1 NICS App. 50, Quileute Tribe v. LeClair (July 1989)
IN THE QUILEUTE TRIBAL COURT OF APPEALS
QUILEUTE INDIAN RESERVATION
LA PUSH, WASHINGTON
Quileute Indian Tribe v. Valerie LeClair
Nos. 89-Cr-199 and 89-Cr-200 (July 14, 1989)
SUMMARY
The defendant-appellant appealed the trial court's denial of her motion for a new trial, following her conviction of driving while under the influence. The defendant claimed she was not properly advised of the charges against her, nor of her right to counsel. The Tribe, respondent, moved to dismiss the appeal on the grounds that an appeal bond was not posted, and that a jury's findings of fact are not subject to appeal or a retrial.
The Court of Appeals held that requiring an appeal bond would likely be unjust where a defendant certifies that she has no assets, she has been wrongfully convicted, and the court record shows that she has strong ties to the community and has been present for all court dates.
As procedural due process is fundamental to the operation of a tribal court, the onus is on the tribal court to explain defendants' rights to them and afford them a clear opportunity to exercise those rights.
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Stephen Hyde for Appellant Valerie LeClair; Stanley B. Meyers, Jr., Prosecutor for the Quileute Indian Tribe. |
MEMORANDUM OPINION AND ORDER
IRVIN, Chief Justice:
This matter is on appeal by the Defendant, Valerie LeClair, who was found guilty of Driving While Under the Influence of Intoxicating Liquor at the close of a jury trial during which she was unrepresented by counsel. She was sentenced to a $500 fine and 90 days jail time. The Defendant made a Motion for a New Trial, which was denied by the trial court. The Defendant appealed.
The Respondent Quileute Tribe made a Motion to Dismiss the appeal based on 1) the Appellant's failure to post the required appeal bond of $500 and 2) the argument that findings of fact by a jury are not subject to appeal or a retrial.
1 NICS App. 50, Quileute Tribe v. LeClair (July 1989) p. 51
The Court issued a Prehearing Order reserving ruling on the Motion to Dismiss until the Appellate Court was convened and ordering the Appellant to post the required appeal bond of $500 or otherwise secure the appeal for that amount or, in the alternative, to file a pleading to establish in forma pauperis.
The appellant filed a Petition to Proceed In Forma Pauperis.
I.
WAS THE DEFENDANT VALERIE LECLAIR PROPERLY ADVISED OF HER RIGHT TO COUNSEL, AS WELL AS OTHER RIGHTS GUARANTEED BY THE QUILEUTE LAW AND ORDER CODE TO A DEFENDANT APPEARING IN THE QUILEUTE TRIBAL COURT?
On April 4, 1989 the defendant was arraigned. The transcript of that proceeding is as follows:
The Judge has read the criminal complaint to the defendant that had happened on 3-12-89.
Judge: Is this your first appearance in court?
Valerie: Yes.
Judge: Okay, do you have an attorney or spokesperson or wish to have one?
Valerie: Yeah ? ….I don't never had my license I don't know how it could have been suspended.
Judge: Well, it's not your license wasn't suspended; it's your privilege to drive that is suspended.
Valerie: Oh.
Judge: That's what the actual charge is.
Valerie: Oh, it's not what he said, he said on the computer it came up that I had my license and ... ?
Judge: I beg your pardon?
Valerie: He said that he checked my name on the computer and it came up that I had license suspended.
Judge: Well, the way the law reads, that it is your license OR your privilege to drive. So if you hadn't had a license they can suspend your right to drive, whether you have a license or not.
1 NICS App. 50, Quileute Tribe v. LeClair (July 1989) p. 52
K.L. Lewis: The way the former charge reads, your Honor, the privilege to drive suspended.
Judge: Comments to Court Clerk on last case.
Judge: Okay, are you ready to enter a plea to the charges or do you want to wait until you get a spokesperson? Who's going to be the spokesperson? Are you going to do it Mrs. Penn?
Mrs. Penn: No, I’m not taking them anymore, only on rare cases.
Valerie: Don't I get a prosecuting attorney?
Judge: The prosecutor is here, he represents the Tribe, so if you want to get an attorney you have to get your own attorney. You have to pay your own attorney or get a spokesperson. I don't know anyone that does it down here, at this point no one is? We have allowed a spokesperson to come from Neah Bay to represent people, but that would be your responsibility, so ...
Valerie: Well, there is someone that said that they would talk for me, so I can get somebody.
Judge: All right that person has to pay the admission fee to tribal bar and they have to certify that they read the code. So, just let them know ahead of time, the $10.00, right, still $10.00?
Clerk: Wasn't it $5.00?
Mr. Harrison: It's $5.00, I think.
Judge: It's only $5.00, but they have to have read the tribal code and understand the court procedures.
Valerie: Uh huh.
Judge: Okay. The paralegal or the clerk has those, who's going to do?
Valerie: Butch Sampson said he was going to ask Arnie Black.
Judge: Well, if he is willing to do it. I'm sure he would be able to understand the procedures. Mr. Black's been in court enough to know what happens in court. You make sure. How are you going to plead? Guilty or not guilty?
Valerie: Not guilty.
Judge: To all three charges?
1 NICS App. 50, Quileute Tribe v. LeClair (July 1989) p. 53
Valerie: Well, driving without my license; I guess that's guilty.
Judge: Well, there are three charges, actually. Driving While Intoxicated. How do you plead to that?
Valerie: Guilty.
Judge: Okay, Driving While Suspended?
Valerie: Oh, I want to plead not guilty to everything, I guess.
Judge: Okay, there are actually two charges. It is written, looks like one, but it is really two different charges.
Valerie: Yeah.
Judge: And Assault?
Valerie: Oh, that's not guilty.
Judge: Okay, you're going to have a jury trial or trial to the court?
Valerie: Jury Trial.
Judge: Do you want to have any witnesses subpoenaed or can you bring your own witnesses?
Valerie: No, I don't have no witnesses....?
Judge: Okay, it will be May 2, at 10:00 a.m.
Valerie: Okay, for both of them?
Clerk: All three charges?
Judge: Yes, all three charges. All at the same time, basically, and the same place. So, maybe not at the same time. But close enough. Okay, then if you’re going to get Mr. Black then I want him to contact the court clerk by a week from today, so we can make sure that he is going to agree to that date.
Valerie: Okay.
The following rights are guaranteed to a defendant under the Quileute Law and Order Code:
Section 11.03 Rights of Defendant
In all criminal prosecutions, the defendants shall have the following rights:
1 NICS App. 50, Quileute Tribe v. LeClair (July 1989) p. 54
(a) The right to be present throughout the proceeding and to defend himself in person or by a spokesman.
(b) The right to know the nature and cause of the charge and to receive a copy of the complaint.
(c) The right to meet the witnesses against him face to face.
(d) The right to compulsory process to obtain the testimony of witnesses in his behalf and physical evidence.
(e) The right to a speedy public trial by an impartial jury or judge.
(f) The right not to testify. The failure of the defendant to testify shall not be construed against him or be commented upon by the prosecution.
Several facts become immediately apparent upon examination of the trial transcript of the Appellant's arraignment. First, this was the first time the Defendant had appeared in Quileute Tribal Court. Secondly, the Defendant clearly wanted counsel to represent her. And finally, it was unclear to the Defendant of the charges being brought against her. The arraignment was not continued and the Defendant, by default, represented herself at that proceeding.
Procedural due process which is fair, is fundamental to the operation of any tribal court. Defendants not only have rights guaranteed to them but they must reasonably understand those rights and have reasonable opportunities to exercise those rights. Because most defendants appearing before tribal court are without representation initially and frequently throughout all proceedings resultant from charges which are lodged, the onus is on the tribal court to duly explain the defendant's rights to him or her and afford the defendant clear opportunities to exercise those rights.
Here the Defendant was not clearly informed by the Complaint of the nature of the Driving While Intoxicated charge. The charge appeared on the Complaint as:
R.C.W. 46.20.342, 46.61.502, 46.61.515 Driving While Intoxicated (Suspended)
At arraignment it is questionable whether the Defendant understood the nature of the charges against her, and the penalties which might be imposed for each offense should she be convicted were never explained to her. She indicated several times during the arraignment that she wished to have someone represent her. The judge never explained to her that she had the right against self-incrimination, the right not to testify, and proceeded to ask about witnesses she wished to subpoena and whether or not she wished a jury trial. The decisions as to how a defendant should plead to charges, whether they should testify,
1 NICS App. 50, Quileute Tribe v. LeClair (July 1989) p. 55
whether to try the case to the judge or a jury, and what witnesses to call are all determinations that can be postponed until after a defendant has had the opportunity to consult a tribal court advocate. Knowing the gravity of the penalties which may be imposed should a defendant be convicted of a charge is fundamental to their decision whether to engage in the effort and expense to secure an advocate. Since the right to counsel is not guaranteed expense-free to defendants in tribal court, the triba1 court is obligated to provide to a defendant before it the information necessary for him or her to make an informed decision whether to secure counsel or waive the right thereto.
II.
IS THIS APPEAL DISMISSED FOR FAILURE OF THE APPELLANT TO POST THE APPEAL BOND OF $500 AND/OR FOR THE REASON THAT THE FINDINGS OF FACT BY A JURY ARE NOT SUBJECT TO APPEAL OR RETRIAL?
Section 3.03 Limitations (on appeals) of the Quileute Law and Order Code reads as follows:
The Court of Appeals shall have jurisdiction to hear and determine appeals from final judgments of the Tribal Trial Court. All such appeals shall be tried as a new trial except for those issues of fact already determined by a jury.
The Tribe argues that the Defendant must post a $500 appeal bond, reflective of the fine imposed on the Defendant by the Tribal Trial Court. Further, the Tribe argues that the issues of fact have already been determined by the jury and are not subject to appellate review.
The overriding concern of any tribal court is that the defendant receive a fair trial and a fair opportunity to exercise their rights and that convictions and penalties imposed fairly address the facts which are established thereby. This is fundamental for the tribal court and the tribal community to function in harmony. The Quileute Tribe in its Law and Order Code addresses the concern for fairness and protection of the Tribal community in Article XII. Rule of Criminal Procedure Post Trial Procedure, Section 12.09 Liberal Construction:
This Title shall be liberally construed to the end that persons convicted of a crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities; that dangerous offenders shall be correctively treated in custody for longer terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety, and the welfare of the individual and the Tribe.
In this case the Defendant has certified to the Court that she has no assets and that she believes she has been wrongfully convicted. If the conviction stands,
1 NICS App. 50, Quileute Tribe v. LeClair (July 1989) p. 56
she will still be liable to pay the full $500 fine and serve 90 days jail time. The Defendant has strong ties with the tribal community and has been present for scheduled court dates. No collateral is being impaired by her failure to post bond and requiring the bond under the circumstances is likely to be unjust, considering the reasons she alleges for the appeal. The Defendant alleges that she did not make an effective waiver of assistance of counsel. The issue she has raised on appeal does not inhere in the jury fact-findings but is rather a procedural due process issue outside the province of the jury, a matter which is determined by the Court.
ORDER
For the above reasons the Motion to Dismiss the Appeal is denied, the ruling of the Trial Court denying the Appellant's Motion for New Trial is reversed and the case is remanded to the Trial Court for retrial on the charges of Driving While Intoxicated and Driving While Privilege to Drive is Suspended with the following instructions:
The Trial Court is to rearraign the Defendant on the charges for the purpose of fully advising her of the nature of the charges against her, the potential penalties which may be imposed if she is convicted of the charges and all of her rights as guaranteed by the Quileute Law and Order Code and the Indian Civil Rights Act. Further, she shall be advised of her right to counsel and given a reasonable opportunity to secure counsel, if she so chooses, prior to entering a plea on the charges and making decisions consequential to entering a plea. Any trial shall be set in accordance with section 10.14 of the Quileute Law and Order Code which dictates the timing for trial dates as follows:
If the defendant enters any other plea [than guilty], the judge shall set a date for trial not less than seven days nor more than thirty days from the date of arraignment, provided that the trial may be set for less than seven days if an emergency exists and the defendant would not be unduly prejudiced thereby.