KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Phillip, 14 FSM Intrm. 42 (Kos. S. Ct. Tr. 2006)
STATE OF KOSRAE,
Plaintiff,
vs.
WICKLON PHILLIP,
Defendant.
CRIMINAL CASE NO. 123-04
JUDGMENT OF CONVICTION; SENTENCING ORDER;
SUPPLEMENTAL SENTENCING ORDER
Yosiwo P. George
Chief Justice
Trial: October 12, 2005
Decided: January 16, 2006
Entered: January 18, 2006
APPEARANCES:
For the Plaintiff: Paliknoa Welly, State Prosecutor
Office of the Kosrae Attorney General
P.O. Box 870
Lelu, Kosrae FM 96944
For the Defendant: Harry A. Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Lelu, Kosrae FM 96944
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The offense of driving under the influence requires proof of two elements: driving a vehicle, and
being under the influence of alcoholic drink, controlled substance or other intoxicating substance. Kosrae v. Phillip, 14 FSM Intrm. 42, 46 (Kos. S. Ct. Tr. 2006).
The United States National Highway Traffic Safety Administration findings, reports, standards, methods and statements do not constitute the law of the FSM or Kosrae, and are not binding upon the Kosrae State Court. Kosrae v. Phillip, 14 FSM Intrm. 42, 46, 47 (Kos. S. Ct. Tr. 2006).
When evidence was presented regarding the field sobriety tests administered to the defendant, coupled with the evidence regarding the smell of alcohol upon defendant's breath, defendant's red eyes, the presence of open and closed beer cans in the passenger compartment of defendant's vehicle, defendant’s actions in driving the vehicle at a high speed more than twice the statutory speed limit, defendant's vehicle weaving in the road and crossing the center line, and defendant's refusal to stop the vehicle after being signaled by the police officer, the state has presented evidence beyond a reasonable doubt that the defendant was impaired and driving under the influence of alcoholic drinks even without consideration of the evidence of the defendant's performance of the one-legged stand field sobriety test. Kosrae v. Phillip, 14 FSM Intrm. 42, 47 (Kos. S. Ct. Tr. 2006).
The offense of driving under the influence requires driving under the influence of an alcoholic drink, controlled substance or any other intoxicating substance: it does not require the presence of any specific blood alcohol percentage. A specific blood alcohol percentage is not an element of the offense of driving under the influence. Kosrae v. Phillip, 14 FSM Intrm. 42, 47 (Kos. S. Ct. Tr. 2006).
The offense of unauthorized consuming, possessing or giving of alcoholic drink requires proof of consuming or possessing alcoholic drink without being in actual possession of a valid drinking permit. Kosrae v. Phillip, 14 FSM Intrm. 42, 48 (Kos. S. Ct. Tr. 2006).
The offense of unauthorized consuming, possessing or giving of alcoholic drink is not inclusive of, or a lesser included offense of driving under the influence because the two offenses are committed with completely different actions and do not share even one common element. The offense of unauthorized consuming, possessing or giving of alcoholic drink does not require any involvement of a vehicle, whereas the offense of driving under the influence does not require possession of a alcoholic drink or non-possession of a valid drinking permit. Also, both offenses are classified as category one misdemeanors: neither offense is a classified as lesser than the other. Kosrae v. Phillip, 14 FSM Intrm. 42, 48 (Kos. S. Ct. Tr. 2006).
Rule 16(a) provides that if the defendant requests disclosure of evidence from the state, then following such disclosure by the state, the defendant upon the state's request, must comply with the state’s request for disclosure. Rule 16(b)(1) specifies the type of disclosures which may be requested by the state, and then be provided by the defendant. The government can ask, and the defendant must provide, the nature of any defense which a criminal defendant intends to use at trial and the name and address of any person whom he intends to call in support thereof. Kosrae v. Phillip, 14 FSM Intrm. 42, 49 (Kos. S. Ct. Tr. 2006).
If additional evidence that has been requested, or witnesses, or defenses, which are subject to
discovery, are discovered before or during trial, that party must promptly notify the other party, its counsel or the court of its existence. Kosrae v. Phillip, 14 FSM Intrm. 42, 49 (Kos. S. Ct. Tr. 2006).
Pursuant to Kosrae General Court Order 2005-2, responses to request for discovery pursuant to sections (a) and (b) of Rule 16 must be served upon the requesting party within ten days of service of the request for discovery. Kosrae v. Phillip, 14 FSM Intrm. 42, 49 (Kos. S. Ct. Tr. 2006).
When it has been brought to the court's attention that a party has failed to comply with Rule 16, the court may order that party to permit the discovery, permit a continuance, prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. Kosrae v. Phillip, 14 FSM Intrm. 42, 49 (Kos. S. Ct. Tr. 2006).
When the state's reciprocal request for discovery was filed in January 2005, ten months prior to trial and GCO 2005-2, which specified the ten day response period, was adopted in July 2005 and effective immediately, but the state waited until the trial date, in October 2005, to inform the court of the defendant's non-compliance with Rule 16, the state's report was untimely and trial was held. Kosrae v. Phillip, 14 FSM Intrm. 42, 49 (Kos. S. Ct. Tr. 2006).
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YOSIWO P. GEORGE, Chief Justice:
This matter was called for trial on October 12, 2005. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. Kiobu Luey, testified on behalf of the State.
The Defendant was tried upon the three Counts set forth in the Information: Driving Under the Influence, in violation of Kosrae State Code, Section 13.710 and Unauthorized consuming, possessing or giving of alcoholic drink, in violation of Kosrae State Code, Section 13.517(2) and Unauthorized operation of a motor vehicle, in violation of Kosrae State Code, Section 13.702. After the trial, I took the matter under advisement.
I read my decision in open court on January 16, 2006. Prosecutor Paliknoa Welly appeared for the State. Defendant was represented by Harry Seymour. Based upon the evidence presented at trial, I found that the Plaintiff had proved beyond a reasonable doubt that the Defendant had committed all three of the charged offenses. This Judgment of Conviction sets forth my findings of facts, reasoning and rulings on motions and issues raised at the trial.
Based upon the evidence presented at the trial, I found the following facts. On or about September 25, 2004, at approximately 6 pm in the evening, the Defendant was driving a cargo truck in Malem Municipality. Police Officers Burdy Talley and Kiobu Luey were on routine patrol driving towards Utwe. At Kuplu, Reverend Hiroshi Ishmael's place, the Police Officers saw the Defendant's vehicle, coming towards them, towards Malem. The vehicle was speeding and weaving on the road, forcing the Police Officers to pull over their vehicle to the side of the road. After the vehicle passed
them, the Police Officers turned around their police vehicle and followed the Defendant. While following the Defendant, the police officers turned on their police lights and honked the horn, to signal the cargo truck to stop. Instead, the Defendant refused to stop and continued to speed, reaching speeds of 65 mph, as indicated by the speedometer of the police vehicle. Eventually the Defendant's vehicle finally came to a stop at Pukensukar, Malem Municipality, because the Defendant's vehicle became overheated.
It was still daylight, and upon approaching the Defendant's cargo truck, the Police Officers saw the Defendant as the driver of the vehicle. The Police Officers smelled alcohol on the Defendant and observed that his eyes were bloodshot. The Police Officers saw both opened and unopened cans of Budweiser beer in the passenger compartment of the truck. One open can of Budweiser was sitting beside the Defendant. From the appearance and smell of the Defendant, and the presence of cans of Budweiser in the truck, the Police Officers concluded that the Defendant had been drinking alcoholic drinks.
Officer Luey asked the Defendant for his driver's license, the Defendant stated that he had it at his house at Molsron. Officer Luey asked Defendant his drinking permit, the Defendant could not produce it. Officer Luey then asked Defendant to step out of the vehicle so that he could administer the Field Sobriety Tests (FSTs) to him. Officer Luey asked about the Defendant's physical condition and if Defendant had any physical impairment or disability in performing the FSTs. Defendant stated that he did not have any physical problems. Defendant was informed that failure of 2 out of 3 FSTs would result in his arrest for "driving under the influence."
Officer Luey then applied two FSTs: the finger to nose test and the one legged stand test. Officer Luey explained and demonstrated the "finger to nose" FST. Defendant verbally acknowledged his understanding of that FST and attempted to perform the finger to nose test. Defendant attempted to perform the test, but was unable to properly perform the test. Defendant failed to touch his nose with his finger. Defendant touched his mouth instead.
Next, Officer Luey explained and demonstrated the "one legged stand" FST, in which Defendant was instructed to stand on one leg and count from 1001 to 1010. After receiving verbal acknowledgment of the Defendant's understanding of that FST, the Defendant attempted to perform the one legged stand. Defendant was unable to complete the one legged stand test. Defendant was unable to stand on one leg and count from 1001 to 1010.
The Police Officers then arrested the Defendant and transported him to the Kosrae Police Station. Defendant was booked and then automatically released on conditions the next day, September 25, 2004, at approximately 2 pm, pursuant to General Court Order 2004-6.
Kiobu Luey, former Police Officer who administered the FSTs to the Defendant, testified about his training in the administration of the FSTs. Luey testified that he had served as a Police Officer for four years, and that during that period of service, he had received training twice in the administration of FSTs. The first training was provided by April Skilling, former Assistant Attorney General. The second training was provided by Tim Fenlon and Donna Wrembeck, Australian Police Officers who provided several trainings for the Kosrae State Police Department. Officer Luey received certificates for completion of the FST training programs. Officer Luey testified that during the training they were instructed on performance of the FSTs, preliminary questions to ask before performance of the FSTs, and assessment of the FSTs performed by a suspect. Failure of two out of three FSTs by a suspect indicated impairment and served as the basis for arrest of a suspect and charging of the offense of driving under the influence. During his tenure as a Police Officer, Kiobu Luey had administered the FSTs more than fifty times.
Officer Luey did not know what blood level alcohol percentage correlated to failure of the FSTs. Officer Luey emphasized that failure to pass the FSTs signified impairment, and not a specific percentage of blood level alcohol.
The Defendant was tried on the three counts provided in the Information: Driving Under the Influence, in violation of Kosrae State Code, Section 13.710 and Unauthorized consuming, possessing or
giving of alcoholic drink, in violation of Kosrae State Code, Section 13.517(2) and Unauthorized operation of a motor vehicle, in violation of Kosrae State Code, Section 13.702.
I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements for all three of the charged criminal offenses.
A. Driving Under the Influence.
The offense of driving under the influence also requires proof of two elements: driving a vehicle, and being under the influence of alcoholic drink, controlled substance or other intoxicating substance. Kos. S.C. § 13.710. The Defendant challenges the use of the FSTs as evidence of impairment and a basis for proof of driving under the influence. Specifically, Defendant argues that the one legged stand did not comply with NHTSA standard therefore it should not be accepted as valid evidence of impairment. Also, Defendant argues that failure of the FSTs did not indicate any specific blood alcohol percentage of Defendant and therefore cannot be used as evidence of driving under the influence.
This Court has previously ruled that the United States National Highway Traffic Safety Administration findings, reports, standards, methods and statements do not constitute the law of the FSM or Kosrae State, and are not binding upon this Court. In its Order Denying Motion for Suppression of Evidence, entered Sept. 22, 2005, this Court determined that the admissibility of the FSTs must be determined at trial, following testimony regarding administration of the FSTs. Specifically this Court must consider evidence of the police officer’s knowledge of the tests, his training and his ability to interpret his observations. [Kosrae v. Phillip, 13 FSM Intrm. 449, 455-56 (Kos. S. Ct. Tr. 2005).]
I have considered the evidence regarding the police officer’s knowledge, training, and interpretation of his observations, in determining whether the evidence of the FSTs are admissible to show impairment of the Defendant. In particular, I considered Kiobu Luey's tenure as a police officer for four year, and trainings that he received on the administration of the FSTs. I considered Officer Luey's training on preliminary questions to ask before performance of the FSTs, and assessment of the FSTs performed by a suspect. I further considered Police Officer Luey's demonstration of the each FST before it was administered and obtaining the Defendant's verbal acknowledge of understanding the instructions for the performance of the FST. With respect to Police Officer Luey's observation of the finger to nose, FST, I considered his observation that the Defendant did not touch his nose, but instead touched his mouth. I conclude that Police Officer Luey's interpretation that the Defendant failed to successfully complete the finger to nose FST according to instructions given was correct, based upon his observation of the Defendant's actions. With respect to Officer Luey's observation of the one leg stand FST, I considered his observation that the Defendant was unable to follow his instructions and stand on one leg, while counting from 1001 to 1010. I conclude that Police Officer Luey's interpretation that the Defendant failed to successfully complete the one leg stand FST according to the instructions given was correct, based upon his observation of the Defendant's actions.
Defendant argues that the one leg stand FST was not administered in compliance with the NHTSA standards, therefore it is invalid and should not be admissible as evidence. This Court has
previously ruled that the NHTSA standards do not constitute law in this State. The NHTSA standards may have been adopted in United States jurisdictions, however the NHTSA standards have not been adopted by this State and are not binding upon this State nor this Court.
Based upon the evidence presented at trial, I conclude that Police Officer Luey received adequate training in the administration and evaluation of the FSTs during his tenure as a Police Officer. Police Officer Luey also had substantial experience in the administration of the FSTs as a Police Officer. Police Officer Luey was competent in the administration of the FSTs in accordance with his training. I conclude that Police
Officer Luey's administration of the two FSTs upon the Defendant were made in substantial compliance with the FST standards established through his training. I further conclude that Officer Luey's observations that the Defendant did not complete both FSTs as instructed were correct.
Based upon the evidence presented regarding the FSTs administered to the Defendant, coupled with the evidence regarding the smell of alcoholic drinks upon Defendant's breath, Defendant's red eyes, the presence of open and closed beer cans in the passenger compartment of Defendant's vehicle, Defendant's actions in driving the vehicle at a high speed more than twice the statutory speed limit, Defendant's vehicle weaving in the road and crossing the center line, and Defendant's refusal to stop the vehicle after being signaled by the Police Officer, I conclude that State has presented evidence beyond a reasonable doubt that Defendant was impaired and driving under the influence of alcoholic drinks. Even without consideration of the evidence of the Defendant's performance of the one legged stand FST, the State has presented evidence beyond a reasonable doubt that Defendant was impaired and driving under the influence of alcoholic drinks.
Defendant argued that the State has not presented evidence that the Defendant blood alcohol percentage was at any specific level. It is undisputed that the State did not sample or test the Defendant's blood, breath or urine for the percentage of alcohol present. The offense of driving under the influence requires driving under the influence of an alcoholic drink, controlled substance or any other intoxicating substance: it does not require the presence of any specific blood alcohol percentage. A specific blood alcohol percentage is not an element of the offense of driving under the influence. Defendant's argument is rejected.
I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements of charged criminal offense: Defendant did drive his vehicle under the influence of alcoholic drinks. I find the Defendant guilty and convict him of the offense of Driving Under the Influence, in violation of Kosrae State Code, Section 13.710.
Defendant argued that Kosrae State Code, Section 13.710 is unconstitutional and that the Field Sobriety Tests are unconstitutionally subjective and vague. Defendant's argument on these issues have already been addressed and rejected in this Court's Order Denying Defendant's Motion for Declaratory Judgment and Dismissal entered on June 21, 2005. Defendant's argument that Kosrae State Code, Section 13.710 is unconstitutional and that the Field Sobriety Tests are unconstitutionally subjective and vague are preserved. This Court's ruling entered on June 21, 2005 remains unchanged and valid. Defendant's argument is rejected.
Defendant argued that the evidence of the Field Sobriety Tests should have been suppressed as the results were obtained illegally without first giving the Defendant notice of his constitutional rights, and that the Field Sobriety Tests was unreliable. Defendant's argument on these issues have already been addressed, and ruled that the evidence is not subject to suppression in this Court's Order Denying Motion for Suppression of Evidence entered on September 22, 2005. [Kosrae v. Phillip, 13 FSM Intrm. 449 (Kos. S. Ct. Tr. 2005).] Defendant's argument that evidence of the FSTs were obtained illegally and should have been suppressed are preserved. This Court's ruling entered on September 22, 2005
remains unchanged and valid. Defendant's argument is rejected.
B. Unauthorized consuming, possessing or giving of alcoholic drink.
After the Defendant stopped his vehicle, former officer Luey approached the Defendant's Vehicle. Luey saw several beer cans in the Defendant’s vehicle. Luey asked for the Defendant's drinking permit. Defendant was unable to produce a valid drinking permit to Luey.
The offense of unauthorized consuming, possessing or giving of alcoholic drink, Kos. S.C. § 13.517(2), requires proof of consuming or possessing alcoholic drink without being in actual possession of a valid drinking permit.
I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements of charged criminal offense: Defendant did possess alcoholic drink without having actual possession of a valid drinking permit. I find the Defendant guilty and convict him of the offense of Unauthorized consuming, possessing or giving of alcoholic drink, in violation of Kosrae State Code, Section 13.517(2).
Defendant argued that the offense of unauthorized consuming, possessing or giving of alcoholic drink should be inclusive of, or a lesser included offense of driving under the influence. An examination of the elements of the two offenses is required to determine whether the offense of unauthorized consuming, possessing or giving of alcoholic drink should be considered a lesser included offense of driving under the influence. The offense of unauthorized consuming, possessing or giving of alcoholic drink requires proof of two elements:
1. consuming or possessing alcoholic drink, and
2. without being in actual possession of a valid drinking permit.
The offense of driving under the influence also requires proof of two elements:
1. driving a vehicle, and
2. being under the influence of alcoholic drink, controlled substance or other intoxicating substance.
The two offenses are committed with completely different actions: they do not share even one common element. The offense of unauthorized consuming, possessing or giving of alcoholic drink does not require any involvement of a vehicle, whereas the offense of driving under the influence does not require possession of a alcoholic drink non possession of a valid drinking permit. Both offenses are committed through unrelated acts, and neither offense is references by the other. See Yinmed v. Yap, 8 FSM Intrm. 95, 101-02 (Yap S. Ct. App. 1997). Furthermore, both offenses are classified as category one misdemeanors: neither offense is a classified as a lesser offense than the other.
Based upon this analysis, I conclude that the offense of unauthorized consuming, possessing or giving of alcoholic drink is not a lesser included offense of the offense of driving under the influence. Defendant’s argument is therefore rejected and conviction on each offense shall be considered separately for sentencing.
C. Unauthorized operation of a motor vehicle.
At the trial, the Defendant admitted to driving his vehicle without having a valid driver's license in his possession. Based upon this admission, I find the Defendant guilty and convict him of the
offense of Unauthorized operation of a motor vehicle, in violation of Kosrae State Code, Section 13.702.
The State informed the Court that the Defendant had failed to respond to the State's discovery request. The Defendant argued that he was not required to provide a response to the State's discovery request. First, Defendant argued that the nature of his defenses have already been submitted through pre-trial motions. Second, Defendant argued that he did not need to provide a list of witnesses if only the defendant was to be listed as a potential witness.
KRCrP Rule 16 governs discovery in criminal proceedings. Rule 16(a) provides that if the Defendant requests disclosure of evidence from the State, then following such disclosure by the State, the Defendant upon request from the State, shall comply with the State's request for disclosure. Rule 16(b)(1) specifies the type of disclosures which may be requested by the State, and then provided by the Defendant. Rule 16(b)(1)(C) provides that: "The defendant, on request of the government, shall state the nature of any defense which he intends to use at trial and the name and address of any person whom the defendant intends to call in support thereof."
Based upon Rule 16, the government can ask the nature of any defense in which a criminal defendant intends to use at trial and the name and address of any person whom the defendant intends to call in support thereof. FSM v Wainit, 11 FSM Intrm. 1, 9 (Chk. 2002). Furthermore, if additional evidence that has been requested, witnesses or defenses, which are subject to discovery, are discovered before or during trial, that party must promptly notify the other party, its counsel or the court of its existence. FSM v Wainit, 11 FSM Intrm 186, 189 (Chk. 2002). The FSM Supreme Court, Criminal Rules of Procedure, Rule 16 is virtually identical to Kosrae State Court KRCrP Rule 16, and this Court adopts the holding and reasoning set forth in the orders entered in FSM v Wainit, infra. Accordingly Defendant's argument is rejected as without merit. Defendant's compliance with Rule 16(b), in writing, is required. Responses to request for discovery pursuant to sections (a) and (b) of KRCrP Rule 16 shall be served upon the requesting party within ten days of service of the request for discovery, pursuant to General Court Order 2005-2.
When it has been brought to the court's attention that a party has failed to comply with Rule 16, the court may order that party to permit the discovery, permit a continuance, prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. FSM v Wainit, 11 FSM Intrm. 186, 190 (Chk. 2002). Here, the State informed the Court of the Defendant's non-compliance with Rule 16 when the matter was called for trial. The State's reciprocal request for discovery was filed in January 2005, ten months prior to trial. GCO 2005-2, which specified the ten day response period, was adopted in July 2005 and effective immediately. Yet the State waited until the trial date, in October 2005, to inform the Court of the Defendant's non-compliance with Rule 16. I concluded that the State’s report was untimely and I ordered the trial to be held.
Defendant is found guilty and convicted on Counts One, Two and Three of the Information.
Prior to imposing the sentence, the Court allowed Counsel for the Defendant to speak on behalf of the Defendants. The Defendant was also provided an opportunity to make a statement in his own
behalf. Counsel for Kosrae State was also given an opportunity to speak to the Court.
Based upon the facts found from the proceeding, in consideration of the nature of the violations, and the Defendant's background and potential, the Court imposes the following sentence upon the Defendant:
1. On Count I, Driving Under the Influence, the Defendant is sentenced to 12 months incarceration, of which 12 months shall be suspended on the condition that Defendant successfully completes 12 months probation. Also on Count I, the Defendant shall also pay a fine of $200, which shall be paid to the Chief Clerk by March 16, 2006.
2. On Count II, Unauthorized consuming, possessing or giving of alcoholic drink, the Defendant is sentenced to 12 months incarceration, of which 12 months shall be suspended on the condition that Defendant successfully completes 12 months probation.
3. On Count III, Unauthorized operation of a motor vehicle, the Defendant is sentenced to 30 days incarceration, of which 30 days shall be suspended on the condition that the Defendant completes 30 days probation.
4. The sentences imposed for Counts I, II and III shall be served concurrently, for a total term of 2 years plus 30 days.
5. Conditions of probation include the following:
a. Defendant shall not violate any national, state or municipal laws or ordinances.
b. Defendant shall not leave the State of Kosrae without prior written permission of the Court.
c. Defendant shall pay the fine imposed by the due date, as specific in paragraph 1.
d. Defendant shall enroll in and complete the substance abuse counseling program, as specified in the Supplemental Sentencing Order.
e. Defendant shall not consume any alcoholic drinks during the entire term of probation.
6. Any violation of the conditions of probation may result in the revocation of probation and the return of the Defendant to jail to be incarcerated for the remainder of his total sentence.
The Court notes that the State, has now departed from its previous stated policy regarding stricter sentencing recommendations made for Defendants who are convicted after trial. While this action is within the discretion of the Office of the Attorney General, such inconsistent and changing policies are not in the interest of justice.
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As part of the sentence imposed given in this case, you are hereby ordered to attend twelve (12) one hour counseling sessions in alcohol/substance abuse with the Kosrae State Department of Health, Mental Health Division. Within two (2) business days of the date of service of this order, you must contact the Division of Mental Health and arrange for your first session. To arrange your first session, telephone Mental Health at 370-2579 or visit the Mental Health Offices at the Kosrae State Hospital in Tofol.
You must then attend and participate in twelve (12) sessions, which will be scheduled by the Mental Health Division. Failure to attend all twelve (12) sessions is a violation of the terms of your
sentence and probation in this case, and will result in the revocation of your suspended sentence. This means that if you fail to attend all twelve (12) sessions, you will again appear before the Court and you could be sentenced to be imprisoned at Kosrae State Jail for all or part of your suspended sentence.
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