KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
Cite as Kosrae State v. Osteen,Palik,Nedlic. (Kosrae 1992)
BILLY PALIK ,
NEDLIC M. NEDLIC .
CRIMINAL CASE NO. 46-92
JUDGMENT OF CONVICTION
Defendant Nedlic Nedlic pleaded guilty to Obstructing Justice (KC Section 13.611) in return for the government to dismiss Assault and Battery (KC Section 13.303) and Assault (KC Section 13.302). Court accepted the plea agreement which was orally submitted on the trial date. Defendant Nedlic was found guilty on Obstructing Justice, and the Assault and Battery and Assault charges were dismissed. That leaves the other two named defendants to be tried.
As with defendant Sam Osteen, he had all five charges against him went to trial and was acquitted from Driving Under the Influence for lack of evidence to establish proof beyond a reasonable doubt. Defendant Osteen with four charges against him and they are (1) 03 Violating Rules of the Road (KC Section 13.7(14), (2) Obstructing Justice (KC Section 13.611), (3) Assault and Battery (KC Section 13.303), and (4) Assault (KC Section 13.302).
Defendant Billy W. Palik was charged with all five charges as appeared in the Information. As the plaintiff rested his case-in-chief, defendant Palik moved for acquittal on all counts but was denied.
Defendant Osteen had one witness, Elwel Palik, who took the stand whose testimony primarily focused on the charge of violating rules of the road, (KC Section 13.703(14)) and to attack the credibility of the plaintiff's witnesses as to overspeeding.
On or about June 22, 1992 between 8:30 p.m. and 10:00 p.m in Lelu Municipality, there were two white cars with black stripes driven on the Lelu road at a high speed, and were pursuit by Chief of Police which resulted in obstructing justice, assault and assault and battery. All three defendants were arrested.
Chief of Police heard of vehicles overspeeding in Lelu and he went out to investigate. As he was parked at an intersection by an orange /tangerine tree at Jerson Freddy's place there were two cars coming from the Lelu Municipal office going to the Church building. Prior to the coming of the two vehicles, the Chief of Police met Casey Freddy who related that he met them (defendants) before that night and he recognized the cars, white color with three black stripes and they were overspeeding. As the two cars coming from the Lelu Municipal building to the church building, Casey was with the Chief of Police at said intersection and he was about two feet from the road where he saw the drivers for the second time. He didn't see the passenger. But he recognized the two drivers because they were on the side to where he
was. Two drivers identified were defendants Sam Osteen and Billy Palik.
Chief of Police parked his car with his engine off opposite to the direction where the two cars were coming and he noticed that they (drivers) were coming too fast. The Chief turned around his car and followed the cars and as he observed his speedometer it was at 35 mph, over at Senator Phillips residence. Behind the two cars, the Chief observed that the visibility on the road was so bad because of dirt stirred by the two speeding cars.
As the Chief continued to follow them he noticed the cars signaled to the causeway. The Chief overtook them and blocked the entrance to the causeway. Billy Palik's came first and Sam Osteen came second. The Chief could see them clearly because their cars were so close to Chief's car and because of the street light and the fight reflected on chief's car. When the defendants were blocked by the Chief of Police, they turned to Lelu side. Within few hundred feet from the causeway they (defendants) turned right to Kathleen William's place and were blocked by the Chief of Police on one driveway and another police officer who drove by and noticed the Chief was following and blocking the two cars, he then blocked the other driveway. The defendants were unable to exit.
It was at this juncture that all three defendants were charged with assault, assault and battery, and obstructing justice along with violating rules of the road and driving under the influence.
Chief of Police approached defendant Osteen to arrest him for violating rules of the road. First, as the Chief of Police was trying to
arrest defendant Osteen, the other two defendants grabbed the Chief and the Chief let lose of defendant Osteen. Then as the Chief attempted again to subdue defendant Osteen, defendant Osteen grabbed the Chief's T-shirt and pulled his right hand or arm. After being subdued, defendant Osteen hit the Chief's nose and forehead twice with the back of his head. Defendant Osteen also kicked the Chief's right shoulder after he was arrested and put on the police vehicle.
Defendant Billy Palik was arrested by two other officers for obstructing or interfering with the arrest of Sam Osteen when he and Nedlic first grabbed the Chief and for the second time Billy grabbed the Chief's t-shirt.
The defendants had liquor in their cars. The Chief smelled alcoholic drinks on them and he also testified that they were aggressive, rowdy, and uttering profane language. Officer Joel testified that Billy Palik had heavy alcoholic smell on him. All defendants were assaulting the Chief of Police while he was arresting Sam Osteen.
Defendant Sam Osteen put up a witness, Elwel Palik, who is the investigator for the FSM Public Defender's Office. He testified on the distance in which the alleged overspeeding occurred. Mr. Palik testified that he measured a tenth of a mile from Jerson Freddy's place to Senator Phillips residence.
Discussions of each defendant will be discussed separately beginning with defendant Sam Osteen, and followed by Billy Palik and Nedlic Nedlic.
As to defendant Osteen, the charge of driving under the influence was dismissed at trial. And as to the charge of violating rules of the road (overspeeding) KC Section 13.703(14), one must be the driver of a vehicle, driving at a speed greater than twenty miles per hour in any area used primarily for either businesses or residences. It was the testimony of the chief of police that he clocked the speed of the driver Osteen at 35 mph. Defendant was challenging the speed noticed by the chief based on witness Elwel Palik's testimony. He further argued that it is impossible to reach 35 mph at a tenth of a mile at the distance from Freddy's place to Senator Phillips residence. Court rejected that argument because there was no evidence by the defendant to overcome the speed at such a distance., There was evidence, however, on the distance. Defendant Osteen is therefore found guilty of violating KC Section 13.703(14).
Defendant Osteen was charged with obstructing justice (KC Section 13.611). Before one can be found guilty of obstructing justice, there must be interfering or resisting by the defendant with a police officer in the lawful pursuit of his duties ....Defendant Osteen had resisted the arrest and after the arrest when he grabbed the chief's Tshirt and pulled his right arm off. Defendant Osteen, after he was arrested, he hit the chief on his nose and forehead with the back of his head. Defendant Osteen after he was arrested and placed on the police vehicle, he again kicked the right shouldqf the chief. There is clearly overwhelming evidence to find the defendant guilty for there was resistance and interference by the defendant of the police chief as he was pursuing his duties on June 22, 1992.
As to the charge of assault and battery (KC Section 13.303), defendant Osteen laid his forehead and hands on the chief of police. One is found guilty of assault and battery, if there is striking, beating, wounding, or otherwise doing bodily harm to another. There is clearly evidence to find the defendant guilty as charged.
As to the charge of Assault (KC 13.302) one is guilty if there is offering or attempting, with force or violence to strike, beat, or wound, or to do bodily harm to another. Defendant Osteen grabbed the chief's shirt, hit him on his nose and forehead, grabbed his right arm and later kicked his shoulder. These clearly are acts of force and violence on another namely the chief of police while pursuing his duties. Defendant Osteen is found guilty as charged.
Defendant Billy W. Palik was charged with all five counts, namely: Violating rules of the road, driving under the influence, obstructing justice, assault and battery, and assault.
Testimonies adduced at trial that defendant Palik was driving along with others at a speed greater than 20 mph in the residential area in Lelu on June 22, 1992. The pertinent law (KC Section 13.703(14) prohibits driving at a speed greater than 20 mph in any area use primarily for business or residences. Defendant Palik was at the residence area in Lelu specifically from Jerson Freddy's residence to Senator Phillips residence. The chief of police clocked defendant Palik at 35 mph. This is clearly in violation of the law.
As to the charge of driving under the influence, defendant Palik at his arrest, officer Joel smelled heavy liquor odor on him. Budweiser beer cans were found in defendant's car. Defendant Palik was driving at
a speed (35mph) greater than the law imposed. Defendant Palik was rowdy, aggressive, and uttering profane language in addition to resisting fought back with the arrest by the chief of police. There was influence and possession of alcoholic drinks and defendant Palik was identified. as the driver of one white car with black three stripes on it. Defendant Palik is guilty as charged.
On the obstructing justice, evidence at trial showed that defendant Palik interfered with the arrest of defendant Osteen when the chief of police was arresting defendant Osteen. First defendant Palik, along with defendant Nedlic, grabbed the chief of police as he was arresting defendant Osteen. The second time around defendant Palik grabbed the chief's t-shirt. All these acts carried out by the defendants while the arrest of defendant Osteen was in progress. See Kosrae State v. Osteen. Defendant Palik is guilty as charged.
As to the charge of assault and battery, defendant Palik in accordance with the testimony, laid his hands on the chief when he grabbed the chief to interfere with the arrest and again grabbed the chief's t-shirt. These acts were not carried out in a friendly or playful manner, however, it was apparent that these acts were intentional in order to free his friend, defendant Osteen, from being arrested. One is guilty of assault and battery if there is striking, beating, wounding, or otherwise doing bodily harm to another. Evidence point to conviction due to the acts of defendant Palik.
Defendant Palik was also charged with assault as alleged to take f\ place on June 22, 1992 in Lelu. In order for one to be convicted of assault, there must be offer or attempt, with force of violence, to
strike, beat, wound, or to do bodily harm to another. At trial, there was showing of evidence that defendant Palik approached the chief of police on more than one attempt with force to strike the chief as the chief was arresting defendant Osteen. Defendant Palik's acts were not nonviolent or by words alone but he attempted with force when he laid his hands on the chief when he grabbed the chief. These acts by defendant Palik constitute assault.
Defendant Nedlic M. Nedlic on trial date pleaded guilty to obstructing justice in return for the dismissal of the assault, and assault and battery. Court accepted the guilty plea of obstructing justice and dismissed the assault, and assault and battery.
Based on the foregoing, defendant Osteen is guilty on all four counts and is acquitted on driving under the influence. Defendant Palik is guilty on all five counts, while defendant Nedlic is guilty on obstructing justice and the two other charges against him are dismissed.
So ORDERED the 27th day of November, 1992.
Lyndon L. Cornelius
Entered this 30th day of November, 1992.
Chief Clerk of Court, Kosrae