaughter.

This section was omitted from the

Pueblo of Acoma Laws 1995. This section is re-included

because no Tribal Council Resolution authorizing the

omission was located.

5-3-20.

Duress.

Conduct which would otherwise constitute an offense is justified if

a reasonable person would believe that he was compelled to

engage in the proscribed conduct by the threat or use of immediate

physical force against his person or the person of another which

resulted or could result in serious physical injury which a

reasonable person in the situation would not have resisted.

The defense provided by subsection A, is unavailable if the person

intentionally, knowingly or recklessly placed himself in a situation in

which it was probable that he would be subjected to duress.

Annotations: This section was previously located

at Section 5-1.37 of the 1985 Law and Order

Code. Removed to this section as a result of the reformatting of the 1995 Restatement, and as reformatted

by the Pueblo of Acoma Laws 2003.

5-3-21.

No Civil Liability for Justified Conduct. No person shall be subject to

civil liability for engaging in conduct otherwise justified pursuant to the

provisions of this chapter.

Annotations: This section was previously located at

Section 5-1.38 of the 1985 Law and Order Code.

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Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-22.

Immaturity. A person less than twelve years old at the time of the conduct

charged is not criminally responsible in the absence of clear proof that at

the time of committing the conduct charged the person knew it was

wrong.

Annotations: This section was previously located at

Section 5-1.39 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-23.

Mental Disease or Defect: Burden of Proof.

A person is not responsible for criminal conduct if at the time of

such conduct the person was suffering from a mental disease or

defect so as not to know the nature and quality of the act or, if such

person did know, that such person did not know that what he was

doing was wrong.

The defendant has the burden of proof in showing the defense of

mental disease or defect under this section.

Annotations: This section was previously located at

Section 5-1.40 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-3-24.

Effect of Intoxication; Consideration by Jury. No act committed by a

person while in a state of voluntary intoxication is less criminal by

reason of his having been in such condition, but when the actual

existence of any particular culpable mental state is a necessary element

to constitute any particular species or degree of crime, the jury may take

into consideration the fact that the accused was intoxicated at the time in

determining the culpable mental state with which he committed the act.

Annotations: This section was previously located at

Section 5-1.41 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

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Chapter 4.

SENTENCING RULES

5-4-1.

Classification of Offenses. Crimes if classified, are classified for the

purpose of sentence, into the following categories:

Misdemeanors are any offense that is not defined as a felony and

is subject to a term of imprisonment of less than one year and/or a

fine of less than $5,000 or both.

High Misdemeanor is any offense for which the

incarceration penalty is no more than 364 days and/or a

maximum fine of no more than $2,500.

Full Misdemeanor is any offense for which the incarceration

penalty is no more than 6 months and/or a maximum fine of

no more than $500.

Simple Misdemeanor is any offense for which the

incarceration period is no more than 90 days and/or a

maximum fine of no more than $250.

Petty Misdemeanor is any offense for which the

incarceration penalty is no more than 30 days and/or a

maximum fine of no more than $50.

Felonies are any offense expressly defined as a felony and is

subject to a term of imprisonment of not more than 3 years and/or

a fine of $15,000. The total term of imprisonment for any criminal

proceeding shall not exceed 9 years. A defendant shall not be

subject to felony prosecution unless the defendant: (1) has been

previously convicted of the same or a comparable offense by any

jurisdiction in the United States (including tribal jurisdiction; or (2) is

being prosecuted for an offense comparable to an offense that

would be punishable by more than 1 year of imprisonment if

prosecuted by a United States federal or state court.

1st Degree Felony is any offense for which the maximum

period of incarceration is 3 years and/or a maximum fine of

$15,000.

2nd Degree Felony is any offense for which the maximum

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period of incarceration is 2 years and 6 months and/or the

maximum fine is $10,000.

5-4-2.

3rd Degree Felony is any offense for which the maximum

period of incarceration is 2 years and/or a maximum fine is

$5,000

4th Degree Felony is any offense for which the maximum

period of incarceration is 1 year and/or a maximum fine of

$1,000.

Designation of Offenses.

The particular classification of crime is expressly designated in the

section or chapter defining it. Any person convicted of an offense

in this Code without either specification of the classification or of

the penalty is subject to imprisonment of not more than one

hundred eighty (180) days or a fine of not more than five hundred

dollars ($500) or both.

Any offense defined without classification is punishable according

to the penalty prescribed for such offense.

Annotations: This section was previously located at

Section 5-1.43 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. The 1995 Restatement

revised subsections A and B to add clarity.

5-4-3.

Authorized Disposition of Offenders.

Every person convicted of any offense defined in this title shall be

sentenced in accordance within the provisions of this title unless

otherwise provided by law.

If a person is convicted of an offense, the court may suspend the

imposition or execution of sentence and grant such person a

period of probation except as otherwise provided by law. The

sentence is tentative to the extent that it may be altered or revoked

in accordance with the terms of probation, but for all other

purposes it is a final judgment of conviction.

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If the court imposes probation it may also impose a fine as

authorized by this title and shall require the convicted person to

make restitution to the victim of the crime in such amount and

manner as the court may order, after consideration of the

economic loss to the victim and economic circumstances of the

convicted person.

If a person is convicted of an offense and not granted a period of

probation, or when probation is revoked, the following sentences

may be imposed:

A term of imprisonment authorized by these laws;

A fine authorized by these laws;

Both imprisonment and a fine; or

A new term of probation.

The sentence is tentative to the extent it may be modified or

revoked, but for all other purposes it is a final judgment of

conviction.

If an enterprise is convicted of any offense, a fine may be imposed

as authorized by this title.

If a person or an enterprise is convicted of any felony, the court

may in addition to any other sentence authorized by law, order the

forfeiture, suspension or revocation of any charter, license, permit

or prior approval granted to such person or an enterprise by any

department or agency of this Pueblo or of any political subdivision.

A court authorized to pass sentence upon a person convicted of

any offense defined within or without this title shall have a duty to

determine and impose the punishment prescribed for such offense.

A defendant who is found guilty or who enters a plea of guilt or no

contest may receive a suspended or deferred sentence or a

conditional discharge. If the defendant receives a deferred

sentence or conditional discharge and successfully completes all

sentencing conditions he or she may motion to have the charges

dismissed.

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Any fine imposed as a sentence of part of a sentence may be at

the judge’s discretion suspended. Further, at the judge’s discretion

a fine may be paid in installments or through the community

service as supervised by the Court and/or probation. Unless

specifically ordered by the Court, the presumption is that any fine

imposed must be paid at time of sentencing and not through

installments and/or community service.

In addition to any fines or community service imposed, at its

discretion the judge may impose costs against the defendant as

determined by the Court. These costs include but are not limited

to: probation, the cost of a trial, jury costs (when the maximum time

for incarceration is more than 6 months).

Annotations: This section was previously located at

Section 5-1-44 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. The 1995 Restatement

revised subsection D to add clarity.

5-4-4.

Dangerous and Repetitive Offenders.

A person who is at least eighteen (18) years of age or who has

been tried as an adult and who stands convicted of a crime which

in other jurisdictions (i.e., New Mexico) would be classified as a

first, second or third degree felony, whether a completed or

preparatory offense, and who has previously been convicted of any

three felonies within ten years next preceding the date of the

present offense, shall be sentenced to imprisonment for not less

than the sentence and not more than twice the sentence

authorized for the offense for which the person currently stands

convicted, and shall not be eligible for suspension or commutation

of sentence, probation, pardon or parole or release on any other

basis until not less than one-half of the sentence pursuant to this

subsection has been served. The court shall impose as a

presumptive term the median of the allowable range. The

presumptive term may be mitigated or aggravated by one-half

pursuant to evidence received at sentencing [, except where

limited by Section 5-4-8].

A person who has been convicted in any court outside the

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jurisdiction of this Pueblo of an offense which if committed within

this Pueblo would be punishable as a felony or misdemeanor is

subject to the provisions of this section. A person who has been

convicted as an adult of an offense punishable as a felony or a

misdemeanor under the provisions of any prior code in this Pueblo

shall be subject to the provisions of this section.

Annotations:

Former Section 5-1.45 included a

subsection C which authorized Tribal Court to expel the

convicted person from Pueblo of Acoma Lands for a

period of not less than one year, but no more than three

years. Tribal Council Resolution No. TC-OCT-11-90-3

codified at Section 1-12-1 Title 1, Chapter 12 Exclusion,

Pueblo of Acoma Laws 2003 provides that Tribal Council

has exclusive power to exclude any person from

Pueblo of Acoma Lands.

The 1995 Restatement

supplied the information in brackets at subsection A to

be consistent with Section 5-4-8 Pueblo of Acoma Laws

2003.

5-4-5.

Diagnostic/Evaluative Commitment.

If after presentence investigation, the court desires more detailed

information as a basis for determining the sentence to be imposed,

it may commit the defendant to the custody of the Acoma Police

Department. The availability of staff and facilities shall be

considered by the Court in conducting this presentence

investigation. The notice to the court of acceptance of the

commitment shall specify the time and place the defendant is to be

received. The commitment shall not exceed one hundred and

twenty (120) days.

If after presentence investigation the court desires more detailed

information about the defendant's mental condition, it may commit

or refer the defendant to the custody of any diagnostic facility for

the performance of a psychiatric evaluation. The commitment or

referral shall be for a period not to exceed one hundred and twenty

(120) days. Within that period the facility shall return the prisoner

to court and transmit to the court a diagnostic report, including

whatever recommendations the facility may wish to make. After

receiving the report and recommendations, if the court does not

order a further diagnostic commitment under subsection A of this

section, it shall sentence the defendant as authorized, or invoke

the provisions of [Section 5-4-6].

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In an appropriate case the court in its discretion may order

diagnostic commitments under both subsections A and B of this

section.

If after receiving a diagnostic report under subsection A or B of this

section the court sentences the defendant to imprisonment, the

period of commitment under either or both shall be credited to the

sentence imposed.

Annotations: This section was previously located at

Section 5-1.46 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-6.

Civil Commitment after Imposition of Sentence.

If, after imposition of sentence authorized by Section 5-4-3 and on

the basis of the report and recommendations submitted to the

court under Section 5-4-5(B), the court believes that the defendant

discloses symptoms of mental disorder, the court may proceed to

commit the convicted defendant to a mental care facility as

authorized by law.

After termination of the commitment in subsection A of this section,

the defendant shall be returned to the court for release or to serve

the unexpired term imposed as authorized by Section 5-4-3. The

period of confinement pursuant to the civil commitment shall be

credited to the sentence imposed.

Annotations: This section was previously located at

Section 5-1.47 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-7.

Sentence of Imprisonment. A sentence of imprisonment shall be a

definite term of days, months or years and the person sentenced, unless

otherwise provided by law, shall be committed to the custody of the

Acoma Police Department or related agency.

Origins: 1971 Ordinance.

Annotations: This section was previously located at

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Section 5-1.48 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

Revised in 1995

Restatement to add clarity.

5-4-8.

Sentencing.

Sentences provided for a first conviction may be increased by the

court up to twenty-five per cent or may be reduced by the court.

Such reduction or increase shall be based on the aggravating and

mitigating circumstances contained in subsections B and C of this

section.

For the purpose of determining the sentence pursuant to

subsection A of this section, the court shall consider the following

aggravating circumstances:

Infliction or threatened infliction of serious physical injury.

Use, threatened use or possession of deadly weapon

or dangerous instrument during the commission of the

crime.

If the offense involves the taking of or damage to property,

the value of the property so taken or damaged.

Presence of an accomplice.

Especially heinous, cruel or depraved manner in which the

offense was committed.

The defendant committed the offense as consideration for

the receipt, or in the expectation of the receipt, of anything

of pecuniary value.

The defendant procured the commission of the offense by

payment, or promise of payment, of anything of pecuniary

value.

At the time of the commission of the offense, the defendant

was a public servant and the offense involved conduct

directly related to his office or employment.

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Any other factors which the court may deem appropriate to

the ends of justice.

For the purpose of determining the sentence pursuant to subsection

A of this section, the court shall consider the following mitigating

circumstances:

The age of the defendant.

The defendant's capacity to appreciate the wrongfulness of

his conduct or to conform his conduct to the requirements of

law was significantly impaired although not such as to

constitute a defense to prosecution.

The defendant was under unusual or substantial duress,

although not such as to constitute a defense to prosecution.

The degree of the defendant's participation in the crime was

minor, although not so minor as to constitute a defense to

prosecution.

Any other factors which the court may deem appropriate to

the ends of justice.

In determining what sentence to impose, the court shall take into

account the amount of aggravating circumstances and whether the

amount of mitigating circumstances is sufficiently substantial to call

for the lesser term.

Origins: 1971 Ordinance.

Annotations: This section was previously located

at Section 5-1.49 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-9.

Concurrent Terms of Imprisonment.

If multiple sentences of

imprisonment are imposed on a person at the same time, or when a

person who is subject to any undischarged term of imprisonment

imposed at a previous time is sentenced to an additional term of

imprisonment, the sentence or sentences imposed by the court shall run

concurrently unless the court expressly directs otherwise, in which case,

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the court shall set forth on the record the reason for the sentence.

Annotations: This section was previously located at

Section 5-1.50 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-10.

Calculation of Terms of Imprisonment.

A sentence of imprisonment commences when sentence is

imposed if the defendant is in custody or surrenders into custody at

that time. Otherwise it commences when the defendant becomes

actually in custody.

All time actually spent in custody pursuant to an offense until the

prisoner is sentenced to imprisonment for that particular offense

shall be credited against the term of imprisonment otherwise

provided for by this Code.

If a sentence of imprisonment is vacated and a new sentence is

imposed on the defendant for the same offense, the new sentence

is calculated as if it had commenced at the time the sentence is

vacated. All time spent in actual custody for that particular offense

under the vacated sentence shall be credited against the new

sentence.

If a person serving a sentence of imprisonment escapes from

custody, the escape interrupts the sentence. The interruption

continues until the person is apprehended and confined for the

escape or is confined and subject to a detainer for the escape.

Time spent in actual custody prior to return under this subsection

shall be credited against the term authorized by law if custody

rested on an arrest or surrender for the escape itself, or if the

custody arose from an arrest on another charge which culminated

in a dismissal or an acquittal, and the person was denied bail

pending disposition of that charge because of a warrant lodged

against such person arising from the escape.

The sentencing court shall include the time of commencement of

sentence under subsection A and the computation or time credited

against sentence under subsection B, C or D, in the original or an

amended commitment order, under procedures established by rule

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of court.

Annotations: This section was previously located at

Section 5-1.51 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. The 1995 Restatement

revised subsection C to add clarity.

5-4-11.

Fines for Felonies.

A judgment that the defendant shall pay a fine, with or without the

alternative of imprisonment, shall constitute a lien in like manner as

a judgment for money rendered in a civil action.

This section does not apply to an enterprise.

Origins: The 1971 Law and Order Code allowed

payment of fines pursuant to Ordinance of 4/13/71. See

Chapter 4, '1(A) and (B).

Annotations: This section was previously located at

Section 5-1.52 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-12.

Fine of Restitution for Offense Causing Death, Physical Injury or

Economic Loss.

Upon a defendant's conviction for an offense resulting in the death,

physical injury or economic loss of the victim, the court may order

additional sums to be imposed as restitution to be paid by the

defendant.

If the court does not have sufficient evidence to support a finding of

the amount of restitution in subsection A of this section, it may

conduct a hearing upon the issue according to procedures

established by rule of court.

If a defendant is sentenced to pay a fine, payment and enforcement

of restitution shall take priority over payment to the Pueblo.

Origins: The 1971 Law and Order Code allowed

restitution to injured party pursuant to Ordinance of

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4/13/71. See Chapter 4, ' 1(C).

Annotations: This section was previously located at

Section 5-1.53 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-13.

Fines Against Enterprises. A sentence to pay a fine imposed on

an enterprise for an offense for which no special enterprise fine is

specified, shall be a sentence to pay an amount, fixed by the court, of not

more than fifteen thousand dollars ($15,000).

Annotations: This section was previously located at

Section 5-1.54 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. The 1995 Restatement

revised this section to add clarity.

5-4-14.

Time and Method of Payment of Fines.

If a defendant is sentenced to pay a fine alone or in addition to any

other sentence, the court may grant permission for payment to be

made within a specified period of time or in specified installments. If

no such permission is embodied in the sentence the fine shall be

payable immediately.

If a defendant sentenced to pay a fine is also sentenced to

probation the court may make payment of the fine a condition of

probation.

Annotations: This section was previously located at

Section 5-1.55 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-15.

Consequences of Nonpayment of Fines or Restitution.

If a defendant sentenced to pay a fine or restitution defaults in the

payment of such fine or restitution or of any installment, the clerk of

the court imposing the fine or restitution shall, as provided by law,

give notice to the defendant of the delinquency. If payment is not

made within ten (10) days of the notice of delinquency, the clerk

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shall notify the prosecutor and the sentencing court. The court on

motion of the prosecutor or on its own motion may require the

defendant to show cause why the defendant's default should not be

treated as contempt, and may issue a summons or a warrant of

arrest for his appearance.

Unless the defendant shows that the default was not attributable to

an intentional refusal to obey the order of the court or an intentional

refusal on his part to make a good faith effort to obtain the funds

required for the payment, the court shall find that the default

constitutes contempt and may order the defendant incarcerated in

jail until the fine or restitution, or a specified part of the fine or

restitution, is paid.

If a fine or restitution is imposed on an enterprise it is the duty of

the person or persons authorized to make disbursement from the

assets of the enterprise to pay it from those assets, and their failure

to do so shall be held a contempt unless they make the showing

required in subsection A.

The term of imprisonment on contempt for nonpayment of a fine or

restitution shall be specified in the order of commitment, and shall

not exceed one (1) day for each ten dollars ($10) of the fine or

restitution, said sentence not to exceed six (6) months in any case.

A person committed for nonpayment of a fine or restitution shall be

given credit toward payment for each day of imprisonment at the

rate specified in the order of commitment.

If it appears that the default in the payment of a fine or restitution is

not in contempt, the court may revoke or reduce the fine or

restitution or modify the method of payment.

Upon any default in the payment of a fine or restitution or any

installment of such fine or restitution, execution may be levied and

such other measures taken for the collection of an unpaid civil

judgment entered against the defendant in an action on a debt. The

levy of execution for the collection of a fine or restitution shall not

discharge a defendant incarcerated for nonpayment of the fine or

restitution until the amount of the fine or restitution has actually

been collected.

Annotations: This section was previously located at

Section 5-1.56 of the 1985 Law and Order Code.

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Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-16.

Community Service. The court in its discretion may order community

service in lieu of or in addition to imprisonment or fines so long as in the

aggregate said sentence does not exceed six months on any one

misdemeanor count or twelve months on any one felony count.

Origins: The 1971 Law and Order Code allowed

community service as part of a criminal sentence

pursuant to Ordinance of 4/13/71. See Chapter 4, ' 1.

Annotations: This section was previously located at

Section 5-1.57 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-17.

Disposition of Fines.

All fines and fees collected in any tribal court shall be paid to the

special fines account of the Tribal Court.

Fines and fees for non-traffic related civil infractions or criminal

offenses shall be disposed for proper court functions. Fines and

fees for traffic related offenses shall be disposed of as per the

procedures outlined in the Traffic Code of the Pueblo de Acoma.

Origins: The 1971 Law and Order Code authorized

disposal of fines pursuant to Ordinance of 4/13/71. See

Chapter 4.

Annotations: The Traffic Code at Section 10-12-1-C(1)

states that any person violating the Traffic Code shall pay

a corrections fee of $15 to the Tribal Court. In spite of

the statement in Section 5-4-17, the chapter on penalties

and procedures on arrest in the Traffic Code are limited

to traffic offenses, and do not apply to other violations of

the Pueblo of Acoma Laws. See Section 10-12-1 et.al,

Pueblo of Acoma Laws 2003.

This section was previously located at Section 5-1.58 of

the 1985 Law and Order Code. Removed to this section

as a result of the re-formatting of the 1995 Restatement,

and as reformatted by the Pueblo of Acoma Laws 2003.

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5-4-18.

Probation.

If a person who has been convicted of an offense is eligible for

probation, the court may suspend the imposition or execution of

sentence and if so, shall without delay place such person on

supervised or unsupervised probation. If a person is not eligible for

probation, imposition or execution of sentence shall not be

suspended or delayed. If the court imposes probation, it may also

impose a fine. If probation is granted the court shall impose a

condition that the person waive extradition for any probation

revocation procedures and it shall order restitution, where there is a

victim who has suffered economic loss.

The period of probation shall be determined according to Section 54-19.

The court may modify or add to the conditions or, if the defendant

commits an additional offense or violates a condition, revoke

probation at any time prior to the expiration or termination of the

period of probation.

The court on its own initiative or upon application of the probationer

may terminate the period of probation and discharge the defendant

at a time earlier than that originally imposed if in the court's opinion

the ends of justice will be served thereby and if the conduct of the

defendant on probation warrants it.

When granting probation the court may require that the defendant

be imprisoned in a jail at whatever time or intervals, consecutive or

non- consecutive, the court shall determine, within the period or

probation, as long as the period actually spent in confinement does

not exceed what is allowable under this Code given the offense.

When restitution is made a condition of probation, the court shall fix

the amount thereof and the manner of performance. If the record

does not contain sufficient evidence to support a finding of the

amount, the court may conduct a hearing upon the issue, according

to procedures established by rule of court.

When granting probation, the court shall set forth at the time of

sentencing and on the record the factual and legal reasons in

support of each sentence.

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Annotations: This section was previously located at

Section 5-1.59 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-4-19 .

Periods of Probation.

Unless terminated sooner, probation may continue for a period

three (3) times the maximum sentence on each count.

When the court has required as a condition of probation, that the

defendant make restitution for any economic loss related to his

offense and that condition has not been satisfied, the court at any

time prior to the termination or expiration of probation may extend

the period.

Annotations: This section was previously located

at Section 5-1.60 of the 1985 Law and Order

Code. Removed to this section as a result of the reformatting of the 1995 Restatement, and as reformatted

by the Pueblo of Acoma Laws 2003.

5-4-20.

Calculation of Periods of Probation.

A period of probation commences on the day it is imposed or as

designated by the court, and an extended period of probation

commences on the day the original period lapses.

If a court determines that the defendant violated a condition of the

defendant's probation but reinstates probation, the period between

the date of violation and the date of restoration of probation is not

computed as part of the period of probation. If it is determined that

the defendant is not a violator, there is no interruption of the period.

The running of the period of probation shall cease during the

unauthorized absence of the defendant from the jurisdiction or from

any required supervision and shall resume only upon the

defendant's voluntary or involuntary return to probation supervision.

If probation is imposed on one who at the time is serving a

sentence of imprisonment imposed on a different conviction,

service of the sentence of imprisonment shall not satisfy the

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probation.

Time spent in custody under Section 5-4-18(E) shall be credited to

any sentence of imprisonment imposed upon revocation of

probation.

Annotations: This section was previously located at

Section 5-1.61 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

Chapter 5.

OTHER PROCEEDINGS

5-5-1.

Jurisdiction of the Court in Proceedings after Trial and Sentencing.

Whenever any further proceedings are instituted before the trial court

subsequent to the original trial and sentencing, excepting motions for new

trial made within one (1) year after the rendition of the verdict or the finding

of the court, the court in the same action shall have jurisdiction to hear

such matter only after due proof has been made that notice of such

proceedings has been given to the Pueblo at least ten (10) days prior to

such hearing.

Annotations: This section was previously located at

Section 5-1.15 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-5-2.

Forfeiture.

If a forfeiture is provided for by the criminal laws of the Pueblo, the

procedure for forfeiture shall be as set forth in this section, unless a

different procedure is otherwise provided by law.

Subject to the requirements of subsection D, when a forfeiture is

authorized by law, it may be ordered by a court upon:

Motion by the Pueblo for forfeiture following the conviction of

a person for an offense based on such person's unlawful

possession, use or other act with respect to the thing that is

forfeited; or

An action in rem for forfeiture brought by the Pueblo upon

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a complaint alleging that a person, known or unknown,

unlawfully possessed, used or otherwise acted with respect

to the thing that is forfeited, in an unlawful manner or with

respect to the thing that is forfeited, used it in the

commission of a crime.

Upon a showing of good cause, the court may, in an action in rem

under subsection B, paragraph 2, issue writs of attachment,

injunction and other appropriate writs in aid of the action.

Upon a motion for forfeiture specified in subsection B, Paragraph 1

or the institution of an action in rem specified in subsection B,

paragraph 2, the court shall order the thing which may be subject to

forfeiture to be held for a period of sixty days, during which period

adequate notice in the manner and form prescribed by the court,

whether by personal service, publication or otherwise, shall be

given to all persons who might have an interest in the pending

forfeiture.

During the sixty (60) day period following the court's order under

subsection D, any person claiming a lawful interest in the thing with

respect to which forfeiture is pending may make a claim in the court

for the recovery of the thing. The court shall order the thing restored

or transferred to the claimant, if any, who proves, by a

preponderance of the evidence, all of the following:

The claimant is the lawful owner or is otherwise entitled by

law to ownership of the thing, due to enforcement of a civil

proceeding.

The claimant's possession, use or other act is or was lawful.

The unlawful possession, use or other act upon which

forfeiture is sought was without the consent of the claimant.

If no claimant makes the proof required by subsection E, the court

shall declare the thing forfeited to the Pueblo or political

subdivision responsible for its seizure. No forfeiture shall be

ordered in an action in rem pursuant to subsection B, paragraph 2

for forfeiture unless the Pueblo or political subdivision satisfies the

court that: the forfeiture is authorized in the instant case. If the

thing declared forfeited is money, the court shall order it deposited

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to the credit of the general fund of the Pueblo or political

subdivision, for use in the Courts and law enforcement programs,

otherwise the court shall order the thing:

Destroyed by a law enforcement agency of the jurisdiction in

which the conviction or forfeiture was obtained; or

Except in the case of firearms which shall be sold in

accordance with the laws of this Pueblo and of the United

States, sold at public auction with expenses of keeping and

selling such property and the amount of all valid liens

established by intervention paid out of the proceeds of the

sale with the balance paid into the general fund of the

Pueblo or political subdivision responsible for its seizure; or

Returned to the owner or lienholder upon payment of

expenses incurred by its lawful seizure if the property is

worthless, encumbered with liens in excess of its value or

otherwise a burdensome asset; or

Retained for official Pueblo or political subdivision law

enforcement use with expenses for keeping and transferring

such property to be paid by the Pueblo or appropriate

political subdivision.

Annotations: This section was previously located at

Section 5-1.4 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-5-3.

Suspension of Civil Rights and Occupational Disabilities.

A conviction for a felony, suspends the following civil rights of the

person sentenced:

The right to hold public office of trust or profit.

The right to serve as a juror.

During any period of imprisonment any other civil rights the

suspension of which is reasonably necessary for the

security of the institution in which the person sentenced is

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confined or for the reasonable protection of the public.

Persons sentenced to imprisonment shall not thereby be rendered

incompetent as witnesses upon the trial of a criminal action or

proceeding, or incapable of making and acknowledging a sale or

conveyance of property.

A person sentenced to imprisonment is under the protection of the

law, and any injury to his person, not authorized by law, is

punishable in the same manner as if such person was not

convicted and sentenced.

The conviction of a person for any offense shall not work forfeiture

of any property, except if a forfeiture is expressly imposed by law.

A person shall not be disqualified from employment by this Pueblo

or any of its agencies or political subdivisions, nor shall a person

whose civil rights have been restored be disqualified to engage in

any occupation for which a license, permit or certificate is required

to be issued by this Pueblo solely because of a prior conviction for

a felony or misdemeanor within or without this Pueblo. A person

may be denied employment by this Pueblo or any of its agencies

or political subdivisions or a person who has had his civil rights

restored may be denied a license, permit or certificate to engage in

an occupation by reason of the prior conviction of a felony or

misdemeanor if the offense has a reasonable relationship to the

functions of the employment or occupation for which the license,

permit or certificate is sought.

Subsection E is not applicable to any law enforcement agency.

Annotations: This section was previously located at

Section 5-1.62 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-5-4.

Restoration of Civil Rights; Person Completing Probation.

A person who has been convicted of two or more felonies whose

period of probation has been completed may have any civil rights

which were lost or suspended by his felony conviction restored by

the judge who discharges him at the end of the term of probation.

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Upon proper application, a person who has been discharged from

probation either prior to or after adoption of this chapter may have

any civil rights which were lost or suspended by his felony

conviction restored by the Chief Tribal Court Judge by whom the

person was sentenced or his successors in office from the Pueblo

in which he was originally convicted. The clerk of such court shall

have the responsibility for processing the application upon request

of the person involved or his attorney. The court shall cause a

copy of the application to be served upon the Chief of Police.

A defendant may apply to expunge his/her record or a portion of

their criminal record upon a proper showing by clear and

convincing evidence of an extended period of time of not less than

5 years for good conduct, no criminal convictions, service to the

Pueblo and need. The expunged record will be removed from

defendant’s criminal record but remain under court seal. Any

defendant whose record has been expunged and who thereafter

commits any high misdemeanor or felony will have his criminal

record reinstated and be subject to one count of contempt for each

criminal count that was expunged.

Annotations: This section was previously located at

Section 5-1.63 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-5-5 .

Applications by Persons Discharged from Jail.

Upon proper application, a person who has been convicted of two

(2) or more felonies who has received an absolute discharge from

imprisonment may have any civil rights which were lost or

suspended by his or her conviction restored by the Chief Tribal

Court Judge by whom the person was sentenced.

A person who is subject to the provisions of subsection A may file

no sooner than two (2) years from the date of his or her absolute

discharge, an application for restoration of civil rights that shall be

accompanied by a certificate of absolute discharge from the Chief

of Police. The clerk of the court that sentenced the applicant shall

have the responsibility for processing applications for restoration of

civil rights upon request of the person involved, his or her attorney

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or a representative of the Chief of Police. The court shall cause a

copy of the application to be served upon the Chief of Police.

Annotations: This section was previously located at

Section 5-1.64 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-5-6.

Setting Aside Judgment of Convicted Person upon Discharge; Making

of Application; Release from Disabilities; Exception. Every person

convicted of a criminal offense may, upon fulfillment of the conditions of

probation or sentence and discharge by the court, apply to the judge who

pronounced sentence or imposed probation or such judge's successor in

office to have the judgment of guilt set aside. The convicted person shall

be informed of this right at the time of discharge. The applications to set

aside the judgment may be made by the convicted person, by his or her

attorney or probation officer authorized in writing. If the judge grants the

application, the judge shall set aside the judgment of guilt, dismiss the

complaint and order that the person be released from all penalties and

disabilities resulting from the conviction, and except that the conviction

may be pleaded and proved in any subsequent prosecution of such

person by the Pueblo or any of its subdivisions for any offense.

Annotations: This section was previously located at

Section 5-1.65 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-5-7.

Restoration of Civil Rights in the Discretion of the Tribal Court Judge.

Except as provided in Section 5-5-10 the restoration of civil rights and the

dismissal of the criminal complaint under the provisions of this chapter

shall be in the discretion of the tribal court judge by whom the person was

sentenced or his successor in office.

Annotations: This section was previously located at

Section 5-1.66 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003. The 1995 Restatement

deleted

the

reference

Aaccusation@

Ainformation@ which appeared in lieu of Acriminal

complaint to be consistent with Section 5-1-8 Pueblo of

Acoma Laws 2003.

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5-5-8.

Restoration of Civil Rights; Persons Completing Probation for Federal

Offense.

A person who has been convicted of two (2) or more felonies

whose period of probation has been completed may have any civil

rights which were lost or suspended by his or her felony conviction

in a United States district court restored by the presiding judge of

the tribal court, upon filing of an affidavit of discharge from the

judge who discharged him or her at the end of the term of

probation.

Upon proper application, a person who has been discharged from

probation either prior to or after adoption of this chapter may have

any civil rights where were lost or suspended by his or her felony

conviction restored by an application filed with the Clerk of the

Tribal Court. The Clerk of the Court shall process the application

upon request of the person involved or his attorney.

Annotations: This section was previously located at

Section 5-1.67 of the 1985 Law and Order Code.

Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

5-5-9.

Applications by Persons Discharged from Federal Prison.

Upon proper application, a person who has been convicted of two

(2) or more felonies who has received an absolute discharge from

imprisonment in a federal prison may have any civil rights which

were lost or suspended by his or her conviction restored by the

presiding judge of the Tribal Court.

A person who is subject to the provisions of subsection A may file,

no sooner than two (2) years from the date of his or her absolute

discharge, an application for restoration of civil rights that shall be

accompanied by a certificate of absolute discharge from the

Director of the Federal Bureau of Prisons, unless it is shown to be

impossible to obtain such certificate. Such application shall be filed

with the clerk of the Tribal Court and such clerk shall be

responsible for processing applications for restoration of civil rights

upon request of the person involved or his or her attorney.

Annotations: This section was previously located at

Section 5-1.68 of the 1985 Law and Order Code.

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Removed to this section as a result of the re-formatting

of the 1995 Restatement, and as reformatted by the

Pueblo of Acoma Laws 2003.

The 1995 Restatement deleted Section 5-1.69 from the

1985 Law and Order Code since it repeated Section 5-57 in all substantive respects.

5-5-10.

Restoration of Civil Rights; Automatic for First Offenders. Upon

completion of the term of probation, or upon absolute discharge from

imprisonment, and upon the completion of payment of any fine or

restitution imposed, any person who has not previously been convicted of

any other felony or offense punishable by one hundred eighty (180) days

in jail shall automatically be restored any civil rights which were lost or

suspended by the conviction.

Annotations: This section was pr

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