IN THE JUDICIAL DISTRICT OF THE NAVAJO NATION JUDICIAL DISTRICT OF SHIPROCK, NEW MEXICO

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1 IN THE JUDICIAL DISTRICT OF THE NAVAJO NATION JUDICIAL DISTRICT OF SHIPROCK, NEW MEXICO THE NAVAJO NATION, ) NO. SR-TR (CR); SR-TR- ) (CR); SR-TR Plaintiff, ) 08(CR); SR-TR-3608(CR) ) vs. ) ORDER TO DENY MOTION TO ) DISMISS CAROLE F. SILENTMAN, ) C# 122,138, ) ) Defendant. ) ) Defendant pleaded not guilty on December 8, 2008, to the following charges which were alleged to have occurred on October 29, 2008: in Court Docket Number SR- TR (CR), a violation of 14 Navajo Nation Code 702, Unlawful Flight from a Pursuing Law Enforcement Vehicle; in Court Docket Number SR-TR (CR), a violation of 14 Navajo Nation Code 707(A), Operating a Motor Vehicle under the Influence of Intoxicating Liquor; in Court Docket Number SR-TR-3607(CR), a violation of 14 Navajo Nation Code 708(A), Reckless Driving; and Court Docket Number SR-TR (CR), a violation of 14 Navajo Nation Code 710(A), Failure to Stop at the Scene of an Accident Resulting in Injury or Death. On February 2, 2009, Defendant filed a Motion to Dismiss (Defective Complaint). In her Motion the Defendant asked the Court to dismiss all charges on the basis of defects in the complaints against her, although the motion was filed more than fifteen days after her arraignment and such a motion is required to be filed by Rule 29(b) of the Navajo Rues of Criminal Procedure within fifteen days from arraignment. Relying upon a district court case, Navajo Nation v. Lee, 4 Nav. R. 185 (W.R. Dist. Ct. 1983), Defendant contends that the complaint failed to state essential facts concerning each charge, and this failure violated her rights to due process and protection against double jeopardy. On February 3, 2008, the Navajo Nation filed a Response to Motion to Dismiss, arguing that the Motion to Dismiss was filed too late, without addressing the underlying issue of whether the complaints were defective because they failed to include essential facts. Both parties misstated the date of Defendant s arraignment, which was December

2 8, 2008, not October 30, 2008, as asserted by Defendant. Defendant did not file a reply to the response from the Navajo Nation. The Court DENIES the Motion to Dismiss upon the following grounds: 1. The Court agrees with Defendant that Rule 29 (b) of the Navajo Rules of Criminal Procedure concerning timelines for filing motions concerning defective complaints should not be strictly followed in all cases. This is especially true in cases where, as here, a defendant was appointed a legal representative after arraignment. The Court notes that in federal and state criminal courts an individual accused of criminal offenses is appointed an attorney prior to arraignment and that attorney is inevitably present with a defendant at arraignment. This is not the normal course of action on the Navajo Nation, where attorneys for defendants are often not appointed until after an arraignment, and sometimes long after an arraignment. Defendants at arraignment are never advised as to what motions they need to file with the court within a short period of time to defend their legal interests. 2. In Eriacho v. Ramah District Court, 8 Navajo R. 617 (Nav. Sup. Ct. 2005), the Navajo Supreme Court held that a judge must inform a defendant at arraignment of a similarly short period of fifteen days after arraignment to request a jury trial in writing if one is not requested at arraignment, in order to preserve a right to a jury trial. Id. at 625. This decision was based upon the principle of hazho ogo, which mandates a meaningful notice and explanation of rights. Id. This court holds that the principle of hazho ogo should also apply to sufficient explanations to defendants without attorneys to what motions they need to consider filing in a short period of time in order to protect their rights in criminal proceedings. Our criminal procedures should not operate unfairly against individuals with little or no legal experience who are very likely unaware of the short time limitations placed upon certain aspects of their legal defense. 3. In cases such as this, where an attorney is appointed after an arraignment is conducted, the court will extend the deadline required under Rule 29(b) by only starting the time set by Rule 29(b) to begin to run at the time of appointment of an attorney as opposed to the time of arraignment. Attorneys are presumed to know the rules of criminal procedure, especially attorneys who work for Office of the Navajo 2

3 Public Defender, and they should be held to the fifteen day deadline from the time of their appointment. 4. The Court also holds that in the future it will consider other reasons for good cause to extend the fifteen day deadline after the appointment of an attorney for extending the fifteen day period. For example, a good cause reason might be when an attorney is unable to obtain a copy of the complaint(s) for a significant period of time after his or her appointment. In this case, Defendant s attorney was appointed forty five (45) days before the Motion to Dismiss (Defective Complaint), and Defendant does not provide any good cause reasons to extend the fifteen day deadline of Rule 29(b) for a longer period after the date of appointment of an attorney. 5. The Court notes that even if it did permit a late filing of this motion, it would find that the complaints were not defective and contained sufficient explanation of facts to give notice to Defendant of the elements of the offenses charged against her and that the complaints contained sufficient information to give her the opportunity to challenge them on the basis that they violated her rights against double jeopardy. 6. The Court first notes that all the complaints were specific as to the date, time and location of the alleged offenses. The complaints also indicated the traffic, weather, road and light conditions at the time of the alleged offenses. All the complaints also contained the correct citations of the proper Navajo Nation Code provisions with which Defendant was charged. 7. The following statements were made in each of the complaints concerning the offenses at issue: SR-TR (CR): She was driving a motor vehicle and attempted to elude a pursuing official law enforcement vehicle. SR-TR (CR): She was operating a motor vehicle while under the influence of intoxicating liquor. SR-TR (CR): She was driving a motor vehicle carelessly in a wanton disregard for the safety of others and in a manner she endangered other persons on the roadway. 3

4 SR-TR (CR): She was driving a motor vehicle which was involved in an accident resulting in the injury of another person. She failed to stop and remain at the scene of the accident. 8 The Court finds that each of the above statements provided Defendant sufficient notice of the essential facts and necessary legal elements of each of the offenses with which she was charged. 9. The Court notes that while Defendant cited Navajo Nation v. Lee, 4 Nav. R. 185 (W.R. Dist. Ct. 1983) in support her argument, she did not cite two higher court cases in regard to the adequacy of criminal complaints. Both of these cases support a finding that the facts stated in these complaints were sufficient. 10. In The Navajo Nation v. Yazzie, 1 Nav. R. 139 (Nav. Ct App. 1977) the Navajo Court of Appeals held that the language liquor violation was sufficient to support a complaint alleging possessing and selling of liquor. Id. at The Court further explained, Mr. Yazzie was represented by counsel and the Navajo Code is not so complex that learned counsel could not inform himself and advise his client of the exact nature and meaning of [the complaint}. Id. at Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1, 9 (Nav. Sup. Ct. 1992) stated the following concerning adequacy of complaints: The adequacy of both civil and criminal pleadings have been the subject of debate since the inception of written complaints. Courts, including Navajo courts, have tended to dismiss criminal charges on technicalities, including inadequate complaints. The modern trend, which we agree with, is to relax pleading requirements because of the availability of discovery. 12. The Court notes that discovery has been available to Defendant. Defendant filed a Notice of Request for Discovery and Inspection on January 9, 2009, and the Court signed an order granting that request on January 14, On February 2, 2009, the Court signed an order granting another request by Defendant for further disclosure. 13. The Court notes that the two higher court cases cited above did not include discussions concerning Navajo fundamental law in their analysis in how to consider the adequacy of a complaint. As noted in several Supreme Court opinions, fundamental law requires that a careful and thorough explanation is required individuals who appear in 4

5 Navajo courts to protect their due process rights and to provide fairness in the proceedings to which they are subjected. See, e.g., Navajo Nation v. Morgan, 8 Nav. R. 732 (Nav. Sup. Ct. 2005) (A judge must carefully explain pleas of guilty, not guilty and no contest as wells as accurately state the possible sentence of a criminal offense and obtain a factual basis for the elements of a criminal offense when taking a plea of guilty); Eriacho v. Ramah District Court, 8 Nav. R. 617 (Nav. Sup. Ct. 2005) (an individual must be informed of the time period available for requesting a jury trial at arraignment); Navajo Nation v. Rodriguez, 8 Nav. R. 604 (Nav. Sup. Ct. 2004) (A clear explanation of Miranda rights, including a Navajo language explanation for individuals who speak little or no English, must be provided before interrogation); Navajo Nation v. Badonie, 8 Nav. R. 507 (Nav. Sup. Ct. 2004) (A court must include findings of fact and conclusions of law after a criminal trial for each element of a crime.). These cases show a requirement under fundamental law that Navajo courts must guarantee that defendants receive a sufficiently clear and certain explanation of the offenses with which they are charged in the initial complaint. 14. The Court finds that in consideration of the standards under fundamental law, the explanations within the criminal traffic offenses charged in this case adequately and sufficiently communicate the essential facts to the Defendant and her attorney what is necessary to prepare an adequate defense and to seek more detailed information in the discovery process, for the Defendant to assist her attorney in her defense, for the Defendant to have an understanding of the offenses with which she is charged, and to provide sufficient information to determine whether the charges might subject Defendant to double jeopardy. Therefore, the Court denies Defendant s Motion to Dismiss. SO ORDERED this day of March Trial Court Judge of the Navajo Nation 5