KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Nena
12 FSM Intrm. 20 (Kos. S. Ct. Tr. 2003)

[12 FSM Intrm. 20]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
LYDON S. NENA,
Defendant.
 
CRIMINAL CASE NO. 53-03
 
ORDER DENYING MOTION TO DISMISS
 
Yosiwo P. George
Chief Justice
 
Hearing: July 23, 2003  
Decided: July 24, 2003

APPEARANCES:

For the Plaintiff:                         Paliknoa Welly
                                                   State Prosecutor
                                                   Office of the Kosrae Attorney General
                                                   P.O. Box 870
                                                   Lelu, Kosrae FM 96944
 
For the Defendant:                   Sidney Skilling
                                                   Office of the Public Defender
                                                   P.O. Box 245
                                                   Lelu, Kosrae FM 96944

[12 FSM Intrm. 21]

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HEADNOTES

Criminal Law and Procedure ) Dismissal
     The relationship between the defendant and victim is never a basis for dismissal of a criminal information. Kosrae v. Nena, 12 FSM Intrm. 20, 22 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Dismissal
     A case will not be dismissed when the stateís penal code does not excuse the criminal conduct alleged in the case based upon a father-daughter relationship. Many criminal cases with a variety of charges involving members of the same family as defendant-victim are prosecuted to final disposition. Kosrae v. Nena, 12 FSM Intrm. 20, 22 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Dismissal; Criminal Law and Procedure ) Sentencing; Custom and Tradition
     Reconciliation is not a basis for dismissal of a criminal information. The law of our nation in this regard is clear. Custom, including customary apology and reconciliation, is to be considered during the sentencing of a criminal prosecution. Kosrae v. Nena, 12 FSM Intrm. 20, 22 (Kos. S. Ct. Tr. 2003).
 
Evidence ) Privileges
     There is no privilege provided by law to protect the victim daughter from testifying against the defendant father. Kosrae State Code ß 6.302 provides a privilege to persons from testifying against their spouse, but when the family victim is not the defendantís spouse, no privilege exists. Kosrae v. Nena, 12 FSM Intrm. 20, 23 (Kos. S. Ct. Tr. 2003).
 
Evidence ) Witnesses
     A witness summons can be issued for any witness, including the victim, for his or her appearance and testimony at trial. This process is utilized frequently in trials of criminal cases where witnesses are reluctant to appear and testify. Kosrae v. Nena, 12 FSM Intrm. 20, 23 (Kos. S. Ct. Tr. 2003).
 
Contempt; Evidence) Witnesses
     A personís failure to obey a witness summons is considered contempt of court, and may subject the offending witness to arrest and imprisonment. Kosrae v. Nena, 12 FSM Intrm. 20, 23 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Sentencing ) Probation
     The Kosrae State Court may modify an order of probation during the term of probation when the court finds a termination of probation serves the ends of justice and the best interests of the public and the defendant. Kosrae v. Nena, 12 FSM Intrm. 20, 23 (Kos. S. Ct. Tr. 2003).
 
Attorney, Trial Counselor and Client ) Disqualification of Counsel; Criminal Law and Procedure ) Prosecutors
     Under the Model Rules of Professional Conduct, which regulates conduct of legal counsel admitted to practice law in the State of Kosrae, Rule 1.7 prohibits a counsel from representing a client if representation of that client may be materially limited by the counselís responsibilities to a third person or the counselís own interests. A counsel may not represent the state in prosecuting a criminal action, if the counselís prosecution will be materially limited by his personal relationship to the defendant. Kosrae v. Nena, 12 FSM Intrm. 20, 23 (Kos. S. Ct. Tr. 2003).
 
[12 FSM Intrm. 22]
 
Attorney, Trial Counselor and Client ) Withdrawal of Counsel; Criminal Law and Procedure ) Prosecutors
     A prosecutorís duty is to zealously and diligently prosecute criminal charges which are supported by probable cause, in the public interest, and, in his position as a public servant, to serve the public interest, consistent with the Model Rules of Professional Conduct. If the prosecutor cannot fulfill his prosecutorial duties in a particular case due to a conflict, including a personal relationship to the defendant, then the prosecutor is obligated to withdraw from the case. Kosrae v. Nena, 12 FSM Intrm. 20, 23 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Prosecutors
     The Office of the Attorney General should complete appropriate assignment of criminal matters to avoid conflicts of interest. Kosrae v. Nena, 12 FSM Intrm. 20, 23 (Kos. S. Ct. Tr. 2003).

Criminal Law and Procedure ) Dismissal
     A prosecutorís request to dismiss a criminal information without any legal basis for such action and contrary to public policy will be denied. Kosrae v. Nena, 12 FSM Intrm. 20, 23 (Kos. S. Ct. Tr. 2003).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     On July 15, 2003, the Defendant filed a Motion to Dismiss. The Defendant did not file any opposition or any other response. A hearing on the Motion was held on July 23, 2003. Paliknoa Welly appeared for the Plaintiff. Defendant was represented by Sidney Skilling. After hearing from the parties, consideration of applicable law, rules, the Model Rules of Professional Conduct and in the interests of justice, I denied the Motion. This memorandum explains my reasoning.

     Plaintiff moved for dismissal of the criminal information in this matter based upon three grounds. I found that the Plaintiff failed to support his argument with any legal authority and that the grounds presented by the Plaintiff are without merit.

     First, Plaintiff argues that the relationship between the defendant and the victim is father and daughter. The relationship between the defendant and victim is never a basis for dismissal of a criminal information. The penal code of our State, as set forth in Kosrae State Code, Title 13, does not excuse the criminal conduct alleged in this case, based upon a father-daughter relationship. Many criminal cases with a variety of charges involving members of the same family as defendant-victim have been prosecuted to final disposition in this Court, including cases with parent-child and husband-wife relationships between the defendant and the victim. The Plaintiff has failed to provide and this Court has failed to find any legal authority in support of Plaintiffís first argument. Plaintiffís argument is without merit and is therefore rejected.

     Second, Plaintiff argues that the defendant and accused have reconciled in this matter. This Court has always encouraged reconciliation between the defendant and the victim. This reconciliation is encouraged for community and family harmony in all cases, regardless of the family relationship between the defendant and victim. However, reconciliation is not a basis for dismissal of a criminal information. The law of our Nation in this regard is clear. Custom, including customary apology and reconciliation, is to be considered during the sentencing of a criminal prosecution. Tammed v. FSM, 4 FSM Intrm. 266 (App. 1990); FSM v. Mudong, 1 FSM Intrm. 135 (Pon. 1982). Plaintiffís argument is not a basis for dismissal, and is therefore rejected as without merit.

[12 FSM Intrm. 23]

     Third, Plaintiff argues that the victim does not want to testify against the Defendant, her father. There is no privilege provided by law to protect the victim from testifying against the Defendant in this case. Kosrae State Code, Section 6.302 provides a privilege to persons from testifying against their spouse. Here, the victim is not the spouse of the Defendant. Therefore, no privilege exists. The Plaintiff is well aware that he may request a witness summons to be issued for any witness, including the victim, for his or her appearance and testimony at trial. Kos. S.C. ß 6.4701. The Plaintiff is quite familiar with this process as it is utilized frequently in trials of criminal cases where witnesses are reluctant to appear and testify. In this case, Plaintiff has the authority to request issuance of a witness summons to the victim. A personís failure to obey a witness summons is considered contempt of court, and may subject the offending witness to arrest and imprisonment. Plaintiffís third argument is without merit and rejected.

     The Plaintiff submitted the case of State v. Kilafwakun B. Palik, Criminal Case No. 16-02, as authority to dismiss the criminal information in this case. In that case, defendant Palik had already been convicted and was serving a sentence of probation, for the crime of assault and battery. The Court ordered that the defendantís term of probation to be shortened to allow him to leave Kosrae to travel to the United States, where the Defendantís wife and child were living. Kosrae State Code, Section 6.4909(4) permits the Court to modify an order of probation during the term of probation, when the Court finds a termination of probation serves the ends of justice and the best interests of the public and the defendant.

     The Palik case is not applicable here. The Palik case addressed the Defendantís request to shorten probation after conviction. By contrast here, the Plaintiff is seeking dismissal of the information before conviction.

     Finally, the prosecutor in this matter admitted his personal conflict of interest in this matter, due to his personal relationship with the Defendant. Counsel for plaintiff is reminded of the Model Rules of Professional Conduct, which regulate his conduct as legal counsel admitted to practice law in the State of Kosrae. Rule 1.7 prohibits a counsel from representing client if representation of that client may be materially limited by the counselís responsibilities to a third person or the counselís own interests. Here, the counsel may not represent the State in prosecuting a criminal action, if the counselís prosecution will be materially limited by his personal relationship to the defendant. The prosecutorís duty is to zealously and diligently prosecute criminal charges which are supported by probable cause, in the public interest, in his position as a public servant, to serve the public interest, consistent with the Model Rules of Professional Conduct. If the prosecutor cannot fulfill his prosecutorial duties in a particular case due to a conflict, including a personal relationship to the defendant, then the prosecutor is obligated to withdraw from the case. This Court notes that there are three other legal counsels employed in the Office of the Attorney General who could continue prosecution of cases where this prosecutor is disqualified. The Court expects that appropriate assignment of criminal matters be completed in the Office of the Attorney General to avoid conflicts of interest.

     The Court is disappointed in the Plaintiffís action to request dismissal of this criminal information without any legal basis for such action and contrary to public policy. Plaintiffís Motion to Dismiss is denied. The Clerk of Court shall set this case for trial.

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