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Washington v. L.J.M.

filed: June 20, 1996.

STATE OF WASHINGTON, PETITIONER,
v.
L.J.M., RESPONDENT.



Appeal from Superior Court, Okanogan (93-1-00187-6) County; Honorable John Burchard, Judge. Judgment Date: 12-16-93.

Alexander, J., Durham, C.j., Dolliver, Smith, Guy, Johnson, Madsen, Talmadge, Sanders, J.j., concurring.

Author: Alexander

En Banc

Alexander, J. -- The principal question presented by this appeal is whether, in a case where it is undisputed that the site of an alleged crime was within the external

geographic boundaries of an Indian reservation, and the defendant identifies himself at trial as a member of a recognized Indian tribe, the State's burden of proof on the issue of jurisdiction is greater than it would otherwise be. In addition, we must determine, regardless of what level of burden the State must carry on that issue, whether that burden was satisfied.

In this case, the Okanogan County Superior Court concluded, as a matter of law, that the State met its burden of proving jurisdiction merely by showing that the crime that was alleged to have been committed by L.J.M. occurred in Omak, a city within Okanogan County, state of Washington. The Court of Appeals, Division Three, disagreed and, consequently, reversed L.J.M.'s conviction. It also ordered dismissal of the charge against him, concluding that the double jeopardy clause of the United States Constitution barred retrial of L.J.M.

We reverse the Court of Appeals, holding that in the absence of evidence that constitutes a direct challenge to the State's prima facie showing of state court jurisdiction, the State's burden of proving jurisdiction remained that of showing only that the location of the incident giving rise to L.J.M.'s conviction was within this state. We conclude, additionally, that the State successfully met this burden. We, therefore, reinstate L.J.M.'s conviction and sentence.

In May of 1992, eight-year-old H.M. revealed to his mother, S.C., that his father, L.J.M., had raped him sometime prior to Christmas 1987. The incident was alleged to have occurred at the family home in the eastern portion of the city of Omak, Washington, an area of that city that the parties agree is within the external geographic boundaries of the Colville Indian Reservation.*fn1

S.C. contacted the Child Protective Services for the

Colville tribe regarding the allegations H.M. made against his father. The staff of that agency advised her to contact the Federal Bureau of Investigation because some crimes Committed on tribal lands may only be prosecuted in federal court. See 18 U.S.C. ยงยง 1151-53. Consequently, FBI Agent Jack Davis conducted an investigation into the matter. He interviewed H.M. and L.J.M. separately regarding the incident, and eventually obtained L.J.M.'s written confession. Davis also satisfied himself that, although the family home was within the geographic boundaries of the Colville reservation, it was located on "fee title" property.*fn2 Because offenses that occur on fee title property within the Colville reservation do not fall within the jurisdiction of federal courts, the Okanagon County Prosecuting Attorney charged L.J.M. in Okanagon County Superior Court with rape of a child in the first degree.*fn3

Shortly before trial, a hearing was conducted for the purpose of determining (a) whether H.M., then nine years old,

was competent to testify, and (b) the admissibility, under the child hearsay statute, RCW 9A.44.120, of statements H.M. made to S.C. and FBI Agent Davis regarding the alleged rape.*fn4 H.M., S.C., and Davis testified at that hearing, after which the trial court concluded that H.M. was competent to testify, and that H.M.'s statements to S.C. and Davis were admissible at trial.

H.M. testified at trial. L.J.M.'s trial counsel moved to strike H.M.'s testimony, and in the alternative, for a mistrial, arguing that the testimony was contradictory and inconclusive, and demonstrated that H.M. was incompetent to testify. The trial court denied L.J.M.'s motions. Testimony was then received regarding L.J.M.'s confession, and the statements H.M. made to S.C. and Agent Davis about the incident, including the fact that the alleged incident occurred at the family home in East Omak.

L.J.M. testified at trial, and said that he had never had sexual relations with H.M. He indicated that he agreed to sign a confession only because he believed that it would cause the issue to "get into court because I wanted to come to court and have my day in court." Report of Proceedings (RP) at 184. L.J.M. also testified that he lived "on the Spokane Indian Reservation," and responded "yes" when asked by defense counsel whether he was a member of the Colville Confederated Indian Tribe. RP at 173.

After the State and the defense had rested, L.J.M. moved for dismissal of the charge for what he claimed was the State's failure to prove jurisdiction. In that regard, he argued that "there has been absolutely no proof that [the family home] is not a part of the Colville Indian Reservation. The burden is on the State . . . not upon the defense to prove . . . that the State does not have jurisdiction." RP at 225. Instead of granting L.J.M.'s motion, the trial court allowed the State to reopen its case to present, outside the presence of the jury, testimony relating to the jurisdiction of the superior court. The trial court heard

Agent Davis testify, over L.J.M.'s objections, regarding inquiries Davis made that led to his determination that H.M.'s family home was on "fee title" property. RP at 234-45. Without permitting either side to obtain additional evidence or locate an expert who could testify as to the status of the title to the property ...


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