KOSRAE STATE COURT TRIAL DIVISION

Kosrae v. Tilfas, 14 FSM Intrm. 27 (Kos. S. Ct. Tr. 2006)

STATE OF KOSRAE,

Plaintiff,

vs.

BURT S. TILFAS, also known as

BURT S. ESAU,

Defendant.

CRIMINAL CASE NOS. 3-04 and 17-04

ORDER REVOKING SUSPENDED SENTENCE;

ORDER OF REMAND TO KOSRAE STATE JAIL

Yosiwo P. George

Chief Justice

Hearing: November 14, 18, 2005

Decided: January 3, 2006

Entered: January 5, 2006

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:   Harry A. Seymour, Esq.

                                   Office of the Public Defender

                                   P.O. Box 245

                                   Lelu, Kosrae   FM   96944

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HEADNOTES

Evidence

    The weight to be accorded admissible evidence is for the trier of fact to determine. Kosrae v. Tilfas, 14 FSM Intrm. 27, 30 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Defenses; Custom and Tradition; Evidence

    When the defendant argued that the court should recognize custom regarding the relationship between him and the victim, but did not present any evidence of the relationship between victim and him, and did not present any evidence of custom, specifically evidence that due to the relationship between victim and the defendant, it would be customary for the defendant to show up drunk at a relativeís home and commit a battery upon the relative, the court may not utilize tradition in reaching a decision because it has not received satisfactory evidence of the tradition. When a defendant has not provided any evidence of custom or tradition, it cannot be considered. Kosrae v. Tilfas, 14 FSM Intrm. 27, 30-31 (Kos. S. Ct. Tr. 2006).

[14 FSM Intrm. 27]

Criminal Law and Procedure ) Sentencing ) Probation ) Revocation

    A motion to revoke a suspended sentence must be filed by the State, as it is the prosecuting entity. A motion to revoke a suspended sentence may be filed with or without an affidavit from the Court Marshal. The State Attorney Generalís Office may be informed of a probationerís alleged violation of probation conditions through several avenues: direct complaint, witness, police report, Court Marshalís affidavit etc. Kosrae is authorized by state law and court rules to file the motion to revoke suspended sentence based upon information provided to them. Kosrae v. Tilfas, 14 FSM Intrm. 27, 31 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Sentencing ) Probation ) Revocation

    Probation and revocation of probation proceedings are governed by Kosrae State Code, Section 6.4909. Neither this statutory provision nor Criminal Rule 32.1 require the court marshal, probation officer or any other specific person to institute a revocation proceeding. Kosrae v. Tilfas, 14 FSM Intrm. 27, 31 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Sentencing ) Probation ) Revocation

    Kosrae GCO 1998-03 establishes the probation officerís power to confine people for violations of suspended sentences, pre-trial and post-conviction release orders; it provides for the confinement and hearing procedure in cases where the person has been taken into custody by the probation officer, or where an arrest warrant has been executed by the Kosrae State Police; and it establishes the hearing procedure to ensure that a hearing on a revocation petition for a person held in custody is held as soon as possible. Kosrae v. Tilfas, 14 FSM Intrm. 27, 31 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Sentencing ) Probation ) Revocation

    When, based upon clear and convincing evidence of the defendantís assault and battery, the court finds that the defendant has violated his probation condition of "no violation of any national, state or municipal laws or ordinances," the defendantís probation will be revoked. Kosrae v. Tilfas, 14 FSM Intrm. 27, 32 (Kos. S. Ct. Tr. 2006).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

    Plaintiff filed a Motion to Revoke Suspended Sentence on October 17, 2005. Plaintiffís Motion for Revocation of Probation was heard on November 14, 2005 and continued on November 18, 2005. Paliknoa Welly, State Prosecutor, appeared for the Plaintiff. Defendant was represented by Harry Seymour, Public Defender. The following witnesses testified at the hearing on behalf of the Plaintiff: Police Officer Phillip Salik, Police Officer Randy Laborette, Casey J. Freddy, Freddy J. Freddy, Ellen Edwin Mike, and Tracey F Abraham. The following witnesses testified at the hearing for the Defendant: Jacob Wilfred Palik, and Police Officer Licies Nithan. After the hearing from the parties, I took the matter under advisement.

    My ruling was read in open Court on January 3, 2006. Paliknoa Welly, State Prosecutor appeared for the State. The Defendant was represented by Steve George, Public Defender. Before proceeding, I disclosed the family relationship between myself and the Public Defender. Both the State Prosecutor and the Public Defender waived any conflict of interest presented by the family relationship. This Order sets forth my ruling and reasoning.

[14 FSM Intrm. 28]

    At the time of the alleged violations of probation conditions, Defendant was serving two suspended sentences concurrently for convictions in Criminal Case Nos. 3-04 and 17-04. In Criminal Case No. 3-04, pursuant to a stipulated plea agreement, Defendant was convicted of one count of burglary, one count of assault and battery, one count of trespass and one count of disturbing the peace. Defendant was serving a sentence of 5 years, of which 4 years and 6 months was suspended. Defendant had completed his 6 month term of incarceration and was serving his suspended sentence. In Criminal Case No. 17-04, pursuant to a stipulated plea agreement, Defendant was convicted of one count of assault and battery. Defendant was sentenced to serve a term of 12 months of incarceration, all suspended. The terms of suspended sentences imposed in Criminal Case Nos. 3-04 and 17-04, were to run consecutively.

    Defendant was subject to conditions of probation as set forth in the Sentencing Orders entered in both cases, Criminal Case No. 3-04 on March 23, 2004 and Criminal Case No. 17-04 on October 13, 2004. The conditions of probation include that the Defendant shall not violate any national, state or municipal laws or ordinances.

    Plaintiff alleges that Defendant has violated his probation conditions on two occasions. Plaintiff alleges that the Defendant, in the early hours of July 13, 2005, committed the offenses of assault and battery, assault and disturbing the peace, against Freddy J. Freddy. Plaintiff further alleges that the Defendant, on October 5, 2005, committed the offenses of negligent driving and reckless driving.

    Based upon the evidence presented at the hearing, I find by clear and convincing evidence that Defendant did commit the Criminal offense of assault and battery on July 13, 2005, upon Freddy J. Freddy, in violation of Kosrae State Code, Section 13.303, and that the Defendant did violate the conditions of his probation imposed in Criminal Case Nos. 3-04 and 17-04. Based upon the evidence presented as the hearing, I conclude that the State did not present clear and convincing evidence that the Defendant committed the offenses of negligent driving and/or reckless driving on October 5, 2005. Therefore, in finding that the Defendant did violate his probation conditions, I do not rely upon the evidence regarding the incident on October 5, 2005.

I.  Findings of Fact.

    Based upon the evidence presented at the hearing, I find the following facts, with respect to each of the alleged violations of the Defendantís probation conditions.

A.  July 13, 2005.

    In the early hours of July 13, 2005, Police Officer Randy Laborette, who was on duty at the Central Police Station, received a telephone call from Casey J. Freddy. Casey J. Freddy reported to Officer Laborette that the Defendant had beat up his brother, Freddy J. Freddy at Freddyís place in Unten, Lelu Municipality. After taking the complaint by telephone, Officer Laborette went to the scene of the incident at Unten, but by the time he arrived, everyone was gone.

    Freddy J. Freddy testified that the Defendant came to his place in Unten. The Defendant appeared to be drunk and fought with the victim. The Defendant kicked Freddy in the neck. Casey J. Freddy arrived at Unten and saw both the Defendant and his brother Freddy. Casey smelled alcohol on the Defendantís breath and testified that the Defendant was drunk. Caseyís brother Freddy was crying and in pain from being kicked in the neck by the Defendant. Casey then took his brother to the hospital for evaluation and treatment.

[14 FSM Intrm. 29]

B.  October 5, 2005.

    On October 5, 2005, Ellen Edwin Mike saw the Defendant driving his vehicle at Putukte, at approximately 1 or 2 pm that day. Tracey Forest Abraham also saw the Defendant driving his vehicle that day. Police Officer Phillip Salik was off-duty when he was driving by Fwinfokoa, Lelu on October 5, 2005. He saw a car smashed into the wall at Fwinfokoa, Lelu, and recognized the car as belonging to the Defendant. Officer Salik stopped at the scene of the accident, but there was no one present. Officer Salik called the Central Police Station in Tofol to report the accident, and spoke to Police Officer Licies Nithan, who was on duty at that time. Officer Salik reported the accident, which he estimated to have taken place about 20 minutes before. Officer Nithan drove to the scene of the accident, performed a preliminary investigation, and then returned to the Central Police Station.

    Jacob Wilfred Palik testified that he, the Defendant, and one Robar Palik were in the Defendantís vehicle on October 5, 2005. Jacob testified that Robar was driving the Defendantís vehicle. After driving to Court for Defendantís hearing, which had been canceled, the three men continued to drive around in Defendantís car. Robar Palik, while driving, reportedly fell asleep and the Defendantís car ran off the road and smashed into the wall at Freeling Sigrahís land at Fwinfokoa, Lelu. Robar Palik, on the dates of this hearing, was off-island in the State of Hawaii.

    Jacob testified that Robar and Burt left the car at the scene of the accident, after the car hit the wall. Jacob stayed at the scene for a short while, but then walked back to Lelu alone the entire way. On his way home, Jacob stopped at the place where Robar was staying to see how Robar was doing. Jacob found that Robar was OK. Jacob advised Robar to call the police to report the accident. Robar told Jacob that he had already called the police. When questioned on how Jacob knew that Robar was back at his place, Jacob replied that he didnít know, and that he was just stopping there. Jacob W. Palik had been convicted of a felony: murder in the second degree, by this Court, in 1997.

    Police Officer Licies Nithan testified that he had received a telephone call from a person claiming to be Robar Palik on October 5, 2005. Officer Nithan did not recognize the voice of the caller. The caller reported the accident which had occurred at Fwinfokoa, Lelu. Officer Nithan informed the caller that he had already visited the scene of the accident and had returned to the Central Police Station.

II.  Analysis.

    During the hearing and in his closing arguments, Defendant raised several arguments. Each argument is addressed in turn. Defendant argued that witness and victim Freddy J. Freddy was not credible and that his testimony should be disregarded. The weight to be accorded admissible evidence is for the trier of fact to determine. Tulensru v. Wakuk, 10 FSM Intrm. 128 (App. 2001). I find the testimony of Freddy J. Freddy to be credible. His testimony was corroborated by other witnesses. Furthermore, the Defendant did not provide any evidence to contradict the testimony of Freddy J. Freddy. Defendantís argument that the testimony of Freddy J. Freddy is not credible is rejected. As the trier of fact, I find Freddyís uncontroverted testimony with respect to the Defendantís actions to be credible.

    Defendant also argued that Court should recognize custom regarding the relationship between Freddy J. Freddy and the Defendant. The Defendant did not present any evidence of the relationship between victim and Defendant, therefore there is no evidence of what relationship exists between the Freddy J. Freddy and the Defendant. Defendant also did not present any evidence of custom, specifically evidence that due to the relationship between victim and Defendant, it would be customary for Defendant to show up drunk at a relativeís home and commit a battery upon the relative. This Court may not utilize tradition in reaching a decision unless it receives satisfactory evidence of the tradition. Kos. S.C. ß 6.303; Nelson v. Kosrae, 8 FSM Intrm. 397 (App. 1998); Kosrae v. Sigrah, 11 FSM Intrm. 26 (Kos. S. Ct. Tr. 2002).

[14 FSM Intrm. 30]

    Defendant has not provided any evidence of custom or tradition, therefore it cannot be considered. Defendantís argument is rejected.

    Defendant argued that the affidavit completed by Court Marshal Jeffrey Tilfas, regarding the incident on October 5, 2005, was not supported by probable cause. Defendant argues that due to lack of probable cause in the affidavit, the Motion to Revoke Suspended Sentence was improperly filed by the State. Defendantís reliance upon the affidavit is misplaced.

    A Motion to Revoke Suspended Sentence must be filed by the State, as they are the prosecuting entity admitted to practice law in this State. A Motion to Revoke Suspended Sentence may be filed with or without an affidavit from the Court Marshal. The State Attorney Generalís Office may be informed of a probationerís alleged violation of probation conditions through several avenues: direct complaint, witness, police report, affidavit of Court Marshal, etc. There may be instances where the Office of the Attorney General is informed of an alleged violation before the Court Marshal. For example, the Court Marshal may be ill or off-island, or the Court Marshal position may be vacant. Revocation proceedings are filed by the State, and may be assisted by the Court Marshalís affidavit. However, the Court Marshalís affidavit is not required to institute revocation proceedings. The State was authorized by State Law and Court Rules to file the Motion to Revoke Suspended Sentence based upon information provided to them regarding the July 13, 2005 and October 5, 2005 incidents.

    Probation and revocation of probation proceedings are governed by Kosrae State Code, Section 6.4909. This statutory provision does not require the court marshal, probation officer or any other specific person to institute a revocation proceeding. KRCP Rule 32.1 establishes the procedural requirements for revocation of probation hearings. KRCP Rule 32.1 does not require the court marshal, probation officer or any other specific person to institute a revocation proceeding. GCO 1998-03 establishes the power of the probation officer to confine people for violations of suspended sentences, pre-trial and post-conviction release orders. GCO 1998-03 provides the confinement and hearing procedure in cases where the person has been taken into custody by the probation officer, or where an arrest warrant has been executed by the Kosrae State Police. The GCO establishes the hearing procedure to ensure that a hearing on a Petition for Revocation for a person held in custody is held as soon as possible.

    Here, the Defendant was never arrested nor taken into custody following his alleged violations of probation conditions. The Defendant remained at liberty at all times until and including attendance at the hearing on the Stateís Motion to Revoke Suspended Sentence. Defendant remains at liberty until the present time, awaiting this Courtís ruling on the Stateís Motion. Defendant has failed to provide any authority by statute, court rules or general court order in support of his argument that the Court Marshalís affidavit is required for the State to institute revocation proceedings. Defendantís argument is rejected.

III.  Order Revoking Suspended Sentence.

    Sentencing was imposed at the hearing on January 3, 2006. After hearing from the parties, consideration of all the evidence presented at the hearing, and application of the law, I find clear and convincing evidence that the Defendant did commit an assault and battery upon Freddy J. Freddy on July 13, 2005. After consideration of all the evidence presented at the hearing, I do not find clear and convincing evidence that the Defendant was driving his vehicle at the time that the car smashed into the wall at Fwinfokoa, and therefore do not find that the Defendant committed negligent driving and/or reckless driving on October 5, 2005.

    Based upon clear and convincing evidence of the Defendantís assault and battery upon Freddy J. Freddy, I further find that the Defendant had violated his probation condition of "no violation of any national, state or municipal laws or ordinances." Pursuant to Kosrae State Code, Section 6.4909, Defendantís

[14 FSM Intrm. 31]

probation is revoked.

IV.  Sentencing and Order of Remand to Kosrae State Jail.

    Prior to imposing the sentence, the Court allowed Counsel for the Defendant to speak on behalf of the Defendants. The Defendant was also provided an opportunity to make a statement in his own behalf. Counsel for Kosrae State was also given an opportunity to speak to the Court.

    Based upon the facts found from the proceeding, in consideration of the nature of the violation, the judgment of conviction and sentencing order in Criminal Case 3-04, Kosrae State Code, Section 6.4909, and the Defendantís background and potential, the Court revokes the Defendantís probation and imposes the following sentence upon the Defendant:

1.  Defendant is remanded to the Kosrae State Jail to serve two (2) years of the remaining term of his sentence imposed in Criminal Case 3-04 by incarceration. Defendantís term of incarceration shall begin immediately on January 3, 2006 and shall end on January 3, 2008.

2.  Following his two year term of incarceration, the Defendant shall serve his remaining sentences imposed in Criminal Case Nos. 3-04 and 17-04 on probation, subject to the conditions specified in the Sentencing Orders entered in Criminal Case Nos. 3-04 and 17-04.

    Following imposition of sentence, the Defendant made a verbal motion for work release, which was denied without prejudice. Defendant may apply for work release by motion, pursuant to the KRCrP and procedures of this Court.

    Defendantís Motion for Modification of Sentencing Orders, filed on August 26, 2005, is denied as being moot. Finally, Counsel of Record for Defendant was properly noticed for the hearing on January 3, 2005, but did not appear. Public Defender George appeared in his place. Counsels are reminded that the Court expects their personal appearance at proceedings for their individual cases, unless there are emergency circumstances, unless a substitution is requested in writing prior to the proceeding.

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[14 FSM Intrm. 32]