3 NICS App. 359, Squaxin Island Tribe v. Blueback (October 1994)

IN THE SQUAXIN ISLAND TRIBAL COURT OF APPEALS

SQUAXIN ISLAND INDIAN RESERVATION

SHELTON, WASHINGTON

Squaxin Island Indian Tribe v. Blueback

Case No. SQI-Cr-93-12-102 (October 20, 1994)

SUMMARY

Appeal of Trial Court Order Sentencing Order issued upon Appellant's conviction for Rape in the Third Degree. Defendant appealed on grounds that the testimony of several of his witnesses was not heard by the trial court prior to his sentencing.

Court of Appeals affirmed Trial Court Order, ruling that neither the identity of the witnesses nor the nature of their testimony was unknown to Appellant or his attorney prior to trial. As such, Appellant's contention that his attorney failed to subpoena such witnesses does not allege a mistake in law or a mistake in procedure by the Trial court, and is not an appealable issue under Tribal Court Rules.

FULL TEXT

Before:            Chief Justice Elbridge Coochise, Associate Justice Elizabeth Fry, and Associate Justice David Harding.

Appearances:  Prosecutor, Tom Sheldon, for Respondent, Squaxin Island Indian Tribe; and pro se Appellant, Chauncey Blueback.

NATURE OF THE ACTION

Defendant was charged with Rape in the Third Degree pursuant to Section 2.17.060 of the Squaxin Island Law and Order Code. After a trial, the Trial Court found Defendant guilty and, subsequently, issued a sentencing order. Defendant appealed from the order.

FRY, Associate Justice:

This matter was timely filed for appeal by the Defendant on his conviction on the charge of Rape in the Third Degree, 2.17.060.

3 NICS App. 359, Squaxin Island Tribe v. Blueback (October 1994) p. 360

The Court, having heard oral arguments from both parties, and noting that no briefs have been filed in this matter, hereby finds as follows:

1 . JURISDICTION OF TRIBAL COURT

The Squaxin Island Tribal Court has subject matter jurisdiction over the criminal charge of Rape in the Third degree pursuant to Section 2.17.060 of the Squaxin Island Law and Order Code.

Personal jurisdiction exists because the Appellant lives within the boundaries of the Squaxin Island Reservation, and is a Native American.

Territorial jurisdiction exists, because the alleged crime occurred within the boundaries of the Squaxin Island Reservation.

The Squaxin Island Tribal Appeals Court has jurisdiction over this appeal pursuant to the Squaxin Island Law and Order Code, Section VII.B, which provides that a criminal defendant can appeal a judgment of guilt by the Squaxin Island Tribal Court as a matter of right.

2. FACTS

The Appellant's notice of appeal stated that the Appellant "had a person who would testify for me. That who has (sic) never been herd (sic) in court." Although the notice seems to indicate a single person, at oral arguments, the Appellant stated that he had four witnesses that he wanted to have testify at trial, one of whom he thought of during the appeals hearing. One of the witnesses did appear at the trial but was told to leave the room because she was being disruptive. However, the Appellant informed the Appellate Court that neither he nor his attorney, Tom Myers, had planned to call her at trial anyway.

The Appellant felt that he needed these witnesses to receive a fair trial. His attorney had spoken by telephone to two of the witnesses and had apparently not subpoenaed them, although the Appellant now says his attorney was told to subpoena them and failed to do so. He also stated he didn't talk to his attorney very much.

Eventually the Appellant argued that he had ineffective assistance of counsel, though no prior notice of this argument was made to anyone, and his attorney had previously withdrawn and was not present at the hearing.

The Tribe argued that Rule 7(b) of the Squaxin Island Court Rule states that the Appeals Court can overturn a conviction if the Trial Court made a mistake in interpreting the law or a mistake in procedure, which affected the outcome of the case. Therefore, the Tribe argued, the matter before the court is not Appealable because it does not fall within either of these two areas.

3 NICS App. 359, Squaxin Island Tribe v. Blueback (October 1994) p. 361

The Tribe further argued that the four witnesses did not appear on any witness lists, and that the Appellant did not formally file any witness lists with the Appellee, even after Appellee had formally requested discovery in December 1993. The trial was held on March 22, 1994. Appellee also noted that the attorney for the Appellant had 30 days notice prior to the trial in order to subpoena any witnesses.

The Tribe noted that the proper legal maneuver for the Appellant would have been to move for a new trial, not an appeal. The Tribe also argued that the Appellant never mentioned any problem with witnesses at his sentencing hearing. The Tribe alleged that the Appellant merely wanted a "get out of jail free card."

Neither party raised as an issue the lack of complete transcript due to inaudibility of the third trial tape. Each party felt it was a minor error.

The Court, having reviewed the presentation at oral argument, now discusses this matter as follows:

3. DISCUSSION

The only appealable issues before the Court are issues that pertain to a mistake in interpreting the law or a mistake in procedure.

Section VII.    Rules of Appellate Procedure

Subsection B.    Right to Appeal

Any person who claims, in good faith, that the Squaxin Island Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of a case shall have the right to appeal from the final judgment....    

It is clear that Appellant's arguments do not fall within the parameter of issues intended by the legislative body to be appealable. It is also clear that Appellant's arguments do fall within the requirements for moving for a new trial, but that is not before the Court.

The Court does take into consideration that the Appellant is pro se, and therefore some leeway should be given to him regarding his understanding of the law and procedure.

Nonetheless, it seems appropriate to this Court to affirm the Trial Court in this matter. It appears to the Court that the Appellant/Defendant discovered in hindsight that he could have called numerous other witnesses to testify on his behalf at trial. Yet there is no basis to conclude that discovery of any of the witnesses was new, rather that all of the witnesses had been interviewed either by the Appellant or his attorney prior to trial. One of the witnesses' testimony was not relevant to the incident, but to the character of the victim to whom she first reported the incident. The fact that appellant's attorney decided not to subpoena any witnesses is not

3 NICS App. 359, Squaxin Island Tribe v. Blueback (October 1994) p. 362

sufficient basis to overturn this case, especially in light of the fact that either the attorney or his client was aware of their testimonies.

4. DECISION

BASED UPON the foregoing discussion, the Appellate Court hereby affirms the decision of the Trial Court, and orders that the Defendant begin serving his sentence, with the date to commence one week after the filing date stamped on this Order by the Clerk of the Court. The rest of the dates on the Judgment and Sentence shall accordingly correspond to said signing date.

COOCHISE, Chief Justice, and HARDING, Associate Justice, concur.