Confederated Salish & Kootenai Tribes v. Sorrell

1 Am. Tribal Law 80
CourtConfederated Salish & Kootenai Court of Appeals
DecidedJanuary 23, 1998
DocketNo. AP 95-901-CR
StatusPublished

This text of 1 Am. Tribal Law 80 (Confederated Salish & Kootenai Tribes v. Sorrell) is published on Counsel Stack Legal Research, covering Confederated Salish & Kootenai Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Confederated Salish & Kootenai Tribes v. Sorrell, 1 Am. Tribal Law 80 (salishctapp 1998).

Opinion

OPINION

Chief Justice SMITH:

INTRODUCTION

On the evening of August 8, 1995, the Defendant James “Bo” Sorrell had been drinking. In the early morning of August 9, 1995, the Defendant is alleged to have assaulted his wife at their home by striking her in the face and by pointing a loaded pistol at her. The Defendant’s daughter ran to the neighbor’s house, summoned the police, and then returned to the house where she retrieved the loaded pistol from her father. The Defendant was arrested that morning and charged with Domestic Abuse, Aggravated Assault, and Criminal Endangerment.

The Defendant’s wife, Christine Sorrell, initially provided a taped statement to the tribal police detailing the incident. According to her taped statement, the intoxicated Defendant aw^akened her from her sleep, became argumentative, and hit and slapped her. The Defendant then allegedly took a hand gun and spun the cylinder, Russian roulette style, and pointed the gun at his wife and said: “do you want this or should I take it?” Their daughter was able to retrieve the loaded pistol from the Defendant before the police arrived. The Defendant’s wife later recanted her statement. She testified she had misrepresen[84]*84ted the facts in her recorded statement because—based on a prior experience with the Defendant when he had threatened to eommit suicide—she felt the Defendant did not receive adequate follow up care to prevent another suicide attempt.

A pre-trial hearing was held on September 11, 1995. On February 29, 1996, the Defendant filed a motion in limine because of concerns that the prosecution might introduce evidence of other crimes, wrongs or acts by the Defendant. The Defendant argued that introduction of such information would be prejudicial under Rule 403 of the Federal Rules of Evidence and impermissible under Rule 404 of the Federal Rules of Evidence (the “prior acts” rule). The prosecution opposed the motion in limine on the grounds that the Defendant was untimely in filing the motion because the trial date was then scheduled for March 7, 1996. The prosecution also opposed the motion on the grounds that the Court should reserve ruling until trial because “there is not a request to the Court by the prosecution to introduce evidence of prior crimes, wrongs, or acts” and thus the “Court has no way of knowing the purpose of the entry of such evidence and whether or not the purpose fits one of the allowed purposes set forth in Rule 404(b).”

On March 8, 1996, Honorable Leslie J. Kallowat issued a written order denying the motion in limine on the grounds that it should have been filed by the pretrial motions date of February 12. The Court said it would “wait until the issue is raised at trial. At that time, the Court will require the Tribal Prosecutor to explain the purpose of introducing evidence and will rule on the question.” A jury trial took place on April 15, 1996. The trial court allowed four witnesses to introduce prior acts testimony involving approximately eight separate incidents. At the end of the trial, one limiting instruction was provided regarding the admission of the prior acts testimony. The Defendant was convicted on all three counts. The Appellant appeals on numerous grounds.

We reverse on the grounds that the trial court abused its discretion in admitting into evidence the series of prior acts testimony.

I. Admission of Prior Acts Evidence

The following is a summary of the prior acts testimony admitted into the trial over the objection of counsel for the Defendant:

Neighbor Rosalie Sheridan testified that (on unspecified dates) Christine Sorrell, or the children, came to her house to “call the police.” There is no explanation, nor lust hand testimony by Ms. Sheridan, of any specific incident that provoked the request to call the police. The testimony’s implication is that the children came over to call the police because of domestic violence, but the brief questioning and answers provide no explanation of the incidents, nor the Defendant’s role. TR at 16-18.
Neighbor and tribal dispatcher Dan Neuman testified that (on unspecified dates) prior to this incident the Sorrell children had come over to his house (apparently to call the police). He states that “the kids have been there, and they’ve said some things about them fighting,” but Neuman had never gone to their house. TR at 31.
Tribal detention officer Willie Birthmark testified that (on unspecified dates) there have been past incidents of domestic violence at the Sorrell household. No details of any kind were provided to substantiate the allegation. He also testified that (on an unspecified date) Bo and Christine Sorrell had told him that a gun had discharged at the Sorrell house in the past. No other details were provided by him defining the nature of this [85]*85gun discharge incident, except that the only incident he could recall involved a .357 and the gunshot put a hole in the wall. TR at 46-47.
The prosecution also handed Officer Birthmark jail records indicating charges against Bo Sorrell. The prosecutor had Birthmark read from these records to the jury the fact that Bo Sorrell did jail time for charges of assault and battery in 1986 and 1987. No explanation or details were put into evidence as to the facts surrounding these charges. The alleged victim(s) is not identified. He also read to the jury a jail entry for Bo Sorrell dated August 5, 1995 for domestic abuse. No explanation or details were put into evidence as any facts surrounding these charges. The alleged victim is not identified. TR at 53-54
Tribal officer Les Clairmont testified that he “had been advised” that (on unspecified dates) tribal officers have gone to the Sorrell residence on domestic violence calls. No explanation or details were put into evidence, nor was the victim identified. TR at 83.

This is a case of first impression in this Court. This evidence question is governed by the Federal Rules of Evidence, as required by Chapter III, Section 14 of Tribal Ordinance 36B. For this reason, this Court will primarily look to federal case-law interpreting the Federal Rules of Evidence for guidance. A lower court’s admission of prior acts evidence under Rule 404(b) is reviewed for abuse of discretion. United States v. Hinton, 31 F.3d 817 (9th Cir.1994); Arizona v. Elmer, 21 F.3d 331, 335 (9th Cir.1994).

Rule 404(b) of the Federal Rules of Evidence provides:

(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

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Bluebook (online)
1 Am. Tribal Law 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/confederated-salish-kootenai-tribes-v-sorrell-salishctapp-1998.