Appeal from Shiprock District Court No. SR-CR

Transcription

1 ... ' No. SC-CR-03-/G:, THE NAVAJO NATION, Appellee, vs. "'-... ROY TSO, JR., Appellant. Appeal from Shiprock District Court No. SR-CR APPELLANT'S OPENING BRIEF Respectfully Submitted By: Judy R. Apachee Glanzer Law Office 201 E. Birch Avenue, Suite 10 Flagstaff, Arizona Telephone: (928) Facsimile: (928)

2 TABLE OF CONTENTS Table of.citations...,...,....iii Cases...,...iii Dtne ' b' 1 b eena h az ' aanu '... iv Statutes...,...:...,...:... iv Rules... iv Statement of the Case...,..,... 1 Statement of the Proceedings... 4.Statement of Facts... 9 Statement of Issues Presented Argument l. Standards of. Review The Trial Court committed fundamental error by allowing the Navajo Na'tion to take its case to trial without compliance with discovery rules and without having filed any motions in limine... ; The Trial Court committed fundamental error by failing to comply with the Navajo Rules of Evidence The Navajo Nation's contract prosecutor engaged in prosecutorial misconduct in the presentation of evidence concerning alleged statements of Sharon Williams, and the Trial Court's denial of relief to Defendant was fundamental error The Trial Court failed to analyze each element of the offense of "Abuse of Office" and find that each of the elements was proven beyond a reasonable doubt with admissible evidence a. Acts in an official capacity or takes advantage of such capacity b. Knowledge that conduct is unlawful c. Denies or impedes another in exercise of any power... Sl d. Other acts irrelevant and prejudicial... 53

3 6. The Trial Court committed fundamental error by issuing a written removal from office order which is the Substantive opposite of the sentence announced in open court at sentencing as the "final decision" of the Court Relief Requested Certificate of Service... :...,

4 0 TABLE OF CITATIONS CASES Apochito v. Navajo Notion 8 Nov. R. 339 (Nov. Sup. Ct. 2003) Baker v. Greyeyes No. SC-CV (Nav. Sup. Ct. August 24, 2012} Begay v. Navajo Nation, 6 Nav. R. 20 (Nov. Sup. Ct. 1988) Black v. Bigman 8 Nav. R. 177 {Nov. Sup. Ct. 2001)... 5, 28, 30 Chavez v. Tome, 5 Nov. R. 183 {Nav. Sup. Ct. 1987) Eriocho v. Ramah District Court 8 Nav. R. 617 (Nav. Sup. Ct. 2005)..., John v. Novojo Nation No. SC-CR {Nov. Sup. Ct. July 21, 2011) Navajo Nation v. MacDonald 7 Nov. R. 1 (Nav. Sup. Ct. 1992} Navajo Nation v. Murphy 6 Nav. R. 10 {Nov. Sup. Ct. 1988) Navqjo Nation v. Platero 6 Nov. R. 422 {Nav. Sup. Ct. 1991)... 25, 43, 47,54 Perry v. Navajo Nation Labor Commission No. SC-CV {Nav. Sup. Ct. August 7, 2006) Rough Rock Community School v. Nqvojo Nation 7 Nov. R. 313 (Nav. Sup. Ct. 1998) Salt v. Martinez SC-CV (Nov. Sup. Ct. January 21, 2009) In r~ Seanez, No. SC~CV {Nov. Sup. Ct. October 22, 2010) iii

5 0 DINE 81 BEENAHAZ'AANII, 8 h, ne 1 Been a az aanu ,, I I, Hazh6'6go.,... 31,34 K'e STATUTES Navajo Nation Bill of Rights... 6, 31, 33~ 34, N.N.C. 202(0) N.N.C N.N.C , N.N.C N.N.C N.N.C , N.N.C N.N.C , N.N.C. 364(A) (3)... 4, 7, 9, N.N.C. 479(A)... 44, 46 Indian Civil Rights Act... 6, 31, 33, 34, 46 RULES Navajo Rules of Criminal Procedure Rule 8(a) Rule , 11, 27, 30, 31, 33, 34 Rule 25(f)... 4, 6, 11, 27, 29 iv

6 Navajo Rules of Criminal Procedure (continu~d) R.ule 27(a)...., Rule 27.(bJ...., Navajo Rules of Evidence Rule 2[a)...,...: Ru le 2(d)...., Navajo Rules of Professional Conduct Rule , 45 Rule ,... 42, 45 Rule ,....,... 41, 44 Rule , Canons of Judicial Conduct....,.,....,....,..,.. 51, v

7 STATEMENT OF THE CASE This appeal concerns a criminal conviction based on innuendo, supposition, hearsay and lack of evidence. The Trial Court used information concerning alleged events which were not charged to find Defendant guilty of the offense charged. The evidentiary problems of this case arose first when the prosecution failed to meet its duties of disclosure, to identify the documents and other acts not charged upon which it would rely in attempting to prove the charged offense. The Trial Court allowed the prosecution to use its "open file" policy to avoid complying with the clear requirements of the Rules of Criminal Procedure, which denied due process to Defendant and impeded his ability to adequately and fully prepare for trial. The Trial Court refused to hold the Navajo Nation to its unique responsibility to seek justice and to not simply seek a conviction at any cost. The Navajo Nation filed no pretrial motions in limine for the Trial Court to make preliminary rulings concerning matters of questionable admissibility. Combined with the failure to comply with disclosure rules, this created a situation where Defendant was forced to guess at what the prosecution's case would consist of. The Trial Court permitted the Navajo Nation to go beyond the allegations of the complaint into at least four other incidents which were not alleged or charged in the Complaint. 1

8 At bench trial, the Trial Court permitted hearsay to be admitted in spite of rulings against hearsay, and used hearsay and double hearsay to develop proof beyond a reasonable doubt. The Trial Court improperly allowed specific statements of hearsay to come in under the guise of being an "impression" or "belief." The Trial Court's order of conviction repeatedly found that "evidence" which is "uncontroverted, unequivocal and uncontradicted" was for those reasons alone sufficient to meet the prosecution's burden of proof beyond a reasonable doubt. The Trial Court failed, in each and every instance, to independently analyze foundation, relevance, probative value, credibility, personal knowledge, hearsay, double hearsay, trustworthiness, and best evidence - all of which the Trial Court is required to do under the Rules of Evidence. Many of the errors committed by the Trial Court in pretrial rulings and in rulings at trial constitute fundamental error in the context of a criminal prosecution. Other errors constitute abuses of discretion which denied Defendant a fair trial. Finally, the Trial Court committed fundamental error by reversing a part of its sentence given at the time of sentencing, when it entered its written sentencing order. 2

9 n Defendant Roy Tso, Jr. is entitled to a reversal and vacating of the conviction in this case based upon denials of due process and lack of proof beyond a reasonable doubt as a matter of law. 3

10 STATEMENT OF THE PROCEEDINGS BELOW On August 15, 2014, Plaintiff Navajo Nation filed a criminal complaint charging Defendant Roy Tso, Jr. of the offense of Abuse of Office, a violation of 17 N.N.C. 364(A). On September 16, 2014, Richard C. Wade, Advocate Law Center, Gallup, New Mexico as Special Contract Prosecutor for the Navajo Nation. On December 16, 2014, the first pre-trial conference was held and Plaintiff prepared a submitted it pretrial statement. On March 10,2015, a second pretrial statement was filed by the parties. On March 12, 2015, Plaintiff filed an Amended Witness List that included Alesia Barber, Navajo Nation Police Officer, Sharon Williams, Bernadine Martine, (then Chief Prosecutor) and FBI Dustin Grant. On May 7, 2015, Defendant at the time and date set for final hearing filed his motion to Dismiss pursuant to Navajo Rules of Criminal Procedure, Rule 25(f), Statement of Compliance, Plaintiff failed to its disclosure "not less than twenty (20) days prior to trial." The Trial Court continued the final hearing to permit Plaintiff additional time to respond to Defendant's Motion to Dismiss. On May 7, 2015, Navajo Nation hand delivered a packet to Defense counsel. 1 1 The packet contained an assortment of papers. None of the documents from the packet was used at trial on August 12,

11 n On Mdy , Plaintiff filed a Response to Defendant's Motion to.dismiss was filed with the Trial Court and attached pretrial statements from December and March 10, on May Defendant filed his Reply to Plaintiff's response to his Motion to Dismiss. On March , Plaintiff filed a single page captioned "Statement of Compliance." a single sentence that it has met all disclosure requirements pursuant to RUle 25, of the Navcjo Rule of Criminal Procedure. On June 8, 2015, Plaintiff filed a Supplemental Response to Defendant's Motion to Dismiss and attached a copy of Navajo Nation v. Philbert Toddy, WR- FC a ''Judgment of Acquittal" in that case the Prosecutor had filed a pretrial statement and Statement of Compliance.. 2 The Trial Court denied Defendant's Motion to Dismiss pursuant to Black v. Bigman, 8 Nov. R. 177, 180 (Nov. Sup. Ct. 2001) stating Defendant's argument was based on a technicality. On August , Defendant filed his Motion for Reconsideration the Order Deny Motion to Dismiss stcting the Tricl Court does not hcve discretion to discount the mandates of Navajo Rules of Criminal Procedure, Rule Mr. Toddy terminated his client-attorney relationship with Mr. Wade and retained undersigned counsel. Special Prosecutor Wade obtained a copy of Mr. Toddy's Judgment Acquittal entered on June , and the Judgment Acquittal herein on June 4, It is believed that Special Prosecutor was not working independently but in conjunction with the Navajo Nation Office of the Prosecutor. Bernadine Martin wds removed frorn prosecuting Defendant Tso for the reason that Ms. Martin was Defendant's immediate supervisor when Defendant was a prosecutor. Ms. Martin was listed as a witness by Pl.dintiff dnd Ms. Martin appeared dt Defendant's Sentencing Hearing and testified as a victim in the criminal case. 5

12 Plaintiff's failure to comply with Rule 25(f) of the Navajo Rules of Criminal Procedure is not a technicality but a mandate. Further, the authority cited by the Court is civil action which is not applicable for the reason that the issue and the rules are not identical. Defendant argued that any subsequent pleading filed by Plaintiff does not cure the failure to meet the requirements of Nov. R. Cr. P., Rule 25. On August 11, 2015, Defendant filed a Reply to Plaintiff's Response to Defendant's Motion for Reconsideration. Defendant argued the Nov. R. Cr. P., Rule 25, is in place to ensure the Defendant's legal rights pursuant to the Navajo Bill of rights, the Indian Civil Rights Act, and Dine Bi Beenahaz'aanii to have Plaintiff provide a list of any evidence it intends to use at trial. Plaintiff argued that the Defendant had a duty request disclosures, conduct interviews, issue subpoenas in affect assist in his own prosecution. Without Plaintiff's list of evidence to be used at trial it was impossible to prepare to a defense, motions, or trial. Plaintiff's "open file' policy does not cure Plaintiff's duty pursuant to Rule 25, to provide a list of those matters it intends to use at trial. Plaintiff argued that Defendant's legal rights pursuant to the Navajo Bill of rights, the Indian Civil Rights Act, and Dine Bi Beenahaz'aanii were not "murky legal authority." On August 12, 2015, immediately before commencement of the bench trial the Trial Court hand delivered to Defendant the Order Denying Motion for Reconsideration and proceeded with the bench trial. 6

13 Defendant submitted his written Closing Argument stating Plaintiff has failed prove that on June 23, 2013, Defendant violated 17 N.N.C. 364 (A) (3) Abuse of Office. Defendant stated that Plaintiff presented no documentary evidence to substantiate the two (2) witnesses' testimony. Defendant reviewed all of the evidence, and those main arguments are included in and supplemented by this appellate Brief. On or about September 9, 2015, Defendant filed his motion to strike Prosecutor Benally's Testimony for Prosecutorial Misconduct concerning Sharon Williams' statement about the offer of money to drop the charges against Defendant's sister and niece. Defendant obtained a copy of FBI Agent Dustin Grant's report of meeting with Sharon Williams. Ms. Williams denied making an offer on behalf of Defendant's family to Prosecutor Benally. According to the FBI report Ms. Williams said she did not know the Defendant's sister and niece were in jail and she wished Prosecutor Benally stop making statements about her. Plaintiff was aware of the FBI investigation report regarding Sharon Williams denying making a monetary offer on behalf of Defendant's family to drop the charges against Defendant's sister and niece when he elicited testimony from Prosecutor Benally. Further, Prosecutor Benally committed perjury with the help of Plaintiff. The Trial Court denied Defendant's Motion to Strike Prosecutor Benally's testimony regarding Sharon Williams. Trial Court held that FBI Agent Grant's report is not signed or certified and Agent Grant was not called as a witness. 7

14 The Trial Court held that Agent Grant's report was not present at trial and Defendant was provided an opportunity to present witnesses on his behalf. On December 18, 2015, the Trial Court entered its Order finding Defendant guilty of the offense charged. Sentencing was held on February 26, 2016, and the Trial Court issued its written sentencing order on March 2,

15 STATEMENT OF FACTS A. Disclosure. 1. The Complaint in this cause of action alleges that Defendant committed a violation of 17 N.N.C. 364, Abuse of Office, "at or around the hour of 11:30 p.m. on or about the 23th (sic) day of June, 2013, within the jurisdiction of this Court in Shiprock, NM." 2. The "Facts" alleged in support of the charge were as follows: Defendant was a Navajo Nation District Judge on June 23, Defendant contacted prosecutor Ruby Benally on Sunday June 23, 2013, Ruby Benally's cell phone at approximately 11:30 p.m. regarding the arrests of his sister, Anita Garcia and niece Floydina Hadley. Defendant wanted to know if they (Anita Garcia and Floydina Hadley) (sic). Defendant advised Ruby Ben ally that a relative waiting (sic) outside of the Detention Center. Defendant again called prosecutor Ruby Benally on her cell phone at approximately 2:30 a.m. on Monday, June 24, 2013 but Ruby Benally did not answer that call. Defendant used his authority as a Judge to impede the criminal process that involved his family members. 3. The witnesses disclosed by the Navajo Nation in the Complaint included: ( 1) [Prosecutor] Ruby Ben ally; and (2) Frank Brown, Investigator, Office of the Prosecutors. 9

16 4. The Complaint was signed by then Prosecutor Bernadine Martin on August 15, 2014, which was more than 13 months after the alleged offense. The Complaint was filed on August 15, On or about September 16, 2014, Richard Wade filed an appearance as "Special Contract Counsel for the Prosecutor, Navajo Nation." 6. The Pre-Trial Conference Report filed on December 16, 2014, approved by Mr. Wade by personal signature, disclosed the following information for Plaintiff Navajo Nation: (9) Witnesses: Ruby Benally; Frank Brown; & possibly others. ( 1 0) Expert witnesses: 20 days of pre-trial. ( 11) List of all evidence: Evidence already disclosed - any additional evidence must be within 30 days of trial date. None of the "evidence already disclosed" was listed in this Report. 7. On or about January 30, 2015, the Navajo Nation filed a "Witness List" which listed the following witnesses by name: Frank Brown Ruby Benally Sharon Williams, a/k/a Gordo Bernadine Martine (sic) FBI Agent Dustin Grant This disclosure statement did not list any evidence to be used at trial. 8. The Pre-Trial Conference Report filed on March 10, 2015, approved by Mr. Wade telephonically, disclosed the following information for Plaintiff Navajo Nation: (9) Witnesses: Ruby Benally; Frank Brown. ( 1 0) Expert witnesses: None. ( 11) List of all evidence: Interviews by Frank Brown & FBI D. Grant. 10

17 -- -~ No other exhibits were disclosed in this Report On or about March 12, 2015, the Navajo Nation filed an "Amended Witness List" which listed the following witnesses by name: Alesia Barber Frank Brown Ruby Benally Sharon Williams, a/k/a Gordo Bernadine Martine (sic) FBI Agent Dustin Grant This disclosure statement did not list any evidence to be used at trial. 10. On May 7, 2015, the day of a trial setting, Defendant filed a Motion to Dismiss "for the reason that the Plaintiff Navajo Nation has failed to comply with Rule 25(f), Statement of Compliance, 'not less than twenty (20) days prior to trial." 11. On May 12, 2015, the Navajo Nation filed and served a pleading captioned, "Counsel Notified of Open File Policy." This pleading states: "This is to acknowledge that Contract Prosecutor for the Navajo Nation, Richard C. Wade, has notified Defense Counsel Judy Apachee on May 8, 2015, by that the entire contents of the prosecution's file is available for inspection, copying and/or scanning at the office of Advocate Law Center." 12. On or about May 18, 2015, the Navajo Nation filed a "Statement of Compliance" which alleged, "The Navajo Nation, Plaintiff, has met all disclosure requirements pursuant to Rule 25, Navajo Rules of Criminal Procedure." 11

18 B. Trial testimony re: June 23-24, The trial was held on August 12, The Navajo Nation called two (2) witnesses: Alesia Barber and Ruby Benally. 14. Defendant objected to the testimony of Alesia Barber on the grounds that she had no personal knowledge concerning the facts alleged in the Complaint for June 23, 2013 at 11 :30 p.m., and further had not investigated those alleged facts. {TT 20:23 to 21 :6; 21:18 to 22: 13.) The Trial Court overruled the objection. {TT 22:23 to 23:6.) 16. Defendant noted a "running objection" to the testimony of Alesia Barber. {TT 25:3-9.) The Court ruled, "I think you need to state each objection counsel." {TT 25: ) 17. Defendant noted another objection to the testimony of Alesia Barber. (TT 25: ) The Court again overruled the objection. {TT 26:4-6.) 18. Alesia Barber testified about participating as a police officer in an investigation on June 23, 2013 concerning a reported burglary at a storage unit. The investigation led her to a house where she encountered Roy Tso. 19. Alesia Barber was asked on cross-examination whether on June 23, 2013, Defendant had verbally identified himself as a judge, and Ms. Barber responded, "I can't remember... Can't really remember." {TT 44:10-17.) 3 Citations to the Trial Transcript will be abbreviated as follows: "TT" indicates Trial Transcript; first number indicates page number of the Trial Transcript; second number (after the colon) indicates line number(s). 12 I I,

19 --- -" ---~ () 20. Alesia Barber was asked whether Defendant had instructed her on June 23, 2013, to stop what she was doing because "he's the district court judge." Ms. Barber responded, "No." {TT 44:23 to 45: 1.) 21. Alesia Barber testified that the "credential" provided to her by Defendant on June 23,2013, was his driver's license. {TT 48:15-17; 49:6-10.) 22. On re-direct examination by the prosecutor, Alesia Barber testified that Defendant had attempted to present his driver's license and his "Navajo Nation credentials," but that she gave back the "credentials" without seeing the "wording" on it. {TT 57: 16-20; 58: ) 23. With respect to her testimony about contact with Defendant on June 23, 2013, Alesia Barber did not at any time use the words "interfere" or "interfering" with respect to any actions of Mr. Tso. Further, Ms. Barber did not use the word "intimidated" in describing how she felt during her contact with Mr. Tso on June 23, Ruby Benally was asked by Mr. Wade what acquaintance she had with Roy Tso, Jr. during her employment. The following exchange occurred: MS. BENALLY: MR. WADE: MS. BENALLY: MR. WADE: MS. BENALLY: Uh, he was a prosecutor for Chinle prosecutor, but no not really that much of a contact. Were you friends? Co-worker. Did you work with him routinely as a prosecutor? I don't think so, no. (TT 66:4-11.) 25. Ms. Benally testified that her contact had been "[m]aybe just occasional hello at a conference, but that's about it." {TT 67: ) 13

20 ~ 26. Ms. Benally testified that she did not know Defendant's personal telephone number, only his number at the prosecutor's office at Chinle. {TT 66: ) 27. Ms. Benally testified that she never gave her personal telephone number to the Defendant. {TT 70:24 to 71: 1.) 28. Ruby Benally testified that the Defendant called her on her personal phone "around about eleven thirty" "in the evening" on Sunday, June 23, (TT 67: 16 to 68:2.) 29. Ruby Benally testified that the call did not come from a court phone, but rather from a cell phone. {TT 89:3-1 0.) 30. The Navajo Nation presented no phone log records for Ms. Benally's personal phone to show the number that the 11 :30 p.m. call came from, or to show the incoming call to Ms. Benally's personal phone. 31. The Navajo Nation prosecutor asked Ms. Benally, "Did Mr. Tso identify himself to you when he called you?" Ms. Benally responded simply, "Yes." However, Ms. Benally did not testify exactly how the alleged caller identified himself (i.e., what name he used), and Ms. Benally did not testify that she recognized the caller's voice as being the voice of Mr. Tso. (TT 68: ) 32. When asked if the caller identified himself as a judge, Ruby Benally responded, "I don't recall." (TT 69: ) 14

21 33. On cross-examination, Ruby Benally was asked if the caller had told her during the phone call that "I'm the judge and I want you to do this." Ms. Benally responded, "No." (TT91:12-14, 19.) 34. Ruby Benally testified that the 11:30 p.m. caller stated "[t]hat, um, he wanted his sister and niece to be released from jail that night. Um, what they were charged with and if I could get them released." {TT 68:19-22: accord, 88:12-16.) 35. Ruby Benally admitted later in her testimony that Defendant had stated to her that his niece had "medical needs." (TT 101 :8-12.) 36. The prosecutor's follow-up question and response were as follows: I l I (TT 69:2-13.) MR. WADE: MS. BENALLY: Did he explain to you or, or discuss with you how you might get that done or get them released? He explained that there will a relative waiting outside if they can be released at night. And I did explain to him that I, I don't think that's possible. They don't release defendants in the evening, at night. They usually wait until in the morning. And they cannot be released if there's a hold on a defendant from the police officers. 37. Ruby Ben ally admitted that she engaged in conversation with the caller, rather than just telling the caller that she could not talk to him. Ms. Benally further testified that she believes that her oath as a prosecutor means that she "cannot... speak to a judge on any matters." {TT 93: ) However, Ms. Benally testified that she believed that her conversation was "consistent with that oath." (TT 93: ) 15

22 n 38. When questioned as to what action Ruby Benally took after the phone call from the person she believed to be Roy Tso, the following exchange took place: MR. WADE: MS. BENALL Y: MR. WADE: MS. BENALLY: MR. WADE: MS. BENALLY: Did you take any action as a result of, of receiving that telephone call? Yes. I called down to detention to see if these two were detained. I was informed yes. And I was, uh, I called to see what kind of charges they have. And I asked if they were on police hold. And I was informed that, um, they were on hold and they cannot be released that night. Did you asked for them to be released? No. I, I just asked, uh, what kind of charges they were in, they have and, uh, and I knew they cannot be released. Did you express any, uh, information or disclose any information to the jail as to Mr. Tso's request of you? I don't recall. I don't remember. (TT 72: 15 to 73:9.) 39. The Trial Court allowed Ruby Benally to testify about what she "was told" "after this whole thing came about" by undisclosed individual(s) about "Mr. Tso would call detention" on other occasions. {TT 73:20-25.) (See further discussion in Section E, Hearsay, below.) 40. After talking with detention that night, Ruby Benally did not call back to the person who had called her earlier, whom she believed to be Roy Tso. (TT 74: ) 41. Ruby Benally testified that "he" (inferred to be Roy Tso) called her back about 1 :30 or 2:00 a.m., but she did not answer the call. Ms. Benally testified that the telephone number showing up on her "caller ID" was the same 16

23 number that had shown up when the 11 :30 p.m. call came to her phone. (TT 75:6 to 76:4.) 42. When asked why she did not answer the second call from the same number, Ruby Benally replied because "[i]t was way late." {TT 76:4-6.) 43. The Navajo Nation presented no phone log records for Ms. Benally's personal phone to show the number that the 1 :30 or 2:00 a.m. call came from, or to show the time of the call. 44. The prosecutor then asked Ruby Benally if she heard any more from Roy Tso on June 24, 2013, and the following exchange occurred: MR. WADE: MS. BENALLY: MR. WADE: MS. BENALLY: MR. WADE: MS. BENALLY: MR. WADE: MS. BENALLY: Did, did you hear anymore from, uh, Mr. Tso on June 24th, on that Monday? Yes. I received a text from him asking when his sister and niece will be released. Did the texts specifically identify the sister and the niece? Yes. Did you, uh, did you respond that? No I didn't. Why not? Because I wasn't sure if, uh, I had to, if I was going to get the police report that day and this was like six thirty in the morning and, um, I didn't get to work until eight and I wouldn't know if they were released that day or not depending if you get a police report. {TT 76:19 to 77: 15.) 45. The person who sent the alleged text message did not identify himself/herself as a judge. {TT 91 :2-5.) 46. The Navajo Nation presented no copies of the alleged text message to Ruby Benally's personal phone on the morning of June 24,

24 n 47. The Navajo Nation presented no telephone records to verify the alleged caller's and/or texter's telephone number, or the owner of that telephone number. 48. The Navajo Nation presented no evidence of any kind to corroborate Ms. Benally's testimony about the phone call and the text message. 49. The prosecutor also asked Ruby Benally whether she took any other action concerning this matter. The following exchange occurred: MR. WADE: MS. BENALLY: MR. WADE: MS. BENALLY: MR. WADE: MS. BENALLY: MR. WADE: MS. BENALLY: What were your feelings about, uh, what, what you would need to do next? I, um, that, that day I did, I was informed that there was an arrest made. They were incarcerated. But, uh, I did not pursuit anything about having them released. Did you ever file a complaint? No I didn't. Were you ever involved in, in the, uh, uh, prosecution or the complaint of those individuals? No. I, I was waiting for a police report and complaint to come in. I never received them. You never received a complaint? Not until way much later. After the complaints were dismissed by the judge, by the court. MR. WADE: You, did you ever sign a complaint? MS. BENALL Y (sic): Did someone else sign the complaint? MS. BENALLY: No. I didn't know. {TT 78:7 to 79:7.) C. Trial testimony re: unspecified date prior to June 23, Defendant objected (TT 28:9-17) to Alesia Barber testifying as to a police investigation on an unspecified date (prior to June 23, 2013) concerning Horace Moon, at which undisclosed time Ms. Barber had contact with Roy Tso 18

25 - ~~--""""'""""'"" --- "'- ---~ (during a time when "he was working for Crownpoint") and that Mr. Tso had "a side arm and his credentials." (TT 27:6-17; 27:24 to 28: 1.) 51. The Navajo Notion had not filed a pretrial motion concerning use of Ms. Barber's testimony on the unspecified prior date. 52. The Court allowed the testimony of Alesia Barber as to the "credentials" on the unspecified prior date, but sustained the objection as to the weapon. {TT 29: ) 53. On re-direct examination, the prosecutor again asked more details about the "prior circumstance" (unspecified date) and what "credentials" Mr. Tso hod presented at that time; Defendant objected on grounds of relevancy. {TT 59: ) After Mr. Wade claimed that Evidence Rule 8(d) was applicable because "character or a trait of character of a person is an essential element of the charge," the Trial Court overruled the objection. (TT 60:20 to 61 :2; 61: 12.) 54. With respect to her contact with Defendant on that prior unspecified date, Alesia Barber used the words "interfere" and "interfering" with respect to the actions of Mr. Tso. {TT 31 :2; 63:5.) Further, Ms. Barber used the word "intimidated" in describing how she felt during her contact with Mr. Tso on that prior unspecified date when Mr. Tso was a prosecutor. (TT 62:21.) D._ Trial testimony re: subsequent event in July The Trial Court allowed the Navajo Nation to present evidence concerning a subsequent event which happened several weeks after the date of the alleged offense. 19

26 n 56. The Navajo Nation had not filed a pretrial motion to seek admission of evidence concerning any subsequent events. 57. Ruby Benally testified over objection concerning a meeting that she allegedly had with Sharon Williams on "I believe it was July 14th." (TT 79:24 to 80:6.) 58. The Trial Court sustained Defendant's hearsay objection to anything that Sharon Williams, also known as Gordo, allegedly said during the meeting, for the reason that the Navajo Nation was not calling Ms. Williams as a witness at the time of trial. (TT 81: ) 59. When Ruby Ben ally was asked about her "impression" of the purpose of her meeting with Sharon Williams, she responded with a hearsay answer: "I was, uh, told to do something that I'm not supposed to do as a prosecutor." (TT 83: ) 60. When the prosecutor asked Ruby Benally, "Who do you think" was "behind" making the request, Defendant objected on the basis of calling for speculation. Mr. Wade then asked nearly the same question, "[W]ho do you believe was the person behind the request?" The objection was overruled. (TT 84: ) 61. Ruby Benally testified that she was aware that the FBI (Federal Bureau of Investigation) had interviewed Sharon Williams concerning this matter. (TT 98:6-8; 99: ) 20

27 n 62. When asked a question by defense counsel about the conversation with Sharon Williams, specifying "without saying what Ms. Williams said," Ruby Benally responded with a direct quote attributed to Ms. Williams. The quote involved unspecified persons- "they." (TT 106: ) 63. On cross-examination, the Trial Court overruled defense counsel's hearsay objection when the prosecutor asked more questions about what Ms. Williams allegedly said to Ruby Benally. The prosecutor claimed that defense counsel had "opened that door" and that he had not "objected to hearsay." ( 109: ) 64. Ruby Benally testified that "I believe it was Roy Tso and Anita Tso" who were offering a bribe based on what Ms. Williams had told her. {TT 110: ) 65. Defendant objected to this line of testimony because the offense charged was Abuse of Office, not Bribery. certainly fall within the abuse of office." The prosecutor alleged, "Bribery The Trial Court then overruled Defendant's objection. {TT 112:4-11.) E. Trial testimony- hearsay issues 66. Alesia Barber testified, "I was informed by correction officer at that time that, um, Mr. Tso had called;" Defendant objected to hearsay. {TT 38:2-5.) The Trial Court ruled that the prosecutor should "rephrase" the question. {TT 38:1 0.) 67. Mr. Wade then asked Alesia Barber whether she had "reach[ed] any conclusions" after her visit to the jail on June 24, {TT 38: ) Alesia 21

28 n Barber responded that her "conclusion" was "That they be released." {TT 38: l 7-18.) Mr. Wade questioned, "Under what circumstance would that occur?" to which Ms. Barber responded, "I guess Mr. Roy Tso, Jr. call correction and demanded that they be released." {TT 38:21-25.) 68. Defendant objected to hearsay. {TT 39: 1.) Then the following exchange occurred between Mr. Wade and the Trial Court: MR. WADE: Your Honor it's not a statement made by an out-of-court declarant for the purpose of the truth asserted. This is a, an impression and an opinion made by the officer and the conclusion of the officer. She's not repeating anything she heard from anyone. THE COURT: MR. WADE: THE COURT: But her conclusion is that, that he called and made attempts. That's her conclusion Your Honor. Only after that point that the court will accept. Alesia Barber attempted to testify about statements made by someone from Buck's Towing, and Defendant objected to hearsay. (TT 42: ) The Trial Court allowed the witness to testify that her "conclusion" was that "Mr. Roy Tso was there to ask them to release the vehicle back." (TT 43:9-14.) 69. When asked a question by defense counsel about the conversation with Sharon Williams, specifying "without saying what Ms. Williams said," Ruby Benally responded with a direct quote attributed to Ms. Williams. The quote involved unspecified persons- "they." (TT 106: ) 70. On cross-examination, the Trial Court overruled defense counsel's hearsay objection when the prosecutor asked more questions about what Ms. 22

29 n Williams allegedly said to Ruby Benally. The prosecutor claimed that defense counsel had "opened that door" and that he had not "objected to hearsay." (109:14-19.) 71. Ruby Benally testified that "I believe it was Roy Tso and Anita Tso" who were offering a bribe based on what Ms. Williams had told her. (TT 110: ) 23

30 STATEMENT OF ISSUES PRESENTED 1. Whether the Trial Court committed fundamental error by allowing the Navajo Nation to take its case to trial without compfiance with discovery rules and without having filed any motions in limine..2. Whether the Trial Court committed fundamental error by failing to comply with the Navajo Rules of Evidence. 3. Whether the Navajo Nation's contract prosecutor engaged in prosecutorial misconduct in the presentation of evidence concerning alleged statements of Sharon Williams, and whether the Trial Courfs denial of relief to Defendant was fundamental error. 4. Whether the Trial Court failed to analyze each element of the offense of "Abuse of Office" and find that edch of the elements was proven beyond a reasonable doubt with admissible evidence. a. Acts in an official capacity or takes advantage of such capacity b. Knowledge that conduct is unlawful c. Denies or impedes another in exercise of any power d. Other acts irrelevant and prejudicial 5. Whether the Trial Court committed fundamental error by issuing a written removal from office order which is the substantive opposite of the sentence annownced in open court at sentencing as the "final decision" of the Court. 24

31 n I n,,.., 1. STANDARDS OF REVIEW We will continue to examine criminal records and transcripts for ']! I fundamental fairness, applying Navajo common law where appropriate, to protect defendants from abuses. Navajo Nation v. Platero, 6 Nov. R. 422, 426 (Nov. Sup. Ct ). This Court will review evidentiary rulings of the district court under the abuse of discretion standard. John v. Navajo Nation, No. SC-CR (Nov. Sup. Ct. July 21, 2011 ), citing Chavez v. Tome, 5 Nov. R. 183, 186 (Nov. Sup. Ct. 1987). Pursuant to the Navajo Rules of Evidence (Nov. R. Evid.) Rule 2(a), error may be assigned when an evidentiary ruling which admits or excludes evidence affects a party's substantial right. If evidentiary rulings are "outside the boundaries of the Navajo Rules of Evidence, those rulings are not entitled to deference from this Court." John v. Navajo Nation, No. SC-CR (Nov. Sup. Ct. July 21, 2011), citing Rough Rock Community School v. Navajo Nation, 7 Nov. R. 313,317 (Nov. Sup. Ct. 1998). There is no doubt that the impact on a defendant's defense is great when pertinent evidence is excluded. Because of this, fundamental fairness requires that reasons for the exclusion strictly conform to evidentiary rules. When a ruling denies a defendant the ability to pursue a line of defense, it undoubtedly affects the defendant's substantial right to his or her defense. Such an impact must be sufficiently reasoned and justified. John, supra. 25

32 n [Defendant] claims that certain actions of the special prosecutor were so fundamentally unfair that he was denied a fair trial. That is the standard of review. Navajo Nation v. Macdonald, 7 Nov. R. 1 (Nov. Sup. Ct. 1992). 26

33 2. The Trial Court committed fundamental error by allowing the Navajo Nation to take its case to trial without compliance with discovery rules and without having filed any motions in limine. The Trial Court committed fundamental error when it failed to comply with Rule 25 of the Navajo Rules of Criminal Procedure that violated the Defendant's due process rights. In this case the Plaintiff did not file a Statement of Compliance, or provide a list of documents it intended to use at trial. As a result, Plaintiff was permitted great latitude regarding its presentation of testimony that did not relate to the offense charged. Plaintiff presented no documentary to support or substantiate testimony of the witnesses. On May 7, 2015, immediately before the commencement of the bench trial, Defendant filed his motion to Dismiss stating Plaintiff has failed to comply with its duty to file a Statement of Compliance pursuant to Rule 25 (f), Navajo Rules of Criminal Procedure to afford due process to the Defendant. Further, in the absence of compliance of Rule 25(f) the Defendant had no way of knowing or preparing a defense against surprised from the prosecution. Plaintiff did not provide a list of all evidence it intended to use at trial but provided two (2) witness lists. The Defendant argued the trial court did not have discretion to disregard the mandates of Nov. R. Cr. P. Rule 25(f). The trial court continued the hearing to allow Plaintiff adequate time to file a response to Defendant's motion to dismiss. Plaintiff in its Response to Defendant's Motion to Dismiss argued Defendant's motion was file untimely. Further, that it disclosed all matters on December 16, 2014 and March 10, 2015, 27

34 pre-trial conferences. Plaintiff also provided to the Defendant two (2) witness list on February 2, 2015, and March 12, Plaintiff argued that the Defendant never made any discovery request or conducted interviews of witnesses listed. Plaintiff stated it is obligated to disclose discovery but it is not obligated to prepare Defendant's defense. Without a list of evidence, the Defendant had no clue regarding the admissibility, reliability or credibility of the evidence that Plaintiff intended to introduce. The Defendant cannot conduct interviews without evidence the Plaintiff intends to us at trial. Plaintiff's and the Trial Court's contention is that the Defendant needs to search, gather and argue the admissibility, reliability or credibility of evidence which he believes or guesses will be used at trial. By doing this the Defendant would be forced to aid in his own prosecution and develop evidentiary material or evidence that could be self-incrimination. Plaintiff and the Trial Court both contend that the Defendant was not prejudiced by any lack of disclosure because Defendant should have known from the witness list the evidence Plaintiff intends to call at trial. The Trial Court ruled that Defendant's Motion to Dismiss was based on a technicality and a dismissal based on technicality was disfavored by the Navajo Nation Supreme Court, citing a civil case Black v. Bigman, 8 Nav.R. 177, 180 (Nov. Sup. Ct ). (See ~6 of Order Denying Motion to Dismiss). Plaintiff argued pursuant to 17 N.N.C. 202(D) it would not be in the interest of justice of the Navajo people to dismiss a case merely upon an 28

35 .-. -~ ~ assertion that a notice of compliance was not provided when all discovery disclosure have been met. Plaintiff and Trial Court argued that the Defendant could have filed motions and interviewed witnesses to obtain the evidence to be used in his prosecution. It an attempt to demonstrate the Trial Court to analyze and consider the lack of disclosure of evidence to be used at trial, the Defendant argued the principal of "hazh '6go pursuant to Eriacho v. Ramah District Court, 8 Nov. R. 617, 625 (Nov. Sup. Ct. 2005), that mandates the Trial Court to analyze Rule 25(f) of the ~av. R. Cr. P. 25(f) concerning the Defendant's rights and Plaintiff's duty and responsibilities. The Trial Court ruled "Defendant was afforded the opportunity to file additional disclosure, production, and discovery regarding any additional information and/or evidence concerning the criminal complaint filed against him, but Defendant chose not to do so." (See~ 12 of Order Denying Motion to Dismiss) As resultuof this ruling it set prescience for Plaintiff to ignore his legal duty and responsibilities and the Trial Court to impose a duty on the Defendant to gather evidence and witnesses against unstated and undisclosed purported evidence contained in the Prosecution's open file. The Defendant's failure to file a motion for additional disclosure, a motion for production and discovery, or a notice of objections, are all irrelevant. There is no Navajo Criminal Rule or case law that states the Defendant has any duty or obligation to file a motion for additional disclosure or a motion for production 29

36 n - ~.---- ~ and discovery, or that the failure to file said motions would result in denying a motion to dismiss under Rule 25. The Trial Court failed to understand that the Navajo Rules of Criminal Procedure and the Navajo Rules of Civil Procedure are not interchangeable. The Navajo Nation Supreme Court's holding in Black v. Bigman, 8 Nov. R. 177, " 180 (Nov. Sup. Ct. 2001) is not applicable for the reason that issues and rules are.i not identical. In this case the government is seeking to take away or limit Defendant's liberty. However, in Black v. Bigman the issue was whether a grazing permit was fraudulently transferred. The Prosecutor's failure to comply with Rule 25, Nov. R. Cr. P. which equates to a dismissal on a technicality which is d disfavored by Navajo Nation Supreme Court. There no explanation how the Court made that, determination. The Prosec'utor and this Court have failed to provide any legal authority that allows this Court discretion to discount the mandates of Rule 25. The Prosecutor and this Court failed to articulate how the Plaintiff met all disclosures requirements pursuant to Rule 25 when the Defendant failed to list witnesses and evidence it intended to call and use at trial. This Court deems the requirements of Rule 25, Nov. R. Cr. P. can be cured by the pleadings 'filed by the parties. There is no language in Rule 25, Navajo I il Rules of Criminal Procedure that states the mandates can be cured by pleadings filed by the parties. In this case, the Prosecutor failed to list names ' and addresses for it witnesses and to list its evidence. 30

37 ~ -~ ,._..~- The Trial (:ourt clearly was biased and did not apply the fundamental tenet of "Hazh6'6go when It rushed to the conclusion that "Defendant chose to wait until the morning of trial to file his motion to dismiss, a motion that arguably should have been filed on April 18th when the deadline expired." (See ~1 0 of Order Denying Motion to Dismiss). In contrast, "[t]he court finds insufficient evidence to show Plaintiff intended the statement in its Response to be its statement of compliance, especially since Plaintiff filed a separate Statement of Compliance on May 21, 2015." (See ~13 of Order Denying Motion to Dismiss). The Prosecutor arguably should have filed the Statement of Compliance prior to the April 18th deadline. The Navajo Nation Supreme Court held, "Navajo court proceedings must comply with the Navajo Nation Bill of Rights and the Indian Civil Rights Act, and as such, we must ensure compliance with procedural and substantive due process before someone is deprived of their private property." Begay v. Navajo Nation, 6 Nov. R'. 20, 25 (Nov. Sup. Ct. 1988). In this case, the government is seeking to deprive Defendant of his liberty. The Defendant has legal Rights pursuant to the' Navajo Bill of Rights, the Indian Civil Rights Act, Dine Bi Beenahaz'6anii and the Navajo Rules of Criminal Procedure. RULE 25. Disclosure by Navajo Nation. 25(a) Notice to Defendant of Witness. At the time of arraignment of a defendant, the prosecution shall give to the defendant a list of the witnesses with their addresses, which the prosecution intends to use against him. No other witnesses shall be allowed to testify against him except on notice to the defendant and with permission of the court. 31 i I

38 n... 25(b) Matters Relating to Guilt, Innocence or Punishment. No later than ten (l 0) days after the arraignment, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within the prosecution's possession' or control: :i ( l) All statements of the defendant and of any person who will be tried with the defendant; (2) The names and addresses of experts who have personally examined the defendant or any evidence in the particular c9se, together with the results of physical examinations and of, scientific tests, experiments or comparisons including all written reports or statements made by such experts in connection with the particular case. (3) A list of all papers, documents, photographs or tangible objects which the prosecution will use at trial or which were obtained from or purportedly belonged to the defendant. (4) A '~list of all prior convictions of the defendant which the prosecutor will use at trial; (5) A list of all prior acts of the defendant which the prosecutor intends to use to prove motive, intent, knowledge, or otherwise use at trial. (6) All material or information, which tends to mitigate or negate the defendant's guilt as to the offense charged, or which would tend to reduce his punishment thereof, including all prior convictions of witnesses whom the prosecutor expects to call at trial.,, 25(c) Possible Collateral Issues. Within ten (10) days from the date of arraignment the prosecutor shall make available to the defendant information as to whether there was any electronic surveillance of the defendant, or of the defendant's business or residence; whether a search warrant has been executed in connection with the case; and whether or not the case has involved an informant. 25(d) Additional Disclosure Upon Request and Specification. The defendant may request additional disclosure from the prosecution 32

39 n by a motion. Any such motion shall specify the nature of the additional disclosure and the need. 25(e) Extent of Prosecutor's Duty to Obtain Information. The prosecutor's obligation under this Rule extends to material and information in the possession or control of members of his staff and of any other persons who have participated in the investigation or evaluation of the case and who are-under the prosecutor's control. 25(f) Statement of Compliance. Not less than twenty (20) days prior to trial, the prosecutor shall file with the court a statement of compliance stating that the prosecutor has fully met his disclosure obligations under this Rule. (Emphasis added.) I! The Defendant was prejudiced by the Prosecutor when he failed to provided a list ofevidence he intends to use at trial, or a complete list of witnesses' names and addresses. To permit the Prosecutor to include witnesses as "Any witness called by the Defendant; Any witnesses disclosed by the Defendant; Any co-defendants; Any witness as may be needed for rebuttal; Any witness that is not named here but that is mentioned in any report pursuant to this case, and Any witness involved in chain-of- custody" is contrary to Rule 25, Nov. R. Cr. P. 1mandates, the Navajo Bill of Rights, the Indian Civil Rights Act and the Dine Bi Beenahaz'6anii. Defendant is steadfast in his position that this Court does not have i discretion to discount Rule 25 Nov. R. Cr. P. as a technical matter to continue with this case based upon the Plaintiff's failure to submit a Statement of ) Compliance. This is a criminal proceeding and the Defendant has legal rights protected by the Navajo Bill of Rights, the Indian Civil Rights Act, and Dine Bi 33

40 Beenahaz'6anii. The Navajo Bill of Rights, the Indian Civil Rights Act, and Dine Bi Beenahaz'6anii are not "murky legal authority.",, The Trial Court in essence forced the Defendant to assist in his own " ' prosecution. There are no mandates that the Defendant has to make any request for interviews, request names or addresses of the witnesses, or to prepare any motions. The Defendant had no reason to request an interview of a named individual (let alone an unnamed individual) unless he knew that named individual was in fact going to be used by the prosecution. Interviews need to have a purpose and be based on something, and that purpose and!]i base is supposed to be provided by the prosecution's fulfilling its specific duties ~.I under the Rules.. Plaintiff's ",open file" policy does not cure Plaintiff's duty pursuant to Rule 25, to provide a list of those matters Plaintiff intends to use at trial. Plaintiff contends that handing over a box of files and making copies is insufficient to meet the requirement pursuant to Rule 25. The Trial Court failed its duty to pursuant to the principle of "hazh, 6go, and the sacred trust to uphold principles of an individual's rights found in the Navajo Bill of Rights, Dine Bi Beenahaz'6anii and the Indian Civil Rights Act. The Trial Court committed fundamental error by ignoring Its duty as the trier of fact, the gate keeper of admissible, reliable and creditable facts to be admitted, a steward and authority of the law, and the voice of reason. 34