Chuuk v Kincho [2019] FMCSC 4; 22 FSM R. 411 (Chk. S. Ct. Tr. 2019) (18 April 2019)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CSSC-CRIMINAL CASE NO. 022-2019

CHUUK STATE,
Plaintiff,

vs.

KINISOU KINCHO,
Defendant.
___________________________

ORDER OF DISMISSAL

Camillo Noket
Chief Justice

Decided: April 18, 2019

APPEARANCE:

For the Plaintiff: Joseph Rold
Redeemer Nelson (supervising)
State Prosecutors
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

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HEADNOTES

Search and Seizure - Probable Cause; Search and Seizure - Warrants
Article III of the Chuuk Constitution prohibits the court from issuing a warrant unless there is probable cause, supported by affidavit, specifically describing the person to be seized. Chuuk v. Kincho, 22 FSM R. 411, 413 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Information
Rule 7 requires that the information consist of a plain, concise, and definite written statement of the essential facts constituting the offense charged, and it must cite for each count the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated. Chuuk v. Kincho, 22 FSM R. 411, 413 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Information
The State may only prosecute offenses by information, and, by implication, it may not prosecute an offense outside the information. Chuuk v. Kincho, 22 FSM R. 411, 413 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Bill of Particulars; Criminal Law and Procedure - Information
If the information does not sufficiently inform the accused of the charges against him, he may file for a bill of particulars, although a bill of particulars in not necessarily a “right,” and it is preconditioned on the State having listed actionable charges within the information against the accused. Chuuk v. Kincho, 22 FSM R. 411, 413 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Accessory; Criminal Law and Procedure - Information
Common sense dictates that a charge for “liability for the crimes of another” must state which “crimes of the other” the State intends to charge the defendant with. Stated differently, “liability for the crimes of another” is a charge that is always dependent on an independent charge towards another person - it thus may not stand as an independent charge without reference to another’s criminal misconduct, coupled with the law allegedly violated. Chuuk v. Kincho, 22 FSM R. 411, 413 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Information
Rule 7 prohibits the State from prosecuting someone for offense not listed in the information. As a dependent charge, “liability for the crimes of another” cannot be prosecuted alone unless an independent charge against another is explicitly referenced in the information. “Liability for the crimes of another” is thus not an actionable charge all by itself. Chuuk v. Kincho, 22 FSM R. 411, 414 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Information
As a matter of law, the State may not prosecute a defendant for charges not included in the information. Chuuk v. Kincho, 22 FSM R. 411, 414 (Chk. S. Ct. Tr. 2019).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Information
Since Chuuk State Law No. 6-66 provides liability for the crime of another if the defendant intentionally aids, abets, advises, solicits, counsels, or conspires to commit an offense, or fails to follow a legal duty to prevent the offense’s commission, or causes an innocent to engage in criminal conduct, when the affidavit of probable cause provides no facts to show that the accused did any of these things and, instead, it states that another’s assault with a dangerous weapon crime occurred well before March 19, 2019, the accused’s turning a boat around on March 19, 2019 could never qualify as aiding or abetting an act of alleged criminal activity completed well before that date and therefore fails to meet the standard of probable cause that a crime had been committed. Since the Chuuk Constitution requires a showing of probable cause for the State to file a case, and where there is none, the Chuuk Constitution requires the court to dismiss the case. Chuuk v. Kincho, 22 FSM R. 411, 414 (Chk. S. Ct. Tr. 2019).

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COURT’S OPINION

CAMILLO NOKET, Chief Justice:

I. INTRODUCTION

On April 15, 2019, the State filed Criminal Information and charged Kinisou Kincho with one count of “liability for crimes of another.” The information alleged that Kincho aided and abetted defendant Alvin Phillon since Kincho turned his boat around at the Kurassa dock and headed to Onei Island with Phillon on board. It said nothing more.

An attached affidavit of probable cause stated that:

1. 1. Alvin Phillon was a defendant in an assault with a dangerous weapon case and the police were looking for him.
   
2. 2. Kinisou Kincho operated a boat bound for Kurassa with Phillon on board.
   
3. 3. Kincho turned his boat around when he learned that the police were heading to Kurassa to arrest Phillon.
   

For reasons discussed below, this Court must dismiss this case for lack of probable cause.

II. ISSUES

1. 1. Whether State’s Criminal information complies with Article III of the Chuuk State Constitution and Rule 7 of the Chuuk State Rules of Criminal Procedure?
   
2. 2. Whether the State has met its burden to show that probable cause exists for this Court to allow the State to proceed with this case.
   

III. STANDARD OF REVIEW

A. Chuuk State Constitution

Article III of the Constitution prohibits the Court from issuing a warrant unless there is probable cause, supported by affidavit, specifically describing the person to be seized. Chk. Const. art. III, § 3.

B. Rule 7 of the Chuuk State Rules of Criminal Procedure

Rule 7 requires the information shall consist of a plain, concise and definite written statement o essential facts constituting the offense charged. Chk. Crk. Crim. R. 7(c)(1). Further, the information shall state for each count the citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated. Id. The State may only prosecute offenses by information. Chk. Crim. R. 7(a). By implication, the State may not prosecute an offense outside the information.

This Court also previously observed that if the information does not sufficiently inform the defendant of the charges against him, he may file for a bill of particulars pursuant to Chuuk Criminal Rule 7(e) - although a bill of particulars in not necessarily a “right.” Chuuk v. Menisio, [2007] FMCSC 40; 15 FSM Intrm. 276 (Chk. S. Ct. Tr. 2007). Menisio’s applicability is preconditioned on the State having listed actionable charges within the information against a defendant.

IV. LEGAL ANALYSIS

A. A Defective Criminal Information

The Criminal Information against Kincho charges him with “liability for the crimes of another” based on an allegation that he turned a boat around at Kurassa dock with a defendant on board when he heard that police officers were going to arrest that defendant. It says nothing more.

Common sense dictates that a charge for “liability for the crimes of another” must state which “crimes of the other” the State intends to charge the defendant with. Stated differently, “liability for the crimes of another” is a charge that is always dependent on an independent charge towards another person - it thus may not stand as an independent charge without reference to another’s criminal misconduct, coupled with the law allegedly violated.

Rule 7 prohibits the State from prosecuting someone for offense not listed in the information. As a dependent charge, “liability for the crimes of another” cannot be prosecuted alone unless an independent charge against another is explicitly referenced in the information. “Liability for the crimes of another” is thus not an actionable charge all by itself - so Menisio’s holdings remain inapplicable here. The Defendant need not motion for a bill of particulars because as a matter of law, the State may not prosecute a Defendant for charges not included in the information.

The criminal information is defective. Even a bill of particulars will fall short of correcting the information’s fundamental deviation from the basic requirements of Rule 7. That alone, serves as an independent basis for the dismissal of this case.

B. A Lack of Probable Cause

The affidavit of probable cause fails to meet the standard of probable cause that a crime had been committed. It states that Phillon was already a defendant within an assault with a dangerous weapon case. Even if this Court were to presume that the State is attempting to charge Kincho with liability for Phillon’s assault with dangerous weapon crime, the affidavit lacks a showing of probable cause to commence a case for “liability for the crimes of another” against Kincho.

Chuuk State Law No. 6-66, § 301(1) provliability for thor the crime of another if the defendant "intentionally aids, abets, advises, solicits, counsels, or conspires" to commit an offense or fails to follow a legal duty to prevent the offense’s commission or causes an innocent to engage in criminal conduct. The affidavit provides no facts to show that Kincho did either of these things.

Instead, the affidavit states that Phillon’s assault with a dangerous weapon crime occurred well before March 19, 2019 - since Phillon was already named a defendant on March 19, according to the affidavit. As a matter of law, turning a boat around on March 19, 2019 could never qualify as aiding or abetting an act of alleged criminal activity completed well before that date.

The Chuuk State Constitution requires a showing of probable cause for the State to file a case. Here, there is none. The Constitution thus requires the Court to dismiss this case.

V. CONCLUSION

This Court finds that State’s Criminal information fails to comply with Article III of the Chuuk State Constitution and Rule 7 of the Chuuk State Rules of Criminal Procedure. Further, this Court finds that the State has failed to meet its burden to show that probable cause exists for this Court to allow the State to proceed with this case. Case dismissed.

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