FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2012-1500

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

GIBSON, a/k/a "CHOFONO," KOOL,
Defendant.
__________________________________________ )

ORDER DENYING DISMISSAL

Dennis K. Yamase
Associate Justice

Hearing: May 31, 2012
Decided: June 12, 2012

APPEARANCES:

For the Plaintiff: Joses R. Gallen, Esq.
Attorney General
Nemwarichen Salle (pro hac vice)
State Prosecutor
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: Bethwell O'Sonis, Esq.
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
Prosecutors are constitutionally required to provide criminal defendants with any and all exculpatory evidence they have regardless of whether the defendant has made a discovery request. This is a continuing obligation which does not cease at any deadline. FSM v. Kool, 18 FSM Intrm. 291, 293-94 (Chk. 2012).

Criminal Law and Procedure - Discovery; Evidence
Evidence is exculpatory if it clears or tends to clear from alleged fault or guilt. FSM v. Kool, 18 FSM Intrm. 291, 293 n.1 (Chk. 2012).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
A prosecutor has an ethical obligation to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. FSM v. Kool, 18 FSM Intrm. 291, 294 (Chk. 2012).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
Regardless of whether an accused has requested discovery, a prosecutor must disclose to the defense evidence that is favorable to the accused, either because it is exculpatory or because it is impeaching. FSM v. Kool, 18 FSM Intrm. 291, 294 (Chk. 2012).

Constitutional Law - Declaration of Rights; Constitutional Law - Interpretation; Criminal Law and Procedure
Although the court must first look to FSM sources of law to establish legal requirements in criminal cases rather than start with a review of other courts' cases, when an FSM Declaration of Rights provision is patterned after a U.S. Bill of Rights provision, U.S. authority may be consulted to understand its meaning since it may be presumed that the borrowed phrases were intended to have the same meaning given to them by the U.S. Supreme Court. FSM v. Kool, 18 FSM Intrm. 291, 294 n.2 (Chk. 2012).

Criminal Law and Procedure - Motions
Even though it was filed eleven days after the motion it opposed, when an opposition was filed on the deadline that the court otherwise directed in its scheduling order, it was timely filed and it will not be stricken. FSM v. Kool, 18 FSM Intrm. 291, 294 (Chk. 2012).

Criminal Law and Procedure - Speedy Trial
An accused has the constitutional right to a speedy trial. FSM v. Kool, 18 FSM Intrm. 291, 295 (Chk. 2012).

Criminal Law and Procedure - Speedy Trial
An accused's speedy trial right attaches once he or she is accused - that is, when the criminal information charging the accused with a crime has been filed. The time that elapses between the alleged crimes and the filing of charges is not to be considered when determining whether a defendant has been denied a speedy trial. FSM v. Kool, 18 FSM Intrm. 291, 295 (Chk. 2012).

Criminal Law and Procedure - Speedy Trial
The less than four months between the information's filing and the accused's motion to dismiss is simply insufficient to trigger any presumption of a violation of the accused's speedy trial right. FSM v. Kool, 18 FSM Intrm. 291, 295 (Chk. 2012).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Speedy Trial
Rule 48(b) embraces the court's inherent power to dismiss for want of prosecution. It is not limited to those situations in which the defendant's constitutional speedy trial right has been violated because it imposes a stricter standard of tolerable delay than does the Constitution. FSM v. Kool, 18 FSM Intrm. 291, 295 (Chk. 2012).

Criminal Law and Procedure - Discovery; Criminal Law and Procedure - Prosecutors
Police are considered part of the prosecution team so that any evidence or information in the hands of the police is considered evidence or information in the prosecution's hands. FSM v. Kool, 18 FSM Intrm. 291, 295 (Chk. 2012).

Criminal Law and Procedure - Dismissal
Generally, in deciding whether the delay between the crime's commission and the filing of charges requires a dismissal, courts must find that the defendant has suffered actual prejudice due to the delay. Prejudice to an accused from delay may consist of: 1) oppressive pretrial incarceration; 2) the accused's pretrial anxiety; and 3) impairment of the defense, and of these, the most serious is the last. The burden of demonstrating actual prejudice is on the defendant and the proof must be definite and not speculative. FSM v. Kool, 18 FSM Intrm. 291, 296 (Chk. 2012).

Criminal Law and Procedure - Dismissal
When an FSM court has not previously construed some aspects of an FSM criminal procedure rule, such as Rule 48(b), which is drawn from a similar U.S. rule, the court may look to U.S. sources for guidance in interpreting the rule. FSM v. Kool, 18 FSM Intrm. 291, 296 n.3 (Chk. 2012).

Criminal Law and Procedure - Dismissal
When an accused did not demonstrate any actual prejudice to him due to the delay before charges were filed, the court must deny his Rule 48(b) motion to dismiss. FSM v. Kool, 18 FSM Intrm. 291, 296 (Chk. 2012).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This came before the court on May 31, 2012, for hearing the defendant's Motion to Dismiss on Grounds of Violation of the Right to a Speedy Trial and for Want of Prosecution, filed May 7, 2012; the defendant's Supplement to Defendant's Motion to Dismiss, filed May 11, 2012; the FSM's Opposition to Defendant's Motion to Dismiss for Violation of Speedy Trial and Want of Prosecution, filed May 18, 2012; and the defendant's Response to Plaintiff's Opposition to Defendant's Motion to Dismiss and Motion in Support of Motion for Dismissal, filed May 24, 2012; and also the FSM's Motion to Strike Defendant's Request to Discovery, filed May 18, 2012.

I. FSM's Motion to Strike

The FSM moves to strike Gibson "Chofono" Kool's request for discovery because the court set February 29, 2012 as the deadline for Kool to request discovery and Kool did not request discovery until May 7, 2012. Although no written opposition was filed, Kool, without objection, orally opposed the motion during the May 31st hearing.

The motion is granted to the extent that it does not conflict with the prosecution's constitutional and ethical obligations. Prosecutors are constitutionally required to provide criminal defendants with any and all exculpatory evidence1 they have regardless of whether the defendant has made a discovery request. FSM v. Suzuki, 17 FSM Intrm. 70, 75 (Chk. 2010) (prosecution is under a continuing constitutional duty to disclose all exculpatory material that it has or may later obtain); FSM v. Walter, 13 FSM Intrm. 264, 269 (Chk. 2005) (to the extent any witness statement contains exculpatory material, the prosecution has an ongoing obligation to supply the defendant any and all unprivileged evidence of an exculpatory nature); FSM v. Cheng Chia-W (I), 7 FSM Intrm. 124, 128 n.4 (Pon. 1995) (prosecution has an ongoing obligation to supply to defendants any and all unprivileged evidence of an exculpatory nature). This is a continuing obligation which does not cease at any deadline. Furthermore, a prosecutor has an ethical obligation to

make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the pros-ecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

FSM MRPC R. 3.8(d). Thus, regardless of whether an accused has requested discovery, a prosecutor must disclose to the defense evidence that is favorable to the accused, "either because it is exculpatory, or because it is impeaching." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 302 (1999).2

Accordingly, although Kool has not made a timely discovery request or sought an enlargement of time to make a discovery request, the prosecution shall, no later than June 28, 2012, provide Kool with any exculpatory or impeaching evidence in the prosecution team's possession and thereafter, in compliance with the prosecution's ongoing obligation, any further exculpatory or impeaching evidence as it comes into its possession or as the prosecution becomes aware of it.

II. Kool's Motion to Dismiss

Kool contends that this prosecution should be dismissed because his constitutional right to a speedy trial has been violated or because of a want of prosecution since there has been unnecessary delay in prosecuting him. Kool's basis for this contention is that the crime he is charged with allegedly occurred on April 10, 2011, but the criminal information was not filed until January 20, 2012, a little over nine months later. Kool contends that this delay will prejudice him in preparing his defense.

A. Whether the FSM's Opposition is Timely

Kool, in his May 24, 2012 filing, contends that the prosecution's May 18, 2012 opposition should be stricken because it was filed eleven days after Kool's May 7, 2012 motion to dismiss was served and the rules require a response to a motion to be filed and served within ten days. The relevant rule provides that "[u]nless the court otherwise directs, the party opposing the motion shall not later than ten days after the service of the motion upon such party, file and serve responsive papers." FSM Crim. R. 45(d).

The court's February 7, 2012 scheduling order set May 7, 2012, as the deadline to file pretrial motions and set May 18, 2012, as the deadline to respond to a pretrial motion. Release & Scheduling Order at 2-3 (Feb. 7, 2012). Since the FSM's opposition was filed on May 18, 2012, the deadline that the court otherwise directed, it was timely filed and will not be stricken. The court now turns to the motion's merits.
B. Constitutional Speedy Trial Right

An accused has the constitutional right to a speedy trial. FSM Const. art. IV, § 6. An accused's speedy trial right attaches once he or she is accused - that is, when the criminal information charging the accused with a crime has been filed. The time that elapses between the alleged crimes and the filing of charges is not to be considered when determining whether a defendant has been denied a speedy trial. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002).

The less than four months between the information's filing and Kool's motion to dismiss is simply insufficient to trigger any presumption of a violation of the speedy trial right. Wainit, 11 FSM Intrm. at 191 (when only ten months passed since the defendant was charged with twelve counts and about 8½ months passed since his initial appearance, not enough time had elapsed for speedy trial concerns to be implicated in a complex case, especially when trial seemed imminent). Since a lengthy delay is a triggering mechanism for further analysis to determine if a defendant's right to a speedy trial has been violated, FSM v. Kansou, 14 FSM Intrm. 497, 499 (Chk. 2006), the time between the January 20, 2012 information and the May 7, 2012 motion will not trigger any further analysis. Kool's constitutional speedy trial right cannot be a ground for dismissal.

C. Unnecessary Delay or Want of Prosecution

Kool contends that Criminal Procedure Rule 48(b) provides a further ground for dismissal. Rule 48(b) "embraces the court's inherent power to dismiss for want of prosecution." FSM v. Wainit, 12 FSM Intrm. 405, 409 (Chk. 2004). It is not limited to those situations in which the defendant's constitutional speedy trial right has been violated because it imposes a stricter standard of tolerable delay than does the Constitution. Id.

Kool asserts that the failure to file charges against him for nine months constitutes a want of prosecution or an unnecessary delay entitling him to a Rule 48(b) dismissal. Because of a prompt police investigation, the government knew of his alleged commission of a crime on April 10, 2011, either the day it occurred or the next day, and it knew that he was the apparent perpetrator and knew his whereabouts and was, at that time, even prosecuting him in this court [No. 2010-1505] for a different crime until the judgment of conviction was entered on May 31, 2011.

The prosecution contends that it did not engage in any delay because it did not receive the relevant police report from the Chuuk Public Safety investigator until January 2012 and since the information was filed promptly thereafter any delay was not the prosecution's fault. The prosecution is mistaken. Police are considered part of the prosecution team so that any evidence or information in the hands of the police is considered evidence or information in the prosecution's hands. Walter, 13 FSM Intrm. at 268 & n.2; see alsoFSM v. Kansou, 14 FSM Intrm. 273, 277 (Chk. 2006). The court thus must, for the purpose of Kool's motion, consider that the evidence or information as being in the prosecution's possession by mid-April 2011.

Kool relies on Grace v. Harris, 485 P.2d 757, 761 (Okla. Crim. App. 1971), where that court held that when the government knew "of the commission of a crime, its apparent perpetrator, [knew] of the accused's location and even ha[d] custody of him on another charge, and fail[ed] to file a charge for nine months without showing good cause, the prosecution must be dismissed." This reliance is misplaced. First, the Grace court based the dismissal primarily on double jeopardy grounds because the accused was already incarcerated due to a conviction on a different charge arising out of the same incident as the new charge being dismissed. Id. at 760. But more importantly, the same court that decided Grace later expressly overruled the holding that Kool relies on. When considering another case where the prosecution had been dilatory in filing charges, it held that although the charges had been filed seventeen months after the offense, it was "sufficient that the information was filed well within the three year statute of limitations period prescribed by the Legislature," and then stated that "insofar as it is inconsistent with our finding in this opinion, we expressly overrule Grace v. Harris." State v. Edens, 565 P.2d 51, 53 (Okla. Crim. App. 1977).

Generally, in deciding whether the delay between the crime's commission and the filing of charges requires a dismissal, courts must find that the defendant has suffered actual prejudice due to the delay. See, e.g., United States v. Swacker, 628 F.2d 1250, 1254 (9th Cir. 1980) (no dismissal when it is only speculative whether pre-indictment delay prejudiced defendant); United States v. Cabral, 475 F.2d 715, 720 (1st Cir. 1973) (even though court was seriously disturbed by the government's delay in obtaining the indictment, severe remedy of a Rule 48(b) dismissal not warranted when actual prejudice was minuscule); United States v. Frost, 431 F.2d 1249, 1251 (1st Cir. 1970) (in absence of a showing that the accused was prejudiced in any degree by the passage of time, denial of Rule 48(b) motion to dismiss was not an abuse of discretion), cert. denied, 401 U.S. 916 (1971); United States v. Deloney, 389 F.2d 324, 325-26 (7th Cir.) (defendants, who failed to show any prejudice from six-month delay before being charged, not entitled to a dismissal), cert. denied, 391 U.S. 904 (1968); United States v. Feinberg, 383 F.2d 60, 64-67 (2d Cir. 1967) (unjustifiable or unnecessary pre-prosecution delay insufficient to invalidate conviction when defendant has not shown he was prejudiced), cert. denied, 389 U.S. 1044 (1968).3

Prejudice to an accused from delay may consist of: 1) oppressive pretrial incarceration; 2) the accused's pretrial anxiety; and 3) impairment of the defense, and of these, the most serious is the last. FSM v. Kansou, 15 FSM Intrm. 180, 188 (Chk. 2007). Kool asserted that the delay prejudiced his defense. But although Kool had the opportunity to, he failed to show that the delay had impaired his defense in any particular way. Dismissal is therefore not appropriate. See, e.g., United States v. Crow Dog, 399 F. Supp. 228, 239-40 (N.D. Iowa 1976) (when government was not engaged in intentional delay to gain tactical advantage, accused must affirmatively demonstrate prejudice; conclusory claims are not enough to warrant Rule 48(b) dismissal when impairment of defense not shown), aff'd, 532 F.2d 1182, 1194 (8th Cir. 1976), cert. denied, 430 U.S. 929 (1977), aff'd, 566 F.2d 617 (8th Cir. 1977); cf.Kansou, 15 FSM Intrm. at 188 (prejudice not shown when the defendant did not state that his witness now had an impaired memory or was no longer available). "The burden of demonstrating actual prejudice is upon the defendant and the proof must be definite and not speculative." Swacker, 628 F.2d at 1254.

Accordingly, since Kool did not demonstrate any actual prejudice to him due to the delay before charges were filed, the court must deny his Rule 48(b) motion to dismiss.

III. Conclusion

The prosecution shall, no later than June 28, 2012, provide the accused with any exculpatory or impeaching evidence in the prosecution team's possession and thereafter provide to him any such evidence as it comes into the prosecution team's possession. Gibson Kool's motion to dismiss is denied. The court will take his plea on Wednesday, July 25, 2012, at 9:30 a.m., and, if a not guilty plea is entered, trial will start at 10:00 a.m.

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