4 NICS App. 133, REVAY v. CHEHALIS TRIBE (October 1996)

IN THE CHEHALIS TRIBAL COURT OF APPEALS

    CHEHALIS INDIAN RESERVATION

    OAKVILLE, WASHINGTON

    Joseph Revay, Jr., Appellant

    v.

    Chehalis Tribe, Respondent

    No. CHE-2/96-035 (October 17, 1996)

SUMMARY

Appeal of trial court order finding casino employee guilty of fraud. Trial court denied employee’s motion to dismiss, and proceeded with trial over employee’s objections that he had not received discovery requested from the Tribe. Finding that the trial court has a duty of enforce its own subpoenas, we reverse.

FULL TEXT

Before:            Elbridge Coochise, Chief Justice; Douglas W. Hutchinson, Justice; Rose E. Purser, Justice.

Appearances:  Deborah Wagner, Prosecutor, for Respondent Chehalis Indian Tribe. Appellant Joseph Revay, Jr. did not appear.

This matter came before the Chehalis Tribal Court of Appeals pursuant to Appellant Joseph Revay’s Notice of Appeal filed on May 24, 1996. Appellant appeals the Order of the Chehalis Tribal Court, dated May 22, 1996, finding him guilty of fraud. Appellant timely filed his Notice of Appeal.

The appellate hearing was scheduled to commence at 11:00 a.m. on August 13, 1996. The Tribe appeared through its prosecutor, Deborah Wagner. The panel waited forty-five minutes for Appellant before starting the proceedings in his absence. At that time, Respondent Tribe moved to dismiss the appeal based on Appellant’s failure to appear. The appellate panel, citing §§ 5.03.030 and 5.08.060 of the Chehalis Appellate Rules, denied Respondent’s motion.

Section 5.03.030 provides that the scope of review of the Court of Appeals is limited to the trial court record, appellate briefs, and oral argument. Section 5.08.060 provides that the parties may present oral arguments to the court. Neither code provision, however, prohibits the Court of Appeals from proceeding in the Appellant’s absence. Therefore, this Court proceeded to hear oral argument from the Tribe and now renders its decision.

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I. SCOPE OF REVIEW

Title 5 of the Chehalis Tribal Code governs appellate proceedings. Section 5.03.030 addresses this Court’s scope of review and provides:

The Court of Appeals shall limit its review to 1) the record of proceedings from the Chehalis Court of Justice, 2) errors of law and procedure raised by the appellant in his or her written brief, and 3) oral argument presented at a hearing before the Court of Appeals.

Appellant did not submit a written brief, nor did he appear at the appointed date and time to present oral argument to this Court. Therefore, our scope of review is limited to the record of the proceedings below and oral argument from Respondent Tribe.

II. JURISDICTION

This Court has personal jurisdiction over Appellant Joseph Revay, Jr. because he is a member of the Chehalis Indian Tribe. The act which is the subject of this appeal occurred within the exterior boundaries of the Chehalis Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this matter pursuant to Title IV, Chapter 4 of the Chehalis Tribe’s Criminal Code.

III. STATEMENT OF FACTS

On February 12, 1996 the Chehalis Indian Tribe filed a criminal complaint against Joseph A. Revay, Jr. The complaint charged Mr. Revay with fraud, a violation of § 4.03.030 of the Chehalis Tribe’s Revised Criminal Code, for an offense allegedly committed on the evening of November 20, 1995 at the Lucky Eagle Tribal Casino (hereinafter “Casino”).

Trial was set for April 15, 1996. Prior to trial, the court issued subpoenas to several individuals to appear as witnesses. Among those ordered to appear were Ray Accomando, Executive Director of the Chehalis Gaming Agency; Kelly Stanton, Chief Inspector for the Casino; and Chris Buitron from the Casino’s Human Resources Department. Mr. Accomando, Mr. Stanton, and Mr. Buitron also received subpoenas duces tecum ordering them to “produce any and all documentation pertaining to . . . [the] November 20, 1995 shift . . . .”

The April 15, 1996 trial was continued to May 13, 1996. Before the start of trial proceedings, Mr. Revay moved the court to dismiss the case on the ground that he had not received all the evidence he had subpoenaed. Among the materials Mr. Revay requested but did not receive prior to trial were credit card receipts, video and audio tape from the register/hostess station, an employee handbook, manager pass-down book, and time sheet, all relating to the evening of November 20, 1996.

4 NICS App. 133, REVAY v. CHEHALIS TRIBE (October 1996) p. 135

In response to Mr. Revay’s motion, the Tribe stated that the material which had not been produced would not be used in the Tribe’s case against Defendant. Mr. Revay argued that the items were, nonetheless, necessary for the preparation of his defense. The trial court denied Defendant’s motion to dismiss, stating: (1) that Mr. Revay had the obligation to subpoena those persons who were actually in possession or control of the requested material and (2) that none of the material in question would be used against him in the prosecution of his case. The trial court then proceeded with trial, subsequently finding Mr. Revay guilty of fraud and imposing fines, fees, and jail time.

Mr. Revay timely filed his notice of appeal, which this Court accepted on May 31, 1996. Oral argument was held on August 13, 1996.

IV. ISSUE ON APPEAL

The sole issue on appeal in this case is whether the trial court erred in proceeding with trial over Appellant’s objections that he had not received discovery that he had requested, for which the trial court had issued subpoenas, and that he claimed was necessary for preparation of his defense.

V. DISCUSSION

Before the trial court commenced to hear the matter on its merits, Mr. Revay objected to continuing the proceedings based on the fact that he had not received all discovery which had been subpoenaed. Mr. Revay moved the trial court to dismiss the case based on these discovery violations. The trial court denied the motion to dismiss and proceeded to hear the case on its merits. We find error on the part of the trial court in failing to interrupt the proceedings, continue the matter, and enforce its subpoenas.

Because Appellant failed to either submit a written brief or appear for oral argument, there are few issues which this Court is able to address. The fact that there is little or no law in the Code which addresses with any specificity discovery and evidentiary issues only adds to the difficulty. In the absence of relevant Tribal law, we will look to state and federal authority for guidance.

A. Relevance of Evidence

Prior to determining whether a defendant has been prejudiced by an opposing party’s failure to disclose evidence, this Court must find that (1) the defendant requested disclosure, (2) the evidence is material to the issue of guilt . . . , and (3) the evidence would be favorable to the defendant. State v. Ervin, 22 Wn. App. 898, 904 (1979).

In this case, Appellant clearly requested the material. Respondent argues that Appellant had the burden of showing the relevance of that material and that he failed to carry that burden. Respondent admits, however, that the trial court never held a hearing to determine the relevance of

4 NICS App. 133, REVAY v. CHEHALIS TRIBE (October 1996) p. 136

requested discovery. Appellant cannot carry his burden to establish the materiality of requested discovery absent a forum in which to do so. It is the trial court’s obligation to provide that forum. This the trial court failed to do. Furthermore, because much of the requested material was never produced, it is impossible for this Court of Appeals to determine whether the evidence was material to the issue of guilt or whether it would have been favorable to Appellant.

B. Possession or Control of Evidence

The Tribe argues that it is not obligated to produce any material which is not within the Tribe’s control or possession. The Tribe contends that the Casino is a separate entity and, therefore, the Tribe cannot be held responsible for the failure of the Casino’s employees to comply with the subpoenas duces tecum.

Ordinance 95-1, § 10.1 provides that the Chehalis Tribal Gaming Commission is “an agency and department of the tribal government.” One of the primary enumerated duties of the Gaming Commission, in conjunction with the Tribal Law Enforcement Agency, is to “[e]nforce in the Gaming Operation, including the Gaming Facility, all relevant laws and Ordinances . . . .” Ord. 95-1, § 6.1(a). The Lucky Eagle Casino is regulated by the Chehalis Tribal Gaming Commission. Clearly, the Casino is an entity of the Tribe.

Subpoenas were issued to key Tribal employees to produce evidence which could reasonably be assumed to be in their possession. Ray Accomando, Executive Director for the Chehalis Gaming Agency, and Kelly Stanton, Chief Inspector of the Casino, and Chris Buitron, from the Casino’s Human Resources Department, received subpoenas to appear as witnesses for trial and to produce documents relating to the incident at issue. These individuals did not produce all of the requested items; Mr. Buitron also failed to appear at trial. The requested items were not in the possession or control of the Tribal prosecutor; however, they were in the possession or control of subpoenaed Tribal agents. Therefore, the prosecutor was obligated to “attempt to cause such material or information to be made available to the defendant.” Wn. Ct. Cr. R. 4.7(d). See, also, Fed. R. Crim. P. 16(a)(1)(C). Failure of the prosecutor to do so and the subsequent failure of the trial court to enforce its own subpoenas constitutes prejudicial error.

Washington State’s Rule of Criminal Procedure § 4.7(h)(7)(I) provides that the court may do one of four things “if at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto.” The court may order the party to permit discovery, grant a continuance, dismiss the action, or enter such other order as it deems just under the circumstance. Wn. Ct. Cr. R. 4.7(h)(7)(I). See, also, Fed. R. Cr. P. 16(d)(2). The court did none of these things; instead, it proceeded with the trial. The subpoenaed parties failed to comply with a court order, the court did not attempt to enforce its order and, as a result, Appellant was deprived of the opportunity to adequately prepare for his defense. This was prejudicial error.

4 NICS App. 133, REVAY v. CHEHALIS TRIBE (October 1996) p. 137

C. Pro Se Appellant

Appellant objected to continuation of the trial because of discovery violations and moved to dismiss. The trial court denied his motion. Appellant, who appeared pro se at trial, failed to move for a continuance. This Court recognizes that parties who represent themselves may not be aware of every rule of procedure. After the trial court denied Appellant’s motion to dismiss, it is reasonably likely that Appellant believed he was obligated to continue with the hearing. An attorney representing Appellant would be presumed to have the knowledge that a motion for continuance was in order; however, this Court will not hold Appellant to that standard of legal knowledge. The trial court, on its own motion, should have continued the proceedings until such time as the subpoenaed parties had either complied with the discovery order, or successfully defended a motion to avoid discovery.

VI. CONCLUSION

The purpose of providing discovery is to allow all parties to properly present their cases. The trial court has the authority to issue subpoenas and the obligation and power to enforce them. This Court finds that although there was no error in denying Defendant’s motion to dismiss, once it became clear that Defendant had not received all the material which he requested and for which the trial court had issued subpoenas, the trial court erred in allowing the hearing to proceed.

VII. ORDER

Therefore, based on the foregoing, it is hereby ordered that the judgment of the trial court is reversed.