Lummi Indian Nation v. Linda Ward

2 NICS App. 214, Lummi Nation v. Ward (December 1992)

IN THE LUMMI TRIBAL COURT OF APPEALS

LUMMI INDIAN RESERVATION

BELLINGHAM, WASHINGTON

Nos. 92.2 CRP 2288, 92.4 CRP 2525 & 92.4 CRP 2526 (December 18, 1992)

SUMMARY

In the course of an alleged attack by defendant Linda Ward and the defendant's daughter, Tracy Deardorff, Lummi Indian Nation member Laura Washington was severely injured. Both Ms. Ward and Ms. Deardorff were arrested and charged by the Nation. Ms. Deardorff entered a guilty plea. Ms. Ward was charged with two counts of assault and battery and one count of malicious mischief. She contested the charges, but was found guilty by the Tribal Court. The trial judge imposed a sentence which included $720 in fines, $1000 in restitution, and 270 days in jail with 105 days suspended--the suspension depending, in part, upon the defendant's undergoing alcohol, anger management, and psycho-therapeutic counseling. In respect to both the malicious mischief charge and one of the two counts of assault and battery, Ms. Ward appealed the guilty verdicts. In respect to the second count of assault and battery, she did not appeal the guilty verdict but appealed only the terms of the sentence.

The Nation moved to dismiss Ms. Ward's appeal of the terms of her sentence, arguing that she was not entitled to appeal her sentence on the second count of assault and battery after having failed to appeal her verdict. The Tribal Court of Appeals denied the Nation's motion, finding (1) that the Lummi Law & Order Code permitted appeals of sentences as well as appeals of verdicts and (2) that the trial judge had erred in relying solely upon the tribal prosecutor's recommendations for sentencing without giving the defendant an opportunity to offer her own recommendations.

After conducting a de novo hearing, the Tribal Court of Appeals found the defendant guilty on all three counts, and affirmed the reasonableness of the sentence imposed by the trial court.

2 NICS App. 214, Lummi Nation v. Ward (December 1992) p. 215

FULL TEXT

Before:	Chief Justice John Roe, Associate Justice Marguerite Edwards and Associate Justice Christopher Williams.
Appearances:	Tribal prosecutor Iris Shue for the Lummi Indian Nation; spokesperson Ron Morris for defendant Linda Ward.

DECISION AND ORDER OF THE APPELLATE PANEL

WILLIAMS, Associate Justice:

This matter was heard on August 6, 1992, in the Lummi Tribal Court of Appeals. A new (de novo) trial was held, as required under Section 1.8.05 of the Lummi Tribal Code. Pretrial conference was waived by both parties.

PROCEDURAL BACKGROUND AND TRIBE'S MOTION TO DISMISS

This matter first came before the Lummi Tribal Court on April 14, 1992, before the Honorable Charles D. Finkbonner, who found defendant Linda Ward guilty of two counts of assault and battery (Case Nos. 92.4 CRP 2525 & 92.2 CRP 2288) and one count of malicious mischief (Case No. 92.4 CRP 2526). The following sentences were imposed through judgment orders dated May 5, 1992, and June 10, 1992:

Case No. 92.4 CRP 2525: 90 days in jail with 45 days suspended, plus a fine of $360.

Case No. 92.4 CRP 2526: A fine of $360, plus restitution of $1000.

Case No. 92.2 CRP 2288: (1) 180 days in jail with 60 days suspended, on condition that the defendant (a) enroll in and complete an anger management course, (b) attend an initial counseling session at Indian Health Services and continue counseling for the duration of time recommended by the counselor, (c) obtain an alcohol evaluation and follow through with the recommended treatment, and (d) report to tribal compliance officer Leque on her progress; (2) a fine of $360 and court costs of $25; and (3) payment of the total costs of medical and psychological treatment for Laura Washington, as such costs are documented in court records.

Ms. Ward filed a notice of appeal of the verdict in Case Nos. 92.4 CRP 2525 and 2526. She also filed a notice of appeal of the sentence imposed in Case No. 92.2 CRP 2288.

The Nation moved to deny or dismiss the appeal of the sentence imposed in Case No. 92.2 CRP 2288 on the grounds that the defendant was not entitled to appeal her sentence after having failed to appeal her verdict. Plaintiffs Motion to Deny or Dismiss the Defendant's Appeal at 1. However,

2 NICS App. 214, Lummi Nation v. Ward (December 1992) p. 216

Section 1.8.01 of the Lummi Tribal Code, entitled Reservation Court General Rules, provides, in part, that the Court of Appeals shall sit "to hear any appeal from final judgments, sentences and other final orders of the Reservation Court [emphasis added]." Furthermore, Section 4.8.02 of the Code states, "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."

The grounds for Ms. Ward's appeal of her sentencing, as stated in her Notice of Appeal, were that the defendant had not been adequately represented (Notice of Appeal, paragraph 4), that the trial judge depended completely upon the prosecutor's recommendation for imposing sentence (Notice of Appeal, paragraph 5), and that the sentence imposed was excessive (Notice of Appeal, paragraph 11).

We found no evidence in the record indicating that Ms. Ward was given an opportunity to submit recommendations for sentencing before the trial court. Her allegation that the trial judge failed to provide such an opportunity constitutes, by itself, an adequate ground for appeal under the Nation's rules for appellate and post-trial proceedings. Thus we find that the defendant is entitled to appeal her sentence in Case Number 92.2 CRP 2288, even though she did not appeal the verdict in this case. We therefore deny the Nation's motion to dismiss on this ground.

In regard to the defendant's appeal of her convictions in Case Nos. 92.4 CRP 2525 and 2526, the Nation did not contest her right to appeal in these cases. The defendant has complied with the time requirements in filing her notice of appeal, as required under Section 1.8.03 of the Tribal Code, and she has made allegations in her notice that she did not receive a fair trial, satisfying the requirements of Sections 4.8.01 and 4.8.02. The Tribal Court had not sentenced the appellant prior to filing her appeal in these cases, as sentencing had been postponed at the appellant's request. The sentencing was finally imposed by Judge Finkbonner's Judgment Orders dated June 10, 1992.

This Court has jurisdiction based upon its finding that this matter occurred on tribal land between two tribal members.

BACKGROUND AND TESTIMONY

The prosecutor asserted the theory that defendant Linda Ward's alleged assault upon Laura Washington was motivated by the desire for revenge. At the source of this alleged desire for revenge, the prosecutor argued, was a 'love triangle" in which a boyfriend of Ms. Washington was also a boyfriend of Ms. Ward's daughter, Tracy Deardorff. Ms. Ward attempted to refute the Lummi Nation's assertions of culpability.

A. Testimony of Laura Washington

Laura Washington testified that, on the night at issue, she had driven to a party at the Ridley residence on Lummi Shore Road. The party was

2 NICS App. 214, Lummi Nation v. Ward (December 1992) p. 217

attended by a number of younger members of the Lummi Indian Nation. Drinking was taking place at the party, and Ms. Washington stated that she consumed "a few." Some time later Ms. Washington, accompanied by Virginia Howell, left the party. Ms. Washington stated that she started driving her car down the steep driveway of the Ridley residence but the road was in a wet, muddy and slippery condition. Ms. Washington stated that she saw Ms. Ward, the defendant, walking up the hill towards her towards from the opposite direction, followed by another vehicle. Ms. Washington stopped her car and tried to go in reverse. However, due to the wet and slippery conditions, the car became mired in mud or, in any case, was unable to reverse any further.

The Washington car was approached by Ms. Ward. Ms. Washington testified that Ms. Ward approached her side of the car and Ms. Deardorff, Ms. Ward's daughter, approached the passenger side. She stated that Ms. Ward broke out the window using her hand, arm or some blunt object. Ms. Washington was struck in the head at this time, suffering severe injuries. Ms. Deardorff joined Ms. Ward and, Ms. Washington testified, "punched and slugged me three times" while Ms. Howell watched. Ms. Washington stated she attempted to run away but was tackled by Ms. Ward. Ms. Ward then held her down with her arms over her head while the daughter, Tracy, kicked and punched her. Ms. Washington fought to get away but suffered repeated blows. She also testified that her hair had been pulled and her face had been scratched.

Pictures were introduced into evidence which indicated bumps, scratches, bruises, and a nose injury. Ms. Washington stated that she received silicone injections to remedy the permanent disfigurement caused by the injury to her nose. Despite the injections, she has continued to have problems with her nose. Plastic surgery is a possible solution, but Ms. Washington lacks insurance coverage for such surgery. She was treated with Tylenol 3 and has suffered emotional damage which keeps recurring. She stated that she was attacked because of ''Joel," without further explanation. Ms. Washington revealed on cross-examination that she had drunk 3 beers and that the assault had taken place in front of "the kids" at the party. She testified that one-eighth of her skull had been smashed in and that she had received two black eyes. Some brain damage has occurred, the extent of which has not been determined.

B. Testimony of Virginia Howell

Virginia Howell's testimony was consistent with Ms. Washington's.

Ms. Howell testified that she had been primarily assaulted by Tracy Deardorff. She stated that both passengers in the car were backhanded by Ms. Deardorff and that Ms. Deardorff was also using her fist to deliver punches.

Ms. Howell stated that Laura Washington appeared "out of it" while being struck by Ms. Ward, and that Ms. Ward was the primary aggressor,

2 NICS App. 214, Lummi Nation v. Ward (December 1992) p. 218

saying, ''hit her, kill her!" to her daughter. M.S. Howell also stated that Ms. Deardorff warned her "to be quiet or this would happen to you."

C. Testimony of Officer Ron Garrison

Officer Ron Garrison stated that Virginia Howell and Laura Washington were the victims of an assault, that the assault occurred in the car, and that there was drinking at the time. He saw cuts, bruises, a broken nose, and a split ear, but testified that the face was "recognizable." The officer also stated that medical personnel had started to clean up Ms. Washington's wounds by the time he saw her. He testified that he had probable cause to arrest Ms. Deardorff and that he took photos. An exhibit of photographs was entered showing much of the damage that he described. Under cross-examination, Officer Garrison stated that he was unable to evaluate personally the emotional status of the defendants.

D. Testimony of Officer Mark Leque

Officer Mark Leque testified that he had been in contact with Laura Washington fifteen minutes after her arrival for medical treatment. He stated that she was covered with blood and had matted hair, that one eye was swollen shut, and that she had blood on her hand. He stated that it was hard to get a straight story from her because of shock or intoxication. He described the car as having a shattered window and dents and blood on the seats.

E. Testimony of Mary Heath

Mary Heath testified that she was driving up the hill at a very rapid pace. She witnessed Laura Washington's car coming down the hill and, to avoid a collision, she rapidly reversed her vehicle. She testified that Ms. Washington's car struck Linda Ward and knocked her into a ditch, and that Linda was limping when she got up. The assault ensued after Ms. Ward was struck by the car. Ms. Heath also stated that Ms. Ward had been drinking, but had only had a few beers.

Judge Edwards asked the witness how she could see Linda Ward being struck by Ms. Washington's car when she was accelerating in reverse rapidly and was also facing into Ms. Washington's headlights? Ms. Heath answered that she looked back and forth and was able to see what was going on when she was looking forward.

F. Testimony of Tracy Deardorff

Tracy Deardorff testified that she had been riding with Mary Heath and that Laura Washington's car was coming down the hill, forcing Ms. Heath to back up. She stated that her mother was hit by the car driven by Ms. Washington and was bumped into the ditch. She testified that she had to help her mother get out of the ditch. It had been her intention to go to the party and "get drunk."

2 NICS App. 214, Lummi Nation v. Ward (December 1992) p. 219

Ms. Deardorff testified that she went to the passenger side door of Ms. Washington's car and started hitting Ms. Howell, and that the entire confrontation lasted approximately ten minutes. She acknowledged that there was a history of bad blood between her and Ms. Washington. Ms. Deardorff testified that she had entered a guilty plea to the charge of assaulting Ms. Washington and had served time in jail. She testified that her mother, on the other hand, did not smash the window and had no blood on her clothes. According to Ms. Deardorffs testimony, she herself had pulled Ms. Washington's hair and hit her; her mother never entered the car but was "standing behind me."

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Tribal Court of Appeals finds the following:

That the testimony of Mary Heath was unpersuasive. While Ms. Heath was backing up her car she had little opportunity to observe the alleged collision between Ms. Washington's car and Ms. Ward.

That Ms. Ward did fall into the ditch. The Court does not, however, find that the automobile driven by Ms. Washington caused Ms. Ward to be knocked into the ditch. There was ample evidence that the road conditions were extremely slippery, muddy, wet and on a hill, and that, therefore, Ms. Ward (under some influence of alcohol) probably slipped in the mud.

That the defendant, Ms. Ward, struck the window of Ms. Washington's car, causing it to break.

That thereafter the car was battered and Ms. Washington received severe injuries, including but not limited to a crushed skull and a severely fractured nose resulting in repeated surgeries and perhaps necessitating further surgeries.

That the defendant, with the aid and assistance of her daughter, Ms. Deardorff, caused other repeated blows on the witness, Ms. Washington.

That Linda Ward did act in such a matter as to cause severe bodily injury to Ms. Washington.

That all parties to some degree were under the influence of intoxicants, but there was no testimony to suggest that any of the parties were intoxicated to such a degree that they were unaware of their acts.

2 NICS App. 214, Lummi Nation v. Ward (December 1992) p. 220

That Ms. Ward acted in an authoritative manner as a "ringleader," encouraging additional assaults by her daughter, Ms. Deardorff.

That as a result of this assault, Ms. Washington has suffered considerable pain and suffering, including what appears to be post-traumatic stress syndrome. There may also be damage to Ms. Washington's brain.

10.

That, given the above findings and the extreme violence and injuries which occurred, the sentence imposed by Judge Finkbonner in Case No. 92.2 CRP 2288 was reasonable and within the guidelines of the Lummi Code of Offenses, Section 5.1.02.¹ We note, as an aside, that this assault occurred in front of a large number of the younger members of the community and may very well have sent a message to this young community that violence is an acceptable means of resolving family or other disputes.

THEREFORE, this appellate panel affirms the trial court's verdict finding Linda Ward guilty of the charges of Assault and Battery and Malicious Mischief in Case Nos. 92.2 CRP 2288, 92.4 CRP 2525, and 92.4 CRP 2526. The panel furthermore affirms in their entirety the sentences imposed by the trial court as set forth at the beginning of this opinion.

It appears that Ms. Ward, in her notice of appeal, objected to the conditions imposed by Judge Finkbonner for suspending 60 days of that sentence. These conditions included anger management, alcohol and individual counseling. The counseling requirements, of course, were not imposed in addition to other elements of the sentence, but represented conditions the defendant had the option of performing if she wished to qualify for the benefit of having 60 days suspended from her 180 day jail sentence. See Judgment Order of May 5, 1992.