6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000)

IN THE YUROK TRIBAL COURT OF APPEALS

YUROK INDIAN RESERVATION

KLAMATH, CALIFORNIA

Larry Z. Hendrix, Appellant,

v.

Yurok Tribe, Appellee.

No. AP-002, Trial Court Case No. 98-016 (February 8, 2000)

SYLLABUS^*

After a bench trial, trial court convicted Defendant of violating the Tribal Fishing Rights Ordinance. Trial Court also fined Defendant for failure to appear in court and for taking fish from another fisher’s net. Court of Appeals holds that trial judge committed multiple acts of procedural error and abuse of discretion, including failure to dismiss based on a defective complaint, failure to recuse herself for apparent bias and ex parte contacts, failure to grant a continuance, erroneous evidentiary rulings, due process violations, and convicting a party of a non-existent offense. Trial court order reversed and vacated with remand for further proceedings.

Before:            Fred W. Gabourie, Sr., Chief Justice; Michelle Demmert, Justice; Mary L. Pearson, Justice.

Appearances:  Larry Z. Hendrix, Appellant; Keith Taylor, spokesperson for Appellant; Appellee Yurok Tribe appears by and through their Tribal Prosecutor, Dohn R. Henion.

OPINION

This matter came before the Yurok Tribal Court of Appeals pursuant to Appellant’s Notice of Appeal filed on September 22, 1998. Mr. Hendrix appeals the Judgment entered by the Yurok Tribal Court on September 18, 1998.

Oral arguments in this matter were heard on December 13, 1999 via teleconference by agreement of the parties.¹ Appellant Larry Z. Hendrix and his spokesperson, Keith Taylor, were present during the teleconference. Yurok Tribal Prosecutor, Dohn R. Henion, was present on behalf of Appellee Yurok Tribe.

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 5

SUMMARY

Appellant appeals the Judgment of the Yurok Tribal Court. The Tribal Court, after a bench trial, found the appellant had violated § 7(d) of the Yurok Tribal Fishing Rights Ordinance and imposed a fine of fifty dollars ($50.00), a fine of fifty dollars ($50.00) for failure to appear (contempt), and a fine of one-hundred dollars ($100.00) for taking a fish from another fisher’s net, and suspended Appellant from fishing until fines were paid. We reverse.

I. FACTUAL BACKGROUND

Based on the trial court record before us, the following facts are undisputed. On or about June 20, 1998 Randy Mattz found his gillnet had been removed from the Klamath River and was lying, still wet, on the bank. Two men were near the net. According to Mr. Mattz’s testimony at trial, the two men told him they had helped their uncle, Larry Hendrix, remove a sturgeon from the net.

On July 6, 1998, BIA Law Enforcement Officer Forrest Salmans filed a report documenting Mr. Mattz’s allegations. The report indicates Mr. Mattz wished to file charges against Mr. Hendrix for violating Yurok Tribal Fishing Rights Ordinance (YTFRO) § 7(d), which provides:

Except as may be provided for in this ordinance, no eligible Indian fisher may attend or fish a net that is not marked with his/her own identification number unless he/she is accompanied by the eligible fisher whose identification number is on the net.

Officer Salmans’ report attaches a written statement by Mr. Mattz.

On July 27, 1998, the Yurok Tribe filed an unsigned criminal complaint against Appellant, Larry Hendrix, alleging that he had, within the exterior boundaries of the Yurok Indian Reservation, on or about June 20, 1998, attended or fished a net belonging to another in violation of YTFRO § 7(d).

II. JURISDICTION

This Court has personal jurisdiction over Appellant Larry Z. Hendrix because he is an enrolled member of the Yurok Tribe. The act which is the subject of this appeal occurred within the exterior boundaries of the Yurok Indian Reservation, giving rise to territorial as well as personal jurisdiction. This Court has subject matter jurisdiction over this case pursuant to YTFRO §§ 1(d) and 7(d).

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 6

III. PROCEDURAL BACKGROUND

Mr. Hendrix was arraigned on August 21, 1998, at which time the tribal court called “Case of Mattz v. Hendrix.” The criminal complaint, however, is entitled “Yurok Tribe v. Larry Zane Hendrix.” Appellant appeared in person at his arraignment. The Court, in advising Appellant of the charges against him, stated: “you handled someone else’s net and there was a Sturgeon taken from the net . . . .”² Appellant then moved to dismiss the matter, alleging the trial judge had engaged in ex parte communications.³ Mr. Hendrix also made an oral “Motion for a new Judge.”⁴ The Court denied both motions and set a trial date of September 18, 1998. Appellant requested another date, stating that he would be out of the area. Appellant also signed a waiver of speedy trial. The Court denied the request stating, “you will have to be here or we will go through the trial without you.”⁵

On September 18, 1998, the Court called for trial the case of “Randy Mattz v. Larry Hendrix.”⁶ Mr. Hendrix’s attorney, Michael Golden, appeared on his behalf. Stating that his client was unable to appear, Mr. Golden requested a continuance, which the court denied.⁷

Mr. Golden then moved to dismiss the complaint without prejudice on the grounds that it: (1) failed to state the acts alleged to constitute the offense; (2) failed to state the alleged time and place of the offense; and (3) was not signed by the complaining witness, all in contravention of the requirements of the tribal code.⁸ The court denied that motion “because I think that there is enough evidence here.”

The court, over Mr. Golden’s objection, allowed into evidence a written statement from Mr. Mattz,⁹ even though he was present and available to testify.¹⁰ Mr. Golden made a standing objection to any hearsay statements elicited throughout the trial.¹¹

Prior to introducing one of his exhibits, the prosecutor made an extensive factual statement concerning the “net log record.” Mr. Golden objected to the statement on the grounds that the prosecutor was testifying and had not been sworn.¹² The Court allowed the net log record¹³ and the prosecutor’s statements to be admitted.¹⁴ The court also admitted into evidence the entire police officer’s incident report.¹⁵

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 7

The Court found Appellant had violated YTFRO § 7(d) and fined him $50.00. The court also fined Appellant $50.00 “for not showing up in Court today” and $100.00 “for the Sturgeon taken from Randy Mattz’s net”¹⁶ without statutory citations for the latter fines.

IV. ISSUES ON APPEAL

Each party submitted a written brief and appeared for oral arguments. Based on the trial court record, written briefs, and oral arguments, the issues on appeal may be distilled as follows:

V. DISCUSSION

1.    Was the criminal complaint fatally defective?

At the time of trial, Mr. Golden, Appellant’s attorney, moved the court to dismiss the complaint without prejudice on the grounds that the complaint did not satisfy the requirements of Title II, § 1 of the Yurok Tribal Code. Specifically, Appellant argued that the complaint failed to state the alleged time and place of the offense and was not signed by the complaining witness. The court denied the motion, stating “I think that there is enough evidence here and the complaint being signed by the witness here to proceed with the case.¹⁷

Title II, § 1 of the Yurok Tribal Code provides:

Criminal proceedings in the Yurok Tribal Court shall be commenced by filing a complaint which shall be signed and sworn to by the complaining witness, signed by the Clerk, and shall state the following facts:

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 8

1.    the name or description of the person alleged to have committed an offense (hereinafter the “defendant”;

2.    a short statement of the acts constituting the offense or offenses charged in ordinary English, including the time, date, and place of the acts and the section or sections of the Tribal ordinance, or other applicable law allegedly violated; and,

3.    the date of filing.

The criminal complaint in this case sets forth most of the necessary elements as required in the Yurok Tribal Code. It states in plain English Appellant’s alleged unlawful acts and the approximate date of said acts; however, it does not state a specific place within the exterior boundaries of the Yurok Indian Reservation and it is not signed.

Generally, a complaint which is defective as to time, date, place of offense, and even complaining witness may be amended orally at the time the motion is made, or is subject to dismissal without prejudice, unless the motion is made after the jury has been sworn or in the case of a bench trial, after the first witness has been called.

A defendant is entitled to notice and an opportunity to prepare for trial. The complaint serves as notice of the charges against him and provides him the opportunity to respond. Therefore, the complaint must allege the essential facts constituting the offense charged¹⁸ and should be based upon the complainant’s personal knowledge.¹⁹ If the facts alleged in the complaint do not clearly show personal knowledge on the part of complainant, the source of his information or the grounds for his belief must be alleged.²⁰ If a complaint is deficient in that it fails to show personal knowledge of the complainant and is not signed, such deficiencies cannot be remedied by a magistrate’s reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer.²¹

In this case, the criminal complaint fails to set out sufficient facts to allow defendant to prepare for trial. As such, it does not comply with the requirements set forth in the Yurok Tribal Code and is therefore defective. Additionally, the defective complaint denies Appellant the due process protections afforded him by the Yurok Tribal Code.

Appellate Courts generally will not review an issue raised for the first time on appeal Where an issue concerns the court’s jurisdiction to hear a matter, however, the Court may consider the issue.²² . The missing signature raises a jurisdictional issue. We do not here decide whether a missing signature on a criminal complaint is, in and of itself, sufficient grounds to

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 9

dismiss the complaint pursuant to the requirements of the Tribal Code. Nevertheless, when considered as a whole, the absent signature, vague location description, and insufficient factual allegations render the complaint defective. Therefore, denial of the motion to dismiss constitutes reversible error.

This Court reverses Mr. Hendrix’s conviction based on the defective complaint. Noting, however, a thread of unfairness that runs throughout the record of this trial, we find it necessary to go beyond our discussion of the defective complaint to address other violations of defendant’s basic tribally-protected rights and those protected by the Indian Civil Rights Act (ICRA), 25 U.S.C. 1331, et seq.

2.    Should the trial judge have disqualified herself for cause?

During arraignment, Appellant orally moved to dismiss the charges against him, alleging that the trial judge had had ex parte communications with the opposing party. The trial court denied the motion. Appellant contends the judge’s statement, “I think that there is enough evidence here”, was uttered before any evidence was presented, thereby indicating the judge had ex parte communications regarding the case.

Title I, § 10.1 of the Yurok Tribal Code sets forth the conditions that mandate judicial disqualification:

Any Judge shall be disqualified to act in any proceeding:

The subsequent provision, § 10.2, outlines the procedures for disqualification: “A judge may be disqualified on his own motion or by the filing of an affidavit of prejudice by a party to the proceeding showing good cause for disqualification.”

Appellant failed to file an affidavit of prejudice showing good cause for the judge’s disqualification. Instead, Appellant attached to his opening brief to this Appellate Court a written statement by the clerk of the court. Although the statement might properly have been an issue for pre-trial motion or post-conviction relief, it is not a part of the trial court record and was not reviewed by the lower court. Therefore, the court clerk’s signed statement is not properly before us and we will not consider it in our review.

A motion to recuse must be timely made. The judge should scrupulously avoid any appearance of being an advocate. The judge’s function, as presiding officer, is to act

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 10

impartially.²³ Communicating with parties or discussing the case ex parte with the prosecutor is basically unfair to the other party. The principle grounds for disqualification for cause are personal or financial interest, relationship to either party, previous service as counsel, and bias or prejudice which make a fair trial impossible.²⁴

Any judge having knowledge of facts that disqualify him to act has the duty to declare his disqualification. Should he fail to do so, either party may present to the court and file with the clerk a written verified statement objecting to the trial of any issue of fact or law before the judge, setting forth the facts on which the claimed disqualification is based. The party’s statement must be presented at the earliest practicable opportunity after learning the grounds for the judge’s disqualification and, in any event, before the judge has begun to hear any issue of fact in the action.²⁵ If an appropriate issue of fact is present, the question must be heard and determined by some other judge agreed upon by the parties.²⁶

We consider a number of facts set forth in the transcript: (1) at Appellant’s arraignment, the judge called the matter “Case of Mattz v. Hendrix”²⁷ when the criminal complaint is entitled “Yurok Tribe v. Larry Z. Hendrix”; (2) at the time of trial, the judge again announced: “This morning we have the defendant, Randy Mattz v. Larry Hendrix . . .”; and (3) the judge’s statement at the start of trial concerning sufficient evidence.²⁸ These factors not only show judicial bias, but also strongly indicate the judge had ex parte, pre-trial discussions with some individual or individuals regarding the circumstances and facts of the case. The trial judge should have recused herself and assigned some other judge to preside over this case.

During Appellant’s arraignment, the trial court set a trial date. Appellant requested a continuance because he was going to be traveling out of the area on business. He further stated that legal counsel would appear for him at trial. The court denied Appellant’s request for a continuance and stated that trial would proceed whether Appellant was present or not. Appellant signed a waiver of his right to speedy trial, which the judge countersigned.

Before the commencement of his trial, Appellant’s counsel again requested a continuance, stating that Appellant could not be present in court because of “compelling

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 11

reasons.” The court, without inquiring into the compelling reasons, summarily denied the request.²⁹

Generally, no continuance shall be granted for any longer time than it is affirmatively proved the ends of justice require. On the other hand, the constitutional rights of a defendant to confront witnesses and to have effective representation of counsel give rise to an equally strong policy favoring continuances where they are necessary for the protection of those rights.³⁰

The Yurok Tribal Code is silent on the subject of continuances. However, both the Yurok Code and the Indian Civil Rights Act contain protections for a defendant in a criminal proceeding. Title II, § 11 of the Tribal Code provides, in relevant part:

In all criminal prosecutions, the defendant shall have the following rights:

1.       the right to be present throughout the proceedings and to defend him or herself in person . . . .

…

3.       the right to confront the opposing witness face to face.

The relevant provision of the Indian Civil Rights Act provides.

No Indian tribe in exercising powers of self-government shall … deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense.

25 U.C.S. § 1302(6). Further, Rule 15 of the 1997 Rules of Court for the Yurok Tribal Court may also prove instructive. While Rule 15(A) protects a criminal defendant’s right to speedy trial, Rule 15(B) allows him to waive that right. A defendant’s voluntary and knowing waiver of his right to speedy trial clearly protects the integrity of both the Tribe and its Court.

The grant of continuances in both civil and criminal cases has always been a matter largely within the discretion of the trial court and an order of denial is seldom successfully attacked,³¹ except in those cases where the Appellate Court can find an abuse of discretion.³² In the case before us, the trial judge should have inquired, both at the arraignment and at trial, as to the reason for the continuance request. Such an inquiry would have assisted the court in balancing Appellant’s right to be present at his own trial against any potential harm or prejudice

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 12

to the plaintiff. There was no such inquiry and no balancing of rights. This constitutes reversible error on the part of the trial court.

4.        Did the trial court, in contravention of its legal authority, create a “theft of fish” offense?

The record shows the trial court found Mr. Hendrix guilty of attending or fishing another’s net in violation of YTFRO § 7(d) and of taking a fish out of Randy Mattz’s net. The court imposed a separate fine for each violation. Appellant contends that the tribal court created law from the bench when, “without legislative authority, [it] created a theft of fish ordinance and found Appellant guilty of the theft of a fish, without any offering of proof and without any direct testimony or evidence.”³³

Appellee, on the other hand, argues the judge did not really make new law. Rather, Appellee contends, the judge imposed a restitution-type penalty for the violation of § 7(d), in addition to the fine already assessed. This Court does not agree. The trial court’s minute order, as well as the trial transcript, clearly indicate that the judge found Appellant guilty both of violating YTFRO § 7(d) and theft of a sturgeon, with no evidence to substantiate either the conviction or penalty on the latter.

The Yurok Code does not have a criminal charge of theft, nor does the fishing code address theft in this context. The legislative body of the Yurok Tribe, its Tribal Council, is responsible for the creation of Yurok law. The Yurok Tribal Constitution provides:

This Constitution is a delegation of specific tribal authority from the Yurok People to the Tribe’s governing bodies and this constitution hereby reserves to the people all authority not delegated to the tribe’s governing bodies. Members of the governing bodies shall have no authority to act inconsistent with the objectives enumerated in the Preamble to this constitution.

Yurok Tribal Constitution, Art. I, § 3. The trial court, in finding Appellant guilty of theft and levying a fine, impermissibly created law from the bench. This constitutes an abuse of discretion and is reversible error.

5.        Did the trial court err in imposing a contempt fine, in defendant’s absence, for defendant’s failure to appear?

At the conclusion of his trial, the court imposed three separate fines on Mr. Hendrix, including one for “not showing up in court today.” The minimum requirements of due process are some form of notice and an opportunity to be heard.³⁴ Mr. Hendrix was afforded neither. He

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 13

had not been charged with contempt nor was he present in court at the time the judge found him guilty of and fined him for contempt. The trial court erred in fining defendant for contempt without affording him notice and an opportunity to be heard.

6.        Did the trial court err by allowing the admission of hearsay evidence?

Hearsay evidence is an extra-judicial statement offered to prove the truth of what is asserted in the statement³⁵ and generally is not admissible. The primary justification for the exclusion of hearsay evidence is the lack of any opportunity for the adversary to cross-examine and view the demeanor of the absent declarant whose out-of-court statement is introduced into evidence.³⁶ Hearsay evidence cannot be admitted unless it falls within a firmly rooted exception to the defendant’s right to confront and cross-examine the witness.³⁷

Yurok Rule of Court 29 allows the Federal Rules of Evidence to serve as a guideline to the tribal court for purposes of admitting evidence. At trial, Appellee offered three exhibits into evidence. The trial court admitted all three exhibits over Appellant’s objections. As we discuss in the following paragraphs, this violated Appellant’s right to a fair and impartial trial.

Exhibit #1 was a letter written by the complaining witness to the Yurok Tribal Council. Because the letter’s author, Randy Mattz, was both present and available to testify under oath in court, it does not fall within the Rule 804(b) exception to the hearsay rule and, therefore, should not have been admitted.³⁸ The balance of the letter regarding defendant’s behavior was irrelevant to the case and was inflammatory, resulting in extreme prejudice to defendant’s right to a fair and impartial trial.

The admission of the Tribe’s Exhibit #2, the net log record, over the objection of Appellant’s counsel, also was inappropriate. The net record does not fall within any of the Rule 803 exceptions to the hearsay rule; specifically, it does not qualify as either a “recorded recollection” or a “record of regularly conducted activity”.³⁹

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 14

The testifying witness, Officer Salmans, admitted that he had not prepared the exhibit, that it was not a record prepared in the normal course of business, and that the prosecutor had prepared the document. Had Officer Salmans prepared the document, he would have been able to use it to refresh his memory. He did not, however, prepare the document and it was error to allow him to use documents prepared by someone else to aid his testimony. In any event, he would not have been allowed to introduce the document itself into evidence.⁴⁰ Further, because Officer Salmon was neither the author nor the custodian of the records, and because the records were created not in the course of a regularly conducted business activity but by the prosecutor in anticipation of trial, they were not admissible under the 803(6) exception to the hearsay rule.⁴¹

The admission of the net records violated defendant’s right to a fair and impartial trial and violated the ethical restrictions against counsel testifying. The net records should not have been admitted.

The Tribe’s Exhibit #3, the Police Report, is specifically excluded under Rule 803(8), which provides that:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office of agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel . . . .

The officer had a right to refresh his memory from his police report, but it was error to admit the report itself into evidence.

Exhibit numbers 1, 2 and 3 were inadmissible hearsay evidence. Their admission violated Mr. Hendrix’s right to a fair and impartial trial. The trial court erred in admitting the exhibits.

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 15

7.    Can the Appellate Court award Appellant damages as requested?

The Yurok Tribal Code limits the remedies an Appellate Court may provide on appeal. Rule 10(C) of the Yurok Appellate Rules provides:

The written opinion shall specify the grounds for appeal and the reasons for upholding or denying the appeal. The appeal Court may affirm, reverse or modify the order of the Court, order a new trial, or may decrease, but not increase, any sentence or fine.

Here, Appellant has asked the Court for what amounts to damages for his loss of fishing rights due to his failure to pay the assessed fine while appellate review was pending. The request is not properly before this Court.

Appellant requested damages in the last few minutes of his closing statement at oral argument. His brief is silent on the specific issue of damages;⁴² therefore, Appellant has failed to provide Appellee with notice or opportunity to respond to his request for damages. Furthermore, it would appear that assessment of damages is beyond the scope of this appeal, as it was not requested at the trial level. This Court’s review, as noted above, is limited to the trial court record. The Court notes, however, that Appellant could and should have mitigated his damages at the time he posted his $200 appellate bond. Appellant or his counsel could have requested reinstatement of his license in a good faith effort to minimize his damages.⁴³

8. Did the trial court err by sentencing defendant in his absence?

The Yurok Tribal Code is silent as to whether a defendant’s presence in court at the time of sentencing is required; however, the code does state:

Within a reasonable time after a verdict or a plea of guilty and after such presentencing investigation as the Court may direct, the Court shall sentence the Defendant in conformity with the applicable provisions of Tribal ordinances . . . .

Yurok Tribal Code, Title II, § 16. State and federal law, while not binding upon this Court, may be useful as guidance. The State of California does allow a defendant, when charged with a misdemeanor, to be sentenced when he appears by counsel. Under the federal regulations, however, the defendant must be present in court at the time of sentencing unless he executes a written waiver.

6 NICS App. 4, HENDRIX v. YUROK TRIBE (February 2000) p. 16

Yurok Rule of Court 36 provides that the judge may delay the sentencing for seven days to hear additional evidence or other relevant matters.

At the close of his case, Appellant’s counsel requested that the court refer the matter to the Culture Committee.⁴⁴ The court denied the request and, after a brief recess, imposed sentence on Appellant, in his absence and without a finding or declaration of guilt.⁴⁵ This, in light of the fact that the trial court erred in allowing the trial to proceed in defendant’s absence, we also find to be reversible error.

VII. ORDER

Therefore, based on the foregoing, it is hereby ORDERED that the judgment and sentence of the trial court is vacated and reversed; and

It is further ORDERED that this matter be remanded to the trial court for further proceedings consistent with this opinion.

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The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

Amendment to Yurok Rules of Appellate Procedure, approved Oct. 22, 1999.

Transcript, Court Minutes, 8/21/98, at p. 5.

Id.

Id. at p. 6.

Id. at p. 7.

Trial transcript, 9/18/98, at p. 1.

Id. at p. 3.

Id.

Id. at p. 24.

Id. at p. 4.

Id. at pp. 7, 20.

Id. at pp. 14, 15.

Id. at p. 24.

Id. at p.17.

Side 2, trial transcript, 9/18/98, at p.7.

Id. at p. 10.

Trial transcript, 9/19/98, at pp. 3, 4.

Grin v. Shine, 187 U.S. 181 (1902); Giordenello v. U.S., 357 U.S. 480 (1958).

Aguilar v. Texas, 378 U.S. 108 (1964); Barnes v. Texas, 380 U.S. (1965).

Giordenello, 357 U.S. 480 (1958).

Id.

Hoopa Tribal Ed. Dept. v. Nixon, 4 NICS App. 171, 173 (Hoopa 1997); Davis v. United States, 114 S. Ct. 2350 (1994).

Cooper v. Superior Ct., 359 P. 2d 274, 281 (Cal.1961).

Hoopa Valley Tribal Council v. Risling, 4 NICS App. 66 (Hoopa 1996); Pratt v. Hoopa Valley Tribal Police, 4 NICS App. 193, 196 (Hoopa 1997), citing Risling.

Calhoun v. Superior Court, 331 P.2d 648 (Cal. 1958).

Keating v. Superior Court, 289 P.2d 209 (Cal. 1955).

See supra, p. 3.

See supra, p. 4.

Trial transcript, 9/18/98, at p.3.

People v. Fong Chung, 91 P. 105 (Cal. App. 1907).

People v. Leyshon, 41 P. 480 (Cal. 1895).

Fong Chung, 91 P. 105.

Appellant’s Opening Brief at 4.

Moore v. Hoopa Valley Tribe, 5 NICS App. ___ (Hoopa 1998) (citing In the Matter of Robertson, 4 NICS App. 111 (Hoopa 1996).

5 Wigmore, Evidence, § 1766.

Anderson v. United States, 417 U.S. 211 (1974).

Ohio v. Roberts, 448 U.S. 45 (1980).

Federal Rule of Evidence 804 carves out exceptions to the general rule that hearsay evidence is not admissible. These exceptions apply to certain enumerated situations in which the declarant is unavailable to testify as a witness.

Federal Rule of Evidence 803 provides a number of exceptions to the general rule that hearsay is not admissible. Pursuant to Rules 803(5) and (6), the following would be admissible:

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make memorandum, report, record, or date compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. . . .

[Emphases added].

Id.

Id.

Appellant’s Brief at page 8 requests: “ . . . 3) reimbursement for all of Appellant’s legal fees and reasonable spokesperson fees; and 4) any other remedy that the court would determine to be appropriate.”

Under the principle of sovereign immunity, a tribe is generally immune from suit. A defendant’s remedy in criminal proceedings is generally limited to the acquittal of charges if he is found not guilty. It would be a rare instance in which damages could be recovered and a separate cause of action may be necessary in seeking such a remedy.

Trial transcript, 9/18/98, at pp. 8-9.

Trial transcript, 9/18/98, at p. 10.