1 NICS App. 10, Lummi Tribe v. Edwards (June 1988)
IN THE LUMMI TRIBAL COURT OF APPEALS
LUMMI INDIAN RESERVATION
BELLINGHAM, WASHINGTON
Lummi Indian Tribe v. Carolyn Edwards
No. 86-T-l010 (June 10, 1988)
SUMMARY
Appellant appealed a conviction of driving while intoxicated on the grounds that there was insufficient evidence for a conviction, a violation of her right to a speedy trial, and that the trial judge had promised dismissal of the case upon appellant's completion of an alcohol treatment program.
After finding that the right to appeal is automatic upon perfecting the requirements of an appeal, the Court of Appeals held that the conviction was not supported by the evidence.
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Carolyn E. Edwards, appellant, appeared with her spokesperson, Joe Bone Club; Rebel Harjo, Tribal Prosecutor, appeared for the respondent, Lummi Indian Tribe. |
NATURE OF ACTION
The appellant was charged with driving while under the influence of intoxicating liquor or narcotic drugs.
TRIAL COURT
Judge Charles D. Finkbonner, on April 12, 1988, entered a judgment finding the appellant guilty at the close of a judge trial. The appellant was ordered to pay a $250.00 dollar fine and serve thirty (30) days in jail with the (30) days jail suspended on the condition that the appellant: (1) not commit any further D.W.I. violations for two years; (2) comply with the Lummi C.A.R.E. alcohol treatment program, and (3) provide proof of attendance at weekly A.A. meetings for six months.
1 NICS App. 10, Lummi Tribe v. Edwards (June 1988) p. 11
COURT OF APPEALS
Granting a new trial before the court of appeals, the court of appeals retried the case and affirmed the judgment finding the appellant guilty. After hearing arguments from the parties, the court of appeals modified the sentencing order, ordering the appellant to pay a $250.00 fine and serve 20 days in jail, with $100.00 dollars of the fine and the 20 day jail term suspended on the condition that the appellant commit no further D.W.I. violations for the next six months.
MEMORANDUM OPINION AND JUDGMENT AND SENTENCING ORDER
The Appellant, in her Notice of Appeal of April 21, 1988 based her appeal on the following grounds: "That the Court failed in finding alcohol on the breath. There was only the strong smell of intoxicants. The Court also failed in using the second opinion on failure to pass a breathalyzer. Court documents plainly show one was not administered. In its third and final opinion the Court again failed, it could not remember what it had decided to use in its decision for conviction. It is also in the opinion of this defense advocate that numerous civil rights violations were made, which will be presented in open court."
The issues to be decided by this Court are as follows:
(1) Whether the granting of an appeal is discretionary with the appellate court or automatic upon the appellants perfecting the appeal. And if the right to an appeal is discretionary with the appellate court, whether the facts and issues before the court warrant the granting of an appeal in this case.
(2) Whether there is evidence to support the allegation that the trial judge promised the defendant a dismissal of the case upon completion of an alcohol treatment program prior to sentencing.
(3) Whether there was a violation of the speedy trial rule where there was a delay of approximately eighteen (18) months between the defendant being arrested and arraigned and tried on the charges.
(4) Whether appellant was denied effective assistance of counsel when the motion for a continuance based on inadequate time to prepare made by her spokesperson was denied at the time of trial.
(5) Whether the judgment of guilty by the trial court was supported by its findings of fact.
(6) Whether the conditions for a suspended thirty (30) day jail term in the sentencing order was reasonable.
Appellant was stopped by Officer Edward Conway while she was driving a motor vehicle on Lummi Shore Road on September 20, 1986. Officer Conway
1 NICS App. 10, Lummi Tribe v. Edwards (June 1988) p. 12
observed appellant driving erratically and he suspected that she might be drunk. She pulled over to the side of the road, and Officer Conway pulled his police car behind her motor vehicle. He asked the appellant to submit to field sobriety tests and advised her she had the right to refuse to submit to the tests. She refused to submit to the field sobriety tests.
Officer Conway placed the appellant under arrest for D.W.I. and transported her to the Lummi Police Station where he read the appellant her rights. Appellant said she understood her rights and did not wish to waive them. Officer Conway read the Implied Consent Warning concerning the consequences of refusing to submit to a tribal breathalyzer to the appellant. She refused to take the breathalyzer test. The appellant was then transported to the Whatcom County jail and booked for D.W.I.
Appellant was arraigned on September 29, 1986 and pled not guilty. She was represented by counsel. Trial was set for October 9, 1986 and she pled not guilty. Prior to trial appellant requested and was granted a continuance. The trial was reset for December 8, 1986. Appellant failed to appear. A bench warrant was issued for her arrest and she was arrested thereon on February 19, 1987.
On February 23, 1987, a trial was set for the D.W.I. for March 23, 1987. On that date the appellant appeared and requested a continuance to allow her to complete alcohol treatment at the Puyallup Tribal Treatment Center.
On September 8, 1987, a case review was held at the time the appellant was serving a 120 day State jail sentence in Whatcom County jail.
Trial was re-set for November 10, 1987. Appellant failed to appear on that date, a bench warrant was issued and the appellant was arrested thereon on March 25, 1988. Appellant was released upon posting $250.00 bail.
Trial was re-set for April 5, 1988. The appellant was found guilty after the bench trial. A Notice of Appeal was filed on April 21, 1988 and $250.00 appeal bond was posted.
On June 3, 1988, after hearing oral argument, the Court of Appeals held that appellant has the right to appeal the judgment and sentencing order.
The appeal was heard on June 10, 1988. At that time the Court of Appeals affirmed the judgment of guilty and modified the sentencing order.
I.
RIGHT TO APPEAL JUDGMENT AND SENTENCING ORDER
The right to appeal the final judgments and sentences of the trial court is determined by provisions of the Lummi Law & Order Code: Section 1.8.01 of Title 1 - Lummi Reservation Court, General Rules of the Code reads:
1 NICS App. 10, Lummi Tribe v. Edwards (June 1988) p. 13
A panel of three judges shall sit as Court of Appeals at such times and places as is proper and necessary for the dispatch of any appeals, to hear any appeals from final judgments, sentences and other final orders of the Reservation court.
Section 1.8.02 of Title 1 - Lummi Reservation Court, General Rules of the Code reads:
There may be established by Rule of Court the limitations if any, to be placed upon the right of appeal, as to the type of cases which may be appealed, as to the grounds of appeals, and as to manner which appeals may be granted, according to the needs of the jurisdiction.
Section 1.8.03 of Title 1 - Lummi Reservation Court, General Rules of the Code reads:
Within ten days from the entry of judgment, the aggrieved party may file with the trial court written notice of appeal and upon giving proper assurance to the court, through the posting of or any other way that will satisfy the judgment if affirmed, shall have the right to appeal, provided the case to be appealed meets the requirements herein established or by Rules of Court.
Section 1.8.05 of Title 1 - Lummi Reservation Court, General Rules of the Code reads:
Within 45 days from the date of written notice of appeal, the appellate court shall convene unless delay is warranted by good cause, to hear the case on appeal at such place as any be designated. A new trial shall be held and court procedures shall be the same as in other cases before the Reservation Court except that there shall be no right to trial by jury.
Section 4.8.01 of Title 4 - Rules of Court (Lummi Law & Order Code) reads:
The grounds for a new trial as set by the Lummi Tribal Court are as follows:
(a) Receipt by the jury of evidence not authorized by the court.
(b) Determination of a verdict by lot, through intimidation or without a fair expression of opinion.
(c) When the Court has refused to instruct the jury correctly as to the law.
(d) When for other cause the defendant has not
1 NICS App. 10, Lummi Tribe v. Edwards (June 1988) p. 14
received a fair and impartial trial.
(e) New evidence discovered and not available at the time of the original trial.
Section 4.8.02 of Title 4 - Rules of Court (Lummi Law & Order Code) reads:
Any persons aggrieved by the verdict of the jury or the judgment of the Court shall have the right to appeal such decision as provided in Title 1, Chapter 1.8 of this Code.
This Court holds there is an absolute right of a new trial before the court of appeals granted by Section 1.8.05 Appellate Trial of the Lummi Law & Order Code. Section 4.8.01 only applies to the trial court when considering motions for new trials made by the parties in the case. It does not apply to the Court of Appeals. Appeals limitations are authorized by Section 1.8.02 Limitations of the Lummi Law & Order Code. This Court knows of no rule adopted which limits the right of appeal and the facts in this case do not warrant the adoption of such a rule. Appellant has an absolute right to a new trial before the court of appeals once appellant has properly perfected her right to appeal.
II.
EVIDENCE TO SUPPORT ALLEGED PROMISE BY TRIAL JUDGE TO DISMISS CHARGES
At the new trial before the Court of Appeals, appellant made a motion to have the charges against her dismissed, alleging that the trial court promised to dismiss charges if she successfully completed an alcohol treatment program.
Having heard the testimony and examined the record, the Court of Appeals finds that there is insufficient evidence to support a finding that such a promise was made.
III.
VIOLATION OF THE RIGHT TO A SPEEDY TRIAL
Section 2.2.02 - Limitation on Filing of Complaints of the Lummi Law & Order Code reads:
No complaint shall be filed charging the commission of any offense defined by this Code unless such offense shall have been committed within a one-year period prior to the date of the complaint. If the complaint has been filed within the one-year period, there shall be no time limitation on further proceedings in the prosecution of the complaint, including apprehension, arrest, trial and sentencing, as provided in this code.
1 NICS App. 10, Lummi Tribe v. Edwards (June 1988) p. 15
Section 1302(6) and Section 1302(8) of the Indian Civil Rights Act, 25 U.S.C. § 1301-1302, read:
No Indian tribe in exercising powers of self-government shall:
(6) deny to any person in a criminal proceeding the right to a speedy and public trial.
(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.
In a pretrial motion before the Court of Appeals, appellant moved for dismissal of her case based on the lapse of approximately eighteen months between arrest and arraignment and trial.
The Court knows of no rule or law of the Lummi Indian Tribe which automatically requires the dismissal of charges because of the lapse of eighteen months between arrest and arraignment and trial on the charges. Further, such a lapse cannot justify dismissal of criminal charges without a finding of prejudice to the defendant in proceeding with the trial and a finding that the defendant was not at fault in causing the delay.
It is well settled that the Bill of Rights and the 14th Amendment do not apply to Indian tribes. See, e.g., Tom v. Sutton, 533 F.2d 1101 (9th Cir. 1974); Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974); Duro v. Reina, 821 F.2d 1358, (9th Cir. 1988), Talton v. Mayes, 163 U.S. 376,384, 16 S.Ct.986,41 L.Ed. 196 (1896).
The court of appeals does recognize that the Indian Civil Rights Act, supra, does provide for the rights comparable to the United States Bill of Rights and the 14th Amendment. Though there is similarity in language of both the ICRA and the Bill of Rights and the 14th Amendment, the meaning and application of the ICRA must necessarily be somewhat different than the established Anglo-American legal meaning and application of the Bill of Rights on federal and state governments. Janis v. Wilson, 385 F. Supp. 1143 (D.C.S.D. 1974), remanded on other grounds at 521 F.2d 724.
But even the most liberal interpretation of the Bill of Rights, 14th Amendment, and Indian Civil Rights Act, supra, does not require the court of appeals to dismiss the charges against the appellant, where the appellant herself caused the eighteen month delay and where the appellant failed to demonstrate to the court of appeals that she would be prejudiced by proceeding with the trial.
1 NICS App. 10, Lummi Tribe v. Edwards (June 1988) p. 16
IV.
EFFECTIVE ASSISTANCE OF COUNSEL AND RIGHT TO COUNSEL
In a pretrial motion before the Court of Appeals, appellant moved for dismissal of the case based on allegations that she was denied the right to counsel at the first trial. She alleged that her lay spokesperson was not given enough time to prepare her defense at the first trial. Her spokesperson moved for a continuance at the first trial, arguing he needed more time to prepare. The trial court denied his motion.
Section 1.7.01 of the Lummi Law & Order Code reads:
Any person appearing in Reservation Court shall have the right to a spokesman, at his own expense, to assist him in presenting his case, provided that such spokesman shall first have been admitted to the Reservation Court Bar. The court may appoint a spokesman to assist any person if, in the discretion of the court, it appears necessary to protect such persons rights. A spokesman need not be an attorney.
Section 4.4.01 of the Lummi Law & Order Code reads:
Each litigant in a civil case and every defendant in a criminal proceeding shall have the right to have counsel of his choice represent him at his own expense.
Section 4.4.02 of the Lummi Law & Order Code reads:
Each litigant in a civil case and every defendant in a criminal proceeding shall have the right to have counsel of his choice represent him at his own expense.
(a) Any person who is a member in good standing of any state of the United States or the District of Columbia, is of good moral character, and demonstrates to the court a thorough knowledge of this Code, the Rules of the Lummi Tribal Court and Federal Laws and regulations applicable to the Lummi Tribe and some knowledge of the culture and traditions of its members, is eligible to apply for admission to general practice in this court. Any person who is eighteen years of age or older, has not been convicted of a felony or misdemeanor in the past year, is of good moral character, and demonstrates to the court a thorough knowledge of the culture and traditions of the Lummi people, is eligible to apply for admission to general practice in this court as lay
1 NICS App. 10, Lummi Tribe v. Edwards (June 1988) p. 17
counsel or lay advocate.
Section 1302(6) of the Indian Civil Rights Act of 1968 reads in part:
No Indian tribe in exercising powers of self-government shall:
(6) deny to any person in a criminal proceeding the right ... at his own expense to have assistance of counsel for his defense.
As stated earlier, Bill of Rights and the 14th Amendment of the United States Constitution are not applicable to Indian Tribes. Thus, we are only concerned with the application of Section 1302 (6) of the Indian Civil Rights Act, supra, and application of Section 1.7.01, Section 4.4.01, and Section 4.4.02 of the Lummi Law & Order Code. We will assume for the purposes of this appeal that Section 1302 (6) of the Indian Civil Rights Act, supra, and Section 1.7.01, Section 4.4.01 and Section 4.4.02 of the Lummi Law & Order Code are similar in effect.
Under the facts of this case we do not find that appellant was denied her right to counsel or effective assistance of counsel.
From the time of appellant's arraignment to her trial there was a lapse of approximately eighteen months. She was advised at arraignment of her right to counsel throughout the proceedings but failed to exercise that right until a few days before trial.
The spokesperson for the appellant also failed to show actual prejudice to the appellant's defense by the denial of the continuance while the appellant's spokesperson argued hypothetically that he could have provided better representation given more time, he failed to demonstrate to this court how he was prejudiced by being forced to go to trial on short notice.
Finally, given the appellant's failure to appear for trial, it was reasonable for the trial court to weigh this factor in ruling on the appellant's motion, anticipating that another continuance of trial could likely mean another failure to appear by the appellant.
V.
WHETHER JUDGEMENT OF GUILTY BY THE TRIAL COURT WAS SUPPORTED BY ITS FINDINGS OF FACT
The trial court said there were three reasons for its finding the appellant guilty of the offense:
(1) There was alcohol on (her) breath (2) (She) didn't pass the Breathalyzer test and (3) … there was another thing that I can't remember that come out in the trial that stuck in my mind but is gone now. Trial Transcript p.32 11 16-28
1 NICS App. 10, Lummi Tribe v. Edwards (June 1988) p. 18
The first reason articulated by the trial court as grounds for finding the defendant guilty is not alone enough to support a finding of guilty. The second reason given is unsupported by the evidence at trial; it is undisputed that the defendant refused to take the field sobriety test and breathalyzer test. The third reason given by the trial court is unarticulated. In sum, the articulated reasons given by the trial court for its judgment do not support a finding of guilty.
The remedy, under the Lummi Reservation Court General Rules, available to the defendant from such an irregularity in sentencing, is a new trial. The irregularity in sentencing of the trial court in this instance, lends credence to the appellants argument that if the right to an appeal is discretionary with the appellate court, that the facts of this case warrant review.
VI.
JUDGMENT AND SENTENCING ORDER
Upon retrial of the above-entitled matter, this Court finds the appellant guilty of the charge of Driving While Under The Influence Of Intoxicating Liquor or Narcotic Drugs in violation of Section 6.6.01 of the Lummi Law & Order Code. The Court further finds that:
(1) The appellant has not had any charges brought against her under the Lummi Law & Order Code since September 29,1986.
(2) The appellant presently has a job in the C.A.R.E. program on the Reservation and works forty hours per week. She has had the job for four months.
(3) The appellant has maintained sobriety for about one year.
(4) The appellant has been regularly attending the Community Alcohol Center Women's Group.
Therefore, the Court modifies the original sentencing order and hereby orders:
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(1) |
The appellant is to serve twenty (20) days in jail, |
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(2) |
The appellant is to pay a $250.00 fine, |
(3) Both the 20 day jail term and $100.00 of the $250.00 fine is suspended on condition that the defendant commits no further D.W.I. violations for the next six months, and
(4) $150.00 of the $250.00 fine is to be paid into the registry of this Court within six months from the day this judgment and sentencing order is signed and entered.