11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013)
IN THE chehalis TRIBAL COURT OF APPEALS
chehalis INDIAN RESERVATION
OAKVILLE, WASHINGTON
Confederated Tribes Of The Chehalis Reservation, Plaintiff/Respondent
v.
Jason Lyons, Defendant/Appellant.
No. CHE-CR 12/11-326; 12/11-328 thru 335 (September 5, 2013)
SYLLABUS*
Jury found defendant guilty of several criminal charges, and trial judge imposed sentences authorized under the enhanced sentencing provisions of the federal Tribal Law and Order Act. Court of Appeals holds (1) trial court committed reversible error by admitting documentary evidence without providing defendant the opportunity to confront the author of the document, and (2) tribe’s criminal laws and rules of evidence were not publicly available prior to charging the defendant as required for tribe to exercise enhanced sentencing authority permitted by federal Tribal Law and Order Act. Judgment and sentences on all charges reversed and case remanded for further proceedings.
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Before:
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Robert J. Miller, Chief Judge; Gregory M. Silverman, Judge; Randy A. Doucet, Judge.
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Appearances:
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Emily Howlett, Attorney for Appellant; Tim Rybka, Chehalis Prosecutor, for Appellee.
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OPINION
I. BACKGROUND
On February 25, 2013, a jury convicted the defendant on two counts of indecent liberties, two counts of incest, two counts of assault, two counts of battery, and one count of rape. We address only two issues raised in the appeal: whether Mr. Lyons’ right to confront witnesses at trial was violated by the admission of a Sexual Assault Report without the opportunity for him to cross-examine the nurse who drafted the Report; and whether the Tribe complied with the federal Tribal Law and Order Act of 2010 (TLOA) by making its criminal laws and rules of evidence available to the public prior to charging Mr. Lyons, and by maintaining a record of the criminal proceedings, both of which are required under TLOA for Mr. Lyons to be sentenced to more than one year in jail in this criminal proceeding.
11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013) p. 65
According to the testimony at trial of the alleged victim (hereinafter “A.V.”), during the early morning hours of December 8, 2011, A.V. was at the Chehalis Tribe’s casino gambling and drinking alcohol. When the casino was closing, A.V. and a male companion left to find more alcohol, but the stores were closed. A.V. then made arrangements through text messages to have Mr. Lyons, her cousin, meet her at a bus stop sign on the Chehalis reservation. Mr. Lyons and A.V. then walked to A.V.’s house. As they walked, Mr. Lyons put his arm around A.V. and attempted to touch her breasts, but she pulled away. When they arrived at her house, A.V. could not find her keys, so she called an aunt who had her keys and car to come and unlock her door. At approximately 3:30 a.m., while waiting for her aunt, A.V. and Mr. Lyons went to a shed behind the house. A.V. testified that while she was trying to open the shed, Mr. Lyons groped her, ripped her pants down, and had sexual intercourse with her. Mr. Lyons then sat down on a chair and A.V. sat down on him for sexual intercourse. She started to struggle and Mr. Lyons became angry. When the aunt arrived, they put their clothes back on.
The jury returned a not guilty verdict on this charge of rape and the trial court dismissed an assault charge and battery charge related to this portion of the incident.
According to A.V.’s testimony, after her aunt arrived, A.V. drove her aunt home with Mr. Lyons as a passenger in the car. A.V. then drove Mr. Lyons to a friend’s house, and while sitting in the car, he grabbed A.V. around the neck, choked her and tried to kiss her. A.V. then drove back to her house with Mr. Lyons. She ran to her house, but Mr. Lyons followed her and forced his way inside the house. A.V. locked herself in the bathroom, but Mr. Lyons forced his way in. She then went to her bed, where Mr. Lyons then climbed on top of her. He had sexual intercourse with her. She rolled on her side, crossed her legs and said, “no” and “we are cousins.” He tried to place her hand on his penis. She further testified that she tried to call her aunt and when that failed she dialed “911”. She did not say anything on the 911 call, because at that point Mr. Lyons got up and dressed. She then went to the bathroom and locked the door. The police called back, but she did not answer. When the police called again, they told here they were at the door. She let them in, but by that time Mr. Lyons was gone.
At approximately 1:30 p.m. the same day, A.V. went to a hospital for a sexual assault exam. The exam was conducted by a nurse who recorded her examination and evidence collection on a pre-printed Sexual Assault Report Form. The nurse who prepared the Report was out of state during the trial and did not testify. The Report was admitted into evidence at Mr. Lyon’s trial with hearsay statements of the victim contained in the Report redacted by the trial judge.
On February 28, 2013, the trial having concluded, the jury rendered the guilty verdicts on the nine counts as noted above.
On March 11, 2013, two days prior to sentencing Mr. Lyons, the trial court issued a “Sentencing Order RE: ICRA Compliance,” in which the trial court stated that “the Tribe makes its codes and regulations available for public view at the Chehalis Tribal Court where defendant
11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013) p. 66
and counsel have full access to them, as well as being provided to the public defender for their office use.” On March 13, 2013, Mr. Lyons received a sentence of one year in jail and a $5,000 fine for each count upon which he was convicted for a total of nine years of jail and $45,000 in fines, with six years jail time to be served and $30,000 in fines due, and three years of jail time and $15,000 in fines suspended.
II. ANALYSIS
A. CONFRONTATION CLAUSE
We begin with one of the two primary dispositive issues in this appeal, which is whether the admission of a “Sexual Assault Report Form” violated Mr. Lyons’ right to confront witnesses against him. During the jury trial, the court admitted into evidence a “Sexual Assault Report Form” (“Report”) introduced by the prosecution. A hospital nurse prepared the Report approximately ten hours after the alleged assault. At the time of the trial, the nurse who prepared the Report was out of state and did not testify. The Report was admitted into evidence as a record of “regularly conducted activity” with all statements deemed to be hearsay redacted by the judge. The redacted statements mainly consisted of the portion of the Report titled “History of Assault.” That portion of the Report recounted the events of the incident as told to the nurse by A.V.
The Chehalis Tribe, through its constitution and laws, expressly provides for the right to confront witnesses. The Chehalis Constitution provides that, “[n]o member shall be denied any of the rights or guarantees enjoyed by non-Indian citizens under the Constitution and Statutes of the United States.” Chehalis Constitution and Bylaws, Article VIII – Bill of Rights. Chehalis Tribal members are guaranteed the same rights as citizens of the United States, which include the protections of the Sixth Amendment to the U.S. Constitution, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” “The defendant’s right, in all cases, to confront witnesses against him” is also among the rights expressly guaranteed by the Chehalis Tribe’s Rules of Evidence. CTC 2.1.12.010(a). The Tribe’s rules of criminal procedure also provide an accused person “the right to confront those who would be witnesses against him or her.” CTC 2.3.3.020(b).
We determine whether Mr. Lyons’s had a right to confront the nurse who drafted the Report by analyzing whether the statements contained within the Report were testimonial in nature. Testimonial out-of-court statements are barred from trial under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36 (2004). Testimonial statements are those made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 52. Lab reports have been held to be testimonial in nature when the purpose of making the report was to provide evidence for trial. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 306 (2009).
Mr. Lyons argues that he had a right to cross-examine the nurse who prepared the Sexual Assault Report Form. The Report was prepared on a standard form designed to be filled in by a
11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013) p. 67
“Sexual Assault Nurse Examiner.” The first indication that the Report was testimonial in nature is the title, “Sexual Assault Report Form,” which indicates that the purpose of the form was to collect information concerning the crime of sexual assault. The form provides a space to identify law enforcement jurisdiction and name, which was filled in as “Chehalis Tribal Police.” Under the heading of Discharge Information, there is a line for Police Jurisdiction contacted, which was filled in as “Chehalis Tribal Police.” The Report contains a heading titled “Transfer of Evidence/ Release of Information” where a patient authorizes the hospital to release copies of information pertaining to “this visit including all information and specimens obtained from my examination to Agency Chehalis Tribal Police.” Under the heading “Consent to Photography,” the victim granted permission for the hospital to “allow photographs/slides to be made of me for the following purposes only ‘Evidence collection and prosecution.’” The Report then contains sections for the medical evaluation, assault information and history and the results of the alleged victim’s examination. Above the signature of the Sexual Assault Nurse Examiner is the line “Examination, Evidence Collection, and Documentation completed by,” which is followed by the signature of the nurse.
It is clear from the pre-printed language contained within the Report form that the form is designed for the purposes of gathering evidence for law enforcement and later use at trial. Therefore, the Report is testimonial in nature. Although the trial court attempted to resolve any confrontation clause issues by redacting the statements considered hearsay, the inherent testimonial nature of the Report could not be remedied through redaction.
Next, we must determine whether the confrontation clause violation was harmless error. The defense suggests the Court apply the rule that “[t]he judgment must be reversed unless the prosecution can show beyond a reasonable doubt that the result would have been the same notwithstanding the error.” People v. Lopez, 55 Cal.4th 569, 589 (2012), cert. denied, 133 S.Ct. 1501 (2013), citing Chapman v. California, 386 U.S. 18, 24 (1967). However, the Tribe did not address in its response brief how this Court should remedy a confrontation clause violation, nor did the prosecution attempt to show that the result of the jury verdict would have been the same notwithstanding the error.
Nonetheless, we review the confrontation clause violation to determine whether the jury verdict would have been the same had it not been for the error. We conclude that the introduction of the redacted report to the jury influenced the jury verdict to the prejudice of Mr. Lyons. We reach this conclusion based on the significance of the Report as a document containing unchallenged evidence of a sexual assault. The jury was likely to give great weight to the Report because it was prepared by a medical professional. The statements in the Report were unchallenged, and therefore it is highly likely that the jury accepted the statements in the Report as completely accurate without the opportunity of the defense to cross-examine the witness. The Report includes sections labeled “Assault Information,” “Site of Assault (with boxes labeled “Genital” and “Anal” checked),” “Post Assault Conduct,” and “History of Assault,” all of which tend to create a presumption that an assault had actually occurred, rather than merely been alleged. Similarly, in a section labeled “Assessment,” the terms “Vaginal” and “Anal” were circled on a line labeled “Sexual Assault (circle all that apply).” This section suggests that the
11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013) p. 68
nurse examiner concluded that a vaginal and anal assault had actually occurred, although upon closer examination it appears to simply represent a checklist of the concerns that were assessed by the nurse, with no conclusions intended. Further, when the trial court redacted the entire victim’s statement to the nurse, included were redacted statements that may have cast doubt in the minds of the jury as to whether Mr. Lyons committed any of the crimes charged. As it was introduced to the jury, the Report only provides the jury with evidence that would create in their minds the impression that Mr. Lyons committed the sexual assault crimes as alleged by the prosecution, including rape.
Therefore, we hold that even though the Report was redacted, the remaining parts of the Report admitted into evidence contained information that was testimonial in nature. Because the Report covers the span of the incident for which Mr. Lyons was charged with the multiple crimes associated with the sexual assault incident, the Court concludes that the Report, admitted without the opportunity for Mr. Lyons to cross-exam the examining nurse, was likely to influence the jury verdict for all charges. Therefore, the jury verdict on all counts must be overturned.
B. TRIBAL LAW AND ORDER ACT COMPLIANCE AND SENTENCING
The second dispositive issue concerns whether appellant’s sentence conformed to the Tribal Law and Order Act of 2010, 25 U.S.C. 1302, (“TLOA”). Mr. Lyons challenged whether the total consecutive terms of his sentences were in violation of the sentencing requirements of the TLOA, because the Chehalis Tribal criminal laws and rules of evidence used at trial were not available to the public prior to charging, and because the record of proceedings were not properly maintained.
1. Public availability of the Chehalis Tribe’s criminal laws
Mr. Lyons was found guilty by a jury on two counts of Indecent Liberties, two counts of Incest, two counts of Assault, two counts of Battery, and one count of Rape. Each of the nine offenses carries a maximum jail term of 365 days under Chehalis Tribal law. He was then sentenced to nine years in jail with three years suspended for a total of six years to be served in jail. The TLOA, 25 U.S.C. 1302 (c)(4) requires:
In a criminal proceeding in which an Indian tribe … imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government. (Emphasis added.)
11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013) p. 69
The Chehalis Tribe’s Court Procedures were updated on March 8, 2011, and specifically address the availability of copies of the laws as follows:
Copies of the laws of the Chehalis Tribe shall be available for use of spokespersons and individuals representing themselves before the court of justice. The business committee may establish a fee to cover the cost of copying the laws.
CTC 2.1.9.070.
It is clear that CTC 2.1.9.070 limits the availability of the criminal laws of the Tribe, which are therefore not publicly available as intended by the TLOA. By the terms of its own code, the Tribe’s criminal laws are only available to spokespersons and individuals representing themselves. TLOA does not require that a tribe’s criminal laws be available only to the individual being prosecuted, but requires that criminal laws be publicly available to anyone, with no exceptions or limitations.
The prosecutor represented to this Court during oral argument that anyone can obtain a copy of the Tribe’s criminal laws by asking the Clerk of Court. TLOA places the responsibility on the Tribe to make its criminal laws publicly available. Court employees do not have the authority to contravene the public policy of the Tribe when the Tribe has clearly set forth in law that the criminal laws are available to only spokespersons and individuals representing themselves. Nonetheless, and notwithstanding the Tribe’s own law to contrary, we look to the record of this case for evidence that the Tribe has implemented policies making its criminal laws publicly available.
There is no evidence in the record that the Tribe has implemented policies and procedures to comply with TLOA, 25 U.S.C. 1302 (c)(4), to make its criminal laws publicly available. The record shows that during a December 5, 2012 motion hearing, the relevant portion of the prosecutor’s response regarding the Tribe’s criminal laws being publicly available was as follows:
Since the beginning of the Tribe as recorded time, it was – all laws are common, known to all individuals by word of mouth. Later when they became documented, they’re available to Tribal members, though not exposed to the outside world. Within the Tribal reservation, all they have to do is go to Public Safety or to the Court Clerk of the Tribe and any kind of law is available. Also, if you’re a member of the Tribe, you can go on the website and you have a member ID, as far as I know you can also get the laws from there.”
12/5/2012 RP 37-38.
11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013) p. 70
In ruling on this issue at the motion hearing, the trial court provided no specific citation to a tribal law or policy making the Tribe’s criminal laws publicly available. 12/5/2012 RP 62-64. The trial court added in its oral ruling regarding accessing the tribal laws, “I think even a non-Indian can.” This statement shows a lack of certainty on the part of the trial judge that the Chehalis Tribe’s criminal laws were in fact publicly available as intended by TLOA, and is certainly not evidence that they were.
On March 11, 2013, the trial court issued a Sentencing Order RE: ICRA Compliance. In its order, the trial court made the following finding in support of the Tribe’s compliance with 25 U.S.C. §1302(c)(4): “ . . . the Tribe makes its codes and regulations available for public view at the Chehalis Tribal Court where defendant and counsel have full access to them, as well as being provided to the public defender for their office use.” The finding by the trial court is consistent with CTC 2.1.9.070, but does not go as far as finding that the Chehalis criminal laws are available to the public as intended by TLOA. A trial court must make specific findings of fact that the Tribe has complied with all enhanced sentencing requirements before a defendant is charged.
Despite the prosecutor’s representations to the Court, and despite the trial judge’s “belief,” there is no evidence in the record establishing whether and to what degree the Tribe’s criminal laws are in fact available to the public. Therefore, this Court holds that the criminal laws and rules of evidence of the Chehalis Tribe were not publicly available prior to charging Mr. Lyons as required by 25 U.S.C. §1302(c)(4). The Chehalis Tribe was not in compliance with 25 U.S.C. §1302(c)(4), and therefore cannot impose a total term exceeding one year of imprisonment in these proceedings.
2. Public availability of the rules of evidence
Mr. Lyons also raised the issue of the Tribe’s rules of evidence not being publicly available as required by the Tribal Law and Order Act of 2010, 25 U.S.C. 1302 (c)(4) for enhanced sentencing. The Tribe has very limited rules of evidence, which are included in the Tribe’s Court Procedures ordinance. However, the Tribe’s rules of evidence are not publicly available, because, per our discussion above, the rules of evidence are incorporated into the laws of the Tribe that are not publicly available. It is evident that the Tribe’s limited rules of evidence are not sufficient to meet the requirements necessary to analyze and manage evidence in a jury trial involving sexual assault related crimes. Mr. Lyons points out that the court found it necessary to analyze evidentiary issues using the Federal Rules of Evidence. Although the Federal Rules of Evidence are publicly available, Mr. Lyons argues there was no prior notice in the Tribe’s laws that the trial court could, or would, be applying the Federal Rules of Evidence. Therefore, he argues the use of the Federal Rules of Evidence by the trial court did not comply with the TLOA for enhanced sentencing.
11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013) p. 71
The Congressional intent in enacting the TLOA of 2010 was to encourage the continued development and maturation of tribal courts. Tribes that comply with the requirements of the TLOA are permitted to exercise greater authority in sentencing defendants in criminal cases, provided that those tribes actively accept responsibility for ensuring that their laws are developed and applied in a manner found in justice systems that have developed rules of evidence and have their criminal laws and rules of evidence available to the public. Just as it would not be tolerated in state and federal courts to have minimal procedural rules and rules of evidence that could be supplemented at the discretion of a trial judge during trial, the TLOA of 2010 suggests that Congress also finds such practices unacceptable in tribal courts.
We therefore hold that the incompleteness of the tribe's rules of evidence and the inevitable need to supplement rules of evidence in a criminal proceeding with rules of evidence taken from foreign jurisdictions on an ad hoc, case-by-case basis prevents the Tribe from satisfying the public availability requirement imposed by the TLOA of 2010 and therefore limits the authority of the trial court to impose a sentence in these proceedings of greater than one year.
3. Record of proceedings
The Tribal Law and Order Act of 2010, 25 U.S.C. 1302 (c)(5) requires that when an Indian tribe “[i]n a criminal proceeding in which an Indian tribe … imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.”
The Chehalis Tribal Court maintains an electronic recording system for its court proceedings. Here, the criminal proceedings involving Mr. Lyons, including his jury trial, was recorded and then later transcribed. There were gaps in the recording, which may have been due to human error or technical failure. Mr. Lyons does not argue on appeal that the unrecorded testimony was necessary to his defense on appeal, or that he was deprived of his ability to raise an error on appeal.
Therefore, this Court holds that the missing portions of the recording of the jury trial were not prejudicial to appellant’s appeal. Even though portions of the electronic recording may have failed during the trial, nonetheless the Chehalis Tribal Court was in compliance with 25 U.S.C. §1302 (c)(5) during the criminal proceedings involving Mr. Lyons.
C. OTHER ISSUES
This Court is not persuaded by the arguments of Appellant concerning the other issues and assignments of error raised in his notice of appeal and brief. Having determined that the dispositive issues in this case require reversal of the Judgment and Sentence, the Court will not address those issues here.
11 NICS App. 64, CHEHALIS TRIBE v. LYONS (September 2013) p. 72
III. CONCLUSION AND ORDER
For the reasons set forth above, we hold that the trial court committed reversible error by admitting the Sexual Assault Report Form without providing the defendant the opportunity to confront the author of the Report. We further hold that the criminal laws and rules of evidence of the Chehalis Tribe were not publicly available prior to the charging of the defendant in this case as required for the Tribe to exercise the enhanced sentencing authority permitted by the federal Tribal Law and Order Act of 2010.
For the reasons set forth above, it is hereby ORDERED that the judgment and sentences of the trial court on all counts is hereby REVERSED and this case is REMANDED to the trial court for further proceedings consistent with this opinion.
