Cite as Kosrae State v. Tulensa, Nedlic, (Kosrae 1987)

[page 1]



For Government -           Aliksa B. Aliksa
                                         Kosrae State, FSM 96944
For Defense -                  Patrick Olter
                                          Public Defender
                                          Kosrae State, FSM 96944

Before the Honorable Chief Justice Harry H. Skilling.

Defendants were charged with two counts:
     (1) KC 13.611 Obstructing Justice
     (2) KC 13.303 Assault & Battery

     Government amended Count I and charged defendant with 13.303, Assault.

     Defendant move to dismiss the charges based upon Article
[page 2]
II, Section 1(e) of Kosrae Constitution.

                 "The defendant in a criminal case has a right to a speedy public trial, to be informed of the nature of the accusation to have counsel for his defense, to be confronted with witnesses against him, and to compel attendance of witnesses in his behalf. Article II Section 1(e) of State Constitution.

     In determining whether or not rights guaranteed by Article II, Section 1(e) are in fact violated. Court must considered the length of the delay, the reasons of its delay, and the assertion of defendants whether it is in fact prejudicial.

     Defendants were charged with the offenses of Obstructing Justice and Assault. Complaint was filed on February 11, 1987 in Court and was set for trial three (3) months later. Government challenged the motion on grounds that the complaint was not filed on the date of the incident, May 8, 1986. Government asserts that the length of time and its delay did not prejudice the rights asserts by defendants.

     In determining whether delay was unreasonable, Court considered the following factors: the length of delay, government's jurisdiction for the delay and whether defendant right's to a speedy trial is prejudicial.

     The length and the time with which the incident occurred until the date of which the complaint was filed is reasonable and
[page 3]
is not prejudicial to rights guaranteed in Article II, Section 1(e) of Kosrae Constitution. Complaint was filed on February 11, 1987 and Court set the case for Initial Appearance for April 15, 1987, and allow defendants to consult counsel before the trial. Court further set the case for trial on April 23, 1987 in the afternoon. Based upon these, I deny the motion.

     The charges made against the defendants resulted after Officer attempted to execute his legal arrest to Castro Nedlic during the night of this incident: Officer Sigrah was on his way to respond to a call from Lelu and met Castro Nedlic on public road with a can of open budweiser. After advising Castro about the crimes, there was argument between them. Castro attempts to fight with the officer after a karate kick applies to him which Castro fell to the ground.

     Defendants were at the scene with few witnesses who also observed the commission of the crime. Two witnesses, Henry Edwin and Kunio Jerry saw Myer Tulensa, grabbed officer by his chest and tried to separate him from Castro. Witnesses who were present saw Myer as he grabbed officer Carson while he was executing his arrest to Castro Nedlic.

     One witness, Henry Robert saw a "crowd on top of officer," which contradicted to the witnesses testimonies.'

[page 4]

     Another witness, Kunio Jerry, saw one of the defendant, Myer struggled with the Officer. At certain occassions, he saw Marson Nedlic stood beside the crowds; and other witness for government, Clarence Alokoa was at Jorim's store saw the whole incident.

     Defendant's challenged the charges that they're not fighting with the officer, but merely trying to separate officer Carson from Castro Nedlic. During the time Officer was in the process of arresting Castro he felt someone grabbing him by the neck and one grabs his leg. He felt someone punched him at the back of his head and turned to see who it was, although he did not know. The facts are disputed which defendants challenged both charges of obstructing justice and assault.

     In considering the facts and testimonies of witness, Court is trying to construe the language in KC 13.611 which read in part . . . obstructing justice is resisting, or interfering with a police officer in the lawful pursuit of his duties . . . .

     Act by which one, or more persons attempt to prevent or do prevent the execution of a lawful process by officer who has legal duties is an interference. The more act of defendants in trying to avoid his lawful process during the night is fall within the language, KC 13.611.

[page 5]

     The elements of Assault requires: . .   offering, attempting, with force or violence, to strike, beat, wound or do bodily harm to another, (police officer) assault under KC 13.302 requires that in order for a person to be convicted of the charge, government must prove the elements specified beyond reasonable doubts.

     Before there can be successful prosecution for the crime of assault, it must appear thru attempt by force or violence to strike another or cause him bodily harm. NICHIC vs TT, 1 TTR 409 (1958). Under the present case, was there any wilful intent on the part of defendants to inflict inquiries or do bodily harm to the officer?

     For the reasons discussed in here, I have concluded that defendants conduct are in fact interfere with the duties and responsibilities of the Police Officer, Carson Sigrah, under KC 13.611.

     Court cannot agree with the charges on Count two (2) and must dismissed defendants on KC 13.302.

DATED: June 12, 1987

Harry H. Skilling
Chief Justice
Kosrae State Court