18 Am. Tribal Law 25
Fort Peck Court of Appeals.
Brittany FERGUSON, Appellant
v.
FORT PECK TRIBES, Appellees
CASE NO. AP # 866
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Signed June 20, 2023
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Filed June 28, 2024
Before Justices Shanley, Jones, and Grijalva.
ORDER VACATING JUDGMENT OF CONVICTION AND ORDER FOR REMAND
¶ 1 The Defendant has appealed from the Tribal Court’s judgment of conviction finding her guilty of one count of Abuse of a Child, a felony in violation of 7 CCOJ 240-A, and two counts of Endangering the Welfare of a Child, a misdemeanor in violation of 7 CCOJ 240-B. For the reasons stated herein, this Court finds that the introduction of the challenged testimony of A.B. through Officer Jones and Cathy Welch’s testimony and introduction of the Officer’s body camera footage was hearsay, not covered by any recognized exceptions to the rule against hearsay and violated the Appellant’s rights of confrontation under the Indian Civil Rights Act.
STATEMENT OF JURISDICTION
¶ 2 Pursuant to CCOJ Title II, Chapter 2, § 202, the jurisdiction of the Court of Appeals shall extend to all appeals from final orders and judgments of the Tribal Court. The Tribal Court’s Judgment of Conviction is a final order subject to review of the Court of Appeals.
STANDARD OF REVIEW
¶ 3 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. 2 CCOJ § 202.
FACTUAL BACKGROUND
¶ 4 A.B. is the minor child of Appellant. A.B. was arrested by Fort Peck Tribal Officer Thomas Jones for curfew violation and consumption of alcohol by a person under twenty-one years old. During the transportation of A.B. to the juvenile detention center, she made allegations of neglect and sex-trafficking which were perpetrated by a male residing in A.B.’s home. Officer Jones administered a breathalyzer test on A.B. at the corrections center which showed a blood alcohol content of .14. Officer Jones then transported A.B. to the Poplar Community Hospital for medical clearance and contacted Social Worker, Cathy Welch, based on the allegations made by A.B. during transport. At the hospital, Ms. Welch conducted an interview with A.B., which was recorded on Officer Jones’ body camera.
¶ 5 At Appellant’s bench trial on November 14, 2023, she appeared in her jail clothing and with hand and leg restraints. The Tribes called Officer Thomas Jones and BIA Social Worker, Cathy Welch to testify during her trial. Both witnesses testified to A.B.’s statements made the night of her arrest. A.B. did not testify. The Tribes also introduced Officer Jones’ body camera footage which contained the statements made by A.B.
ISSUES PRESENTED
¶ 6 Appellant presents the following issues for Appeal:
1. Did the testimony of Officer Jones and Cathy Welch constitute inadmissible hearsay because the declarant, A.B., did not present during trial to testify?
2. Did the admission of A.B.’s statements through testimony of the other witnesses and policy body camera footage, violate Appellant’s right to confrontation under the Indian Civil Rights Act?
3. Was the trier of fact prejudiced, or the identification of the Defendant improper, due to Appellant appearing to her trial in jail clothing with wrist and ankle restraints?
DISCUSSION
I. THE TESTIMONY OF OFFICER JONES AND CATHY WELCH CONSTITUTED INADMISSIBLE HEARSAY BECAUSE THE DECLARANT DID NOT APPEAR TO TESTIFY AND THE STATEMENTS WERE OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED.
¶ 7 The Indian Civil Rights Act, 25 U.S.C., § 1302 et. seq., provides that “No Indian tribe in exercising the powers of self-government shall— ... deny to any person in a criminal proceeding the right to ... be confronted with the witnesses against him.” 25 U.S.C. § 1302(a)(6). This right mirrors the United States Constitution’s Sixth Amendment’s Confrontation Clause. While the United States Constitution guarantees this right in Federal and State Courts the Indian Civil Right Act guarantees this right to defendants in Tribal Court. Furthermore, this right is codified in the Fort Peck Tribes Comprehensive Code of Justice (CCOJ) in 6 CCOJ 501.
¶ 8 According to the CCOJ, the Federal Rules of Evidence shall be followed in all Tribal Court proceedings. 6 CCOJ 510. The Federal Rules of Evidence, Rule 801(c), indicates that “ ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). Here, the declarant is A.B. She made statements at the hospital, which were not made during her testimony at the Court trial, as she was not called as a witness.1 The Tribes’ entire case relied on proving the truth of the matter asserted in her statements that were made at the hospital. Therefore, the A.B.’s statements constitute hearsay, unless they qualify for admission under one of the exceptions to hearsay provided in the Federal Rules of Evidence, Rule 803.
¶ 9 While there are numerous exceptions to the rule against hearsay, the only exceptions that would apply under this particular circumstance are: (1) Present Sense Impression; (2) Excited Utterance; or (3) Statements Made for Medical Diagnosis or Treatment. Further analysis of these exceptions show that they do not apply.
¶ 10 Federal Rules of Evidence, Rule 803(1) apply to present sense impressions, which are defined as “A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” Fe.R.Evid. 803(1). The statements made by A.B. were regarding things that had happened in the past in her home, but were not made immediately after she perceived it, but rather after she had been arrested for a violation of curfew and consumption of alcohol. Therefore, this exception would not apply.
¶ 11 The excited utterance exception under Federal Rules of Evidence, Rule 803(2), provides that “A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that caused it” qualifies as an exception to the rule against hearsay. Fed.R.Evid. Rule 803(2). Again, A.B.’s statements were not made while declarant was under the stress or excitement of an event that recently happened, but rather sometime after the alleged acts occurred when she was under arrest for delinquent acts and questioned by the police and a social worker about an unrelated alleged crime.
¶ 12 The Federal Rules of Evidence also provide an exception to the rule against hearsay for statements that are made for medical diagnosis or treatment. To meet this exception, the statement must be: (a) made for—and reasonably pertinent to—medical diagnosis or treatment; and (b) describes medical history; past or present symptoms or sensations; their inception; or their general cause. Fed.R.Evid., Rule 803(4)(A) and (B). A.B. was getting medical clearance to be detained at the hospital during the time she made the statements to the social worker. The record reflects that the hospital declined to treat her based on the allegations that she made and would merely examine her for the purpose of providing a medical clearance for detention. The statements made to the social worker and recorded by the officer’s body camera were not made to a medical provider and were not made for or reasonably pertinent to, her medical diagnosis or treatment, but rather were regarding a separate criminal investigation.
¶ 13 Lastly, the Appellees have submitted that A.B.’s statement qualifies as an exception to the rule against hearsay under Rule 803(6) which applies to records of a regularly conducted activity. In order to qualify under that hearsay exception, the record, or police body camera footage under this circumstance, must meet specific criteria of this rule. While, that may be the case here, the “record” itself contained hearsay within it, which to be admitted, would need to either meet one of the other exceptions, or be testified to in court to comply with the right to confrontation. To further clarify, the video camera footage, if offered to prove something other than “the truth of the matter asserted” in A.B.’s statements, would be admissible. However, the statements themselves are hearsay within hearsay that need to meet one of the other hearsay exceptions or be admitted through in court testimony of the declarant.
II. THE ADMISSION OF A.B.’S STATEMENTS THROUGH THE TESTIMONY OF THE OTHER WITNESSES AND INTRODUCTION OF THE BODY CAMERA FOOTAGE, WITHOUT A.B. APPEARING TO TESTIFY, VIOLATED APPELLANT’S RIGHT TO CONFRONTATION.
¶ 14 As cited in Lilley v. FPTs, FPCOA No. 847 (Oct. 17 2023), the Fort Peck CCOJ requires “all testimony of witnesses shall be given orally under oath in open court and subject to the right of cross-examination.” 8 CCOJ 201(b). The Tribes’ entire case rested on the truth of A.B.’s statements that were made at the hospital. These statements constitute testimonial hearsay.
¶ 15 “Testimonial hearsay” is a statement made when the circumstances objectively indicate that there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution. Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2275, 165 L.Ed 2d 224 (2006) citing Crawford v. Washington, 541 U.S. 36, 51-52 (2004). “Non-testimonial” hearsay is a statement made primarily for the purpose of assisting police to meet an ongoing emergency. Id. A.B.’s statements were not made in response to an ongoing emergency, but rather reflected past events that were potentially relevant to a later criminal prosecution against Appellant and potentially others.
¶ 16 In Appellees’ response, the Tribes cite to Ohio v. Roberts, 448 U.S. 56 (1980), for the proposition that the right to confrontation is not violated if the statement bears “adequate ‘indicia of reliability’ by falling within a ‘firmly rooted hearsay exception’ or bear ‘particularized guarantees of trustworthiness.’ ” Ohio v. Roberts, 448 U.S. 56, at 66. The Tribes submit that the statements qualify as an exception to hearsay under Federal Rules of Evidence, Rule 803(1) Present Sense Impression and Rule 803(6) Records of Regularly Conducted Activity.
¶ 17 As discussed above, A.B.’s statements do not qualify under any of the exceptions to hearsay. Furthermore, the United States Supreme Court has held that the Confrontation Clause prohibits the use of testimonial hearsay unless: (1) the declarant testifies at trial; or (2) the declarant is unavailable, and the defendant had a prior opportunity to cross examine. Crawford v. Washington, 541 U.S. 36 (2004). Here, while the declarant may have been unavailable, the defendant did not have a prior opportunity to cross-examine her, therefore A.B.’s statement’s could only be admitted in the event she testified at trial and was subject to cross-examination.
¶ 18 While this Court recognizes the potential prejudice that may result when a defendant appears in detention clothes with restraints in front of a jury, the trial in this matter was before a Judge. Given this Court’s reversal of this case based on the first two issues presented, we decline to address the third issue.
CONCLUSION
¶ 19 For the reasons stated above, the Tribal Court’s Judgment of Conviction is hereby REVERSED and this matter REMANDED for a new trial of the Appellant.
SO ORDERED this 20th day of June 2023.
All Citations
--- Am. Tribal Law ----, 2024 WL 3220961
Footnotes |
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As the Tribes did not attempt to argue that the witness was unable to appear due to circumstances beyond its control we do not decide that under no circumstances may the Tribes offer out-of-court statements made by a declarant who cannot be called to testify. |
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