--- Am. Tribal Law ----, 2024 WL 4707400 (Fort Peck C.A.)
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Fort Peck Court of Appeals.
 
Stormy FOURSTAR, Appellant,
v.
FORT PECK TRIBES, Appellee.
 
CAUSE NO. AP 880
|
FILED NOVEMBER 5, 2024

Appeal from the Fort Peck Tribal Court, Lonnie Headdress, Presiding Judge.

Before E. Shanley, Chief Justice, and B.J. Jones and J. Grijalva, Associate Justices

 

ORDER AFFIRMING TRIBAL COURT

BACKGROUND

¶ 1 This matter comes before the Fort Peck Court of Appeals (FPCOA) on an appeal from the Tribal Court’s Judgment of Conviction issued on May 23, 2024 finding Appellant guilty of Sexual Assault, in violation of 7 CCOJ 226.

¶ 2 Appellant filed a Motion to Stay Conviction pending appeal and the Tribal Court granted the Motion to Stay on June 5, 2024.

¶ 3 Appellant alleges that, due to the Tribe’s witnesses’ ability to view a video tape of the incident prior to trial, the witnesses changed their testimony during trial, which contradicted previous statements made in official incident reports. Appellant further alleges that one of the Tribe’s witnesses, Sgt. Orcutt did not have any personal knowledge of the incident, but merely testified based on hearsay and what he saw on the video tape of the incident.

¶ 4 This Court accepted review of the appeal and issued a briefing schedule on August 29, 2024. On September 27, 2024, the Appellee submitted a brief in response to Appellant’s Petition for Review and brief in support.

 

STATEMENT OF JURISDICTION

¶ 5 The Fort Peck Appellate Court may review final orders from the Fort Peck Tribal Court. 2 CCOJ § 202. The Judgment of Conviction is a final order for purposes of review.

 

STANDARD OF REVIEW

¶ 6 This Court reviews de novo all determinations of the lower court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence.

 

ISSUES

¶ 7 1. Did the Tribal Court err when it found Appellant Guilty based on testimony provided by the Tribe’s witnesses that was not consistent with official incident reports?

¶ 8 2. Did the Tribal Court err by allowing the Tribe to call a witness that did not have personal knowledge of the incident?

 

DISCUSSION

¶ 9 The incident underlying this appeal involves an alleged sexual assault committed by the Appellant while serving as a detention guard at the Fort Peck Tribal Jail. The complaint against Appellant alleges that while in official capacity as a detention guard, Appellant touched an inmate’s clothed buttocks and anus with his flashlight and the inmate did not consent to such contact. The issue on appeal centers around a video tape of the incident taken by the Fort Peck Tribal Jail. Appellant suggests that the Tribe’s witnesses viewed the video prior to trial and realized that the object used by Appellant was a baton rather than a flashlight and changed their testimony during trial accordingly.

¶ 10 The Indian Civil Rights Act (ICRA) provides criminal defendants’ a constitutional right to confrontation of witnesses, requiring that a defendant has the ability to cross-examine any witnesses against him at trial. 25 U.S.C. § 1302. This right is codified in the Fort Peck Comprehensive Code of Justice (CCOJ) in Title VI, Section 501. The CCOJ further provides that, “All testimony of witnesses shall be given orally under oath in open court and subject to the right of cross-examination.” 6 CCOJ 506.

¶ 11 This Court has addressed the issue of confrontation in many prior cases, most recently Lilly v. FPTs, APP 847 (Oct. 17, 2023) and Ferguson v. FPTs, APP 866 (June 20, 2023). The constitutional right to cross-examine witnesses is important because it provides the Defendant with the ability to discredit witnesses or question any inconsistent testimony provided at trial, which is the basis of Appellant’s appeal in this matter.

¶ 12 While Appellant claims that the Tribe’s witnesses provided testimony that was inconsistent with their prior statements or official incident reports, it is clear ho was provided the right during his bench trial, to bring those issues to the attention of the Judge. The Judge, as the trier of fact in a bench trial, has the ability to hear the testimony of the witnesses and provide weight to that testimony based on additional information that may be revealed during cross-examination. Here, the fact that the Tribes’ witnesses provided statements in incident reports indicating the object used during the commission of the offense was a flashlight and then later changed their testimony to indicate it was a baton, does not completely discredit the witnesses’ testimony. A flashlight and a baton could easily be mistaken for one another based on the circumstances. The Tribes have indicated that it was the victim, who was unable to see the object used, who originally provided the information that the object was a flashlight, which explains the inconsistency in testimony and the reports. The Tribes also had the ability to refresh the witnesses’ memory and explain the inconsistencies on redirect examination, which occurred here.

¶ 13 In a bench trial, the Judge is the ultimate and sole decider as to the weight of evidence, witness credibility, and questions of fact and law The trial court is in a better position to resolve factual disputes and make credibility determinations regarding the witnesses’ testimony because they see and hear the witnesses testify. This Court, on the other hand, “... review[s] de novo all determinations of the lower court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence.” 2 CCOJ 202.

¶ 14 Additionally, while Appellant alleges that the testimony of Sgt. Orcutt was based solely on hearsay, Appellant had the opportunity to object to the testimony based on hearsay. The Tribe would then have the burden of proving the testimony was admissible in accordance with a hearsay exception provided in the Federal Rules of Evidence, which the Fort Peck Tribe has adopted as the applicable rules of evidence. Again, that determination must be first made by the trial court and preserved for appeal.

¶ 15 Therefore, this Court provides deference to the Tribal Court’s determinations regarding facts and the witnesses’ testimony and credibility and does not set aside any such determinations of the Tribal Court that are supported by the evidence.

 

ORDER

¶ 16 IT IS HEREBY ORDERED that the Tribal Court Judgment of Conviction is AFFIRMED.

SO ORDERED the 5th day of November 2024.

All Citations
--- Am. Tribal Law ----, 2024 WL 4707400