FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Walter, 13 FSM Intrm. 265 (Chk. 2005).

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FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

ONCHER WALTER,

Defendant.

CRIMINAL CASE NO. 2003-1503

ORDER GRANTING MISTRIAL

Dennis K. Yamase

Associate Justice

Decided: June 1, 2005

APPEARANCES:

For the Plaintiff:   Joses Gallen, Esq.

                                 Chuuk Assistant Attorney General

                                 Office of the Chuuk Attorney General

                                 P.O. Box 189

                                 Weno, Chuuk   FM   96942

For the Defendant:   Peter J. Stelzer, Esq.

                                      Office of the Public Defender

                                      P.O. Box 425

                                      Colonia, Yap   FM   96943

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HEADNOTES

Criminal Law and Procedure; Evidence ) Witnesses

     Criminal Rule 26.2 creates no right to production of statements of witnesses until the witness has testified on direct examination, but if the prosecution insists upon literal compliance with Rule 26.2(a) the practical result is that a recess must be taken at the conclusion of the direct examination of every witness, and the court would very likely abuse its discretion if it refused to grant a recess. The usual practice in the FSM under Rule 26.2 has been that the prosecution voluntarily provides defense counsel access to witness statements in advance of their testimony and the court finds this a salutary and commendable practice. FSM v. Walter, 13 FSM Intrm. 264, 267-68 (Chk. 2005).

Criminal Law and Procedure

     Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than start with a review of other courtsí decisions, when the court has not previously construed an FSM criminal procedure rule which is identical or similar to a U.S. counterpart, it may look to U.S. sources for guidance in interpreting the rule. FSM v. Walter, 13 FSM

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Intrm. 264, 267 n.1 (Chk. 2005).

Criminal Law and Procedure

     When no reported FSM case has construed Criminal Rule 26.2(a), the court may use U.S. sources construing the identical U.S. Federal Rule of Criminal Procedure 26.2(a) and its predecessor statute, 18 U.S.C. ß 3500(a) (the Jencks Act), as tools in construing FSM Criminal Rule 26(a). FSM v. Walter, 13 FSM Intrm. 264, 267 n.1 (Chk. 2005).

Criminal Law and Procedure ) Discovery

     When the prosecution has voluntarily undertaken to provide witness statements in advance of trial by not objecting to the defendantís discovery request for them and by the then prosecutor turning over all of the witness statements he had then, the defense should not be expected or required to make a motion at the end of each prosecution witnessís direct testimony for the production of a statement it had every reason to believe it already had. The defenseís failure to move for the witnessís prior statement after each had testified on direct is therefore excused. FSM v. Walter, 13 FSM Intrm. 264, 268 (Chk. 2005).

Criminal Law and Procedure ) Prosecutors

     Police are considered part of the prosecution. FSM v. Walter, 13 FSM Intrm. 264, 268 n.2 (Chk. 2005).

Criminal Law and Procedure ) Discovery

     Rule 26.2 does not restrict its command to the production of statements in the hands of, or known to, the particular prosecuting attorney assigned to the case. Its order is unqualified. It applies to any witness statement in the governmentís hands. FSM v. Walter, 13 FSM Intrm. 264, 268 n.2 (Chk. 2005).

Criminal Law and Procedure ) Discovery

     Pursuant to the partiesí continuing duty to disclose evidence or material previously requested or ordered, once the prosecution has volunteered to provide witness statements before trial, it should have provided the Chuukese language witness statements versions as well. FSM v. Walter, 13 FSM Intrm. 264, 268 (Chk. 2005).

Criminal Law and Procedure ) Discovery; Criminal Law and Procedure ) New Trial

     When the prosecution has volunteered to provide prior witness statements before trial, a mistrial will be declared if the prosecutionís failure to provide the Chuukese language witness statements before trial prejudiced the defendant. The failure to produce prior witness statements is analyzed under a strict harmless error standard. Since courts cannot speculate whether the statement of the witness could have been utilized effectively at trial, the harmless error doctrine must be strictly applied in these cases. FSM v. Walter, 13 FSM Intrm. 264, 268 (Chk. 2005).

Criminal Law and Procedure ) Discovery; Criminal Law and Procedure ) New Trial

     The proper standard in negligent nondisclosure cases should call for a new trial whenever the nondisclosed evidence might reasonably have affected the factfinderís judgment on some material point, without necessarily requiring a supplementary finding that it would also have changed its verdict. FSM v. Walter, 13 FSM Intrm. 264, 268 (Chk. 2005).

Criminal Law and Procedure ) Discovery; Criminal Law and Procedure ) New Trial

     The purpose of production of witness statements is to give defendants impeachment materials at a time when they can effectively use them. When the prosecution has failed to timely provide the statements, that objective can be fulfilled by the grant of a mistrial because when the denial of an

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opportunity to impeach a prosecution witnessís highly damaging testimony is caused by the breach of the prosecutorís duty to produce the witnessís prior statement, a new trial is necessitated. FSM v. Walter, 13 FSM Intrm. 264, 268 (Chk. 2005).

Criminal Law and Procedure ) Discovery

     If a witnessís prior statement surfaces during the prosecutionís case-in-chief, reopening the witnessís testimony in the case-in-chief and permitting further cross-examination of the prosecution witness might be an appropriate remedy. FSM v. Walter, 13 FSM Intrm. 264, 269 (Chk. 2005).

Criminal Law and Procedure ) Discovery

     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. Such exculpatory information includes material that bears on the credibility of a significant witness in the case since a witnessís prior inconsistent statement bears on his credibility. FSM v. Walter, 13 FSM Intrm. 264, 269 (Chk. 2005).

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COURTíS OPINION

DENNIS K. YAMASE, Associate Justice:

     When trial in this matter was recessed on April 30, 2005, the defendantís oral motion to dismiss or for a mistrial was pending before the court. The defendantís written motion for a mistrial with points and authorities was submitted on May 19, 2005. The prosecutionís opposition was submitted on May 25, 2005. The motion for a mistrial is granted. The courtís reasons follow.

I.

     The criminal information in this case was filed on July 1, 2003. The defenseís discovery request asked for, among other things, a list of prosecution witnesses, together with their written or recorded statements, and any exculpatory material or information. On May 13, 2004, an FSM Assistant Attorney General filed a response to the discovery requests. It did not object to any of the discovery requests. In the response were two Chuuk state police reports, one of which included English language statements by nine named witnesses. Prosecution of the case was transferred, pursuant to the Joint Law Enforcement Agreement, from the FSM Department of Justice to the State of Chuuk Attorney Generalís Office when that office entered its appearance on June 28, 2004.

     Trial started on April 26, 2005. The prosecution called six witnesses. On April 29, 2005, at the start of the defendantís case-in-chief, the defense called as its first witness, the investigating police officer, who had also been the prosecutionís first witness. On direct testimony, defense counsel elicited from the witness that he had in his office desk written Chuukese language witness statements, signed by the witnesses. He further stated that he had translated those statements into English, and that it was those translations that were attached to the report provided to the defense.

     At that point, the defense moved for a dismissal based on prosecutorial misconduct or, in the alternative, a mistrial. Trial was recessed until the next day. The State Justice Ombudsman was provided copies of the original Chuukese language statements from eleven witnesses and spent most of the night translating them. When court resumed the next day, the parties argued the defense motion. The court then ordered the parties to each submit a brief on the motion. With the partiesí agreement (and in the event the motion to dismiss was not granted), trial was continued to June 21,

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2005, to give the defense an opportunity to meet the new evidence. At that time, if the motion to dismiss had not been granted, trial would either resume where it left off, or, if the mistrial motion had been granted, a new trial would start.

     On May 19, 2005, Oncher Walter filed his written Motion for a Mistrial. In it, he withdrew his motion to dismiss because he accepted the prosecutorís representation that he was unaware of the existence of the Chuukese language written statements and he therefore concluded that there was no reckless prosecutorial disregard of discovery requirements. The prosecution filed its response on May 25, 2005.

II.

     Defendant Oncher Walter contends that the prosecutionís failure to provide him with the original Chuukese language witness statements is prosecutorial misconduct entitling him to a mistrial. He asserts, and illustrates with examples in his motion, that there are substantial differences between the police detectiveís and the state justice ombudsmanís translations of the witness statements that would have been useful when cross-examining the prosecutionís witnesses. He further notes that there are two statements from witnesses (who had not testified) whose existence had not been disclosed by the prosecution and who were previously unknown to him.

     The prosecution contends that none of the witness statements were subject to production until that witness had been called to the stand and testified on direct examination and that then it had to provide them only if the defendant moved for them at those times, and since he did not, he cannot now complain of their nonproduction. The prosecution relies solely on Criminal Procedure Rule 26.2 for this contention.

III.

     That rule reads:

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the government or the defendant and the defendantís attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness then in their possession that relates to the subject matter concerning which the witness has testified.

FSM Crim. R. 26.2(a). "Rule 26.2 . . . creates no right to production of statements of witnesses until the witness has testified on direct examination." 2A Charles Alan Wright, Federal Practice and Procedure ß 438, at 222 (3d ed. 2000). But if the prosecution insists "upon literal compliance [with Rule 26.2(a)] the practical result is that a recess must be taken at the conclusion of the direct

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examination of every witness. Indeed the court would very likely abuse its discretion if it refused to grant a recess." United States v. Algie, 503 F. Supp. 783, 787 (E.D. Ky. 1980), revíd on other grounds, 667 F.2d 569 (6th Cir. 1982). Rule 26.2, however, was "ínot intended to discourage the practice of voluntary disclosure at an earlier time so as to avoid delays at trial.í" 2A Wright, supra, ß 438, at 223 (quoting Advisory Committee Note to Rule 26.2). The usual practice under U.S. Federal Criminal Rule 26.2 has been that the prosecution voluntarily provides defense counsel access to witness statements in advance of their testimony and U.S. courts "have repeatedly commended this practice." Id. ß 438, at 223-25 & n.5. This has also been the usual practice in the FSM. This court also finds it a salutary and commendable practice.

     The prosecution in this case voluntarily undertook to provide witness statements in advance of trial when it did not object to Walterís discovery request for them and the then prosecutor turned over all of the witness statements he had then. Thus, believing that it had already received all of the witness statements in the prosecutionís possession, the defense should not be expected or required to make a motion at the end of each prosecution witnessís direct testimony for the production of statements it had every reason to believe it already had. The defenseís failure to move for the witnessís prior statement after each had testified on direct is therefore excused. Pursuant to the partiesí continuing duty to disclose "evidence or material previously requested or ordered," FSM Crim. R. 16(c), once the prosecution had volunteered to provide witness statements before trial, it should have provided these Chuukese language witness statements as well. It did not.

IV.

     A mistrial will therefore be declared if the prosecutionís failure to provide the Chuukese language witness statements before trial prejudiced the defendant. The failure to produce prior witness statements is analyzed under a strict harmless error standard. 2A Wright, supra, ß 439, at 245-48 & n.21. "[S]ince courts cannot speculate whether the statement of the witness could have been utilized effectively at trial, the harmless error doctrine must be Ďstrictly appliedí in these cases." Id. ß 439, at 248 (footnote omitted); see also United States v. Beasley, 576 F.2d 626, 629 (5th Cir. 1978) (although prosecutionís failure to produce prior statement of key prosecution witness might not have been negligent, new trial ordered since the prosecution and defense had argued the witnessís credibility at length and the subject statement differed from the witnessís trial testimony in many substantial ways). "íThe proper standard in negligent nondisclosure cases should call for a new trial whenever the nondisclosed evidence might reasonably have affected the [factfinderís] judgment on some material point, without necessarily requiring a supplementary finding that it would also have changed its verdict.í" United States v. Knowles, 753, 755-57 (9th Cir. 1979) (quoting United States v. Butler, 567 F.2d 885, 890 (9th Cir. 1978)).

     "The purpose of production of [witness] statements is to give defendants impeachment materials at a time when they can effectively use them." United States v. McKoy, 78 F.3d 446, 452 (9th Cir. 1996). That objective can now be fulfilled by the grant of a mistrial. Id. When the denial of an opportunity to impeach a prosecution witnessís highly damaging testimony is caused by the breach of the prosecutorís duty to produce the witnessís prior statement, a new trial is necessitated. United States v. Kasouris, 474 F.2d 689, 692 (5th Cir. 1973).

     In this case, the defendant shows instances where the trial testimony of three prosecution

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witnesses differ substantially from their statements (as translated by the state justice ombudsman). The prosecution does not challenge these differences. (Nor does its opposition comment on them.) Thus, what use the defendant could have made of these prior statements during the witnessesí cross-examination and how effective it would have been, the court can only speculate. If these statements had surfaced during the prosecutionís case-in-chief, reopening the witness testimony in the case-in-chief and permitting further cross-examination of the prosecution witnesses might have been an appropriate remedy. United States v. Pope, 574 F.2d 320 (6th Cir. 1978) (prior witness statement revealed after witness had finished testifying and next prosecution witness had taken the stand; trial judgeís offer to have witness recalled and allow his cross-examination to continue was proper remedy). However, the statementsí existence did not become apparent, and the statements were not produced, until after the prosecution had rested and the defense begun its case-in-chief, and the undisclosed statements involved every prosecution witness. (In Pope, only one statement from one witness was involved.) The court therefore concludes that the motion for a mistrial should be granted.

V.

     Furthermore, to the extent any of the witness statements contained exculpatory material (and the defense claims that some of it is exculpatory), the prosecution also had 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) (citing FSM Crim. R. 16(a)(1)(F); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). Such exculpatory information includes "material . . . that bears on the credibility of a significant witness in the case." United States v. Stifer, 851 F.2d 1197, 1201 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989). A witnessís prior inconsistent statements bear on his credibility. This is a further ground supporting a mistrial.

VI.

     Accordingly, the motion is granted and a mistrial declared. A new trial shall therefore start at 9:30 a.m., Tuesday, June 21, 2005.

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