4 NICS App. 185, TEEMAN v. BURNS PAIUTE INDIAN TRIBE (April 1997)

IN THE BURNS PAIUTE TRIBAL COURT OF APPEALS

BURNS PAIUTE INDIAN RESERVATION

BURNS, OREGON

    Diane Lorraine Teeman, Appellant

    v.

    Burns Paiute Indian Tribe, Respondent

    No. CR-061-96 (April 24, 1997)

SUMMARY

Appeal of conviction and sentence for battery. Trial court erred in placing upon defendant the burden of proving a right to claim self-defense. We reverse.

FULL TEXT

Before:            Elbridge Coochise, Chief Justice; Douglas W. Hutchinson, Justice; Thomas W. Weismuller, Justice.

Appearances:  Kenneth A. Bardizian, for Respondent Burns Paiute Tribe; Diane Lorraine Teeman, Appellant, pro se.

Hutchinson, J.:

This matter came before the Burns Paiute Tribal Court of Appeals, which convened at approximately 10 A.M. on March 12, 1997 on the Burns Paiute Indian Reservation of Oregon, pursuant to Appellant Diane Teeman's timely Notice of Appeal filed on February 7, 1997. She appeals from the guilty verdict contained within the December 11, 1996 "Findings of Fact, Conclusions of Law, Opinion and Order" and sentencing Order of January 31, 1997 issued by the Burns Paiute Tribal Court. Both parties appeared and presented oral argument in support of their separate positions.

I. SCOPE OF REVIEW

Chapter I, Section E. of the Burns Paiute Tribal Laws governs appellate proceedings. Paragraph 1 of that section of the Code provides:

On appeal, the record and decisions of the Tribal Court shall be reviewed for error. In a criminal case, the Court of Appeals may affirm, or reverse the judgment of the Tribal Court, may order a new trial, or may increase or decrease the sentence.    

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There was no appellate brief submitted by the Appellant Teeman, but a Respondent's Brief was filed. The scope of review is limited to the record, the brief, decisions of the Tribal Court below, and the oral arguments of each party.

II. JURISDICTION

This Court has personal jurisdiction over Appellant Diane Teeman because she is a member of the Burns Paiute Tribe. The act which is the subject of this appeal occurred within the exterior boundaries of the Burns Paiute Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction pursuant to the Criminal Jurisdiction provisions of Chapter I, §B(1)(a) and Chapter I, § E(1) of the Burns Paiute Tribal Laws wherein it provides: "[t]he Court of Appeals shall have jurisdiction to review final orders, commitments and judgments of the Tribal Court."

III. STATEMENT OF FACTS

In the early morning hours of August 25, 1996, Burns Paiute Tribal Police responded to an emergency 911 phone call notifying them of a possible assault. An interview was conducted at the local hospital with the alleged victim, Ms. Betty First Raised who, the police report indicates, was being treated for scratches to her face and neck area and a human bite to her right index finger. In an unsworn, handwritten statement, Ms. First Raised indicated that she had been fighting with "Diane Roman" when she incurred her injuries. Acting upon the information provided by Ms. First Raised the Tribal Police located Diane Lorraine Teeman. The police report indicates that Ms. Teeman was taken into custody for purposes of detoxification and was being transported to Harney County Jail when, because of complaint of her neck hurting, diversion was made to the local hospital.

Harney District Hospital records indicate that Ms. Teeman was treated for a number of scratches to her head and face and was fitted with a hard cervical collar. According to the police report she was then lodged in the Harney County Jail "for detox and was cited for battery."

The case file includes a Citation to Appear in Court dated and signed "08/25/96", directing Diane Teeman to appear on the 28th day of August, 1996 to answer to charges that she had unlawfully committed the offense of "Assault and Battery to Another." There is as well an Agreement & Release on Recognizance also dated August 25th, 1996, signed by Diane Teeman and a Corrections Officer which released her from custody "on the charge now pending against me of ASSAULT AND BATTERY." It was not until the following day however, August 26, 1996, that a formal complaint was signed by Betty First Raised accusing Diane Teeman of violating "Chap. III, § C #6" of the Burns Paiute Tribal Law. That portion of the Code provides:

6. Battery

Any person who purposely or intentionally strikes another person, or causes the striking of

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another, or by offering or threatening or causing the offering or threatening of violence causes another to injure himself or any other person, is guilty of battery and upon conviction thereof shall be sentenced to confinement for a term not to exceed one year or to pay a fine of not more than $5000 or both, with costs.

The criminal trial was held on September 27, 1996. In inviting an opening statement from the Defendant, the Court said, "Do you have anything you want to tell me about what witnesses you are going to call, what evidence you are going to present? If you're going to do anything." Teeman responded, "Well, I just have to prove that I acted in self defense."

For its case in chief, the Prosecution called three witnesses. The Complainant, Betty First Raised; Dean Brizendine, the arresting officer in the case; and, Lonnie Teeman who was present at the time of the alleged incident. Ms. First Raised essentially testified that she, Diane Teeman and Lonnie Teeman had been drinking, and at one point the defendant approached, struck her, and as a result the two women then started fighting. Ms. First Raised testified that she was scratched and bitten at that time. Officer Brizendine's testimony was only of his actions which were after the fact. Lonnie Teeman's testimony shed no light on the situation because he claimed to have little or no memory of that early morning and its events.

The only truly significant aspect of the defense presentation was when the Defendant took the stand on her own behalf. Under oath, she admitted fighting with the complainant but accused the complainant of being the original aggressor, testifying that she fought only to defend herself from attack. On cross-examination the Prosecutor failed to ask any questions relevant to the assertion of self-defense.

In his summation, the Prosecutor expressed his opinion that, "I guess it's [sic] guilt or innocence depends on the court's determination as to the credibility of the witnesses . . ." There was no record of the defense summation because of a break in audio.

At the conclusion of the trial, the Tribal Court judge elected to take "the matter under advisement." Six days later, the judge sent the parties a letter in which he expressed concern because the defendant had raised the issue of self-defense. He noted that the Tribal Laws specifies nothing about self-defense but that it does say that in such situations, "the court shall apply any laws of the United States that may be applicable." He then gave the parties approximately three weeks to research U.S. laws and legal authority on the issue of self-defense as justification for a criminal act. On October 25, 1996, the defendant sent the court a letter, asserting her belief that responsibility for researching applicable federal laws falls on the Court itself, and asking for an additional 30 days to continue her research.

On December 11, 1996 the Tribal Court issued a "FINDINGS OF FACT, CONCLUSIONS OF LAW, OPINION & ORDER" in the case. The court's "findings of fact" made no mention of the conflicting evidence in the case, and consisted exclusively of a finding, without reasons, that "the

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defendant did purposely or intentionally strike Betty First Raised causing injury to her such as would justify a conviction for Battery." This was followed by the court's conclusion that "the defendant failed to produce any law of the United States pertaining to self-defense" and its opinion that "the Tribe has proved beyond a reasonable doubt that the defendant committed the crime of Battery." More than one month later, on January 31, 1997, the court issued an Order directing Diane Teeman to pay restitution in the amount of $199.83 and to perform 40 hours of community service. There is no indication in the court files that either the decision of the court adjudging Diane Teeman guilty or the separate and later sentence for the crime took place in open court. The court is reminded that both the verdict and the sentencing portion of trial must be conducted in a public forum.

IV. ISSUE ON APPEAL

The issue on appeal in this case is whether the trial court committed prejudicial error by denying the defendant a critical justification argument when she could not provide the court with evidence of federal legal authority recognizing self-defense.

V. DISCUSSION

In early Roman times, the function of the judge was to do little more than issue the order to "open the gates and bring forth the lions." Fortunately, with the passage of time and a maturing Anglo-American system of justice, judges have come to occupy more responsible roles in the judicial process. This is particularly true in contemporary criminal cases where the accused is entitled to a "presumption of innocence" and where guilt must be proven "beyond a reasonable doubt." Chief among the most serious obligations of the presiding judge are the duty to remain impartial and the duty to insure that the accused is treated fairly throughout the course of the trial. Satisfaction of those responsibilities is made possible by the judge being knowledgeable of the law and making timely reasoned rulings upon the evidence and law.

The Burns Paiute Indian community has considered those qualities and responsibilities of a judge to be important enough that they have made them part of their Tribal Laws. The Chief Judge for example must, among other qualifications, have a law degree, be certified to practice in Federal District Courts, and demonstrate knowledge of Indian law, Federal law, and Oregon law (Chapter I, § [1][a]). In the Court Procedures portion of the Tribal Laws, the Judges of the Tribal Court have the administrative burden of adopting rules of pleading, practice and procedure "applicable to any and all proceedings . ." (Chapter I, § D). And critically, in the Criminal Procedures chapter of the Tribal Laws, the community has said that, "In trials without a jury, the Tribal Court shall determine all issues of fact and law." (Chapter II, § L[1]).     

In light of the apparent importance that the Burns Paiute Tribal Laws place on the need for their judges to be knowledgeable about a wide range of laws, it is puzzling that the Tribal Court in this case had such difficulty with the legal concept of self-defense. First, during the conduct of the

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trial there was no ruling from the court on that issue when the defendant claimed self-defense and offered evidence of self-defense. Then, after the conclusion of the trial, while taking the matter "under advisement", the court announced in a letter to both parties, its discovery that the Tribal Laws "specifies nothing about self-defense." And, in that same letter, the court indicated that in the absence of a tribal law, the "Court shall apply any laws of the United States that may be applicable". The judge then placed upon both parties the obligation to provide him with legal authority to rule on whether the accused could or could not assert a claim of self-defense. And then finally, in his "Findings of Fact, Conclusions of Law, Opinion and Order", absent citation to any authority or reasoning, the judge ruled that, "[s]elf-defense would constitute a substantive matter, not a procedural matter."

In essence then, what the Tribal Court judge ruled was that self-defense as justification for an otherwise illegal act does not exist on the Burns Paiute Indian Reservation because it is not specifically provided for in specific language of a written law passed by the Tribal Council, or the Congress. Not only is that conclusion legally and historically questionable, but it would lead to an unreasonable conclusion in law; absent a statutory provision for self-defense, all crimes against a person would be strict liability crimes, and there would be no exculpatory factors or circumstances which would offer justification or excuse for those crimes.

It is true that the justification of self-defense is provided for in substantive (statutory) law. Oregon for example, has set out 26 statutory defenses, including self-defense, in Chapters 161 to 165 and Chapter 167 of the Oregon Revised Statutes. But that codification is really an action taken by the state legislature only in relatively recent times. Recognition of self-defense in law predates most existing statutory provisions. Before being set out in legislative acts, many if not most exculpatory defenses had already been acknowledged and accepted in the common law, and in Constitutional law.

The common law is often referred to as "judge made law" or "law declared by judges". It arose in early English law out of a need for a common sense legal declaration where there is no statutory guidance. It was called the "common law" because such judicial pronouncements were accepted and recognized in common with other jurisdictions throughout England. A key common law ruling early on was on the issue of self-defense. By the year 1400 A.D., self-defense in common law jurisdictions had everywhere become a bar to an action for Battery. AMES, LECTURES ON LEGAL HISTORY 436 (Harvard Univ. Press) (1913). Thus, in more than 500 years of Anglo-American law, the principle of self-defense has become so fundamental that one legal digest refers to it as "one of the elementary principles of natural law . . ." 6 AM. JUR 2D Assault and Battery §69.

Although the vitality of the common law derives from general acceptance and following of precedence, there is no requirement that there be slavish conformity in a jurisdiction where the facts and circumstances are significantly different. Such is the case in the Burns Paiute community where their Tribal Laws recognize the common law, but do not bind tribal judges to follow the rulings of

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other jurisdictions (Chapter I, § K (4) Rules of Evidence: "The Court shall not be bound by common law or state or federal statutory rules of evidence, but shall have the discretion to admit evidence it considers necessary and relevant to the proceedings.").

Most Indian courts recognize a common law right to assert self-defense. Most states recognize self-defense in specific statutory provisions. But in federal law, the basis for an affirmative defense argument by a defendant is found in the proof issue of the "guilty state of mind" (mens rea) and in the due process provision of the Fifth Amendment to the United States Constitution. Patterson v. U.S., 432 U.S. 197 (1977). There is no specific federal law defining self-defense and, "[t]he absence of self-defense is not an element of the federal offenses of murder or assault . . . ." U.S. v. Alvarez, 755 F.2d 830, 842, n. 12 (1985). The federal courts have long recognized that fundamental fairness entitles a defendant to advance an affirmative defense argument. Davis v. U.S., 160 U.S. 469, 490-491 (1895). But a 5-4 split court in Patterson has done little to settle the argument of whether a defendant must prove self-defense by a preponderance of the evidence or beyond a reasonable doubt. The majority of states, including Oregon, have opted for a requirement that the burden of production by the defendant must meet the "preponderance of the evidence" test.

It is now well settled, however, that the government may shift to the defendant the burden of going forward with evidence of self-defense. That is not a due process violation. Nevertheless, nowhere in Anglo-American law is there authority to support a conclusion which places upon the defendant the burden of proving that self-defense is a legitimate claim. Except in this case.

Due process as provided for in the Fifth Amendment to the U.S. Constitution is a somewhat amorphous concept that has evolved with the passage of time. Yet there is relatively common agreement in the belief that due process derives in part from elementary fairness and in part from traditions in the law. This is as true in customary and traditional law of Indian Country as it is in Anglo-American law. Most provisions of the U.S. Constitution and its amendments do not apply in Indian Country. Talton v. Mayes, 163 U.S. 376 (1896). As a result, the Congress enacted the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. § 1301 et seq., which was closely modeled upon the Bill of Rights of the U.S. Constitution. But the legislative history of that law, and the U.S. Supreme Court have recognized that the due process provision in paragraph 8 of that law can be different than due process under the U.S. Constitution. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

Although tribal due process may differ when it comes to its application to customary and traditional laws, many of the principles embodied in the Bill of Rights have become key ingredients in the Indian legal processes, especially in criminal law. Thus most tribal governments recognize due process as encompassing concepts of "presumption of innocence" and "proof beyond a reasonable doubt." A presumption of innocence for the accused in a criminal trial is a "foundation of the administration of our criminal law.” Coffin v. U.S. 156 U.S. 432, 453 (1895) It has been

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recognized as a "basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503 (1976). Its companion, the proof beyond a reasonable doubt standard, has also been held to be part of the fundamental fairness required in criminal cases by the due process clause of the U.S. Constitution. In re Winship, 397 U.S. 358 (1970). In articulating why these concepts are implicit in due process, the court has said, "The accused . . . has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a [person] for commission of a crime when there is reasonable doubt . . . ." Id. at 363-364.

The question of a deprivation of due process arises when a court, as here, places upon an accused the burden of proving that the law will permit the introduction of evidence of an exculpatory nature. The Burns Paiute Tribal Laws are specific in placing responsibility on the trial court judge to rule upon the questions of law presented at the trial (Chapter II, Section L. [1]). The tribal court has responsibility under tribal law to have legal resource materials available for that purpose. Tribal Laws, Chapter I, § J (3) Copies of Laws ("The Tribal Court shall be provided with copies of this Code and copies of Tribal ordinances, Federal and State laws and regulations as are deemed by the Tribal Court to be necessary, helpful, and proper to secure the rights and privileges of persons subject to the jurisdiction of the Tribal Court and its judicial powers and responsibilities."). It is the responsibility of the prosecution to prove the crime beyond a reasonable doubt as a due process right accorded in Chapter II, § B of the Tribal Laws.

It is not the responsibility of the defendant, however, to prove that she did not commit the crime. An unbelievably unfair result obtains when the guilt or innocence of a pro se defendant is decided upon his or her ability to research law. As here, the accused would not be convicted of having committed the crime, but of failing to excel at legal research. It is an unfair result. It should be noted that a "presumption of innocence" also is not provided for in the Burns Paiute Laws. So, if a defendant claims a right to that presumption, would the court then deny that right unless the defendant could prove it through citation of legal authority in federal law? The premise is too absurd to deserve serious consideration.

VI. CONCLUSION

If ever a case in its infancy cried out for dismissal as an exercise of reasonable prosecutorial discretion, this is it. Two individuals engaged in an apparent mutual combat and inflicted minor injuries upon each other. The event took place with only one other person present, and that person has absolutely no recall of what transpired. Each of the combatants admits striking the other, but each claims it was done defensively. Other than their conflicting stories, there is no evidence of any kind sufficient to prove that a crime was committed with the requisite guilty mind. But somehow, this case proceeded to an improbable point where, after the trial had ended, the judge negated the defendant's self-defense testimony because she could not cite the federal law (ICRA) which would

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recognize self-defense. That decision of the court was prejudicial error.

The due process rights of criminal defendants on the Burns Paiute Indian Reservation include a presumption of innocence and a right to offer exculpatory evidence. The rights derive from the demand for basic fairness. They were denied to Teeman in this case when the court placed upon her the burden of proving a right to claim self-defense. When all of the resources, training and background knowledge in law repose within the government, it is basically unfair to shift to the presumptively innocent defendant the burden of proving the law.

That error is but one of a number of troubling decisions on the part of the trial judge in this case. Note should be taken of the court's finding of proof beyond a reasonable doubt that the crime was committed "purposely and intentionally", when the record is devoid of any presentation of evidence which would go to prove those elements. But the shifting of the burden of proving the law is the most egregious error, and the most patently prejudicial to the rights of the defendant to a fair trial.

VII. ORDER

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