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Opinion Information Sheet

			

                                                                   FILED

                                                               APR 12, 2012

                                                         In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division III
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29508-7-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
MICHAEL CLARK,                                  )
                                                )         PUBLISHED OPINION
                             Appellant.         )
                                                )

       Korsmo, C.J.  --  Michael Clark appeals his conviction for first degree theft, 

arguing that the state courts lacked authority to issue a search warrant for his residence on 

the Colville Reservation and did not properly summons prospective jurors from the 

reservation.  The United States Supreme Court has answered the first question against 

Mr. Clark's position, and he fails to establish that potential jurors have been 

systematically excluded from the jury selection process.  The conviction is affirmed.

                                            FACTS

       A burglary was committed October 13, 2009, at a Cascade and Columbia Railroad 

workshop in the city of Omak.  The workshop is within the boundaries of the Colville  

No. 29508-7-III
State v. Clark

Reservation, but sits on fee land owned by the railroad.  

       Detective Jeffery Koplin of the Omak Police Department received a tip that 

Michael Clark had been involved in the burglary.  Mr. Clark is an enrolled member of the 

Colville Confederated Tribes.  The detective went to Mr. Clark's home, which is located 

in the city of Omak on trust land within the Colville Reservation.  Detective Koplin 

eventually arrested Mr. Clark outside of his house.

       The detective applied for and obtained a search warrant for Mr. Clark's residence 
from the Honorable Chris Culp of the Okanogan County District Court.1 The detective 

did not seek a search warrant from tribal court, nor did he seek assistance from the tribal 

police before serving the warrant.  Items stolen in the burglary were recovered from the 

residence.

       Charges of second degree burglary, third degree malicious mischief, and first 

degree theft were filed in the Okanogan County Superior Court.  Defense counsel moved 

to suppress the evidence recovered from the residence, arguing that the warrant should 

have been obtained from the tribal court and served by tribal officers.  The trial court 

       1 Judge Culp, now a superior court judge for Okanogan County, also served as 
both a superior court commissioner and as a constitutional pro tempore judge for the 
superior court at the time.  See Superior Court Administrative Rule 6.  The record does 
not demonstrate which court he was serving when the warrant issued.  For purposes of 
this opinion, we are assuming he acted within his capacity as a district court judge, 
although the analysis would not change if he had been serving in superior court.  

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State v. Clark

heard testimony at the CrR 3.6 hearing and found that the workshop was on fee land 

belonging to the railroad.  Based on that factual determination, the court concluded that 

state courts had criminal jurisdiction over the burglary scene and thus had authority to 

issue the warrant for the house on the reservation.  The court denied the motion to 

suppress.

       Defense counsel also moved to dismiss the charges or, alternatively, to reconfigure 
the jury venire.  The defense argued that the summons2 for jury service sent to tribal 

members living on trust land was ineffectual and, hence, non-compulsory, thus resulting 

in a non-representative venire.  The court heard argument and ruled that there was no 

systematic exclusion of jurors.  The court entered several now unchallenged findings of 

fact, including: (1) Native Americans make up 11 percent of the Okanogan County 

population; (2) Native Americans routinely serve on Okanogan juries; (3) there was no 

mechanism for having tribal courts serve state court jury summonses; (4) there was no 

statistical information on response or jury service rates of Native Americans in the 

county; (5) many enrolled members of the Colville Confederated Tribes live off-

reservation in the county, and many non-enrolled Native Americans live on the 

reservation; (6)  there was no record of anyone being prosecuted in Okanogan County or 

       2 While the record is unclear, it appears that the clerk's office sends the same 
summons to all potential jurors living in Okanogan County regardless of whether they 
live on reservation trust land or not. 

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State v. Clark

in tribal court for failure to respond to a jury summons.

       The case ultimately proceeded to jury trial.  After excusing venire members for 

hardship reasons, the remaining prospective jurors were asked if any of them were 

enrolled members of the Colville Confederated Tribes.  One juror indicated that she was 

not an enrolled member, but was the descendant of enrolled members.  The record does 

not reflect whether she served on the jury, nor does it reflect whether any other 

unenrolled tribal members were present.  The jury acquitted Mr. Clark of the burglary 

and malicious mischief charges, but did convict him of first degree theft.  The trial court 

imposed a standard range sentence.  Mr. Clark then timely appealed to this court.

                                         ANALYSIS

       This appeal reprises the two noted challenges to the search warrant and the jury

summons procedure.  We conclude that the state courts had authority to issue the search 

warrant and that Mr. Clark has not proven his challenge to the jury process.  Each claim 

will be discussed in turn.

       Search Warrant Authority. Mr. Clark argues that the state courts, although they 

had jurisdiction over the criminal offense, lacked authority to issue the search warrant for 

his home on reservation trust land.  The authority he cites is not persuasive in light of 

subsequent United States Supreme Court authority.

       Public Law 280 authorized the states to assert jurisdiction over reservations within 

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State v. Clark

their boundaries.  McCrea v. Denison, 76 Wn. App. 395, 398, 885 P.2d 856 (1994).  

Washington's response to Public Law 280 is found in chapter 37.12 RCW.  This State 

asserted civil and criminal jurisdiction over reservation lands, but it declined jurisdiction 
over Indians while on tribal or trust land.3 RCW 37.12.010.  Because the workshop was 

on fee land rather than tribal or trust land, the State courts had jurisdiction over the 

crimes committed there.  Id.; Washington v. Confederated Bands & Tribes of Yakima 

Indian Nation, 439 U.S. 463, 475, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979).

       However, the search warrant here was served at a location where the State did not 

have criminal jurisdiction -- the residence of an Indian located on trust land.  Mr. Clark 

argues that in that circumstance, the State must resort to tribal courts for search warrants.  

He relies upon two cases, United States v. Baker, 894 F.2d 1144 (10th Cir. 1990), and 

State v. Mathews, 133 Idaho 300, 314, 986 P.2d 323 (1999).

       In Baker, the 10th Circuit of the United States Court of Appeals held that a 

Colorado state court had no jurisdiction to issue a search warrant to seize evidence of 

suspected methamphetamine manufacturing by a tribal member on property rented by the 

defendant tribal member within the boundaries of tribal land.  

       Mr. Clark also relies on language in Mathews, where the court stated: "Thus, the 

       3 There are eight specific areas excluded from this declination, but none of them 
are relevant here.  RCW 37.12.010.

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State v. Clark

courts addressing the exercise of state arrest jurisdiction within Indian country have found 

that a determination of whether such an exercise of state authority infringes on tribal 

sovereignty turns on the existence of a governing tribal procedure." 133 Idaho 314.  In 

Mathews, the crime occurred outside of the reservation. The court determined that tribal 

sovereignty was not infringed when a state court arrest warrant is executed within Indian 

country where the state possesses jurisdiction over the underlying crime and where tribal 

law did not have a procedure in place regulating the execution of state search warrants in 

cases involving Indians who had committed crimes outside the reservation.  Id. 

       This case is neither Baker nor Mathews.  Unlike Colorado in the Baker case, 

Washington had jurisdiction over the crime it was prosecuting.  Mathews is a little closer 

factually, but even if the quoted observation is treated as a rule of law, it has been 

superseded by Nevada v. Hicks, 533 U.S. 353, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001). 

       In Hicks, the court faced the question of whether a tribe could assert jurisdiction 

over state officers serving a state warrant on reservation trust land.  The court answered 

the question in the negative, noting that states typically have jurisdiction over reservation 
lands unless a competing policy interest prohibited it.4 533 U.S. at 361-65.  The court 

specifically ruled that state officers could enter the reservation and serve a search warrant 

       4 The Washington Supreme Court subsequently applied this aspect of Hicks to a 
criminal sentencing condition in State v. Cayenne, 165 Wn.2d 10, 14-15, 195 P.3d 521 
(2008).  

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State v. Clark

for a crime committed within the state's jurisdiction.  Id. at 363-64. 

       Hicks is dispositive of Mr. Clark's argument that state officials lacked authority to 

serve the search warrant on reservation trust land for an offense committed within the 

state's jurisdiction.  The trial court correctly denied the motion to suppress.

       Jury Venire. Mr. Clark also contends that the process for creating the venire is 

defective because the jury summons was ineffectual as to enrolled tribal members living 

on reservation trust lands.  We question his premise, but need not reach the question 

because he has failed to establish any error.

       The Sixth and Fourteenth Amendments prohibit the systematic exclusion of 

distinctive groups from jury pools.  State v. Lanciloti, 165 Wn.2d 661, 671, 201 P.3d 323 

(2009).  RCW 2.36.080(1) requires that "all persons selected for jury service be selected 

at random from a fair cross section of the population of the area served by the court."  

However, there is no right to be tried by a particular jury or a particular juror.  State v. 

Gentry, 125 Wn.2d 570, 615, 888 P.2d 1105 (1995).  

       Washington juries are drawn from a master list which is comprised of all 

registered voters and holders of driver's licenses residing in the county.  RCW 2.36.054.  

The burden of proof is on the challenger to show that the master list is not representative 

because it excludes an identifiable population group.  State v. Hilliard, 89 Wn.2d 430, 

440, 573 P.2d 22 (1977).  The use of voter registration lists to generate the master list has 

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State v. Clark

been consistently upheld as the best source for compiling a fair cross-section of the 

community.  Id. at 440-41.  However, even if the source list is not unconstitutionally 

discriminatory, a selection procedure is still invalid if it systematically excludes a 

cognizable class of individuals.  Id. at 441.

       Where the selection process is in substantial compliance with the statutes, the 

defendant must show prejudice from the selection process; however, prejudice will be 

presumed if there is a material departure from the statutes.  State v. Tingdale, 117 Wn.2d 

595, 600, 817 P.2d 850 (1991).  This court reviews a trial court's ruling regarding 

challenges to the venire process for abuse of discretion.  Id.  Discretion is abused where it 

is exercised on untenable grounds or for untenable reasons.  State ex rel. Carroll v. 

Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).  

       Mr. Clark relies upon the decision in North Sea Products, Ltd. v. Clipper Seafoods 

Co., 92 Wn.2d 236, 595 P.2d 939 (1979), in support of his contention that the jury 

summonses are ineffectual against tribal members living on trust land.  There the court 

ruled that superior court could not issue writs of garnishment to tribal businesses and 

political entities to compel them to withhold from employee paychecks.  The tribe was 

immune from state court attachment.  Id. at 240-41.

       North Sea is not persuasive in this context.  First, we note that tribes enjoy an 

immunity that individual members of the tribe do not have.  Puyallup Tribe, Inc. v. Dep't 

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of Game, 433 U.S. 165, 171-72, 97 S. Ct. 2616, 53 L. Ed. 2d 667 (1977).  Thus, an action 

against a tribal member cannot be equated to an action against the tribe itself.  Second, 

we question how closely related a jury summons and a writ of garnishment are for 

purpose of this analogy.  In light of Hicks, which extensively discussed the question of 

service of state process on reservation lands, it is doubtful that Puyallup Tribe is 

applicable here.  See Hicks, 533 U.S. at 363-64.  Nonetheless, we need not decide these 

questions.

       It was Mr. Clark's burden to establish that there was a material departure from the 

jury selection statutes.  Here, it appears that the county used the same process for 

summoning reservation residents as it used for all other county residents.  There was no 

material departure.  In light of that, it became Mr. Clark's burden to establish that there 
was a systematic exclusion of a distinctive group5 from the venire.  Hilliard, 89 Wn.2d at 

440.  He has not done so.

       The record does not reflect that enrolled tribal members systematically failed to 

appear for jury service in Okanogan County.  There was no showing of their participation 

rates in relation to their proportion of the eligible juror population.  All that was 

established were that there were no enrolled tribal members in the venire of Mr. Clark's 

       5 It is questionable that enrolled tribal members living on trust lands constitutes a 
distinctive group for this purpose.  See United States v. Smith, 463 F. Supp. 680, 682 
(E.D. Wis. 1979).  

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No. 29508-7-III
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case, even though there was at least one Native American member of the venire.  A 

systematic failure, in the absence of evidence that normal selection procedures were not 

followed, would require evidence that a cognizable group routinely was excluded from 

jury service.  There is no such evidence in this record.

       Far from showing systematic exclusion, the record reflects that enrolled tribal 

members residing on trust lands were routinely called to jury service, and in the 

experience of the veteran trial judge, they regularly served on juries.  The Okanogan 
practices were inclusive, not exclusive.6  

       Mr. Clark has not established that any error occurred in the selection of the venire 

called to his case, nor has he established that the county's process systematically 

excluded any distinctive groups.

       Affirmed.

                                                    _________________________________
                                                                  Korsmo, C.J.

WE CONCUR:

       6 Mr. Clark's suggested practice of asking federal or tribal courts to summons 
reservation residents also fails his own test for compulsory service.  As both Hicks and 
North Sea demonstrate, state courts have no authority to compel tribal or federal courts to 
do their bidding.  Asking those courts to voluntarily undertake the task would be no more 
compulsory than the current system.  

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______________________________                      _________________________________
       Sweeney, J.                                                Brown, J.

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