CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Chuuk v. Menisio, 15 FSM Intrm. 276 (Chk. S. Ct. Tr. 2007)

[15 FSM Intrm. 276]

CHUUK STATE,

Plaintiff,

vs.

TAFSON MENISIO,

Defendant.

CRIMINAL CASE NO. 084-2007

ORDER DENYING DEFENDANTíS MOTIONS

Camillo Noket

Chief Justice

Decided:  September 21, 2007

APPEARANCES:

For the Plaintiff:      Daieko William-Robert

                               Assistant Attorney General

                               Office of the Chuuk Attorney General

                                P.O. Box 1050

                                Weno, Chuuk   FM   96942
 

For the Defendant:  Michael Marco

                                Office of the Public Defender

                                 P.O. Box 754

                                 Weno, Chuuk   FM   96942

[15 FSM Intrm 277]

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HEADNOTES

Criminal Law and Procedure ) Information

      The government does not have to identify which of the six charges in a criminal information it intends to pursue since it is entitled to pursue multiple claims based on the same act. Chuuk v. Menisio, 15 FSM Intrm. 276, 279 n.1 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Information

      A criminal information must be a plain, concise and definite written statement of the essential facts constituting the offense charged. It must be signed by an attorney for the state and for each count there must be citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated. Allegations against the defendant in one count may be incorporated by reference in another count. Chuuk v. Menisio, 15 FSM Intrm. 276, 279 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Bill of Particulars

      If the information does not sufficiently inform the defendant of the charges against him, the defendant has the available remedy of filing for a bill of particulars pursuant to Chuuk Criminal Rule 7(e). The purpose of a bill of particulars is to inform the defendant sufficiently about the charge so he can prepare his defense and can avoid surprise. A bill of particulars is typically requested when the defendant is unable to determine from the information what the charges are against him. Chuuk v. Menisio, 15 FSM Intrm. 276, 279 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Bill of Particulars

      Under Rule 7(f), a motion for a bill of particulars may be made before the initial appearance or within ten days after arraignment or at such later time as the court may permit. Chuuk v. Menisio, 15 FSM Intrm. 276, 279 n.2 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Bill of Particulars

      A bill of particulars is not a matter of right. It rests within the trial courtís sound discretion. The test on passing on a motion for a bill of particulars should be whether it is necessary that the defendant have the particulars sought in order that prejudicial surprise be avoided. The sole question should be whether adequate notice of the charge has been given the defendant. Chuuk v. Menisio, 15 FSM Intrm. 276, 279-80 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Bill of Particulars

      A motion for a bill of particulars should make clear what relief the defendant is seeking, and should be worded definitely enough that if it is granted the court could enforce its order. A motion for a bill of particulars must be denied when the motion has failed to specify the particulars sought, or makes a catchall request for "particulars." No bill of particulars is necessary if the government has provided the information needed in some other satisfactory form, such as when the government has adopted an "open file" discovery policy, giving the defendants the opportunity to inspect all relevant documentary and physical evidence. A motion for a bill of particulars will be denied, even if timely, when the motion fails to specify the particulars sought and when it appears that the government has provided the information through other means. Chuuk v. Menisio, 15 FSM Intrm. 276, 280 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Bill of Particulars

      The court can find no grounds for granting a motion for a bill of particulars when the government

[15 FSM Intrm 278]

has set forth its charges against the defendant in compliance with Rule 7(c)(1); when it has complied with the defendantís discovery requests to the extent of offering full disclosure of its case file against him; when the defendant does not specifically identify any "particulars" being sought; and when the defendant has not, in any case, set forth any grounds demonstrating that the particulars sought are necessary to avoid prejudicial surprise. Chuuk v. Menisio, 15 FSM Intrm. 276, 280 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Dismissal

      Chuuk Criminal Rule 48(a) provides that the attorney for the state may by leave of court file a dismissal of an information or complaint and the prosecution shall thereupon terminate, but it is not a proper authority for a defendant to request a dismissal. Chuuk v. Menisio, 15 FSM Intrm. 276, 280 & 281 n.3 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Motions

       Failure to timely oppose a motion is deemed a consent to that motion, but a court still needs proper grounds before it can grant an unopposed motion. Chuuk v. Menisio, 15 FSM Intrm. 276, 281 (Chk. S. Ct. Tr. 2007).

Constitutional Law ) Due Process ) Vagueness

      A defendantís right to be informed of the nature of the accusations against him requires that a statute be sufficiently explicit to prescribe the offense with reasonable certainty and not be so vague that persons of common intelligence must necessarily guess at its meaning. Chuuk v. Menisio, 15 FSM Intrm. 276, 281 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Dismissal

      A defendantís motion to dismiss will be denied when the court is unable to ascertain, from its review of the motion and supporting memorandum, whether there is any factual or legal basis that may support it. Chuuk v. Menisio, 15 FSM Intrm. 276, 281 (Chk. S. Ct. Tr. 2007).

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COURTíS OPINION

CAMILLO NOKET, Chief Justice:

      With respect to Defendant Tafson Menisioís motion for bill of particulars and his motion to dismiss, the Court has reviewed the briefs filed by each party. The Court denies the motions. The reasons follow.

Procedural Background of Motions

      1.  In its criminal information filed on June 16, 2007, the Government charged Defendant Menisio with two counts of aggravated assault and two counts of assault with a dangerous weapon, relating to his alleged stabbing of Tener Rufes at approximately 5:00 p.m. on June 14, 2007 in front of the Deal Fair Store in Nantaku Village, Weno Island and his alleged stabbing of Tener Rufes again at 5:30 p.m. on the same day on a road in Nantaku Village. An affidavit of Detective Fanes Meika was filed with the information.

      2.  On June 19, 2007, Menisio filed his motion for discovery and, separately, a motion for a bill of particulars and a motion for dismissal of counts I and III of the information.

[15 FSM Intrm 279]

      3.  On June 25, 2007, The Government filed Detective Fanes Meikaís amended affidavit in support of the information. The only substantial change from the June 16, 2007 affidavit is the addition of a reference, in paragraph 5, to the location of the victim ("outside of the Deal Fair Store in Nantaku Village, Weno Island") where Menisio is alleged to have first stabbed him.

      4.  On July 31, 2007, the Government filed its response to Menisioís discovery request and its opposition to Menisioís motion for bill of particulars. In its discovery response, the Government, among other things, offered to make its entire case file available for Menisioís inspection and copying. Pl.ís Response, para. 2.

      5.  With its July 31, 2007 responses to Menisioís discovery requests, the Government also filed its own requests for discovery to Menisio.

      6.  As of September 20, 2007, Menisioís motion to dismiss remained unopposed and Menisio had not yet responded to the Governmentís discovery requests.

Defendantís Motion for Bill of Particulars

       In his motion for bill of particulars, Menisio does not specify what particulars he is seeking, but asserts generally that he has a right to be informed of the nature of the accusations against him.

Applicable Law for Bill of Particulars

      Pursuant to Chuuk Crim. R. 7(c)(1), a criminal information "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." In addition, an information must be signed by an attorney for the state. Finally, for each count there must be "citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated." Id. Allegations against the defendant in one count may be incorporated by reference in another count. Id.

      If the information does not sufficiently inform the defendant of the charges against him, the defendant has the available remedy of filing for a bill of particulars pursuant to Chuuk Crim. R. 7(e). The purpose of a bill of particulars "is to inform the defendant sufficiently about the charge so he can prepare his defense and can avoid surprise." Hartman v. FSM, 5 FSM Intrm. 224, 232 (App. 1994). A bill of particulars, like a motion for a more definite statement in civil cases, is typically requested when the defendant is unable to determine from the information what the charges are against him. See FSM v. Kansou, 14 FSM Intrm. 128, 131 (Chk. 2006).

      A bill of particulars is not a matter of right. It rests within the trial courtís sound discretion. FSM v. Sam, 14 FSM Intrm. 398, 401 (Chk. 2006). The test on passing on a motion for a bill of particulars should be whether it is necessary that the defendant have the particulars sought in order that

[15 FSM Intrm 280]

prejudicial surprise be avoided. The sole question should be whether adequate notice of the charge has been given the defendant. Sam, 14 FSM Intrm. at 401.

      A motion for a bill of particulars should make clear what relief the defendant is seeking, and should be worded definitely enough that if it is granted the court could enforce its order. Id. at 402. A motion for a bill of particulars must be denied when the motion has failed to specify the particulars sought, or makes a catchall request for "particulars." Id. No bill of particulars is necessary if the government has provided the information needed in some other satisfactory form, such as when the government has adopted an "open file" discovery policy, giving the defendants the opportunity to inspect all relevant documentary and physical evidence. Id. A motion for a bill of particulars will be denied, even if timely, when the motion fails to specify the particulars sought, and when it appears that the government has provided the information through other means. Id.

Application of Law to Facts: Bill of Particulars

      In this case, the information was signed by an attorney for the Government, it identifies the defendant and his alleged victim and sets forth the essential facts giving rise to the counts against him including the time, place, surrounding circumstances, and the specific acts against the victim. The Government cites the specific statutory provision supporting each count.

       Menisio filed his motion for a bill of particulars and his motion to dismiss three days after the Government filed its information. Menisio also filed his discovery requests on the same day, which the Government timely responded to on July 31, 2007. The Governmentís discovery responses address each of Menisioís requests and offer to make available the Governmentís entire case file for Menisio. Menisio has not objected that the Governmentís discovery responses are insufficient in any way.

      The court finds that the Government has set forth its charges against Menisio in compliance with Rule 7(c)(1), it has complied with the Menisioís discovery requests to the extent of offering full disclosure of its case file against Menisio, Menisio does not specifically identify any "particulars" being sought, and Menisio has not, in any case, set forth any grounds demonstrating that the particulars sought are necessary to avoid prejudicial surprise. Therefore, the court finds no grounds for granting Menisioís motion for a bill of particulars.

Defendantís Motion to Dismiss

      In his motion to dismiss, brought pursuant to Chuuk Crim. R. 48(a), Menisio argues that his Due Process rights were violated because the information, the supporting affidavit and the statute(s) upon which the charges are based are vague. Def.ís Motion to Dismiss at 2.

Applicable Law for Motion to Dismiss

      The authority presented by Menisio for his dismissal request is Chuuk Crim. R. 48(a), which provides "the attorney for the state may by leave of court file a dismissal of an information or complaint and the prosecution shall thereupon terminate . . ." The asserted grounds for the motion are: 1. that the information, or the affidavit filed in support, or both, gave Menisio inadequate notice of the charges against him in violation of his Due Process rights, and 2. the statute(s) upon which the charges are based are unconstitutionally vague. Menisio does not specify which particular statutory language, let alone what provisions, are vague or what aspects of the charges and supporting affidavit are vague.

[15 FSM Intrm 281]

Application of Law to Facts: Motion to Dismiss

      The court has no record that the Government filed a timely response to Menisioís motion to dismiss. Failure to timely oppose a motion is deemed a consent to that motion, but a court still needs proper grounds before it can grant an unopposed motion. Marar v. Chuuk, 9 FSM Intrm. 313, 314 (Chk. 2000). In the motion, Menisio does not present any support for his blanket assertions that the charges against him are unconstitutionally vague. Certainly, a defendantís right to be informed of the nature of the accusations against him requires that a statute be sufficiently explicit to prescribe the offense with reasonable certainty and not be so vague that persons of common intelligence must necessarily guess at its meaning. Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984). And, as discussed above, under appropriate circumstances, the sufficiency of a pleading in a criminal case may be challenged, usually by a motion for a bill of particulars. As presented, however, the court denies the motion because it is unable to ascertain, from its review of the motion and supporting memorandum, whether there is any factual or legal basis that may support it. In any case, the issues raised in Menisioís motion to dismiss mirror those raised in Menisioís motion for a bill of particulars, which the court has addressed in detail herein.

Conclusion

IT WAS HEREBY ORDERED:

      Defendant Tafson Menisioís motion for bill of particulars and motion to dismiss were denied.

__________________________

Footnotes:

1.  Menisio also appears to argue that the Government must identify which of the six charges in the criminal information that it intends to pursue. The Government is, however, entitled to pursue multiple claims based on the same act. See e.g., Laion v. FSM, 1 FSM Intrm. 503, 529 (App. 1984) ("A trial court may in its discretion permit a case involving separate charges based upon the same act to proceed to trial.").

2.  The timing for the filing of a motion for bill of particulars is set forth in Rule 7(f), which states "a motion for a bill of particulars may be made before the initial appearance or within ten days after arraignment or at such later time as the court may permit . . . ." FSM v. Sam, 14 FSM Intrm. 398, 402 (Chk. 2006); see also FSM v. Kansou, 14 FSM Intrm. 128, 131 (Chk. 2006).

3.  The court notes that Chuuk Crim. R. 48(a) is not a proper authority for a defendant to request a dismissal.

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