KOSRAE STATE COURT TRIAL DIVISION

Cite as Kosrae v. Langu, 15 FSM Intrm. 602 (Kos. S. Ct. Tr. 2008)

[15 FSM Intrm 601]

STATE OF KOSRAE,

Plaintiff,

vs.

LYNIX M. LANGU,

Defendant.

CRIMINAL CASE NO. 115-07

ORDER OF DISMISSAL

Aliksa B. Aliksa

Chief Justice

Hearing:  April 9, 2008

Decided:  April 22, 2008

APPEARANCES:

For the Plaintiff:        Snyder Simon, Esq.

                                 Office of the Kosrae Attorney General

                                  P.O. Box 870

                                  Tofol, Kosrae FM 96944
 

For the Defendant:    Steve Y. George

                                  Office of the Public Defender

                                  P.O. Box 245

                                  Tofol, Kosrae FM 96944

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[15 FSM Intrm 602]

HEADNOTES

Criminal Procedure ) Speedy Trial

      Under Kosrae Criminal Procedure Rule 48(b), the Kosrae State Court may dismiss a case if there is unnecessary delay in filing an information or if there is unnecessary delay in going to trial. Under this rule, either delay may violate a defendantís right to a speedy trial and to due process. Kosrae v. Langu, 15 FSM Intrm. 601, 603 (Kos. S. Ct. Tr. 2008).

Criminal Procedure

      Kosrae Criminal Procedure Rule 5, as amended by GCO 2004-3, requires that a defendant have an initial appearance after arrest within a reasonable time. Kosrae v. Langu, 15 FSM Intrm. 601, 603 (Kos. S. Ct. Tr. 2008).

Criminal Procedure ) Speedy Trial

      The factors for determining speedy trial violations are: length of delay, the reason for the delay, the defendantís assertion of his right, and prejudice to the defendant. Kosrae v. Langu, 15 FSM Intrm. 601, 603 (Kos. S. Ct. Tr. 2008).

Criminal Procedure ) Misdemeanors; Criminal Procedure ) Statute of Limitations

      Kosrae State Code ß13.106(2)(b) imposes a requirement that prosecutions for misdemeanors begin with one year of when the alleged crime was committed. This statute recognizes that a misdemeanor prosecution commenced after one year generally infringes on a defendantís right to a speedy trial. Kosrae v. Langu, 15 FSM Intrm. 601, 604 (Kos. S. Ct. Tr. 2008).

Criminal Procedure ) Speedy Trial

      The right to a speedy trial primarily protects a criminal defendant from hardship due to restraints of liberty before trial. There may also be some anxiety and the recognized risk that the memories of witnesses and the defendant will suffer. The prosecution and public are harmed by delays, too. Witnessesí loss of memory makes them vulnerable on cross-examination. And, imposing criminal sanctions in a prompt, clear manner is more likely to deter future criminal conduct. These factors are important to the fair and prompt administration of justice in all circumstances, even when the prosecution and defense agree to a continuance. Kosrae v. Langu, 15 FSM Intrm. 601, 604 (Kos. S. Ct. Tr. 2008).

Criminal Procedure ) Information; Criminal Procedure ) Misdemeanors

      The Kosrae State Court standard for measuring delay when filing an information and proceeding to trial is that the court presumes that there has been no unnecessary delay if the information is filed within six months of the alleged criminal act, but if the information is filed more than six months after the alleged act, then the prosecution must show that the delay in filing was reasonable or necessary. Kosrae v. Langu, 15 FSM Intrm. 601, 604 (Kos. S. Ct. Tr. 2008).

Criminal Procedure ) Dismissal; Criminal Procedure ) Statute of Limitations

      When a prosecution was commenced within the time limits set by Kosrae State Code ß13.106(2)(b), there is no statutorily-required dismissal. Kosrae v. Langu, 15 FSM Intrm. 601, 604 (Kos. S. Ct. Tr. 2008).

Criminal Procedure ) Misdemeanors; Criminal Procedure ) Speedy Trial

      Ten monthsí delay is in excess of what the Kosrae State Court would normally accept as reasonable or necessary for beginning the prosecution of misdemeanors allegedly committed in the presence of officers. Kosrae v. Langu, 15 FSM Intrm. 601, 604 (Kos. S. Ct. Tr. 2008).

[15 FSM Intrm 603]

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COURTíS OPINION

ALIKSA B. ALIKSA, Chief Justice:

      On March 7, 2008, Defendant moved to dismiss the Criminal Information filed against him claiming a violation of his constitutional right to a speedy trial and to due process of law. Plaintiff opposed the motion. The motion was heard on April 9, 2008. After listening to the argument of the parties, I took this matter under advisement. Snyder Simon represents Plaintiff. Steve Y. George represents Defendant.

       Based on the arguments of the parties, and all records and proceedings to date, I now find that Defendantís rights to a speedy trial and due process were denied and dismiss the Information. This Order explains the reasons for this decision.

      Defendant was arrested and placed into custody on December 29, 2006. The Information, charging him with four misdemeanors, was filed on October 30, 2007. An amended Information, also charging the four misdemeanors, was filed on November 7, 2007. The initial appearance was held on December 3, 2007. Plaintiff commenced discovery on December 10, 2007. The Public Defender was served as counsel for Defendant in December 2007. They also filed a Notice of Entry of Appearance on February 5, 2008.

       Under Rule 48(b), Kosrae Rules of Criminal Procedure, the Court may dismiss a case if there is unnecessary delay in filing an information or if there is unnecessary delay in going to trial. Under this rule, either delay may violate a defendantís right to a speedy trial and to due process. Also, Rule 5, Kosrae Rules of Criminal Procedure, as amended by GCO 2004-3, requires that a Defendant have an initial appearance after arrest within a reasonable time. These two rules impose a standard for measuring delay. As noted in FSM v. Wainit, 12 FSM Intrm. 405, 409 (Chk. 2004) (Wainit), the standard under Rule 48 is "a stricter standard of tolerable delay" than is found in the FSM Constitution.

       In Wainit, the FSM Supreme Court analyzed whether a defendantís right to a speedy public trial had been violated. The case traces the history of the right in Micronesia. It notes that the Trust Territory Courts adopted the four-factor balancing test for determining speedy trial violations used in US Courts, citing Barker v. Wingo, 407 U.S. 512, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972). The factors are: "Length of delay, the reason for the delay, the defendantís assertion of his right, and prejudice to the defendant." Wainit, 12 FSM Intrm. at 410, 412 n.4. The Chuuk Supreme Court adopted the Barker test for analyzing its speedy trial claims stating, "The Barker test is an appropriate tool to analyze the meaning of the FSM Constitutionís identical speedy trial right. It is also an appropriate tool to use in analyzing a Rule 48(b) dismissal." Wainit, 12 FSM Intrm. at 410. It found that the delays were mostly attributable to Defendant and denied his motion to dismiss. Id. at 412. This Court agrees with the adoption of the Barker test for analyzing speedy trial rights and Rule 48(b) dismissals.

       We note that both counsel cited recent US law about analyzing speedy trial claims. The US Congress adopted The Speedy Trial Act in 1974. 18 U.S.C. ß 3161ff. It sets standards for each stage in the criminal process as a way to achieve prompt disposition of criminal cases. Cases after The Speedy Trial Act apply that statute when evaluating claims of speedy trial violations. See, for example, United States v. Taylor, 487 U.S. 326, 108 S. Ct. 2413, 101 L. Ed. 2d 297 (1988). Kosrae and the FSM have not adopted legislation similar to the Speedy Trial Act, so US cases from 1974 forward offer less guidance than Barker and similar US cases before 1974.

[15 FSM Intrm 604]

       Kosrae State Code ß13.106(2)(b) imposes a requirement that prosecutions for misdemeanors begin with one year of when the alleged crime was committed. This statute recognizes that a misdemeanor prosecution commenced after one year generally infringes on a defendantís right to a speedy trial. This is significantly longer that the 70 days allowed by The Speedy Trial Act.

       The right to a speedy trial primarily protects a criminal defendant from hardship due to restraints of liberty before trial. There may also be some anxiety and the recognized risk that the memories of witnesses and the defendant will suffer. The prosecution and public are harmed by delays, too. Witnessesí loss of memory makes them vulnerable on cross-examination. And, imposing criminal sanctions in a prompt, clear manner is more likely to deter future criminal conduct. These factors are important to the fair and prompt administration of justice in all circumstances, even when the prosecution and defense agree to a continuance.

       Because of these considerations, this Court is setting standards for measuring delay when filing an Information and proceeding to trial. If the time limits are exceeded, the Court will presume the standards under Rule 48(b), Kosrae Rules of Criminal Procedure have not been met. The prosecution will then have the responsibility to show the delay was reasonable or necessary to avoid dismissal of the Information under that Rule. For misdemeanor charges, this Court presumes that there has been no unnecessary delay if the Information is filed within six months of the alleged criminal act. If the Information is filed more than six months after the alleged act, then the prosecution must show that the delay in filing was reasonable or necessary.

      We now apply the Barker factors under Rule 48(b), Kosrae Rules of Criminal Procedure, length of delay, the reason for the delay, the defendantís assertion of his right, and prejudice to the defendant. In this case, most of the delay took place after arrest, on December 29, 2006, and before the Information was first filed, on October 30, 2007. This is a delay of ten months. The only reason given for the delay is that the prosecution did not receive the information from Public Safety until October 29, 2007 due to the need for investigation. However, Public Safety is a division of the Attorney Generalís Office. And, according to Defendant, the police reports were completed by Public Safety on December 29, 2006, the alleged criminal conduct took place in the presence of the officers, and the officers are the proposed trial witnesses. Also, all offenses charged are misdemeanors with no need for complex investigation or new legal theories to be briefed, for example. Defendant timely asserted his right and did not contribute to the cause of this delay. He claims prejudice primarily due to the erosion of memory of witnesses.

      The prosecution was commenced within the time limits set by Kosrae State Code ß13.106(2)(b), so there is no statutorily required dismissal. We recognize that the prosecution did not have the benefit of the Courtís views on applying the Barker factors under Rule 48(b), Kosrae Rules of Criminal Procedure. Nevertheless, the Court finds that the ten monthsí delay is in excess of what the Court would normally accept as reasonable or necessary under Rule 48(b) for beginning the prosecution of misdemeanors allegedly committed in the presence of officers. Therefore, this Information is dismissed.

      Regarding the delay after the Information was filed, less than six months have passed. The time was used for discovery, completed in early February 2008. And, Defendant filed this Motion on March 7, 2008, a little over four months after the Information was filed. Because this matter is dismissed on other grounds, it is not necessary to address whether this delay infringed on Defendantís right to a speedy trial. However, the Court recognizes a need to more timely process misdemeanors, both before and after the Information is filed.

      Therefore, the Court re-adopts the timeline set out in General Court Order 1999-8, as follows:

[15 FSM Intrm 605]

Misdemeanors. The Court will attempt to dispose of criminal cases involving only misdemeanor charges within 3 months of filing the information.

a.  Following the date of filing of the information, the initial appearance shall be set within 2 weeks.

b.  If a preliminary examination is requested, it shall be set within 2 weeks following the date of the initial appearance.

c.  Following the date of the initial appearance (or preliminary examination, if one is held), trial shall be set within 1 month.

d.  Following the conclusion of the trial, a sentencing hearing, if required, will be set within 3 weeks.

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