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HEADNOTES

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. BACKGROUND

On June 18, 2012, the Petitioner Merlito Anzures filed an Application for a Writ of Habeas Corpus.¹ The Petitioner Anzures is from the Republic of the Philippines and employed by Black Micro Corp. He has been confined in the Kosrae State Jail from on or about March 12, 2012 based upon a four count criminal information. The Kosrae State Court has set cash bail for the Petitioner at $50,000. The Petitioner asserts that he is a construction worker and has no capacity to make bail.

The Petitioner is represented by Fredrick L. Ramp, Esq. of Ramp & Mida Law Firm. The Respondents Edmond Salik, Licies Nithan, and Joelly Joel are the Chief of Police and those with supervisory capacities over the Kosrae State Jail, respectively. The Respondents are represented by the Attorney General for the State of Kosrae (Kosrae), Cindy Haro, Esq. The Kosrae Assistant Attorney General Jeffrey S. Tilfas also appeared.

On June 19, 2012, a Scheduling Conference was held and an expedited schedule set for Kosrae to file a response and to set an order to show cause hearing on the application for the writ on June 22, 2012.

On June 21, 2012, Kosrae filed a Response to Application for a Writ of Habeas Corpus and a Motion for Admission Pro Hac Vice for the appearance of Assistant Attorney General Tilfas. On June 22, 2012, an order to show cause hearing was held for the Respondents Salik, Nithan, and Joel to show cause why the petition should not be granted.²

[18 FSM R. 319]

At the hearing, the court stated that the Motion for Admission Pro Hac Vice was not complete and the court would expect a further supplemental filing on the motion. For this hearing only, the court would allow Tilfas to appear. The Petitioner did not oppose the limited appearance of Tilfas for this hearing.

The Petitioner Anzures and the Respondents Salik, Nithan, and Joel appeared personally at the June 22, 2012 order to show cause hearing.

II. CRIMINAL CHARGES AND PROBABLE CAUSE FINDING

The State of Kosrae filed an Amended Criminal Information against Anzures on April 5, 2012 in State of Kosrae v. Merlito Anzures, Crim. Case No. 27-12. The amended information alleges the following: in Count One, the violation of Title 13, section 13.305 of the Kosrae State Code for Involuntary Manslaughter;³ in Count Two, the violation of Kos. S.C. § 13.303 for Assault and Battery;⁴ in Count Three, the violation of Kos. S.C. § 13.708 for Negligent Driving;⁵ and in Count Four, the violation of Kos. S.C. § 13.709 for Reckless Driving.⁶

On March 12, 2012 an Affidavit of Probable Cause and an Arrest Warrant were issued. On March 27, 2012, the Defendant Anzures filed a Motion to Quash Arrest Warrant and Release

[18 FSM R. 320]

Defendant. On April 11, 2012, a hearing was held on a number of motions made by Anzures.⁷ The two primary motions were related to the issue of probable cause and were the motions to quash the arrest warrant and request for a preliminary hearing. Following the hearing, the Kosrae State Court trial judge issued a Finding of Probable Cause Order Denying Dismissal Order Setting Trial.

In the court's order finding probable cause, it stated:

One witness testified, Police Detective, Randy Laborete. This witness testified, based on his investigation, he has reasons to believe defendant committed the crimes alleged. Defense counsel after a brief examination of some photo exhibits, with the witness, moved into evidence photo exhibits "A", "B", "C", and "D", for purposes of this preliminary examination.

Based upon the evidence presented during this preliminary examination, I found that the State presented probable cause to believe offenses alleged in the information occurred, and that the defendant may be involved.

III. CONTENTIONS OF PETITIONER AND RESPONDENTS

A. Petitioner's Contentions

The contention of the Petitioner Anzures is that he is being incarcerated without probable cause. Probable cause is a constitutional requirement for a warrant. FSM Const. art. IV, § 5.⁸ A writ of habeas corpus may be used in situations involving an individual incarcerated without probable cause. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588 (Pon. 1994); 39 AM. JUR. 2D Habeas Corpus § 38 (1968).

The Petitioner asserts that the affidavit of probable cause executed by Detective Laborete on March 12, 2012, as well as the evidence presented and the conclusions reached from that evidence were defective and deficient, and that this forms the basis for his application for habeas corpus. The Petitioner asserts that the requisite intent cannot be found under the evidence before the trial court judge.

The Petitioner also opposed the following: the trial court judge's use of an analogy of having run over a coconut and it jumping off to the side, Transcript of April 11, 2012 Proceeding at 50, lines 9 to 17; the judge's conclusion that there might be regulations governing drivers that might have requirements related to the driver's conduct in this accident, though none had been presented, Transcript of April 11, 2012 Proceeding at 50, lines 17 to 22 and at 51, lines 1 to 16; the judge's conclusion "that might be what happen, just might be . . . ." Transcript of April 11, 2012 Proceeding

[18 FSM R. 321]

at 51, lines 15 to 16; and the judge's finding that the "Witness also testified defendant admitted committing the crimes alleged."

The Petitioner partially justified bringing this matter in this court due to their being only one full-time judge on the Kosrae State Court. That judge had already issued the arrest warrant, conducted the preliminary hearing, found probable cause, and had set bail.

B. Respondent's Contentions

The Respondents contend that this court should not interfere where the Kosrae State Court's remedies have not been exhausted. The Respondents pointed out that a writ of habeas corpus had been granted by the Kosrae State Court in the earlier case of Kosrae State v. Mark Lonno, Crim. Case No. 63-93 (Kos. 1993), and thus was a remedy available to the Petitioner in the state court.⁹

The Respondents argued that 4 F.S.M.C. 117 and 6 F.S.M.C. 1503 do not authorize this court to use this extraordinary remedy where the state court has not been given the opportunity to address the issue and where other remedies exist. The Respondents stated that this is consistent with the general concept that whenever a court has acquired jurisdiction of a matter, no other court may, on habeas corpus, interfere with its action. The underlying reason for this is that the FSM Supreme Court should be reluctant, even where it has jurisdiction, to issue habeas corpus relief that will interfere with the criminal proceedings in a state court and should confine issuance of habeas corpus relief only to cases of great urgency. 39 AM. JUR. 2D Habeas Corpus § 107 (1968).

The Respondents also mentioned other available remedies, such as the posting of the bond to end Petitioner's detention. They pointed out that the Petitioner has not exhausted all of the remedies available to him and has not argued or pled that the amount of bail is unreasonable or excessive given the seriousness of the charges and the risk of flight that was considered by the state court judge. 39 AM. JUR. 2D Habeas Corpus § 5 (1968).

The Respondents' position is that this court should not interfere with this pending Kosrae State Court criminal matter through the use of the extraordinary writ of habeas corpus where the defendant has chosen not to post bail or to challenge the reasonableness of that bail in the state court. The court considers these arguments as in support of this court's abstention in this matter and dismissal of the Petitioners application for a writ of habeas corpus.

IV. ANALYSIS OF THRESHOLD ISSUES

This court has inherent constitutional power to issue all writs. 4 F.S.M.C. 117; Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982). FSM Const. art. XI, §6(b) requires that this court consider a petition for a writ of habeas corpus alleging imprisonment of a petitioner in violation of his rights under the FSM Constitution. In re Iriarte (I), 1 FSM Intrm. 239, 243-44 (Pon. 1983).

The Respondents have raised a number of legitimate concerns many of whom are based upon sound judicial administration policy and what they stated is a common law writ of habeas corpus derived from United States (U.S.) law. The Respondents contend that guidance from U.S. law may be relied upon where this extraordinary remedy has never been used to challenge pretrial detention in the FSM. This last contention is in error as there have been previous cases dealing with pretrial habeas

[18 FSM R. 322]

corpus in this court.¹⁰

The court recognizes that certain restrictions on the use of the writ of habeas corpus on the U.S. federal and U.S. state level have been put into place by statute.¹¹ The FSM statutory provisions governing writs of habeas corpus are found in F.S.M.C., Title 6 (Judicial Procedure), Chapter 15 (Special Proceedings), Sections 1503-1510. These provisions contain mostly procedural requirements and do not contain the restrictions argued for by the Respondents.

In the absence of any statutory restrictions, this court will, under the proper circumstances, consider applications for a writ of habeas corpus on the grounds that a person is in custody in violation of the FSM Constitution. The overriding purpose of such a writ is to protect an individual's right to be free from wrongful intrusions and restraints upon their liberty. The court therefore finds no impediment to its jurisdiction.

V. EVIDENCE BEFORE THE TRIAL COURT

From a review of the evidence that was before the trial court on the issue of probable cause, this court finds that:

1) The victim Akir Kilafwakun was dropped off by a taxi driven by Smehl D. Jim on the opposite side of the Black Micro Corp. camp in Tafunsak around 7:00 to 8:00 p.m. on the evening of March 3, 2012. Transcript (Trans.) of April 11, 2012 Proceeding (Proc.) at 9, lines 16 to 19. Aff. of Probable Cause at 2.

2) A rider in the taxi, Arlyn Jack, reported that the victim was drunk, but had no wounds at the time he was dropped off on the opposite side of the entrance to the Black Micro Corp. camp. Trans. of April 11, 2012 Proc. at 9, lines 16 to 18. Aff. of Probable Cause at 2.

3) On that evening a witness, Witson I. Joe, saw the victim laying on the ground near the right rear tire of a parked lube truck. This witness stated that he tried to wake the victim, but that the victim started shouting and he left. The witness stated that he did not see any wounds or blood on the victim at that time. Aff. of Probable Cause at 2. Trans. of April 11, 2012 Proc. at 9, lines 19 to 22; at 16, lines 17 to 22; and at 17, lines 1 to 20.

4) Another witness identified as Semeon J. Albert stated he was driving when he met Witson I. Joe outside of the Black Micro Corp. camp talking to the victim at around 8:00 p.m. He said that he saw the victim laying on the ground and that half his body was underneath of the right rear of the lube truck. Trans. of April 11, 2012 Proc. at 18, lines 8 to 17. Aff. of Probable Cause at 3.

5) Merlito Anzures who works for the Black Micro Corp. is the driver of the subject lube truck. Anzures parked the lube truck in front of the waiting shed area outside the Black Micro Corp. camp on March 3, 2012 after driving back from the airport. Trans. of April 11, 2012 Proc. at 19, lines 13 to 22; at 20, lines 1 to 22; at 21, lines 1 to 12. Aff. of Probable Cause at 3 and

[18 FSM R. 323]

4.

6) Anzures went to the JBI store to send a money gram to his family. He returned to the lube truck and got in the left drivers side, started the ignition, and drove forward. He stated he felt like the right rear tire had run over something, but he wasn't sure what it was. He drove on to the Black Micro Corp. refueling station where he spent about an hour when he saw a police car heading back toward Tofol. Trans. of April 11, 2012 Proc. at 21, lines 1 to 11. Aff. of Probable Cause at 4.

7) The area where the lube truck was parked was dark after 8:00 p.m. on March 3, 2012. The driver's seat of the truck is on the left front. The victim was seen near the right rear of the truck. Trans. of April 11, 2012 Proc. at 23, lines 9 to 22; at 35, lines 5 to 14. Aff. of Probable Cause at 4.

8) On March 3, 2012, at around 8:24 p.m. a call was received by the Central Police Station (CPS) from an area operations manager of Black Micro Corp. about a wounded male lying on the ground outside of the Black Micro Corp. camp in Tafunsak. Trans. of April 11, 2012 Proc. at 21, lines 12 to 22. Aff. of Probable Cause at 1.

9) Four police officers, Jesse W. Tulensru, Likiaksa Benjamin, Reed C. Tilfas, and Salik G. Charley responded to the call and found the victim Akir Kilafwakun lying on the ground with a large amount of blood that had come out from a wound to his head. Trans. of April 11, 2012 Proc. at 21, lines 12 to 22. Aff. of Probable Cause at 1.

10) The officers transported the victim to the Kosrae State Hospital in Tofol. The victim was said to be disoriented and unconscious while being transported in the patrol car. Aff. of Probable Cause at 2.

11) Detective Randy Laborete saw the victim at the Kosrae State Hospital. The victim was wearing a brown T-shirt and black jeans. His clothes were stained with blood and dirt. His face was dirty and his right eye was swollen. His hair was soaked with blood and dirt, along with a mixture of sand and bits of small rocks. There was a large, gaping wound or laceration at the back, lower, right side of his head. There were abrasions on the right elbow. There were red, linear marks parallel to each other on the left, front chest wall. Aff. of Probable Cause at 2.

12) Doctor Paul Aaron was on duty at the Kosrae State Hospital on the evening of March 3, 2012 at around 9:05 p.m. Dr. Aaron treated the victim and tried cardio-pulmonary resuscitation (CPR) on him. On the second cycle of chest compressions the doctor noticed an audible cracking sound of the chest and thought about ending CPR as their might be fractured bones. He continued CPR without effect and at about 10:00 p.m. the victim was pronounced dead. Aff. of Probable Cause at 3.

13) Officers Likiaksa Benjamin and Reed C. Tilfas also heard a cracking sound when CPR was being performed by Dr. Aaron. Aff. of Probable Cause at 3.

14) Police officers did a search of the area where the victim was found on the same evening of the incident and did not find any tools, lumber, rocks, objects, or other obstructions. Blood was found only where the victim was located. Trans. of April 11, 2012 Proc. at 21, lines 12 to 22; at 22, lines 1 to 12; at 24, lines 7 to 22; at 25, lines 1 to 7; at 28, lines 1 to 22; and at 29, lines 1 to 16.

[18 FSM R. 324]

VI. ANALYSIS OF PROBABLE CAUSE FINDING

This court has determined that FSM Const. art. IV, § 5 requires that an individual suspected of a crime be released from detention unless the Government can establish "probable cause" to hold that individual. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985). The standard for determining "probable cause" is whether there is "evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the [law] has occurred and that [the accused committed] that violation. Id.;¹² see also 12 F.S.M.C. 503 et seq.

Some decisions of U.S. state and federal courts dealing with pre-conviction petitions for habeas corpus have been reviewed and considered by this court. The Supreme Court of Nevada has held that the finding of probable cause may be based on slight, even marginal evidence because it does not involve a determination of the guilt or innocence of the accused. Sheriff v. Hodes, 606 P.2d 178, 180 (Nev. 1980). The state need not produce the quantum of proof required to establish the guilt of the accused beyond a reasonable doubt. Id. The evidence need not be sufficient to support a conviction. Kinsey v. Sheriff, 487 P.2d 340, 341 (Nev. 1971).

The state is not required to negate all inferences, but need only to support a reasonable inference that the defendant committed the offense. Abbott v. Sheriff, 487 P.2d 1067, 1068-69 (Nev. 1971).

The trial court is the most appropriate forum in which to determine factually whether or not probable cause exists. In re Eastham, 617 P.2d 1304, 1305 (Nev. 1980). The question of sufficiency of the evidence on the issue of malice is not a question to be determined by the trial judge at a hearing for habeas corpus challenging such sufficiency of evidence, nor by the Supreme Court on appeal, but rather by the trier of fact at trial. Hodes, 606 P.2d at 180.

VII. ABSTENTION

The Respondents in their response to the application for habeas corpus asserted that this court should not interfere where the state court's remedies have not been exhausted.¹³ They also assert that the state court has not been given the opportunity to address the issues and that other remedies exist. The court considers these assertions as dealing with issues of abstention.

In the U.S. federal district court case of Lacey Ruth-Marie Ambro v. Douglas Gillespie, No. 2:10-cv-00760-PMP-LRL (D. Nev. 03/29/2011) (Ambro), a petition for a writ of habeas corpus was filed in the U.S. federal district court following the filing and denial of habeas corpus in the state court. In Ambro, the court stated:

Under principles of comity and federalism, a federal court should not interfere with ongoing criminal proceedings . . . absent extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 44 (1971); Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982). The Younger abstention doctrine applies to claims raised in federal habeas corpus proceedings, Edelbacher v. Calderon, 160 F.3d 582, 587 (9th Cir.

[18 FSM R. 325]

1998) . . . The Younger abstention doctrine is required when: (1) state judicial proceedings are pending; (2) the state proceedings involve important state interests; and (3) the state proceedings afford adequate opportunity to raise the constitutional issue. Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. at 432 . . . . Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction, and perhaps in other special circumstances where irreparable injury can be shown, is federal injunctive relief against pending state prosecutions appropriate. Carden v. Montana, 626 F.2d 82, 83-84 (citing Perez v. Ledesma, 401 U.S. 82, 85 (1971)).

In this matter, all of the Younger abstention doctrine requirements are present. First, Anzures is currently the subject of a criminal proceeding in the Kosrae State Court which is ongoing and has not reached final adjudication. Second, the State of Kosrae has an important interest in protecting the public through the prosecution of criminal proceedings. Third, the Kosrae State Court criminal proceedings afford an opportunity for Anzures to raise the constitutional claims asserted in the petition before the state court.

Further Petitioner has not raised or demonstrated any extraordinary circumstances why this court should not abstain from entertaining the petition. This court should avoid conducting a pre-conviction habeas corpus review to cure possible state court procedural defects. Ambro, at 2.

In order to accord respect to the Kosrae State Court criminal proceeding and under these circumstances where pre-conviction habeas corpus relief is being sought, where state court remedies have not been fully exhausted, where no extraordinary circumstances have been presented, and where all of the Younger abstention doctrine requirements are met, this court will abstain from granting the Petitioner's application for a writ habeas corpus.

VIII. CONCLUSION

For the reasons discussed above, the court abstains from the Petitioners application for a writ of habeas corpus and the petition is HEREBY DISMISSED without prejudice.

Footnotes:

¹ The FSM statutory provision regarding application for a writ of habeas corpus is found at 6 F.S.M.C. 1504 that reads as follows:

² The FSM statutory provision on show-cause orders is found at 6 F.S.M.C. 1506 that reads as follows:

³ Section 13.305. Involuntary manslaughter.

Involuntary manslaughter is taking the life of another without malice, in commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. Involuntary manslaughter is a category one felony.

⁴ "Section 13.303. Assault and battery. Assault and battery is striking, beating, wounding, or otherwise doing bodily harm to another. Assault and battery is a category one misdemeanor."

⁵ "Section 13.708. Negligent driving. Negligent driving is driving a vehicle in such a manner as to constitute a substantial deviation from the standard of care a reasonable person would exercise in the situation. Negligent driving is a category 3 misdemeanor."

⁶ "Section 13.709. Reckless driving. Reckless driving is driving a vehicle recklessly or with gross, wilful or wanton disregard for the lives or safety of the public. Reckless driving is a category 1 misdemeanor."

⁷ The government is required to make a probable cause showing at a hearing before pretrial restraints on the defendant's liberty can be granted. This is because a fair and reliable determination of probable cause is a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest. Affidavits can be used, if properly introduced, as evidence at that hearing to make the probable cause showing. FSM v. Wainit, 10 FSM Intrm. 618, 622 (Chk. 2002).

⁸ Section 5. The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated. A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.

⁹ The state court procedures governing habeas corpus are found in Kosrae State Code, Title 6 (Judiciary), Chapter 34 (Habeas Corpus).

¹⁰ There have been cases where a pretrial writ of habeas corpus has issued. See In re Iriarte (II), 1 FSM Intrm. 255 (Pon. 1983).

¹¹ 39 AM. JUR. 2D Habeas Corpus §§ 26 to 42 (1968). For example, see Uniform Post-Conviction Procedure Act, 28 U.S.C.A. §§ 2254 et seq.

¹² Moreover, in such cases, "[t]he finding of probable cause may be based upon hearsay evidence in whole or in part." FSM Crim. R. 4(b); FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584 (Pon. 1994).

¹³ 17A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER §§ 4251-4255(Younger Rule), and §§ 4261-4268 (habeas corpus) (1988). See especially id. § 4261, at 280-81 ("The requirement of exhaustion of remedies will ordinarily preclude the use of the writ before trial.").

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