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HEADNOTES

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on the defendant's Motion for Dismissal of Count I and Count II, filed February 24, 2012; the prosecution's Opposition to Defendant's Motion for Dismissal of Count I and Count II, filed March 12, 2012; and the defendant's Response to Plaintiff's Opposition to Defendant's Motion for Dismissal of Count I and Count II and Motion in Support of Motion for Dismissal, filed March 16, 2012. The motion's resolution is deferred until trial on the merits. The court's reasons follow.

I.

Defendant Hardy Semwen moves to dismiss the information's Counts I and II, both of which charge Semwen with using a loaded long rifle in the aid of the commission of another offense, the shooting of two different persons. Semwen contends that both shootings, which were part of the same incident, were in self-defense - that he was protecting his home from unwelcome visitors and protecting his wife and daughter from further injury; that he used only the amount of force reasonably necessary to defend against an imminent threat; that the use of force was justified; and that he was provoked.

The prosecution contends that these are not defenses that Semwen can raise by a pretrial motion to dismiss because the defenses are factual ones that cannot be determined without trial on the general issue of the offenses charged. Semwen responds that, since the plaintiff filed its opposition out of time, the court should consider Semwen's motion to dismiss as unopposed and therefore grant the dismissals he requests.

Regardless of whether a motion is unopposed and thus deemed consented to, the court must still evaluate the motion's merits and can only grant it if there are good grounds for it. FSM v. Suzuki

[18 FSM R. 225]

, 17 FSM Intrm. 114, 115 (Chk. 2010); FSM v. Kansou, 15 FSM Intrm. 373, 378 (Chk. 2007); FSM v. Moses, 12 FSM Intrm. 509, 511 (Chk. 2004); FSM v. Wainit, 12 FSM Intrm. 376, 379 (Chk. 2004).

II.

Pretrial motions are governed by Criminal Procedure Rule 12. Under that rule, "[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion." FSM Crim. R. 12(b). Certain motions must be raised before trial, id., or they are deemed waived, FSM Crim. R. 12(f). Semwen's defense is not one of those.

"A pretrial motion is generally 'capable of determination' before trial if it involves questions of law rather than fact." United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986). "A defense is thus 'capable of determination' if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense." United States v. Covington, 395 U.S. 57, 60, 89 S. Ct. 1559, 1561, 23 L. Ed. 2d 94, 99 (1969).¹ "As a general matter, the question of whether or not a particular defense may be raised by means of a Rule 12(b) motion turns on whether or not that defense may be decided solely on issues of law." United States v. Tallant, 407 F. Supp. 878, 885 (N.D. Ga. 1975).

Under Rule 12(e), the court must decide a pretrial motion before trial "unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue . . . ." FSM Crim. R. 12(e). "Good cause for deferral exists only if facts at trial will be relevant to the court's decision." United States v. Adkinson, 135 F.3d 1363, 1369 n.11 (11th Cir. 1998). The trial court "must rule on any issue entirely segregable from the evidence to be presented at trial, but may in its discretion defer a ruling on any motion that requires trial of any nontrivial part of 'the general issue'-that is, presentation of any significant quantity of evidence relevant to the question of guilt or innocence-on the ground that it requires trial of the general issue for purposes of 12(b)." United States v. Barletta, 644 F.2d 50, 58 (1st Cir. 1981) (emphasis in original).

Previously, the court has ruled that a pretrial motion cannot use the statutorily-defined defense of duress, 11 F.S.M.C. 301A(5), to dismiss an information, since duress is a defense that must be determined at trial. FSM v. Sam, 14 FSM Intrm. 328, 334-35 (Chk. 2006); FSM v. Wainit, 13 FSM Intrm. 433, 447 (Chk. 2005). Self-defense is similar in that it also is a factual defense that must be determined at trial.

"Most defenses, such as self-defense, insanity, and entrapment require factual determinations" that make pretrial disposition "inappropriate." United States v. Smith, 866 F.2d 1092, 1096 n.5 (9th Cir. 1989). "A motion to dismiss is not the proper way to raise a [factual] defense," United States v. Snyder, 428 F.2d 520, 521 (9th Cir.), cert. denied, 400 U.S. 903 (1970)), because "[i]f the pretrial claim is 'substantially founded upon and intertwined with' evidence concerning the alleged offense, the motion . . . must be deferred" because it falls within the province of the factfinder at trial, Shortt Accountancy Corp., 785 F.2d at 1452 (quoting United States v. Williams, 644 F.2d 950, 952-53 (2d

[18 FSM R. 226]

Cir. 1981)).

III.

Semwen's claim of self-defense is a factual defense substantially founded upon and intertwined with evidence about the alleged offenses that requires trial of the general issue of Semwen's guilt or innocence and that cannot be decided solely on issues of law. Accordingly, the resolution of his motion to dismiss counts I and II is deferred until trial. A date will be set to take Semwen's plea to the charges and, if a not guilty plea is entered, trial on the merits will start shortly thereafter.

Footnotes:

¹ The court must first look to FSM sources of law to establish legal requirements in criminal cases rather than begin with a review of other courts' cases, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), but when an FSM court has not previously construed an FSM criminal procedure rule drawn from a similar U.S. rule, the court may look to U.S. sources for guidance in construing the rule. See, e.g., Zhang Xiaohui v. FSM, 15 FSM Intrm. 162, 167 n.3 (App. 2007); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984). The court has not previously construed certain aspects of Criminal Procedure Rule 12 that are implicated by Semwen's motion.