7 NICS App. 150, SKOKOMISH TRIBE v. CULTEE (December 2006)
IN THE SKOKOMISH TRIBAL COURT OF APPEALS
SKOKOMISH INDIAN RESERVATION
SKOKOMISH, WASHINGTON
Skokomish Indian Tribe, Appellee,
v.
Richard L. Cultee, Appellant.
No. SKO-CI-3-06-071 (December 18, 2006)
SYLLABUS*
Trial court found Defendant guilty of civil infractions of failure to notify the tribe of his status as a sex offender and failure to register as a sex offender. Court of Appeals holds that (1) documentary evidence of Defendant’s sex offender status should not have been admitted because it was not properly authenticated; (2) in-court statements concerning Defendant’s sex offender status should have been excluded because trial court improperly allowed Defendant’s son to appear as both a witness and spokesperson and trial court did not comply with rules regarding appearance of a spokesperson; and (3) no other evidence in the record established that Defendant was a sex offender. Trial court decision reversed and remanded for a new trial.
Before: Theodore Heilman-Schott, Chief Justice; Lisa J. Dickinson, Justice; Thomas Goetzl, Justice.
Appearances: Desmond D. Kolke, Counsel for Appellant; Richard Kilmer, Tribal Prosecutor, Counsel for Skokomish Indian Tribe, Appellee.
OPINION
Dickinson, J.:
INTRODUCTION
This matter came before the Skokomish Tribal Court of Appeals pursuant to Appellant Richard L. Cultee’s Oral Notice of Appeal and the Motion to Dismiss Appeal filed with the Skokomish Tribal Court by the Tribe on May 25, 2006. The Tribe’s Motion to Dismiss was
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denied and this appeal was accepted pursuant to this Court’s Order entered on August 8, 2006. The underlying charges and convictions in this case are for Failure to Register (as a sexual offender), a violation of § 9.02B.050 and 070(b) of the Skokomish Tribal Code and Failure to Notify (of Defendant’s status as a sex offender), a violation of § 9.02B.040 and 070(a) of the Skokomish Tribal Code.
Pursuant to Skokomish Tribal Code § 3.01.106, a panel of three judges was designated to hear the appeal. After hearing oral argument, Justice Theodore Heilman-Schott recused himself from further participation in this case as he had failed to advise the parties that he had acted as a temporary Prosecuting Attorney for the Skokomish Indian Tribe on one occasion after he had been appointed Chief Justice in this matter. The parties subsequently filed an Agreed Motion to Set New Oral Argument Date in Light of Recusal of Judge Schott. The Agreed Motion requested that either a new panel of three judges by assigned to hear the appeal, or that one justice be added and that a new oral argument be scheduled.
THE AGREED MOTION TO SET NEW ORAL ARGUMENT IS DENIED
The Agreed Motion to Set New Oral Argument was brought pursuant to the STC 3.01.106(a), Rule 106(a) of the Tribe’s Rules of Civil Procedure. Rule 106(a) requires that "[f]or each case which is appealed, a panel of three judges shall be designated to hear the appeal."
Rule 106(a) must be read in harmony with STC 3.01.012(b), Civil Rule 12(b), which states that the rules should be liberally construed to, among other things, resolve disputes "efficiently." Here, rule 106 was followed - three judges were "designated" to hear the appeal. The rules do not prohibit a judge from recusing himself after having been so designated, and the rules are silent as to how to proceed when this happens. Rule 106(a) must also be read in harmony with Rule 12(d), which provides "[i]n a situation where the rules of the tribal court do not prescribe a procedure, ... the judge may determine the procedure which will be followed." Thus, it is our opinion that the code allows the remaining two judges to determine the procedure that would best serve the imperative of Rule 12(b) that disputes be resolved efficiently. Since the remaining two members of the panel had already engaged in substantial deliberations and reached a consensus on the outcome, and since appeals are to be decided by a simple majority vote of the panel, adding a new judge at this point would not promote efficiency - it would do nothing more than add expense to a case that has already effectively been decided.
Moreover, STC 3.01.056, Civil Rule 56(c), states "[t]he judge may keep a party from making a motion which could and should have been made early in the case if it appears that the moving party knew or should have known earlier about the basis for the motion and has raised it late because of negligence ...." In this case, the parties were served with Judge Schott’s Order of Recusal on October 23, 2006. The remaining members of the panel then delayed their deliberations for approximately two weeks to allow the parties an opportunity to respond to Judge Schott’s Order of Recusal. Having received no such response in a timely manner, the
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remaining members of the panel resumed their deliberations and reached consensus on the issues presented by this appeal. The parties’ Agreed Motion to Set New Oral Argument was not filed with the Tribal Court until November 21, 2006 – nearly a full month after the parties were served with the Order of Recusal. Failure to move immediately to request a change in the makeup of the appellate panel is not in the interest of judicial economy and is contrary to the imperative of Rule 12 that disputes be efficiently resolved. Therefore, we hold the Motion was “late” under Rule 56(c).
Finally, while the decisions of other tribal courts are not binding upon the Skokomish Tribal Courts, we note that other tribal courts have held the remaining two members of an appellate panel properly issued the opinion of the appellate court after one member had withdrawn from the panel. See, e.g., Madison v. Tulalip Education Dept., 5 NICS App 29 (Tulalip Tribal Ct. App. 1998); Tulalip Tribal Utilities v. Jones, 5 NICS App. 34 (Tulalip Tribal Ct. App. 1998); Kelsey v. TERO Comm’n, 5 NICS App. 50 (Hoopa Valley Tribal Ct. App. 1998).
For the foregoing reasons, we DENY the Agreed Motion to Set New Oral Argument.
JURISDICTION
The Skokomish Tribal Court has personal and subject matter jurisdiction over Appellant Richard L. Cultee pursuant to STC § 3.01.052(a), which states:
The Skokomish Tribal Court shall have jurisdiction over all causes of action arising within the exterior boundaries of the Skokomish Indian Reservation, over all parties to such actions, and over the personal property of all parties to such actions.
Personal and subject matter jurisdiction over criminal proceedings are also specifically conferred upon the Tribal Court by STC § 9.01.030, which grants criminal jurisdiction on the Reservation over all persons.
STC 3.01.101 establishes the right to appeal, and by implication, the jurisdiction of the Court of Appeals to hear the appeal.
STANDARD OF REVIEW
The procedural questions in this case are reviewed de novo. Any factual issues are reviewed under the “clearly erroneous” standard.
The Skokomish Tribal Code is silent regarding the standard of appellate court review of a trial court decision. In the absence of any specified standard of
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review, we review issues of fact under the ‘clearly erroneous’ standard and issues of law de novo.
Johns and McGhee v. Allen, No. SKO CV 06/03-171, at 1, 6 NICS App. 196, 196-197 (Skokomish Tribal Ct. App. Oct. 22, 2004).
ISSUES ON APPEAL
The issues on appeal raised by Appellant concerned:
1. The right to competent counsel and whether any such right was waived or violated;
2. The right to trial by jury and whether any such right was waived or violated;
3. The right to timely arraignment and speedy trial and whether any such rights were waived or violated;
4. Whether evidence relied upon by the trial court was properly authenticated and admitted.
In resolving this appeal, this Court is guided by Skokomish Tribal Code § 3.01.012(b), which provides:
The rules of procedure for the Skokomish Tribal Court shall be liberally interpreted and applied to achieve the following purposes: revealing the truth, treating all parties fairly and without prejudice, protecting individual rights guaranteed by the Indian Civil Rights Act and the Skokomish tribal constitution, resolving disputes efficiently.
Accordingly, this Court may conduct its own inquiry as to whether proper procedures have been followed and individual rights protected.
DISCUSSION
A. Documentary Evidence
An essential element of the offenses of which Appellant was convicted is that he was, in the language of Skokomish Tribal Code § 9.02B.015(b), a person:
Who has pled guilty to, been found guilty of, or who has been found not guilty by reason of insanity, to any attempt, solicitation or conspiracy to commit a crime that requires or would require that person to register as a sex offender under
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federal law, or under the law of any state, other Indian tribe, territory, commonwealth, foreign country or other jurisdiction.1
Appellant questions whether evidence proving his conviction of an offense requiring registration and notification relied upon by the trial court was properly authenticated and admitted. The Skokomish Tribal Code has specific rules pertaining to evidentiary issues before the trial court.
Skokomish Tribal Code § 3.01.041(a) and (c) state:
(a) The rules of evidence used in state and federal courts shall not apply to hearings in the Skokomish Tribal Court. But where there is more than one kind of evidence about the same subject, the judge should hear the most reliable kind of evidence. In oral testimony, persons who testify from their personal knowledge, such as first-hand observation of or participation in the event described, shall be preferred as witnesses to persons who have second-hand knowledge of the event.
(c) When the relevance or reliability of evidence is challenged and the judge decides whether or not to use the evidence, the judge shall explain the decision and, if the evidence is used, state what importance the judge assigns to the evidence.
Additionally, under § 3.01.044(a):
When questioning a witness, the judge and parties or their representatives shall not ask questions in such a way to suggest the answer desired, unless the witness is being cross-examined or is clearly hostile to the person asking questions.
When testimony was presented in regard to Mr. Cultee’s sexual offender status, the prosecutor asked: “Have you attempted to obtain some documentation of Mr. Cultee’s sexual offender status?” Officer Chambers reply was: “Yes I have. I have been in contact with the Department of Corrections. He is no longer D.O.C. active. Um, however there should be a fact stating that he was convic . . . charged, convicted, of a Level One sex offense.” (Transcript, p.5, ll. 22-27) Later, the officer stated that no one knew where the paperwork was at the time, and the Prosecutor believed that the facts would be coming to the Court during the case. At some point later on during the trial, the fax was received and was offered into evidence. At this point,
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Marvin Cultee, the son of Richard Cultee, objected to the exhibit being offered on the grounds that there was no date of birth on the fax, and objected that it could be referring to another person rather than the Appellant, Richard Cultee. (Transcript, p. 23, ll. 1-14)
This Court finds Cultee’s objection to be a valid objection as to the authenticity of the facsimile. The document was again objected to when the Prosecutor asked later during trial whether or not the fax was admitted. (Transcript p. 35, ll. 15-27, p. 36, ll. 1-22) When Officer Chambers testified about the document that was in her hands, she stated that it was from the Department of Corrections, and that she was unfamiliar with the document, but did not state how she could identify where the document came from. Allowing that fax to be admitted into evidence to establish Appellant’s sexual offender status was error. First, it was not the most reliable kind of evidence as required by the Skokomish Tribal Code.2 Additionally, the testimony by Officer Norton and Officer Chambers was based on second-hand knowledge and did not appear to relate to any first-hand knowledge that Mr. Cultee was actually a sexual offender. Further, the Judge did not explain the decision for admittance under § 3.01.041 (c) and what importance the Judge assigned to the same.
This Court concludes that, under Skokomish Tribal Code § 3.01.041, this documentary evidence should not have been admitted.
B. Spokesperson Admission
The only other evidence introduced at trial that Richard Cultee had committed a crime that subjected him to the registration and notification requirements of STC § 9.02B.015(b) was an in-court statement by Richard Cultee’s son Marvin, who appears to have been allowed to appear both as a witness and a spokesperson.
The Skokomish Tribal Code is specific in regard to its rules governing representatives. Pursuant to § 3.01.020, the rule governing a defendant’s right to representation states that:
Any party or person who appears in Skokomish Tribal Court may be represented by a lawyer or a spokesperson as long as the representative has applied for and been granted permission to represent persons in the court. The judge may appoint someone to represent a party or a witness if that person would be seriously prejudiced or handicapped by appearing without a representative and cannot afford to hire a representative. [Emphasis added.]
Further, Skokomish Tribal Code § 3.01.021, setting forth the requirements for those who would be granted permission to appear as representatives, states:
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(a) Any person at least 18 years old who is of good moral character may appear as a representative in Skokomish Tribal Court as long as he or she has applied in writing for permission, has paid the admission fee, has read the constitution and ordinances of the Skokomish Tribal and the Rules of the Skokomish Tribal Court, has been certified by the chief judge as qualified to appear, and has taken an oath to uphold the tribal constitution. [Emphasis added.]
(b) Before a person is permitted to appear as a representative in the tribal court, he or she shall state before the chief judge: I have read and understand the tribal constitution, ordinances, and rules of the Tribal Court. I will obey the rules of the court, will uphold the tribal constitution, will respect the judges and officers of the tribal court, will not raise any claims or defenses which do not appear to be honestly debatable and just, and will be truthful at all times.
Additionally, STC § 3.01.022, in setting forth why an admission fee for representatives shall be charged, implies that the Tribe shall maintain a list of representatives permitted to appear in tribal court. It appears the Tribe does not maintain a list of qualified representatives.
Marvin Cultee, the son of Appellant Richard Cultee, was allowed to act as a representative and did in fact represent Appellant during his trial. There is no evidence in the record that Marvin Cultee ever complied with any of the requirements of STC § 3.01.020 and .021 was therefore qualified to serve as a representative. Indeed, by the Prosecutor’s own admission, and by Appellant counsel’s representation, Marvin Cultee was not so qualified. On appeal, the Prosecutor argued that, traditionally, family members are allowed to help another family member present his or her case in Skokomish Tribal Court. Although this may be a custom, this Court believes the practice of allowing family members to speak for or on behalf of a party without having qualified under Skokomish Tribal Code § 3.01.020 and 021 violates those sections.
The argument by the prosecution that Marvin Cultee was merely a witness, not his father’s legal advocate is not well taken. At the beginning of the trial, Appellant Richard Cultee indicated that he would like Marvin to “speak for him.” (Transcript p. 2, line 16.) Then, when Marvin Cultee attempted to give testimony, the Judge asked him to give an overview of the case, which is essentially asking Marvin Cultee to give an opening statement. Further, as described above, Marvin Cultee objected to the admission of evidence, much as a lawyer or spokesperson would do. He was also allowed to question witnesses during the trial. An attorney or representative is also generally prohibited from serving as a witness in the same proceeding because in such a situation the attorney or spokesperson has an obvious bias in favor of his/her client and an inherent conflict of interest between the duty to vigorously represent the client and the duty to be forthright with the court. The Court did not prevent Marvin Cultee from acting as Richard Cultee’s representative, and we believe the Court had a duty to do so.
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Appellant Richard Cultee was severely prejudiced by his son’s representation of him during this trial. This Court believes the Tribe’s rules requiring qualification of a representative act as a safeguard to ensure that if someone is speaking for another person, the Court is assured that he or she has read and understand the tribal constitution, ordinances, and rules of the tribal court. It was error for the trial court to have allowed Appellant Richard Cultee to proceed with Marvin Cultee acting as his representative without having complied with Skokomish Tribal Code § 3.01.020 and 3.01.021.
Because the trial court erred in allowing Marvin Cultee to act as Richard Cultee’s representative and allow Marvin Cultee to give testimony as if he were a witness, we hold that the admissions made by Marvin Cultee at trial must be stricken.
CONCLUSION AND ORDER
The unauthenticated fax purportedly from the Department of Corrections and the statements of Marvin Cultee, while acting as a spokesperson, are the only evidence we find in the record that Richard Cultee was subject to STC § 9.02B. Because none of this evidence was admissible, this Court holds that the decision of the trial court is reversed and the matter is remanded for a new trial. In light of this disposition, the Court does not reach the other issues that were raised on appeal.3
Skokomish Tribal Code § 3.01.012(e) provides:
Judges and the administrator of the tribal court have a duty to tell the Skokomish tribal Council which additional rules are needed to govern common procedural questions faced by the court.
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In that spirit, this Court would encourage the Tribal Council to review the requirements for spokespersons and representatives and consider whether or not it would be appropriate to better define who has been admitted as a spokesperson, and, if the Council desires, to add an additional representation category for family members who wish to “speak for” other family members. Such rules, if adopted, should also address whether, and if so, under what circumstances, a spokesperson can serve as a witness in the same proceeding. This could avoid future problems such as those arising in this proceeding.
The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
We note that the ordinance on its face only addresses an “attempt, solicitation, or conspiracy” and not the actual commission of the crime. We believe this is a drafting oversight, and rule that because the commission of a crime necessarily involves an attempt to do so, the ordinance also applies to the commission of a crime of the nature described. To hold otherwise would render the absurd result that someone who attempted to commit the crime described would be subject to the registration requirement while someone who actually committed the crime would not. The law and our own jurisprudence does not allow for absurd results.
The Subpoena issued to Officer Chambers, which is a part of the record, specifically requested her to “obtain a certified record indicating that defendant is a convicted sex offender.”
However, the Court does note the following errors in the sentencing orders.
The Sentencing Order in Case No. SKO-Cr-5/05-211, after reciting that defendant was found “Guilty” of the offense of “Failure to Register” (Sexual Offender) (a Class “C” Offense), orders defendant , inter alia, to serve sixty (60) days of jail with fifty-five (55) days suspended on the conditions that defendant: . . . “Serve five (5) days in jail (eight (8) [sic] days total with case #SKO-Cr-5/05_210 . . .” and “Satisfy a $500 fine. . .”
The problem with this Sentencing Order is that the Skokomish Criminal Code 9.02B.070(b) Failure to Register provides that violation is a class B criminal offense, not a class “C” offense. Furthermore, in subsection (1)(A), it requires a “minimum” penalty of 60 days jail time “and” a fine of $1,000.00. Although the Criminal Code sentencing Guidelines, STC 9.11.020, establish that the minimum penalty for a Class B offense is “30 days jail time and/or $1,000.00 fine and/or community service” and that the maximum penalty for a class B offense is “6 months jail time and/or $2,500.00 fine and/or community service,” the more specific provisions of STC § 9.02B.070(b)(1)(A) control this case. There does not appear to be any authority for the trial court to order a fine of less than $1,000 for a violation of STC § 9.02B.070(b)(1)(A).
The two Sentencing Orders are also unclear about whether or not the $500 fines are intended to be cumulative.