THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Kosrae v. Tosie,
4 FSM Intrm. 61 (Kosrae 1989)

[4 FSM Intrm. 61]

STATE OF KOSRAE,
Plaintiff,

vs.

TOSIWO TOSIE and HECTOR TOSIE,
Defendants.

FSM CIV. NO. 1988-2506

MEMORANDUM OPINION

Before Edward C. King
Chief Justice
May 31, 1989

APPEARANCES:
For the Plaintiff:               Richard Kaminski
                                          Assistant Attorney General
                                          Office of the Attorney General
                                          Kosrae, FM  96944

For the Defendant:          Joseph Phillip
(For Tosiwo Tosie)         Public Defender
                                          Office of the Public Defender
                                          Pohnpei, FM  96941

For the Defendant:          Wesley Simina
(For Hector Tosie)          Public Defender
                                          Office of the Public Defender
                                          Kosrae, FM  96944

*    *    *    *

HEADNOTES
Criminal Law and Procedure - Major Crimes
     The general rule of criminal procedure is that jurisdiction over a particular crime places in the trial division the necessary authority to find a defendant guilty of any offense necessarily included in the offense charged.  Kosrae v. Tosie, 4 FSM Intrm. 61, 63 (Kos. 1989).

Criminal Law and Procedure - Assault and Battery
     The crimes of assault, and assault and battery, undoubtedly are necessarily

[4 FSM Intrm. 6]

included within the charges of assault with a dangerous weapon and aggravated assault, because they all relate to the protection of the same interests and are so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.  Kosrae v. Tosie, 4 FSM Intrm. 61, 63 (Kos. 1989).

Criminal Law and Procedure - Major Crimes
     Under the constitutional and statutory framework of the Federated States of Micronesia, the FSM Supreme Court trial division, when exercising jurisdiction over cases reasonably initiated as major crimes charges, may also exercise jurisdiction over lesser included offenses prohibited by state law.  Kosrae v. Tosie, 4 FSM Intrm. 61, 65 (Kos. 1989).

Criminal Law and Procedure; Criminal Law and Procedure - Major Crimes
     Rather than rely heavily on United States precedent for guidance in establishing principles of federalism in matters of criminal regulation, the FSM Supreme Court is under an affirmative obligation to develop approaches suited to permit implementation of the national major crime responsibilities identified by Congress.  Kosrae v. Tosie, 4 FSM Intrm. 61, 65 (Kos. 1989).

*    *    *    *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     Trial of the charges against the codefendants in this case began in Kosrae on March 15, 1989.  Both defendants were charged with the national crimes of aggravated assault, 11 F.S.M.C. 918, and assault with a dangerous weapon.  11 F.S.M.C. 919.1  At the conclusion of the government's case in chief, counsel for Hector Tosie moved for judgment of acquittal.  After hearing arguments on that motion, the Court concluded that no reasonable trier of fact could find the evidence produced by the government against Hector Tosie sufficient to warrant a finding of proof beyond a reasonable doubt of either of the national crimes charged.  The Court therefore dismissed the original charges against Hector Tosie.  Counsel for both parties were then asked to address the question of whether the case against Hector Tosie should be dismissed, or whether the trial should proceed to consideration of lesser included offenses, proscribed by Kosrae State law.

     The state asked the Court to consider the lesser included charges of assault, under KC 13.302, and assault and battery, under KC 13.303.  The

[4 FSM Intrm. 63]

defense contended that the Court had no jurisdiction to proceed to consideration of the lesser offenses.  After hearing arguments of counsel, the Court concluded that it did have jurisdiction to proceed with consideration of those Kosrae State crimes.  This memorandum of decision is written to explain the reason for that conclusion.

I. Legal Analysis
     The general rule of criminal procedure is that jurisdiction over a particular crime places in the trial division the necessary authority to find the defendant guilty of any "offense necessarily included in the offense charged."  FSM Crim. R. 31(c); see also State v. Shults, 544 P.2d 817 (Mont. 1976).  The crimes of assault, and assault and battery, undoubtedly are "necessarily included" within the charges of assault with a dangerous weapon and aggravated assault, because they all "related to the protection of the same interests" and are "so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense."  Runmar v. FSM, 3 FSM Intrm. 308, 317 (App. 1988), quoting United States v. Johnson, 637 F.2d 1224, 1239 (9th Cir. 1980).

     For this Court to decline to consider these lesser included offenses would be to impede basic goals of the criminal justice system.  For example, the government has indicated that if the Court dismisses this case against Hector Tosie, it will file charges of assault and battery against him in Kosrae State Court.  This surely would not be efficient for it would mean that a new judge would have to spend time this Court has already spent in becoming familiar with the issues.  Moreover, all the same witnesses, as well as both counsel, court and staff and the defendant himself would be required to spend another day repeating in a state court what already has been done in the national court.  This is not such a wealthy nation that we should off-handedly build into the criminal justice system provision for more than one trial for a single offense.  Cf. FSM v. Yal Mad, 1 FSM Intrm. 196, 198 (App. 1982).

     Refusal to consider lesser included offenses would also be contrary to the interest in providing speedy trials, especially at the state court level, for it would mean the state court charges would not even be initiated until the national court litigation has run its course resulting in dismissal of the major crime charge.

     National court refusal to consider lesser included offenses under state law, relegating such charges to state court trials, after acquittal from the major crime charges in the national courts, would also introduce other factors, reducing the likelihood of a just result based purely upon the guilt or innocence of the accused. To be specific, an attempt to retry the defendant in state court for the same conduct upon which he has already been acquitted in this Court inevitably would raise questions as to whether the double jeopardy clause of either national or state Constitutions would

[4 FSM Intrm. 64]

preclude the second trial.2

     Counsel for Mr. Tosie has candidly advised the Court that if this Court dismisses the case against Mr. Tosie on the basis that he has been acquitted of the charges of assault with a dangerous weapon or aggravated assault, counsel would indeed oppose, on double jeopardy grounds, any attempt by the State to charge Mr. Tosie with lesser included offenses in state court.  See generally Laion v. FSM, 1 FSM Intrm. 503, 521-25 (App. 1984).

     The Court notes that United States courts have held that, because of the "dual sovereignty" of the United States government and the governments of individual states, acquittal of a defendant before a national court system does not prevent the state from trying the defendant for essentially the same crime.  Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959).  However, the United States "dual sovereignty" rule is based upon a view that the enforcement of general criminal law falls only within state police powers and that crimes against the United States must be linked somehow to a specific national interest. See Tammow v. FSM, 2 FSM Intrm. 53 (App. 1985).

     As the major crimes clause, article IX, section 2(p) of the Constitution mandates, and as Tammow recognizes, the respective roles of the state and national governments under the FSM Constitution are much more closely intertwined.  Therefore it is by no means clear in the Federated States of Micronesia that an acquittal before the national court could properly be followed by prosecution of the same acts, but as lesser offenses, in a state court.

     Even if retrials of lesser included offenses may eventually be held consistent with state and national protections against double jeopardy, there would remain elements of unfairness or injustice.  Some defendants would find themselves subjected to two trials, not because the crimes of which they are accused are worse or different in nature than crimes alleged against others, but because of the happenstance that their alleged conduct straddled the border between state and national crimes.

     On the other hand, prosecutors could be subjected to pressures to downgrade their prosecutions because of uncertainty as to whether the major crime can be established beyond a reasonable doubt.  Rather than risk the expenditure of resources necessary for two trials, prosecutors could feel compelled to level against defendants lower charges than might otherwise be preferred.  This could permit defendants to avoid the harsher treatment which Congress intended to apply to their conduct.

[4 FSM Intrm. 65]

     The principal criminal justice policy argument against this Court's acceptance of lesser offense jurisdiction is that prosecutors might be encouraged deliberately to overcharge crimes to obtain major crime jurisdiction, knowing that even if the Court were to reject the major crime charge, the litigation would proceed on the lesser included offense charges.  The Court however sees no indication that such deliberate overcharging would be likely to occur.  Moreover, if in the future it does appear that a particular prosecution may represent inflated charges by the prosecution to obtain major crimes jurisdiction, a preliminary hearing could be held to determine whether there is a reasonable basis for instituting the case as a major crime prosecution.  If no reasonable basis for the major crime charge appears, the charge could be dismissed before trial.

     The Court concludes then that under the constitutional and statutory framework of the Federated States of Micronesia, the FSM Supreme Court trial division, when exercising jurisdiction over cases reasonably initiated as major crimes charges, may also exercise jurisdiction over lesser included offenses prohibited by state law.

     The defense asserts that under United states laws, federal courts may not consider lesser included state offenses, and asks that this Court adopt that United States approach.  As already noted, the details of United States jurisprudence concerning federalism as it affects jurisdiction in criminal cases are of little value to out inquiry here for the Constitution of the Federated States of Micronesia divides state and national responsibilities in criminal matters quite differently than does the United States Constitution.  Tammow v. FSM, 2 FSM Intrm. 53 (App. 1985).  Rather than rely heavily on United States precedent for guidance in establishing principles of federalism in matters of criminal regulation, this Court is under an affirmative obligation to develop approaches suited to permit implementation of the national major crime responsibilities identified by Congress.  The goal is that the criminal justice system in the Federated States of Micronesia may operate in speedy, just and efficient fashion.

     Nonetheless, it bears mentioning that there are notable exceptions even to the general forbearance of United States federal courts from exercising jurisdiction over state charges of criminal violations.  For example, if a United States federal officer is charged with violating a state criminal law in the course of carrying out federal duties, the state may be required to prosecute its charges in the federal courts.  See 28 U.S.C. 1441; Mesa v. California, 489 U.S. 121, 109 S. Ct. 959, 103 L. Ed. 2d 99 (1989).  Thus, United States courts have recognized that principles of federalism do not bar the exercise of federal court jurisdiction over state prosecution when this is necessary or desirable to expedite federal law enforcement efforts.

     Finally, in the closest United States parallel to the Federated States of Micronesia major crimes clause, United States federal courts have determined that jurisdiction over lesser included offenses is implicit in a grant of major crime jurisdiction.  The United States Major Crimes Act, 18 U.S.C. 1153, places in the United States federal courts jurisdiction

[4 FSM Intrm. 66]

over specified major crime charges against American Indians.

     The Act is silent as to jurisdiction over lesser offenses.  Yet, the United States Supreme Court has held that Indian defendants in such cases are entitled to jury instructions that the jury may consider whether the defendant is guilty only on a lesser included offense.  Keeble v. United States, 412 U.S. 205, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973).  Subsequently, other federal courts have held that jurisdiction over lesser included offenses is implicit in the grant of major crime jurisdiction.  Felicia v. United States, 495 F.2d 353, 355 (8th Cir. 1974), cert. denied, 419 U.S. 849; United States v. John, 587 F.2d 683, 688 (5th Cir. 1979); United States v. Bowman, 679 F.2d 798 (9th Cir. 1982).

II.  Conclusion
     The Court holds that when prosecution has been reasonably initiated in this Court on a major crime charge, the Court has jurisdiction to consider lesser included offenses of the charged major crime.

     Here, there was no contention by the defense that initiation of this prosecution against Hector Tosie as a major crime was excessive or unreasonable.  To the contrary, the evidence shows that Hector Tosie did strike the victim in the head with some kind of sharp instrument.  Although the government's evidence was insufficient to establish guilty beyond a reasonable doubt of the major crimes of assault with a dangerous weapon or aggravated assault, the Court finds that the government reasonably prosecuted this as a major crime case.

     Therefore, despite acquittal for the original major crimes charges, the Court permits this case to proceed to a determination of guilt or innocence on the lesser offenses of assault, and assault and battery.

     So ordered the 31st day of May, 1989.
 

Footnotes:

1.  The events which gave rise to these charges occurred before December 10, 1988, when amendments to the National Criminal Code became effective.  See Pub. L. No. 5-40, (5th Cong. 2d Reg. Sess. 1987).
 
2.  Article IV, section 7 of the FSM Constitution says, "A person may not be compelled to give evidence that may be used against him in a criminal case, or be twice put in jeopardy for the same offense."
 
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