Navajo Nation v. Tso

13 Am. Tribal Law 466
CourtNavajo Nation Supreme Court
DecidedOctober 25, 2016
DocketNo. SC-CR-03-16
StatusPublished

This text of 13 Am. Tribal Law 466 (Navajo Nation v. Tso) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Navajo Nation v. Tso, 13 Am. Tribal Law 466 (navajo 2016).

Opinion

OPINION

This case concerns an appeal of a criminal conviction of abuse of office and sentence requiring forfeiture of office upon conviction. We have thoroughly reviewed the record and heard oral arguments. We affirm the Shiprock District Court’s decision.

I

After the arrest of his sister, Anita Garcia (Garcia), and his niece, Floydina Had-ley (Hadley), on allegations that they committed the crimes of burglary and theft, Judge Roy Tso, Jr. (Tso) called Ruby Be-nally (Benally), a local prosecutor, at approximately 11:30 p.m., on June 23, 2013. Tso identified himself and explained that he wanted his sister and niece released from jail that night. Benally knew Tso to be a former prosecutor and a sitting judge. Benally informed Tso that the law does not permit a person detained pursuant to a police hold to be released from jail that same night. Nonetheless, as a result of Tso’s call, Benally felt compelled to call the Shiprock Department of Corrections and inquire of Garcia and Hadley’s arrest, charges, and hold. Benally did not call Tso back. Between 1:30 a.m. and 2:00 a.m., on June 24, 2013, Tso placed a second call to Benally. Recognizing the displayed caller ID as the same telephone number from which she had earlier received Tso’s call, Benally did not answer. Between 6:15 a.m. and 6:30 a.m., on June 24, 2013, Tso contacted Benally again, this time by text message asking when his sister and niece would be released. Benally did not respond to the text message. Benally testified she found Tso’s request inappropriate and left her feeling intimidated. Be-nally did not know how Tso obtained her phone number but testified that he may have obtained it from a mutual friend, Sharon Williams (Williams).

Benally and Williams later met on July 14, 2013 in Aztec, New Mexico at the request of Williams. Benally believed the meeting was concerning Williams’s business venture. Instead, the meeting concerned the criminal charges against Garcia and Hadley. Benally understood, through Williams, that Tso and Garcia were offer[470]*470ing $750 dollars for the dismissal of criminal charges against Garcia and Hadley.

On August 15, 2014 the Navajo Nation (Nation) charged Tso with Abuse of Office in violation of 17 N.N.C. § 364(A)(8). After a bench trial, Tso was convicted on December 18, 2015. The trial court found Tso took advantage of his official capacity as a Navajo Nation judge, knowing his conduct in interfering with and attempting to prevent the lawful detention and prosecution of his relatives was unlawful, and impeded investigative and prosecutorial powers. A Sentencing Hearing was held on February 25, 2016 wherein the trial court verbally announced its sentence. Of particular concern in this appeal, the trial court denied the Nation’s motion that Tso forfeit his office of a Navajo Nation judge pursuant to 17 N.N.C. § 365. On March 2, 2016 the district court issued a Sentencing Order. The trial court affirmed its oral decision of February 25, 2016 with one exception: the trial court reconsidered its prior decision and ordered Tso to forfeit his office as judge having determined that upon conviction, forfeiture automatically occurred.

Due to the procedural and evidentiary challenges, we offer the underlying procedural history. Tso was charged on August 15, 2014. Tso, through counsel, waived his appearance for arraignment and entered a not guilty plea on October 9, 2014. After a scheduled pretrial conference was continued at Tso’s request, a pretrial conference was eventually held on December 16, 2014. Tso’s counsel failed to appear and became the subject of an order to show cause. Even so, the Nation and Tso himself filed a Pre-Trial Conference Report noting the Nation disclosed all evidence and the parties identified witnesses and established a deadline of January 13, 2015 for the filing of pretrial motions. The court also set a final pretrial conference. The Pre-Trial Conference Report was filed in anticipation of a bench trial to be held on May 7-8, 2015.

On February 2, 2015 the Nation filed a witness list and, on March 12, 2015, it amended that list. After several continuances, a final pretrial conference was held on March 10, 2015 and a final Pre-Trial Conference Report was filed. The report identified additional evidence and extended the pretrial motion deadline to April 29, 2015.

On May 7, 2015, the first day of trial, Tso filed a motion to dismiss claiming the Nation failed to file a statement of compliance within 20 days of trial to verify it has fully met its disclosure obligations under Rule 25 of the Navajo Rules of Criminal Procedure. Tso argues this failure warrants dismissal for lack of prosecution. The trial court halted the trial and scheduled a hearing on the motion. Later that same day, the Nation filed a response stating pre-trial conference reports were previously submitted verifying that all evidence had been disclosed and the deadline for filing such pretrial motions, like the motion to dismiss, had passed. Tso responded stating disclosure required the Nation to provide a list of evidence it will use at trial and a complete list of witnesses with their addresses.

In preparation for the rescheduled trial set for August 12-13, 2015, the Nation notified Tso of the Open File Policy on May 8, 2015, stating its prosecution file is available for inspection, copying and/or scanning. On May 18, 2015, the Nation filed a Statement of Compliance.

On June 25, 2015 a hearing on the motion to dismiss was held. Subsequently, on July 22, 2015, the trial court denied Tso’s motion to dismiss stating a dismissal [471]*471of technical grounds is not favored under Black v. Bigman, 8 Nav. R. 177, 180, 3 Am. Tribal Law 514 (Nav.Sup.Ct.2001), and the Nation has engaged in active prosecution. The trial court rejected Tso’s argument that he was unable to file pretrial motions to challenge or request for additional disclosure when the Nation did not file a statement of compliance.

On August 10, 2015, Tso filed a motion for reconsideration of the trial court’s decision to deny dismissal reiterating its previous position and adding that Black v. Bigman is not applicable to criminal proceedings. Tso also requested to continue the bench trial (set for August 12-13, 2015) and for a new judge to be assigned. Later that same day, the Nation responded to the motion for reconsideration asserting Tso, once again, has filed an untimely pretrial motion. The Nation reiterated it made full disclosure and provided notice of compliance in the previously held pretrial conferences. On August 11, 2015, Tso filed a reply noting its disagreement that the Nation’s handing over a box of files and making copies is sufficient to meet Rule 25. On August 11, 2015, the trial court denied Tso’s motion for reconsideration along with his requests to continue the trial and assign a new judge.

Trial was held on August 12-13, 2015. The Nation called upon Officer Alesia Barber (Barber) and Benally to testify at trial. Tso, on the other hand, called Benally as his only witness. Of concern is the eviden-tiary exchange of Benally as a witness for the prosecution and subsequently, as a witness for the defense. During the Prosecution’s direct examination of Benally, the Prosecutor attempted to delve into the Be-nalfys conversation with Williams about the attempted bribery of July 14, 2013. Tso objected to the introduction of hearsay evidence and the trial court agreed sustaining his objection. After the close of the Prosecution’s case, Tso called Benally as his lone witness and asked Benally about her conversation with Williams concerning the $750 offer.

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Black v. Bigman
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Cite This Page — Counsel Stack

Bluebook (online)
13 Am. Tribal Law 466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/navajo-nation-v-tso-navajo-2016.