POHNPEI SUPREME COURT REPORTS
VOL. 1
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Ct. R 239]
POHNPEI STATE,
Plaintiff
v.
JOSEPH ROUTE,
Defendant
Pohnpei Criminal Case No. 273-85
Trial Division of the Pohnpei Supreme Court
September 12, 1985
The defendant was charged with the offense of assault and battery under Chapter 6, Section 6-3 of the Pohnpei State Code. At the close of trial the defense moved to suppress defendant's custodial confession statement on the grounds that it was made under duress, involuntarily and as a result of his severe beating at the time of his arrest by a police officer, and of the fact that the defendant was under pain when he was interrogated and consequently could not have made a voluntary statement. The defendant also pleaded innocence on the ground of self-defense. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, held (1) that the motion of the defense being untimely and there being no promise, threat or coercion made at the time the accused was interrogated, and as the testimonies of witnesses, including the defendant himself, clearly corroborated the extra-judicial confession of the defendant the confession statement was admissible; and (2) that the act of the defendant was an attack rather than a defense, meeting every essential element of assault and battery under Chapter 6, Section 6-3 of the Pohnpei State Code.
1.
Evidence - Confession Statements - Admissibility
It is only when confessions are obtained by threats or promises or under circumstances which legally constitute duress or a violation of the constitutional rights of the accused that they are inadmissible. (29 Am Jur 2d, Evidence, Section 526).
2. Pohnpeian Custom - Disciplinary Authority of Senior Members of Family
Under custom of the land, a grand-uncle (ullap-kahlap) is in a highly respected family position, and commands supreme disciplinary authority over a grand-nephew.
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Ct. R 240]
3. Pohnpeian Custom- Disciplinary Authority of Senior Members of Family
Where grand-uncle of the defendant happens to be the first member of family in authority to come in contact with the accused who has committed an offense, the grand-uncle not only has authority but also the obligation to discipline the accused, even to the extent of beating him.
4. Pohnpeian Custom - Disciplinary Authority of Senior Members of Family
Where evidence confirmed that for various prior misdeeds a granduncle of the accused had exercised customary discipline over the accused, disciplining the accused for a subsequent misdeed is clearly proper under Pohnpeian custom because it is the members of the family in such capacity that take upon themselves the traditional responsibility of seeking settlement or peace-making (tomes) with the family wronged.
5. Pohnpelan Custom - Disciplinary Authority of Senior Members of Family
Where the grand-uncle of an accused in the exercise of his disciplinary authority and obligation beats the accused for his misdeed, the beating depends upon the seriousness of the misdeed and such exercise of discipline is without malice.
6. Pohnpeian Custom - Peace-Making (Tomes)
Traditionally, a grand-uncle is involved in tomes between two different families.
7. Pohnpeian Custom - Peace-Making (Tomes)
Traditionally, the practice of tomes is not easy, and can be dangerous, because it is an admission of wrong by the family making it, and the underlying principle is the bringing of the assailing member of that family to the aggrieved family, to beat, kill or forgive, and can lead to a fight if members of the injured family will want retaliation (Ikih).
8. Pohnpeian Custom - Disciplinary Authority of Senior Members of Family
Disciplinary beating of a younger member of family by a senior member is done when the misdeed is committed, and once done the accused will ordinarily not be subject to beating again.
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Ct. R 241]
9. Pohnpeian Custom - Disciplinary Authority of Senior Members of Family
The beating of a younger member of family by a senior member for the former's misdeed is disciplinary and educational, and is done with love and respect, even though to punish.
10. Constitutional Law - Criminal Protection Guarantees
The principles of criminal protection guarantees applied in the United States of America are based upon a social system which is completely different from that paramount in Pohnpei State, and because of such difference, the framers of the Pohnpei Constitution, while keeping the intent of the Sixth Amendment [to the American constitution] and Miranda, the landmark case which has been cited numerously (ALR 3rd 875), recognized some inherent customary situations where custom must prevail, as shown by Article 5, Section 3, of the Pohnpei Constitution.
11. Constitutional Law - Pohnpeian Custom - Superior Authority of Senior Members of Family
While the language of Article 5 of the Pohnpei Constitution pertains to parents and their offspring, the superior authority of grand parents, uncles (ullap) and grand-uncles (ullap-kahlap) cannot be ignored else the underlying principle of the family relationship, honor and respect, obligation and love will be destroyed in Pohnpei.
12. Evidence - Confession Statements - Admissibility
It is generally held that admissibility of an extra-judicial confession is dependent upon its corroboration by other evidence... it has been required that the corroborative evidence concern the corpus delicti and that before the prosecution can use a confession or incriminating statements there must be submitted other evidence, outside the confession or statements tending to prove the corpus delicti - that is, that someone committed the crime to which he has confessed or admitted (?_9 Am Jur2d Evidence, Section 530).
13. Criminal Law - Procedure - Motions - Motion to Suppress
A motion to suppress evidence must be raised prior to trial. (PNI Rules of Criminal Procedure, Rule 12 (b) (3)).
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Ct. R 242]
14. Criminal Law - Procedure - Motions - Motion to Suppress
Where defense has not tiled a motion prior to trial to that effect but raises the question of admissibility of the accused's confession statement for the first time after the Government has rested, and the defense interrupts the prosecution during its closing argument and moves the Court to make argument on suppression of the accused's confession statement, the motion to suppress is untimely. (PNI Rules of Criminal Procedure, Rule 12 (b)(3)).
15. Evidence - Admissions
Admissions made in the course of judicial proceedings are substitutes for, and dispense with, the actual proof of facts. (29 Am Jur 2d, Evidence, Section 615).
16. Criminal Law - Defense - Self-defense
Where the accused on a charge of assault and battery pleads self defense, the general rule is that only such a degree of violence may be used in self-defense as is necessary, to defend himself against the attack of his adversary. (6 Am Jur 2d, Assault and Battery. Section 72)
Counsel for Plaintiff, Dickson Santos
Counsel for Defendant, Mark Mausert
JUDAH C. JOHNNY, Associate Justice
This matter was tried before me on September 3 and 4,1985, in Kolonia, the State of Pohnpei.
FACTS
Sometime curing the afternoon of March 17,1985, defendant Joseph Route, his younger brother Wains Route, and five other companion boys met i n Kitti and decided to go to Kolonia for a visit.
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They got a pick-up truck belonging to the defendant's family and went to Kolonia. Before returning to Kitti that afternoon they bought two bottles of hard liquor for them, a vodka 80% proof and a bacardi 151% proof. Having purchased their drinks, they left Kolonia for Kitti. When they reached the Palikir church on the way to Kitti, they stopped at the school playground to drink their booze, beginning with the vodka. Before they finished the vodka bottle, they started on their way again, heading for Kitti.
At Paies, police officer Joseph Robi, who was with his wife and two children, caught up with the defendant and his companions. The officer observed that the boys on their vehicle were in possession of alcoholic beverage and stopped them. One of the things that officer Robi did to the boys was to take their car key from the defendant, who was the driver. An altercation ensued. Some of the boys, including the defendant engaged in a fight with officer Robi. While the scuffle was in progress, Solpisio Salvador, who was traveling to Kitti arrived at the scene. Salvador stopped and tried to help stop the boys from fighting officer Robi. In the process, defendant Route threw a rock which hit Salvador on the forehead. A scar from a somewhat round-shaped wound is conspicuous on
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the forehead of Salvador, above his brows, approximately two to three inches in diameter, alleged to be from the wound inflicted by defendant Route's rock.
The fight ended when Salvador was hurt. The boys packed into their truck and ran to the defendant's parent's home at Koros in Kitti, where police Officers Ruben Tom, Kohner Nickolas and Joseph Robi arrested him and his companions. The defendant was kept in jail until the following day, when his custodial confession was obtained by the police and released.
OPINION
[1] At the close trial, the defense moved to suppress Government's Exhibit 11, which was the accused's custodial confession statement. In support of its motion, the defense argues that the accused made his confession under duress, and involuntarily, and as a result of his severe beating at the time of his arrest by Police Officer Ruben Tom, that the accused was under pain when he was interrogated, and consequently could not have made a voluntary statement. I denied.
"It is only when confessions are obtained by threats or promises or under circumstances which legally constitute
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Ct. R 245]
duress or a violation of the constitutional rights of the accused that they are inadmissible." 29 Am Jur 2d, Evidence, Section 526.
The evidence established that immediately before the interrogation at 10:30 o'clock in the morning of March 18, 1985, some 16 hours after his arrest and alleged beating, the accused was explained his rights.
Two type-written sheets are introduced as Government Exhibit I. One is entitled Rights of Arrested Person. This sheet is written in Pohnpeian, with three items. The first item advises the accused of his right to consult counsel, members of family, and supervisor at work or his representative; that these people may come and see him in jail. The second advises the accused that he has a right to counsel and that the police will assist him to communicate by telephone, cable, radio, messenger or other expeditious means with the following people: his counsel, member of his family, or work supervisor, that if he desires to make such contact, he shall inform the police officer then, or at any time that he desires. The last sentence in the sheet represents a statement of the accused, that the rights have been read to him, and that he understands. The sheet is signed by the accused and is counter-
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signed by Interrogator Erickson Martin and witness Osaia Santos.
The other sheet is entitled Notice to Accused. At the top of the page immediately above the five notices, in italics the accused is advised not to answer any question until he fully understands the items below. Five rights are listed which include the right to remain silent, that any statement made by him may be used against him, the right to presence of counsel at anytime, the obligation upon the Police Department to bring the counsel if desired and the availability of the Office of the Public Defender without cost. Following these rights is the question to the accused as to whether he wishes to send for counsel. In a blank below, the accused indicated "no". The instrument is signed by the accused again.
Officers Martin and Santos both testified in Court that at no time did they threat, promise or coerce the accused into making a confession. This was corroborated by the testimonies of the accused. I am satisfied that there was no promise, threat or coercion made at the time the accused was interrogated. The question therefore is whether the accused's custodial statement is influenced by the alleged beating the previous day. In other words, did the accused make his statement in pain and in fear of officer
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Ct. R. 247]
Tom? ! doubt very much.
[2-5] Under custom of the land, officer Tom is grand-uncle (ullap-kahlap) of the accused (brother of accused's maternal grand-father). In such relationship, Ruben Tom is in a highly respected family position, and commands supreme disciplinary authority over Joseph. In that capacity, under the circumstances of this case, as well as being the first member of the family in authority to come in contact with the accused, Tom has not only the authority but also the obligation to discipline the accused, even to the extent of beating him. Evidence confirmed that for various prior misdeeds, officer Tom has exercised customary discipline over the accused by beating. This is clearly proper under Pohnpeian custom because it is the members of the family in such capacity as the relationship here between Tom and the accused, that take upon themselves the traditional responsibility of seeking settlement or peace-making (tomw) with the family wronged. Such exercise of discipline is without malice. Beating depends upon the seriousness of the misdeed. Here the accused was reported to Officer Tom, a family man of authority, to have fought a police
[1 P. S.
Ct. R 248]
officer and to have wounded Salvador who was merely attempting to stop the fight.
[6-7] Traditionally, Tom will be involved in tomw between two different families. The practice of tomwis not easy. It can be dangerous, because it is admission of wrong by the family making it, and the underlying principle is the bringing of the assailing member of that family to the aggrieved family, to beat, kill or forgive. This can lead into fight if members of the injured family will want retaliation (ikih).
[8-9] Defense did not produce convincing evidence that the accused was severely beaten, to the extent that he would not intelligently make a decision the following day. It attempted to place a blame on the Government for not seeking medical aid for the accused. Yet, on release of the accused, after the interrogation, the accused did not see it necessary to seek medical aid. I conclude under the circumstances that irrespective of the degree of family discipline or beating, if there was in fact a beating, that was not severe as to cause the accused the following day, some 16 hours later, to make unintelligent and involuntary decision to make a confession. There is no reason for the accused to fear his grand
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uncle officer Tom. This kind of beating, is done when the misdeed is committed, and once done the accused will ordinarily not be subject to beating again. It is disciplinary and educational, done with love and respect, even though to punish.
[10] The events of this case present an interesting contrast between the United States principle of criminal protection guaranteed under the Constitution of the United States of America and Article 4, Section 9 and Article 5, Section 3 of the Pohnpei State Constitution. The Fifth and Sixth Amendment guarantees are adequately described in the land mark Miranda Case, which has been cited numerously. 10 ALR3rd 875. But the principles applied in the United States are based upon a social system which is completely different from that paramount in the Pohnpei State. Because of such difference, the framers of the Pohnpei Constitution, while keeping the intent of the Sixth Amendment, and Miranda, recognized some inherent customary situations where the custom must prevail. Article 5 Section 3 of the Pohnpei Constitution is an example.
[11-12] While the language of Article 5 pertains to parents and their offspring, the superior authority of grand-parents, uncles
[1 P. S.
Ct. R 250]
(ullap) and grand-uncles (ullap-kahlap) cannot be ignored else the underlying principle of the family relationship, honor and respect, obligation and love will be destroyed in this State. I find no coercion.
It is generally held that admissibility of an extra-judicial confession is dependent upon its corroboration by other evidence... it has been required that the corroborative evidence concern the corpus delicti, and that before the prosecution can use a confession or incriminating statements there must be submitted other evidence, outside the confession or statements tending to prove the corpus delicti that is, that someone committed the crime to which he has confessed or admitted. 29AmJur2d,Evidence,Section 530. Also See Tabor v. United States, 152 F 2d 254; Bradford v. State, 367 P 2d 227 and 45 ALR 2d 227 and 45 ALR 2d 1338 Sec. 14(a).
Here, the testimonies of victim Salvador, Maria Robi and the accused himself clearly corroborate the extrajudicial confession. They all tend to prove the corpus delicti.
[13] Defense motion to suppress is untimely.
"Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion... The following must be raised prior to trial, motion to suppress evidence". Rule 12(b)(3), Criminal Procedure
[14] The first time that the defense raised the question of admissibility of the accused's statement was after the Government
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had rested and the defense purported to call the accused as its second witness, and moved to confine examinations only to the taking of the the accused's extrajudicial confession. This raised the question as to whether or not the Government should be prevented to cross-examine the accused on any other meritorious matters, since the accused, while he had been guaranteed the right to silence, would have, on taking the witness stand during trial on the merit consequently waived that right to silence. Defense counsel was allowed to consult with the accused, and upon resumption of trial, advised the Court of their withdrawal of the intent. The accused was called and subsequently subjected to examination and cross-examination on the merits of the case.
At no time prior to and during the trial did the defense move to suppress the accused's extrajudicial confession. However, at the close of its case, when the prosecution had begun its closing argument, counsel for defense interrupted and moved to make argument on suppression of the accused's confession statement, which had been marked Government Exhibit No. II. The Court reminded the defense that no motion had been made to that effect, but notwithstanding, allowed counsel to argue on admissibility.
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Government's Exhibits I and II are admitted into evidence. The defendant is charged with the offense of assault and battery.
There are two versions accounting for the actions of the people involved in this incident which gave rise to the criminal charge against the defendant. The Government's version indicates that when officer Robi noticed that the boys in their truck were consuming alcohol while traveling toward Kitti, he stopped them and was going to investigate them. The defendant got belligerent about the officer's interruption and started the fight. When the altercation was progressing, the defendant grabbed a rock and while aiming at officer Robi, Mrs. Robi hit the rock off his hand. The defendant got another rock and threatened to hit Mrs. Robi with it. At that time Salvador arrived and started to talk to the defendant to prevent him from throwing the rock. The defendant threw the rock aimed either at Mrs. Robi or at Salvador. The rock hit Salvador.
The defendant's version indicates that Salvador got off his vehicle, went straight to the defendant, grabbed him by the neck of his shirt, pulled him to some distance away and threw thedefendant to the rocky ground, hurting him. While on the ground
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the defendant reached for a rock and while under Salvador, threw the rock up at Salvador's face in self-defense.
The Pohnpei Crimes Act of 1985, Chapter 6, Section 6-3, Assault and Battery reads,
"Every person who shall unlawfully strike, beat, wound or otherwise do bodily harm to another, shall be guilty of assault and battery..."
[15] There is no question from the evidence produced by victim Salvador, Mrs. Robi, or the accused himself in his extrajudicial and judicial confession that the accused threw the rock that hit and wounded Salvador. Even if the extrajudicial confession is not admitted in evidence, his judicial admission sufficiently established that he injured Salvador, making his former confession unnecessary.
"Admissions made in the course of judicial proceedings are substitutes for, and dispense with, the actual proof of facts." 29 Am Jur 2d, Evidence, Section 615.
The defense however pleads innocence on the ground of self-defense. The accused's statement with respect to the time immediately preceding the rock throwing differs. His extrajudicial statement is that Salvador pulled him by his shirt away from the place they were fighting the police and let him go. The accused
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then took a rock and threw it at Salvador, hitting his face. His judicial statement is that Salvador grabbed him by the neck of his shirt, pulled him away and pushed him down and dropped him on the rocky ground. It was then that he grabbed a rock and while on the ground under Salvador, threw the rock up at Salvador's face.
[16] The extensiveness of the wound (scar) on Salvador's forehead is convincing circumstantial evidence that one would have to have a completely free hand to throw a rock to inflict the extent of the wound. I must therefore dismiss the allegation that the accused was lying on the ground when he threw the rock. The testimonies of Salvador corroborate the accused's statement that he was standing at the time he threw the rock. Maria's testimonies further corroborates the standing/throwing evidence. She had grabbed a rock from the accused earlier as he was aiming to throw it at officer Robi. The accused then took another rock and was in argument with Maria to throw it at her. There was no wrestling and throwing of bodies to the ground when the fatal rock was thrown. Salvador came in and in attempting to stop the accused, either he was thrown at, or came in cross-fire. The accused claimed that he and Salvador fought. I believe not. The
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accused had gotten belligerent, and fought with officer Robi. When Maria grabbed the rock he wanted to inflict upon the officer, he turned maliciously against her. It was then that Salvador came into the picture. The accused would not take advise. Salvador had no reason to fight. He was being a good Samaritan passer-by, who decided to help stop the fight. I am not convinced that Salvador handled the accused in such a degree to cause the accused to believe that his life was endangered for death or great bodily injury. There was no argument, other than Salvador's persuading talks to the accused, not to throw the rock. Salvador did not have any weapon, and even if he did in fact hold the accused at the neck of the shirt, I am not convinced under the circumstances that that alone constituted adequate threat to justify the rock throwing in self-defense.
"The general rule is that only such a degree of violence may be used [by a person] in self-defense as is necessary, to defend himself against the attack of his adversary." 6 Am Jur 2d, Assault and Battery Section 72.
In this case, Salvador neither assaulted nor fought the accused. He was merely trying to help stop the group of boys from fighting a police officer.
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I must conclude, based on the above, that the throwing by the accused of the rock which hit and wounded Salvador is an attack rather than a defense, meeting every essential element of assault and battery under Chapter 6, Section 6-3, of the Pohnpei State Code. The accused is guilty of assault and battery.
SENTENCE
The accused is imprisoned for 18 months, all suspended on conditions set forth in the record of trial.