State v. DePoe, 44886-6-II
| Decision Date | 09 June 2015 |
| Docket Number | 44886-6-II |
| Court | Court of Appeals of Washington |
| Parties | STATE OF WASHINGTON, Respondent, v. DENNIS DARREL DePOE, Appellant. |
UNPUBLISHED OPINION
A jury returned guilty verdicts in Pierce County Superior Court against Dennis Darrel DePoe for felony driving under the influence of intoxicating liquor (DUI), making a false or misleading statement to a public servant, first degree driving with a suspended license, and operating a motor vehicle without an ignition interlock device, all based on conduct that occurred on land held in trust for the Puyallup Tribe of Indians. DePoe, an enrolled member of the federally recognized Sauk-Suiattle Indian Tribe, appeals from the convictions entered on the jury's verdicts, arguing that (1) the trial court lacked jurisdiction over the charged crimes, (2) the State presented insufficient evidence to support a conviction on the DUI charge, (3) DePoe's attorney rendered ineffective assistance of counsel, and (4) the statute extending state jurisdiction over certain crimes in Indian country[1] and the DUI statute are unconstitutional as applied to DePoe. We affirm, holding that the trial court had jurisdiction over all the charged crimes and that DePoe's substantive arguments are not well founded.
Puyallup Tribal Police Officer Ryan Sales responded to a report of an impaired driver in the parking lot of the Emerald Queen Casino 1-5 in Tacoma. Sales found a Volkswagen Jetta in the parking lot matching the description of the car in the impaired driver report. The Jetta was straddling the lines of a parking stall, its front end in contact with a chain link fence in front of the stall. The Jetta was "high centered" over the curb in front of the stall, with the car's front wheels off the pavement such that it could not move. Verbatim Report of Proceedings (VRP) at 123-24. The Jetta's trunk lid and driver's side door stood open and Sales noticed a cooler and a backpack outside the driver's side door.
Sales saw a man standing at the back of the Jetta and another man later identified as DePoe, walking away. When Sales ordered DePoe to return, he complied. DePoe wore clothing matching the description in the initial report. When Sales asked if the Jetta belonged to DePoe, DePoe denied it, stating that the car belonged to someone who had just left.
Sales asked DePoe for identification, and DePoe claimed not to have any. DePoe identified himself as Desman David DePoe, born May 29, 1986. After a law enforcement database revealed no information associated with that name, Sales asked again, and DePoe gave the same information.
When Sales asked about the backpack, DePoe also denied owning it. Sales searched the backpack and found court documents showing DePoe's correct name, with a birthdate of May 30, 1985. When Sales searched the police database using DePoe's true name and birth date, he discovered that DePoe's driver's license had been suspended and that DePoe was required to have a functioning ignition interlock device on his car.
Sales checked the Jetta's interior and saw no interlock device. Sales smelled an odor of alcohol coming from DePoe and noticed that DePoe's speech was slurred and "his gait was a little off." VRP at 106-07. Sales thought that "possibly" DePoe might have been impaired. VRP at 107.
Puyallup Tribal Police Corporal John Scrivner arrived shortly after Sales and continued the investigation. Scrivner also observed that DePoe showed signs of intoxication. The officers noticed several empty beer cans in the trunk, three unopened cans on the ground near the front right side of the Jetta, and an open can on the floor of the car.
Scrivner arrested DePoe and placed him in the back of a patrol car. Scrivner then went in the casino and watched video recordings of the incident captured by the casino's surveillance cameras.
The video showed the Jetta drive down the paved roadway between the front of the casino building and the casino parking stalls, then park in the stall where the responding officers ultimately discovered the car. DePoe, wearing a backpack, got out of the driver's seat of the car and approached the casino entrance. The video showed DePoe return to the Jetta and get in the driver's seat a short time later, then showed the front of the car move forward over the curb and into the fence. The time stamp on the video showed that DePoe arrived at the casino more than an hour before Sales initially contacted him.
After watching the video, Scrivner returned to the patrol car and informed DePoe that he was under arrest for DUI, driving with a suspended license, and driving a car without an ignition interlock device. Scrivner then drove DePoe to the police station, where DePoe repeatedly refused to respond to requests to submit a breath sample.
The State charged DePoe in Pierce County Superior Court with DUI making a false statement to a public servant, driving with a suspended license, and failure to have an ignition interlock device. DePoe moved to dismiss the charges based on lack of jurisdiction.
At a hearing on the motion to dismiss, the parties stipulated that DePoe is an enrolled member of the federally recognized Sauk-Suiattle Indian Tribe and that the events at issue took place on land held in trust by the federal government for the Puyallup Tribe of Indians within the Puyallup Indian Reservation. The trial court denied the motion, ruling that it had jurisdiction under RCW 37.12.010, the statute asserting state court jurisdiction over Indians oh tribal lands as to certain types of cases, because the roadway on which the video showed DePoe driving qualified as a "public street, alley, or road or highway." VRP at 23.
The jury returned guilty verdicts on all charges. The trial court entered convictions on the verdicts and sentenced DePoe to 60 months' confinement on the DUI charge, as well as lesser concurrent terms on the other charges. DePoe appeals and has submitted a statement of additional grounds for review (SAG) under RAP 10.10.
Because DePoe's jurisdictional argument, if correct, would require reversal of all his convictions, we first address that claim. We hold that our Supreme Court's recent decision in State v. Shale, ___Wn.2d___, 345 P.3d 776 (2015), compels the conclusion that the State had jurisdiction to try DePoe for all of the charged crimes. We then turn to DePoe's challenge to the sufficiency of the evidence supporting the DUI charge, which would, if successful, require dismissal of the charge with prejudice. We next address his claim that his attorney rendered ineffective assistance. Finally, we address DePoe's constitutional challenges to the State's assumption of jurisdiction over crimes in Indian country and to the DUI statute.
DePoe argues that the trial court lacked jurisdiction to try him for making a false statement to a public servant, because the conduct underlying the charge occurred on tribal trust land within the Puyallup Indian Reservation and did not involve one of the enumerated types of matters over which the State has asserted nonconsensual jurisdiction in Indian country under RCW 37.12.010. Before the decision in Shale was issued, the State conceded that DePoe was correct.
DePoe further contends in his SAG and supplemental brief that the trial court lacked jurisdiction over the other charges. DePoe acknowledges that the State has by statute asserted jurisdiction over matters involving the operation of motor vehicles on public streets, alleys, roads, and highways in Indian country. DePoe points out, however, that the only road surface on which the State's evidence showed that he operated the Jetta was the roadway between the casino and the parking lot, and argues that, because this roadway does not qualify as "public" within the meaning of the relevant statute, the trial court lacked jurisdiction over the crimes. SAG at 17. Under Shale, we must reject both DePoe's jurisdictional arguments and the State's concession. 345 P.3d at 780-82.
The State bears the burden of establishing state court jurisdiction to prosecute someone for a crime. State v L.J.M., 129 Wn.2d 386, 392, 918 P.2d 898 (1996). Generally, the State meets this burden merely by showing that any essential element of the crime occurred in Washington. L.J.M., 129 Wn.2d at 392. A defendant who then challenges the state court's jurisdiction must "point to evidence that has been produced and presented to the court, which, if true, would be sufficient to defeat state jurisdiction." L.J.M., 129 Wn.2d at 395. The burden then shifts back to the State, which must establish state court jurisdiction beyond a reasonable doubt. L.J.M., 129 Wn.2d at 394-95.
To the extent the dispute turns on factual questions, those matters become elements to be proved to the trier of fact. State v. Boyd, 109 Wn.App. 244, 251, 34 P.3d 912 (2001). Where state court jurisdiction turns entirely on a question of law, as in cases where the parties do not dispute the location of the conduct at issue, but only whether the place at issue qualifies as Indian country, then the court properly decides the issue. State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069 (1997); L.J.M., 129 Wn.2d at 396-97.
Absent an express grant from Congress, state courts have no jurisdiction over crimes committed by enrolled tribal members in Indian country. Jurisdiction instead rests with the tribes or with the federal government. Robert T. Anderson Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280, 87 Wash.L.Rev. 915, 926-29 (2012) (). A...
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