2 NICS App. 145, Suquamish Tribe v. Mills (October 1991)
IN THE SUQUAMISH TRIBAL COURT OF APPEALS
PORT MADISON INDIAN RESERVATION
SUQUAMISH, WASHINGTON
Suquamish Indian Tribe v. David Mills, Sr.
No. SUQ-CR-6/90-48 (October 29,1991)
SUMMARY
David Mills, a member of the Suquamish Indian Tribe, was convicted in Tribal Court on charges of assault and battery. Mills appealed the conviction, arguing that the trial court had erred in refusing to rule he had acted in self defense. In addition, Mills claimed that he had been denied assistance of counsel both at his trial and his appeal.
The Tribal Court of Appeals affirmed the conviction. It found first that Mills had not been denied assistance of counsel but had failed to actively seek such assistance. Mills had not made a sincere effort to seek the help of counsel, the appellate panel observed, even after being granted a continuance for that purpose.
In respect to the assault and battery conviction, Mills admitted that he had slapped Harriett Nelson, the woman he was living with, about the face and head. Mills also admitted that he had picked up Ms. Nelson, "rolled" her into the kitchen, and slammed the door on her. However, Mills claimed that he performed these actions in the course of resisting her repeated attempts to sexually assault him. Ms. Nelson, who was not present at the appellate hearing, had reported to police that Mills had slapped her in the course of an argument. Her injuries required hospitalization and stitches. In affirming the conviction, the Tribal Court of Appeals found that, even assuming Mills' allegations of sexual assault were true, he had used excessive force in resisting the assault.
FULL TEXT
|
Tribal prosecutor John Sledd for the Suquamish Indian Tribe; defendant/appellant David R. Mills, Sr., appeared pro se. |
2 NICS App. 145, Suquamish Tribe v. Mills (October 1991) p. 146
OPINION AND ORDER AFFIRMING CONVICTION
PER CURIAM:
The defendant appeals his conviction on the charge of Assault and Battery.
FINDINGS OF FACT
This court finds that it has jurisdiction over the person and the subject matter under Suquamish Law and Order Code Sections 3.2.5, 3.2.7 and 7.1.6.
A. Facts Regarding Assistance of Counsel Claim
On appearing before the Tribal Court of Appeals, defendant was asked why he was not represented by counsel. His reply was that he did not have the money to hire an attorney and did not have time to find an attorney or spokesperson to represent him. This court adjourned in order to give the defendant time to call those attorneys and the tribal spokespersons he thought may help him.
When the court re-convened, the defendant advised the court that, although he had contacted two attorneys and one tribal spokesperson, he was unable to acquire counsel. The court pointed out to the defendant that his appeal had been filed on July 27, 1990--fifteen months before the present hearing. The court further pointed out that defendant's hearing, originally scheduled for September 30, 1991, had been continued in order that he might seek counsel--and that ten days should have been ample time for him to obtain counsel. The defendant assented and requested to proceed pro se.
B. Facts Regarding Assault and Battery Charge
The defendant testified that he was home asleep in bed in the apartment he shared with the complainant, Harriett A. Nelson. At approximately 3:00 AM, June 12, 1990, she came home and woke him up by fellating him. He slapped her in an attempt to dissuade her, but she persisted. He picked her up from the couch, carried her to the kitchen, rolled her in and slammed the door. She came out approximately five minutes later with blood on her face, threatening him with jail.
The complainant, Harriett A. Nelson, told the police that she came home and questioned the defendant about a blonde woman he had been drinking with early in the evening. An argument ensued, and she was struck about the face and head by the defendant. Her wounds required hospitalization and stitches. Her version of events contained no mention of fellatio. She was not present at the hearing on appeal, having moved to an unknown location in another state.
2 NICS App. 145, Suquamish Tribe v. Mills (October 1991) p. 147
CONCLUSIONS OF LAW
A. Assistance of Counsel
The defendant, appellant herein, had ample time to obtain counsel at his own expense, and, judging from his statements to the appellate panel, he did not make a sincere effort to do so. He made no effort to contact spokespersons who appear before the Suquamish Tribal Court to assist indigent tribal members.
The Indian Civil Rights Act, Section 1302 (6), states in part:
No Indian tribe in exercising powers of self-government shall...deny to any person in a criminal proceeding the right...at his own expense to have the assistance of counsel for his defense.
The defendant herein had fifteen months from the date he filed his appeal to the date of the hearing before the appellate court. The defendant's right to have assistance of counsel was not denied him but was due to his failure to actively seek such assistance. The defendant told the appellate panel that he preferred to proceed without assistance of counsel rather than to experience further delay in this matter.
B. Assault and Battery
Viewing the evidence in the light most favorable to the defendant, the Tribal Court of Appeals found that Mr. Mills was justified in resisting a sexual assault upon his person. However, the court found that Mills used excessive force when he carried Ms. Nelson from the couch, "rolled" her into the kitchen, and slammed the door on her, causing injuries. The infliction of injuries was not reasonably necessary to stop the complainant from further attempts at sexual assault, and was not justifiable as an act of self-defense.
Viewing the evidence in a light less favorable to the defendant, this court had to question whether the alleged sexual assault actually occurred. If no sexual assault occurred, of course, there would be no justification of self-defense to consider. In that case, the defendant's admission that he had struck the complainant about the face and head provided adequate grounds for the Tribal Court to find him guilty of assault and battery as charged.
The conviction of David Mills, Sr., by the Suquamish Tribal Court on the charges of Assault and Battery is affirmed and the sentence modified.
2 NICS App. 145, Suquamish Tribe v. Mills (October 1991) p. 148
ORDER
The sentence is modified as follows: The defendant is to serve fifteen days in jail, beginning on November 15, 1991, and ending on November 30, 1991. A fine of $120.00 is imposed and shall be paid on or before November 13, 1991. The defendant shall perform 30 hours of community service for the Tribe (supervised by Brad George), to be completed on or before December 31, 1991. The defendant shall also continue anger management counseling with the Suquamish Tribal Social Services Department until he completes a one year period of counseling.