[14 FSM Intrm. 86]

CRIMINAL CASE NO. 88-05

Hearing: October 5, 2005

Decided: February 20, 2006

For the Plaintiff:   Paliknoa Welly, State Prosecutor

                               Office of the Kosrae Attorney General

                                P.O. Box 870

                                Lelu, Kosrae   FM   96944

                                    Office of the Public Defender

                                    P.O. Box 245

                                    Lelu, Kosrae   FM   96944

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    Kosrae State Code, Section 6.4802 permits an offender over the age of sixteen to be treated as an adult, in all respects, if the court determines that his physical and mental maturity justify it. In the proceedings to determine whether an offender should be treated as an adult, the court may order the juvenile to be examined by a physician or a psychologist, to aid the court in determining the propriety of treating the juvenile as an adult accused. Kosrae v. Ned, 14 FSM Intrm. 86, 88 (Kos. S. Ct. Tr. 2006).

    The Kosrae Rules of Evidence apply to civil, criminal and contempt proceedings, but are not applicable to miscellaneous proceedings, such as preliminary examinations for criminal cases and bail proceedings. The rules do not reference their applicability or inapplicability to juvenile proceedings or to preliminary proceedings to determine whether to treat a minor defendant as an adult. Kosrae v. Ned, 14 FSM Intrm. 86, 89 (Kos. S. Ct. Tr. 2006).

    The Kosrae Penal Code, Section 13.104(4)(a) excludes certain minors from criminal liability, but it also does not prohibit criminal proceedings against minors. Kosrae v. Ned, 14 FSM Intrm. 86, 90 (Kos. S. Ct. Tr. 2006).

    Criminal proceedings against minors must be brought under Chapter 48, unless the minor is 16 or 17 and the court determines that his mental and physical maturity justify treating the minor as an adult. A minor who is 16 or 17 may be held responsible for his criminal conduct either as a juvenile under Title 6, Chapter 48 or an adult under Title 13. Kosrae v. Ned, 14 FSM Intrm. 86, 90 (Kos. S. Ct. Tr. 2006).

    Although the initial filing of the case as a criminal matter, and not as a juvenile proceeding, was in error, when as soon as the court was informed that the defendant was minor, the Juvenile Rules were immediately applied to the proceedings and all proceedings were then closed to the public, and the court ensured that a parent of the defendant was present at all proceedings, there was no prejudice to the defendant and the defendant’s motion to dismiss on that ground will be denied. Kosrae v. Ned, 14 FSM Intrm. 86, 90 (Kos. S. Ct. Tr. 2006).

[14 FSM Intrm. 88]

    When a normal sixteen-year old young man’s physical and mental maturity warrant treating him as an adult in a criminal proceeding, the state’s motion to treat juvenile accused as an adult will be granted. Kosrae v. Ned, 14 FSM Intrm. 86, 91 (Kos. S. Ct. Tr. 2006).

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    On August 12, 2005, Defendant was charged with three offenses listed in the Information: Sexual Abuse, in violation of Kosrae State Code, Section 13.312; Sexual Assault, in violation of Kosrae State Code, Section 13.311 and Assault and Battery, in violation of Kosrae State Code, Section 13.303. On September 19, 2005, Plaintiff filed a Motion to Treat a Juvenile Offender as an Adult. Also on September 19, 2005, Defendant filed a Motion for Dismissal or in the alternative, for Continuance of Trial. Defendant’s Response to Plaintiff’s Motion was filed on September 21, 2005.

    A hearing on Plaintiff’s Motion to Treat a Juvenile Offender as an Adult was held on October 5, 2005. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. Wendy Townsend, Ned Seymour and Ruth P. Timothy testified at the hearing. Following the testimony of the witnesses, the Defendant requested that the Defendant be examined by a physician to assess his physical and mental maturity, pursuant to KRJP, Rule 30(d). I granted the request and ordered that the Defendant be examined by a physician. The Director of Health was ordered to appoint a physician to examine the Defendant. Dr. Imaculada Gonzaga-Optaia, the FSM Substance Abuse and Mental Health Program Clinical Director (Dr. Gonzaga) examined the Defendant on November 15, 2005. Dr. Gonzaga’s written report was submitted to the Court on November 16, 2005. On January 13, 2006, the hearing on Plaintiff’s Motion to Treat the Defendant as an Adult Accused was continued. Dr. Gonzaga’s report on the Defendant was addressed by the parties. At that hearing, I granted the parties’ request that Dr. Gonzaga be permitted to testify in person as to her observations regarding the Defendant.

    The hearing on Plaintiff’s Motion to Treat the Defendant as an Adult Accused was continued on January 23, 2006. Dr. Gonzaga testified at that hearing. Additional briefing was submitted by the parties, by Defendant on January 30, 2006 and by the State on February 3, 2006. I then took the matter under advisement. My findings and ruling on the Plaintiff’s Motion and reasoning are set forth below, as specified by KRJP Rule 14.

    Kosrae State Code, Title 6, Chapter 48 governs court proceedings against juveniles accused of criminal offenses. Kosrae State Code, Section 6.4802 permits this Court to treat an offender over the age of sixteen as an adult, in all respects, if the Court determines that his physical and mental maturity justify. In the proceedings to determine whether an offender should be treated as an adult, the Court may order the juvenile to be examined by a physician or a psychologist, to aid the Court in determining the propriety of treating the juvenile as an adult accused. KRJP Rule 30(d).

    The Defendant is a 16 year old juvenile attending the Kosrae High School. Defendant was a respectful student with normal conduct in his English class, where he attained a B grade point average during the fall 2005 school semester. Ms. Wendy Townsend, Defendant’s English teacher, observed Defendant to behave no different than another other students in her class. Defendant’s Geometry

[14 FSM Intrm. 89]

teacher, Mr. Ned Seymour, observed Defendant to act as a normal person of his age. Mr. Seymour’s observation of the Defendant in school and in Tafunsak, in their otta, is that Defendant is a fine person. Ms. Ruth Palokoa’s interaction with the Defendant is at their church, the Seventh Day Adventist Church. The Defendant participated in social and church activities. Defendant’s behavior, in Ms. Palokoa’s observation, is that of a normal sixteen year old person.

    Dr. Gonzaga testified about her interview with the Defendant and with respect to her Intake Evaluation Report on the Defendant, dated November 16, 2005. Dr. Gonzaga is the Clinical Director of the FSM Substance Abuse and Mental Health Program. Dr. Gonzaga’s observation of the Defendant’s physical characteristics is that he is of average height and weight, and that physically he appears consistent with his chronological age of sixteen. Defendant’s dress, personal hygiene, posture, body movement, voice and speech were normal. Memory, intellectual functioning, abstract thinking ability were normal. Dr. Gonzaga observed nervousness and restlessness during evaluation of the Defendant, but no medical, sleeping or eating problems. Dr. Gonzaga testified that the Defendant knew right from wrong, but needs help to control his desire to do wrong. Dr. Gonzaga stated that Defendant’s choice to take the wrong action is shows his immaturity.

    Defendant argued that the Dr. Gonzaga’s testimony and report should be rejected because she was not admitted as an expert witness in this proceeding to determine whether the accused should be treated as an adult. By Order entered on October 6, 2005, this Court ordered that the Defendant be examined by a physician or psychologist to aid the Court in determining the propriety of treating the juvenile as an adult accused, pursuant to KRJP Rule 30(d). This Order was entered following a hearing on October 5, 2005, in which the Defendant requested the examination. Defendant had argued that this Court could not make the determination whether to treat the Defendant as an adult without such an examination. Pursuant to the Order, Dr. Gonzaga, DCHMS, was appointed to examine the Defendant and provide an assessment. Dr. Gonzaga is the Clinical Director of the FSM Substance Abuse and Mental Health Program, and has served in that capacity for several years. Defendant, who requested the examination, is apparently unhappy with Dr. Gonzaga’s assessment, now seeks to exclude Dr. Gonzaga’s testimony and report, arguing that she was not properly admitted as an expert witness. Defendant’s motion to exclude Dr. Gonzaga was made only after her testimony was completed and is therefore untimely. Defendant did not provide any authority in support of his argument that Dr. Gonzaga must be qualified as an expert witness in order to present testimony on her examination of the Defendant for the preliminary proceeding of determining whether the Defendant should be treated as an adult.

    Kosrae State Code, Title 6, Chapter 48, governs proceedings involving juveniles. Procedures for the proceedings are specified in Section 6.4802, imposes certain requirements. Section 6.4802 does not govern the presentation of evidence to the Court. The KRE, Rules 101 and 1101 specify the applicability of the Kosrae Rules of Evidence. Pursuant to Rules 101 and 1101, the Rules of Evidence apply to civil, criminal and contempt proceedings. The KRE are not applicable to miscellaneous proceedings, such as preliminary examinations for criminal cases and bail proceedings. The KRE does not reference its applicability or inapplicability to juvenile proceedings or to preliminary proceedings to determine whether to treat a minor Defendant as an adult.

    The KRJP Rule 14 references the hearing and determination as to whether a juvenile should be treated as an adult, as a preliminary matter, prior to the adjudicatory hearing. KRJP Rule 16 specifies evidentiary rules only for the hearing on the allegations made in the petition. Rule 16 does not specify any evidentiary rule for the hearing on whether a juvenile should be treated as an adult.

    By comparison, in civil matters, KRCP, Rule 35 governs the physical and mental examination of persons. Rule 35 requires that the report made from the examination be provided to all parties. Rule

35 does not require the examining physician to be qualified as an expert witness. Furthermore, the KRE, Rule 701 permits a lay witness to provide an opinion which a rationally based upon the perception of the witness and helpful to a clear understanding of her testimony or the determination of a fact in issue. Dr. Gonzaga’s testimony is based upon her perception and examination of the Defendant, and is helpful to a clear understanding of her testimony and report.

    I conclude that neither State Law nor the KRJP require Dr. Gonzaga to be qualified as an expert witness under the KRE in order to accept her testimony and report in a preliminary proceeding to determine whether to treat the Defendant as an adult. I accepted Dr. Gonzaga’s qualifications based upon her training as a physician and her position as Clinical Director of the FSM National Health Substance Abuse and Mental Health Program. I take judicial notice that Dr. Gonzaga has evaluated and submitted reports on other defendants to this Court, most recently on Tulen A. Haldey, Criminal Case Nos. 90-05, 92-05 and 93-05. I accepted Dr. Gonzaga’s assessment of the Defendant, based upon her perception and examination of the Defendant. Her testimony was helpful to a clear understanding of her report and my ultimate determination on whether to treat the Defendant as an adult. I reject Defendant’s argument that the report and testimony of Dr. Gonzaga be excluded from this preliminary proceeding.

    Defendant further argued that only persons who are 18 and above are responsible for their criminal conduct. Defendant relies upon Kosrae State Code provisions in Sections 1.201(44), 13.104(4), 6.4802 and KRJP Rule 14. The Kosrae State Code classifies the Defendant as a minor, not having attained his 18th birthday. Kos. S.C. § 1.201(44). The Kosrae Penal Code, Section 13.104(4)(a) excludes certain minors from criminal liability. It also states that "[T]his section does not prevent proceedings pursuant to Chapter 48 of Title 6." Accordingly, the Kosrae Penal Code does not prevent proceedings against juveniles under the juvenile law. However, Section 13.104(4)(a) does not prohibit criminal proceedings against minors. Section 13.104(4)(a) also does not require proceedings against minors to be processed under Title 6, Chapter 48. A plain reading of Section 13.104(4)(a) indicates that permits criminal proceedings may be brought against minors either pursuant to Title 13 or pursuant to Title 6, Chapter 48. The Juvenile chapter at Section 6.4802 further provides that criminal proceedings against minors must be brought under Chapter 48, unless the minor is 16 or 17 and the Court determines that his mental and physical maturity justify treating the minor as an adult. The provisions of Section 6.4802 are consistent with the provision of Section 13.104(4). A minor who is 16 or 17 may be held responsible for his criminal conduct either as a juvenile under Title 6, Chapter 48 or an adult under Title 13. Defendant’s argument that only adults are responsible for their criminal conduct is rejected.

    Defendant had filed a Motion to Dismiss this action on September 19, 2005. Defendant argued that since this case was first filed as a criminal proceeding, and not as a juvenile proceeding, the case should be dismissed. While Defendant’s statement is correct, as soon as the Court was informed that the Defendant was minor, the KRJP was immediately applied for the proceedings. Pursuant to statutory requirements of Kosrae State Code, Title 6, Chapter 48 and the KRJP, all proceedings were then closed to the public, and the Court ensured that a parent of the Defendant was present at all proceedings. While Defendant’s initial filing of this matter as a criminal matter was in error, there has been no prejudice to the Defendant. All proceedings have been conducted in accordance with the additional protections provided by Title 6, Chapter 48 and the KRJP. The State is instructed to carefully assess the age of an accused and complete the initial filing pursuant to the KRJP, where appropriate due to age. Defendant’s Motion to Dismiss is denied.

    I have carefully considered the testimony of all the witnesses. All of evidence presented by Defendant’s teachers and fellow church members indicates that the Defendant appeared and generally acted as an average, normal sixteen year old young man. Defendant’s conduct and accomplishments

at Kosrae High School are that of a normal sixteen year old student. Defendant’s conduct in his otta and at church indicates his conduct and demeanor to be that of a normal sixteen year old young man. Dr. Gonzaga’s observation of the Defendant’s physical characteristics is that he is of average height and weight, and that physically he appears consistent with his chronological age of sixteen. Defendant’s dress, personal hygiene, posture, body movement, voice and speech were normal, as were his memory, intellectual functioning, and abstract thinking ability. Based upon this evidence, I find that the Defendant’s physical and mental maturity warrant treating him as an adult in this proceeding. The severity of the charged offenses were not taken into account in my determination.

    Based upon the findings made above, I find that the physical and mental maturity of the Defendant warrant treating him as an adult in this proceeding. Accordingly, the Plaintiff’s Motion to Treat Juvenile Accused as an Adult is granted.

     The Clerk shall set this matter for trial on the next available calendar. The proceedings shall conform to the KRCrP.

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