Chuuk v Karen [2009] FMCSC 19; 16 FSM Intrm. 250 (Chk. S. Ct. Tr. 2009) (8 January 2009)

CHUUK STATE SUPREME COURT TRIAL DIVISION

CSSC-CRIMINAL CASE NO. 03-2006

CHUUK STATE,
Plaintiff,

vs.

MASORY KAREN,
Defendant.

_______________________________

ORDER DENYING MOTION TO SUPPRESS AND DISMISS

Camillo Noket
Chief Justice

Decided: January 8, 2009

APPEARANCES:

For the Plaintiffs: Charleston Bravo
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendants: Fredrick A. Hartman
P.O. Box 453
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure  Motions
A motion to suppress is both belated and premature when it is belated because it was filed after the deadline for filing pre-trial motions and when it is premature because there is no indication from the court record or from the motion that the government intends to produce at trial the evidence that the defendant seeks to suppress. Without any indication that the government intends to produce that

[16 FSM Intrm 251]

evidence at trial, the court is unable to discern what, if any, evidence may be subject to suppression. Chuuk v. Karen, [2009] FMCSC 19; 16 FSM Intrm. 250, 252 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure  Discovery
When the court cannot determine from its record whether the government complied with the accused's discovery request, an appropriate motion, if the government failed to timely respond to a discovery request, would be to move to compel answers to discovery under Chuuk Criminal Rule 16(d)(2), which sets forth the remedies for a party's failure to answer discovery requests. Chuuk v. Karen, [2009] FMCSC 19; 16 FSM Intrm. 250, 252 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure  Motions
The authority for filing a motion to suppress is provided for by Criminal Rule 12(b)(3), which requires that a motion to suppress must be raised prior to trial. Chuuk v. Karen, [2009] FMCSC 19; 16 FSM Intrm. 250, 252 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure  Discovery
Rule 12(b)(3) must be construed with Rule 12(d)(2), which provides a mechanism for a defendant to determine which evidence the prosecution intends to use at trial. Once the prosecution identifies what evidence it intends to use at trial, then suppression may be sought by pre-trial motion. Chuuk v. Karen, [2009] FMCSC 19; 16 FSM Intrm. 250, 252 (Chk. S. Ct. Tr. 2009).

Criminal Law and Procedure  Discovery; Criminal Law and Procedure  Motions
When there is no indication that the government intends to produce at trial the evidence sought to be suppressed, and until the government specifies that it intends to produce that evidence at trial, a motion to suppress that evidence is premature. The procedures set forth in Rules 12 and 16 need, as appropriate, to be followed before the court can reasonably address such issues. Chuuk v. Karen, [2009] FMCSC 19; 16 FSM Intrm. 250, 252 (Chk. S. Ct. Tr. 2009).

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COURT'S OPINION

CAMILLO NOKET, Chief Justice:

BACKGROUND

1. On January 19, 2006, the Government filed its information against defendant Masory Karen alleging three felony counts for murder, aggravated assault, and assault with a dangerous weapon.

2. On August 28, 2008, Karen filed his motion for discovery. The motion does not request that the Government identify or produce what it intends to use as evidence at trial.

3. On September 3, 2008, the court issued a scheduling order imposing deadlines, including a deadline to answer discovery by September 30, 2008 and to file any pre-trial motions by October 22, 2008 and setting trial for January 5, 2009.

4. On December 15, 2008 Karen filed his motion to suppress and dismiss.

5. On December 19, 2008, the Government filed its opposition to the motion to suppress and dismiss.

[16 FSM Intrm 252]

6. On January 5, 2009, the scheduled trial date, Karen's counsel did not appear and the case was continued until March 9, 2009 at 9:30 a.m.

ANALYSIS

Karen's motion is both belated and premature, belated because it was filed after the deadline for filing pre-trial motions and premature because there is no indication from the court's record or from Karen's motion that the Government intends to produce at trial the evidence that Karen seeks to suppress. Without any indication that the Government intends to produce as evidence at trial the materials Karen seeks to suppress, the court is unable to discern what, if any, evidence may be subject to suppression.

First, the court cannot determine from its record whether the Government complied with Karen's discovery motion. If the Government failed to timely respond to Karen's discovery motion, an appropriate motion to address that issue would be to move to compel answers to discovery pursuant to Chuuk Criminal Rule 16(d)(2), which sets forth the remedies for a party's failure to answer discovery requests. The authority for filing a motion to suppress, on the other hand, is provided for by Criminal Rule 12(b)(3), which addresses the procedure for filing pre-trial motions. According to that rule, a motion to suppress must be raised prior to trial. Further, Rule 12(b)(3) should be construed with Rule 12(d)(2), which provides a mechanism for a defendant to determine which evidence the prosecution intends to use at trial. Once the prosecution identifies what evidence it intends to use at trial, then suppression may be sought by pre-trial motion. Chk. Crim. R. 12(d)(2).

Here, there is no indication that the Government intends to produce at trial the evidence that Karen seeks to suppress. Until the Government specifies that it intends to produce at trial the evidence Karen seeks to suppress, the court finds that Karen's moving for suppression is premature. The procedures set forth in Rules 12 and 16 need to be followed, as appropriate, before the court can reasonably address the issues raised by Karen's motion.

CONCLUSION

Therefore, defendant Karen's motion to suppress and dismiss is denied for the reason that there is no indication from Karen's motion that the Government intends to produce at trial the evidence that Karen seeks to suppress. Although the discovery and pre-trial motion deadlines have passed, the court is willing to consider a renewed motion to suppress or other discovery motion so long as such motion(s) accords with the rules of procedure, and is filed no later than February 16, 2009.

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