Art I Ãâ§8 Cl 1 Common Defence Us Constitution
THE State Court OF YAP
IN THE TRIAL Sectionalization
Cite as Land of Yap v. Raech , (Yap St. 1995)
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THE STATE OF YAP,
Plaintiff,
vs.
JAMES RAECH,
Defendant.
CRIMINAL CASE No. 1994-256 & 257
RULINGS ON MOTIONS OF DEFENDANT
The court is in receipt of the following motions of the Defendant in CR 1994-256, the court has received Defendant's Motility to Suppress Statements and Dismiss Count Two dated Dec 13, 1994; Move 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'due south Motion to Suppress Statements dated Dec 13, 1994. CR 1994-256, although the beginning filed example, 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 Accused in CR 1994-256 are:
I. Whether the statements of the Accused made on September 6, 1994, and October 25, 1994 should exist suppressed. For the reasons set along below, the court grants the motility of the Defendant.
2. Whether the courtroom should dismiss Count I of the Data, which alleges a violation of eleven YSC 808(c)(3), because it violates the
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Defendant's right to privacy. For the reasons set forth beneath, the court grants Defendant's motion.
3. Whether Count Two should be dismissed, which alleges illegal delivery of an alcoholic drinkable, because i) the State does non allege a mental land chemical element of that crime; and ii) the manner in which the State has enforced the delivery statute violates the Defendant's equal protection guarantees pursuant to Article 4 of the FSM Constitution and Article II of the Yap Constitution. Equally gear up 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'due south asking, signed a blank piece of paper onto which the statement taken past hand past Officeholder Barry was afterwards transcribed past Officeholder Barry, and where the original handwritten argument was non preserved. For the reasons set forth below, this motion is granted.
I. The nine-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 police 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 Accused had not been Mirandized at the time of the argument. Hence, the court grants the movement to suppress the ix-6-94 argument.
Regarding the x-25, statement the court acknowledges that the record recorded record of the evidentiary hearing contains alien testimony, and it serves piddling 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 confronting waiver of primal constitutional rights and that we exercise not presume acquiescence in the loss of fundamental rights."' Accordingly, the court grants the Defendant'southward motion to suppress the x-25-94 statement of the Defendant.
II. The motility to dismiss Count I of the 1994-256 Information is granted.
The court grants this move of the Defendant on the ground 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 booze, to exist violative of the Yap State Constitution because that statutory department treads impermissibly upon Yap custom and tradition. Since Count I of the information alleges a violation of an unconstitutional statute, the court grants Defendant'southward motion.
III. The courtroom denies Defendant's motility to dismiss Count Two of the 1994-256 Information.
A. Accused's contention that the Yap illegal delivery statute, xxx YSC 405, does non state a criminal offense and does not provide sufficient notice centers around that the fact that the Data does non allege a mental land. Morissette 5. The states, 96 L ed 288 at 296 et seq (1952), discusses at length mental land a a necessary element of a law-breaking, 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 mutual law crimes, and not mutual law, statutory offenses. Because an allegation of mental state was necessary for mutual constabulary crimes, the court establish that when those crimes are codified, one of the necessary elements of the offense is a mental land 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 hither 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 circuitous mechanisms, driven past freshly discovered sources of energy, requiring higher precautions past employers. Traffic of velocities, volumes and varieties unheard of, came to subject the wayfarer to intolerable prey risks if owners and dere not to notice new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for wellness and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of impairment 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 wellness, safe or welfare.
While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to brand such regulations more than constructive past invoking criminal sanctions to be practical 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 exercise not fit neatly into any such accustomed classifications of mutual-law offenses; such as those against the country, the person, belongings, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the eatables law so frequently dealt, simply are in the nature of neglect where the law requires intendance, or inaction where it imposes a duty. Many violations of such regulations upshot in no direct or immediate injury to person or property but merely create the danger or probability of information technology which the law seeks to minimize. While such offenses practice not threaten the security of the country in the fashion 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, commonly is in a position to prevent it with no more care than order might reasonably expect and no more exertion than it might reasonably verbal from i who causeless his responsibilities. Too, penalties, unremarkably are relatively small, and confidence, does no grave impairment to an offender'south 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 criminal offence.
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 motility in this country [to enact crimes of a regulatory nature] appears to exist 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. Country, xix Conn 398 (1849).
96 L ed at 297. The archaically named auction to a drunkard statute referenced in Morissette is closely analogous to the commitment statute at effect 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 considering proscribed for public policy purposes). If a offense is malum in se, similar stealing, then it is idea to exist fair to convict but if the perpetrator intended to wrongfully deprive another of his property, since the perpetrator was really guilty of the crime only if he had a guilty hand guided past a guilty heed. In Morissette, the accused in good faith had taken certain shell casings from a war machine firing range and had thought that the casings had been abandoned by the war machine. He was subsequently prosecuted under a federal conversion statute. However, because conversion is a malum in se law-breaking, the court did non feel it was fair to captive the defendant absent-minded a showing that he intended, to catechumen the property. This is in contradistinction to the offense at consequence, which is a malum prohibitum law-breaking. Because the purpose of the Yap commitment statue is to preclude 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 exist prohibited is not some conduct that is morally reprehensible in the abstract, just rather behave that although morally neutral on its face up, is considered to have a deleterious effect on the public. Therefore, it is fair to convict fifty-fifty in the absenteeism of intent on the part of the deliverer because it is valid to send the bulletin 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. Accused cites Wick Yo five. 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 lath 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. Every bit a result, the non Chinese were enjoying a virtual monopoly of the laundry business concern. The courtroom noted:
The fact of this discrimination is admitted. No reason for it is shown, and the determination cannot be resisted, that no reason for information technology 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 information technology is a denial of the equal protection of the laws and a violation of the Fourteenth Subpoena of the Constitution.
30 50.ed. at 228, Defendant has made no showing that he has been the subject of the kind of discrimination every bit set forth in Wick Yo: he has merely stated that others were selling and giving booze to unqualified persons.
Defendant's position does not have into account that a prosecutor has broad discretion in prosecuting a case:
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[I]f a prosecutor has possible crusade to believe that the defendant committed an offense denied by statute, the decision whether or not to prosecute, and what charge to file or bring before a thousand jury, rests entirely in his discretion. In other words, the duty to prosecute is not absolute, but qualified, requiring of the prosecuting chaser only the exercise of a sound discretion, which permits him to refrain from prosecuting whenever he, in good organized religion and without corrupt motives or influences, thinks that a prosecution would not serve the best inters of the state, or that, nether he circumstances, a conviction could not be had, or that the quilt of the defendant is doubtful or not capable of adequate proof.
63A Am Jur 2d, Prosecuting Attorneys, sec 24. The fact that all conceivable cases are non prosecuted does not mean, a fortiori, that Defendant has been the subject area of discrimination.
For these reasons, the Defendant'due south motion to dismiss Count II of the 1994-256 Data 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 field of Accused's motion to suppress dated 12-13-94 in the 1994-257 example, is that officer Barry initially wrote out Defendant's statement past hand and then had the Defendant sign that handwritten argument. At the same time, Officer Barry had the Defendant sign a bare piece of paper so that he could after type the content of the handwritten statement onto the blank sheet. This was apparently done for purposes of convenience so that Officeholder Barry would non take to go back to the Accused 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, only a transcription of the actual statement, which was taken at a time and identify different from the time and place of the transcription. Moreover, the handwritten statement was not preserved for later on verification of the transcription.
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The court is of the view that the procedure used past the Country in obtaining the typed statement of the Accused in this example is sufficiently fraught with the potential for corruption and inaccuracy that the statement should not exist admitted into bear witness. The court notes the initial appearance of impropriety that fastened when the officeholder asked the Defendant to sign a blank piece of paper. Whatsoever criminal Defendant, or for that affair any reasonably conscientious person, is going to view a request to sign a blank piece of newspaper 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 make up one's mind to sign such page in blank. Still, the taking of a statement of a criminal defendant by a police force officeholder under circumstances where the defendant is in custody is not such a context. A contrary situation is going to exist 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 canvas of newspaper, whatsoever was going to be typed on that sheet became, even earlier it sprang into existence, the ostensible argument of the Accused, regardless of any errors made by the transcriber, whether substantive or non. In the effect, that inaccuracies of substance, occur in the transcription, those mistakes will only come to light if at some after time the Accused, 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 and then undertakes the initiative to enquire into the circumstances of the cosmos of the error. What all parties to the proceeding are so left with is a primal document in a criminal prosecution that is suspect. The parties are required to go beyond the iv corners of this important certificate and rely on parole evidence to ascertain the actual meaning. Competing versions of who said what to whom and where amounts to what we draw 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 stance of the court, is unnecessary. Information technology 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 cycle spinning of determining what the Defendant meant to say. Even the elementary expedient of preserving the handwritten argument actually signed by the Defendant afterwards the Defendant reviewed information technology, assuming that that statement is legible, would foreclose this scenario from developing. The court underscores the fact, however, that this curative measure out does non at all touch on the court's concern about the fact that the officeholder asked the criminal defendant to sign the blank sheet in the kickoff instance. Such a statement, in the eyes of the courtroom, volition always be doubtable on its confront.
In reaching its conclusion, the courtroom has counterbalanced the potential for abuse where a argument is taken under the circumstances presented in this instance confronting the slight effort necessary on the function of the Land to prevent these potential problems. The land may either preserve and rely on the handwritten argument which has been reviewed and approved by the Defendant before he signs it, or alternatively the Land may take the additional step of presenting the typed statement to the Accused for his review and approving before signing. The court takes specific note that at the evidentiary hearing in this matter, testimony was adduced that the Defendant'due south statement was taken at approximately 10:25 a.one thousand., 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 Accused for his review and signature. Regardless of which alternative the Country may opt for, the court is of the opinion that having a criminal Defendant sign a blank sheet of paper for whatever purpose is a practise which needs to be consigned safely to the past: to the extent it always had whatever, 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 subsequently transcribed onto a blank sheet signed in advance past the Defendant where the Accused neither reviewed nor canonical the content of the subsequently transcription.
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For these reasons, the court grants the motion of the Defendant to suppress the typed transcription of the Accused's original argument.
In light of the foregoing, IT IS ORDERED that:
1) The statements of the Defendant made on September six, 1994, and October 25, 1994, are suppressed;
2) Count I of the 1994-256 Information is dismissed;
3) Defendant's motion to dismiss Count 2 of the 1994-256 Information is denied; and
4) Accused's written transcription of Defendant's statement made on July 22, 1994, is suppressed.
SO ORDERED this 17TH twenty-four hours of March, 1995.
/s/
JOHN THARNGAN, TEMPORARY
JUSTICE
Filed this 21st day of March, 1995.
/s/
Clerk of Court, Yap
Source: http://www.fsmlaw.org/yap/decisions/cr_256_257.htm