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Supreme Court of the Federated States of Micronesia |
FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2008-1508
FEDERATED STATES OF MICRONESIA,
Plaintiff,
vs.
DINO ALIVEN, ALVEN ALIVEN, JIMMY MORI, and JOHNNY ALIVEN,
Defendants.
_______________________
MEMORANDUM AND ORDER DISPOSING OF PRETRIAL MOTIONS
Martin G. Yinug
Associate Justice
Hearing: July 6, 2009
Submitted: July 15, 2009
Decided: July 28, 2009
APPEARANCES:
For the Plaintiff: Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942
For the Defendant: William E. Minkley, Esq. (motion)
(D. Aliven) George Z. Isom, Esq. (argued)
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942
For the Defendant: Salomon M. Saimon, Esq.
(A. Aliven) P.O. Box 750
Weno, Chuuk FM 96942
For the Defendant: Melissa A. Dineen, Esq.
(J. Mori) Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941
For the Defendant: Harry A. Seymour, Esq.
(J. Aliven) Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944
* * * *
HEADNOTES
Criminal Law and Procedure Motions
A "shot-gun" motion that contains only conclusory language and that fails to specify the grounds with any particularity can be denied
without hearing on that ground alone. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 526 (Chk. 2009).
Criminal Law and Procedure Dismissal
A motion to dismiss will be denied when motion contains only conclusory language that fails to specify the grounds with any particularity
and when it speculates that the information was based on the movant's unlawfully-taken statement even though the information's supporting
affidavit never mentions any statement. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 526 (Chk. 2009).
Criminal Law and Procedure Arrest and Custody; Search and Seizure
Warrantless arrests are, under certain situations, lawful and authorized by statute. Arrest by police without a warrant is authorized
when a criminal offense has been committed, and a policeman has reasonable ground to believe that the person to be arrested has committed
it, or a policeman, even when it is not certain that a criminal offense has been committed, may detain for examination persons who
may be found under such circumstances as justify a reasonable suspicion that they have committed or intend to commit a felony. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 527 (Chk. 2009).
Search and Seizure
When the police knew that a crime had been committed and had either reasonable grounds to believe that the vehicle's occupants had
committed the offense or reasonable suspicion that one or more of the vehicle's occupants had committed a felony and when the police
knew that someone in that vehicle had fired a handgun from that vehicle, a search of the vehicle's passenger compartment is reasonable
under such circumstances. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 527 (Chk. 2009).
Weapons
All offenses involving a handgun are felonies under Title 11, chapter 10. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 527 n.1 (Chk. 2009).
Search and Seizure Incident to an Arrest
Persons are constitutionally protected from unreasonable searches and seizures. But when a policeman has made a lawful custodial
arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search that automobile's passenger
compartment. It follows from this conclusion that the police may also examine the contents of any containers found within the passenger
compartment for if the passenger compartment is within reach of the arrestee, so also will the containers in it be within his reach.
FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 527 (Chk. 2009).
Constitutional Law Declaration of Rights; Search and Seizure
Since the FSM Constitution's Declaration of Rights protection against unreasonable search and seizure is similar to and drawn from
a provision in the U.S. Constitution's Bill of Rights, U.S. authority may be consulted to understand its meaning. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 527 n.2 (Chk. 2009).
Search and Seizure Incident to an Arrest
An officer making an arrest has a limited right to conduct a warrantless search incident to that arrest and this right to search
is for the limited purposes of preventing the arrested person from reaching concealed weapons to injure the officer or others, and
from destroying evidence. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 527-28 (Chk. 2009).
Search and Seizure Incident to an Arrest
A search incident to valid arrest is confined to the person and the area from within which he or she might have reached weapons or
destructible evidence and may be done on the spot or even later at the place of detention. Such incidental searches include a vehicle's
passenger compartment, even after the occupants have been ordered out and are standing nearby. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 528 (Chk. 2009).
Search and Seizure Incident to an Arrest
When the police had a reasonable belief that there was a firearm in the vehicle, a search of the vehicle incident to an arrest might
also be viewed as reasonable if it were done for the purpose of protecting the general public from a firearm that was believed to
be in the vehicle and that might fall into the wrong hands. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 528 (Chk. 2009).
Criminal Law and Procedure Interrogation and Confession
The government has the burden of proving that an accused's statement is voluntary and thus admissible. Thus, although it was the
defendant's motion to suppress, the government, because it has the burden, usually presents its side first at a suppression hearing.
FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 528 (Chk. 2009).
Criminal Law and Procedure Interrogation and Confession
When an accused's statement is voluntarily made after he has been informed of, and understood his rights, and chosen to waive those
rights, his statement is admissible unless the accused has established a relationship between unlawful police activity and the statement
sought to be suppressed. The burden then remains on the prosecution to show that the evidence is still admissible. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 528 (Chk. 2009).
Criminal Law and Procedure Arrest and Custody; Criminal Law and Procedure Interrogation and Confession
The remedy for a defendant's unlawful detention over 24 hours is not the suppression of evidence lawfully obtained before the 24
hours passed. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 528 (Chk. 2009).
Criminal Law and Procedure Interrogation and Confession
Without any other evidence, a signed advice of rights and waiver with the same date and time as the accused's signed statement cannot
meet the prosecution's burden to show the advice of rights was given, and a waiver received, before the accused began to answer questions
or make a statement. The statement will therefore be suppressed. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 528-29 (Chk. 2009).
Criminal Law and Procedure Interrogation and Confession
A motion to suppress an accused's statement will be granted when the government failed to meet its burden to show that the accused
was advised of his rights, that he understood those rights, and that he waived them before he voluntarily made his statement. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 529 (Chk. 2009).
Criminal Law and Procedure Interrogation and Confession
Even if voluntarily given, a statement that is dated the day after the accused's arrest, but with no time given, is insufficient
to show that the statement was not the product of the government's unlawful act of holding the defendant longer than 24 hours after
his arrest. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 529 (Chk. 2009).
Criminal Law and Procedure Interrogation and Confession
While the better practice is to finish all the paperwork concerning the advice of rights and waiver before beginning questioning,
it is not a requirement in order for an accused to have made a valid waiver of his rights. The greater certainty engendered by completing
the advice of rights and waiver paperwork first does, however, make things easier on counsel and the courts. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 529 (Chk. 2009).
Criminal Law and Procedure Interrogation and Confession
If codefendants are tried together, a defendant's admissible out-of-court statement ought to be redacted to eliminate references
to other codefendants. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 530 (Chk. 2009).
Criminal Law and Procedure Interrogation and Confession
When an accused's statement has been suppressed, it may not be used against him at trial unless he chooses to testify on his own
behalf, in which case, the statement may be used to impeach his credibility. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 530 (Chk. 2009).
Criminal Law and Procedure Double Jeopardy
The FSM Constitution's double jeopardy clause protects 1) against a second prosecution for the same offense after acquittal, 2) against
a second prosecution for the same offense after conviction, and 3) against multiple punishments for the same offense. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 530 (Chk. 2009).
Criminal Law and Procedure Double Jeopardy
When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not, and, if the
test is met a dual conviction will not violate the constitutional protection against double jeopardy. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 530 (Chk. 2009).
Criminal Law and Procedure Double Jeopardy; Criminal Law and Procedure Information
A criminal information's allegations must be proven in order to obtain a conviction, and it is not sufficient that the evidence show
a violation of the statute specified in the information if the actual violation is different from the one alleged. Thus, when in
an information, one count requires proof of identical allegations (facts and elements) as another count, it would violate a defendant's
double jeopardy protection if he were convicted of both and then punished for both. The proper remedy, however, is not to dismiss
before trial some counts based on what might happen because the government will not be denied the right to charge the separate offenses
to guard against the risk that a conviction may not be obtained on one of the offenses. But if, after trial, the court finds the
defendant guilty of both counts, a conviction will be entered only on one of those two counts. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 530-31 (Chk. 2009).
Criminal Law and Procedure Double Jeopardy
When two statutory provisions aimed at similar types of wrongdoing and at upholding public interests of the same nature would apply
to a solitary illegal act that caused only one injury, the statutes will be construed as not to authorize cumulative convictions.
FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 531 (Chk. 2009).
Criminal Law and Procedure Double Jeopardy
When the same conduct may amount to more than one offense, the defendant may be prosecuted for each offense. But he may not be convicted
of more than one offense if one offense is included in the other, or if one offense as defined prohibits a certain kind of conduct
generally, and the other prohibits a specific instance of such conduct. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 531 (Chk. 2009).
Criminal Law and Procedure Aiding and Abetting
Although, at one time, the FSM criminal code provided that no one could be convicted of aiding and abetting unless the information
specifically alleged that the accused had aided and abetted and the information provided specific acts constituting the means of
aiding and abetting, that provision was eliminated when the 2001 criminal code was enacted, making it no longer necessary for the
information to recite the specific acts each alleged aider and abetter allegedly committed. But the FSM Supreme Court appellate division
has held that it is a fatal variance between pleading and proof when an accused charged with aiding and abetting was not given proper
notice of the conduct or acts underlying the violation since that could not give the accused sufficient notice for him to prepare
his defense. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 531 (Chk. 2009).
Criminal Law and Procedure Aiding and Abetting; Criminal Law and Procedure Information
When, in the information and supporting affidavit or in the material before the court during the pretrial motion hearing, no notice
was given the defendants of any act or conduct by either of them that was alleged to constitute aiding and abetting, the aiding and
abetting counts against them will be dismissed. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 532 (Chk. 2009).
Criminal Law and Procedure Aiding and Abetting; Criminal Law and Procedure Information
When notice was given a defendant, and even relied upon by him in his motion, of his alleged conduct to aid and abet, the prosecution
will be given time to either amend the information to include that conduct or to dismiss the aiding and abetting counts against him.
FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 532 (Chk. 2009).
Statutes Presumptions; Weapons
A "mini bag," which is an easily-transportable article similar in that nature to a purse, handbag, brief case, attache case, or backpack,
is not an "enclosed customary depository" within the meaning of the statutory exception to the statutory presumption that a firearm,
dangerous device, or ammunition found in a vehicle or vessel, is prima facie evidence that such firearm, dangerous device, or ammunition
is in the possession of all persons in the vehicle or vessel. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 533 (Chk. 2009).
Statutes Construction
A statutory construction that ends in an absurd result must be rejected. This is because a provision of law must be read so as to
be internally consistent and sensible. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 533 (Chk. 2009).
Statutes Construction
Congress has mandated that words and phrases in the FSM Code must be read with their context, and that statutory provisions must
be construed according to the fair construction of their terms, with a view to effect its object and to promote justice. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 533 (Chk. 2009).
Statutes Presumptions
Statutory presumptions come in three types: permissive inference, mandatory rebuttable presumption, and conclusive mandatory presumption.
FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 533 (Chk. 2009).
Criminal Law and Procedure Standard of Proof; Statutes Presumptions
Under the permissive inference type of criminal statutory presumptions, the prosecution is not relieved of the burden of persuasion
since the presumption is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the
presumption, and the factfinder is left free to accept or reject the inference. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 533 (Chk. 2009).
Criminal Law and Procedure Standard of Proof; Statutes Presumptions
A presumption in a criminal statute creates a permissive inference. Because this permissive presumption leaves the trier of fact
free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable
doubt" standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the
inference. This is the manner in which the FSM Supreme Court should and will handle a criminal presumption that is "prima facie evidence."
FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 533-34 (Chk. 2009).
Criminal Law and Procedure Defenses; Custom and Tradition
While the ultimate burden of persuasion remains with the government, a defendant, asserting an affirmative defense, has some burden
of proof or of going forward with sufficient evidence to raise the defense as an issue at trial. When custom is raised, it is usually
more properly considered during sentencing than at other stages of a criminal prosecution. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 534 (Chk. 2009).
Criminal Law and Procedure Defenses; Custom and Tradition
A defendant's motion to dismiss on the ground of custom will be denied, but he will be free to present evidence at trial concerning
his defense(s), if applicable. FSM v. Aliven, [2009] FMSC 36; 16 FSM Intrm. 520, 534 (Chk. 2009).
* * * *
COURT'S OPINION
MARTIN G. YINUG, Associate Justice:
This came before the court on July 6, 2009 for hearing on the following pretrial motions: 1) defendant Johnny Aliven's Motion for Dismissal, 2) defendant Jimmy Mori's Motion to Suppress, 3) defendant Jimmy Mori's Motion to Dismiss, 4) defendant Dino Aliven's Motion to Suppress Evidence, 5) defendant Dino Aliven's Motion for Dismissal, and 6) defendant Alven Aliven's Motion to Dismiss; Motion to Suppress, in the Alternative Defenses to Inchoate Crimes. At the hearing, the other defendants orally joined Johnny Aliven's Motion for Dismissal to the extent that it applied to them.
Because of time constraints, the parties elected to submit their summations in writing. The prosecution filed its written summation on July 8, 2009. Defendant Johnny Aliven filed his on July 14, 2009. The other defendants filed theirs on July 15, 2009. The matter was then considered submitted for decision.
I. SUMMARY OF MOTIONS
The motions may be summarized as follows. Motions to suppress statements given to the Chuuk Department of Public Safety after the arrests. A motion to suppress the .22 handgun that was seized and the 47 rounds of ammunition. Motions to dismiss because the arrests were made without a warrant. Johnny Aliven's motion, joined by others, to dismiss certain counts as duplicative of other counts. Dino Aliven also moves to dismiss on the ground that the information's supporting affidavit is flawed. Alven Aliven also seeks dismissal on the ground that, as Dino Aliven's father, it was his duty under custom to try to remove or rescue his son from the scene of "mutual combat."
II. "FACTUAL" BACKGROUND
The defendants, for the purposes of their motions and during oral argument, generally relied on the following basic outline of events to make their arguments. The prosecution relied on this general outline as well.
On October 23, 2008, all four defendants returned from participating in that day's mayoral inauguration ceremonies on Tonoas. All four had been drinking. Their boat docked at the Transco dock area. While Jimmy Mori and Johnny Aliven unloaded musical instruments from the boat, Alven Aliven and Dino Aliven drove to AWM to buy some beers. While there, Dino Aliven got into an altercation with another person that eventually ended with Dino Aliven pulling the trigger of a handgun pointed at that other's head with no discharge. He then returned to the vehicle he came in and loaded the handgun. The alleged victim walked away. Alven Aliven and Dino Aliven, heading back to Transco in Alven Aliven's vehicle, encountered that person in front of the Bank of the Federated States of Micronesia and Dino Aliven fired the handgun several times injuring the victim. Alven Aliven and Dino Aliven then picked Jimmy Mori and Johnny Aliven up at Transco and headed toward Kurassa.
The state police received a report of a shooting at AWM and responded. At the scene, they were given a detailed description of the vehicle Alven Aliven and Dino Aliven had left in and the direction in which it had gone. The police then headed in the same direction, came across the described vehicle, and were eventually able to stop it. They asked the four occupants to step out of the vehicle, and detained them. An officer looked inside the vehicle and noticed black lace hanging from a folded seat. When he pulled the black lace from the folded seat, he found a black "mini bag." When he felt the "mini bag," it felt like there was a gun inside. He also saw that the bag was open with what appeared to be the handle of a gun showing. The "mini bag" was then opened and a .22 handgun and 47 rounds of ammunition were found inside. Dino Aliven had been sitting where the "mini bag" was found. All four arrestees were then taken to jail. It was around 5:00 to 6:00 p.m.
III. ANALYSIS
A. Dino Aliven's Motion for Dismissal
Dino Aliven contends that the information should be dismissed because its supporting affidavit "is flawed, replete with errors of fact, which cause the said information to be invalid." Motion for Dismissal at [unnumbered] 2 (May 15, 2009). Dino Aliven does not point to any particular errors of fact, or any particular errors that affect him, in the supporting affidavit. A "shot-gun" motion that contains only conclusory language, such as that in Dino Aliven's motion, and that fails to specify the grounds with any particularity can be denied without hearing on that ground alone. FSM v. Aiken, [2008] FMSC 65; 16 FSM Intrm. 178, 185 (Chk. 2008). Nor were particular grounds specified during the hearing.
Dino Aliven also argues that if the information is based on his alleged confession to the police, the information should be dismissed because that statement was unlawfully taken. The information's supporting affidavit, however, never mentions any statement by him (or by any of his co-defendants). Dino Aliven's speculation in this regard is insufficient to dismiss the information.
Accordingly, Dino Aliven's motion to dismiss is denied.
B. Search and Seizure
Dino Aliven contends that all physical evidence, including, but not limited to, the handgun and ammunition, must be suppressed and the information dismissed because the vehicle was searched without a search warrant and because the occupants were arrested without arrest warrants. He does not develop this argument or state with particularity why the warrantless arrests were unlawful or would require dismissal of the information.
The court concludes that Dino Aliven's warrantless arrest was lawful. Warrantless arrests are, under certain situations, lawful and authorized by statute. The pertinent portions of the authorizing statute are as follows:
Arrest without a warrant is authorized in the following situations:
. . .
(3) When a criminal offense has been committed, and a policeman has reasonable ground to believe that the person to be arrested has committed it, such policeman may arrest the person without a warrant.
(4) Policemen, even in cases where it is not certain that a criminal offense has been committed, may, without a warrant, arrest and detain for examination, persons who may be found under such circumstances as justify a reasonable suspicion that they have committed or intend to commit a felony.
12 F.S.M.C. 211. The police knew that a crime had been committed at AWM and had either reasonable grounds to believe that the vehicle's occupants had committed the offense or reasonable suspicion that one or more of the vehicle's occupants had committed a felony[1] at AWM. The police knew that someone in that vehicle had fired a handgun from that vehicle. Under such circumstances, a search of the vehicle's passenger compartment is reasonable.
Persons are constitutionally protected from unreasonable searches and seizures. FSM Const. aV, § 5. But "whe "when a poan haan
has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that t, sethe passenger
compartment of that automobile."
This is based on the general principle that an officer making an arrest has a limited right to conduct a warrantless search incident to that arrest and that this right to search is for the limited purposes of preventing the arrested person from reaching concealed weapons to injure the officer or others, and from destroying evidence. Yinmed v. Yap, [1997] FMYSC 1; 8 FSM Intrm. 95, 100 (Yap S. Ct. App. 1997). This search incident to valid arrest is confined to the person and the area from within which he or she might have reached weapons or destructible evidence and may be done on the spot or even later at the place of detention. Id. Such incidental searches include a vehicle's passenger compartment, even after the occupants have been ordered out and are standing nearby. See 3 Wayne R. LaFave, Search and Seizure, a Treatise on the Fourth Amendment § 7.1(a), at 4- ed. 1987). Si). Since the police had a reasonable belief that there was a firearm in the vehicle, this search might also be vies reasonable if it were done for the purpose of protecting the general public from a firearirearm believed to be in the vehicle and that might fall into the wrong hands. See Cady v. Dombrowski, [1973] USSC 156; 413 U.S. 1074, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973) (when defendant arrested for drunken driving identified self as Chicago police officer but no firearm found on his person; since it was believed that Chicago police were required to carry their weapon at all times, it was reasonable to search vehicle for weapon).
Accordingly, the information will not be dismissed nor will the physical evidence seized from the vehicle, including the .22 handgun and the 47 rounds of ammunition, be suppressed even though the evidence was seized without a search warrant and the defendants were arrested without a warrant.
C. Defendants' Statements
Three defendants move to suppress the statements that they made while in custody.
1. Admissibility
The government has the burden of proving that an accused's statement is voluntary and thus admissible. Thus, although it was the defendant's motion to suppress, the government, because it has the burden, usually presents its side first at a suppression hearing. FSM v. Sam, [2008] FMSC 18; 15 FSM Intrm. 491, 492-93 (Chk. 2008). When an accused's statement is voluntarily made after he has been informed of, and understood his rights, and chosen to waive those rights, his statement is admissible unless the accused has established a relationship between unlawful police activity and the statement sought to be suppressed. Id. at 493. The burden then remains on the prosecution to show that the evidence is still admissible. Id.
2. Dino Aliven's Statement
Dino Aliven contends that his statement should be suppressed because the prosecution cannot show that he was advised of his rights and waived those rights before he made his statement to the police. He also contends that his statement should be suppressed because he was held more than 24 hours before being released.
Dino Aliven's advice of rights and waiver form and his custodial statement, admitted for the purpose of the motion hearing, were both signed by him, and both were dated October 24, 2008, at 14:30. This is within the 24 hours within which an arrestee must be released or brought before a judicial officer. It will not be suppressed on that ground. The remedy for a defendant's unlawful detention over 24 hours is not the suppression of evidence lawfully obtained before the 24 hours passed. FSM v. Sato, [2008] FMSC 46; 16 FSM Intrm. 26, 30 (Chk. 2008) (when none of the evidence the defendant seeks to suppress was obtained as a result of his being detained for more than 24 hours, the motion to suppress will be denied even though he was held over 24 hours; other remedy could be a civil suit).
Dino Aliven's statement will be suppressed because the prosecution has not met its burden to show that he was informed of, understood, and waived his rights to silence and to counsel before he made his custodial statement. Without any other evidence, Dino Aliven's signed advice of rights and waiver with the same date and time as his signed statement cannot meet the prosecution's burden to show the advice of rights was given, and a waiver received, before Dino Aliven began to answer questions or make a statement about his involvement in the October 23, 2008 incident.
3. Alven Aliven's Statement
Alven Aliven contends that his statement should be suppressed because it was made before his rights were read to him. His statement is signed and dated October 24, 2009 with no time given. There was no testimony or other evidence about the circumstances under which the statement was obtained.
The government failed to meet its burden to show that Alven Aliven was advised of his rights, that he understood those rights, and that he waived them before he voluntarily made his statement. The motion to suppress his statement is therefore granted. Furthermore, a statement, even if voluntarily given, that is dated the day after the accused's arrest, but with no time given, is insufficient to show that the statement was not the product of the government's unlawful act of holding the defendant longer than 24 hours after his arrest. Sam, 15 FSM Intrm. at 493. Alven Aliven's statement is thus inadmissible on that ground as well.
4. Jimmy Mori's Statement
Jimmy Mori contends that he did not properly waive his rights to silence and an attorney so his statement ought to be suppressed. He bases this contention on discrepancies between his advice of rights and waiver form and his signed statement. The interrogating officer signed the advice of rights form attesting that Jimmy Mori had been advised of his rights as of 1330 hours October 24, 2008. His statement is signed and dated by both the interrogating officer and Jimmy Mori with "a date and time of October 24, 2008, at 13:5 something . . . the time beirtially cutofcutoff in the photocopy of the statement." Motion to Suppress at 4 (May 15, 2009). The waiver portion of the advice of rights form is signed by Jimmy Mori with a date of "10/24/08" followed by what appears to be 1530 in a handwriting different than the interrogating officer's. Jimmy Mori contends that this means he must have signed the waiver after his statement was taken. The signature line for a possible witness was blank.
The prosecution called the interrogating officer to testify about the circumstances surrounding the taking of Jimmy Mori's statement. Based upon his testimony and the advice of rights and statement admitted by stipulation for the purpose of this hearing, the court is satisfied that the prosecution has established by a preponderance of the evidence that Jimmy Mori was informed of his rights, that he understood those rights, and that he waived those rights before he gave his statement. While the better practice is to finish all the paperwork concerning the advice of rights and waiver before beginning questioning, it is not a requirement in order for Jimmy Mori to have made a valid waiver of his rights. The greater certainty engendered by completing the advice of rights and waiver paperwork first does, however, make things easier on counsel and the courts.
The motion to suppress Jimmy Mori's statement is therefore denied.
5. Johnny Aliven's Statement
Johnny Aliven did not move to suppress his statement. It is therefore admissible. FSM Crim. R. 12(b)(3) (motions to suppress evidence must be made before trial).
6. Possible Use at Trial
If codefendants are tried together, as the codefendants in this case are expected to be, a defendant's admissible out-of-court statement ought to be redacted to eliminate references to other codefendants. Hartman v. FSM, [1993] FMSC 53; 6 FSM Intrm. 293, 301-02 (App. 1993) (failure to redact may result in reversal of convictions in the interests of justice). Since redaction can normally be accomplished by the parties, the court will not view the statement until after redaction. Id. at 302 n.12. After redaction, no prejudice will occur if the statements then give no reference to any codefendant. Id. at 302.
And when an accused's statement has been suppressed, it may not be used against him at trial unless he chooses to testify on his own behalf, in which case, the statement may be used to impeach his credibility. Sam, 15 FSM Intrm. at 493.
D. Same or Similar Offenses
Johnny Aliven, joined by the other defendants where applicable, urges that Counts VI and XI be dismissed on the ground that, based on the allegations in this case, those counts duplicate Counts VIII and XIII. Counts VI and XI charge the defendants with violating 11 F.S.M.C. 1002 by possessing a handgun (Count VI) and aiding and abetting[3] the possession of a handgun (Count XI). Counts VIII and XIII charge the defendants with violating 11 F.S.M.C. 1023(7) by possessing a handgun (Count VIII) and 11 F.S.M.C. 1023(5) by aiding and abetting the possession of a handgun (Count XIII). The defendants contend that since Count VI requires the proof of the exact same elements and facts as Count VIII and Count XI requires the proof of the same facts as Count XIII, being charged with more than one count in each pair constitutes a violation of their protection against double jeopardy since, if convicted they will be punished twice for the same offense. They urge that since Counts VI and XI are charges under a more general statute, 11 F.S.M.C. 1002, and Counts VIII and XIII are charges under a more specific statute, 11 F.S.M.C. 1023(5) and (7), the counts charging a violation of the more general statute should be dismissed.
The prosecution asserts that the double jeopardy protection is not implicated since each statute contains elements that the other does not have. The prosecution also contends that double jeopardy is not implicated since the defendants have not yet been put in jeopardy (gone to trial) once on any charge. Nor have they yet been punished, so multiple punishment is not a concern.
The FSM Constitution's double jeopardy clause protects 1) against a second prosecution for the same offense after acquittal, 2) against a second prosecution for the same offense after conviction, and 3) against multiple punishments for the same offense. Laion v. FSM, [1984] FMSC 9; 1 FSM Intrm. 503, 523 (App. 1984). When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not, and, if the test is met a dual conviction will not violate the constitutional protection against double jeopardy. Laion, 1 FSM Intrm. at 523-25.
A criminal information's allegations must be proven in order to obtain a conviction, and it is not sufficient that the evidence show a violation of the statute specified in the information if the actual violation is different from the one alleged. Buekea v. FSM, [1984] FMSC 8; 1 FSM Intrm. 487, 493-94 (App. 1984). Thus, in this information, Count VI requires proof of identical allegations (facts and elements) as Count VIII and Count XI requires the proof of the exact same elements and facts as Count XIII. It would therefore violate a defendant's double jeopardy protection if he were convicted of both Count VI and VIII (or Count XI and XIII) and then punished for both.
The proper remedy, however, is not to dismiss before trial some counts based on what might happen. When two statutory provisions aimed at similar types of wrongdoing and at upholding public interests of the same nature would apply to a solitary illegal act that caused only one injury, the statutes will be construed as not to authorize cumulative convictions. Laion, 1 FSM Intrm. at 529. The government, however, will not be denied the right to charge the separate offenses to guard against the risk that a conviction may not be obtained on one of the offenses. Id.
Where the same conduct may amount to more than one offense, the defendant may be prosecuted for each offense. But he may not be convicted of more than one offense if one offense is included in the other, or if one offense as defined prohibits a certain kind of conduct generally, and the other prohibits a specific instance of such conduct.
1 Charles E. Torcia, Wharton's Criminal Law § 58297-98 (14th ed. 1978); <8); cf. Laion, 1 FSM Intrm. at 529 (case involving separate charges based upon the same act may proceed to trial but court should enter a conviction onlyhe more major of the crimesrimes proven beyond a reasonable doubt).
Accordingly, the motion to dismiss Counts VI and XI is denied. But if, after trial, the court finds any defendant guilty of both Counts VI and VIII, a conviction will be entered only on one of those two counts, and, likewise, if the court finds a defendant guilty of both Counts XI and XIII, a conviction will be entered only on one of those two counts.
E. Aiding and Abetting Counts
The defendants (except for Dino Aliven, the one alleged to have been aided and abetted) contend that the aiding and abetting counts should be dismissed because the government has not established probable cause that they had done anything to aid and abet anyone.
Although, at one time, the FSM criminal code provided that no one could be convicted of aiding and abetting "unless the information specifically alleged that the accused had aided and abetted and the information provided specific acts constituting the means of aiding and abetting so as to afford the accused adequate notice to prepare his defense," 11 F.S.M.C. 301(4) (1987 Supp.), that provision was eliminated when the current criminal code[4] was enacted in 2001 making it no longer necessary for the information to recite the specific acts each alleged aider and abetter allegedly committed. FSM v. Sam, [2006] FMSC 46; 14 FSM Intrm. 328, 333 (Chk. 2006). FSM decisional law, however, has since, in effect, reinstated that requirement. The FSM Supreme Court appellate division recently held that it is a fatal variance between pleading and proof when an accused charged with aiding and abetting was not given proper notice of the conduct or acts underlying the violation since that could not give the accused sufficient notice for him to prepare his defense. Kasmiro v. FSM, [2009] FMSC 47; 16 FSM Intrm. 243, 246 (App. 2009) (notice coming midway through the FSM's case-in-chief at trial is not sufficient notice for the accused to prepare his defense against the factual allegations ultimately used to convict him).
No notice was given defendants Jimmy Mori and Johnny Aliven in the information and supporting affidavit or in the material before the court during the pretrial motion hearing of any act or conduct by either of them that was alleged to constitute aiding and abetting Dino Aliven in committing any offense. Counts IX, XI, XII, XIII, and XIV against Jimmy Mori and Johnny Aliven are accordingly dismissed.
Notice was given Alven Aliven, and even relied upon by Alven Aliven in his motion, of his alleged conduct to assist Dino Aliven to leave the scene of the alleged shooting and to continue to drive him away. Whether this notice, without amendment of the information, is sufficient under Kasmiro is uncertain. (The information in this case was filed before Kasmiro was decided.) The prosecution will therefore be given twenty (20) days within which to either amend the information as to Alven Aliven or to dismiss counts IX, XI, XII, XIII, and XIV against him.
F. Possession and 11 F.S.M.C. 1006(2)
1. Statutory Construction
The defendants also contend that Counts VII, VIII, and X ought to be dismissed on statutory grounds. In those counts, all four defendants are charged with possession of the 47 rounds of ammunition (Count VII) and the .22 handgun (Count VIII) found on the stopped vehicle, and possession of the same firearm while intoxicated (Count X) through the operation of 11 F.S.M.C. 1006(2). That statute provides that:
Where a firearm, dangerous device, or ammunition is found in a vehicle or vessel, it shall be prima facie evidence that such firearm, dangerous device, or ammunition is in the possession of the occupant if there is but one. If there is more than one occupant, it shall be prima facie evidence that it is in the possession of all . . . .
11 F.S.M.C. 1006(2006(2). This is a statutory presumption.This statutory presumption (that firearms and ammunition found in a vehicle are in the possession of all the vehicle's occupants) contains two exceptions. The first is when the items are "found upon the person of one of the occupants." 11 F.S.M.C. 1006(2)(a). The second exception, and the one upon which the defendants rely, is
where the vehicle or vessel is not a stolen one and the firearm, dangerous device, or ammunition is out of view in a glove compartment, automobile trunk, or other enclosed customary depository, in which case it is prima facie evidence that such firearm, dangerous device, or ammunition is in the possession of the occupant or occupants who own or have authority to operate the vehicle or vessel[.]
11 F.S.M.C. 1006(2)(b). The defendants contend that the "mini bag," which was found in the vehicle and which contained the .22 handgun and 47 rounds of ammunition, is an "enclosed customary depository" within the meaning of the statute.
The court cannot agree. It is apparent from the statutory language that "enclosed customary depository" refers to "depositories" that are a part of the structure of the vehicle or vessel in the same manner that a glove compartment or a trunk is, that is, a depository generally under the control of "the occupant or occupants who own or have authority to operate the vehicle or vessel," the ones who would then be held criminally liable. Further support for construing subsection 1006(2)(b) in this fashion is that section 1006(2) applies to both vehicles and vessels and vessels do not have "depositories" referred to as a glove compartment or a trunk.
A "mini bag" is an easily-transportable article similar in that nature to a purse, handbag, brief case, attache case, or backpack. Any vehicle occupant may easily carry such an item into a vehicle or onto a vessel. To then hold only the vehicle's (or vessel's) operator or owner liable for its contents, and not the mini bag's owner(s) or transporter(s), would be an absurd result.
A statutory construction that ends in an absurd result must be rejected. This is because a provision of law must be read so as to be internally consistent and sensible. FSM Social Sec. Admin. v. Kingtex (FSM) Inc., [1997] FMSC 27; 8 FSM Intrm. 129, 131-32 (App. 1997); McCaffrey v. FSM Supreme Court, [1993] FMSC 51; 6 FSM Intrm. 279, 281 (App. 1993). Congress has mandated that "[w]ords and phrases" in the FSM Code must "be read with their context," 1 F.S.M.C. 208, and that statutory provisions must "be construed according to the fair construction of their terms, with a view to effect its object and to promote justice," 1 F.S.M.C. 211. Reading the term "enclosed customary depository" with its context and construing it according to the fair construction of its terms, with a view to effect its object and to promote justice, the "mini bag" is not an "enclosed customary depository" within the meaning of 11 F.S.M.C. 1006(2)(b). The movants' suggested construction is neither internally consistent nor sensible.
2. Statutory Presumptions
The court feels that, at this point, a word or two about statutory presumptions in criminal law may be worthwhile. Statutory presumptions come in three types: permissive inference, mandatory rebuttable presumption, and conclusive mandatory presumption. See generally 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 2.13 (1986). Uthe permissivissive inference, the prosecution is not relieved of the burden of persuasion since the "presumption 'is effective so long as there is no substantial evidence contradicting the conclusion flowing from the pthe presumption,'" and the factfinder is left free to accept or reject the inference. Id. § 213(b), at 226 (quoting Ulster County Court v. Allen, [1979] USSC 104; 442 U.S. 140, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979)). The other possibility is that this is a mandatory rebuttable presumptioname="fnB5" href="#fn5">[5] Under a mandatory rebuttabletable presumption, once the predicate facts have been proven, the burden of persuasion shifts to the defense to rebut the presumption, although the burden of proving guilt beyond a reasonable doubt remains with the prosecution. 1 LaFave & Scott, supra, § 2.13(c).
etteretter view is that subsection 1006(2) creates a permissive inference. Since subsection 1006(2), by its terms, creates "prima facie evidence" that firearm ounition is in the possession of all, it most likely is a pe a permissive inference. See 1 LaFave & Scott, supra, § 2.13(a), at 224. UlCountCounty Court v. Allen, [1979] USSC 104; 442 U.S. 140, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979), involved a New York state statute similar to 11 F.S.M.C. 1006(2) and the conviction of three adult males when two large-caliber handguns and ammunition were found in the purse of a minor female in a car in which all four were occupants. In that case, the U.S. Supreme Court described a "permissive inference or presumption," as one "which allowsbut does not requirethe trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. In that situation the basic fact may constitute prima facie evidence of the elemental fact." Id. at 157, 99 S. Ct. at 2224, 60 L. Ed. 2d at 792 (citation omitted). Subsection 1006(2), unlike the New York statute, specifically makes the presumption "prima facie evidence."
Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable doubt" standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.
Allen, 442 U.S. at 157, 99 S. Ct. at 2225, 60 L. Ed. 2d at 792. The court concludes that this is the manner in which it should and will handle the subsection 1006(2) presumption.
3. Ruling
Dismissal of Counts VII, VIII, and X is accordingly denied. Trial in this matter will determine whether there is any substantial evidence contradicting the conclusion flowing from Subsection 1006(2)'s presumption of possession.
G. Jimmy Mori's Motion to Dismiss
Jimmy Mori contends that the information against him should be dismissed because he was arrested without a warrant and without probable cause. As seen above, the police had probable cause or reasonable suspicion to halt the vehicle Jimmy Mori was in and detain the occupants and to charge all of the vehicle's occupants, through 11 F.S.M.C. 1006(2)'s statutory presumption, with possession of the handgun found in the vehicle. Accordingly, this motion is denied.
H. Alven Aliven's Defense and Custom
Alven Aliven seeks dismissal on the ground that, as Dino Aliven's father, it was his duty under custom to try to remove or rescue his son from the scene of a "mutual combat." Alven Aliven raises this as a defense. (He also cites the defenses of necessity and defense of another.) While the ultimate burden of persuasion remains with the government, a defendant, asserting an affirmative defense, has some burden of proof or of going forward with sufficient evidence to raise the defense as an issue at trial. See Runmar v. FSM, [1988] FMSC 13; 3 FSM Intrm. 308, 311 (App. 1988); Ludwig v. FSM, 2 FSM Intrm. 27, 36 (App. 1985). Furthermore, when custom is raised, it is usually more properly considered during sentencing than at other stages of a criminal prosecution. FSM v. Mudong, [1982] FMSC 11; 1 FSM Intrm. 135, 147-48 (Pon. 1982).
Alven Aliven's motion to dismiss on this ground is therefore denied. He is free to present evidence at trial concerning his defense(s), if applicable. Cf. FSM v. Wainit, [2005] FMSC 30; 13 FSM Intrm. 433, 447 (Chk. 2005) (defendant free to put on evidence at trial concerning asserted duress defense if he has evidence to support it).
IV. CONCLUSION
The motions to suppress the custodial statements of Dino Aliven and Alven Aliven are granted. Counts IX, XI, XII, XIII, and XIV against Jimmy Mori and Johnny Aliven are dismissed. The prosecution has twenty (20) days within which to either amend the information as to Alven Aliven or to dismiss counts IX, XI, XII, XIII, and XIV against him. All other pending pretrial motions are denied. But if any defendant is found guilty of both Counts VI and VIII, a conviction will be entered on only one of those counts, and if a defendant is found guilty of both Counts XI and XIII, a conviction will be entered on only one of those counts.
* * * *
[1]The court takes judicial notice that all offenses involving a handgun are felonies under Title 11, chapter 10.
[2]Since the FSM Constitution’s Declaration of Rights protection against unreasonable search and seizure, FSM Const. art. IV, §
5similar to and drawn from from a provision in the U.S. Constitution’s Bill of Rights, U.S. Const. amend. IV, see FSKanso FSM Intrm. 136, 138 (Chk. 2006); FSM v. Inek, [2001] FMSC 12; 10 FSM Intrm. 263, 265 (Chk. 2001)2001); Ish; Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985), U.S. authority may be consulted to understand its meaning. FSM v. Wainit, [2005] FMSC 30; 13 FSM Intrm. 433, 444 (Chk. 2005).
[3]Dino Aliven is not charged with aiding and abetting since he is the one alleged to have been aided and abetted.
[4]The Revised Criminal Code Act became law on January 25, 2001. FSM Pub. L. No. 11-72, § 211. That Act red the prev previous
versions of Title 11, "chapters 1 through 10 and 12 through 14 in their entirety." Id. § 1.
[5]Since the statakes it "prima facie evidenvidence," it cannot be a conclusive mandatory presumption.
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