FSM SUPREME COURT
APPELLATE DIVISION (Truk)
Cite as In re Edward ,
3 FSM Intrm. 285 (App. 1987)

[3 FSM Intrm. 285]

IN re STEWARD EDWARD.

APPEAL CASE NO.  P3-1987
(Denying certiorari from 3 FSM Intrm. 224,
Crim. Case No. 1987-515)

OPINION

Decided:  December 21, 1987

Before:
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court

APPEARANCES:
     For the Petitioner:         Randy M. Boyer
                                             State Attorney
                                             Pohnpei State Government
                                             Federated States of Micronesia
                                             Pohnpei, FSM 96941
 
     For the Respondent:     Fred Atcheson
                                             Public Defender
                                             Federated States of Micronesia
                                             Moen, Truk, FSM 96942

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HEADNOTES
Appeal and certiorari;
Courts;
Criminal Law and Procedure - Self incrimination
     The court will not issue a writ of certiorari to review the trial court's suppression of defendant's confession in a case in which no assignments of error are furnished to the court, although such decision effectively terminates the case because the government cannot continue its prosecution without the confession, and although no appeal is available to the

[3 FSM Intrm. 286]

government.  In re Edward, 3 FSM Intrm. 285, 286-87 (App. 1987).

Appeal and Certiorari
Statutes
     There are no FSM statutory or constitutional provisions that expand or establish the grounds for a writ of certiorari beyond its customary scope.  In re Edward, 3 FSM Intrm. 285, 289 (App. 1987).

Appeal and Certiorari
     A petition for certiorari will not be granted unless it delineates the act or acts alleged to be in error with sufficient particularity to demonstrate material, harmful error.  In re Edward, 3 FSM Intrm. 285, 288 (App. 1987).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
 
PROCEDURAL BACKGROUND
     This matter comes before the court on the petition of the government filed October 16, 1987 for the issuance of a writ of certiorari to review the trial division's order of October 8, 1987 which suppressed the use by the government of the defendant's confession.  The defendant appeared in opposition to the petition as the real party in interest.

     The petition was supported and opposed by memoranda submitted pursuant to notice.  The application was denied by order of December 1, 1987.

ISSUE
     Will a writ of certiorari be issued in a criminal case upon the application of the government to review an order of the trial court suppressing the use at trial of inculpatory statements of the defendant made to police officers in a case in which the government has no right to appeal an interlocutory order and has insufficient evidence to proceed to trial without the confession, but in which the application entirely fails to specify any errors committed by the trial court?

HOLDING
     The court will not issue a writ of certiorari to review the trial court's suppression of defendant's confession in a case in which no assignments or specifications of error are furnished to the court, although such decision effectively terminates the case because the government cannot

[3 FSM Intrm. 287]

continue its prosecution without the confession, and although no appeal is available to the government.

FACTS
     The defendant is accused of murder by information filed June 23, 1987.  As permitted by Rule 12(b)(3) of the Rules of Criminal Procedure for the Trial Division of the Supreme Court of the Federated States of Micronesia, the defendant moved for the suppression of his inculpatory statements.

     A full evidentiary hearing on the motion was held on September 9, 1987.  The matter was taken under advisement by the court.  On October 8, 1987, the court filed its order granting the motion, stating that an opinion setting forth reasons would follow.

     As mentioned earlier, the government filed its application for a writ on October 16, 1987, perhaps in consideration of the ten days permitted by Rule 4(b) of the Rules of Appellate Procedure for filing notices of appeal by defendants in criminal cases.  The application was supported by points and authorities.

     On October 20, 1987, the court issued its notice giving the defendant an opportunity to oppose the application and giving the government an opportunity to reply to such opposition.  These events followed:

     On October 26, 1987, the trial court entered its opinion;
     On October 28, 1987, the defendant filed his opposition; and
     On November 2, 1987, the government replied to the defendant's memorandum.

     The petition alleges that the government has no right of appeal or other plain, speedy and adequate remedy.  It further alleges that without the admission of the suppressed confession, the government has insufficient evidence to proceed to trial.  These latter allegations are not questioned, and the court accepts them as true.

REASONING
A.     Nature of Certiorari.
     The "writ of certiorari is an original prerogative writ ... to review the action of an inferior court or tribunal taken without jurisdiction or in excess of the jurisdiction given to it."  State v. Coleman, 58 R.I. 6, 190 A. 791, 109 A.L.R. 787, 790 (1937).  The writ itself is an order to the inferior court and is discretionary. Black's Law Dictionary 1443 (5th ed. 1979).

B.     Power of this Court to Issue Writ.

     1.  The permissive language of the Constitution inclines the court to

[3 FSM Intrm. 288]

issue the writ in a proper case.  The provision provides, "the appellate division of the Supreme Court may review cases heard in the national courts..."  FSM Const. art. XI, 7.

     2.  Statutory law of the Federated States of Micronesia explicitly empowers the court to issue the writ.  Section 16 of the Judiciary Act of 1979 begins, "The Supreme Court and each division thereof shall have power to issue all writs ... as may be necessary for the due administration of justice."  4 F.S.M.C. 117.

     3.  The decisions of this court have assumed the power to issue writs.  In Jonas v. FSM, 1 FSM Intrm. 322 (App. 1983), the power to issue a
writ of prohibition was not contested.  The trial division in Nix v. Ehmes, 1 FSM Intrm. 114, 118 (Pon. 1982) held that it had the power to issue a writ of mandamus, although one was not issued in that case.

C.     Petitioner's Failure to Specify Error.
     In its petition the government alleged "that the order was in contravention of law and an abuse of discretion."  These conclusions are not supported by the allegation of any facts.

     In his memorandum in opposition the defendant quotes at length from the opinion of the trial court, asserts its propriety and notes that the government fails to allege any unconstitutionality of the statutes upon which the opinion rests.  He attaches the 25 page opinion to his memorandum.

     In its reply memorandum, the government does not claim any illegality, respond to the assertions of the defendant, or cite any shortcoming of the findings, conclusions, or holding of the trial court.

     Before going to the authority requiring a particularized statement of purported error, it is proper to consider generally the obligation of the petitioner. "the burden is on the petitioner to make out a clear case. . ."  14 C.J.S. Certiorari 88(c) (1939).  Both Corpus Juris Secundum and American Jurisprudence, Second Edition cite Chavarie v. Robie, 194 A. 404 (Me.1939).  The holding in that case is reported as follows "A petitioner in certiorari must establish to the satisfaction of the court to which application is made that substantial justice demands that the writ should issue."  14 C.J.S. supra 88(c) n.77; 14 Am. Jur. 2d Certiorari 38 (1984).

     The following passages from a standard legal encyclopedia, fully supported by case authority, set forth the standard of specificity needed in a petition for certiorari:

It [the petition] should ... state the case with such certainty as will show that some material error or injustice has been done petitioner...[T]he acts  deemed to be error should be assigned with such

[3 FSM Intrm. 289]

particularity as to show harmful error.  The mere pleading of legal conclusions is not sufficient; the conclusions should be accompanied by allegations showing wherein or why the matters complained of were improper.

14 Am. Jur. 2d  Certiorari 33 (1984).

     The government having failed (or been unable) to specify error the petition must be denied.

D.     Authorities Relied Upon by the Petitioner.
     The government submitted several cases in support of its request for certiorari, but these can be readily distinguished from the present case.  In State v. Johnson, 569 S.W.2d 808 (Tenn. 1978), the Tennessee Supreme Court granted the government's request for certiorari where Chief Justice Henry found at the preliminary hearing on the petition that it was likely meritorious, as the specific errors alleged were apparent.

     Unlike Johnson the government in the present case failed to specify, beyond a bare allegation, in what manner the trial court abused judicial discretion or acted illegally.  The Tennessee court was also able to rely on the expanded scope of certiorari by statute in that state.  No statute exists in the FSM setting forth grounds for certiorari.

     In State v. Coleman, 58 R.I. 6, 190 A. 791, 109 A.L.R. 787 (1937), it was held that the trial court had exceeded its jurisdiction in returning seized evidence to a defendant before the conclusion of his trial.  There is no allegation nor showing that the trial court in the present case exceeded its jurisdiction.  In Coleman, the trial court exceeded its jurisdiction by granting the defense motion based on arguments of counsel without the taking of evidence.  In the present case, the trial court held a full evidentiary hearing before it determined that the defendant's will had been overborne and that the police failed to honor the defendant's request for counsel.

     The Rhode Island Court went on to say that "in the absence of constitutional or statutory provision giving the State the right of appeal under certain conditions, the overwhelming weight of authority in this country is that the State cannot have the action of an inferior court in the judicial exercise of its lawful jurisdiction reviewed."  Coleman, 190 A. at 793 (emphasis added).  There are no statutory or constitutional provisions in the FSM expanding the writ beyond its customary scope.

     In State v. McCormick, 584 S.W.2d 82 (Tenn. 1979), the court held that the suppression of evidence was without legal authority in that the suppression had stemmed from a warrant based on an affidavit which stated the crime occurred "in the past 72 hours." The trial court had improperly based the suppression on a belief that the exact date of the crime need be given.

[3 FSM Intrm. 290]

The illegality was thus apparent upon the face of the proceedings.

     In State v. Fleckinger, 93 So. 115 (La. 1922), a trial judge ordered the return of illegally seized lottery paraphernalia even though the State Constitution intentionally provides no such sanction.  The error was thus apparent from the petition.  Conversely, in the FSM we have a statute requiring the suppression of illegally seized evidence.  12 F.S.M.C. 220.

     In State v. Cullison, 215 N.W.2d 300 (Iowa 1974), the Iowa Supreme Court reviewed on certiorari the order of the trial court suppressing inculpatory statements of the defendant.  The Supreme Court failed to give any authority for its determination that such review was proper.  Thus, it is of no assistance to this Court.

     In Cullison, the trial court made extensive findings of fact.  Based upon those findings the trial court arrived at a number of conclusions of  law.  A like situation is presented to the Court in this case.

     However, in Cullison, the government presented particular issues to the Supreme Court of Iowa contending that (1) the opportunity given the defendant to have a physical examination or undergo a polygraph examination did not constitute coercion, (2) the polygraph operator was not required to give "Miranda" warnings since the police had earlier given the warnings, and (3) the defendant was not in custody as a suspect at the time the inculpatory statements were made and thus "Miranda" warnings were not required.

     No such particularized issues have been presented to this Court by the government.

     United States case law regarding the government's right to certiorari has been profoundly influenced by extensive federal and state legislation on the subject over the last 90 years or more.  The FSM is without statutes modifying or expanding certiorari.  Thus, we are left with the customary scope of the writ.

E.     Additional Authority
     The British Commonwealth also furnishes insights into the state of certiorari under the common law.  In Regina v. Judge Mullaly, 11 Commonwealth Law Bulletin 742 (1985), the Supreme Court of Victoria, Australia, refused to issue a writ of certiorari in a case in which the trial judge, at the conclusion of voir dire, ruled that certain confessional evidence was legally admissible, but ought to be excluded in the exercise of discretion.  The court distinguished between a refusal to hear evidence and an erroneous rejection of evidence, holding that certiorari would only lie in the former.  The court went on to hold that decisions to accept or exclude evidence cannot be made the subject of prerogative writs.  The Supreme Court of Victoria also held that in the absence of a breach of a fundamental principle of law constituting a denial of natural justice, the fact that a ruling is fatal to the govern-

[3 FSM Intrm. 291]

ment's case does not take it outside the general rule that an erroneous decision to accept or reject evidence cannot be made the subject of prerogative writs. Judge Mullaly at 744.  The Australian Court did not rule on the State's contention that it had access to certiorari as a matter of right, but instead pointed out that the consequences to the proper conduct of criminal trials of allowing the state certiorari as a matter of right combined with allowing certiorari where the trial judge allegedly erroneously submits or rejects evidence are too obvious to require mention.

CONCLUSION
     For the reasons stated, the petition for writ of certiorari is denied.