v.
ISAAKO
LOAU aka ISAAKO TAUMALOTO, Defendant
High
Court of
Trial Division
CR No. 29-00
June 20, 2000
[1] Merely reciting the statutory language of the offense does not satisfy the requirement of T.C.R.Cr.P. 7(c)(1) that the information contain a “plain, concise and definite written statement of the essential facts constituting the offense charged.”
[2] Where
circumstances indicated that there was a victim of crime, and a weapon used in
its perpetration, government was obliged to identify both in its
information.
[3] Failure of government to identify victim of assault in
its information exposed defendant to double jeopardy.
[4] Failure of government to identify weapon used in
assault in its information prejudiced defendant’s ability to prepare for
trial.
[4] Where government had not pled information with
sufficient specificity, Court opted to allow Defendant to move for Bill of
Particulars and warn government of future dismissal rather than to grant
Defendant’s request for immediate dismissal.
Before KRUSE, Chief Justice, LOGOAI, Associate Judge,
ATIULAGI, Associate Judge. [4ASR3d143]
Counsel: For Plaintiff, Robert K. Maez, Assistant Attorney
General
For Defendant, Bentley C. Adams III, Assistant Public
Defender
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
Defendant Isaako Loau (“Loau”) is charged with having
committed first degree assault on or about March 25, 2000. That date is the only fact specified in the
information; the remainder merely repeats verbatim the statutory language
describing first degree assault found at A.S.C.A. § 46.3520(a)(1)(B). Loau seeks dismissal of this charge on the
basis that the information, because it is factually insufficient, subjects him
to the possibility of double jeopardy and does not permit him to adequately
prepare for trial.
Analysis
[1] The American Samoa Government (“ASG”) contends
that the information provides a “plain, concise and definite written statement
of the essential facts constituting the offense charged” as required by
T.C.R.Cr.P. 7(c)(1). ASG cites Am. Samoa
Gov’t v. Afamasaga, 17 A.S.R.2d 145, 150 (Trial Div. 1990), in support
of its argument that the information need only recite the statutory language of
the offense. While the language it quotes
from the decision seems to lend authority to this assertion, the facts of the
case do not. First, the information in
that case named the victim. Here, no
victim is named. Assault being an
offense committed against the person, it seems rather obvious that the person,
i.e. the victim, should be identified in the charge. Second, the defendant in Afamasaga was
granted a request for a bill of particulars prior to trial in which ASG was
ordered to both identify the victim and the means by which defendant was
alleged to have assaulted her.
Furthermore, the persuasive authority cited in Afamasaga
all concerned indictments that alleged specific facts. For example, the extortion counts in United
States v. Williams, 679 F.2d 504 (9th Cir. 1982), alleged specific sums and
the victims from whom they were extorted.
Similarly, the indictment in Hamling v. United States, 418
[2-3] Based on the above, we consider the present
information to be insufficient because to hold otherwise would expose Loau to
multiple prosecutions. ASG must specify
the victim of the assault. Officer
Lutu’s affidavit states that Loau grappled with both officer Ta`afua and [4ASR3d144] his brother as they
attempted to subdue him. This could
conceivably give rise to assault charges against either person under the
present information, thus exposing Loau to double jeopardy.
[4] The information’s vagueness with respect to the
instrumentality of the assault also prejudices Loau’s ability to prepare for
trial. Although we can surmise from officer
Lutu’s affidavit that the “dangerous instrument” is a volcanic rock, failure to
specify this in the information leaves ASG the freedom to substitute another
instrumentality if that would better suit its purposes. We think this highly unlikely, and certainly
do not intend to call into question ASG’s counsel’s integrity. However, we must insist that ASG include this
fact in the information so as to afford Loau his right to a fair trial.
[5] We agree that the information is presently
insufficient, but deny dismissal. Russell
v. United States stated, “it is a settled rule that a bill of particulars
cannot save an invalid indictment.” 369
ASG is cautioned that it must include essential facts
sufficient to notify defendants of the charges filed against them, as required
by T.C.R.Cr.P. 7, or face the possibility of dismissal in the future.
Order
Defendant’s motion for dismissal is hereby denied.
It is so ordered.