APPELLATE COURT OF THE HOPI TRIBE
ADRIAN POLEAHLA, )
Appellant, ) 1559/88
VS. ) AP-005
HOPI TRIBE, ) OPINION AND ORDER
Before SEKAQUAPTEWA, Chief Justice, and LOMAYESVA and ABBEY, Justices.
Parties represented by: Michael
Day for Appellant,
William McCulley for Respondent.
This appeal concerns the ability of a criminal defendant
to waive his right to counsel and the procedural requirements
of such a waiver. The common law of the Hopi Tribe is
applied to the appellant's waiver of counsel at a criminal
arraignment, and the waiver found to be lacking.
FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 1988, the appellant was arraigned on two
counts of assault and battery.2
the arraignment, the
1 The appellant in this case filed two appeals in December, 1988. This
one, filed December 16, 1988, deals with his arraignment and sentencing
stemming from alleged assaults occurring in November of 1988. The
companion appeal (Case No. 2015/87), filed December 21, 1988, deals with
sentencing and probation stemming from alleged assaults occurring in
December 1987. [Note: there is n FN 1
indicated in the text. KL]
2 The criminal complaint alleged that the appellant: "willfully and
unlawfully used violence upon the person of Christina Kyasyousie by
striking her about the face several times with a closed fist, causing
her pain and injury;" and "willfully and unlawfully used force and
violence upon the person of Doren Kyasyousie, age 5 years, by hitting and
choking him, causing him fear and injury." Criminal Complaints, 1158/88;
1559/88. [Note: This footnote used to be
split onto page 2. i thought that was confusing, so i moved the whole thing to
page 1. KL]
OPINION AND . Poleahla v. Hopi Tribe, (1588/88, 1559/88),
(AP-005-88*) Page 1 of 6.
appellant signed the standard waiver of counsel (without
marking the question relating to a desire for legal counsel,
pled guilty to the charges and was sentenced to 180 days
incarceration for one count and 90 days for the other.
Judgment Order 1558/88-1559/88, dated November 28, 1988.
ISSUE PRESENTED ON APPEAL
The issue presented in this appeal is whether there was
an effective waiver of counsel at the November 28, 1988
When deciding matters of law,
Courts must consult
authorities in proper precedential order. The suggested
order of authority for the
Tribe is: (1) the
Constitution and By-laws; (2) Ordinances of the
Council; (3) Resolutions of the
Tribal Council; (4) the
customs, traditions and culture of the
federal law; (6) Arizona law; (7) the common law.
Resolution H-12-76; See Hopi Tribe v. Mahkewa, et. al., Nos.
1289/90, 0326/91, (AP-002092); 21848 (AP-008-93); 22179 (AP-003-93).
OPINION AND ORDER,
Tribe, (1588/88, 1559/88),
(AP-005-88*) Page 2 of 6.
The appellate standard of review of a trial court's
determination of the effectiveness of a waiver of counsel is
not addressed by the Hopi code; nor do any resolutions of the
Hopi Tribal Council or ordinances of the Hopi Tribe provide a
standard of review for this question. However, this court
has recently addressed the issue of the effectiveness of a
waiver of counsel in The Hopi Tribe v. Consolidated Cases of
Ami, Gishey, and Pavatea (Nos. AP-003-89/004-89/003-88), and
that case controls our decision on the issue. Specifically,
the procedures to be undertaken by the trial court in order
to determine if a defendant makes a knowing waiver of counsel
have been recently addressed by this court in Ami, and we
apply the law as decided in that case.
The appellant claims that he did not make a knowing
waiver of counsel at the November 28, 1988 hearing. The
record indicates that the appellant was given a Legal Rights
form at the time of his arraignment and plea. However, in Ami it was held that the waiver of counsel form in use at the
time of the Ami, Gishey and Pavatea trials was flawed, and
that barring evidence in a transcript of the proceeding that
the judge adequately informed them of their rights regarding
counsel, their convictions be reversed. This same form was
in use at the time that Appellant pled guilty to the charges
in Cases 1558/88 and 1559/88.
In addition to the use of the flawed form, the Appellant
in this case did not even mark the question of the waiver
form that asked "Do you want legal counsel for this
OPINION AND ORDER, Poleahla v. Hopi Tribe, (1588/88, 1559/88),
(AP-005-88*) Page 3 of 6.
arraignment: Yes___ No___". The finding that the
appellant made a knowing waiver of counsel by signing the
Legal Rights form cannot be upheld under Ami.
The use of the defective form, or the defective filling
out of the form, does not end the analysis. As outlined in
Ami, a defendant may still make a knowing waiver
of counsel if the trial judge makes a proper inquiry (investigation) concerning
the waiver and if the judge advises the defendant with respect to the waiver and
its consequences. "[T]he trial judge must make a comprehensive
investigation in order to insure that the defendant has made a knowing waiver."
Ami, p. 10.
While neither party has provided this court with a transcript of the November
28, 1988 arraignment, the Hopi Trial Court has provided an audio recording. The
relevant portion of the arraignment has been transcribed and heard by this
court.3 It is clear from the transcription that the
3 Judge: Adrian Poleahla
Defendant: Good morning your honor.
Judge: Do you understand your rights?
Defendant: Yes, your honor.
Judge: Do you want to hire a lawyer, or
Judge: [inaudible (4 seconds)] before we start, you've got
Defendant: Yes, your honor, um uh, I don't know where to start
um... maybe I, if I just take this on myself we
Judge: So you give up your right to hire an attorney at this
OPINION AND ORDER, Poleahla v. Hopi Tribe, (1588/88, 1559/88), (AP-005-88*)
Page 4 of 6.
procedures failed to meet the Ami standard. Ami requires that a judge make
inquiries that not only assure the court of the voluntary nature of the
waiver, but also the capacity of the defendant to make a knowing, voluntary
waiver. Ami, p. 10.
The transcript demonstrates that the defendant did not make a knowing waiver
of counsel, nor were any of the procedural safeguards required under Ami
present. There was no knowing, voluntary waiver of counsel.
continuation of FN 3. KL]
Defendant: No, I just
go on by myself, and um [inaudible (5
didn't know what was going to happen so, therefore,
don't. I don't know if I should hire an attorney or
so I'd rather ...[inaudible (2 seconds)]
Judge: If you want to challenge these charges, then you can
enter a not guilty plea to them.
Defendant: uh huh
Judge: we can schedule a trial.
Defendant: Would 7
be let [inaudible (2
Judge: Well, that depends, these are serious
(2 seconds)[tape taped over for
Defendant: ... that the main reason that I don't um, you know
another trial because, therefore your honor, I'd
willing to just go on, um and [inaudible (3
refer also that i don't mind staying in jail
of the incidents [inaudible word] because
to the intoxication...
[The judge then interrupts the appellant and the appellant then hears the
charges and enters a guilty plea.]
[inaudible word] you have pled guilty to these charges, you are aware of
your rights and anything you say can be used against you.
[The prosecutor goes over the facts in the complaint. The judge asks the
defendant if he "has anything
to say for himself."
He responds with a mostly inaudible monologue about his family and alcohol
problem. The judge then sentences the defendant as outlined in the orders.]
OPINION AND ORDER, Poleahla v. Hopi Tribe, (1588/88, 1559/88), (AP-005-88*) Page
5 of 6.
OF THE COURT
It is hereby ORDERED that the convictions in cases 1558/88 and 1559/88 are
REVERSED and the cases REMANDED to the trials court's discretion for proceedings
consistent with this Opinion, including, but not limited to, a new arraignment
if the prosecutor refiles the criminal complaints.
Jay Abbey Date
OPINION AND ORDER,
Poleahla v. Hopi Tribe, (1588/88, 1559/88), (AP-005-88*) Page 6 of 6.