KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Nena
12 FSM Intrm. 525 (Kos. S. Ct. Tr. 2004)

[12 FSM Intrm. 525]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
SINGEO N. NENA and ELSIN G. JACK,
Defendants.
 
CRIMINAL CASE NO. 21-04
 
JUDGMENT OF CONVICTION;
ORDER SETTING SENTENCING HEARING
 
Yosiwo P. George
Chief Justice
 
Trial: April 22, 2004
Decided: June 17, 2004

APPEARANCES:

For the Plaintiff:           Edwin Mike
                                     State Prosecutor
                                     Office of the Kosrae Attorney General
                                     P.O. Box 870
                                     Tofol, Kosrae FM 96944
 
For the Defendants:   Harry Seymour, Esq.
                                    Office of the Public Defender
                                    P.O. Box 245
                                    Tofol, Kosrae FM 96944

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HEADNOTES

Criminal Law and Procedure ) Accessory
     The offense of accessory requires proof beyond a reasonable doubt of a person who, knowing that an offense has been committed, receives, relieves, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment. Kosrae v. Nena, 12 FSM Intrm. 525, 528 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Accessory
     When the defendants, through their actions, did comfort and assist a relative in order to prevent his apprehension or arrest by a police lieutenant and they knew that that their relative had committed a criminal offense and that the police lieutenant was attempting to arrest him for that offense and the defendants admitted that they were trying to get him away so that he could be delivered to other relatives, the state has proved beyond a reasonable doubt all elements of the criminal offense of accessory. Kosrae v. Nena, 12 FSM Intrm. 525, 528 (Kos. S. Ct. Tr. 2004).
 
[12 FSM Intrm. 526]
 
Criminal Law and Procedure ) Obstructing Justice
     The offense of obstructing justice requires proof beyond a reasonable doubt of resisting or interfering with a police officer in the lawful pursuit of his duties. The intent of the statute is that the police should be able to perform their official duties, including the arrest of an accused, without any obstacles, obstructions or hindrances placed in their way. Arresting a person is within scope of employment and within the lawful pursuit of a police officer’s duties. Kosrae v. Nena, 12 FSM Intrm. 525, 528 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Obstructing Justice
     The term "interfere" means to check or hamper the action of the officer, or to do something which hinders or prevents or tends to prevent the performance of his legal duty. Defendants' actions in contacting, holding and pulling up a person while an officer was attempting to arrest him, did hamper or hinder the officer in the performance of his legal duty. Kosrae v. Nena, 12 FSM Intrm. 525, 529 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Obstructing Justice
     The offense of obstructing justice does not require force. However, the use of force, as distinguished from the use of words, is obviously sufficient. Kosrae v. Nena, 12 FSM Intrm. 525, 529 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Obstructing Justice
     Mere threats are not sufficient to constitute obstruction of justice. However, threats, accompanied by a show of force, are sufficient to constitute the offense. Kosrae v. Nena, 12 FSM Intrm. 525, 529 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Obstructing Justice
     Arguments with or criticism of a police officer, without any other action, is generally not sufficient to constitute the offense. For example, demanding that the officers properly identify themselves and show an arrest warrant, is not adequate for the offense of obstructing justice. Kosrae v. Nena, 12 FSM Intrm. 525, 529 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Defenses; Criminal Law and Procedure ) Obstructing Justice
     Under common law, a person may resist a lawful arrest if the arresting officer uses unreasonable force. After careful consideration of public policy and the constitutional protection of individual rights, including protection against arrests involving excessive force, the Kosrae State Court recognizes and accepts the application of the defense. A police officer has a right to use force reasonably necessary to effectuate an arrest. The reasonableness of a police officer's conduct while making an arrest must be assessed on the basis of information that the police officer had when he acted. Kosrae v. Nena, 12 FSM Intrm. 525, 530 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Obstructing Justice
     When an arrestee was intoxicated and the arresting officer restrained and held the arrestee with a technique that he had been trained in to subdue intoxicated persons; when he did not use any weapons to subdue the arrestee; when the arrestee was not injured and did not receive any medical treatment for any injuries received; when the arrestee was not in danger of death or great bodily harm from the action in restraining him, the officer’s conduct in making the arrest was reasonable based upon the information available to him when he acted and therefore he used the reasonable force necessary in trying to subdue, hold, and arrest the arrestee. Therefore the defendants' defense of resisting the arrest of another where the arresting officer uses unreasonable force, must fail. Kosrae v. Nena, 12 FSM Intrm. 525, 530 (Kos. S. Ct. Tr. 2004).
 
[12 FSM Intrm. 527]

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

     This matter was called for trial on April 22, 2004. Edwin Mike, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. The following witnesses testified for the Plaintiff: Police Lt. Harry Jackson and Danny Albert. Shrue Gallen and Defendant Singeo Nena, testified on behalf of the Defendants.

     Defendants' Trial Brief and Motion for Dismissal were filed on April 22, 2004. Defendants' Motion for Dismissal was denied as untimely and the trial was completed.

     After the trial, I took the matter under advisement. Based upon the evidence presented at trial, I find that the Plaintiff had proved beyond a reasonable doubt, that both Defendants Singeo Nena and Elsin Jack had committed the offenses of obstruction of justice and accessory. I also recognize and accept the defense of resisting the arrest of another, where the arresting officer uses unreasonable force, as a valid defense to the offense of obstruction of justice. In this case, however, the arresting officer did not use unreasonable force in the arrest and therefore the Defendants' defense of resisting the arrest of another must necessarily fail.

     This Judgment of Conviction sets forth my findings of facts and reasoning.

I. Findings of Facts.

     Based upon the evidence presented at the trial, I found the following facts. Lt. Harry Jackson, a Kosrae Police Officer, was in his house in Tafunsak when he heard loud sounds outside of his home. He went outside and saw one Gerson Nena. Lt. Jackson followed Gerson, and then talked to the Gerson and his friends. Gerson was drunk. Then Gerson and his friends left the area, and Lt. Harry Jackson followed them. Lt. Jackson heard Gerson shouting and using profanity.

     Lt. Jackson then announced the arrest of Gerson Nena and attempted to arrest him. Lt. Jackson used restraint techniques in which he had been trained, to subdue an intoxicated person. Lt. Jackson held Gerson, by holding his arm behind his back. Gerson cried out, said that he was in pain and asked to be released. Gerson made these statements three times.

    The Defendants, both whom are close relatives of Gerson Nena, tried to help him. Defendant Singeo N Nena is Gerson's natural brother. Defendant Elsin G Jack is a cousin of Gerson. The Defendants grabbed Gerson, and tried to reposition or pull Gerson to get him to stand up, all while Lt. Jackson was still holding on to Gerson's right arm. Lt. Jackson warned the Defendants "don't do this." When Gerson finally stood up with the assistance of the Defendants, Gerson was released and walked off.

     Defendant Singeo Nena admitted that he knew that Gerson had committed a criminal offense. Defendant Nena also admitted that he came to Gerson's rescue because they were related and because he heard Gerson's cries for help. Defendant Nena testified that Lt. Jackson had announced Gerson's arrest, and that he, with Elsin Jack's assistance, came to Gerson to release him from Lt. Jackson and to deliver Gerson to other relatives.

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II. Conclusions of Law.

     The Defendants were tried on two counts provided in the Information: Accessory, in violation of Kosrae State Code, Section 13.201; and Obstructing Justice, in violation of Kosrae State Code, 13.611.

     After close of the Plaintiff's case in chief, the Defendants moved for acquittal on both Counts of the Information. Defendants argued that Lt. Jackson used excessive and unreasonable force to arrest Gerson Nena. Therefore, Defendants argued that they were entitled, by law, to defend Gerson Nena against the excessive force being used by Lt. Jackson. The Defendants' motion for acquittal was denied, based upon Plaintiffs' presentation of evidence in their case in chief which supported a prima facie case for both charges.

     1. Offense of Accessory

     The offense of accessory requires proof beyond a reasonable doubt of "a person who, knowing that an offense has been committed, receives, relieves, comforts, or assists the offender in order to hinder or prevent his apprehension, trial or punishment." Kos. S.C. § 13.201.

     The Defendants, through their actions, did comfort and assist Gerson Nena in order to prevent his apprehension or arrest by Lt. Jackson. Defendants knew that Gerson had committed a criminal offense and that Lt. Jackson was attempting to arrest Gerson Nena for that criminal offense. Defendants admitted that they were trying to get Gerson away from Lt. Jackson, so that he could be delivered to other relatives.

     I find that based upon the evidence presented at trial, the State had proved beyond a reasonable doubt all elements of the criminal offense of accessory. Defendants Singeo Nena and Elsin Jack, are found guilty, each on one count of the criminal offense of accessory, in violation of Kosrae State Code, Section 13.201.

     The offense of accessory relates to the criminal offense for which the principal was convicted. The principal, Gerson Nena, was convicted of the offenses of Drunk and Disorderly Conduct, in violation of Kosrae State Code, Section 13.504 and Offensive Behavior in a Public Place, in violation of Kosrae State Code, Section 13.508. See State v. Gerson Nena, Crim. Case. No. 22-04, Judgment of Conviction and Sentencing Order (June 8, 2004).

     2. Offense of Obstructing Justice.

     The offense of obstructing justice requires proof beyond a reasonable doubt of "resisting or interfering with a police officer in the lawful pursuit of his duties . . . ." Kos. S.C. § 13.611. The intent of the statute is that "police should go about their business without any obstacles put in their way." People v. Crayston, 284 N.Y.S.2d 672 (N.Y. App. Div. 1967). The Kosrae State Police should be able to perform their official duties, including the arrest of an accused, without any obstacles, obstructions or hindrances placed in their way.

     It is undisputed that Lt. Harry Jackson is a Kosrae State Police Officer, who was acting within the scope of his employment and his duties. Arresting a person is within scope of employment and within the lawful pursuit of the duties of a police officer. 58 Am. Jur. 2d Obstructing Justice § 68, at 944 (rev. ed.2002). Defendants knew that Lt. Jackson was a police officer and that he was attempting to arrest Gerson Nena for the commission of a criminal offense. Lt. Jackson had announced the arrest of Gerson Nena and attempted to arrest him. The Defendants had come to Gerson's rescue,

[12 FSM Intrm. 529]

to release him from Lt. Jackson, because the Defendants were relatives of Gerson and because they had heard Gerson's cries for help. The Defendants intended to help release Gerson from Lt. Jackson's hold and deliver Gerson to other relatives.

     The term "interfere" means "to check or hamper the action of the officer, or to do something which hinders or prevents or tends to prevent the performance of his legal duty." State v. Estes, 117 S.E. 581, 583 (N.C. 1923). I conclude that the Defendants' actions in contacting, holding and pulling up Gerson Nena, while Lt. Jackson was attempting to arrest him, did hamper or hinder Lt. Jackson in the performance of his legal duty.

     The offense of obstructing justice does not require force. People v. Stubbs, 166 N.W.2d 477 (Mich. 1968). However, the use of force, as distinguished from the use of words, is obviously sufficient. Charles E. Torchia, Wharton's Criminal Law § 568, at 268 (15th ed. 1996). Injury to the officer is not a required element of the offense. 58 Am. Jur. 2d Obstructing Justice § 55, at 935 (rev. ed. 2002). Here, the Defendants used more than words. The Defendants used physical contact to hold and pull up Gerson, while he was still being held by Lt. Jackson.

     Mere threats are not sufficient to constitute obstruction of justice. See generally Wade R. Habeeb, Annotation, What Constitutes Obstructing or Resisting an Officer, in the Absence of Actual Force, 44 A.L.R.3d 1018, 1029 (1972). However, threats, accompanied by a show of force, are sufficient to constitute the offense. Id. at 1030. For example, holding, pointing or firing a gun near the officer in the performance of his duties is adequate for the offense. However, arguments with or criticism of a police officer, without any other action, is generally not sufficient to constitute the offense. Id. at 1033. For example, demanding that the officers properly identify themselves and show an arrest warrant, is not adequate for the offense of obstructing justice. State v. Tages, 457 P.2d 289 (Ariz. Ct. App. 1969).

     In the case of State v. Harris, 236 A.2d 479 (Conn. Cir. Ct. 1967), the defendant came upon the scene of three police officer arresting an intoxicated man. The defendant, a woman, loudly argued, used profanity and cursed the police. She was warned to leave the scene several times by the police. While the defendant was arguing with the police, the intoxicated man walked away from the police on three occasions, delaying his arrest. In Harris, the defendant was found to have committed the offense of obstructing justice. The Harris court stated that "the purpose of the statute was to enforce orderly behavior in the important mission of preserving the peace, and that any act that was intended to thwart that purpose was violative of the statute." Harris, 236 A.2d at 482. Here, the actions taken by the Defendants assisted Gerson to stand up, and walk away from Lt. Jackson and from the arrest at that time.

     There are several reported cases involving persons resisting the arrest of a relative. In the case of State ex rel. Bailey v. West Monroe, 418 So. 2d 570 (La. 1982), a mother was convicted of resisting an officer, when the mother repeatedly told her daughter not to identify herself to the police officers. The daughter had been arrested for shoplifting. In the case of State v. Etherage, 290 S.E.2d 413 (S.C. 1982), the defendant cursed, used profanity and threatened to beat up a police officer who was trying to arrest the defendant's brother for driving without a license. The Etherage court found that even though there was no physical contact, the defendant had committed the offense of obstructing the officer in the course of making arrest.

    In this case, the Defendants, both relatives of Gerson Nena, contacted, held onto and pulled Gerson Nena to stand up while. Lt. Jackson was attempting to arrest him. The Defendants' actions did cause a delay in the arrest of Gerson Nena, as he was able to walk away from Lt. Jackson after he was pulled to his feet by the Defendants. The Defendants' actions did interfere with Lt. Jackson's

[12 FSM Intrm. 530]

arrest of Gerson in that their actions helped Gerson stand up and walk away from Lt. Jackson.

    Defendants claim the defense that they acted in defense of Gerson Nena, because Lt. Jackson was using excessive force in arresting him. Defendants claim that Gerson cried out in pain and because of that, Defendants tried to free Gerson from the hold of Lt. Jackson. Under common law, a person may resist a lawful arrest if the arresting officer uses unreasonable force. See 58 Am. Jur. 2d Obstructing Justice § 58, at 937 (2002). This Court could not find any cases in the Federated States of Micronesia which addressed the application of this common law defense. Therefore, this Court must first address the Defendants' request to recognize this common law defense in the State of Kosrae.

     After careful consideration of public policy and the constitutional protection of individual rights, including protection against arrests involving excessive force, this Court recognizes and accepts the Defendants' argument for application of the defense. In Kosrae State, where many persons of a community are related through blood or marriage or both, and where it is customary for relatives and friends to come to the aid of another in distress, it is appropriate to recognize the defense of others in an arrest involving unreasonable force by the police officer. Accordingly, the common law defense of resisting the arrest of another, where the arresting officer uses unreasonable force, is accepted and recognized as a defense to the offense of obstructing justice in the State of Kosrae.

     This Court must now examine whether in this case, the arresting officer, Lt. Jackson, used unreasonable force in the arrest of Gerson Nena. A police officer has a right to use force reasonably necessary to effectuate an arrest. Loch v. FSM, 1 FSM Intrm. 566 (1982). The reasonableness of a police officer's conduct while making an arrest must be assessed on the basis of information that the police officer had when he acted. Id. The evidence at trial indicated that Gerson Nena was intoxicated. Lt. Jackson testified that he restrained and held Gerson with a technique that he had been trained in to subdue intoxicated persons. Lt. Jackson did not use any weapons to subdue Gerson. Lt. Jackson did not use a gun, knife, billy club or any other weapon in holding and subduing Gerson. There was no evidence presented that Gerson was injured. There was no evidence that Gerson received medical treatment for any injuries received from Lt. Jackson's hold upon him. Gerson was not in danger of death or great bodily harm from Lt. Jackson's action in restraining him. Lt. Jackson's conduct in making the arrest of Gerson was reasonable based upon the information available to Lt. Jackson when he acted: that Gerson was intoxicated. Therefore the technique that Lt. Jackson used to restrain Gerson was the appropriate technique for use with intoxicated persons.

     Based upon the evidence presented, I conclude that Lt. Jackson used reasonable force necessary in trying to subdue, hold and arrest Gerson Nena. The Defendants failed to prove that Lt. Jackson used unreasonable force in the attempted arrest of Gerson. Accordingly, the Defendants' defense of resisting the arrest of another, where the arresting officer uses unreasonable force, must fail in this case.

     I find that based upon the evidence presented at trial, the State had proved beyond a reasonable doubt all elements of the criminal offense of obstructing justice for each of the Defendants. Defendants Singeo Nena and Elsin Jack are found guilty, each on one count of the criminal offense of obstructing justice, in violation of Kosrae State Code, Section 13.611.

III. Judgment of Conviction

     Defendant Singeo Nena is found guilty and convicted on one count of the criminal offense of obstructing justice, in violation of Kosrae State Code, Section 13.611, and on one count of the criminal offense of accessory, in violation of Kosrae State Code, Section 13.201.

     Defendant Elsin Jack is found guilty and convicted on one count of the criminal offense of

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obstructing justice, in violation of Kosrae State Code, Section 13.611, and on one count of the criminal offense of accessory, in violation of Kosrae State Code, Section 13.201.

IV. Sentencing Hearing.

    The Chief Clerk shall set the sentencing hearing for the week of June 28, 2004.

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