FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Killion, 15 FSM Intrm. 235 (Chk. 2007)

[15 FSM Intrm. 235]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

KLINDON KILLION,

Defendant.

CRIMINAL CASE NO. 2007-1520

ORDER DENYING MOTIONS TO DISMISS AND TO EXCLUDE;

 ORDER ENLARGING TIME

Ready E. Johnny

Associate Justice

Hearing:  August 29, 2007

Decided:  September 5, 2007

APPEARANCES:

For the Plaintiff:         Joses Gallen, Esq.

                                  Attorney General

                                  Office of the Chuuk Attorney General

                                   P.O. Box 1050

                                   Weno, Chuuk   FM   96942
 

For the Defendant:    Harry A. Seymour, Esq.

                                  Office of the Public Defender

                                   P.O. Box 245

                                   Tofol, Kosrae   FM   96944

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HEADNOTES

Criminal Law and Procedure ) Discovery

      It is normally for the trial court to fashion remedies and sanctions for failure of a party to comply with discovery requirements and the exercise of the trial courtís discretion should not be disturbed by an appellate court absent a showing that the trial courtís action has unfairly resulted in substantial hardship and prejudice to a party. FSM v. Killion, 15 FSM Intrm. 235, 236 (Chk. 2007).

Criminal Law and Procedure ) Discovery

      When the defendant has not shown any substantial hardship or prejudice due to the untimely discovery disclosure because, if the defendantís motion to compel had not been responded to, he would have expected the court to order the discovery disclosure to be made by a date certain, but instead, the prosecution responded by making the appropriate disclosures, and when the court concluded that the prosecutionís presentation at argument showed excusable neglect and that its prompt disclosure once its neglect had come to its attention showed good faith, the court accordingly granted the

[15 FSM Intrm 236]

prosecutionís oral motion to enlarge time for excusable neglect and denied the defendantís motion to dismiss. Nor will the disclosed evidence be excluded as sanction since its untimely disclosure was not deliberate. Therefore the alternative motion to exclude the discovery disclosures from trial will also be denied. FSM v. Killion, 15 FSM Intrm. 235, 237 (Chk. 2007).

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COURTíS OPINION

READY E. JOHNNY, Associate Justice:

      This came before the court on the defendantís Motion for Dismissal, filed August 29, 2007, which asks that the court dismiss the information against defendant Klindon Killion because the prosecution did not timely respond to the defendantís discovery request.  The motion was argued at the scheduled hearing on August 29, 2007 and submitted for the courtís decision.  The motion is denied.  The reasons follow.

I.

       On May 24, 2007, the court entered a scheduling order that gave the government until July 2, 2007 to provide its responses to Klindon Killionís discovery requests.  That order also set August 1, 2007, as the date to file pretrial motions and August 29, 2007, as the date when any pretrial motions would be heard, and if none had been filed, then the defendantís plea would be taken.

      On August 3, 2007, Killion filed his motion to compel discovery, which asked the court to compel the prosecution to respond to his June 5, 2007 discovery request and he then be given more time to file pretrial motions based on the evidence received from the prosecution.  On August 15, 2007, the prosecution filed and served its discovery responses.  On August 29, 2007, Killion then filed his motion to dismiss the information against him on the ground that since the prosecution had not attached a motion to enlarge time to make its discovery disclosures and shown excusable neglect, Killion was prejudiced by the unnecessary delay and the violation of his speedy trial right. In the alternative, Killion asks that, as a sanction, that the prosecution be barred from introducing at trial the evidence it had disclosed late.

      Argument on the motion was held on August 29, 2007 with the prosecution responding to the motion orally, having waived its right to file a written reply.  The prosecution asserted that the reason the discovery responses were late was because of turnover in the Chuuk Attorney Generalís Office where the Chief of Litigation, who had been assigned the case and to whom the discovery request had been addressed (although the Chuuk Attorney General had signed the information) left the office in early July to take up the position of Chief Public Defender and the case had been lost in the shuffle.  The prosecution asserted that this constituted excusable neglect and moved for an enlargement for its discovery response to the date the responses were served and filed.

II.

      It is normally for the trial court to fashion remedies and sanctions for failure of a party to comply with discovery requirements and the exercise of the trial courtís discretion should not be disturbed by an appellate court absent a showing that the trial courtís action has unfairly resulted in substantial hardship and prejudice to a party.  Bernardo v. FSM, 4 FSM Intrm. 310, 313 (App. 1990); Engichy v. FSM, 1 FSM Intrm. 532, 558 (App. 1984).

[15 FSM Intrm 237]

      Killion has not shown any substantial hardship or prejudice due to the untimely discovery disclosure.  Nor did he assert his speedy trial right until he moved for dismissal on August 29, 2007.  If his motion to compel had not been responded to, he would have expected the court to order the discovery disclosure to be made by a date certain.  Instead, the prosecution responded by making the appropriate disclosures.  The court concludes that the prosecutionís presentation at argument showed excusable neglect and that its prompt disclosure once its neglect had come to its attention showed good faith.  The prosecutionís oral motion to enlarge time for excusable neglect is thus granted and Killionís motion to dismiss is denied.

      In the alternative, Killion asks that the disclosed evidence be excluded as sanction.  For this proposition, he relies on FSM v. Wainit, 11 FSM Intrm. 186, 190 (Chk. 2002), in which evidence that untimely disclosed to a defendant was excluded.  However, in Wainit, the prosecution deliberately choose, because it thought disclosure might jeopardize other pending investigations, not to disclose the evidence in question until shortly before the scheduled trial, although it had otherwise complied with the defendantís discovery requests.  It also failed to apprise the court of this circumstance until then.  Id. at 190.  Rather than give the defendant a continuance, as would be usual, the Wainit court, for prophylactic reasons and because trial was imminent, excluded the evidence from the prosecutionís case-in-chief, although it use was permitted in rebuttal.  Id. at 191. Killionís case is not similar to Wainit. The untimely disclosure was not deliberate.  For the reasons given above, the alternative motion to exclude the discovery disclosures from trial is denied.

III.

     Accordingly, since Killionís motion to dismiss and his alternative motion to exclude evidence are denied, and since the evidence has been disclosed, now therefore it is hereby ordered that Killionís other alternative motion (in the motion to compel) to enlarge time for him to file pretrial motions is granted, and it is further ordered that he shall have until September 21, 2007 to file and serve his pretrial motions.

     It is further ordered that the pretrial motions, if any are filed, will be heard at 1:30 p.m., on Thursday, October 11, 2007, and that if no pretrial motions are filed, then the court will take defendant Klindon Killionís plea at that time.

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