FEDERATED STATES OF MICRONESIA,

vs.

EDWIN ETPISON et al.,

Defendants.

CRIMINAL ACTION NO. 1983-541

ORDER DENYING MODIFICATION OF
BAIL AND RESTRICTIONS

Before Edward C. King
Chief Justice
September 14, 1983
Ponape, Caroline Islands 96941

APPEARANCES:

HEADNOTES

Bail

Legal standards for setting bail are established by the Constitution and Criminal Procedure Rule 46. FSM v. Etpison, 1 FSM Intrm. 370, 372 (Pon. 1983).

Bail

The FSM Supreme Court must approach the question of whether bail is "excessive" with a recognition that the defendant is presumed innocent, is to be treated with dignity, and needs a reasonable opportunity to prepare his defense. At the same time the judicial officer must keep in mind his responsibility to the public to assure that the defendant will be made to respond to the charges leveled at him. FSM v. Etpison, 1 FSM Intrm. 370, 373 (Pon. 1983).

Defendant Edwin Etpison and two other defendants are charged with the crime of murder. At the initial appearance on August 25, 1983, the government requested that all three defendants be held without bail pending trial. After a review of an affidavit submitted by the government, the Court set cash bail for Mr. Etpison in the amount of $10,000 and established other restrictions in the event the cash bail requirement is met. These other restrictions include a release only under the supervision of a custodian approved by the Court in advance and confinement to the house and surrounding property of the custodian's place of residence.

The affidavit indicated greater weight of evidence against Mr. Etpison, so bail for the other two defendants was somewhat lower, $6,000 and $4,000, respectively. The other restrictions were identical for all defendants.

Defendant Etpison now moves pursuant to Rule 46(a)(4) of this Court's Rules of Criminal Procedure for review of the conditions of release. Having reviewed the conditions, I conclude they are proper and suitable under the circumstances. They are hereby reaffirmed. Pursuant to the requirements of Rule 46(a)(4), this opinion setting forth my reasons for requiring the conditions is filed.

Factors Considered

Legal standards for setting bail are established by the Constitution and Rule 46 of this Court's Rules of Criminal Procedure. The Constitution states simply that "[e]xcessive bail may not be required." FSM Const. art. IV, § 8.

The explanation tendered by the Micronesian Constitutional Convention's Committee on Civil Rights was as follows:

SCREP No. 23, II J. of Micro. Con. Con. 793, 799.

The Committee Report goes on to explain:

Thus, the Court must approach this question of whether bail is "excessive" with a recognition that the defendant is presumed innocent, is to be treated with dignity, and needs a reasonable opportunity to prepare his defense. At the same time the judicial officer must keep in mind his responsibility to the public to assure that the defendant will be made to respond to the charges leveled at him.

With these "underlying concepts" in mind, I proceed to the Rule 46 provisions concerning setting of bail. Rule 46(a)(2) lists the following factors to be taken into account:

1. Nature and Circumstances of the offense charged - Defendant Etpison is charged with having been a principal actor in carrying out a brutal murder, one of the most serious crimes ever to have occurred on Kosrae.

2. Weight of the Evidence Against the Accused - All indications are that the evidence against defendant Etpison is substantial.

3. Accused's Family Ties - Aside from his wife of 3 years and their children, the defendant, a Palauan by ancestry, has no family ties in Kosrae. No other family ties within the Federated States of Micronesia have been brought to the Court's attention.

4. Employment - The defendant is employed on Kosrae and received net of $71.00 per week. No evidence has been introduced indicating that his ties with his present employer, or his potential career with that employer, are sufficient to furnish a strong incentive to stay in Kosrae to try to retain his employment.

5. Financial Resources - The defendant and his wife have limited financial resources. They have savings Of approximately $200 and a motor scooter which they believe,

could sell for some $500. Mrs. Etpison works at the Kosrae Hospital and receives gross pay of approximately $110 every two weeks. They are responsible, not only for themselves and their children, but also Mrs. Etpison's parents, brothers, sisters, and others, aggregating some 12 people. No information has been submitted concerning resources of others in the clan or extended family of the defendant either in Palau or elsewhere who might be looked to for assistance in meeting the $10,000 bail requirement.

6. Character and Mental Condition - The only information concerning this factor is that the defendant has been convicted of fraud and has failed to comply with a court order requiring restitution payments to the defrauded person.

7. Length of Residence in the Community - The defendant has resided on Kosrae for three years. There has been no showing that he has become fluent in Kosraean or taken other steps to establish himself in the community more than would normally be expected in such a relatively short residency.

8. Record of Conviction - Within the last three years the defendant has been convicted of civil fraud and has been ordered to pay restitution. As already mentioned, he has failed to comply with that court order.

9. Record of Appearance at Court Proceedings - No information has been submitted but as noted above, the defendant's failure to comply with a court order of restitution indicates that he cannot be counted upon voluntarily to comply with court instructions.

The available information portrays Mr. Etpison as having no strong ties to the Kosraean community or to the Federated States of Micronesia. His civil fraud conviction and failure to comply with a court order dictate vigilance on the part of this Court, to assure that the defendant will appear to face the serious charges against him. Counsel for defendant has candidly acknowledged that defendant's presence in jail has posed no particular problems for preparation of his trial defense.

All of the above considerations strongly suggest that the less restrictive options in Rule 46(a)(1) would not be sufficient. I conclude that a heavy cash bail requirement is necessary to assure appearance of the defendant at trial.

The amount of bail is high in the light of the defendant's personal resources but, in absence of contrary evidence, I assume the defendant could call on other family and clan members to supplement his personal resources. Although I know of no way to calculate with precision a proper amount of bail, I find a $10,000 cash bail requirement reasonable under the circumstances outlined here.

Counsel for defendant has specifically agreed thatthe other conditions are reasonable and does not seektheir modification.

The conditions are confirmed and maintained and the motion for modification is denied.

Trial of this action has been set at the earliest possible date, November 15, 1983.

/s/ Edward C. King

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Chief Justice
Supreme Court of the Federated
States of Micronesia

/s/ Emeliana J. Kihleng

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Chief Clerk of Court