Port Gamble S'Klallam Tribe v. Rogers, (1994)

• Decision Date: 18 August 1994
• Docket Number: POR-Cr-10/93-132
• Parties: PORT GAMBLE S'KLALLAM TRIBE v. ROGERS
• Court: Port Gamble Sklallam Tribal Court of Appeals

PORT GAMBLE S'KLALLAM TRIBE v. ROGERS

No. POR-Cr-10/93-132

Port Gamble S'klallam Court of Appeals Port Gamble Reservation Kingston, Washington

August 18, 1994

SUMMARY

Appeal of criminal conviction for Indecent Liberties on grounds that Trial judge committed error by instructing jury to vote anonymously.Court of Appeals dismissed on finding that such an instruction is not error.

Before: Chief Justice Elbridge Coochise, Associate Justice Charles R. Hostnik, and Associate Justice Mary T. Wynne.

HOSTNIK, ASSOCIATE JUSTICE

NATURE OF THE ACTION

Appellant was charged with indecent liberties in violation of the Port Gamble S'Klallam Tribal Law and Order Code.The jury came back deadlocked after initial deliberations.After discussion with counsel, the Judge sent the jury back for further deliberations.The jury returned with a guilty verdict.

Appellant appeals to this Court alleging the trial judge committed error: (1) by sending the jury to deliberate further; (2) instructing the jury to vote anonymously; and (3) coercing the jury into reaching a verdict.

JURISDICTION OF TRIBAL COURT

The Port Gamble S'Klallam Tribal Court has subject matter jurisdiction over the criminal charge of Indecent Liberties pursuant to Section 5.1.9 of the Port Gamble S'Klallam Law and Order Code.

Personal jurisdiction exists because the Appellant lives within the exterior boundaries of the Port Gamble S'Klallam Reservation and is a Native American.

Territorial jurisdiction exists because the alleged crime occurred within the exterior boundaries of the Port Gamble S'Klallam Reservation.

The Port Gamble S'Klallam Tribal Appeals Court has jurisdiction over this appeal pursuant to the Port Gamble S'Klallam Law and Order Code, Section 7.3.1, which provides that a criminal defendant can appeal a judgment of guilt by the Port Gamble S'Klallam Tribal Court as a matter of right.

SEQUENCE OF EVENTS

The six person jury came back after their initial deliberations in a three-to-three split.The Court began to dismiss the jury but the prosecutor requested that before the jury be excused the court hear argument in the absence of the jury.The jury left the courtroom and a discussion occurred on the record between the prosecutor and defense counsel, before the trial judge.The prosecutor moved that the jury be given additional time to deliberate until a point was reached where it became certain that the jury could not reach a unanimous verdict.

Defense counsel did not object to the additional time to deliberate, but did request that the jury remain sequestered.Defense counsel wanted the jury to continue deliberating, rather than come back the following day.

Counsel also discussed the prosecutor's suggestion that some direction be given to the jurors to allow them to vote anonymously.Defense counsel objected to further instructions on the basis that "they've already been deliberating, I'm sure they've set up a system that's satisfactory to them."Transcript, p. 77.

At that point, the judge requested the jury reenter the courtroom, and the following discussion occurred:

JUDGE WARD:

Okay.Members of the Jury.Both sides on this case are very concerned that you have not been able to reach a verdict.A request has been made that you attempt, continue deliberations and attempt to come up with a verdict.What might be of assistance, so there are going to be continuing deliberations.What might be of assistance in your continuing deliberations in this manner, is to implement a system where you could vote anonymously on the verdict, and I'm going to suggest that you continue your deliberations, when you get to a point where you want to state your opinion, about the guilt or innocence of the Defendant, you write that down on a piece of paper and give it to the Foreman.And conduct your deliberations that way.Do any of you have any questions?

JUROR MEMBER: Do what now?

JUDGE WARD:

You are going to continue deliberating this case.After you discuss the matter in front of you, and you are ready to take a vote on what the verdict will be, each of you will be allowed to put down your verdict on a piece of paper and give it to the Foreman.We are assuming that you expressed your verdict by verbally, or raising your hand, or in some other fashion.I'm going to suggest that you do that by secret ballot.And with that in mind, you may continue your deliberations.I assume you're the Foreman?

JUROR: Yeah.

JUDGE WARD:

Court is in recess for further jury deliberations, and the Clerk will provide you with pieces of paper so that you can write down your verdict.Court is in recess for jury deliberation.

BASIS OF APPEAL

Defendant raises several issues on appeal.First, Defendant contends that further instructions should not have been given to the jury after they were initially instructed by the court.Second, Defendant contends that the instruction given - that the jury should continue deliberations "in an attempt to come up with a verdict" - impermissibly suggested that a verdict needed to be reached.Third, the Defendant argues that the suggestion that the jury vote anonymously was unduly coercive.

Additional Instructions

In reviewing the transcript of the proceedings, it is apparent that defense counsel did not object to permitting the jury additional time to continue their deliberations, as long as the deliberations commenced immediately, instead of having the jury reconvene and come back to deliberate.Defense counsel's concerns were that it was a small community and despite admonishments by the judge for the jurors not to speak about the case, such discussions might occur.

Defense counsel did not object to allowing the jury additional time to deliberate, or to continue their deliberations.Defense counsel's objection to "further instructions" related primarily to the suggestion that the jurors could vote anonymously.Therefore, we will treat defense counsel's objection as one relating to the anonymous voting instruction specifically, rather than additional instructions in general.

Voting Anonymously

Defense counsel did object to the suggestion that the jurors vote anonymously.The basis of defense counsel's objection was that he was sure that they had already set up a system to determine a verdict, since the jury had already been deliberating.

In his brief, defense counsel indicates that his objection was based on an off-the-record discussion with the prosecutor that led defense counsel to believe that jury voting by secret ballot would lead to a greater conviction rate.The prosecutor at oral argument vigorously disputed the content of the alleged off-the-record discussion.That discussion is not a part of the record before us, and is not presented in the form of affidavits or other evidence.Therefore, this Court will disregard these unsupported allegations by defense counsel.The Court must confine its review to the record before us.

Looking at the precise language used by the trial court, it appears that the voting anonymously suggestion was indeed a suggestion.It was not a mandatory requirement and therefore, was not in that sense a "jury instruction" that the jury was required to follow; it was simply a method which could be utilized by the jury in an attempt to...