THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Doone v. FSM, 2 FSM Intrm. 103 (App. 1985)

[2 FSM Intrm. 103]

LORENZO DOONE,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL P4-1983
From FSM v. Doone, 1 FSM Intrm. 365 (Pon. 1983)
Cite as 2 FSM Intrm. 103 (App. 1985)
Argued March 27, 1985
Decided September 5, 1985

Before:
Hon. Richard H. Benson, Justice, FSM Supreme Court;
Hon. Samuel P. King, Temporary Justice, FSM Supreme Court*
Hon. Alan Lane, Temporary Justice, FSM Supreme Court**

     *United States District Court Judge, Hawaii, sitting on this case by designation.
     **Justice, Supreme Court of the Republic of Palau, sitting on this case by designation.

APPEARANCES:
     For the Appellant:          Loretta Faymonville, Esq.
                                             Public Defender
                                             P.0. Box 238
                                             Kolonia, Pohnpei 96941

     For the Appellee:          Carl V. Ullman, Esq.
                                             Chief, Division of Litigation
                                             Office of the Attorney General
                                             P.0. Box 490
                                             Kolonia, Pohnpei 96941

*        *        *        *

HEADNOTES
Criminal Law and Procedure-escape; Criminal Law and Procedure-custody
     A police vehicle being used to transport an arrested person from the police station to the jail is a custodial facility within the meaning of 11 F.S.M.C. 505(3), and a person who, having been informed that he is under arrest, flees from such a vehicle and the custody of a police officer

[2 FSM Intrm. 104]

authorized to detain or arrest persons on behalf of the Federated States of Micronesia, is guilty of an escape under 11 F.S.M.C. 501(1).  Doone v. FSM, 2 FSM Intrm. 103, 106 (App. 1985).

Criminal Law and Procedure-escape;
     Illegality of arrest or detention is no defense to a charge that one has unlawfully escaped from a custodial facility.  Doone v. FSM, 2 FSM Intrm. 103, 106 (App. 1985).

Criminal Law and Procedure-escape;
     Escape from state police officers, authorized by a Joint Law Enforcement Agreement Between the National Government and the State to detain and arrest persons on behalf of the Federated States of Micronesia can be the foundation for an escape conviction under 11 F.S.M.C. 501(1), without regard to whether the detention was for a major crime.  Doone v. FSM, 2 FSM Intrm. 103, 106 (App. 1985).

Evidence
     A trial court is entitled to take judicial notice of an agreement authorizing state police officers to act on behalf of the FSM.  Doone v. FSM, 2 FSM Intrm. 103, 106 (App. 1985).
*        *        *        *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
Per Curiam
     The appellant appeals his conviction of the offense of escape in violation of 11 F.S.M.C. 505(1).  The relevant portion of the statute reads:

A person commits the offense of escape if he unlawfully removes himself from official detention..."Official detention" means arrest and detention in any facility for custody of persons under charge or conviction of a National offense, under detention for extradition or deportation, or any other detention for law enforcement purposes.  The term "official detention" shall apply only to detention by a public servant of the Federated States of Micronesia, or by any other person legally authorized or empowered to arrest or detain on behalf of the Federated States of Micronesia ...

     The issues presented are whether or not the police vehicle used to transport the appellant from the police station to the jail is a facility for custody, and whether or not the appellant can be guilty of escape when the arrest is for a misdemeanor which is not an offense against the National

[2 FSM Intrm. 105]

government.

     We conclude that the police vehicle was a facility for custody under the facts of this case, and that one can be guilty of escape although the arrest was for an offense not within the jurisdiction of the Supreme Court.

     The facts are basically undisputed.  The appellant was taken into custody without a warrant at the home of his uncle by members of the Ponape State Police who had been told appellant was drunk and fighting, and that his uncle wanted him removed. The police observed that the appellant appeared drunk.  He was taken to the police station where he was informed that he was under arrest for disturbing the peace.

     The appellant was then placed in a police automobile for transportation from the police station to the jail.  While en route and while the car was moving the appellant opened the car door, jumped out, and ran away.

     One argument of the appellant may be summarized as follows:

     His arrest was unlawful; the automobile transporting the plaintiff was not a "facility for custody"; and since the statute does not reach a non-violent departure from an unlawful arrest, the conviction must be reversed.

     Because we conclude that the automobile was a "facility for custody" it is not necessary to decide whether the arrest of the appellant was legal or illegal.

     The statute dealing with the effect of an irregularity in bringing about the detention provides:

Effect of legal irregularity in detention. Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority, shall not be a defense to prosecution under this section if the escape is from a prison or other custodial facility or from detention pursuant to commitment by official proceedings.  In the case of other detentions, irregularity or lack of jurisdiction shall be a defense only if:
    (a)  the escape involved no substantial risk of harm to the person or property of anyone other than the defendant; or
     (b)  the detaining authority did not act in good faith under color of law.

11 F.S.M.C. 505(3).  Appellant invites us to read the term custodial facility to mean a facility like a prison.

     The trial court found that the automobile was a facility for custody and

[2 FSM Intrm. 106]

we find that the evidence and the words of the statute justify such a finding.  The appellant was within the police station, under arrest, and informed of that arrest. The police then decided to remove him to the jail, some distance away.  An automobile was used to transport him.  Under these facts and for such a purpose, the trial court was fully warranted in its finding that the automobile was a facility for custody.

     Since the appellant removed himself from a facility for custody he is guilty of escape.

     The primary source drawn upon by the Congress of the Federated States of Micronesia to compile the National Criminal Code was the Model Penal Code. (Standing Committee Reports No. 1-299 dated November 12, 1980.  Committee on Judiciary and Governmental Operations reporting on the bill for an act to adopt a Criminal Code.)  The comment on the Model Penal Code provision for escape is therefore germane.  It states in part: "Illegality or lack of jurisdiction is no defense to escape `from a prison or other custodial facility or from detention pursuant to commitment by official proceedings.'  Defects in such detention must be raised by appropriate legal means rather than by unauthorized departure."  Comment to 242.6 Model Penal Code and Commentaries, Part II, American Law Institute, 1980, p. 258.

     The other contention of the appellant is that the detention must be for a major crime within the jurisdiction of the Supreme Court.  He points out that the phrases preceding the only one that could be applicable to this case ("or any other detention for law enforcement purposes") are clearly within the jurisdiction of the National government.  They are, "under charge or conviction of a National offense, under detention for extradition or deportation. . . ."  The appellant thus asks us to imply a limitation on the final phrase that the detention must be in connection with a major crime.

     We do not adopt the invited meaning.  It is contrary to the plain language of the statute.  We note too that the limitation that the appellant seeks, requiring that national interests be involved, appears in the sentence that follows the one quoted. Only detention "by a public servant of the Federated States of Micronesia or by other person legally authorized or empowered to arrest or detain on behalf of the Federated States of Micronesia" can be the foundation for escape under 505(1).

     The State and the Federated States of Micronesia on July 12, 1981 entered into an agreement entitled "Joint Administration of Law Enforcement Agreement Between the National Government of the Federated States of Micronesia and the State of Ponape."

     Such an agreement was authorized by 12 F.S.M.C. 1202 and 1203.  The  trial court was entitled to take judicial notice of the agreement which does authorize and empower Pohnpei State Police to act on behalf of the FSM.  The

[2 FSM Intrm. 107]

arresting officers were so authorized and empowered.

     The conviction is affirmed.