Cite as State of Yap v. Raech, (Yap St. 1995)
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CRIMINAL CASE No. 1994-256 & 257

     The court is in receipt of the following motions of the Defendant in CR 1994-256, the court has received Defendant's Motion to Suppress Statements and Dismiss Count II dated December 13, 1994; Motion to Suppress Statements dated January 6, 1994; and Motion to Dismiss Count I dated January 23, 1995; while in CR 1994-257 the court has received Defendant's Motion to Suppress Statements dated December 13, 1994. CR 1994-256, although the first filed case, deals with events that allegedly transpired on August 18, 1994, while CR 1994-257 deals with events that allegedly occurred on July 22, 1994.

     The court has combined its rulings on the pending motions in both cases because one evidentiary hearing was held with respect to the pending issues. That evidentiary hearing took place before this court on January 24, 25, 26, and 31, 1995, and oral argument was heard on February 3;1995.

     The issues presented by the motions of the Defendant in CR 1994-256 are:

     I.  Whether the statements of the Defendant made on September 6, 1994, and October 25, 1994 should be suppressed. For the reasons set forth below, the court grants the motion of the Defendant.
     II.  Whether the court should dismiss Count I of the Information, which alleges a violation of 11 YSC 808(c)(3), because it violates the

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Defendant's right to privacy. For the reasons set forth below, the court grants Defendant's motion.

     III.  Whether Count II should be dismissed, which alleges illegal delivery of an alcoholic beverage, because 1) the State does not allege a mental state element of that crime; and 2) the manner in which the State has enforced the delivery statute violates the Defendant's equal protection guarantees pursuant to Article IV of the FSM Constitution and Article II of the Yap Constitution. As set forth below, the court denies Defendant's motion to dismiss with respect to these issues.
     Lastly, the issue presented in CR 1994-257 is:

     Whether the court should suppress the written statement of the Defendant where Defendant, at Officer Barry's request, signed a blank piece of paper onto which the statement taken by hand by Officer Barry was later transcribed by Officer Barry, and where the original handwritten statement was not preserved. For the reasons set forth below, this motion is granted.

     I.  The 9-6-94 and 10-25-94 statements should be suppressed.
     The issue of the suppression of these statements rests upon the court's determinations of fact, since the law under Miranda is it applies to this case is clear. With respect to the 9-6 statement, the State conceded at the evidentiary hearing that Defendant had not been Mirandized at the time of the statement. Hence, the court grants the motion to suppress the 9-6-94 statement.

     Regarding the 10-25, statement the court acknowledges that the tape recorded record of the evidentiary hearing contains conflicting testimony, and it serves little purpose for the court to explore here in detail where those specific conflicts lie. It is however the duty of this court to resolve those conflicts, and in reaching a resolution in favor of the Defendant, the court is swayed by the principles reemphasized in Johnson v. Zerbst, 82 L ed 1461 (1938) citing, respectively, Aetna Ins. Co. v. Kennedy, 81 L ed 1177 (1937) at 1180 and Ohio Bell Telephone Co. v. Public Utilities Commission, 81 Led 1093 (1937) at 1103 that . . courts indulge every reasonable

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presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights."' Accordingly, the court grants the Defendant's motion to suppress the 10-25-94 statement of the Defendant.

     II.  The motion to dismiss Count I of the 1994-256 Information is granted.
     The court grants this motion of the Defendant on the basis of this court's recent Memorandum Decision dated March 3, 1995, in State v. Googdow, Cr. No. 1994-308, which found 11 YSC 808, which prohibits the mere possession of alcohol, to be violative of the Yap State Constitution because that statutory section treads impermissibly upon Yap custom and tradition. Since Count I of the information alleges a violation of an unconstitutional statute, the court grants Defendant's motion.

     III.  The court denies Defendant's motion to dismiss Count II of the 1994-256 Information.
     A.  Defendant's contention that the Yap illegal delivery statute, 30 YSC 405, does not state a crime and does not provide sufficient notice centers around that the fact that the Information does not allege a mental state. Morissette v. United States, 96 L ed 288 at 296 et seq (1952), discusses at length mental state a a necessary element of a crime, and based on Morissette, no allegation of mental state is necessary with respect to Count II of the 1994-256 Information.

     The distinction that Morissette draws is between codified common law crimes, and non common law, statutory offenses. Because an allegation of mental state was necessary for common law crimes, the court found that when those crimes are codified, one of the necessary elements of the crime is a mental state allegation.

Morissette contains a discussion of the genesis of non common law crimes, of which the Yap delivery statute is an example. The court, writing in 1952 in a style that bears reading for its own sake, notes that

[there is a] century-old but accelerating tendency, discernible both here in England, to call into existence

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new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of, came to subject the wayfarer to intolerable casualty risks if owners and dere not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called "public welfare offenses." These cases do not fit neatly into any such accepted classifications of common-law offenses; such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the commons law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the

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violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties, commonly are relatively small, and conviction, does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statues and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime.

96 L ed at 295-297. The statute at issue falls squarely within the parameters outlined by the Morissette court. The delivery statute is intended to prevent alcohol from coming into the hands of unqualified persons. The Morissette court went on to note. that:

the pilot of the movement in this country [to enact crimes of a regulatory nature] appears to be a holding that a tavern keeper could be convicted for selling liquor to an habitual drunkard even if he did not know the buyer to be such. Barnes v. State, 19 Conn 398 (1849).

96 L ed at 297. The archaically named sale to a drunkard statute referenced in Morissette is closely analogous to the delivery statute at issue herein.

     Another way to analyze the intent issue raised by the Defendant, and which the Morissette court touches upon, is in terms of malum in se (intrinsically evil) and malum prohibitum (prohibited only because proscribed for public policy purposes). If a crime is malum in se, like stealing, then it is thought to be fair to convict only if the perpetrator intended to wrongfully deprive another of his property, since the perpetrator was actually guilty of the crime only if he had a guilty hand guided by a guilty mind. In Morissette, the defendant in good faith had taken certain shell casings from a military firing range and had thought that the casings had been abandoned by the military. He was subsequently prosecuted under a federal conversion statute. However, because conversion is a malum in se crime, the court did not feel it was fair to convict the defendant absent a showing that he intended, to convert the property. This is in contradistinction to the crime at issue, which is a malum prohibitum crime. Because the purpose of the Yap delivery statue is to prevent delivery of alcohol to persons without a drinking

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permit or who are under 21 the statute necessarily imposes a duty on the deliverer to take the precautions necessary to insure that he does not deliver to an unqualified person. The conduct that is sought to be prohibited is not some conduct that is morally reprehensible in the abstract, but rather conduct that although morally neutral on its face, is considered to have a deleterious effect on the public. Therefore, it is fair to convict even in the absence of intent on the part of the deliverer because it is valid to send the message that the deliverer delivers at his peril if he fails to insure that the deliveree is qualified.

     B.  Defendant also argues that the manner in which the Yap delivery statute is enforced violates equal protection, and alleges that while others in Gagil gave beer and vodka to men and boys who did not possess drinking permits, he alone is or has been subject to prosecution. Defendant cites Wick Yo v. Hopkins, 30 L ed 220, but the facts of that case are materially different from the facts of the case at bar. In Wick Yo, the city of San Francisco had passed an ordinance requiring operators of laundries to obtain the consent of the board of supervisors in order to operate their businesses. More than 150 Chinese laundry owners were arrested for failing to obtain the consent, while approximately 80 non Chinese were not arrested. As a result, the non Chinese were enjoying a virtual monopoly of the laundry business. The court noted:

The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified. The discrimination is therefore illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution.

30 L.ed. at 228, Defendant has made no showing that he has been the subject of the kind of discrimination as set forth in Wick Yo: he has simply stated that others were selling and giving alcohol to unqualified persons.

     Defendant's position does not take into account that a prosecutor has wide discretion in prosecuting a case:

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[I]f a prosecutor has possible cause to believe that the accused committed an offense denied by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, rests entirely in his discretion. In other words, the duty to prosecute is not absolute, but qualified, requiring of the prosecuting attorney only the exercise of a sound discretion, which permits him to refrain from prosecuting whenever he, in good faith and without corrupt motives or influences, thinks that a prosecution would not serve the best inters of the state, or that, under he circumstances, a conviction could not be had, or that the quilt of the accused is doubtful or not capable of adequate proof.

63A Am Jur 2d, Prosecuting Attorneys, sec 24. The fact that all conceivable cases are not prosecuted does not mean, a fortiori, that Defendant has been the subject of discrimination.

     For these reasons, the Defendant's motion to dismiss Count II of the 1994-256 Information is denied.

     IV.  The written statement taken by Officer Barry on 7-22-94 should be suppressed.
     The uncontradicted testimony regarding the circumstances of the taking of the 7-22-94 written statement of the Defendant, which is the subject of Defendant's motion to suppress dated 12-13-94 in the 1994-257 case, is that officer Barry initially wrote out Defendant's statement by hand and then had the Defendant sign that handwritten statement. At the same time, Officer Barry had the Defendant sign a blank piece of paper so that he could later type the content of the handwritten statement onto the blank sheet. This was apparently done for purposes of convenience so that Officer Barry would not have to go back to the Defendant and have him sign the typed statement. Officer Barry did not  preserve the handwritten statement

     Of concern to the court is that in a strict sense the typed statement of the Defendant is not a statement at all, but a transcription of the actual statement, which was taken at a time and place different from the time and place of the transcription. Moreover, the handwritten statement was not preserved for later verification of the transcription.

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     The court is of the view that the procedure used by the State in obtaining the typed statement of the Defendant in this case is sufficiently fraught with the potential for abuse and inaccuracy that the statement should not be admitted into evidence. The court notes the initial appearance of impropriety that attached when the officer asked the Defendant to sign a blank piece of paper. Any criminal Defendant, or for that matter any reasonably careful person, is going to view a request to sign a blank piece of paper with some suspicion where he has the knowledge that something is going to be written above that signature. There may be circumstances where an atmosphere of sufficient trust and confidence between parties prevails so that a thinking person might intelligently decide to sign such page in blank. However, the taking of a statement of a criminal defendant by a police officer under circumstances where the defendant is in custody is not such a context. A contrary state of affairs is going to be the case in such a setting, which is inherently adversarial.

     Of further concern is the potential for inaccuracy. As of the time that the Defendant signed the blank sheet of paper, whatever was going to be typed on that sheet became, even before it sprang into existence, the ostensible statement of the Defendant, regardless of any errors made by the transcriber, whether substantive or not. In the event, that inaccuracies of substance, occur in the transcription, those mistakes will only come to light if at some later time the Defendant, his attorney or trial counselor, the court, or some person who fortuitously concerns himself or herself with the interests of the Defendant, becomes aware of the error and then undertakes the initiative to inquire into the circumstances of the creation of the error. What all parties to the proceeding are then left with is a key document in a criminal prosecution that is suspect. The parties are required to go beyond the four corners of this important document and rely on parole evidence to ascertain the actual meaning. Competing versions of who said what to whom and where amounts to what we describe in Yapese as a mathuk thuk. The bottom line is that this key document ends up having to be amended in some awkward fashion, or must become the subject of a time consuming evidentiary hearing, in order for all parties to know what its true meaning is.

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     All of this gives rise to a state of affairs that, in the opinion of the court, is unnecessary. It means that where a question arises as to the accuracy of the document, significant court resources, as well as the time and energy of the prosecutor and defense counsel, are going to be spent in the needless wheel spinning of determining what the Defendant meant to say. Even the simple expedient of preserving the handwritten statement actually signed by the Defendant after the Defendant reviewed it, assuming that that statement is legible, would prevent this scenario from developing. The court underscores the fact, however, that this curative measure does not at all impact on the court's concern about the fact that the officer asked the criminal defendant to sign the blank sheet in the first instance. Such a statement, in the eyes of the court, will always be suspect on its face.

     In reaching its decision, the court has balanced the potential for abuse where a statement is taken under the circumstances presented in this case against the slight effort necessary on the part of the State to prevent these potential problems. The state may either preserve and rely on the handwritten statement which has been reviewed and approved by the Defendant before he signs it, or alternatively the State may take the additional step of presenting the typed statement to the Defendant for his review and approval before signing. The court takes specific note that at the evidentiary hearing in this matter, testimony was adduced that the Defendant's statement was taken at approximately 10:25 a.m., and that Defendant was not released until approximately 3 p.m., and this should have provided more than ample time for the typing of the statement and its submission to the Defendant for his review and signature. Regardless of which alternative the State may opt for, the court is of the opinion that having a criminal Defendant sign a blank sheet of paper for any purpose is a practice which needs to be consigned safely to the past: to the extent it ever had any, the practice has outlived its usefulness.
     In summary, the court notes that the ruling with respect to the admissibility of the typed transcription is limited to the facts of this case, where the original handwritten statement signed by the Defendant was not preserved and where the statement was later transcribed onto a blank sheet signed in advance by the Defendant where the Defendant neither reviewed nor approved the content of the later transcription.

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     For these reasons, the court grants the motion of the Defendant to suppress the typed transcription of the Defendant's original statement.

     In light of the foregoing, IT IS ORDERED that:
     1)  The statements of the Defendant made on September 6, 1994, and October 25, 1994, are suppressed;

     2)  Count I of the 1994-256 Information is dismissed;

     3)  Defendant's motion to dismiss Count II of the 1994-256 Information is denied; and

     4)  Defendant's written transcription of Defendant's statement made on July 22, 1994, is suppressed.
     SO ORDERED this 17TH day of March, 1995.

                                        JOHN THARNGAN, TEMPORARY

Filed this 21st day of March, 1995.

Clerk of Court, Yap
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