FSM v Jappan [2018] FMSC 36; 22 FSM R. 49 (Chk. 2018) (24 September 2018)

FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2018-1505

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

JAYSON JAPPAN and ANRETA FRET,
Defendants.
__________________________________________

ORDER CONCERNING MOTION FOR SPECIAL TRIAL PROCEDURES

Larry Wentworth
Associate Justice

Decided: September 24, 2018

APPEARANCES:

For the Plaintiff: Abigail Avoryie, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant (Jappan): Robert P. Nakasone, Esq.
Office of the Public Defender
P.O. Box 814
Weno, Chuuk FM 96942

For the Defendant (Fret): Bethwell O’Sonis, Esq.
Office of the Public Defender
P.O. Box 814
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure - Motions - Unopposed
While failure to oppose a motion is, by rule, deemed a consent to the motion, even then the court still needs good grounds before it can grant an unopposed motion. FSM v. Jappan, 22 FSM R. 49, 52 (Chk. 2018).

Criminal Law and Procedure - Public Trial; Criminal Law and Procedure - Right to Confront Witnesses
A prosecution request that the courtroom be closed and that the public be excluded during the child-victim’s testimony and that a screen be placed in the courtroom so that when she testifies, she is shielded from the defendants’ gaze, implicates two important constitutional rights - the defendant’s right to confront any witnesses against the defendant and the public trial right. FSM v. Jappan, 22 FSM R. 49, 52 (Chk. 2018).

Criminal Law and Procedure - Right to Confront Witnesses
The accused’s rights that are protected by the confrontation clause are the right to cross-examine witnesses, the right to exclude out-of-court statements, and the right to face-to-face confrontation, including a right to meet face to face all those who appear and give evidence at trial. Meeting face to face is required because it is always more difficult to tell a lie about a person to his face than behind his back, even though there are times it may unfortunately upset the truthful victim-witness. FSM v. Jappan, 22 FSM R. 49, 53 (Chk. 2018).

Constitutional Law - Declaration of Rights
While the court must first look to FSM sources of law rather than begin with a review of other courts’ decisions, when an FSM Declaration of Rights provision is patterned after a U.S. Constitution provision, United States authority may be consulted to understand its meaning. FSM v. Jappan, 22 FSM R. 49, 53 n.2 (Chk. 2018).

Criminal Law and Procedure - Right to Confront Witnesses
The confrontation clause requires that the defendant cross-examine an adverse witness face-to-face, thereby permitting the finder of fact to evaluate the witness’ credibility, but the right to confrontation is not an absolute right. FSM v. Jappan, 22 FSM R. 49, 53 (Chk. 2018).

Criminal Law and Procedure - Right to Confront Witnesses
Since the right to meet face-to-face all those who appear and give evidence at trial is not absolute, an actual face-to-face encounter at trial is not constitutionally required in every instance. FSM v. Jappan, 22 FSM R. 49, 53 (Chk. 2018).

Criminal Law and Procedure - Right to Confront Witnesses
The government’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court. FSM v. Jappan, 22 FSM R. 49, 53 (Chk. 2018).

Criminal Law and Procedure - Public Trial; Criminal Law and Procedure - Right to Confront Witnesses
When the prosecution has made an adequate showing of necessity, the governmental interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant. FSM v. Jappan, 22 FSM R. 49, 53 (Chk. 2018).

Criminal Law and Procedure - Right to Confront Witnesses
Confrontation rights may be satisfied absent a physical, face-to-face confrontation at trial only when there is an individualized determination that the denial of a physical face-to-face confrontation is necessary to further an important public policy, and only when the testimony’s reliability is otherwise assured. The requisite finding of necessity must be a case-specific one where the trial court hears evidence and determines the necessity of the special procedure to protect the chid’s welfare. When no such determination of necessity has been made since no evidentiary hearing on the subject has been held, the court cannot grant the relief sought. FSM v. Jappan, 22 FSM R. 49, 53 (Chk. 2018).

Criminal Law and Procedure - Public Trial
The public trial guarantee is a constitutional right that both the accused and the general public have. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial
Violation of the constitutional public trial right is not subject to a harmless error analysis and the defendant need not show any prejudice in order to have his conviction or sentencing or other proceeding vacated. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial
Closure of a criminal trial may be constitutional under limited circumstances. The public trial interest will be balanced against other interests that might justify closing the trial or part of the trial, but in striking a fair balance, the trial judge’s discretion is strictly limited. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial
The trial judge’s best course of action is to hold an evidentiary hearing on the issue of closure whenever it arises, although in some circumstances, the judge will be able to take judicial notice of the essential facts. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial
The party seeking to close a criminal proceeding 1) must advance an overriding interest that is likely to be prejudiced, 2) the closure must be no broader than necessary to protect that interest, 3) the trial court must consider reasonable alternatives to closing the proceeding, and 4) it must make findings adequate to support the closure. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial
Closure orders are to be no broader than necessary to protect the countervailing interest advanced. That is because it is incumbent upon trial judges to consider reasonable alternatives before closing the courtroom during trial testimony. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial
Implicit in the command that a courtroom closure must be no broader than necessary is the requirement to consider measures less broad than complete closure. The court must consider alternatives to a complete closure of the courtroom even if no party suggests any, since courtrooms are presumed to be open and trials are presumed to be public and less drastic alternatives than courtroom closure must be considered even though those alternatives may be cumbersome. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial; Criminal Law and Procedure - Sexual Offenses
Although a trial for the sexual assault of a minor involves the government’s compelling interest in the minor victim’s welfare, it does not follow from this that the court may automatically close trials to the public whenever a minor victim testifies in any sexual assault trial. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial
A trial court can determine on a case-by-case basis whether closure is necessary to protect a minor victim’s welfare. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. FSM v. Jappan, 22 FSM R. 49, 54 (Chk. 2018).

Criminal Law and Procedure - Public Trial
Case-by-case attention is required when the issue is determining whether there is a legitimate need to encroach upon the defendant’s right to a public trial. Limited exclusion of spectators is also permissible when there is a demonstrated need to protect a witness from threatened harassment or physical harm. FSM v. Jappan, 22 FSM R. 49, 54-55 (Chk. 2018).

Criminal Law and Procedure - Public Trial
Since the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure whenever it arises, the court cannot grant a trial closure when one has not yet been held, and judicial notice does not seem possible. FSM v. Jappan, 22 FSM R. 49, 55 (Chk. 2018).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

This comes before the court on the prosecution’s Motion to Screen Child Witness and [for] Partial Closed Court, filed September 17, 2018, which was an oral motion reduced to writing at the court’s request. Neither defendant filed a response within the time frame set by the court. While failure to oppose a motion is, by rule, deemed a consent to the motion, FSM Crim. R. 45(d), even then the court still needs good grounds before it can grant an unopposed motion. FSM v. Fritz, 20 FSM R. 596, 598 (Chk. 2016); FSM v. Phillip, 17 FSM R. 413, 426 (Pon. 2011); FSM v. Marehalau, 16 FSM R. 505, 507 (Pon. 2009); FSM v. Kansou, 15 FSM R. 373, 378 (Chk. 2007). Also before the court is the prosecution’s Motion to Enlarge, filed September 18, 2018.

I. SPECIAL TRIAL PROCEDURES

The prosecution asks that special procedures be employed during the trial testimony of the alleged child-victim in this human trafficking case. The defendants are the child-victim’s mother and step-father, who are charged with human trafficking of a minor in regards to her. The prosecution asks that the courtroom be closed and that the public be excluded during her testimony and that a screen be placed in the courtroom so that when she testifies, she is shielded from the defendants’ gaze.

The prosecution’s request implicates two important constitutional rights - the defendant’s right to confront any witnesses against the defendant and the public trial right. These will be discussed in turn.

II. RIGHT TO CONFRONT WITNESSES

The prosecution’s request for the child-victim to testify from behind a screen implicates a criminal defendant’s right to confront the prosecution’s witnesses. FSM Const. art. IV, & 6. The proe prosecution’s stated reason for the alleged minor-victim to testify from behind a screen is to protect a vulnerable child victim from bfurthaumatized or re-traumatized and intimidated by eiby either defendant, at least one of whom whom is reported to have contacted the victim twice trying to pressure her into not pressing forward with this case.

The right of a person accused of a crime to confront the witnesses against him is of ancient lineage, recognized even by the Romans in Biblical times.^[1] The FSM Declaration of Rights’ Confrontation Clause - "to be confronted with the witnesses against him," FSM Const. art. #167; 6 - is iden identical wordong to that in the U.S. Bill of Rights, U.S. Const. amend. VI. Generally, the accused’s rights that are protected by the confrontation clause are the right to cross-examine witnesses, tght to exclude out-of-courtcourt statements, and the right to face-to-face confrontation, including "’a right to meet face to face all those who appear and give evidence at trial.’" Coy v. Iowa, [1988] USSC 154; 487 U.S. 1012, 1020-21[1988] USSC 154; , 108 S. Ct. 2798, 2803[1988] USSC 154; , 101 L. Ed. 2d 857, 866-67 (1988) (quoting California v. Green, [1970] USSC 157; 399 U.S. 149, 175, 90 S. Ct. 1930, 1944, 26 L. Ed. 2d 489, 508 (1970)^[2] (emphasis supplied by the Coy court)). Meeting face to face is required because "[i]t is always more difficult to tell a lie about a person ’to his face’ than ’behind his back,’" even though there are times it may unfortunately upset the truthful victim-witness. Coy, 487 U.S. at 1019-20, 108 S. Ct. at 2802, 101 L. Ed. 2d at 866.

The confrontation clause requires the defendant to cross examine the adverse witness face-to-face, thereby permitting the finder of fact to evaluate the witness’ credibility, but the right to confrontation is not an absolute right. FSM v. Halbert, 20 FSM R. 42, 46 (Pon. 2015). Since the right to meet face-to-face all those who appear and give evidence at trial is not absolute, Maryland v. Craig, [1990] USSC 130; 497 U.S. 836, 844[1990] USSC 130; , 110 S. Ct. 3157, 3162-63[1990] USSC 130; , 111 L. Ed. 2d 666, 677 (1990), an actual face-to-face encounter at trial is not constitutionally required in every instance, id. at 847, 110 S. Ct. at 3164, 111 L. Ed. 2d at 680. The government’s "interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court." Id. at 853, 110 S. Ct. at 3167, 111 L. Ed. 2d at 683. Thus, when the prosecution

has made an adequate showing of necessity, the [governmental] interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.

Id. at 855, 110 S. Ct. at 3169, 111 L. Ed. 2d at 685 (child witness permitted to testify via one-way closed circuit television). Confrontation rights may be satisfied absent a physical, face-to-face confrontation at trial only when there is an individualized determination that the denial of a physical face-to-face confrontation is necessary to further an important public policy, and only when the testimony’s reliability is otherwise assured. Halbert, 20 FSM R. at 47. The requisite finding of necessity must be a case-specific one where the trial court hears evidence and determines the necessity of the special procedure to protect the chid’s welfare. Craig, 497 U.S. at 855, 110 S. Ct. at 3169, 111 L. Ed. 2d at 685.

No such findings or determination of necessity have yet been made since no evidentiary hearing on the subject has been held. The court therefore cannot, at this time, grant the relief sought.

III. PUBLIC TRIAL RIGHT

The prosecution also asks that the courtroom be closed to spectators while the alleged child-victim testifies. This proposed closure implicates the constitutional right to a public trial in criminal cases. FSM Const. art. IV, § 6.

Tblic trial guaraguarantee is a constitutional right that both the accused and the general public have. Neth v. Kosrae, 14 FSM R. 228, 234 (App. 2006); Nena v. Kosrae, 14 FSM R. 73, 78 (App. 2006). "Violation of the constitutional public trial right is not subject to a harmless error analysis and the defendant need not show any prejudice" in order to have his conviction or sentencing or other proceeding vacated. Neth, 14 FSM R. at 232; Nena, 14 FSM R. at 78. Thus, the court must tread carefully here.

Nevertheless, "[c]losure of a criminal trial may be constitutional under limited circumstances." 6 WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE § 24.1(b), at 304 (3d ed. . 7). The public trial interest will be balanced against other interests that might justify closing the trial or part of the trial. "But in striking a fair balance, the trial judge’s discretion is strictly limited. Generally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure whenever it arises." Id. In some circumstances, though, "the judge will be able to take judicial notice of the essential facts." Id.

The party seeking to close a criminal proceeding [1] "must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure." Waller v. Georgia, [1984] USSC 106; 467 U.S. 39, 48[1984] USSC 106; , 104 S. Ct. 2210, 2216[1984] USSC 106; , 81 L. Ed. 2d 31, 39 (1984). In ABC, Inc. v. Stewart, [2004] USCA2 66; 360 F.3d 90, 100-05 (2d Cir. 2004), the closure of the jury voir dire proceeding was held improper because the trial court made inadequate findings and the closure was not narrowly tailored to achieve the objective of concealing the identity of prospective jurors in a high-profile trial. "[C]losure orders [are to] be no broader than necessary to protect the countervailing interest advanced." Id. at 104. That is because "it is incumbent upon trial judges to consider reasonable alternatives before closing the courtroom during trial testimony." Okonkwo v. Lacy, [1997] USCA2 5; 104 F.3d 21, 26 (2d Cir. 1997) (when undercover officer testified in courtroom closed because he wanted to remain undercover, writ of habeas corpus would issue if accused not retried in a reasonable time).

A "courtroom closure must be no broader than necessary. Implicit in that command is the requirement to consider measures less broad than complete closure." Ayala v. Speckard, 102 F.3d 649, 653 (2d Cir. 1996) (citation omitted). The court must consider alternatives to a complete closure of the courtroom even if no party suggests any, since courtrooms are presumed to be open and trials are presumed to be public and less drastic alternatives than courtroom closure must be considered even though those alternatives may be cumbersome. Id. at 653-54 & n.3. For example, "a strategically placed chalkboard" screening the public’s view of the testifying witness is one "obvious alternative." Id. at 653.

Although a trial for the sexual assault of a minor involves the government’s compelling interest in the minor victim’s welfare, "[i]t does not follow from this that the court may automatically close trials to the public whenever a minor victim testifies in any sexual assault trial." 6 LAFAVE, ISRAEL, KING & KERR, supra, § 24.1(b), at 306. A greater inquiry is required.

A trial court can determine on a case-by-case basis whether closure is necessary to protect the we of a minor victim. Among the factors to be weighed are the minor victim’s age, psyc psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.

Globe Newspaper Co. v. Superior Court, [1982] USSC 136; 457 U.S. 596, 608[1982] USSC 136; , 102 S. Ct. 2613, 2621[1982] USSC 136; , 73 L. Ed. 2d 248, 258 (1982) (footnotes omitted) (mandatory closure rules not justified). Although the issue in Globe was the public’s right of access to criminal trials embodied in the freedom of the press, "the same amount of case-by-case attention is required when the issue is determining whether there is a legitimate need to encroach upon the defendant’s right to a public trial." 6 LAFAVE, ISRAEL, KING & KERR, supra, § 24.1(b 306-07 n.24. "LimitLimited exclusion of spectators is also permissible when there is a demonstrated need to protect a witness from threatened harassment or physical harm." Id. at 307.

Since "the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure whenever it arises," 6 LAFAVE, ISRAEL, KING & KERR, supra, § 24.1(b), at 304, sincehas nhas not yet been held, and since judicial notice does not seem possible, the court cannot grant a trial closure at this time.

IV. CONTINUANCE OF PROCEEDINGS

On September 18, 2018,2018, the prosecution filed a Motion to Enlarge, in which it asks the court to continue all proceedings in this case until January 7, 2019, or later because the government will be hiring a psychiatrist in October 2018 and would like that mental health professional to evaluate the alleged child-victim in support of its motion for special protections for her when she testifies. The government indicates in its motion that defendant Anreta Fret’s counsel has consented to this continuance, but that Jayson Jappan’s counsel had not responded.

As should be apparent from the court’s discussion above of the important constitutional interests implicated in the prosecution’s motion for special trial procedures, the court cannot grant the relief it seeks without making the requisite findings for which an evidentiary hearing would seem to be a necessity. That motion thus remains pending before the court.

Accordingly, the government’s motion to continue court proceedings is granted, the September 25, 2018 plea hearing and trial date is vacated, and the following schedule is set: 1) any further pretrial motions shall be filed and served by October 3, 2018; 2) the evidentiary hearing on the prosecution’s motion for special trial procedures is set for Monday, January 7, 2019, at 10:00 a.m.; and 3) the court will take defendant Jayson Jappan and Anreta Fret’s pleas at 10:00, Wednesday, January 9, 2019, and if any not guilty plea is entered, trial will start immediately thereafter.

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^[1] "[I]t was not the Roman custom to sentence a man to be punished until the accused met his accusers face to face, and had an opportunity to defend himself against the charge." Acts 25:16 (International Standard Version).

^[2] While the court must first look to FSM sources of law rather than begin with a review of other courts’ decisions, when an FSM Declaration of Rights provision is patterned after a U.S. Constitution provision, United States authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM R. 407, 412 n.2 (App. 2000) (citing Ting Hong Oceanic Enterprises v. FSM, 7 FSM R. 471, 477 n.8 (App. 1996); Alaphonso v. FSM, 1 FSM R. 209, 214-15 (App. 1982)); Kon v. Chuuk, 19 FSM R. 463, 466 n.1 (Chk. 2014).