Navajo Nation v. Platero

6 Navajo Rptr. 422

• Court: Navajo Nation Supreme Court
• Decided: December 5, 1991
• Docket: No. A-CR-04-91
• Status: Published

Opinions

OPINION

Opinion delivered by

AUSTIN, Associate Justice.

The Navajo Nation filed this petition seeking to have this Court reconsider its order filed on October 15, 1991. That order reversed the judgment of conviction of Patrick Platero for the offense of battery. The reversal is based on our finding, after review of the transcript, that the trial court abused its discretion by refusing to grant Platero’s motion for acquittal. We have examined the petition, the applicable parts of the transcript and record, and we find no reason to change our ruling of October 15, 1991.

I

On March 24, 1989, the Navajo Tribal Council passed a resolution which authorized the termination of Wilbur Kellogg as Chief of the Navajo Police, and recommended the appointment of Major Franklin Morris as the Acting Chief of Police. Leonard Haskie, Interim Chairman of the Navajo Tribal Council, offered the position to Morris, but he refused it. Chairman Haskie then appointed Major George John as the police chief on April 3,1989. John immediately faced a problem - Kellogg refused to obey his termination orders, and remained in office. On April 5, 1989, John attempted to meet with Kellogg and top command officers (including Platero who was a lieutenant), but Kellogg avoided the meeting. On April 7, 1989, John again unsuccessfully attempted to inform police officers of his appointment. On April 13, 1989, John wrote a memorandum that terminated Platero from his employment as a police officer, for an incident arising from John’s April 5, 1989 attempt to inform command officers of his appointment.

The events crucial to this decision happened on April 14, 1989. That morning police officers from around the Navajo Nation assembled in a building called the Old Police Academy, which is at the rear of the Navajo Nation Police and Court Building in Window Rock. Simultaneously, command officers met in the main building. The police officers were preparing for further public demonstrations and a likely confrontation between supporters of suspended Chairman Peter MacDonald Sr. and those in opposition.

At 10:12 a.m., on the morning of April 14, 1989, Lieutenant Daniel Hawkins delivered several employment termination notices, including Platero’s, to Major George Waybenais’ secretary. Hawkins said that while he usually served termination notices on officers personally, he did not do so then. He and John “felt that it would be safer for myself [Hawkins] not to provoke any type of confrontation, and to leave the packet with the secretary of the Officer in Charge [Waybenais].” Vol. II, Trans, at 74. The prosecution did not present a witness or other evidence during its case-in-chief to show that either the secretary or another person served the termination notice on Platero. In fact, the secretary was not called as a witness at all, and specifically to show what happened to Platero’s termination notice after it was placed in her custody.

Meanwhile, John met with tribal officials at the Navajo Nation Department of Justice, and there it was decided that he would meet with the police officers, who were assembled at the academy to inform them of his authority.

John and other tribal officials reached the academy meeting room a little past noon. He went to a podium before the assembled officers, and began to explain his appointment and authority to them. He had spoken only a few minutes when five command officers, including Waybenais, Captain Bobby Edsitty, and Platero entered the room. Waybenais walked up to John, demanded to know his authority for speaking to the officers, and then grabbed him, announcing that he was under arrest. Several witnesses agreed that Waybenais’ ground for arrest was that John was impersonating a police officer. Witnesses differed on whether Waybenais directly ordered Platero to complete the arrest, or whether Platero acted spontaneously. Platero put John’s left arm behind his back, and pushed him out of the academy entry way. Platero and another officer escorted John into the main police building, and booked him for impersonating a police officer. The charge was later dismissed. When John was asked if he was injured, he replied, “No, I wasn’t injured, but I felt a pain. “ Vol. IE, Trans, at 18.

'On the morning of April 14, 1989, and at the time of the incident, Platero was jnjmiform, and he was with the area and district commanders when they entered the academy meeting room. He and another officer acted as if they were police officers, by marching John into the police station and booking him.

Platero was charged with the offense of battery, 17 N.T.C. § 316(a) (1977), when John filed a criminal complaint against him. The case went to trial before a jury on April 11, 1991, and at the close of the prosecution’s case, the defense moved the court to enter a judgment of acquittal. The defense argued that the prosecution had failed to prove that Platero acted “unlawfully,” an essential element of the offense of battery. The motion was denied. Platero was convicted and he appealed that judgment of conviction on June 7, 1991. Platero presented a myriad of issues on appeal. This Court, however, decided to dispose of the appeal using the issue of whether the district court abused its discretion by denying Platero’s motion for acquittal, which was based upon the prosecution’s failure to prove an element of the offense of battery; namely “unlawfully” striking or using force on another. Based upon our review of the prosecution’s case as laid out in the transcript, we ruled for Platero. Our October 15,1991 order is not based upon Platero’s testimony that he did not receive his termination notice or know of his termination until the afternoon following his arrest of John. Further, the order is not influenced by any proceeding in the federal courts. The order is based solely upon an assignment of error that the district court abused its discretion by not granting the motion for acquittal.

II

Since time immemorial the Navajo people have applied their customs and traditions in dispute resolution. Even with the Navajo Court of Indian Offenses, the Navajo judges of that court, under often adverse circumstances, continued to apply Navajo customs and traditions in cases brought before them. Navajo courts of today are no exception, they apply customs and traditions as the laws of preference. The Navajo Nation Council has legislated that as a requirement. 7 N.T.C. § 204 (1985).

It should come as no surprise that the customs and traditions of the Navajo people have the force of law. They provide a unique body of law known as Navajo common law. Estate of Belone, 5 Nav. R. 161, 165 (1987); Estate of Apachee, 4 Nav. R. 178, 179-81 (Window Rock D. Ct., 1983). Navajo courts constantly apply Navajo common law in civil cases, and in at least one reported decision, a Navajo trial court applied Navajo common law in a criminal action. In re Interest ofD.P.!, 3 Nav. R. 255 (Crownpoint D. Ct., 1982). The United States Supreme Court has also unanimously confirmed the authority of the Navajo courts to use Navajo common law in criminal cases. United States v. Wheeler, 435 U.S. 313, 331-32 (1978). In order to assure Navajo due process, which is fundamental fairness in a Navajo cultural context, we shall apply Navajo common law to this case. The facts of the case require it.

A

Platero’s defense counsel alluded to Navajo common law during jury selection. He said, “Navajo people believe that it is wrong to hurt a person needlessly,” and he told the prospective jurors that that was the reason the prosecution must prove its case beyond a reasonable doubt. Vol. I, Trans, at 85. That, restated, means that Platero should not be punished (jailed or fined) unless the prosecution can show a valid reason for doing so. When Navajos say that it is wrong to hurt a person needlessly, that means that a valid reason for inflicting punishment must be clearly present before actual punishment is inflicted. The reason being that actual coercion or punishment were actions of last resort in Navajo common law. While Navajos would shun a repeat offender, or one who committed a particularly heinous crime, they would not do so unless the act was willful or intentional. Individuals also would not be shunned or punished for good faith acts.

The general Navajo common law principle applicable here is one that protects a person clothed with authority in the exercise of that authority until the person actually knows he or she has been relieved of authority. Specifically, as it relates to Platero, he could not be convicted unless he actually knew he did not have a right to act as a police officer, and obey the command of a superior officer. Thus, the prosecution, in proving the element of unlawfulness, had to make it clear that Platero actually knew he had no police authority, and in spite of that knowledge, he acted to arrest John.

There is nothing in the record to show that Platero actually received his termination notice. Hawkins delivered the termination notices, including Platero’s, in a sealed envelope to a secretary about two hours before the incident. On cross-examination by a defense counsel, Hawkins admitted that he did not know whether Platero received his. In fact, Hawkins admitted he bypassed the usual procedure for serving termination notices, by delivering them to a secretary, rather than serving them on the affected individuals himself. Most of the prosecution’s proof about Platero’s lack of authority focused on the termination notice, but glaringly absent was any direct or circumstantial proof of service of the notice on Platero prior to the arrest incident.

At one point on re-cross examination, when defense counsel was repetitiously pounding the point of a lack of proof of service of the termination notice, asking Hawkins about his knowledge of actual delivery, the court interrupted and observed, “that’s what he already answered. He said he didn’t know if everybody got served.” Vol. II, Trans, at 83. Hawkins was responsible for delivery of the notices, but he did not obtain proof of their service. He could only speculate about service, and offered nothing to show it was made prior to the incident.

The prosecution could have produced the person who delivered the notice to Platero, to testify about when, where, and how it was served. The prosecution did not produce that witness, and that would lead a court to conclude that the testimony of the witness would have been unfavorable to the prosecution. This brings up a point - whether the prosecution suppressed exculpatory evidence by not producing whoever served the notices - but we will not address that here. It is enough to conclude that given the failure of the prosecution to show Platero received actual notice of his termination, the trial judge should have granted the motion for acquittal. The prosecution did not make it clear that Platero did not act as a police officer, or under color of authority.

One witness made an aside remark that Platero had previously “made the statement he was terminated,” Vol. II, Trans, at 25, but the remark had no foundation, and there was no showing it was based on personal knowledge of an admission actually made by Platero. The prosecution now urges the validity of the “admission,” but at trial it did not follow up on the remark to show the foundation for it. While an admission against interest is an exception to the hearsay rule, Nav. R. Evid. 26, in criminal matters there must be a foundation for testimony about an admission, showing the circumstances under which the purported admission was made, and personal knowledge of it. An admission against interest must have indicators of reliability. The remark carries little weight.

We will continue to examine criminal records and transcripts for fundamental fairness, applying Navajo common law where appropriate, to protect defendants from abuses. The Navajo Nation Council decided, in 1977, to place the element “unlawful” in the battery statute. The prosecution recognized the element, and proceeded on a theory that Platero did not act lawfully because of his termination. It proved there was a termination notice in existence the day before the incident, and proved delivery of a batch of notices to a secretary two hours before the incident. The prosecution did not prove actual notice, when it could have. We cannot uphold this conviction where there is a failure to prove something so elemental as showing that Platero knew he had no right to act as a police officer.

B

The Navajo Nation Council did not choose to enact Section 2.12 of the Model Penal Code, which allows a court to dismiss a prosecution for de minimis infractions. However, that power is implicit in 17 N.T.C. § 202(1) (1977), because of what it says on its face. If a criminal prosecution violates a purpose of the Criminal Code, that should be a ground for dismissal. We choose, however, not to usurp prosecutorial authority in applying the de minimis rule. Law enforcement agencies and prosecutors have an inherent power “to ignore merely technical violations of law.” 1 American Law Institute, Model Penal Code and Commentaries 389-90 (1985).

During the time the public refers to as “the turmoil,” the Government of the Navajo Nation was on the brink of collapse. The police command was muddled, because some superior officers chose to be bogged down with politics. Here, the authority of the area commander (Waybenais) was not clear, and the prosecution did not prove Platero was not that person’s lawful junior officer. During the defense phase of the trial, John was asked about his three separate attempts to tell his police officers he was in command - on April 5th, 7th, and 14th. When asked, “Were you successful?” John replied, “I was unsuccessful to the point of being arrested.” Vol. Ill, Trans, at 20. That describes the confusion well.

The transcript contains descriptions of the incident as a “near riot,” where “everybody jumped” when the area commander announced “you’re under arrest!” It was a “scuffle” and “the tension was high.” Police officers squared off against each other in a policeman’s brawl. John and Waybenais were both subjected to force, and the transcript shows that several officers engaged in an affray. This is not the sort of thing the Navajo courts should have to hear.

Police officers have a certain trust of the people. When they lose sight of their obligations to serve and protect, the safety of the public is compromised, and the public trust is tarnished. The Navajo public definitely expects its police officers to hold themselves to the highest degree of professionalism.

Ill

The question of whether the Navajo Nation was entitled to oral argument is moot, because it knew the disposition would be on the record, and did not claim one. It waived oral argument. Furthermore, whether oral argument should be scheduled or not is within the discretion of the Court. In this appeal, the evidence (or lack thereof), was clear from the transcript, and oral argument would have added nothing.

The other ground of the petition, a purported conflict of interest by a member of the staff of the Supreme Court, is not relevant to the issue. We decided there was no conflict of interest at the time of initial review of the appeal. We remind the public that the judges of the Navajo Nation, and not their advisors, make judicial decisions.

Finally, there is no justification for the attacks on the integrity of either the justices of this Court or on a member of the chief justice’s staff, which were made in the petition. The conduct of certain attorneys in making these unwarranted attacks, and in handling matters related to this petition, will be dealt with separately.

We hold that, upon reconsideration, our October 15,1991 order is correct. The conviction of Patrick Platero is reversed and the Window Rock District Court shall enter an order of dismissal, with prejudice.