Lummi Indian Tribe v. Edwards, (1988)

• Court: Lummi Tribal Court of Appeals
• Decision Date: 10 June 1988
• Docket Number: 86-T-1010
• Citation: Lummi Indian Tribe v. Edwards (Lummi Tribal Ct. of App. 1988)
• Parties: LUMMI INDIAN TRIBE v. CAROLYN EDWARDS

LUMMI INDIAN TRIBE v. CAROLYN EDWARDS

No. 86-T-1010

Lummi Tribal Court of Appeals Lummi Indian Reservation Bellingham, Washington

June 10, 1988

Carolyn E. Edwards, appellant, appeared with her spokesperson, Joe Bone Club; Rebel Harjo, Tribal Prosecutor appeared for the respondent, Lummi Indian Tribe.

SUMMARY

Appellant appealed a conviction of driving while intoxicated on the grounds that there was insufficient evidence for a conviction, a violation of her right to a speedy trial, and that the trial judge had promised dismissal of the case upon appellant's completion of an alcohol treatment program.

After finding that the right to appeal is automatic upon perfecting the requirements of an appeal, the Court of Appeals held that the conviction was not supported by the evidence.

Before: Frank S. LaFountaine, Chief Justice; Rosemary Irvin, Associate Justice; and Marguerite Bostrom, Associate Justice.

NATURE OF ACTION

The appellant was charged with driving while under the influence of intoxicating liquor or narcotic drugs.

TRIAL COURT

Judge Charles D. Finkbonner, on April 12, 1988, entered a judgment finding the appellant guilty at the close of a judge trial. The appellant was ordered to pay a $250.00 dollar fine and serve thirty (30) days in jail with the (30) days jail suspended on the condition that the appellant: (1) not commit any further D.W.I. violations for two years; (2) comply with the Lummi C.A.R.E. alcohol treatment program, and (3) provide proof of attendance at weekly A.A. meetings for six months.

COURT OF APPEALS

Granting a new trial before the court of appeals, the court of appeals retried the case and affirmed the judgment finding the appellant guilty. After hearing arguments from the parties the court of appeals modified the sentencing order, ordering the appellant to pay a $250.00 fine and serve 20 days in jail, with $100.00 dollars of the fine and the 20 day jail term suspended on the condition that the appellant commit no further D.W.I. violations for the next six months.

MEMORANDUM OPINION AND JUDGMENT AND SENTENCING ORDER

The Appellant, in her Notice of Appeal of April 21, 1988 based her appeal on the following grounds: "That the Court failed in finding alcohol on the breath. There was only the strong smell of intoxicants. The Court also failed in using the second opinion on failure to pass a breathalyzer. Court documents plainly show one was not administered. In its third and final opinion the Court again failed, it could not remember what it had decided to use in its decision for conviction. It is also in the opinion of this defense advocate that numerous civil rights violations were made which will be presented in open court."

The issues to be decided by this Court are as follows:

(1) Whether the granting of an appeal is discretionary with the appellate court or automatic upon the appellants perfecting the appeal. And if the right to an appeal is discretionary with the appellate court, whether the facts and issues before the court warrant the granting of an appeal in this case.

(2) Whether there is evidence to support the allegation that the trial judge promised the defendant a dismissal of the case upon completion of an alcohol treatment program prior to sentencing.

(3) Whether there was a violation of the speedy trial rule where there was a delay of approximately eighteen (18) months between the defendant being arrested and arraigned and tried on the charges.

(4) Whether appellant was denied effective assistance of counsel when the motion for a continuance based on inadequate time to prepare made by her spokesperson was denied at the time of trial.

(5) Whether the judgment of guilty by the trial court was supported by its findings of fact.

(6) Whether the conditions for a suspended thirty (30) day jail term in the sentencing order was reasonable.

Appellant was stopped by Officer Edward Conway while she was driving a motor vehicle on Lummi Shore Road on September 20, 1986. Officer Conway observed appellant driving erratically and he suspected that she might be drunk. She pulled over to the side of the road, and Officer Conway pulled his police car behind her motor vehicle. He asked the appellant to submit to field sobriety tests and advised her she had the right to refuse to submit to the tests. She refused to submit to the field sobriety tests.

Officer Conway placed the appellant under arrest for D.W.I. and transported her to the Lummi Police Station where he read the appellant her rights. Appellant said she understood her rights and did not wish to waive them. Officer Conway read the Implied Consent Warning concerning the consequences of refusing to submit to a tribal breathalyzer to the appellant. She refused to take the breathalyzer test. The appellant was then transported to the Whatcom County jail and booked for D.W.I.

Appellant was arraigned on September 29, 1986 and pled not guilty. She was represented by counsel. Trial was set for October 9, 1986 and she pled not guilty. Prior to trial appellant requested and was granted a continuance. The trial was reset for December 8, 1986. Appellant failed to appear. A bench warrant was issued for her arrest and she was arrested thereon on February 19, 1987.

On February 23, 1987, a trial was set for the D.W.I. for March 23, 1987. On that date the appellant appeared and requested a continuance to allow her to complete alcohol treatment at the Puyallup Tribal Treatment Center.

On September 8, 1987, a case review was held at the time the appellant was serving a 120 day State jail sentence in Whatcom County jail.

Trial was re-set for November 10, 1987. Appellant failed to appear on that date, a bench warrant was issued and the appellant was arrested thereon on March 25, 1988. Appellant was released upon posting $250.00 bail.

Trial was re-set for April 5, 1988. The appellant was found guilty after the bench trial. A Notice of Appeal was filed on April 21, 1988 and $250.00 appeal bond was posted.

On June 3, 1988, after hearing oral argument, the Court of Appeals held that appellant has the right to appeal the judgment and sentencing order.

The appeal was heard on June 10, 1988. At that time the Court of Appeals affirmed the judgment of guilty and modified the sentencing order.

I. RIGHT TO APPEAL JUDGMENT AND SENTENCING ORDER

The right to appeal the final judgments and sentences of the trial court is determined by provisions of the Lummi Law & Order Code: Section 1.8.01 of Title 1 - Lummi Reservation Court, General Rules of the Code reads:

A panel of three judges shall sit as Court of Appeals at such times and places as is proper and necessary for the dispatch of any appeals, to hear any appeals from final judgments, sentences and other final orders of the Reservation court.

Section 1.8.02 of Title 1 - Lummi Reservation Court, General Rules of the Code reads:

There may be established by Rule of Court the limitations if any, to be placed upon the right of appeal, as to the type of cases which may be appealed, as to the grounds of appeals, and as to manner which appeals may be granted, according to the needs of the jurisdiction.

Section 1.8.03 of Title 1 - Lummi Reservation Court, General Rules of the Code reads:

Within ten days from the entry of judgment, the aggrieved party may file with the trial court written notice of appeal and upon giving proper assurance to the court, through the posting of or any other way that will satisfy the judgment if affirmed, shall have the right to appeal, provided the case to be appealed meets the requirements herein established or by Rules of Court.

Section 1.8.05 of Title 1 - Lummi Reservation Court, General Rules of the Code reads:

Within 45 days from the date of written notice of appeal, the appellate court shall convene unless delay is warranted by good cause, to hear the case on appeal at such place as any be designated. A new trial shall be held and court procedures shall be the same as in other cases before the Reservation Court except that there shall be no right to trial by jury.

Section 4.8.01 of Title 4 - Rules of Court (Lummi Law & Order Code) reads:

The grounds for a new trial as set by the Lummi Tribal Court are as follows:

(a) Receipt by the jury of evidence not authorized by the court.

(b) Determination of a verdict by lot, through intimidation or without a fair expression of opinion.

(c) When the Court has refused to instruct the jury correctly as to the law.

(d) When for other cause the defendant has not received a fair and impartial trial.

(e) New evidence discovered and not available at the time of the original trial.

Section 4.8.02 of Title 4 - Rules of Court (Lummi Law & Order Code) reads:

Any persons aggrieved by the verdict of the jury or the judgment of the Court shall have the right to appeal such decision as provided in Title 1, Chapter 1.8 of this Code.

This Court holds there is an absolute right of a new trial before the court of appeals granted by Section 1.8.05 Appellate Trial of the Lummi Law & Order Code. Section

4.8.01 only applies to the trial court when considering motions for new trials made by the parties in the case. It does not apply to the Court of Appeals. Appeals limitations are authorized by Section 1.8.02 Limitations of the Lummi Law & Order Code. This Court knows of no rule adopted which limits the right of appeal and the facts in this case do not warrant the adoption of such a rule. Appellant has an absolute right to a new trial before the court of appeals once appellant has properly perfected her right to appeal.

II. EVIDENCE TO SUPPORT ALLEGED PROMISE BY TRIAL JUDGE TO DISMISS CHARGES

At the new trial before the Court of Appeals, appellant made a motion to have the charges against...