Lummi Indian Nation v. Johnnie, (1994)

• Decision Date: 08 February 1994
• Docket Number: 92.11.CA3839
• Citation: Lummi Indian Nation v. Johnnie (Lummi Tribal Ct. of App. 1994)
• Parties: LUMMI INDIAN NATION v. JOHNNIE
• Court: Lummi Tribal Court of Appeals

LUMMI INDIAN NATION v. JOHNNIE

No. 92.11.CA3839

Lummi Tribal Court of Appeals Lummi Indian Reservation Bellingham, Washington

February 8, 1994

Iris Shue, for Appellant, Lummi Indian Nation; Michael John Wardell, for Respondent, Henry Johnnie.

SUMMARY

Appeal of Trial Court decision denying Appellant Tribe's motion to seize real property owned by Respondent under "Forfeiture of Property" section of Controlled Substance Ordinance, following Respondent's conviction in Federal District Court for distribution of cocaine.

Appellate Court reviewed written evidence (recorded transcripts) de novo, as it is not a finding of fact based on oral testimony and does not involve observing the conduct, misdemeanor, or veracity of witness.

On review of written evidence, Appellate Court reversed the Trial Court decision, finding that Appellant had proven by a preponderance of the evidence that Respondent knew or should have known that drug activity was occurring on the premises.

Before: Chief Justice Marguerite Edwards, Associate Justice Rose Purser and Associate Justice Mary Wynne

NATURE OF THE ACTION

Appellant Lummi Nation and the F.B.I. conducted a sting-operation which led to the arrest and conviction in Federal Court of Respondent, his mother and his sister. Respondent's sister was living in Respondent's trailer at the time of both arrest and conviction. Appellant then sought forfeiture of Respondent's trailer, pursuant to the Tribe's civil forfeiture of property ordinance.

The Trial Court found that Appellant had failed to show by a preponderance of the evidence that Respondent knew or should have known that his trailer was being used in violation of the ordinance. Appellant appeals the Trial Court judgment.

APPEAL BEFORE THE COURT

THIS MATTER comes before the Appellate Court of the Lummi Indian Nation this 25th day of October, 1993, on the written appeal filed by the Lummi Tribe, by and through it's prosecutor Iris Shue. The Tribe appeals the Judicial Decision entered by the Honorable Christopher Williams and filed with the Lummi Court on April 9, 1993.

The appeal is properly and timely filed, meeting all requirements of the Lummi Tribe's Rules of Appellate Proceedings section 1.8. The Appellant having met all procedural requirements, the Court looks to the substantive issues of appeal.

I. BACKGROUND

The Lummi Nation, in cooperation with the Federal Bureau of Investigations, conducted a nine-month sting operation which ultimately led to the arrest and conviction in Federal Court of the Respondent, Henry Johnnie; his mother, Kay Commodore and sister, Patricia Fulton. Patricia Fulton was living in Henry Johnnie's trailer at the time of the sting operation and subsequent arrests and convictions.

The Lummi Nation brought civil action for forfeiture of the trailer owned by Henry Johnnie, pursuant to the Lummi Tribe's Civil Forfeiture of Property Used in Controlled Substance Violations Ordinance, Chapter 5.9(B).

The Trial Court found that the Lummi Nation had failed to show by a preponderance of the evidence that Henry Johnnie knew, or should have known, that his trailer was being used in violation of the Ordinance.

II. STIPULATION OF THE PARTIES TO WAIVE THE RIGHT TO A DE NOVO APPEALS HEARING AND APPELLATE COURT STANDARD OF REVIEW

Henry Johnnie, the Respondent, is incarcerated in federal prison, serving a sentence for the conviction arising from a sting operation. Because of the difficulty of assuring his appearance at a de novo trial, a difficulty due largely to the cost associated with transporting Henry Johnnie to Lummi Court, the parties stipulated to a waiver of the right to an entirely new trial, that is a de novo hearing, before the Court of Appeals.

The parties also stipulated to waive their right to a hearing within the forty-five (45) days provided by the Appellate Code, in order to allow time needed for preparation of briefs and completion of the trial court transcripts. The parties' stipulation providing for these waivers was formalized and submitted to the Appellate Court on May 13, 1993.

The Lummi Tribal Code provides that a new trial be conducted at appeal. The opportunity for a new trial was waived by stipulation of both parties to the Appellate Court. Accordingly, the Appellate Court, in reviewing the Trial Court's decision in this matter, gives due deference to the Trial Court's trier of fact, since the trier of fact is the one able to view the witnesses as they are giving testimony. The Appellate Court makes no attempt to retry the case or substitute its own findings of fact, but will consider the record, evidence, and transcripts of the Trial Court, parties' briefs, and oral argument at appeal hearing, in rendering a decision in the matter.

The Appellate Court is still free, pursuant to the Lummi Law and Order Code, to fully consider and enter findings de novo on all evidence not submitted orally at trial.

III. DID THE TRIAL COURT ERR IN NOT HEARING AND DECIDING PRETRIAL MOTIONS?

The Trial Court had before it two dispositive pre-trial motions that it heard in open court but did not rule on before commencing with trial; nor did the Trial Court rule on the Motions in its final written order. Although the final ruling contains some advisory language on the issues raised, no conclusion or binding order was entered. Because those issues could have been dispositive, they merit some discussion.

A. Motion to Suppress

The Defendant, Henry Johnnie, entered on the record a Motion to Limit Evidence, specifically asking the Court to exclude admission of Federal Bureau of Investigations transcripts of recordings of conversations between Henry Johnnie, Kay Commodore, and Patricia Fulton with an F.B.I. confidential informant. The Trial Court reserved judgment on the matter. (Trial Transcript at page 18.)

The Defendant filed a Motion to Dismiss based on constitutional arguments that the Lummi Tribe's forfeiture laws were not effective law based on constitutional language requiring Secretary of the Interior's approval of laws enacted by the Lummi Tribe. The Trial Judge ordered additional briefs on the matter to be delivered to the Northwest Intertribal Court System, whereupon he would make a decision on the motion. (Trial transcript at page 25.)

No decision was entered in open court by the Trial Judge, nor was a ruling made in the written decision on the issues addressed in the motions.

The Appellate Court finds that admission of the Federal Bureau of Investigation transcripts of conversations between Henry Johnnie and the confidential informant go to the core of the Tribe's case presented at trial, making a decision on the admissibility of the transcripts at trial critical to a fair and just decision. A ruling should have been made, with a statement as to grounds for the decision. This would have provided an adequate record for appellate review.

The Trial Court erred in its failure to decide the Motion to Suppress Evidence before trial, and later, when it failed to rule on the motion in its written decision. Once an Appellate Court has found an error committed by the Trial Court, the next issue is whether this is an error which merits reversal of the decision entered by the Trial Court. In this case, the error does not constitute reversible error since the Lummi Court of Appeals will apply the usual rule in all cases when a motion to suppress has been filed and not ruled upon; any motion filed but not ruled upon is deemed denied unless the record shows otherwise. The Court of Appeals will assume the Trial Court denied the motion to suppress and that the moving party simply failed to get a statement of the ruling into the record from the Trial Court.

B. Motion to Dismiss

The Appellate Court finds that the Motion to Dismiss based on the constitutionality of the Civil Forfeiture Statute, or rather, the question remaining as to whether the Lummi Tribal Forfeiture Law had ever been duly authorized and enacted, goes directly to the Tribal Court's basis for jurisdiction over the subject matter and/or person, Henry Johnnie. In light of the overwhelming evidence supporting the Tribe's case, the Trial Court erred in failing to make a ruling as promised, either in a separate order, or as part of the judicial opinion rendered after trial was concluded. Certainly, if the evidence presented by the Tribe supports the forfeiture requested, a ruling on the constitutional issue raised by Henry Johnnie is required.

IV. DID THE TRIAL COURT ERR IN ITS FINDING REGARDING THE WEIGHT OF THE TRIBE'S EVIDENCE?

The Trial Court addressed at length the evidence entitled Federal Bureau of Investigations Transcript of electronic surveillance of a conversation which took place on July 19, 1992, between a Cooperating Witness, Henry Johnnie, and an unknown female (pages 26, 27, 28 and 29.) The Trial Court, based on its interpretation of the transcripts, found the following:

. . . Review of this recording is somewhat persuasive that Henry Johnnie knew or should have known that there was drug activity on the premises. From this transcript, by a preponderance of the evidence that Henry Johnnie knew in fact, or has reason to believe that there was drug activity, sales or storage on the premises. It is clear that they went down there to look for Mr. Johnnie's mother to attempt to find some "eight-balls", a slang term for an amount of cocaine.

Crucially, however, the Plaintiff does not meet the burden of proof (5.9B03) "no liability for a civil offense under this chapter shall be found unless each element of the offense is proved by a preponderance of the evidence". Here, the burden of proof simply has not been met.

Evidence indicated that there were two drug "busts" on the premises and that Henry Johnnie went to look or...