Federated States of Micronesia v Edward [2013] FMSC 8; 18 FSM Intrm. 547 (Pon. 2013) (25 January 2013)

FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2011-500

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

MARSON EDWARD and RIKARD PRIMO a/k/a RIKARD DAVID,
Defendants.
__________________________________________

ORDER GRANTING SEPARATE TRIALS; RECOMMEND TRIAL DATES

Dennis K. Yamase
Associate Justice

Decided: January 25, 2013

APPEARANCES:

For the Plaintiff: Pole Atanraoi-Reim, Esq.

Assistant Attorney General

FSM Department of Justice

P.O. Box PS-105

Palikir, Pohnpei FM 96941

For the Defendant: Harry A. Seymour, Esq.

(Edward) Office of the Public Defender

P.O. Box 245

Tofol, Kosrae FM 96944

For the Defendant: Timoci Romanu, Esq.

(Primo) Office of the Public Defender

P.O. Box PS-174

Palikir, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure - Joinder and Severance
Pretrial rulings on the admissibility of evidence may have had an impact on the decision made by the FSM to later move for severance and the prejudice to the FSM by the joint trial of the two co-defendants are sufficient cause for the court to grant a relief from the Rule 12(f) waiver for failure to make the severance request earlier. FSM v. Edward, [2013] FMSC 8; 18 FSM Intrm. 547, 549 (Pon. 2013).

Criminal Law and Procedure - Joinder and Severance
While the two defendants' joint trial would promote efficiency and might remove the possibility of inconsistent verdicts, the possible prejudice to the FSM is substantial and outweighs these factors. Severance of the defendants' trials will have the effect of setting back the trial dates, but the delay should not be lengthy and when the trials should not be longer than several days each and it is always possible that a plea would mean no trial at all, any delay or waiting by the objecting defendant is not anticipated to be unduly burdensome. FSM v. Edward, [2013] FMSC 8; 18 FSM Intrm. 547, 549-50 (Pon. 2013).

Criminal Law and Procedure - Joinder and Severance
Severance of joint criminal defendants is a matter of sound judicial discretion. A trial judge is afforded broad discretion under FSM Criminal Rule 14 to grant relief from prejudicial joinder - to sever defendants from trial. FSM v. Edward, [2013] FMSC 8; 18 FSM Intrm. 547, 550 (Pon. 2013).

Criminal Law and Procedure - Joinder and Severance
If it appears that a defendant or the government is prejudiced by a joinder of offenses or defendants in a single information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires. FSM v. Edward, [2013] FMSC 8; 18 FSM Intrm. 547, 550 (Pon. 2013).

Criminal Law and Procedure - Joinder and Severance
Severance will be granted when the prejudice to the FSM by the joint trial of the two co-defendants is sufficient cause to grant a severance for the trials of the two defendants; when it outweighs the benefits of a single trial; and when no significant delay in the separate trials for both defendants is expected. FSM v. Edward, [2013] FMSC 8; 18 FSM Intrm. 547, 550 (Pon. 2013).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. Background

This is a single criminal matter involving two co-defendants Marson Edward and Rikard Primo. On December 27, 2012, the Plaintiff the Federated States of Micronesia (FSM) filed a Motion for Severance and an Affidavit in support. The FSM is represented by FSM Assistant Attorney General Pole Atanraoi-Reim, Esq. On January 7, 2013, Rikard Primo (Primo), one of the two co-defendants in this matter, filed his Opposition to Motion for Severance. Assistant Public Defender (Pohnpei Office) Timoci Romanu represents the co-Defendant Primo. No filing on the Motion for Severance was received from the co-Defendant Marson Edward, who is represented by Assistant Public Defender (Kosrae Office), Harry Seymour, Esq. On January 21, 2013, the FSM filed a Plaintiff's Response to Defendant Rikard Primo aka Rikard David's Opposition to Motion for Severance and an accompanying affidavit.

II. Criminal Rules and Parties' Positions

The FSM's Motion for Severance is made pursuant to FSM Criminal Procedure Rule 14 which states as follows:

Rule 14. Relief from Prejudicial Joinder. If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

FSM Crim. R. 14 (emphasis added).

The FSM stated in its memorandum in support of the motion that it intends to call the Defendant Marson Edward as a witness and use his statement against the co-Defendant Rikard Primo, which will be possible only if the trial is severed. By severing the trials, the FSM contends that the Defendant Primo would have an opportunity to confront and cross-examine the Defendant Edward as a witness. If severance is not granted and the FSM is not able to call the Defendant Edward as a witness, the FSM states that it will be prejudiced.

In its Opposition to Motion for Severance, the Defendant Primo contends that the FSM's failure to make this request for severance prior to the pre-trial motion deadline of February 14, 2012[1] constitutes a waiver and that the FSM has failed to show proper cause why relief from this waiver should be granted. In support, Primo cites to FSM Criminal Rule 12(f) which states in pertinent part that:

(f) Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

FSM Crim. R. 12(f) (emphasis added).

The Defendant Primo makes further argument that severing the trial will deny him his rights to a speedy trial and subject him to undue oppression and mental anguish by having to wait for the completion of the trial of the co-Defendant Edward prior to his trial. Primo also states that joint trials are preferred as they promote efficiency and serve the interest of justice by avoiding scandal and the inequity of inconsistent verdicts.

III. Analysis

The court finds that the prejudice to the FSM by the joint trial of the two co-defendants is sufficient cause for it to grant relief from the waiver as set forth in FSM Crim. R. 12(f). The court also notes that the Order Denying in Part and Granting in Part Motion to Suppress [FSM v. Edward, [2012] FMSC 41; 18 FSM Intrm. 444 (Pon. 2012)] was entered on November 30, 2012, and that order made rulings on the admissibility of certain evidence. That ruling might have had an impact on the decision made by the FSM to now move for severance. The FSM also states that the previous FSM Assistant Attorney General working on this matter had left the office on December 19, 2012 and that the current attorney working on this matter had received the file on that same day.

While the court recognizes that the joint trial of the defendants would promote efficiency and might remove the possibility of inconsistent verdicts, the possible prejudice to the FSM is substantial and outweighs these factors. Severance of the defendants' trials will have the effect of setting back the trial dates that were recommended for January, 2013, but the delay should not be lengthy. Also, the trials should not be longer than several days each. There is also always the possibility of a plea that would mean no trial would take place at all. So any delay or waiting by the Defendant Primo is not anticipated to be unduly burdensome.

Severance of joint criminal defendants is a matter of sound judicial discretion. A trial judge is afforded broad discretion under FSM Criminal Rule 14 to grant relief from prejudicial joinder - to sever defendants from trial. When co-defendants were prejudiced by their joinder in a case because an attorney disqualified from prosecuting them assisted in the trial preparation, the court ordered the severance of the charges against them. FSM v. Kansou, [2006] FMSC 13; 14 FSM Intrm. 171, 178 (Chk. 2006).

If it appears that a defendant or the government is prejudiced by a joinder of offenses or defendants in a single information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires. FSM v. Zhang Xiaohui, [2007] FMSC 13; 14 FSM Intrm. 602, 614 (Pon. 2007).

The prejudice to the FSM by the joint trial of the two co-defendants is sufficient cause to grant a severance for the trials of the two defendants and outweighs the benefits of a single trial. No significant delay in the separate trials for both defendants is expected.

IV. Conclusion

For all of the aforementioned reasons, the Plaintiff FSM's Motion for Severance is hereby granted and a separate trial for each of the two defendants shall be held. All parties will confer with each other, the court calendar, and discuss recommended trial dates preferably in February, 2013 (the dates of February 11 to 21 and 25 to 27 appear available).

After agreement on the dates, the FSM shall file a joint report to the court with the recommended trial dates for the two defendants. If agreement cannot be reached, then the report shall contain the respective recommended trial dates for each of the parties. This report shall be filed no later than Thursday, January 31, 2013. The court will thereafter set the separate trials for the two defendants.

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^[1] The court’s Order Setting Deadlines for Discovery and Pretrial Motions set the deadline for filing pretrial motions for February 14, 2012. The court’s Order Granting Motion to Compel entered on March 24, 2012 granted an enlargement for the Defendant Edward to file his pretrial motions to April 16, 2012.