State v. LaPier

• Decision Date: 12 April 1990
• Docket Number: Nos. 88-194,88-621,s. 88-194
• Citation: 790 P.2d 983,242 Mont. 335
• Parties: STATE of Montana, Plaintiff and Respondent, v. Leland Neal LaPIER, Defendant and Appellant. STATE of Montana, ex rel., Leland Neal LaPIER, Petitioner, v. Jack McCORMICK, Warden of Montana State Prison, Respondent.
• Court: Montana Supreme Court

Page 983

790 P.2d 983

242 Mont. 335

STATE of Montana, Plaintiff and Respondent, v. Leland Neal LaPIER, Defendant and Appellant.

STATE of Montana, ex rel., Leland Neal LaPIER, Petitioner, v. Jack McCORMICK, Warden of Montana State Prison, Respondent.

Nos. 88-194, 88-621.

Supreme Court of Montana.

Submitted on Briefs Feb. 1, 1990.

Decided April 12, 1990.

Sandra K. Watts, Florence, Ariz., for defendant and appellant.

Marc Racicot, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, James C. Nelson, Co. Atty., Cut Bank, for plaintiff and respondent.

WEBER, Justice.

Mr. LaPier appeals from his criminal convictions in the District Court of the Ninth Judicial District, Glacier County. In a jury trial, he was found guilty of aggravated burglary, aggravated kidnapping, and felony assault. Mr. LaPier was sentenced to thirty years for aggravated burglary, thirty years for aggravated kidnapping, to be served concurrently, and five years for felony assault, to be served consecutively. Mr. LaPier appeals the convictions. We affirm.

The issues are:

1. Did the District Court err in denying the defendant's motion to dismiss the information for lack of jurisdiction?

2. Was the defendant denied his right to confront the witnesses against him?

3. Did the District Court err in denying the defendant's motion for a continuance of trial?

4. Is the verdict inconsistent?

The incident out of which these charges arose occurred one night in August 1987. At about 10:30 p.m., the victims Richard Kurek, his ex-wife Angela, and his fiancee Shelley Boutier were watching television in Richard's home. Leland "Yackie" Thomas visited the house for a few minutes, then left. Mr. Kurek stated at trial that he didn't really understand why Mr. Thomas was visiting, as none of them knew him well. Following Mr. Thomas' visit, Richard and Angela Kurek went upstairs to fix the curtains in the room where Angela was to spend the night. They had been upstairs about five minutes when the dog began to bark and Shelley began to scream.

Mr. Kurek testified at trial that as he turned to leave the bedroom Mr. LaPier came up the stairs, entered the bedroom, and asked, "Where is it?" Mr. Kurek stated that Mr. LaPier threw him on the bed and demanded to know where the $7,000 was. Richard and Angela Kurek both testified that Mr. LaPier threatened to kill Mr. Kurek and struck him with his fists, then threw Mr. Kurek to the floor and began kicking him with his heavy logger boots. Mr. Kurek testified that he had not known Mr. LaPier prior to this incident.

Angela Kurek testified that at this point, she told Mr. LaPier that she had some money in the trunk of her car parked outside, and that Mr. LaPier told her to go get the money. Angela Kurek testified that when she got to the bottom of the stairs, she saw a man holding Shelley Boutier on the floor with his knee in her back and a handful of hair.

Angela Kurek stated that when she reached her car, she noticed that no one had followed her out of the house. She got into the car. A van had been parked to block the street entrance to the cul-de-sac where the house was located. By going over a neighbor's lawn she drove out of the cul-de-sac and went to notify the police.

Mr. Kurek testified that a second individual, later identified as Merlyn Thomas, joined Mr. LaPier in assaulting him. Mr. Kurek testified that Merlyn Thomas hit him in the head with the blade of a screwdriver, and that the two men forced him into an adjoining bedroom. He stated that Mr. LaPier continued to hit him while Merlyn Thomas stabbed him with the screwdriver. He testified that Mr. LaPier and Mr. Thomas then dragged him downstairs and outside, stating, "Let's burn him."

Mr. Kurek testified that he was then forced into the garage where Mr. LaPier said, "Let's off him." Mr. Kurek testified he later was able to get free and escape to a neighbor's house. Mr. Kurek stated that he noticed Angela Kurek's car and a police car coming up the street. Angela Kurek testified that as she approached the house she saw two men run off. Shelley Boutier came out of a bathroom where she had been hiding.

Mr. LaPier, Leland Thomas and Merlyn Thomas were arrested the next day. Because they are members of the Blackfeet Tribe, the Thomases were tried in federal court. Mr. LaPier was tried in state court.

I

Did the District Court err in denying the defendant's motion to dismiss the information for lack of jurisdiction?

Prior to trial, on October 15, 1987, Mr. LaPier moved to dismiss the information based on lack of jurisdiction. He contended he was an Indian and that state courts lacked jurisdiction to prosecute a criminal offense committed by an Indian within the exterior boundaries of an Indian reservation. The District Court denied this motion. Mr. LaPier's direct appeal of the criminal convictions raised the jurisdictional issue. Mr. LaPier also presented this Court with a petition for habeas corpus raising the same issue. The direct appeal and petition for habeas corpus were consolidated and held in abeyance and the District Court was ordered to hold an evidentiary hearing in regard to Mr. LaPier's status as an Indian. Following this hearing, the District Court entered lengthy findings of fact and conclusions of law, concluding that Mr. LaPier was not an Indian for purposes of criminal offenses and that the state court had jurisdiction to prosecute. For appellate review, the parties have re-briefed the jurisdictional issue subsequent to the hearing.

Jurisdiction to prosecute criminal offenses committed on an Indian reservation is shared by three sovereign entities, depending on the nature of the crime and whether the defendant and the victim are Indian or non-Indian. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 503, 504-05, (1976). A tribal court has jurisdiction if both the defendant and the victim are Indian and the crime is not one listed in 18 U.S.C. § 1153. United States v. Antelope (1977), 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701. Federal courts have jurisdiction pursuant to several statutes, such as the Major Crimes Act, 18 U.S.C. § 1153.

Generally, state courts lack jurisdiction to prosecute an offense committed within the exterior boundaries of an Indian reservation where the defendant is an Indian, or where the victim is an Indian. State v. Greenwalt (1983), 204 Mont. 196, 663 P.2d 1178. The State of Montana does have jurisdiction to prosecute criminal offenses committed within the exterior boundaries of the reservation if neither the defendant nor the victim is Indian. United States v. McBratney (1881), 104 U.S. 621, 26 L.Ed. 869; Draper v. United States (1896), 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; New York ex rel Ray v. Martin (1946), 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261; United States v. Wheeler (1978), 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303; Antelope. In the present case, the offenses occurred within the exterior boundaries of the Blackfeet Indian Reservation. The victim was non-Indian. Thus the jurisdictional issue turns on whether Mr. LaPier is an "Indian" for purposes of criminal jurisdiction.

Congress has not defined "Indian" as it is used in the statutes governing criminal jurisdiction, and no precise formula exists for determining Indian status. St. Cloud v. United States (D.S.D.1988), 702 F.Supp. 1456; Clinton, p. 515. Federal jurisdiction over Indians is premised upon their special status as wards of the federal government. State ex rel. Irvine v. District Court (1951), 125 Mont. 398, 404, 239 P.2d 272, 275-76. If one who is Indian by race becomes "emancipated in some manner, as, for example, by severing tribal relations and taking on civilized habits," the status may terminate. People v. Carmen (Cal.1954), 273 P.2d 521, 525; State v. Attebery (Ariz.1974), 519 P.2d 53, 54-55; Clinton, p. 517.

The test suggested in United States v. Rogers (1846), 45 U.S. (4 How.) 567, 11 L.Ed. 1105, has been frequently cited in determining Indian status. This test is two-pronged: 1) the defendant must have a significant amount of Indian blood, and 2) the defendant must have federal or tribal recognition as an Indian. United States v. Dodge (8th Cir.1976), 538 F.2d 770, 786, cert. denied, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547 (1977). Attebery, 519 P.2d at 54; F. Cohen, Handbook of Federal Indian Law 24 (1982). The second prong of this test, recognition as an Indian, has also been stated as "a sufficient non-racial link to a formerly sovereign people." St. Cloud, 702 F.Supp. at 1461. The St. Cloud court elaborated upon the second prong of the Rogers test, as follows:

This Court nonetheless has gleaned from case law several factors to evaluate whether a person satisfies the second prong of Rogers. In declining order of importance, these factors are: 1) enrollment in a tribe; 2) government recognition formally and informally through providing the person assistance reserved only to Indians; 3) enjoying benefits of tribal affiliation; and 4) social recognition as an Indian through living on a reservation and participating in Indian social life. These factors do not establish a precise formula for determining who is an Indian. Rather, they merely guide the analysis of whether a person is recognized as an Indian.

St. Cloud, 702 F.Supp. at 1461.

We expressly adopt the foregoing test.

The evidentiary hearing in the present case was held March 31, 1989. Mr. LaPier testified at this hearing in addition to numerous other witnesses. The testimony and exhibits established the following facts relevant to Mr. LaPier's status. First, Mr. LaPier is not an enrolled member of any tribe. He possesses 165/512 of Indian blood derived from the Little Shell Band of Landless Chippewa Indians of Montana, and the Turtle Mountain Band of Chippewas. Mr. LaPier is "affiliated" with these tribes. The people comprising these tribes are referred to as Pembinas. Mr. LaPier is a...