Trust Territory v Bruno [1974] TTLawRp 36; 6 TTR 635 (15 May 1974)

6 TTR 635

TRUST TERRITORY OF THE PACIFIC ISLANDS

v.

CORNELIO BRUNO

Crim. No. 5-73

Trial Division of the High Court

Palau District

May 15, 1974

Prosecution for voluntary manslaughter and unlawful possession of a firearm. The Trial Division of the High Court, Robert A. Hefner, Associate Justice, held that where police officer shot and killed person at disturbance police were attempting to quell, rocks had been thrown at police, one officer testified he was threatened with a machete, police officer had left, gone home and returned with a gun, and he testified he fired at a tree to scare the troublemakers after a rock passed over his head, but that he could not see the end of his rifle, homicide was not justifiable as one in which necessary force was used to compel submission of an arrested person, nor excusable as one not strictly willful or intentional and done by accident or misfortune, or while doing a lawful act by lawful means, and that defendant was guilty of involuntary manslaughter.

1. Constitutional Law-Miranda Warning

Where, following homicide at which defendant, one of the police officers attempting to quell a disturbance, was present, another officer was sent to find defendant and obtain his gun, and officer found defendant, asked for and was given the gun, and did not take defendant into custody, arrest him or interrogate him, defendant was not entitled to a Miranda warning and evidence connected to the gun would not be stricken for failure to give one. (12 TTC § 68)

2. Search and Seizure-Consent-Voluntariness

Where an accused actively assisted a police officer, consent will ordinarily be regarded as having been voluntary.

3. Search and Seizure-Consent-Voluntariness

Voluntariness of consent to a police search is a question of fact to be determined from all the circumstances.

4. Search and Seizure-Consent-Voluntariness

Whether one who consented to a police search knew of his right to refuse is a factor to be considered in determining whether the consent was voluntary.

5. Search and Seizure-Consent-Voluntariness

Prosecution need not show that accused knew he had a right to refuse to consent to a police search as a prerequisite to establishing that accused voluntarily consented to a search.

6. Search and Seizure-Consent-Voluntariness

A voluntary consent to a search is not rendered invalid solely on the basis that a suspect was not given the Miranda warning.

7. Homicide-Involuntary Manslaughter-Particular Cases

Where police officer shot and killed person at disturbance police were attempting to quell, rocks had been thrown at police, one officer testified he was threatened with a machete, police officer had left, gone home and returned with a gun, and he testified he fired at a tree to scare the troublemakers after a rock passed over his head, but that he could not see the end of his rifle, homicide was not justifiable as one in which necessary force was used to compel submission of an arrested person, nor excusable as one not strictly willful or intentional and done by accident or misfortune, or while doing a lawful act by lawful means, and that defendant was guilty of involuntary manslaughter. (11 TTC § 754)

8. Homicide-Involuntary Manslaughter-Burden of Proof

Where a trier of fact has a reasonable doubt that a homicide was justifiable or excusable, the trier of fact must give the defendant the benefit of the doubt and acquit him.

Special Judges:	FRANCISCO MOREI, Presiding Judge,
		and SINGICHI IKESAKES, Associate Judge, District Court
Interpreter: Reporter: Prosecutors:	AMADOR D. NGIRKELAU SAM K. SASLAW JOHN F. VOTRUBA, District Attorney,
		and GILLIAN T. TELLAMES, Assistant District Prosecutor
Counsel for Accused:		J. LEO McSHANE, Acting Chief Public Defender, and FRANCISCO ARMALUUK, Public Defender's Representative

HEFNER, Associate Justice

Defendant, a police officer at the time of this incident, was tried on two counts, in an Information, the unlawful possession of a firearm and murder in the second degree, both arising out of a homicide occurring on November 29, 1972.

At the time the prosecution rested, the defense moved for an acquittal, or in the alternative, to reduce the charge of second degree murder to a lesser included offense since malice was not proven by the prosecution. The Court, pursuant to Rule 13 (h) of the Rules of Criminal Procedure granted the motion reducing the second count to voluntary manslaughter.

Several significant legal issues arose in this matter which have no precedent in the Trust Territory Courts.

During the presentation of the case for the prosecution, it developed that on the night of November 29, 1972 a group of police officers converged on the village of Ngerbeched, Koror Municipality, to quell a disturbance and incident where certain youths threatened the police officers with a machete and by throwing stones and prevented the officers from making arrests. During this time witnesses saw the defendant with a gun and heard one shot. The next morning, November 30, 1972, the body of one Mathias Boisek was found not far from the place where he was seen last and an autopsy was performed. The medical officer concluded that the cause of death was a 22 caliber bullet which entered the right side of the victim, passing almost all the way through the body.

On December 1, 1972, a police officer was instructed by his superiors to find the defendant and get his gun. The police officer found the defendant and testified "I came for the gun, the very gun he used during the night when there was some problem at the village of Ngerbeched so he got into the car-got into the jeep and took the gun and gave it to me."