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Republic of the Marshall Islands v Lemark [2006] MHSC 1; 3 MILR 19 (14 June 2006)

3 MILR 19

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S. CT. CRIMINAL NO. 04-03
(High Ct. Crim. No. 2004 – 034)

REPUBLIC OF THE MARSHALL ISLANDS
Appellant

-v-

RENE LEMARK,
Appellee.

APPEAL FROM THE HIGH COURT

JUNE 14, 2006

CADRA, C.J.
GOODWIN, A.J. pro tem^[1], and KURREN, A.J. pro tem^[2]

SUMMARY:

This is an appeal from an order of the High Court denying the prosecutor’s request for a continuance and dismissing the criminal proceedings for want of prosecution. The Supreme Court held that the High Court acted within its discretion in denying the request for a continuance because the prosecutor’s failure to subpoena essential witnesses constituted a lack of diligence. Because the prosecutor failed to produce witnesses and to make out a prima facie case of the offense charged, the High Court also acted within its discretion in dismissing the criminal proceedings with prejudice. The dismissal was, therefore, affirmed.

DIGEST:

1. APPEAL AND ERROR – Review – Discretionary Matters – Continuances: The decision to grant or deny a requested continuance is within the trial court’s discretion and will not be disturbed on appeal absent clear abuse of that discretion.

2. WITNESSES – Continuance – Grounds: When a continuance is sought to obtain witnesses, the party seeking the continuance must show that the witnesses can probably be obtained if the continuance is granted and that "due diligence" has been used to obtain their attendance on the day set for trial.

3. WITNESSES – Continuance – Grounds: Courts generally deny requests for continuances based on the nonappearance of a witness unless the litigant can show "due diligence" in attempting to subpoena the witness.

4. WITNESSES – Continuance – Grounds: The trial court is under no obligation to grant continuances until a non-subpoenaed witness finally arrives.

5. CRIMINAL LAW AND PROCEDURE – Dismissal – For Want of Prosecution: The court has the inherent discretion to dismiss criminal cases, with or without prejudice, for want of prosecution.

6. CRIMINAL LAW AND PROCEDURE – Dismissal – For Want of Prosecution: The power to dismiss a case for want of prosecution exists even if the delay does not rise to the level of a violation of the defendant’s constitutional right to a speedy trial.

7. CRIMINAL LAW AND PROCEDURE – Dismissal – For Want of Prosecution: The trial court’s authority to dismiss a case for want of prosecution is not limited by either the RMI Constitution, Art. I, Sec. 4 or by 32 MIRC 155.

8. CRIMINAL LAW AND PROCEDURE – Continuance – Denied – Effect: When a motion for continuance to obtain witnesses is denied, the prosecution generally has only two options available: (1) it can file a nolle prosequi to the charges, having the ability to refile at some later time within the speedy trial period; or (2) proceed to trial then and there without its witnesses. Should the prosecution proceed to trial and fail to present a prima facie case, it runs the risk that the charges will be dismissed for lack of sufficient evidence.

9. APPEAL AND ERROR– Affirm, Grounds for: An appellate court can affirm a trial court on any ground supported by the record. This rule has been applied to criminal proceedings.

PER CURIUM

This is an appeal from an order of the High Court dismissing criminal proceedings for want of prosecution. Finding no abuse of discretion, we affirm.

I. FACTUAL/ PROCEDURAL BACKGROUND

On June 15, 2004, appellee Rene Lemark was charged by criminal information with a single count of violating sections 10 and 30 of the Adoption Act of 2002. The criminal information alleged that from on or about April to December, 2003, Rene Lemark unlawfully solicited Judy Liet to travel outside of the Republic for purposes of placing her then unborn child for adoption.

The criminal information was supported by an affidavit given by Terry Gross. While Mr. Gross’ affidavit references three children he parented with Judy Liet, the allegations of the criminal information only concern the couple’s second child, Eloney. Mr. Gross averred that Judy Liet became pregnant with Eloney in March, 2003, and that he believed he was the father. During Liet’s pregnancy, Gross observed Rene Lemark frequently visiting with Judy Liet at their (Gross and Liet’s) home. Liet allegedly told Gross that she had been paid $2,000 for the adoption of Eloney. Gross further averred that he had been told that Rene Lemark had purchased tickets for Liet, Liet’s mother and an individual believed to be an adoption facilitator for purposes of travel to Hawaii. On December 19, 2003, Judy Liet traveled to Hawaii for purposes of placing Eloney for adoption. Eloney was born in Hilo on March 27, 2004, and was placed by Liet with a single woman in the State of Maine. Interestingly, nowhere in the affidavit does Gross state this placement or adoption of Eloney was without his consent.

In the supporting affidavit, Gross expressed his concern that his first child, Terry Lynn Gross, was going to be taken out of the Marshall Islands by Liet for adoption by the same woman who had adopted Eloney. Liet had threatened that she would take Terry Lynn to the United States on May 7, 2004. The affidavit, however, contains no allegations that Rene Lemark was involved in this threatened adoption and the criminal information does not charge any unlawful acts over that time frame.

Lemark was arraigned on August 27, 2004. A plea of "not guilty" was entered to the single count of the criminal information. A trial date of September 22, 2004, at 9:00 am. was subsequently set by the trial court upon stipulation of the parties.

Trial commenced on September 22, 2004, at 10:15 am. At that time, the prosecutor advised the court that he was able to proceed, that there were two witnesses present and he believed two of the Republic’s other witnesses (Terry and Judy Gross) were on their way. After answering ready, the Republic immediately made a motion for a thirty minute continuance. Upon questioning by the court, the prosecutor admitted that neither missing witness had been subpoenaed to appear[3]. The court thereupon denied the requested continuance. The Republic then advised the court that the two missing witnesses "should not delay us, better than 11:00 o’clock." The Republic proceeded with its opening statement and called the two witnesses then present, Michael Jenkins and Steven Abwe.

Michael Jenkins, director of the Central Adoption Agency, testified that he had received a complaint from Mr. Terry Gross that his daughter Terri Lynn Gross had been scheduled to travel outside of the Republic of the Marshall Islands for purposes of being "adopted out internationally." Jenkins further testified that no application for adoption of Terri Lynn Gross had been received by the Agency[4]. Steven Abwe, an investigator with Public Safety, Criminal Investigation Division, merely testified that Lemark declined to provide a statement after being read her Miranda rights.

Upon conclusion of Jenkins’s and Abwe’s testimony, the Republic advised the court that no further witnesses were available. The court adjourned stating that it would give the Republic five minutes to locate its missing witnesses.
While it is unclear how long the adjournment actually lasted, the transcript indicates the court went back on record at 11:00 a.m. The Republic made a motion for a further continuance which was denied. Defense counsel then moved to dismiss for want of prosecution on the grounds that Lemark’s right to a "speedy and fair trial" had been violated. The trial court granted the motion, entering an order of dismissal with prejudice for want of prosecution. This appeal followed.

II. DISCUSSION

A. The Issues Presented by this Appeal.

On appeal, the Republic argues that the trial judge abused his discretion in entering the order of dismissal because (1) Lemark’s constitutional right to a speedy trial was not violated, and (2) 32 MIRC, sec. 155 allows the court to dismiss a criminal action only if there is unnecessary delay in bringing the accused to trial.
While we may agree with the Republic that Lemark’s constitutional right to a speedy trial was not violated, we disagree with the Republic’s contention that a criminal case can be dismissed only for unnecessary delay in bringing the accused to trial.
The proper analysis under the circumstances presented by this case is not whether Lemark was denied her constitutional right to a speedy trial but, rather, whether the trial court erred in denying the requested continuances. If the continuances were properly denied then it necessarily follows, under the peculiar facts presented by this case, that dismissal was warranted.

B. The Trial Court Acted Within Its Discretion in Denying the Requested Continuances because the Republic Failed to Exercise "Due Diligence" in Securing the Presence of its Essential Witnesses.

[1,2] The decision to grant or deny a requested continuance is within the trial court’s discretion and will not be disturbed on appeal absent clear abuse of that discretion. United States v. Hoyos, [1978] USCA9 426; 573 F.2d 1111, 1114 (9th Cir. 1978); United States v. Hernandez-Berceda, [1978] USCA9 379; 572 F.2d 680 (9th Cir. 1978); United States v. Thompson, [1977] USCA9 906; 559 F.2d 552 (9 Cir. 1977). When a continuance is sought to obtain witnesses, the party seeking the continuance must show that the witnesses can probably be obtained if the continuance is granted and that "due diligence" has been used to obtain their attendance on the day set for trial. Hoyos, supra, at 1114; United States v. Clinger, [1982] USCA4 1085; 681 F.2d 221, 223 (4th Cir. 1982),

[3] Courts generally deny requests for continuances based on the nonappearance of a witness unless the litigant can show "due diligence" in attempting to subpoena the witness. United States v. Oliver, [1982] USCA7 535; 683 F.2d 224, 228 (7th Cir. l982) (failure to subpoena a witness or request a continuance undermines claim of due diligence); United States v. Shaw, [1991] USCA5 26; 920 F.2d 1225, 1230 (5th Cir. 1991) (failure to subpoena important defense witness when available constitutes lack of due diligence); United States v. Ouinn, [1990] USCA6 771; 901 F.2d 522, 528 (6th Cir. 1990) (government’s issuance
of a subpoena on Thursday before Monday trial, despite one month notice of trial date, held unreasonable); Triplett v. State, 666 So.2d 1356, 1361 (Miss. 1995) (failure to subpoena important defense witness when available constitutes lack of due diligence).

"Due diligence" in the context of requests for continuances has been defined as follows:

It must affirmatively appear that [counsel] exercised due diligence in procuring process for witnesses to appear at trial and delay showing lack of diligence may preclude his securing a continuance because of their absence. If, however, the delay is due to the negligence of the sheriff or other officer, accused will not be affected thereby. Due diligence requires that [counsel] should have subpoenas issued in ample time to procure service, or to take depositions if attendance cannot be had, and delay for varying periods after indictment has been held, under the circumstances of the particular case to show lack of diligence. . . .It has been held that diligence is not shown where [counsel] waits to secure issuance of process for absent witnesses until the date the case is called for trial, or until the trial has actually begun, or until an unreasonably short time before the trial is scheduled to begin.

Elam v. State, 50 Wis.2d 383, 390, 184 N.W.2d 176 (1971) (quoting 22A C.J.S. Criminal Law, Sec. 503b(2) (1971)).

In this case, the Republic failed to exercise due diligence in obtaining the presence of its essential witnesses at trial by its failure to issue subpoenas compelling their attendance. Absent a subpoena, the Grosses were under no legal compulsion to appear and testify. The trial judge was consequently hampered in his ability to proceed with trial in a timely fashion. The judge had no authority to compel the Grosses to appear at trial by issuing a bench warrant or order to show cause because there was no subpoena to enforce.

While the prosecutor advised the court that two employees from the Central Adoption Authority had been dispatched to pick up the Grosses, those employees had no authority to compel these witnesses’ attendance at trial. This case does not present the situation noted in Elam, supra, where nonappearance can be attributed to neglect of a sheriff or other officer charged with the responsibility of making service of a subpoena or securing the presence of witnesses for trial.

The Republic also failed to show that the Grosses could be produced within a reasonable period of time even if the requested continuances had been granted. Trial had been set to commence at 9:00 am. The Grosses had not appeared at the time trial actually commenced at 10:15 a.m. The prosecutor after requesting the initial thirty minute continuance advised the trial court that securing the presence of these witnesses "should not delay us, better than 11:00 o’clock." Yet the record reveals that the Grosses still had not arrived by 11:00 a.m. when Lemark made the motion to dismiss. Thus, even if the initial continuance had been granted, the continuance would have been insufficient in securing the Grosses’ presence at trial.

[4] The trial court is under no obligation to grant continuances until a non-subpoenaed witness finally arrives. We find that the failure to serve a subpoena on these two essential witnesses constitutes a lack of due diligence by the Republic. We therefore conclude that the trial court acted within its discretion in denying the Republic’s repeated requests for a continuance. The issue then becomes whether the trial court’s order of dismissal with prejudice was appropriate.

C. The Court did not Abuse its Discretion in Granting the Motion to Dismiss.

1. The trial court has the inherent authority to dismiss a criminal prosecution, at any stage of the proceedings, for want of prosecution.

The Republic is mistaken in its contention that a trial court can only dismiss a criminal case on speedy trial grounds. The inherent authority of the trial court to dismiss a criminal proceeding for failure to prosecute is well established.

[5] The court has the inherent discretion to dismiss criminal cases, with or without prejudice, for want of prosecution. See, e.g., State v. Mageo, 889 P.2d 1092, 1096 (Haw. App. 1995). This power emanates from the trial court’s power to administer justice.

"From time immemorial, certain powers have been conceded to courts because they are courts. Such powers have been conceded because without them they could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence. These powers are called inherent powers." Wisconsin v. Cannon, 221 NW 603, 603 (Wis. 1928).

[6,7] The power to dismiss a case for want of prosecution exists even if the delay does not rise to the level of a violation of the defendant’s constitutional right to a speedy trial. See, e.g., United States v. Hattrup, [1985] USCA9 943; 763 F.2d 376, 377 (9th Cir. 1985). The inherent power of the court to dismiss for want of prosecution is much broader and serves a purpose other than merely effectuating a defendant’s right to a speedy trial. The trial court’s authority to dismiss a case for want of prosecution is not limited by either the RMI Constitution, Art. 1, Sec. 4 or by 32 MIRC 155.

The inherent power to dismiss a case for want of prosecution being established, the issue becomes whether the trial court abused that power.

A case which is closely analogous to the instant case is State v. Glaindez, 346 A.2d 156 (Del. Supr. 1975). In Glaindez, the court affirmed the dismissal of a criminal indictment based upon the State’s failure to secure the attendance of a vital witness. The State made no attempt to ascertain whether the witness had been served with a subpoena until the day before trial. Having failed to secure the presence of a vital witness prior to trial, the case was dismissed for want of prosecution.
In this case, the Republic failed to secure the presence of its vital witnesses by use of subpoenas. Since the Republic’s vital witnesses did not appear for trial and since the court had no means of compelling their attendance at that late date, the trial court had few options but to dismiss. We find no abuse of discretion in dismissing the charges for want of prosecution under the unique facts presented in this case. The issue reduces to whether dismissal with prejudice was proper.

2. The dismissal with prejudice was proper because the Republic failed to prove its case at trial.

[8] When a motion for continuance to obtain witnesses is denied, the prosecution generally has only two options available: (1) it can file a nolle prosequi to the charges, having the ability to refile at some later time within the speedy trial period; or (2) proceed to trial then and there without its witnesses. Should the prosecution proceed to trial and fail to present a prima facie case, it runs the risk that the charges will be dismissed for lack of sufficient evidence. See, e.g., State of Florida v. S.M.F., 546 So.2d 20 (Fla. 1989).

In this case, the first option was not available to the prosecution since trial had commenced and jeopardy had attached. The Republic chose the second option by proceeding with trial and, therefore, ran the risk that charges could be dismissed for lack of evidence.

At the conclusion of Jenkins’s and Abwe’s testimony, the trial court would have been justified in simply closing the Republic’s evidence, allowing Lemark to put on her case (if any), making a finding of "not guilty" if the Republic had failed to meet its burden of proof and entering a judgment of acquittal.

[9] An appellate court can affirm a trial court on any ground supported by the record. City Solutions, Inc. v. Clear Channel Communications, [2004] USCA9 263; 365 F.3d 835, 842 (9th Cir. 2004) (quoting Dixon v. Wallowa County, [2003] USCA9 457; 336 F.3d 1013, 1018 (9th Cir. 2003)). This rule has been applied to criminal proceedings. See, e.g., United States v. Mendoza-Acevedo, [1991] USCA1 533; 950 F.2d 1 (1st Cir. 1991) citing, J.E. Riley Investment Co. v. Commissioner of Internal Revenue, [1940] USSC 118; 311 U.S. 55, 59 (1940) ("Where the decision below is correct it must be affirmed by the appellate court though the lower tribunal gave a wrong reason for its action.")

We have reviewed the transcript of the trial and find that the Republic failed to make out even a prima facie case of the offense charged by the criminal information. The testimony of Jenkins and Abwe, as summarized above, did not address any of the acts allegedly committed by Lemark as charged in the criminal information. We find that the record supports a judgment of acquittal and, therefore, affirm the dismissal with prejudice which is functionally equivalent to a judgment of acquittal.

III. CONCLUSION

The trial court is under no obligation to grant continuances once a trial has commenced when the prosecution has failed to exercise due diligence in securing the presence of its essential witnesses by subpoena. While dismissals should be entered with caution, the trial court was left with no option but to dismiss when the Republic was unable to produce its witnesses and had failed to prove its case at trial. Finding no abuse of discretion, we AFFIRM.

^[1] Honorable Alfred T. Goodwin, Senior Judge, United States of Appeals for the Ninth Circuit, sitting by designation of the Cabinet.
^[2] Honorable Barry M. Kurren, Magistrate Judge, District of Hawaii, sitting by designation of the Cabinet.
^[3] The following exchange occurred:
Court: Mr. Togame, were these witness subpoenaed?
Mr. Togame: The witnesses we have interviewed, the witnesses yesterday, Your Honor, and 10:00 o'clock was arranged and transportation has been sent. In time, they should be here shortly, Your Honor.
Court: Were they subpoenaed? Can I issue a bench warrant for their arrest for their failure to attain the court as subpoenaed, or were they not subpoenaed?
Mr. Taogame: They were not subpoenaed, Your Honor.
^[4] There appears to be a variance between Jenkin's testimony and the crime charged by the Republic. The criminal information charged that Lemark's has unlawfully solicited Liet to place her unborn child for adoption between April and December, 2003. The affidavit of Terry Gross indicated that Terri Lynn was born on March, 28, 2001, and that the unborn child Eloney, was the child which was taken to Hawaii over the time frame alleged in the criminal information.