State of Pohnpei v.Pelep

POHNPEI SUPREME COURT REPORTS

VOL. 1

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STATE OF POHNPEI,

Plaintiff

ELIAS PELEP,

Defendant

Pohnpei Criminal Case No. 473-85

Trial Division of the Pohnpei Supreme Court

November 21, 1985

Defendant was charged on three counts for criminal offenses: Count I for reckless driving, Count II for driving while under the influence of alcohol and other drug, and Count III for driving a motor vehicle without a valid driver's license. On arraignment he pleaded not guilty to Counts I and II and guilty to Count III. At the trial the direct evidence comprising the testimonies of the defendant and the Government's first witness, whose truck was also involved in the collision leading to this case, was conflicting, but a sketch of the incident was offered in evidence by the Government. The defence moved for the exclusion of the sketch on the ground that it was made a day after the incident and was only a copy of the original draft. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, held:

(1) denying the motion, that the sketch illustrating the scene of the transaction and the relative location of objects, if shown to be reasonably accurate and correct, was admissible in evidence in order to enable the Court or jury to understand and apply the established facts to the case, though the sketch was made after the date of the transaction;

(2) that given the zigzagging driving by the accused and the narrowness and winding condition of the vicinity of the incident there was enough proof that the defendant did drive his motor vehicle on the highway in a manner constituting willful, wanton disregard for the safety of persons and property; and

(3) that the evidence failed to establish beyond reasonable doubt that the defendant was under the influence of intoxicating liquor at the degree that impairs his faculties so that he could not drive his motor vehicle safely.

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1. Evidence - Credibility of Witnesses

Where the direct evidence of the defendant conflicts with that of the Government's witness one must be true and the other not, and the Court must accredit one and discredit the other.

2. Evidence - Credibility of Witnesses

Where the direct evidence of the defendant conflicts with that of the Government's witness the Court must look at evidence beyond the direct evidence and relate the conflicting evidence to that to test the credibility of one against the other.

3. Evidence - Admissibility - Maps, Drawings, Diagrams

It is a well-established rule, applied in everyday practice in Court that maps, drawings and diagrams illustrating the scene of a transaction and the relative location of objects if shown to be reasonably accurate and correct are admissible in evidence, in order to enable the Court or jury to understand and apply the established facts to the particular case.

4. Evidence - Maps, Drawings, and Diagrams

Maps, drawings and diagrams tendered in evidence may be made by the witness while testifying, either by his own hand or by direction of counsel, or they may be made prior to the trial, either by the witness or another person, and it is not improper to make a diagram or sketch of an accident after the date of transaction.

5. Evidence - Admissibility - Maps, Drawings and Diagrams

Where it appears that the diagrammatic representation of a place or object is made at a time separated by a considerable interval from that of the event in issue, and the maker can verify it only at the time he made it, the question whether it may be used or admitted usually depends on the circumstances.

6. Evidence - Admissibility - Maps, Drawings and Diagrams

If the portrayal is of objects of a fixed and permanent nature, and the interval of time between the event in issue and the making of the map, plat or other drawing is reasonable in relation to that fact, there is a

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presumption of continuity of conditions which will support the admission or use of the drawing in the absence of the evidence of changes.

7. Evidence - Admissibility - Sketch

Where the defence objects to the admission of the sketch of an accident on contention that it was not made at the scene and on the date of the accident, there is stare decisis to the contrary and the defendant's contention is without merit.

8. Evidence - Corroboration - Sketches

In a criminal prosecution for reckless driving, the sketch of the scene of the accident may be corroborated by the testimony of the police officer who made the sketch.

9. Criminal Law - Reckless Driving

The core of the offense of reckless driving lies not in the act of operating a motor vehicle, but in the manner and circumstances of its operation.

10. Criminal Law - Reckless Driving

The mere occurrence of an accident does not give rise to an inference of reckless driving.

11. Criminal law- Reckless Driving

Something more than an error of judgment or mere negligence in the operation of a motor vehicle is necessary to constitute the offense of reckless driving.

12. Criminal Law - Reckless Driving

To constitute reckless driving there is required a willful disregard of the consequences of the driving.

13. Criminal Law - Reckless Driving - Proof

For driving to be reckless it must be shown that the person who drives on the highway does so in a willful or wanton disregard for the safety of persons or property.

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14. Criminal Law - Reckless Driving

The failure to exercise care as amounts to disregard for the safety of others is "willful" or "wanton", such terms importing premeditation or knowledge and consciousness that injury is likely to result from an act or omission to act.

15. Criminal Law - Reckless Driving

To be "wanton" within a vehicle statute the acts must be performed with actual knowledge of the existing condition or surrounding circumstances and must be such as to make the malefactor conscious that his conduct in all common probability results in injury.

16. Criminal Law -Reckless Driving

An act is not "wilful", "wanton" and "reckless" where there is a mere failure to exercise the degree of care due under the particular circumstances, but something more than acts regarded as constituting negligence must be shown.

17. Criminal Law - Reckless Driving

As a general rule, the question of what constitutes reckless driving is to be determined from all the surrounding circumstances where the statute denouncing the offense does not specifically declare what particular acts shall constitute the offense.

18. Criminal Law - Reckless Driving - Considerations

Various circumstances to be taken into consideration with respect to the conduct of the driver of a motor vehicle when charged with reckless operation include the time when, and place where the alleged reckless driving took place, the condition of the vicinity as to light! or darkness or visibility, the width of and the amount of traffic on the highway at the time, the position of other vehicles, the right of way as between them, the mechanical condition of the motor vehicle, including its brakes, its weight, the opportunity for observation, the likelihood of being able to stop or avoid a collision, and whether the accused was driving while under the influence of intoxicating liquor (52 ALR 2d 1347-134, Section 8).

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19. Criminal Law - Statutes - Construction

It was not the intent of the framers of the law to fasten guilt in the case of any and every "influence" due to the use of intoxicating liquor, however slight, but the law was enacted to protect the public from those who, while under the influence of intoxicating liquor, attempt to operate an automobile upon the highways of this State; and the law should be liberally construed so as to effect its purpose and bring safety to those who drive the public highways in an orderly and lawful manner.

20. Criminal Law - Statutes - Construction

The tape rule in determining the extent of intoxication to constitute the crime of "driving under the influence of intoxicating liquor" is "to a degree which renders the accused incapable of safely driving".

21. Criminal Law - Driving Under the Influence of Intoxicating Liquor

If intoxicating liquor has far affected the nervous system, brain or muscles of the driver as to impair to an appreciable degree, his ability to operate his car in a manner that an ordinary man, prudent and cautious man, in full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is under the influence of intoxicating liquor.

22. Evidence - Burden of Proof - Presumptions - Person Under Influence of Intoxicating Liquor

"Upon the trial of any civil or criminal action, or preliminary proceedings in a criminal case or action, arising out of facts alleged to have been committed by any person while driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the time of the test shown by chemical analysis of his blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof; ...(3) if there was at the time 0.10 percent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of intoxicating liquor at the time of the alleged acts."(D.L.4L-15878.)

23. Evidence - Burden of Proof - Person Under Influence of Intoxicating Liquor

The burden of proof that a person driving a motor vehicle is under the

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influence of intoxicating liquor is on the Government.

Counsel for the Plaintiff: Harold Henry

Counsel for the Defendant: Ioanis Kanichy

JUDAH C. JOHNNY, Associate Justice,

Trial in this matter was held before me on November 6,15 and 18, 1985, in Kolonia, Pohnpei State.

Opinion

The criminal complaint charges that sometime in the afternoon of October 3, 1985; at Lewi, Nett Municipality, State of Pohnpei, the defendant unlawfully, Count I, committed the criminal offense of reckless driving, by recklessly operating a motor vehicle on the public road in a zigzagging course, thereby colliding into another motor vehicle belonging to Alfonso Rodriguez; Count II, committed the criminal offense of driving while under the influence of alcohol and other drug, by operating a motor vehicle while he was under the influence of liquor and Count III, driving without license, by operating a motor vehicle when he had no valid driver's license.

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On arraignment, the defendant pleaded not guilty to Counts I and II, and guilty to Count III.

Alfonso Rodriguez, the Government's first witness brought in evidence that at about 2:00 o'clock in the afternoon of October 3, 1985, he was on Government duty, and drove from Kolonia, heading to the Government Public Works Office (former MAEDA site) near the Pohnpei Hospital to pick up materials. On the way, as he was approaching the Lewi bridge in Nett, where the road was winding to the left, heading toward Nett, he noticed approaching in the opposite direction, a pick-up truck which was swerving on its course. He figured that if the truck continued to swerve, it would collide into his. He abruptly stopped his truck in his lane to avoid collision. Regardless, the other truck ran off course, crossed the center line and collided into his truck, ramming into the front portion of his truck. He testified that it was the defendant who operated the other truck. The defendant asked for forgiveness and had paid for the damage caused by the collision. The defendant appeared to be intoxicated.

Officer Frederick Route, the Government's other witness, testified that he was on police duty at the time and was dispatched

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to the scene in response to the report of the collision. He inspected the scene of the collision, surveyed it, and prepared a rough sketch of the location. He returned to post and on the following day, drew a final sketch which was introduced into evidence at the trial.

On direct examination as to whether the officer found the defendant drunk, he indicated that the defendant smelled liquor, seemed drunk in his behavior and speech. On cross-examination as to whether the defendant was required to take the chemical test of his blood, breath, urine or saliva; for the purpose of determining the alcoholic content of his blood, the officer testified that this was not done. While the accused was interrogated by the police officers, no custodial confession was introduced.

In his defense, the defendant brought evidence that in the afternoon of October 3,1985, he traveled on his pick-up truck from Meitik, Nett, to Kolonia in order to sell his farm produce in the Kolonia markets. As he had just passed the bridge at Lewi, in Nett, he noticed a pick-up truck approaching in the opposite direction from Kolonia, operated by Alfonso Rodriguez. When he noticed that Rodriguez's, truck ran off its lane he immediately stopped. Rodriguez's truck hit his nevertheless, causing the defendant's

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truck to veer off to the right and hit the metal railing, and resulting in damages on both front sides of his truck. The defendant called other witnesses, all of whom could not testify having seen the position of either vehicle at the time of impact or immediately prior to it. The defendant denied having consumed any alcohol on the day of the incident.

[1-6] As can be seen here, we have two interestingly, so conflicting direct evidence, that for me to admit one as true, the other must then be far from true. This conflict is interesting because if I am to believe in both testimonies, then there must have been no collision. For example, note that each driver, Rodriguez and the accused, testified that he immediately stopped his vehicle when he saw the other vehicle was going to hit his. If both testimonies are true, then why was there a collision? There would be no collision if both vehicles did in fact halt abruptly when its operator saw the other approaching to collide. One testimony must be true and the other not, and i must accredit one and discredit the other. In this instance I must look at evidence beyond the direct evidence and relate the conflicting evidence to that to test the credibility of one against the other. What I have before me aside from the direct trial

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testimonies of witnesses, is a diagram or sketch which was offered into evidence by the prosecution. As noted earlier, this sketch is a final rewritten sketch which was prepared a day after the incident, based upon the draft prepared on the scene of the accident on October 3, 1985. The defense has moved for exclusion of the sketch on the ground that it was made a day after the incident and is only a copy of the original draft. I will deny that motion for the following reason. It is a well-established rule, applied in everyday practice in court that maps, drawings and diagrams illustrating the scene of a transaction and the relative location of objects, if shown to be reasonably accurate and correct, are admissible in evidence, in order to enable the court or jury to understand and apply the established facts to the particular case. Such maps, drawings, and diagrams may be made by the witness while testifying, either by his own hand or by direction of counsel, or they may be made prior to the trial, either by the witness or another person. It is not improper to make a diagram or sketch of an accident after the date of the transaction. Where it appears that the diagrammatic representation of a place or object is made at a time separated by a considerable interval from that of the event in issue, and the maker

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can verify it only at the time he made it, the question whether it may be used or admitted usually depends on the circumstances. If the portrayal is of objects of a fixed and permanent nature, and the interval of time between the event in issue and the making of the map, plat, or other drawing is reasonable in relation to that fact, there is a presumption of continuity of conditions which will support the admission or use of the drawing in the absence of the evidence of changes.

With respect to the defense objection to the admission of the sketch on contention that it was not made at the scene and on the date of the accident there is stare decisis to the contrary. Only to name a few, see the following cases: Burrett v. State, 190 Tenn. 366 18 ALR 2d 789, where the court permitted the prosecution in a robbery case to make a diagram on the courtroom floor, of the building in which the robbery was committed. This ruling was sustained on appeal. In a case of an automobile accident, an engineer's map was produced which had been made a few days before trial, and which showed the shoulder of the highway as being surfaced with oiled rock. The engineer testified that when he took the measurements they were so constructed. It appeared that

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where the accident happened, they were of dirt only: After fully explaining this inaccuracy to the jury, the trial judge admitted the map into evidence. His ruling was sustained on appeal. See Silvey vs. Harm (1932) 120 Cal. App. 561, 8 P 2d 570.

[8] Officer Route, who prepared the sketch in the instant case appeared and testified that he did in fact make a rough sketch on the site and the date of the accident, but prepared the final sketch the following day from the rough draft. I am satisfied with the credibility of his testimony, and find the contention of the defendant without merit. I must ignore it.

Careful examination of the sketch as corroborated by the testimonies of Officer Route indicates certain facts. First, that there was tire tract which appeared to have skidded from the right lane of the road coming to Kolonia from Nett, crossed the centerline into the left lane. The pick-up driven by Mr. Rodriguez is positioned in the left lane, pointed at in about forty five degree angle across the left lane, with the front toward the center line. A point of impact, evident from fallen dirt and glass is immediately in front of Mr. Rodriguez's pick-up on the pavement in the left lane. The defendant's pick-up is not shown, although evidence indicated that

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it was pushed off the road after the impact to allow passage of traffic. The sketch is admitted into evidence.

[9-16] The core of the offense of reckless driving lies not in the act of operating a motor vehicle, but in the manner and circumstances of its operation. See State v. Child, 17ALR 3rd 1275. The mere occurrence of an accident does not give rise to an inference of reckless driving. See People v. Grogan, 86 ALR 1266. Also see the annotations in 52 ALR 2d 1337 and 1367, at Section 24. Something more than an error of judgment or mere negligence in the operation of a motor vehicle is necessary to constitute the offense of reckless driving. A wilful disregard of the consequences is required. It must be shown that the person who drives on the highway does so in a wilful or wanton disregard for the safety of persons or property. The elements of the crime are clear. The operation must be wilful or it must be in a wanton disregard for the safety of persons or property. Such failure to exercise care as amounts to disregard for the safety of others is "wilful" or "wanton", such terms importing premeditation or knowledge and consciousness that injury is likely to result from an act or omission to act. To be "wanton" within a vehicle statute, the acts must be performed

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with actual knowledge of the existing condition or surrounding circumstances and must be such as to make the malefactor conscious that-his conduct in all common probability results in injury. It is not "wilful", "wanton" and "reckless" where there is a mere failure to exercise the degree of care due under the particular circumstances, but something more than acts regarded as constituting negligence must be shown:

[17-18] As a general rule, the question of what constitutes reckless driving is to be determined from all the surrounding circumstances where the statute denouncing the offense does not specifically declare what particular acts shall constitute the offense. Various circumstances to betaken into consideration with respect to the conduct of the driver of a motor vehicle when charged with reckless operation include the time when and place where the alleged reckless driving took place, the condition of the vicinity as to light or darkness or visibility, the width of and the amount of traffic on.the highway at the time, the position of other vehicles, the right of way as between them, the mechanical condition of the motor vehicle, including its brakes, ifs weight, the opportunity for observation, the likelihood of being able to stop or avoid a collision, and

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whether the accused was driving while under the influence of intoxicating liquor. See 52 ALR 2d 1347-1348, Section 8.

In the matter at bar, the accident occurred on a paved road, where the road winds in slanting elevation, immediately next to a rather high bridge. The dangerous condition of that narrow stretch of road where the accident took place required the Government to erect metal railings along both sides of the road. Any prudent man operating a motor vehicle on that section of road, observing this safety precaution must naturally exercise care in traveling. Testimonies of the Government indicate that the defendant was traveling in a swerving or zigzagging course. Mr. Rodriguez stopped immediately, and the sketch indicates from the track of rubber tires that the defendant did in fact put on his brakes. The speed at which the defendant was traveling will have to be at a high rate so that his truck would skid for about 27.4 feet to collide into the other vehicle and knock that other vehicle back and away from the point of impact. Even in the absence of a consideration of the rate of speed that the defendant traveled, his zigzagging driving on that stretch of road, given the narrowness and winding situation of the vicinity is enough proof that he did drive his motor vehicle on the highway

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in a manner constituting wilful, wanton disregard for the safety of persons and property. I therefore find him guilty.

The defendant is also charged with the offense of driving while under the influence of alcohol or other drugs, in violation of the Pohnpei Vehicle Code, Chapter 8, Section 805.

[19-21] This Court in an earlier matter had said that S.L.2L-132-82 does not define what is meant by the term "under influence of intoxicating liquor." See Pohnpei State v. Route, PCR 1 72-85. In Route supra, the Court opined that the gist of the crime under S.L.2L-132-82 is, "under the influence of intoxicating liquor." This Court went further to hold that it was not the intent of the framers of the law to fasten guilt in the case of any and every "influence" due to the use of intoxicating liquor, however slight; that the law was enacted to protect the public from those who, while under the influence of intoxicating liquor, attempt to operate an automobile upon the highways of this State; that the law should be liberally construed so as to effect its purpose and bring safety to those who drive the public highways in an orderly and lawful manner; that the tape rule in determining the extent of intoxication to constitute the crime should be, to a degree which renders him

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incapable of safely driving." That is, that the degree must be at an extent where he is "incapable"of safely driving. If intoxicating liquor has far affected the nervous system, brain or muscles of the driver as to impair to an appreciable degree, his ability to operate his car in a manner that an ordinary man, prudent and cautious man, in full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is under the influence of intoxicating liquor."

[22] It may be interesting to note that at present, there is another state law in effect which provides for presumption of intoxication. See D.L. 4L-158-78. This law reads in part,

"(3) If there was at that time 0.10 percent or more by weight of alcohol in the person's blood, it shall be presumed that the person was under the influence of intoxicating liquor at the time of the alleged acts."

[23] This law requires the use of chemical machinery to test the percentage of alcohol present in a defendant's blood at time of

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an alleged criminal act. As noted in this law, such chemical test shall give rise to the presumption affecting the burden 'of proof. Properly, the burden of proof is on the Government - Evidence adduced by both parties indicated that no such test was taken. In fact, the prosecution's evidence indicated that such a test was not taken of the defendant because the State does not have the chemical machine to carry out the requirement of the law. This is interesting. The Legislature has on behalf of the people determined that such legal process is effected in this State. However, no one has seen it necessary to obtain the required tool to carry out the intent of the law. This is like putting the public safety on a boat with an outboard motor to go on a mission, but not giving them the fuel for the engine. As a result, they have been drifting for some seven years awaiting to begin their journey

In the absence of the ingredients, and the resulting impossibility to enforce D.L.4L-158-78, we are left with S.L. 2L-132-72. I find the evidence failed to establish beyond reasonable doubt that the defendant was under the influence of intoxicating liquor at the degree that impairs his faculties so that he could not drive his motor vehicle safely that afternoon of October 3, 1985. He must be

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acquitted.

The defendant pleaded guilty to the charge of driving without a valid license, in violation of Chapter 3, Section 301, of the Pohnpei State Vehicle Code, and I am satisfied that such plea is made voluntarily and intelligently I find him guilty

Sentence

As to Count I, the defendant is to serve a sentence of imprisonment for a period of one month suspended on conditions set forth in a separate instrument on file.

As to Count III, the defendant is to-pay a fine of $10.00, payable not later than December 20, 1985.