cite as Kosrae State v. Kilafwa and Jonithan, (Kosrae 1993)
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Criminal Case No. 69-92



     On 3/25/92, at about 4:00 p.m., defendant Kilafwa was observed by Officer Wakuk passing into the prison fence a transparent plastic bag to inmate and Co-defendant Jonithan. Officer intervened and confiscated the bag that was found to contain marijuana. Defendant Kilafwa was arrested by warrant on March 28, 1994 and brought to CPS where he was booked and released two hours later. Defendant Jonithan was disciplined on 3/25/92 for violating the jail's internal rules.

     Defendants are each charged with two counts. They are:

     1. KSC Title 13, Section 13.531 - Possession of controlled substance (Marijuana-about one ounce), and

     2. KSC Title 13, Section 13.532 - Trafficking in controlled substance.

     Defense asserts that the State waited too long (about 7 months) to file charges (10/20/92) after the incident (3/25/92) and the delay up until the present time for a trial date dentes "defendants speedy trial rights and the due process of law.

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     This case comes before me on a motion by defense to dismiss the information filed against the defendants, for violation of their constitutional rights to a speedy trial and due process of law. This motion is made pursuant to Criminal rules 47 and 48 (b).
     The defense stated that defendants were unaware for 8 months of any charges pending against them until the time of the initial appearance (11/24/92).


     1. Does a delay of 7 months from the 3/28/92 arrest and 10/20/92 filing of information constitute a violation of defendants speedy trial rights under Kosrae Criminal Rule 48 (b) and due process of law?

     2. Does a delay of at least 6 months from filing of information and date of trial constitute a violation of defendants speedy trial rights under Kosrae Criminal Rule 48 (b) and due process of law?


     1. A seven month delay from arrest and filing of charges does not violate defendants rights to a trial under Kosrae Criminal Rule 48 (b) or due process of law because the length of time between the date of the incident and the filing of the information is governed by the Statute of Limitations and speedy trial doctrine does not, therefore, apply.

     2. A delay of six months from filing of information and date of trial is not unreasonable or excessive in order to apply the speedy trial doctrine and dismiss the case. Such a delay does not constitute a violation of defendants speedy trial rights under Kosrae Criminal Rule 48 (b) and due process of law.

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     Kosrae State Rule 48 (b) states:

Criminal rule 48 (b). By Court. if there is unnecessary delay in filing an information against a defendant who has been held to answer or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the information or complaint.

     Kosrae State Code, Title 6, Chapter 25, Section 6.2506 states:

     Commencement of an action not stated in Sections 6.2503, 6.2504 or 6.2505 occurs within six years after accrual of the cause of action.


     Rule 48(b) states that the court may dismiss. It is therefore, discretionary on the court whether or not to dismiss.

     The Kosrae State Code mandating limitations is conspicuously absent from Part IV. Criminal Proceedings and the only statutory guidance is found in Part III. Civil Proceedings under KSC Title 6, Chapter 25, Section 6.2506. Since the statutory guidelines is therefore unclear, this court has chosen to use Chapter 25, Section 6.2506 as the Statute of Limitations for criminal proceedings until such time as the issue is clarified in the legislature.

     The length of time which is statutorily reasonable between the alleged incident and filing of information is controlled by the six year statute of limitations.


     Defense asserts defendants rights to a speedy trial under both the State and National constitutions. Kosrae State Constitution, Art. I I, Section 1(e) states:

"The defendant in a criminal case has a right to a speedy public trial .....

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     The FSM Constitution, Art. IV, Section 6, states exactly the same wording as the Kosrae Constitution.


A. Tolling of speedy trial rights

     This court agrees with the governments assertion that the right to a speedy trial begins when the accused is charged or held to answer. Citing United States v Marion, government has argued that when an accused has been formally charged or information filed or actual restraints was imposed by way of arrest and holding to answer criminal charges is when the speedy trial protection applies. (30 L Ed 2d 468, 479 (1971).

     Delay was not in filing an information while defendant was "held to answer". Defendants were not in jail for seven months on these charges.

B. Four part test for speedy trial

     This Court, in Kosrae State v. Jackson Albert. Criminal Case No. 162-88, has adopted the four factor test stated by the U.S. Supreme Court in Barker v. Wlngo (407 US 514, 33 L Ed 2d 101). The four part test includes the following considerations:

     1. The length of delay,
     2. the reason for the delay,
     3. defendant's assertion of his right, and
     4. prejudice to the defendant.

C. Length of delay

     As of the date of the motion, 12/17/92, there had been a 7 month delay between arrest and filing of the information, and an 8 month delay before defendants were told the contents of the information at the initial appearance on 11/24/92.

     Since the delay between the incident and filing of information is controlled by the Statute of Limitations, this court will not

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consider the pre filing delay for speedy trial purposes. Rather consideration will be given to the length of time from filing or when defendant is "held to answer" until the time of trial. However, the court notes that the filing could have been more expeditious since the government apparently had all the information necessary for filing at the time of the incident or shortly thereafter. The reason for this delay is unclear

     Therefore, for speedy trial purposes there was about a six month delay from the time of filing (10/20/92) until the time of trial.

D. Reason for the delay

     Citing the Albert case, the responsibility for such circumstance rests with the government not the defendant. As the defense points out the U.S. Supreme Court has said that deliberate attempts to delay the trial in order to hamper the defense weighs against the state. It is also improper for the prosecution to delay trial to gain tactical advantage or to harass the defendant. There is no indication that such is the circumstances in the case before us now.

     Defense suggests a close scrutiny of the governments motives for the delay and if it is due to bureaucratic indifference, United States v MacDonald , suggests that to weigh heavily against the government. [632 F 2d 258 (4th Cir. 1980)]. There is no doubt that it is in the interest of justice to assure that cases are processed timely and consistently. Since no explanation for the 6" month delay from filing to trial is offered, the reason for delay must necessary be held against the governments position.

E. Defendants' assertion of his rights

     Defendants promptly asserted their rights - less than one month after they became aware of the charges pending against them.

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F. Prejudice to the defendants

     The only showing of prejudice that defense asserts is that his memory of the precise sequence of event may be impaired by the passage of time.

     There is merit to the governments argument that if this is the case, that is would only serve to benefit defendants case.

G. Albert case distinauished

     This court considers Kosrae State v. Jackson Albert, Crim. Case No. 162-88, to be of primary importance when deciding a speedy trial motion. However, Albert is easily distinguished from the facts in the instance case.

     First of all, the delay in the Albert case was much more lengthy than here. There was a delay of several months from the filing of information to the start of trial. But defendant Albert did not contend that this time prejudiced him. What the court focused on was the delay after trial commenced.

     The Albert trial began on 4/4/89. After the government rested it's case, defense moved for a judgment of acquittal on the ground that the government failed to prove its case beyond a reasonable doubt. The motion was taken under advisement by Court and about 6 months later (10/2/89) the Court inadvertently issued its opinion and judgment of conviction (without hearing the defense) instead of ruling on the motion raised by defendant.

     On 12/6/89, defense made a motion to recuse, asserting that it is prejudicial to defendant should the Judge sit on the matter. On 2/14/90, motion for recusal was denied and defendant was ordered to prepare to present his defense.

     On 5/14/92, defense made a motion to dismiss based on failure to prosecute and violation of speedy trial rights. The court took judicial notice of the fact that the reasons for delay were the court's inadvertence in issuing an opinion prior to defendants presentation of his case and scheduling delays.

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     The Albert case was not one where either party delayed as a tactic to obtain an advantage. Neither party asserted ulterior motives for the delay. In the Albert case we said, "Though the courts are not perfect, the unintentional delays caused by the system must be considered, since the ultimate responsibility for such delays must rest with the government rather than with the defendant."" citing Strunk v United States.

     Albert argued that the delay was so prejudicial that he could not benefit from investigation and preservation of testimonies and other evidence during the delay AND that any evidence and testimony of witnesses was no longer available.

     Therefore, the motion to dismiss was based on the delay caused by the court when it took the motion under advisement for a period of almost 6 months. Then, the matter was delayed further. The court could have just as easily granted the dismissal based on the fact that the court rendered judgment prior to hearing the case if the defense. In that sense, Albert was a completely different type of "speedy trial" case than what is before us now.

     Also, the total delay was much longer. Information was filed on 11/28/88 and final dismissal occured on 7/20/92 taking a total of 3 years and 8 months. Albert was prejudiced by witness's having moved to Hawaii and were no longer available. Defendant's only witness had no memory. A showing of prejudice in Albert was much stronger than in the instant case.


     There is not clear evidence as to the cause of the delay or any prejudice caused to defendants Kilafwa and Jonithan. The State claims that even if the defendants suffer from loss of memory, that is likely to benefit defendants rather than prove to be a source of prejudice towards them.

     However, having taken into consideration the 6 month delay from filing to trial, no ascertainable reasons for the delay, and a weak showing of prejudice, this court cannot find for a violation of speedy trial and due process rights even though defendants asserted their rights in a timely fashion.

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     In conclusion, as compared to the Albert case with a 3 year and 8 month delaly, a 6 month delay from filing of charges to bringing to trial is not unreasonably excessive. And defendants do not appear to be significantly prejudiced by the delay as was the case in Albert.

     Therefore, this court rules that defendants Kilafwa and Jonithan speedy trial rights have not been violated, the Motion to Dismiss is denied.

     SO ORDERED, this 27th day of April,1993.

                                   LYNDON L. CORNELIUS
                                   Chief Justice

     ENTERED ON, 28th day of April, 1993.

                                   Marciano Wakuk
                                   Chief Clerk of Court.