FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kansou, 14 FSM Intrm. 150 (Chk. 2006)

[14 FSM Intrm. 150]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

ROOSEVELT D. KANSOU, SIMEON R. INNOCENTI,

JOHN PETEWON, JAMES FRITZ, MEMORINA

KANSOU, JOHN ENGICHY a/k/a AISER JOHN

ENGICHY, ROSEMARY ENGICHY a/k/a ROSEMARY

NAKAYAMA, FRANK DARRA, FRANK CHOLYMAY,

EM-R, RIBC AGGREGATES INC., MARKET

WHOLESALE, K & I ENTERPRISES, INC., and SOLID

BUILDERS AND TRADING SERVICES,

Defendants.

CRIMINAL CASE NO. 2003-1508

ORDER

Richard H. Benson

Specially Assigned Justice

Hearing: March 10, 2006

Decided: March 13, 2006

APPEARANCES:

For the Plaintiff:   Keith J. Peterson, Esq.

                             Assistant FSM Attorney General

                             P.O. Box PS-105

                             Palikir, Pohnpei   FM   96941

For the Defendant:  Joey J. Sapelalut, Esq.

               (Darra)       Office of the Public Defender

                                   P.O. Box PS-174

                                   Palikir, Pohnpei   FM   96941

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HEADNOTES

Criminal Law and Procedure ) Right to Counsel; Criminal Law and Procedure ) Right to Silence

    For a defendant to waive his right to silence or to counsel he must do so knowingly and intelligently. There exists a presumption against such waivers. FSM v. Kansou, 14 FSM Intrm. 150, 151 (Chk. 2006).

Criminal Law and Procedure ) Right to Counsel; Criminal Law and Procedure ) Right to Silence

    The burden of proof is on the prosecution to show that the defendant knowingly and intelligently

[14 FSM Intrm. 151]

waived his privilege against self-incrimination and his right to retained or appointed counsel. The standard of proof the prosecution must meet is the preponderance of the evidence. FSM v. Kansou, 14 FSM Intrm. 150, 151-52 (Chk. 2006).

Constitutional Law ) Declaration of Rights; Criminal Law and Procedure

    Since the article IV, section 7 protection against self-incrimination was based upon the fifth amendment to the United States Constitution, FSM courts may look to United States decisions to assist in determining the meaning of article IV, section 7 because when an FSM Declaration of Rights provision is patterned after a U.S. Constitution provision, United States authority may be consulted to understand its meaning. FSM v. Kansou, 14 FSM Intrm. 150, 151 n.1 (Chk. 2006).

Criminal Law and Procedure ) Right to Counsel; Criminal Law and Procedure ) Right to Silence; Evidence ) Burden of Proof

    The government has met the standard of proof and proved by a preponderance of the evidence that the defendant has waived his rights knowingly and intelligently when the defendant’s signed waiver showed that he was informed of his right to silence and his right to counsel and waived those rights and when, considering that signed waiver and the testimony presented, the court has considered the defendant’s evidence and argument and cannot find that the manner in which the statement was elicited coerced the defendant into making it. FSM v. Kansou, 14 FSM Intrm. 150, 152 (Chk. 2006).

Criminal Law and Procedure ) Right to Counsel; Criminal Law and Procedure ) Right to Silence

    The government’s drafting of the defendant’s affidavit, which the defendant signed and had notarized at the FSM Supreme Court, Palikir, Pohnpei, while not in the presence of any prosecution team member, does not make that affidavit the product of an unknowing or involuntary waiver of the defendant’s rights. FSM v. Kansou, 14 FSM Intrm. 150, 152 (Chk. 2006).

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COURT’S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

    This came before the court on Frank Darra’s Motion to Suppress; Memorandum of Points and Authorities, filed December 19, 2005, for which an evidentiary hearing was held on March 10, 2006. Darra sought to suppress certain incriminatory statements he made to members of the FSM Department of Justice and his written affidavit incorporating or summarizing those statements.

    For a defendant to waive his right to silence or to counsel he must do so knowingly and intelligently. There exists a presumption against such waivers. Moses v. FSM, 5 FSM Intrm. 156, 159 (App. 1991). The burden of proof is on the prosecution to show "that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda v. Arizona, 1. Since the article IV, section 7 protection against self-incrimination was based upon the fifth amendment to the United States Constitution, FSM courts may look to United States decisions to assist in determining the meaning of article IV, section 7. FSM v. Jonathan, 2 FSM Intrm. 189, 193-94 (Kos. 1986). When an FSM Declaration of Rights provision is patterned after a U.S. Constitution provision, United States authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000); FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001). 384 U.S. 436, 475, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694, 724 (1966) (citing Escobedo v. Illinois, 378 U.S. 478, 490 n.14, 84 S. Ct. 1758, 1764 n.14, 12 L. Ed. 2d

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977, 986 n.14 (1964)). The standard of proof the prosecution must meet is the preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 627, 30 L. Ed. 2d 618, 627 (1972) ("prosecution must prove at least by a preponderance of the evidence that the confession was voluntary").

    The government has met that standard of proof. Darra’s signed waiver showed that he was informed of his right to silence and his right to counsel and waived those rights. Considering that signed waiver and the testimony presented by Darra and the government, the government proved by a preponderance of the evidence that Darra knowingly and intelligently waived his rights to silence and to counsel. The court has considered the Darra’s evidence and argument, and cannot find that the manner in which the statement was elicited, that is, the procedure in the conference room, coerced Darra into making it. Nor does the government’s drafting of Darra’s affidavit, which Darra signed and had notarized at the FSM Supreme Court, Palikir, Pohnpei, while not in the presence of any member of the prosecution team, make that affidavit the product of an unknowing or involuntary waiver of Darra’s rights. Darra’s motion to suppress is therefore denied.

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Footnotes:

1.Sine the article IV, section 7 protection against self-incriminationwas based upon the fifth amendment to the United States Constitution, FSM courts may look to Untied States decisions to assist in determining the meaning of article IV, section 7. FSM v. Jonathan, 2 FSM Intrm. 189, 193-94 (Kos. 1986). When as FSM Declaration of Rights provision is patterned after a U.S. Constitution provision, United States authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000); FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001).

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