IN THE SUPREME COURT

2011 FEB 14 PM 3 24

IN THE SUPREME COURT

OF THE

ROSEBUD SIOUX TRIBE

ROSEBUD SIOUX TRIBE, |

Plaintiff/Appellee, |

| CH09- 09

vs. MEMORANDUM OPINION

| AND ORDER

WES LUXON, | (AMENDED)

Defendant/Appellant. |

Per Curiam (Frank Pommersheim, Chief Justice and Associate Justices Leroy Greaves and

Cheryl Three Stars Valandra)

I. Introduction

Wes Luxon, defendant/appellant, was arrested by tribal law enforcement officers on the

evening of November 17, 2008. He was charged with the offenses of Driving Under the

Influence (Rosebud Sioux Law and Order Code § 6-1-1(2) (Class B offense) and Possession of a

Firearm While Intoxicated (Rosebud Sioux Law and Order Code § 5-11-7 (Class B offense).

After a series of continuances, Mr. Luxon, represented by a law-trained public defender,

was tried at a bench trial before Judge Steve Emery. Judge Emery found the defendant guilty on

both counts.2 The defendant, represented by a capable lay advocate (who is a member in good

standing of the Sicangu Oyate Bar Association), filed a timely Notice of Appeal. Oral argument

was heard by this Court on September 11, 2009.

| A third offense of Possession of a Firearm While Under the Influence of Marijuana was subsequently dismissed.

? Judge Emery imposed a sentence of 60 days (with 30 days suspended) and a $500 fine on the DUI charges and 60

days (with 45 days suspended) and a $500 fine on the DUI/Firearms charge sentence to run consecutively.

Defendant was also to take a DUI class and write a letter of apology to the local newspaper.

Il. Issues

This appeal raises two issues, namely whether there was ineffective assistance of counsel

by the public defender at the trial level in this matter, and whether the new amendment to the

Tribal Constitution found at Sec. 1 (d) of Art. X (Bill of Rights) relative to Miranda warnings

requires reversal of defendant’s conviction.

Each issue will be discussed in turn.

lI. Discussion

A. Ineffective Assistance of Counsel

This issue presents a matter of first impression and of significant importance before this

Court. The initial question in this context is identifying the appropriate standard with which to

determine whether defense counsel’s representation was ineffective and if so, whether it was also

prejudicial. The classic federal constitutional standard is articulated in Strickland v. Washington,

466 U.S. 668 (1984), but it does not automatically apply in this Tribal court context. That is so

because the right to counsel in the tribal court context derives from the Tribal Constitution and

federal statute, not the United States Constitution. The relevant Tribal constitutional provision is

to be found at Art. X, Sec. 1(f), which guarantees the defendant the right “to have the assistance

of counsel for his or her defense, including the right to have counsel subject to income

guidelines.” The analogous federal statutory provision is contained in the Indian Civil Rights

Act, 25 U.S.C. § 1302(6), and provides a defendant with the right “at his own expense to have

the assistance of counsel for his defense.”

In light of the strong affirmative language in the Tribe’s Constitution and the Tribe’s

concomitant commitment to enhanced constitutional governance, this Court adopts the standard

articulated in Strickland v. Washington as the proper measure to determine whether there has

been ineffective assistance by counsel in a criminal case tried before the Rosebud Sioux Tribal

Court. This well-known test consists of two parts: “First the defendant must show that counsel’s

performance was deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the

defendant must show that the deficient performance prejudiced the defendant. This requires

showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” 466 U.S. at 687. A defendant’s conviction may be set aside only if

both parts of the test are satisfied.’ Id.

Other tribal courts have consistently adopted the Strickland test as the appropriate

standard for determining ineffective assistance of counsel claims. The Hopi Court of Appeals,

for example, expressly adopted the Strickland standard as applicable to a non-law-trained by

advocate in Navasie v. Hopi Tribe, No. 98AC000015 (Hopi Court of Appeals, 1998):

However, since the [Strickland] standard comes from a foreign jurisdiction, Hopi

courts should consider whether it is suited to the Hopi community before adopting

it. Representation by legal counsel has distinct advantages for Hopi litigants,

including affordability and cultural familiarity that merit preservation.

Nonetheless, legal counsel should not be permitted to practice without basic

competency in law and procedure. The Strickland test, in assessing the

effectiveness of counsel by what is reasonable under the circumstances, allows

competency to be evaluated in light of Hopi norms. It strikes an appropriate

balance between the need to protect defendants from inept counsel and the need to

take into account the relevant cultural context, and thus can be applied to both lay

advocates and attorneys. Jd. at 38.

The Hopi Court of Appeals in Navasie wisely underscores the importance of cultural

context insuring a just application of Strickland and this Court expressly endorses such

contextual concern for Lakota cultural norms and values. See also Taylor v. Hopi Tribe, No.

3 Since admission to practice before the Rosebud Sioux Tribal Court requires an individual — whether law-trained or

not — to pass the Tribal bar examination, the Strickland standard will apply to all defense counsel, regardless of

educational background. In addition, the Strickland standard shall apply in all cases when a defendant is sentenced

to jail time, regardless of whether any of said jail time has been suspended, commuted, or otherwise served.

00AC000002 (Hopi Court of Appeals, 2000), expressly adopting the two part Strickland test of

“deficient performance” and “prejudice.”

The Navajo Supreme Court has likewise adopted the basic Strickland standard as a

necessary element of the right to counsel guaranteed by the Navajo Nation’s own Bill of Rights.

The Strickland standard is further mandated by Navajo common law. In fact, the Court noted

that ‘[t]his cultural standard is stricter than that required by the Indian Civil Rights Act.’ Navajo

Nation v. Madonal, No. A-CR-09-90 (Navajo Supreme Court, 1991). See also Fort Peck

Assiniboine and Sioux Tribes v. Clark (Fort Peck Assiniboine and Sioux Tribes Court of

Appeals, 1987) deriving the legitimacy of an ineffective assistance claim from the right to

(optional) counsel contained in the Indian Civil Rights Act, 25 U.S.C. § 1302 (6).

1. Deficient Performance

Deficient performance of defense counsel is to be measured by an “objective standard of

reasonableness.” The reasonableness standard includes both an element of deference and

flexibility relevant to the “prevailing norms of practice.” Yet the reasonableness inquiry must

center on the facts of the particular case, viewed as of the time of counsel’s conduct.” /d. at 690.

A central component in this inquiry is defense counsel’s duty to investigate so as to make

“strategic choices.”

The two primary grounds alleged to constitute deficient performance were the failure of

defense counsel to file a pre-trial motion for a “probable cause and suppression” hearing and the

failure to adequately cross-examine the law enforcement witnesses of the prosecution. Each

ground will be examined separately.

a. Failure to Seek a Probable Cause and Suppression Hearing

The appellant consistently conjoins probable cause with suppression, but they are two

quite different elements of criminal procedure. A probable cause hearing was determined to be

constitutionally mandated (absent an arrest warrant) in the case of Gerstein v. Pugh, 420 US.

103 (1975). In the case at bar, the defendant was arrested without a warrant on November 17,

2008 and was released on a $500 cash bond on November 19, 2008. This two day period of

incarceration normally would not trigger the requirement of an immediate probable cause

hearing under the constitutional principle of due process articulated in the case of County of

Riverside v. McLaughlin, 500 U.S. 44 (1991).

As noted above, such a constitutional principle does not apply against the tribes, see

Talton v. Mayes, 163 U.S. 376 (1896), because the tribes are not subject to the strictures of the

United States Constitution. Nevertheless, the tribes are subject to the Indian Civil Rights Act,

including the due process provision at 25 U.S.C. § 1302(8), as well as its own constitutional

provisions. The Rosebud Sioux Constitution contains a due process guarantee at Art. X, Sec.

1(f). This Court holds that the Tribal constitutional guarantee of due process requires a due

process hearing within 72 hours if the defendant has not been released from custody. Such a due

process hearing need not be adversarial and does not require that defendant have the right to call

witnesses or cross-examine any witnesses of the prosecution. The requirement of a probable

cause hearing, if otherwise timely, may be combined with the arraignment. In this case, the

defendant was released on bond within 48 hours, promptly arraigned, and thus the issue is

essentially moot.

As to the mater of suppression, this issue is more complicated. Certainly, there is a due

process right to a suppression hearing. Both parties agree as to this core ingredient. It is also

true that the Tribe has the right to establish the procedural parameters for the exercise of that

right. It is a uniform rule at the federal, state and Tribal level that suppression of evidence is

essentially a pre-trial matter and absent the most extreme set of circumstances, it cannot be raised

at trial. The trial judge was well within his discretion to deny the motion as untimely, when it

was raised on the day of trial.

Defense counsel offered no explanation for his failure to raise the issue in a more timely

manner. This failure clearly violated the Rosebud Sioux Tribal Rules of Criminal Procedure.

See, for example, Rule Sec. 7, Art. IV(F) which provides:

1. The Court shall, upon motion of either party, or upon its own motion,

hold a pretrial conference. The Court shall compel the attendance of the

defendant and his counsel at the conference. The prosecution and defense may be

required by the court to exchange discoverable information at the conference.

The Court shall at that time consider all pre-trial motions and the Court may

issue such orders as deemed proper to regulate the conduct of trial.

2. Defenses of objections that are capable of determination other than at

trial must be raised at the pretrial conference. (emphasis added)

This error of counsel is particularly egregious in light of the fact that one of the charges,

possession of a firearm while intoxicated, relied exclusively on physical evidence (i.e., the

firearms) seized without the benefit of either a search or arrest warrant. In addition, at the time

of this occurrence, there existed no Tribal exceptions — statutory or decisional — that permitted

the seizure of evidence without a warrant of some kind. In the case at bar, the Tribe did obtain a

search warrant to seize evidence relative to whether the defendant was in possession of a firearm

while under the “influence of marijuana.” Indeed, defense counsel himself appeared to realized

the necessity to deal with the issue of suppression by making a motion for suppression, even if it

was done too late and in an untimely manner. The inescapable conclusion is that of attorney

error.

1 b. Failure to Adequately Cross-Examine

Defendant/appellant also asserts that his attorney’s cross-examination of the two law

enforcement officers who testified at trial was deficient as a matter of law.’ Officer Robert

Sedlmayer was the first witness called by the Tribe. Officer Sedlmayer was the arresting officer

and his direct testimony related largely to his observations of defendant’s driving, which led him

to conclude that there was probable cause to make a traffic stop, his concern (pursuant to a

departmental dispatch) about the potential presence of firearms, his questions to the suspect

about the presence of firearms, the perception of the smell of alcohol, the ‘staggering’ of the

defendant, the subsequent administering of field sobriety tests to the defendant, and his ultimate

conclusion that there was probable cause to arrest the defendant for DUI and the illegal

possession of firearms.”

Defense counsel’s cross-examination of Officer Sedlmayer focused largely on the

training and competency of officers to administer and interpret the results of field sobriety tests,

as well as whether Officer Sedlmayer at any point apprised the defendant of his Miranda rights.

There was no cross-examination concerning probable cause or the seizure of the evidence.

The prosecution then called Officer Delta Anderson. The essence of Officer Anderson’s

testimony was directed to his observation of Officer Sedlmayer in possession of the weapons

taken from the defendant’s vehicle at the scene, his own subsequent securing and marking the

evidence, and his role in the chain of custody in presenting the physical evidence to the Court as

the lead-up to its offer in evidence. There was minimal cross-examination, relating to the chain

of custody. The defense then rested and did not call any witnesses.

4 This assertion was not discussed in defendant/appellant’s brief, but was presented for the first time in oral

argument before this Court. Since there was no objection by counsel for the Tribe, any possible objection is deemed

to have been waived.

5 Defense counsel did assert a number of objections — largely related to hearsay — to parts of this direct testimony.

While defense counsel’s cross-examination of two law enforcement officers was not

particularly probing, it was not deficient as a matter of law. Defense counsel did establish the

failure to give Miranda warnings and did raise some essential questions relative to the field

sobriety tests.

2. Prejudice

Given our finding that there was deficient performance relative to the failure to timely

request a suppression hearing, the question becomes whether such failure was prejudicial in the

context of Strickland v. Washington. The standard for prejudice is such that:

The Defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. 466 U.S. at 674.

In the context of suppression, the key inquiry revolves around the seizure of firearms,

which was an absolute predicate to the conviction of the charge of possession of a firearm while

intoxicated. While there is no Tribal precedent on point, it is reasonable to conclude that the

seizure of the firearms was constitutionally permissible under the (federal) plain-view, public

safety, and automobile exceptions to the search warrant requirement. See, e.g. Coolidge v. New

Hampshire, 405 U.S. 443 (1971); New York v. Quarles, 467 U.S. 649 (1984); and Chambers v.

Maroney, 399 U.S. 42 (1970).

These exceptions also appear appropriate within the context of both the Indian Civil

Rights Act of 1968 and the Rosebud Sioux Tribal Constitution. Since there is nothing in the

record to suggest that plain view ought to be viewed differently in the Tribal context or that

public safety is of a lesser concern or that automobiles should be considered differently, the

6 The DUI conviction involves no suppression issues. Field sobriety tests involve no seizure of tangible or

testimonial evidence, but, at best, evidence relative to the physiological impairment to the physical movement,

including the ability to speak understandably. See, e.g. Pennsylvania v. Muniz, 496 U.S, 582 (1990).

Court adopts these exceptions to the United States Constitution search warrant requirement as

permissible exceptions to the warrant requirement of both the Indian Civil Rights Act of 1968

and the Rosebud Sioux Tribal Constitution. Having adopted these exceptions, it is clear that

seized firearms would have been admissible at trial and hence there was no prejudice that

resulted from the failure of defense counsel to timely file a suppression motion.

B. Miranda Warnings

While it is clear that there was no Miranda violation in the federal constitutional sense

because there was no “custodial interrogation,” Miranda v. Arizona, 384 U.S. 436 (1966), a

recent amendment to the Rosebud Sioux Tribal Constitution raises the question whether the new

amendment is more exacting than the federal standard.

The place to begin is with the text of the new amendment to the Tribal Constitution. It

reads in full that the Tribe shall not:

Search or arrest any person without informing them of their right to remain silent,

to have access to an‘attorney, to be informed that anything they say can be held

against them in a court of law, to have their rights explained at the time of the

search and arrest, and to ask them if they understand these rights. Art. X, Sec.

1(d).

This provision, while not identical, is very similar to the classic language that constitutes the

Miranda warning established in the case with the same name:

Prior to any questioning, the person must be warned that he has the right to

remain silent, that any statement he does make may be used as evidence against

him, and that he has the right to the presence of an attorney, either retained or

appointed. 384 U.S. at 444.

The Fifth Amendment-like protections of Miranda are triggered by circumstances

“stemming from custodial interrogations.”’ The remedy for the violation of Miranda

7 “By custodial interrogations, we mean questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at

444,

requirements is the exclusion of the tainted statements, /d., and any attendant fruit of the

poisonous tree. See, e.g., Wong Sun v. United States, 371 U.S. 471 (1963).

The basic question before this Court, as indicated, is therefore whether the Tribal

constitutional amendment reflects a basic Tribal intent to adopt Miranda in toto or to add

additional requirements, or perhaps even subtract requirements. Despite the slight variation in

text between the Miranda opinion and the Tribal constitutional amendment, no evidence was

presented to suggest that there was any Tribal constitutional intent to have its amendment extend

beyond Miranda. In the absence of such evidence, it is reasonable to conclude that Tribal intent

was to adopt Miranda as its constitutional standard.

There are several other reasons that support such a reading. Given the sanction limitation

of one year in jail or a $5000 fine or both in the Indian Civil Rights Act of 1968, 25 U.S.C. §

1302(1) and the Rosebud Sioux Law and Order Code, it would appear unlikely (especially with

no evidence to the contrary) that the intent of the amendment was to exceed the federal contours

of Miranda, where there is no sanction limitation whatsoever.

It is further true that relevant portion of the Tribal constitutional amendment mentions no

express remedy whatsoever and this provides some additional support for our position. Such a

view is bolstered by the section that precedes Art. X, Sec. 1(d). Sec. 1(c) largely mirrors the text

of the Fourth Amendment’ and the relevant section of the Indian Civil Rights Act,’ but ina

crucial way exceeds both by enumerating a specific remedy, which is not mentioned in either the

® The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

® The Indian Civil Rights Act states:

(2) violate the right of the people to be secure in their persons, houses, papers, and effects against

unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath

or affirmation, and particularly describe the place to be searched and the person or thing to be

seized. 1302(2).

10

Fourth Amendment or the Indian Civil Rights Act. Sec. 1(d) reads in whole that the government

of the Tribe, including the community shall not:

Violate the right of the people to be secure in the privacy of their persons, houses,

papers, vehicles, and effects against unreasonable searches and seizures, nor issue

warrants but upon probable cause, supported by oath or affirmation signed by a

judge, and particularly describing the place, person, house, papers, vehicles, or

effects to be searched, the object and scope of such search, and the person or thing

to be seized, and any search or seizure taken in violation of this provision shall be

excluded. (emphasis added)

An express remedy in the search and seizure context of Sec. 1(c) and no express remedy

in the Miranda context of the very next section of 1(d) potentially suggests the lack of any intent

to provide a remedy. While we do not accept such a reading, it does support the Court’s basic

conclusion that Sec. 1(d) does not exceed the core federal boundaries of Miranda.

In sum, the Court finds that Sec. 1(d) is the Tribal constitutional equivalent to the federal

constitutional standard of Miranda.'° And as a result, no exclusion of evidence is required,

because there was no “custodial interrogation” that would trigger the Miranda remedy to

suppress. Further, Miranda does not apply to roadside questioning of motorists detained

pursuant to a routine traffic stop. Berkemer v. McCarty, 486 U.S. 420 (1984).

IV. Conclusion

For all the above-stated reasons, the conviction of the defendant is hereby affirmed.

Despite upholding the conviction, it is important to restate the decision of the Court to adopt the

standard articulated in Strickland v. Washington,'' 466 U.S. 668 (1984), to determine whether

there is ineffective assistance of counsel as a matter of Tribal constitutional law, as well as the

determination that Sec. 1(d) of Art. X (Bill of Rights) of the Tribal Constitution is to be

10 Afiranda is a constitutional rule rather than some kind of a judicially created remedy. Indeed, Miranda warnings

“have become part of our national culture.” Dickinson v. United States, 530 U.S. 428, 430 (2000).

\1 This includes the rule that extrinsic factors such as an extensive caseload do not dilute or revise downward the

standard of effectiveness to which defense counsel is to be held. See, e.g. United States v. Cronic, 466 U.S. 648

(1984).

1]

understood as identical to the rule(s) of Miranda v. Arizona, 384 U.S. 436 (1966) and its

progeny.

IT IS SO ORDERED.

Dated this 30" day of October, 2009.

FOR THE COURT:

fu fi neil

Frank Pommersheim

Chief Justice

As amended February 11, 2011.

FOR THE COURT:

NG (- Maree Po —

Frank Pommersheim

Chief Justice

12