SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995)

IN THE SUQUAMISH TRIBAL COURT OF APPEALS

PORT MADISON INDIAN RESERVATION

SUQUAMISH, WASHINGTON

Suquamish Indian Tribe, Respondent

Lah-huh-bate-soot Bennett, Appellant

No. 94-0403 (November 14, 1995)

SUMMARY

Appeal from jury verdict of guilty on charge of first degree rape. Court of Appeals found:

(1) arrest warrant that did not contain recitation of probable cause for issuance was invalid; (2) defendant was not entitled to an expanded jury pool which included jurors of Northwest tribes other than members of the tribe in the jurisdiction in which the alleged rape occurred; (3) evidence of defendant’s gang membership admissible on the issue of “forcible compulsion” to show that victim was afraid of defendant; (4) evidence of prior forcible sex between defendant and victim admissible to show that victim was afraid of defendant; (5) trial court’s failure to rule on motions not an abuse of discretion; (6) double jeopardy does not attach where commitment order contains language stating that defendant had been found guilty of rape when, in fact, he had not yet been found guilty; (7) standard of review on jury instructions is whether they are correct as a matter of law; jury was properly instructed that it could find Rape in the First Degree in five alternative ways; (8) a jury could reasonably conclude that the defendant’s striking the victim moments before having sexual intercourse with her without her consent amounted to forcible compulsion; (9) trial court has discretion to consider “house arrest” in determining the period of post-conviction confinement; (10) absent a clear showing that courtroom demonstrations prejudiced the defendant, trial judge did not abuse his discretion by denying motion for new trial; (11) evidence of juvenile adjudications is generally not admissible; trial court did not abuse discretion by disallowing evidence of victim’s juvenile adjudications. We affirm the jury verdict of guilty and remand for a sentencing hearing.

Wynne, J., concurs in part, dissents in part.

FULL TEXT

Before: Mary T. Wynne, Chief Justice; Dennis L. Nelson, Justice; Charles R. Hostnik, Justice.

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Hostnik, J.:

This case involves a charge of first degree rape against Lah-huh-bate-soot Bennett. Mr. Bennett appeals from a jury verdict of guilty to this charge. That charge carries a mandatory sentence of one year in jail and a fine of up to $5,000.00.

I. ISSUES RAISED ON APPEAL

The parties spent a considerable amount of time and energy on this case. This was a three-day jury trial, which produced a 600-page transcript. In addition, the record consists of partial transcripts of two arraignment dates, and another four inches of pretrial pleadings, motions, orders, and related documents. Appellant produced a brief of 58 pages to address the issues he raises on appeal. The Court does not approach this case lightly.

This appeal raises a number of extremely important issues. Appellant identified fourteen separate assignments of error. Those issues can be distilled as follows:

A. Was the Defendant validly arrested?

B. Is the Defendant entitled to an expanded jury pool, to include jurors of Northwest tribes other than members of the tribe of the jurisdiction in which the alleged criminal act occurred?

C. Is it unconstitutional for the Suquamish Tribal Code to permit a six-person jury to render its decision by a majority, rather than by a unanimous vote?

D. Did the trial court abuse its discretion in admitting certain evidence and in limiting cross-examination of the victim?

E. Did the trial court commit error by neglecting to rule on certain motions?

F. Was it error for the trial judge to deny a motion to dismiss based on double jeopardy?

G. Was the jury properly instructed on the elements of first degree rape?

H. Is the conviction for first degree rape against the weight of the evidence?

I. Was it error for the trial judge to sentence the Defendant to one year in jail without credit for good time and without credit for pretrial home detention?

II. FACTUAL BACKGROUND

Lah-huh-bate-soot Bennett (hereinafter “Lah-huh-bate-soot”) is an enrolled Puyallup tribal member tried and convicted by a jury of Suquamish tribal members on October 24, 1995, for first degree rape. The victim, B.L.,^* is a Suquamish tribal member.

On August 20, 1993, B.L., then sixteen years of age, attended Suquamish Days. Appellant/Defendant Lah-huh-bate-soot, with whose mother B.L. had once resided, also attended Suquamish Days. B.L. and Appellant knew each other but had not seen each other for several years.

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Later that evening, B.L., Lah-huh-bate-soot and several of their friends gathered at the home of B.L.'s best friend, T.R. There, they proceeded to drink, smoke some marijuana, and "part[y] into the night." At some point in the evening, Appellant and Respondent ended up alone in T.R.'s bedroom.

Once in the bedroom, B.L. and Lah-huh-bate-soot argued. Lah-huh-bate-soot struck B.L. during the argument and, subsequently, engaged in sexual intercourse with her. B.L. admits that she did not see a weapon in the room, nor did she scream or struggle during intercourse. B.L. testified at trial, however, that she was afraid of Lah-huh-bate-soot because of his gang affiliation, because she had been raped by him when she was fourteen, and because she knew he had recently served time in prison for another offense.

Several months later, B.L. reported the incident to Ron Blake, Suquamish Tribal Police Officer, and wrote a nineteen page statement dated March 28, 1994. On March 28, 1994, a bench warrant was issued for Lah-huh-bate-soot. The Washington State Patrol arrested Lah-huh-bate-soot on April 7, 1994, pursuant to the warrant, and transported him to Tribal Court for arraignment.

Lah-huh-bate-soot was charged with first-degree rape under the Suquamish Tribal Code, an offense which carries a maximum penalty of one year in jail, or a fine of not more than five thousand dollars, or both. During the arraignment, Lah-huh-bate-soot requested that the Tribe provide him counsel at tribal expense. Upon determining that Lah-huh-bate-soot qualified due to his financial circumstances, the trial court appointed a Tribal attorney to represent him. The trial court placed Defendant under $5,000 bond and continued the hearing to a later date.

Lah-huh-bate-soot appeared with his appointed counsel for the continuation of his arraignment on April 12, 1994. At that time, defense counsel moved to dismiss the action for various procedural irregularities, including: (1) failure to file a complaint as required by the Suquamish Tribal Code, (2) a defective arrest warrant, and (3) lack of probable cause.

In response, the prosecutor handwrote a complaint and filed it with the court. The complaint, dated April 12, 1994, charged Lah-huh-bate-soot with first-degree rape of B.L. The prosecutor then proceeded to address defense counsel's motions to dismiss.

At the April 12, 1994 arraignment, Defendant also moved to dismiss on double jeopardy grounds, citing to a commitment order issued by the trial court at the April 7, 1994 arraignment. The commitment order stated that Defendant ". . . having this date been found guilty . . . by committing the offense of rape first degree. . ." was to serve five days in jail. Defense counsel argued that by all appearances, the commitment order indicated not only that Defendant had already been found guilty and sentenced, but that he also had already served his time. The trial court did not rule on this motion. Defendant entered a plea of not guilty to the charge. This matter proceeded to trial on October 19, 20, 21, and 24, 1994.

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Jury selection occurred on October 19, 1994, during which both sides conducted extensive voir dire of the prospective jurors. The six-person jury that was ultimately empaneled consisted exclusively of Suquamish tribal members. Defense counsel moved for an expanded jury pool of members of other Northwest tribes. Counsel alleged that because the jury and the victim were Suquamish tribal members, Defendant, who is not Suquamish, would be denied due process. After reviewing the Suquamish Tribal Code, the trial court denied the motion.

Testimony commenced on October 20, 1994. Three witnesses, including B.L. herself, testified for the prosecution. Three witnesses testified for the defense. The Defendant did not testify.

During the course of the trial, and over defense counsel's objections, the trial judge allowed a witness to testify about Lah-huh-bate-soot's gang membership. The trial court also allowed testimony regarding an incident in which Defendant had forced B.L. to have sex with him when she was fourteen. In neither of these instances was the evidence admitted to show Defendant's character.

Also during trial, Defendant moved for a mistrial on the grounds of certain evidence the court was going to admit. The trial court did not rule on Defendant's motion for a mistrial. On October 24, 1994, a unanimous jury found the Defendant guilty of the crime of rape in the first degree. After the jury rendered its verdict, Defendant requested that the jury be polled. Each juror confirmed that the jury verdict was, in fact, the verdict of each individual juror.

On November 29, 1994, the trial court issued a sentencing order. Defendant was sentenced to one year in jail, with no reduction for good behavior. He now appeals to this Court.

III. DISCUSSION OF ISSUES

To the knowledge of the Court, this is the first rape case to be presented to the Suquamish Tribal Court of Appeals. Since this is a case of first impression, this Court does not have the benefit of prior reported Suquamish cases upon which to rely in helping us resolve the issues presented. We therefore look to the common law of other tribal courts for guidance in resolving these issues. However, there has not been a body of developed common law in connection with rape cases in other tribal courts. Therefore, this Court then looks to the common law of state courts and other surrounding jurisdictions.

The State of Washington has a number of reported appellate cases which deal with issues similar to those presented to this Court. Although these cases are not binding upon this Court, it is appropriate to review these cases for guidance. This is especially appropriate in that it appears that the Suquamish rape statute was modeled at least in part upon the rape statutes of the State of Washington. See infra Section III(G). We therefore review the decisions of Washington appellate

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courts to determine if the analysis applied is appropriate to adopt by analogy in the Suquamish Tribal Court.

A. Validity of Arrest Warrant

The Defendant was arrested by the Washington State Patrol pursuant to a bench warrant issued by the Suquamish Tribal Court on March 28, 1994. Since the arrest warrant indicated that the Defendant was to be detained without bail pending arraignment, Defendant was transported from the scene of the arrest to the King County Jail in Seattle, Washington.

Although we cannot tell from the record, the parties assert that the Defendant appeared for arraignment in the Suquamish Tribal Court on the same day that he was arrested.

The first arraignment proceeding in the record is a transcript of the April 7, 1994 arraignment hearing. During that hearing, the Defendant was orally advised that he was charged with the offense of rape in the first degree and the definition of that charge was read into the record in the presence of the Defendant. The Judge then proceeded to advise the Defendant of the rights afforded to him in the Suquamish Tribal Court.

At the conclusion of the reading of the rights, Defendant requested that an attorney be appointed to represent him. The Judge conducted an examination of the Defendant to determine whether his financial circumstances qualified him to the appointment of counsel at Tribal expense. He did so qualify.

The Judge then postponed further proceedings and continued the hearing to a later date to afford the Defendant to consult with his attorney prior to entering a plea to the charge. The Court set bail in the amount of $5,000.00, cash only, to insure the Defendant's appearance at the continued arraignment date.

On April 12, the continued arraignment proceeded. At that time, Defendant was represented by defense counsel. Defense counsel requested that a formal arraignment be conducted on that date. The charges were again verbally relayed by the prosecutor, the possible penalties for the offense were stated, and the Judge again verbally advised the Defendant of his rights as a criminal defendant.

The defense attorney then made a motion to dismiss the action for various procedural irregularities: First, the Suquamish Tribal Code required that a written complaint be filed prior to the commencement of criminal proceedings. No complaint had been filed up to that point.

Second, under the Suquamish Tribal Code an arrest warrant can only be issued after a determination of probable cause on the basis of a valid complaint filed with the Tribal Court. Since there was no complaint, the arrest warrant was not validly issued.

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Third, the arrest warrant did not comply with various Tribal Code requirements.

Fourth, there was no probable cause shown in the record for issuance of the arrest warrant.

Fifth, the Tribal Code requires that if a person is charged with an offense and is in custody, he shall be brought before a judge no later than 72 hours after arrest. Since the arraignment on April 12 was five days after the time of arrest, this was an additional ground for dismissal.

Defense counsel contended that since there was no complaint, there was no basis for either issuance of an arrest warrant, or an arraignment. The defense requested that the arrest warrant be quashed, the action be dismissed, and the Defendant be released.

In response, the prosecutor sat down and completed a handwritten complaint, and then filed it with the court.¹ That complaint was dated April 12, 1994. The court accepted the complaint and requested that it be served immediately upon the Defendant, who was present in court at that time. The record reflects that the complaint was so served.

The prosecutor addressed the arrest warrant issue as follows:

. . . With regard to the arrest warrant, the arrest warrant is no longer valid because it was executed. So, therefore, the motion to quash an arrest warrant which doesn't exist anymore cannot be heard. The warrant doesn't exist anymore.

If the Defendant wishes to try to sue the Tribe on a civil matter, that may be another matter. But, however, in this matter he was arrested on the arrest warrant which was previously issued by this Court. This Court had probable cause at the time of issuance of that arrest warrant.

Transcript, April 12, 1994 Arraignment, at 15.

As the basis for probable cause, the prosecutor then read a written witness statement from the victim into the record. When the prosecutor commenced reading that portion of the statement that related to events subsequent in time to the facts which form the basis of the charge in this case, defense counsel objected. The Trial Court indicated that unless defense counsel stipulated that the portion of the statement already read constituted probable cause, he could not rule on the objection without hearing the balance of the statement. A recess was taken so that defense counsel could

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confer with her client. Defense counsel subsequently stipulated, with qualification, that the portion of the statement already read did constitute probable cause to support issuance of an arrest warrant. The qualification concerned whether the victim's statement was a sworn statement. Defendant then entered a plea of not guilty to the charge.

The Suquamish Tribal Code (hereinafter "STC") is very specific with regard to criminal procedure. STC § 6.1.1 of the Criminal Procedure Code provides as follows:

Complaint. Prosecution for violation of the Suquamish Tribal Code shall be initiated by written complaint. Every complaint shall contain the name of the defendant, a short description of the acts constituting the offense, and the time and place of the offense. Except as provided in Section 6.1.18, no complaint shall be valid unless it bears the signature of the complaining witness or tribal prosecutor and is witnessed by a judge, clerk of the court, or notary public.

The portion of the Suquamish Criminal Procedure Code that relates to issuance of arrest warrants is STC § 6.1.3, which provides:

Arrest Warrants.

(a) Every judge of the tribal court shall have authority to issue warrants for the arrest of persons charged with violating the Suquamish Tribal Code. A judge shall issue an arrest warrant only after determining, on the basis of a valid complaint filed with the Tribal Court, that there is probable cause to believe an offense has been committed by the person to be arrested.

(b) Every arrest warrant shall contain the following: the name of the person to be arrested or, if the name is unknown, a name or description by which the accused can be identified with reasonable certainty; the date, location, and nature of the offense or offenses charged in the complaint; the date of issuance and signature of the judge.

STC § 6.1.3 (emphasis added).

The record in this case discloses that the bench warrant was dated March 28, 1994. The complaint was not filed with the Tribal Court until April 12, 1994. The arrest warrant therefore did not comply with § 6.1.3(a) because it could not have been issued on the basis of a valid complaint filed with the Tribal Court.²

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 39

The Tribe contends that the arrest warrant was validly issued. In her brief, the tribal prosecutor indicates that the arrest warrant was issued following a telephone conference with a police officer. It is unclear as to who else was a party to that telephone conference. Regardless, there is absolutely no basis whatsoever in the record before this Panel to support the prosecutor's assertion.

Furthermore, in her brief, the tribal prosecutor contends:

The only real complaint seems to be that a written Complaint was not on file at the time the warrant was issued. But the court clearly has the authority to issue a warrant based upon probable cause that the crime was committed . . . .

Brief of Respondent, at p. 17. There is no citation to support the Court's alleged clear authority to issue a warrant based upon probable cause. Therefore, the Court can only assume that Respondent could be referring to § 6.1.3 of the Suquamish Tribal Code, quoted above. That section clearly requires that the probable cause be contained within a written complaint filed with the Tribal Court. That clearly was not done here, and therefore the arrest warrant was invalid.

Since the arrest warrant was invalidly issued, there was no basis upon which to arrest or detain the Defendant prior to April 12, 1994. The provisions of the Suquamish Tribal Code are very specific and very clear concerning issuance of arrest warrants. Detention of an individual pursuant to an invalid arrest warrant is unauthorized. In the context of this case, the arrest warrant which was actually issued denied the Defendant his right to know the charges against him, because the arrest warrant did not contain a recitation of the probable cause for issuance of the warrant. See STC § 6.1.8(3). That was not brought to his attention until arraignment.

Since this Court holds that the arrest of the Defendant was invalid, we are faced with what remedy is appropriate in the context of this case for the unauthorized detention of Defendant from April 7 to April 12, 1994. That issue is addressed later in this opinion.

B. Expanded Jury Pool

The Defendant in this case is an enrolled Puyallup tribal member. The Puyallup Reservation is approximately sixty miles from the Suquamish Reservation. The act at issue in this case occurred on the Suquamish Reservation. The victim was a Suquamish tribal member. The jury was composed exclusively of Suquamish tribal members. The charge in this case carried the highest penalty allowed under the Suquamish Tribal Code – a mandatory one-year jail sentence, and a fine of up to $5,000.00.

Defendant's counsel raises this issue as a denial of due process to her non-Suquamish defendant client. The analogy used by defense counsel is that of a white defendant put on trial by an African American prosecutor, being represented by an African American defense attorney, being

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tried by a jury composed exclusively of African Americans, before an African American trial judge.

However, in this case, we have a Native American defendant put on trial in a tribal court before a jury of exclusively Native American members. The jury may not be from the same community as the Defendant, but that is not generally recognized as a constitutional right.

A closer analogy would be to an American citizen charged with a crime in Mexico, facing trial in a Mexican court, before a Mexican jury; or, an Iraqi citizen charged with a crime in the United States, facing trial in a U.S. court, before a jury of U.S. citizens. Even under the United States Constitution, a Washington resident charged with a crime in Oregon is not entitled to have Washington residents sit on the Oregon jury.

The Suquamish Tribal Code provides in its Rules of Criminal Procedure that jury members are to be Suquamish tribal members. However, those Suquamish tribal members may or may not reside on the reservation:

Persons Eligible for Service: Each jury panel shall be selected by lot from a current list of enrolled members of the Suquamish Indian Tribe residing in the Counties of Kitsap, King, Pierce, Jefferson and Snohomish. For purposes of jury selection, the address of a tribal member shall be the address contained on the tribal membership roll unless the court has actual notice of a different address.

Suquamish Tribal Court Criminal Procedure Rules, Rule 15.1. Under this Rule it is very possible that the Defendant may get a modified expanded jury pool. The jurors are not required to reside on the reservation, but may be residents of a number of surrounding counties in the State of Washington.

The essence of Defendant's argument is that the Defendant will be denied due process in a situation where the jury is composed exclusively of members of a relatively small community, where the victim is also a community member but the Defendant is not. The jurors may come to court with an actual or implied bias in favor of their community member, against the non-community member. However, this argument is less persuasive in view of the wide area from which Suquamish jurors may be drawn. The jury pool includes members who could live potentially 150 miles from the Reservation.

The record does not support an assumption that all of the empaneled jury members who served in this case resided on the Reservation. In fact, there is an indication that at least some of the jurors had to commute to the Reservation by ferry, indicating they lived in the Seattle metropolitan area, away from the Reservation.

Moreover, Defendant's position would be difficult, if not impossible, to implement. The

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Suquamish Tribal Court has jurisdiction over Suquamish tribal members. If a Suquamish tribal member fails to appear pursuant to a summons issued for jury duty, the Suquamish Tribal Court can hold that individual in contempt of court. See Suquamish Tribal Court Criminal Procedure Rules, Rule 15.8.³ The Suquamish Tribal Court may not have the same ability to summon jurors who are not members of the Suquamish Tribe. That ability would depend upon the voluntary cooperation of the local court system and prosecutor's office for enforcement. This is no way to insure due process.

In response to the defense's motion for an expanded jury pool, the trial judge reviewed the Suquamish Tribal Code. On the basis of Rule 15.1 (quoted above), the trial court judge denied the motion for an expanded jury pool. There was no discretion to exercise. There is no due process violation inherent in Rule 15.1. We find no error with the trial judge's denial of the motion for an expanded jury pool.

C. Unanimous Jury Verdict

Defendant requests this Court find that the Suquamish Tribal Code's provision which permits the jury to render its verdict in a criminal case by less than unanimous vote, to be unconstitutional. Defendant relies upon the Suquamish Constitution which provides, in part:

No member shall be denied any of the rights or guarantees enjoyed by non-Indian citizens under the Constitution of the United States . . . .

Suquamish Constitution, art. VI, Bill of Rights.

Under this provision, the Suquamish tribal prosecutor concedes that the Defendant in this case, even though he is a non-Suquamish member, is entitled to all rights afforded Suquamish tribal member defendants in this criminal proceeding. Therefore, the Defendant is entitled to the rights

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and guarantees granted by this provision of the Suquamish Tribal Constitution.⁴

However, the Court need not reach this issue. There is no dispute that the record before us shows the jury did in fact reach a unanimous verdict. At Defendant's request, the jury was polled by the Court after rendering its verdict. In answer to the question as to whether the jury's verdict was in fact the verdict of each individual juror, each juror answered "yes". See Transcript, Volume IV, p. 576. Therefore, all six jurors indicated that they reached the same verdict, to find the Defendant guilty of the crime of rape in the first degree as charged. This issue is moot.

D. Abuse in Discretion Re: Evidentiary Rulings

Relying on Washington Rules of Evidence (ER),⁵ Appellant argues that the trial court improperly admitted the following evidence which unfairly prejudiced the Defendant: (1) Defendant's 'gang' membership; and (2) Defendant's prior forcible sex with the victim.

ER 403 states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

ER 404 states:

(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution on a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of Witness. Evidence of the character of a witness, as provided in

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rules 607, 608 and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

ER 403 has a presumption in favor of the admissibility of relevant evidence and the burden of establishing unfair prejudice is on the party seeking exclusion. Erickson v. Robert Kerr, M.D. P.S., Inc., 125 Wn.2d 183, 190-191, 883 P.2d 313 (1994); Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994).

On appellate review, a trial court's balancing under ER 403 is reviewed under a manifest abuse of discretion standard. Carson, 123 Wn.2d at 226. Abuse of discretion occurs if the decision is "manifestly unreasonable or based upon untenable grounds or reasons." Industrial Indem. Co. of N.W., Inc, v. Kallevig, 114 Wn.2d 907, 926, 792 P.2d 520 (1990); Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984).

1. Gang Membership

Evidence of a defendant's 'gang' membership may be admitted into evidence if the probative value outweighs the prejudice to the defendant. United States v. Lewis, 910 F.2d 1367, 1372 (7th Cir. 1990); ER 403.

At the trial, Judge MacDougall allowed a witness to testify on the Defendant's 'gang' membership. Applying the ER 403 balancing test, Judge MacDougall stated:

. . . I will allow her to testify to her belief that the defendant was a gang member and, if she so testifies, to the fact that belief was part of her reason for being afraid of the defendant and not resisting him more than she may have done.

I think that to go beyond that into any details of extrinsic activities that may or may not be related to this gang or to the gang, would be going beyond the boundary. . . .

I believe that evidence of matters which occurred after the rape are not at all relevant to whether or not a rape was committed. They may be relevant to the state of mind of the alleged victim at the time of the crime in the sense if she was afraid at the time of the crime, then presumably she was afraid immediately following the time and for a period thereafter.

Trial Transcript, Vol. II at 206-07. Thus, the evidence of the defendant's 'gang' membership was not admitted into evidence to show the character of the Defendant, but, rather was introduced on the issue of 'forcible compulsion' because it demonstrated that the victim was afraid of the Defendant.

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Accordingly, the Panel holds that in this particular case, Judge MacDougall did not abuse his discretion in admitting evidence of the Defendant's gang affiliation because he narrowly tailored the evidence admitted so that the probative value of the evidence outweighed the prejudice to the Defendant.

2. Prior Forcible Sex With Victim

At the trial, Judge MacDougall ruled that evidence of forcible sex between the Defendant and the victim when she was fourteen was admissible into evidence because it was "clearly relevant to her state of mind on that issue." Trial Transcript, Vol. II at 209. Appellant argues that the admission of past misconduct evidence is more likely to be prejudicial rather than probative.

In making his decision, Judge MacDougall stated in part:

I think I have to let that one in because it does not seem to me that it pertains rather specifically to the total picture regarding the sexual relationship of these parties as distinguished from other irrelevancies, such as the drive-by-shooting. This is closer to the issue which is really faced here. And it strikes me too that it cuts both ways. It seems to me that the jury is going to be looking at this from both sides of the coin . . . And, of course, the defense will be open to cross examine the witness on this point.

Trial Transcript, Vol. II at 211-12. Thus, the evidence of the past forcible sex between the Defendant and the victim was not admitted into evidence to show the character of the Defendant under ER 404(a), but, rather because it demonstrated that the victim was afraid of the Defendant. See ER 404(b). Additionally, any prejudice the Defendant may have suffered from the admission of the evidence is minimized by the opportunity of cross-examination.

Accordingly, we hold that the trial court did not abuse its discretion in admitting evidence of the Defendant's past sexual misconduct with the victim because the probative value of the evidence outweighed the prejudice to the Defendant.

E. Trial Court's Failure to Rule on Motions

Appellant argues that the trial court judge abused his discretion by failing to rule on a motion to dismiss on double jeopardy grounds⁶ and failing to rule on a motion for a mistrial.⁷

A trial court, as a general rule, has the discretion to rule on motions in whatever order the

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judge believes is most logical and efficient. See Suquamish Tribal Court Criminal Procedure Rules (STCCrR) 14.1; State v. Port of Peninsula, 89 Wn.2d 835 (1965). The trial judge's action is reviewable for abuse of discretion only.

STCCrR § 14.1, Oral Motions, states:

Oral motions made in open court during a hearing or trial may be heard forthwith or at a later date at the discretion of the Court. The Court may require such motions to be reduced to writing as a condition of hearing.

(Emphasis added). Although STCCrR § 14.0 is silent on the procedures governing when a judge fails to rule on an oral motion, it is clear to the Panel that the court is vested with discretion in handling oral motions.

Because STCCrR § 14.0 is silent on the issue of failure to rule on a motion, the Panel will look to state law for guidance. When the trial court enters judgment without expressly determining a pending motion, the motion is considered impliedly overruled. Maust v. Palmer, 94 Ohio App.3d 764, 641 N.E.2d 818 (1994); Solon v. Solon Baptist Temple, Inc., 8 Ohio App.3d 347, 457 N.E.2d 858 (1982); see, also, Hayes v. Smith, 62 Ohio St. 161, 56 N.E. 879 (1900) (where court fails to rule on objection during trial, it will be presumed to have overruled objection); Berna-Mork v. Jones, 173 Wis.2d 733, 496 N.W.2d 637, 641 (1992). A motion which is not acted on by the trial court is deemed denied. Atchison, Topeka and Santa Fe Ry. Co. v. Parr, 96 Ariz. 13, 15, 391 P.2d 575, 577 (1964); Hicks v. Cornelius, 466 So.2d 647, 648 (Ala. 1984) (failure to rule within the applicable time period results in the motion being deemed denied by operation of law).

While it is admittedly important that all motions be decided by a trial judge, Brice v. State, 254 Md. 655, 255 A.2d 28 (1968), it is the responsibility of the movant to bring them to the attention of the trial judge prior to the conclusion of the trial. Johnson v. Nadwodny, 55 Md. App. 227, 461 A.2d 67, 73 (1983); White v. State, 23 Md. App. 151, 156, 326 A.2d 218 (1974).

Turning to the facts before us and to both motions the Appellant states were not ruled on, the Panel has reviewed the transcripts of the April 12, 1994 arraignment hearing and the October 1994 trial and the records contain no statements by Appellant's counsel timely reminding the trial court judge that he had failed to rule on the motions. Therefore, the Panel holds that the motions were impliedly denied and the trial court judge did not abuse his discretion by failing to rule on the motions.

F. Double Jeopardy Argument

Defendant contends that he has been subjected to double jeopardy in this case due to the form of the Orders used by the Suquamish Tribal Court in holding him over for the second arraignment

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 46

hearing and for trial.

At the conclusion of the initial arraignment on April 7, 1994, the Court signed a document entitled "Final Commitment". That Order was addressed to the Keeper of the Jefferson County Jail, and stated as follows:

The above named defendant having this date been found guilty of violation of Chapter(s) 7 Section(s) 17.04 of the Suquamish Tribal Law and Order Code, by committing the offense of:

RAPE 1ST DEGREE

I have adjudged that he/she serve five days in jail. You are therefore commanded to receive him in custody for the period stated unless otherwise ordered by the Court.

BAIL: $5000.00 CASH ONLY

Pursuant to this Order, the Defendant was held until April 12, when the continued arraignment was conducted in Tribal Court.

At the conclusion of the continued arraignment hearing on April 12, the Court issued another document entitled "Final Commitment". That document contained different language:

The above named defendant having been charged in this court with a violation of Chapter(s) 7 Section(s) 17 of the Suquamish Tribal Law and Order Code, the offense of:

RAPE 1ST DEGREE and this court finding there is probable cause to detain this defendant:

You are therefore commanded to receive him in custody for the period from today until APRIL 18, 1994, when he is to return to this court for further hearing;

OR UNTIL POSTING OF CASH BAIL OF $1000.00.

This Order was signed by the Judge on April 12, 1994.

Even though both Orders are entitled "Final Commitment", it is clear that they were both intended as Orders of Commitment to simply hold the Defendant for the period specified. This is clear from the language of the Order dated April 12, 1994. It is not as clear with respect to the earlier Order.

Defendant's double jeopardy argument would seem to apply based on the language of the April 7, 1994 Final Commitment Order. However, we must look behind the face of that document to inquire into what occurred on that particular date, which resulted in issuance of that Order.

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 47

This Court agrees that the language of the April 7 Order is inartful. The language indicates that the Defendant had in fact been found guilty of first degree rape. It is clear from the record that was not the case, and that the Court simply used the wrong form. That Order of Commitment was only effective to hold the Defendant in jail for five days.

Since the Defendant had not been found guilty on April 7, 1994, double jeopardy does not apply. This assignment of error is therefore not persuasive.

G. Elements of First Degree Rape

Appellant argues that the trial court misinterpreted STC § 7.17.04 and consequently gave an erroneous jury instruction on the elements which must be proven to find a defendant guilty of Rape in the First Degree.

STC § 7.17.04, Rape in the First Degree, states as follows:

(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person, where the perpetrator or an accessory:

(a) Uses forcible compulsion;

(b) Uses or threatens to use a deadly weapon; or

(d) Inflicts serious physical injury; or

(e) Feloniously enters into the building or vehicle where the victim is situated.

Based upon this code provision, the Court gave the following instruction to the jury, defining Rape in the First Degree:

A person commits the crime of rape in the first degree when that person engages in sexual intercourse with another person by forcible compulsion.

Jury Instruction No. 8.

"Forcible compulsion" was defined to the jury as:

Forcible compulsion means force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to oneself or another person or in fear of being kidnapped or that another person will be kidnapped.

Jury Instruction No. 9; See, also, STC § 7.17.01(5).

The dispute between the parties revolves around the absence of a connecting word at the end

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 48

of subsection (a). Appellant argues we should insert an "and" after the semicolon at the end of subsection (a), but the prosecution contends we should imply an "or" rather than an "and”. In the Appellant's view, forcible compulsion is a required element, but an additional aggravating factor, drawn from subsections (b) to (e), is also a required element of the crime. On the other hand, the prosecution contends that this crime can be proven by showing either forcible compulsion or any one of the other subsections of STC § 7.17.04(1).

In determining this issue, we resort primarily to Suquamish tribal law. No previous cases decided by this Court have construed this provision of the Suquamish Tribal Code. We therefore look to the law of the surrounding jurisdiction for guidance in our analysis.

Where statutory language is plain and unambiguous, a statute's meaning must be derived from the wording in the statute itself. There is no room for judicial interpretation. In re Lehman, 93 Wn.2d 25, 604 P.2d 948 (1980). The statutory language in this case, however, is not plain and unambiguous. Both parties are requesting we construe the statute by adding either an "and" or an "or" to the statute. Ambiguous statutes, such as the one in the present case, should be interpreted in a reasonable manner, and courts should strive to seek out the intent of the legislative body. Odessa Trading Co. v. Federal Crop Ins. Corp., 6 Wn. App. 423, 493 P.2d 809 (1972).

We therefore agree with the dissent in that the primary role of this Court should be to interpret this statute consistent with the intent of the Suquamish Tribal Council. In reviewing the statutory scheme of the Suquamish rape statutes, and comparing those with the rape statutes in the State of Washington, both statutory schemes are very similar. In the State of Washington, Rape in the First Degree is defined as follows:

(1) A person is guilty of Rape in the First Degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:

(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or

(b) Kidnaps the victim; or

(d) Feloniously enters into the building or vehicle where the victim is situated.

RCW 9A.44.040(1) (emphasis added). It is clear under this statute that forcible compulsion is an element of the crime that is separate and apart from one of the four listed aggravating factors. This is how the Appellant would have us construe the Suquamish Code.

However, under the Washington statute, forcible compulsion, in and of itself, is one of the ways in which Rape in the Second Degree can be committed:

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 49

(1) A person is guilty of Rape in the Second Degree when, under circumstances not constituting Rape in the First Degree, the person engages in sexual intercourse with another person:

(a) By forcible compulsion;

(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated;

(c) When the victim is developmentally disabled and the perpetrator is a person who is not married to the victim and who has supervisory authority over the victim;

. . .

RCW 9A.44.050(1) (emphasis added). Contrast this provision with Second Degree Rape as defined by the Suquamish Tribal Code:

A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person not married to the perpetrator when the victim is incapable of consent by reason of being physically helpless or mentally impaired.

STC § 7.17.05(1). In contrasting the Washington First Degree Rape and Second Degree Rape statutes with the similar provisions in the Suquamish Tribal Code, we are left with the firm conviction that the Suquamish Tribal Council modeled their rape statutes upon the analogous statutes from the State of Washington.⁸ The language is almost identical.

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 50

It is also apparent that the Suquamish Tribal Council elected to take the forcible compulsion element from the State’s Rape in the Second Degree, and add it to their enactment of the crime of Rape in the First Degree as a separate method by which the crime of Rape in the First Degree can be committed. In comparing RCW 9A.44.040 with STC § 7.17.04, it appears the Suquamish Tribal Council deliberately removed "by forcible compulsion" from subsection (1) of STC § 7.17.04, and deliberately adopted the forcible compulsion element from the Washington Second Degree Rape statute (RCW 9A.44.050(1)(a)), and added that to the Suquamish First Degree Rape Statute (STC § 7.17.04(1)(a)).

In reviewing jury instructions, the standard of review is whether the instructions are correct as a matter of law. State v. Negrin, 37 Wn. App. 516, 521 (1984);634 P.2d 868 (1991). The test for reviewing instructions is as follows:

When the record discloses an error in an instruction given on behalf of the party in whose favor the verdict was returned, the error is presumed to have been prejudicial, and to furnish ground for reversal, unless it affirmatively appears that it is harmless . . . . A harmless error is an error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.

State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977). As long as the instructions properly inform the jury of the elements of the charged crime, any error in further defining terms used in the elements is not a reversible error. State v. Stearns, 118 Wn.2d 247, 250, 830 P.2d 355 (1992).

Construing the statute as a whole, it appears that the intent of the Suquamish Tribal council in enacting STC §7.17.04 was to provide five alternative ways for a perpetrator or accessory to commit the crime of Rape in the First Degree. Because subsections (b), (c) and (d) are all followed by the disjunctive word “or,” we hold that it was only an omission that the council did not include the word “or” after subsection (a). Accordingly, the jury was properly instructed in Jury Instruction No. 8 on the offense of Rape in the First Degree under STC § 7.17.04.

H. Conviction Against Weight of the Evidence

Defendant assigns error to his conviction for first degree rape, contending it was against the weight of the evidence. This Court is limited in reviewing that assignment of error.

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 51

It is the province of the jury to determine the credibility of witnesses and evidence presented to it. When reviewing the sufficiency of the evidence supporting a conviction we must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime.” State v. Aver, 109 Wn.2d 303, 310-311, 745 P.2d 479 (1987), quoting State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (emphasis in original).

The elements of first degree rape upon which the conviction was based are that a person engage in sexual intercourse with another person where the perpetrator uses forcible compulsion. STC § 7.17.04(1)(a).

The issue before us is whether the evidence was sufficient for the jury to find beyond reasonable doubt that the defendant used forcible compulsion. Forcible compulsion includes, but is not limited to, a threat, express or implied, that places a person in fear of death or physical injury. STC § 7.17.01(5).

The evidence clearly showed the victim to be in fear of the defendant. Her fears were based upon his raping her when she was fourteen, his gang membership, and his prison record. A finding of forcible compulsion, however, “cannot be based solely on the victim’s subjective reaction to particular conduct. There must be a ‘threat’ -- a communication of an intention to cause bodily injury.” State v. Weisberg, 65 Wn. App. 721, 725, 829 P.2d 252 (1992).

“To have forcible compulsion, the implied threat must cause the victim’s fear. . . .” Weisberg, 65 Wn. App. at 726 (emphasis in original). The Court is satisfied that the jury could reasonably conclude from the evidence presented that the defendant’s striking the victim moments before undergoing sexual intercourse without her consent⁹ amounted to forcible compulsion.

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 52

I. Sentencing Errors

The Appellant argues that the trial court erred in sentencing by not crediting the Appellant's sentence for the jail and home detention time previously served by Appellant.

In the State of Washington, presentence detention time is required to be credited against the sentence ultimately imposed. State v. Phelan, 100 Wn.2d 508, 517, 671 P.2d 1212 (1983); Reanier v. Smith, 83 Wn.2d 342, 517 P.2d 949 (1974); In re Phelan, 97 Wn.2d 590, 647 P.2d 1026 (1982); Staph v. United States, 367 F.2d 326 (D.C.Cir. 1966). Such credit includes presentence confinement time served by home detention. State v. Speaks, 119 Wn.2d 204, 206, 829 P.2d 1096 (1992). Credit is not, however, mandated for nondetention probation time. Phelan, 97 Wn.2d at 592.

Turning to the facts of this case, Judge MacDougall held that the Defendant/Appellant is "clearly entitled to credit for jail time prior to his conviction, he is not entitled as a matter of law to have the period of 'house arrest' treated as 'jail time' for this purpose." Order on Motion for Credit for Certain Time Served, at p. 3. Though the Panel respects the difficult decisions that Judge MacDougall had to make in this matter, the Judge erred as a matter of law on his ruling denying the credit of 'house arrest' jail time.

We hold the trial court has discretion to consider “house arrest” in determining an appropriate period of post-conviction confinement as part of Defendant's sentence. The trial judge should be provided an opportunity to exercise this discretion. A record should be made sufficient to demonstrate that such discretion was indeed exercised. For this reason, this matter is remanded to Suquamish Tribal Court for a sentencing hearing consistent with this opinion.

J. Court Demonstration

Appellant argues that he was prejudiced because hand gestures were made by spectators, in view of the jury, at the trial when a witness was testifying.¹⁰ The panel does not agree.

Although courtroom demonstrations may be disruptive in nature, it is within the sound discretion of the trial judge to determine the effect of such outbursts or demonstrations. In the absence of a clear showing that the jury was improperly affected thereby to the prejudice of the defendant, the ruling of the lower court in denying a new trial will not be disturbed. State v. Rowray, 18 Kan. App.2d 772, 860 P.2d 40, 43 (1993); Holbrook v. Flynn, 475 U.S. 560, 570, 106 S.Ct. 1340,

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 53

1346 89 L. Ed.2d 525 (1986); see, also, State v. Franklin, 167 Kan. 706, 208 P.2d 195 (1949) (court held that an outburst from the murder victim's mother while the defendant was testifying, absent a clear showing of prejudice, does not warrant a new trial); State v. McNaught, 238 Kan. 567, 580, 713 P.2d 457 (1986) (the defendant has failed to show that he was prejudiced in any way by the wearing of MADD and SADD buttons by spectators in the courtroom).

Turning to the facts before us, hand gestures were made while the victim was testifying.¹¹ In addition, the Defendant made hand gestures as well. Judge MacDougall immediately dismissed the jury and properly inquired into the nature of the gestures. It is not clear whether any of the jurors actually witnessed any of the hand gestures. After inquiring into the gestures, Judge MacDougall instructed all parties and spectators to refrain from making any gestures in court. The Panel finds that the Appellant has failed to show that he was actually prejudiced by such gestures and Judge MacDougall did not abuse his discretion by not granting a mistrial.

K. Impeachment Evidence

Appellant argues that the trial court erred in refusing to admit evidence of juvenile convictions of the victim. The Panel does not agree.

Evidence of juvenile adjudications is generally not admissible. ER 609 (d);¹² State v.

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 54

Mitchell, 117 Wn.2d 521, 535, 817 P.2d 398 (1991).

Specifically, ER 609 (d), Juvenile Adjudications, states:

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(Emphasis added).

On direct examination the Tribe questioned the victim on a prior juvenile conviction for theft and taking a motor vehicle without permission. On cross, the Defendant attempted to bring in records that the victim had been originally investigated for robbery. Judge MacDougall ruled that the victim could not be impeached on the robbery charge because she was not convicted of it.¹³

ER 609(d) clearly states that in order for a witness to be impeached on a prior juvenile offense there must be a "finding of guilt." In this case, the victim was never convicted of robbery and Judge MacDougall did not abuse his discretion in excluding any evidence concerning the victim's robbery charge.

IV. SUMMARY AND CONCLUSION

For the foregoing reasons, Defendant's jury verdict of guilty is affirmed. This case is remanded to the trial court for a sentencing hearing consistent with the terms of this opinion. At that hearing, the trial court shall:

(1) Consider what remedy is appropriate for the Tribe's failure to follow appropriate arrest warrant procedures, and specifically, whether the monetary fine imposed as a part of sentencing should be reduced as part of such remedy, taking into account Section III(A) of this Opinion; and

(2) Consider the period of pre-trial "house arrest" confinement, and shall exercise its discretion to take that confinement into account in determining an appropriate sentence in this case, and shall make a record of this exercise of discretion, in accordance with Section III(I) of this Opinion.

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 55

Wynne, J. (concurring in part, dissenting in part):

While I agree with much of the Majority's opinion, I cannot agree with the majority's analysis of Section G of this opinion. For the below reasons, I respectfully dissent as to Section G of the above opinion.

Appellant argues that the trial court misinterpreted Suquamish Tribal Code ("STC") § 7.17.04 in that the court failed to instruct the jury on other elements which must be proved for the offense of Rape in the first Degree.

STC § 7.17.04, Rape in the first Degree, states in pertinent part:

(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person, where the perpetrator or an accessory:

(a) Uses forcible compulsion;

(b) Uses or threatens to use a deadly weapon; or

(d) Inflicts serious physical injury; or

(e) Feloniously enters into the building or vehicle where the victim is situated.

The instruction given to the jury defining Rape in the First Degree states:

A person commits the crime of rape in the first degree when that person engages in sexual intercourse with another person by forcible compulsion.

Jury Instruction No. 8.

'Forcible compulsion' was defined to the jury as:

Jury Instruction No. 9.

As stated above, jury instructions should tell the jury in clear terms what the law is. Jurors should not have to speculate about it, nor should counsel have to engage in legalistic analysis or argument in order to persuade the jury as to what the instructions mean or what the law is. State v. Davis, 27 Wn. App. 498, 506, 618 P.2d 1034 (1980). As long as the instructions properly inform

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 56

the jury of the elements of the charged crime, any error in further defining terms used in the elements is not a reversible error. State v. Stearns, 118 Wn.2d 247, 250, 830 P.2d 355 (1992).

Appellant argues that since there is no connecting word(s) following STC § 7.17.04(a) then the trial court should have implied a conjunctive connector ('and') between STC § 7.17.04(a) and STC § 7.17.04(b). Trial Transcript, Vol. III, pages 419-432); Brief of Appellant, at 53-56. Thus, Appellant argues that in order to be convicted of Rape in the First Degree, the Defendant must have used 'forcible compulsion' (STC § 7.17.04(a)) 'and' one of four aggravating factors must have been present (STC §§ 7.17.04(b)-(e)). I agree.

As discussed above, the primary role of this Panel in interpreting this statute is to determine the intent of the Suquamish Council when enacting STC Section 7.17.04 and to give effect to that intent. Burlington Northern, Inc. v. Johnston, 89 Wn.2d 321, 572 P.2d 1085 (1977). To this end, the statute must be read as a whole; intent is not to be determined by a single sentence. State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977).

Where statutory language is plain and unambiguous, a statute's meaning must be derived from the wording of the statute itself and there is no room for judicial interpretation. Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972); King County v. Seattle, 70 Wn.2d 988, 425 P.2d 887 (1967); State v. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976); Washington State Human Rights Commission v. Cheney School District No. 30, 97 Wn.2d 118, 121, 641 P.2d 163 (1982); In re Lehman, 93 Wn.2d 25, 604 P.2d 947 (1980); Garrison v. State Nursing Bd., 87 Wn.2d 195, 550 P.2d 7 (1976).

In resorting to statutory construction, penal statutes must be strictly construed. State v. Enloe, 47 Wn. App. 165, 171, 734 P.2d 520 (1987); 3 N. Singer, Sutherland Statutory Construction § 59.03 at 12-13 (4th ed. 1986). Strict construction of a penal statute means merely that the punitive sanctions must be confined to such matters as are clearly and manifestly within the statutory terms and purposes. It does not mean that a forced, narrow, and over-strict construction should be applied to defeat the obvious intent of the legislature. State v. Rinkes, 49 Wn.2d 664, 667, 306 P.2d 205 (1958). Statutes should be construed to effect their purpose, and strained, unlikely, or absurd consequences resulting from a literal reading are to be avoided. State v. Neher, 112 Wn.2d 347, 350, 771 P.2d 330 (1989); State v. Stannard, 109 Wn.2d 29, 36, 742 P.2d 1244 (1987); State v. McDougal, 120 Wn.2d 334, 350-51, 841 P.2d 1232 (1992).¹⁴

In addition, punctuation may or may not be the determining factor in statutory construction. Punctuation alone is a fallible standard and the last resort as an aid in the interpretation of a statute.

4 NICS App. 32, SUQUAMISH TRIBE v. LAH-HUH-BATE-SOOT (November 1995) p. 57

Fox v. Groff, 16 Wn. App. 893, 896-97, 559 P.2d 1376 (1977); State v. Fabbri, 98 Wn. 207, 209, 167 P.133 (1917); State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963); Connecticut Chiropody Society, Inc. v. Murray, 146 Conn. 613, 617, 153 A.2d 412; 2 Sutherland, Statutory construction (3d ed.), p. 477; See also State v. Lohr, 266 N.W.2d 1, 4 (Iowa 1978) (Punctuation is seldom a highly persuasive factor in statutory construction and will not defeat evident legislative intent).¹⁵

Construing the statute as a whole, it is unclear to the Panel what the specific intent of the Suquamish Council was in enacting STC § 7.17.04. However, viewing the statute to avoid any strained or absurd results, it appears that subsections (b), (c), (d), and (e) are logically related to 'forcible compulsion.' That is, forcible compulsion, as defined above, will always be accompanied by at least one of these aggravation factors: use or threatened use of a deadly weapon; kidnapping the victim; infliction of serious injury; or the felonious entry of a vehicle or building where the victim is. In other words, STC § 7.17.04 requires that subsection (a) 'and' at least one of subsections (b), (c), (d) or (e) to be present before a person can be convicted of Rape in the first Degree.

Using the above standard to review jury instructions, it is my opinion that the trial court committed a reversible error by not correctly stating the elements of Rape in the First Degree in Jury Instruction No. 8.

Publisher’s note: To protect their confidentiality, minors, persons determined to be incompetent, victims of sex-related crimes, and other persons may be identified only by their initials in the online version of this opinion.

In examining the handwritten complaint filed by the Tribe on April 12, 1994, we find that it technically does not comply with § 6.1.1 of the Tribal Code, in that it does not describe the place of the offense charged. However, in the context of this case, we find that this omission is not fatal in that on the date that the complaint was filed, the Defendant was notified of the location of the offense by reading the victim’s witness statement into the record, which did describe the location of the offense. The Defendant was therefore notified of the location of the offense. However, filing a complaint that is defective in any way is a dangerous practice.

We note that the bench warrant also did not comply with § 1.1.3(b) of the Suquamish Tribal Code. The bench warrant did not contain the date or location of the offense charged, and did not contain the signature of the Judge. The bench warrant did contain what appears to be a stamped signature of the Chief Judge of the Suquamish Tribal Court but it appears that the stamped signature was placed on the bench warrant by the Court Clerk. There is no indication that the Chief Judge viewed the bench warrant prior to its issuance.

Suquamish Tribal Court Criminal Procedure Rule 15.8 states:

Penalties for Failure to Appear: A person summoned for jury service who fails to appear at the time and on the date for which summoned may be summoned to appear in open court and show cause why he/she should not be held in contempt of the Tribal Court pursuant to STC 3.8.21. The form and content of the summons shall be as set forth in Section 2.2 (e) above. If the Court finds no acceptable excuse for the failure to appear, the Court may impose a civil penalty of not more than $200.00 or may refer the matter to the Tribal Prosecutor for prosecution as a criminal violation of STC 3.8.21.

The rights or guarantees enjoyed by non-Indian citizens under the Constitution of the United States have been interpreted by the decisions of the United States Supreme Court. It would therefore appear that this language in the Suquamish Tribal Constitution would require us to adopt the interpretation of those rights as set forth by the United States Supreme Court. However, this Court has previously determined such precedent should not be blindly followed. See Suquamish Indian Tribe v. Purser, 2 NICS App. 176, 180, (Suquamish 1992), ___Ind. L. Rptr. ___ (1992).

The Washington Criminal Rules of Evidence are applicable to all criminal trials in the Suquamish Tribal Court. STC § 3.8.12; Suquamish Tribal Court Rules of Criminal Procedure, § 9.1.

Arraignment Transcript, April 12, 1994, at 9, 12.

Trial Transcript, Vol. III at 457.

This conclusion that the Suquamish rape statutes are modeled on the Washington scheme is further reinforced by comparing the Suquamish and Washington Third Degree Rape Statutes. Under the Suquamish Tribal Code, Third Degree Rape is defined as follows:

A person is guilty of rape in the third degree when under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person:

(a) Where the victim did not consent as defined in 7.17.01(6) to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct, or

(b) Where there is threat of substantial unlawful harm to property rights of the victim.

STC § 7.17.06(1). Compare this with the Washington Third Degree Rape Statute:

(1) A person is guilty of Rape in the Third Degree when, under circumstances not constituting Rape in the First or Second Degrees, such person engages in sexual intercourse with another person, not married to the perpetrator:

(a) where the victim did not consent . . . to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct, or

(b) where there is threat of substantial unlawful harm to property rights of the victim.

RCW 9A.44.060(1).

The record is replete with evidence that the victim did not consent to sexual intercourse, and both verbally and non-verbally indicated that lack of consent:

Transcript, Vol. III, p. 352, lines 9-16:

Q. What happened then?

A. Then he went for my -- I was wearing jeans. He went for my jeans, my button. And I put my hand there, and he just, with his hand, shoved my hand. And I said, “I don’t know about this.” And I said, “I thought you wanted to talk.”

Q. What did he say?

A. Nothing.

Transcript, Vol. III, p. 353, lines 21-25, and p. 354, lines 1-7:

Q. What happened then?

A. He was, you know, kind of lower, his body, you know, him, and he scooted up a little bit and started kissing me. And then he took his own pants off, and I pushed on his chest, you know, with my hands and kind of, you know, like, “Off.” But he got closer. Then whatever I said he didn’t hear, you know.

Q. Let’s talk about what you said.

A. I said again, “I thought you wanted to talk.” He didn’t say anything. And then he started to have sexual intercourse with me. And I said, “Stop.” I said, “No, I don’t want to . . . .”

See, generally, Trial Transcript, Vol. II at 303-17.

Though it is not clear exactly what any of the hand gestures meant, it is believed that the gestures were a spiritual prayer to protect the testifying witness. See Trial Transcript, Vol. II at 303-11.

(a) General Rule. For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction, supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

The Court’s reasoning was not transcribed. Trial Transcript, Vol. III at 391.

It has been called a golden rule of statutory interpretation that unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result. McDougal, 120 Wn.2d at 351.

"[L]egislatures are not grammar schools; and, in this county at least, it is hardly reasonable to expect legislative acts to be drawn with strict grammatical or logical accuracy . . . . For that reason . . . the construction of a statute should be based on the whole statute.” State v. Lynch, 137 Vt. 607, 613, 409 A.2d 1001, 1005 (1979); Hill v. Conway, 463 A.2d 232, 234 (Vt. 1983). Accordingly, it is a “familiar rule that punctuation marks may be disregarded when they lead to results inconsistent with the apparent intention of the [legislature] as expressed in the statute itself . . . .” Nubis v. Cornwall, 95 Conn. 720, 723, 112 A. 663 (1921).