4 NICS App. 151, EDGE v. SWINOMISH (December 1996)

IN THE SWINOMISH TRIBAL COURT OF APPEALS

    SWINOMISH INDIAN RESERVATION

    LA CONNER, WASHINGTON

    Priscilla C. Edge, Appellant

    v.

    The Swinomish Indian Tribal Community, Appellee

    Nos. SWI-Cr-5/94-071, SWI-Cr-10/96-400 (December 3, 1996)

SUMMARY

Appeal of conviction for resisting lawful arrest and malicious mischief. Appellant cites numerous grounds, many of which are issues raised for the first time on appeal. Issues raised for the first time on appeal generally are not reviewable.

Complaint that states elements of offense charged is not defective. We find no merit to Appellant’s claims of defective complaint, insufficient evidence, ineffective assistance of counsel, or unlawful arrest. Therefore, we affirm.

FULL TEXT

Before:            Elbridge Coochise, Chief Justice; Yvonne M. Leveque, Justice; Jay V. White, Justice.

Appearances:  Priscilla Edge, Appellant; Paula Plumer, Attorney for Appellant; Ric Kilmer, Prosecutor, on behalf of Respondent Swinomish Indian Tribe.

Leveque, J.:

This matter came before the Swinomish Indian Tribal Court of Appeals on July 12, 1996 pursuant to Priscilla Edge's (Amended) Notice of Appeal and Request for Transcript, dated March 22, 1996.

On November 20, 1995, Ms. Edge (hereinafter "Appellant") was found guilty of resisting lawful arrest in violation of § 5-8.100 of the Swinomish Criminal Code No. 75 and guilty of malicious mischief in violation of § 5-3.080 of the Swinomish Criminal Code No. 75.

STATEMENT OF FACTS

On May 13, 1994 the Tribal Prosecutor charged Ms. Edge with “Malicious Mischief”, a

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violation of § 5-3.080 of the Swinomish Criminal Code. The criminal complaint alleged that on April 22, 1994 Ms. Edge had “intentionally and maliciously [spit] on a Swinomish law enforcement patrol vehicle.” Trial was set for August 29, 1994. Ms. Edge failed to appear on her trial date and the trial court issued a bench warrant for her arrest.

On July 27, 1995 while conducting a background check on Ms. Edge to determine her eligibility for hire by the Tribe’s Casino, Swinomish Reserve Officer Frank Jenkins discovered the outstanding bench warrant. According to the officer’s testimony, Ms. Edge arrived at the Casino later that day and Jenkins informed her that he would have to detain her. When Ms. Edge attempted to leave, Jenkins placed his hand on the door. Ms. Edge proceeded to open the door and run, whereupon Jenkins grabbed her by the arm, pulling off her sweatshirt as she continued to struggle and run. Jenkins eventually caught Ms. Edge and, with the aid of a security guard, detained her until a patrol officer arrived to arrest her.

On October 20, 1995, pursuant to the July 27, 1995 incident the Tribal Prosecutor filed a criminal complaint charging Ms. Edge with Resisting Lawful Arrest, a violation of § 5-8.100 of the Swinomish Criminal Code. Trial on the Malicious Mischief charge and arraignment on the Resisting Lawful Arrest charge were set for October 23, 1995. On that date, Ms. Edge moved to continue the hearing and to consolidate the trials on the two charges. The trial court granted the motion and reset the trial date to November 20, 1995. Pursuant to a hearing on the merits, the trial court found Ms. Edge guilty of both offenses. Ms. Edge retained new counsel to replace her trial counsel and filed a Motion for a New Trial, which the trial court denied. This appeal followed.

JURISDICTION

The Appellant was a member of the Swinomish Indian Tribal Community both on April 22, 1994 when she was charged with malicious mischief, and on July 27, 1995 when she was charged with resisting lawful arrest. The action at issue occurred on the Swinomish Indian Tribal Community reservation. This case was brought pursuant to the Swinomish Indian Tribal Community Criminal Procedure Code, Ordinance No. 89. This Court has personal, subject matter and territorial jurisdiction over this action.

PRE-HEARING MOTIONS

A.    Motion to Dismiss

The Swinomish Tribe moved for dismissal on March 25, 1996, pursuant to § 3.03 of Ordinance No. 94, the Swinomish Rules of Appellate Procedure. The motion was argued on July 12, 1996 and will be addressed herein.

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B.    Motion to Compel Transcript Costs

The Swinomish Tribe moved for transcript costs on June 3, 1996, pursuant to § 3.06(e) of Ordinance No. 94, the Swinomish Rules of Appellate Procedure, which states in part:

. . . the appellant shall pay the Clerk of the Court the fees determined by Rule of Court for any transcripts. Unless waived by the Court due to indigency of the appellant, failure of the appellant to pay the required fees for the transcript within the thirty (30) day period shall result in dismissal of the appeal.

The Swinomish Tribe conceded that it was not aware of any Rule of Court prescribing transcript costs but proposed that such a rule be adopted. Nothing was submitted to the Court showing the costs and/or fees associated with the transcription of the written transcript. This Court will not impose transcript costs on the Appellant.

C.    Motion to Amend Transcript

The Swinomish Tribe moved for the amendment of the transcript on May 17, 1996. The motion was based on the unintelligible nature of the transcript and the prosecutor's affidavit. Such motion was unopposed by the Appellant. The motion to amend the transcript was granted.

ISSUES ON APPEAL

The Appellant raised the following issues in her Amended Notice of Appeal:

A.    Denial of a jury trial;

B.    Ineffective assistance of counsel:

1.    Failure to move for suppression hearing;

2.    Failure of spokesperson to notify defendant of original bench warrant;

3.    Failure of spokesperson to sever offenses;

4.    Failure to request a bill of particulars;

C.    Prosecutorial misconduct;

D.    Failure to subpoena defendant's witnesses;

E.    Vagueness of malicious mischief charge;

F.    Unlawful arrest;

G.    Insufficient evidence.

DISCUSSION

At the hearing, the Appellant narrowed the issues to the following:

A.    On the charge of Malicious Mischief:

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1.    Defective complaint;

2.    Insufficient evidence;

3.    Ineffective assistance of counsel:

a.    Failure to suppress;

b.    Failure to advise Appellant of issuance of bench warrant;

c.    Failure to sever offenses;

d.    Stipulation to validity of arrest warrant;

B.    On the charge of Resisting Arrest:

1.    Unlawful arrest;

2.    Constitutionally protected speech.

The remaining issues were not addressed in the Appellant's brief or were withdrawn at the time of the appellate hearing. Accordingly, those issues will not be discussed in this Opinion.

As a preliminary matter, we turn to the Tribe’s Motion to Dismiss. Section 2-3.030 (c) of the Swinomish Tribal Code states:

A Notice of Appeal shall be entitled as such and shall:

    . . .

(1)    Specify those parts of the decision which the party wants reviewed; and

(2)    List each error of law or procedure which the appellant claims was committed by the Swinomish Tribal Court and its effect on the outcome of the case.

The Swinomish Tribe argued that the Appellant failed to specify the parts of the trial court's decision the Appellant wanted reviewed and failed to list the error of law or procedure and its effect on the outcome of the case.

The Appellant argued that a criminal defendant is entitled to a hearing on appeal as a matter of right and that Ordinance No. 94, § 3.02 confers jurisdiction upon this Court to "hear and determine appeals from the Tribal Court final judgments . . . ."

The Tribal Court's Judgment and Sentencing Order (After Trial) dated November 20, 1995 regarding the charges of Resisting Arrest and Malicious Mischief notified the Appellant of her right to appeal and set forth the general requirements for doing so. See, also, Ordinance No. 94, § 2-3.030.

While federal, state and other tribal law is not binding on this Court it serves as guidance. Southern Puget Sound Intertribal Housing Authority v. Thomas, 4 NICS App. 75 (Shoalwater Bay

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1996) stated that issues raised for the first time on appeal cannot be part of the trial court decision and, therefore, are not subject to review as alleged errors committed by the trial court:

If issues are not brought to the attention of the trial court, but are raised for the first time on appeal, then they cannot be an error of law or an error of procedure committed at the trial court level. Therefore, they cannot affect the outcome of the case.

Ordinance No. 94, § 2-3.120 provides that this Court may modify procedural requirements in order to ensure a fair and just determination of the appeal on its merits. Accordingly, we deny the Motion to Dismiss and turn to the merits properly on appeal.

A.    Malicious Mischief.

1.    Defective complaint.

The Appellant argues that neither the malicious mischief citation nor the complaint was specific enough for her to prepare adequately for a defense. Specifically, she points out, there was no dollar amount of property damage alleged, arguing that an essential element of a Class B malicious mischief is damage of $250.00 or more.

Section 5-3.080 provides:

Any person who maliciously disturbs, damages, injures, or destroys any property belonging to another commits the offense of malicious mischief.

Malicious mischief is a class B offense when the amount of damage caused is over $250, or animals or tribal property are involved, . . . [Emphasis added].

The Appellant misinterprets the statute. A specific dollar amount is not required for a Class B offense where, as in this case, tribal property is involved. The dollar amount specifically refers to property damage other than that rendered to an animal or tribal property. The complaint properly stated the elements of the offense charged in this case and it is not defective.

2.    Insufficient evidence.

The Appellant argues that there was insufficient evidence to find that she committed malicious mischief. The trial court concluded that Appellant spit on a tribal police car and that this is “malicious mischief” within the meaning of § 5-3.080.

Having reviewed the transcript of the hearing, the Court is satisfied there is sufficient evidence to support the trial court’s finding that Appellant was guilty of malicious mischief and this Court will not substitute its determination for that of the trial court.

4 NICS App. 151, EDGE v. SWINOMISH (December 1996) p. 156

3.    Ineffective Assistance of Counsel.

The Appellant's counsel argued that the Appellant received ineffective assistance of counsel at the trial (counsel for the Appellant at the appellate hearing did not represent the Appellant at the trial court). Appellant, however, fails to provide any authority regarding the standard by which this Court may determine whether there was ineffective assistance of counsel at trial. Although state or federal law is not controlling, it provides guidance in this situation.

There is a two-part inquiry in an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The court must first determine whether "counsel's representation fell below an objective standard of reasonableness . . . considering all the circumstances . . . under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. A strong presumption exists that counsel's conduct falls within the wide range of reasonable professional assistance. Second, the court must determine whether "there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S. at 695, 104 S.Ct. At 2068. In other words, the inquiry is whether the counsel's performance was deficient and, if so, whether such deficiency prejudiced the defendant. State v. Brett, 126 Wn.2d 136, 198 (1995).

Appellant argues that the failure of her spokesperson at trial to move to suppress Appellant’s statement following her arrest that she was "having a bad day" rises to the level of ineffective assistance of counsel. The Appellant argues that this statement goes to the intent of acting maliciously. This Court is not persuaded by such an argument. The statement does not rise to the level of incrimination or intent to commit the crime. Taken in light of the other evidence presented at the trial court, this was an innocuous statement without probative value. Appellant failed to demonstrate that the statement affected the outcome or prejudiced the Appellant.

Appellant also cites three additional grounds for her ineffective assistance of counsel claim: failure to advise Appellant of issuance of a bench warrant; failure to sever offenses; and stipulation to validity of arrest warrant. These issues are asserted without authority and do not rise to the level of ineffective assistance of counsel. Trial counsel must make a tactical, strategic decision at the time of trial as to their course of action to best represent their client. Although counsel in appellate proceedings may have used different tactics or strategy than the counsel in trial court proceedings, it is each attorney’s determination as to how to proceed during trial. The Court is not in a position to second-guess trial counsel's decision without adequate evidence and authority.

B.    Resisting Arrest.

1.    Unlawful Arrest.    

The Appellant argued that Reserve Officer Frank Jenkins from the Swinomish Tribal Police

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Department did not have authority to execute the bench warrant nor did he have a copy of the warrant at the time of arrest.

Section 4-7.010 states:

(a)       No Swinomish Tribal officer, deputy, reserve officer, or other person properly empowered to function in a law enforcement capacity on the Swinomish Reservation shall arrest any person for any offense defined by the Swinomish Criminal Code or by other applicable law or custom unless:

(1) He or she has a warrant commanding the arrest of a suspect . . .

. . .

(c)       If arrested pursuant to a warrant, the accused shall receive a copy of the warrant at the time of the arrest, or as soon as is reasonably possible. [Emphasis added].

Reserve Officer Frank Jenkins was employed by the Swinomish Tribal Police Department by the Swinomish Gaming Commission on the date of the Appellant's arrest on July 27, 1995. On that date, while conducting the necessary background check for the Appellant's potential future employment with the Gaming Commission, Jenkins discovered an outstanding bench warrant issued by the trial court when Appellant failed to appear for trial on the malicious mischief charge when it was originally to be heard on August 29, 1994. Jenkins informed the Appellant of the outstanding warrant and told her that he was detaining her until a uniformed officer arrived to arrest her. When the Appellant attempted to run, Jenkins physically restrained her.

As a Swinomish Tribal Reserve Officer, Jenkins had the authority to execute bench warrants. Reserve officers have the same authority to enforce tribal law and to enforce bench warrants as full-time officers. (See Verbatim Transcript of Swinomish Tribal Court proceeding from hearing on November 20, [1995] , p. 14, lines 2-15). The Criminal Procedure Code provides that warrants shall be served by the Swinomish Tribal Police or designee thereof. Sec. 4-6.010(c). Additionally, § 4-7.010 confers authority to tribal officers, deputies, reserve officers or other properly empowered persons upon meeting specific requirements to arrest any person. We conclude that Reserve Officer Jenkins had the authority to detain and subsequently arrest the Appellant.

Appellant asserts that Reserve Officer Jenkins did not have a copy of the warrant at the time he arrested her; however, Reserve Officer Jenkins testified that he had a copy of the warrant in his possession at the time of the arrest. (See Verbatim Transcript of Swinomish Tribal Court proceeding from hearing on November 20, [1995], p. 18, lines 13-15). There was no evidence presented by the Appellant which contradicted the officer's testimony.

4 NICS App. 151, EDGE v. SWINOMISH (December 1996) p. 158

3.    Constitutionally Protected Speech.

In addition to the issues discussed above the Appellant argues, without supporting authority or analysis, that spitting on a police car, the underlying conduct upon which the malicious mischief complaint was based, is protected free speech. This argument, raised for the first time on appeal, is not supported by any authority and will not be considered.

Therefore, based on oral argument and the trial court record,

ORDER

It is hereby ordered that the Swinomish Tribe’s Motion to Dismiss is denied.

It is further ordered that the Swinomish Tribe's motion for transcript costs is denied.

It is further ordered that the Swinomish Tribe's motion for the amendment of the transcript is granted.

It is further ordered that the Trial Court's Judgment and Sentencing Order (After Trial) dated November 20, 1995 on the conviction for Malicious Mischief in violation of § 5-3.080 is affirmed.

It is further ordered that the Trial Court's Judgment and Sentencing Order (After Trial) dated November 20, 1995 on the conviction for Resisting Arrest in violation of § 5-8.100 is affirmed.