Cite as Engichy v. FSM,
1 FSM Intrm. 532 (App. 1984)

[1 FSM Intrm. 532]





October 30, 1984

Hon. Edward C. King, Chief Justice, FSM Supreme Court;
Hon. Mamoru Nakamura, Chief Justice, Republic of Palau Supreme Court;*
Hon. Herbert D.  Soll, Judge, Commonwealth Trial Court, Northern Mariana Islands*

     For the Appellants:          John Tarkong
     (Kasimiro Engichy)         Attorney-At-Law
                                               Republic of Palau
                                               Western Caroline Islands 96940

     (Kirino Otokichy)             John Brackett
                                               Public Defender
                                               Office of the Public Defender
                                               State of Ponape
                                               Eastern Caroline Islands 96941

     For the Appellee:           Carl V. Ullman
                                              Chief, Division of Litigation
                                              Office of the Attorney General
                                              Federated States of Micronesia
                                              Ponape State
                                              Eastern Caroline Islands 96941
*Designated Justice.

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EDWARD C. KING, Chief Justice,
     This case arises out of a disturbing and horrifying event which occurred during the afternoon of October 3, 1981 in the full view of onlookers in the area of the Truk Trading Company, one of the largest stores on Moen Island in Truk State.

     Several boys from Dublon Island, who had been engaged in a rock fight with some boys from Wonei, were suddenly set upon by a large number of armed men from Wonei.  The Dublon boys tried to flee but the three that were caught were beaten savagely.  One of the Dublon boys, Jennings Rochon, died later that same day.

     The two appellants here, Kasimiro Engichy and Kirino Otokichy, were part of the Wonei group.  Both were convicted in this Court's Trial Division of the murder of Jennings Rochon and assaults with a dangerous weapon upon the other two Dublonboys.

     There was no evidence that Kasimiro Engichy struck any of the three Dublon boys but he was convicted of having aided and abetted the attackers.  The trial judge was unable to find beyond a reasonable doubt that Kirino Otokichy had struck Jennings Rochon but Kirino also was held guilty of murder as an aider and abettor. A principle issue is whether the convictions may be upheld under these circumstances.  We findthe convictions fully justified by the record in this case and they are affirmed.

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Factual Background
     Evidence in the record in this case supports the following version of events, which uphold the trial judge's findings.

     On October 3, 1981, Kirino Otokichy, age 30, Kasimiro Engichy, age 38 and a Truk State Senator, and various other persons from Wonei in the Truk lagoon were working at a dock on Moen Island.

     Receiving reports that other family or clan members were engaged in a fight in the parking lot area of the Truk Trading Company, the men responded immediately.

     Kasimiro Engichy started his red pickup truck and began driving toward the Truk Trading Company area as various others, including Kirino Otokichy, leapt into the back of the truck.
     When they arrived at the Truk Trading Company area this group, armed with construction re-enforcement bars (rebars), saws, hammers, crowbars and other weapons, found the remains of a rock-throwing fight between some of their family members and about six young men from Dublon.  Since there had been reports that one of their family members had been hurt, some of the men may originally have intended simply to protect and rescue their family and clan members.

     However, there can be no mistaking their intentions after they arrived.  It was clear immediately that the Dublon boys were overwhelmingly outnumbered and outarmed.  The evidence in

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this case supports conclusions that the actions of the Wonei men were exclusively offensive, and that no element of group or self-defense was involved, and that those from Wonei simply undertook to mete out punishment to each boy from Dublon they could apprehend.

     The young men from Dublon attempted to flee.  Each one caught, unarmed and utterly helpless, was seized and flailed by numerous assailants wielding crowbars, rebars, saws, hammers and other dangerous weapons.

     The atmosphere can be gleaned from the testimony of a Peace Corps volunteer who watched one of the beatings from within the Peace Corps office.

"A.  I saw a boy run from the direction of the old T.T.C.  He was being chased by another boy or male.  Before he got to the corner of the new T.T.C. and as soon as he cleared this one building where they're constructing at, I saw the one who was doing the chasing hit this boy on the head with a pipe.  The one that was being chased turned around and started trying to fend off the blows.  Then after a few blows, he got knocked down on the ground.  And then, at that time, two other men came running from the direction of the old T.T.C. and also started hitting him with various weapons, or things they had.  And while they were hitting him, a truck came out of the old T.T.C., passed by a few feet, where the boy was being hit.   The truck was carrying about 20 men. They were standing in the back of the truck.  When the truck stopped, three to four guys got out of the truck and joined in the beating of the boy.

     Q.     I'd like to ask you to describe, as best as your memory will permit, the boy who was attacked.

     A.     The best of my knowledge, he was as early teens or, middle teens.
              He was not wearing a shirt,

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              he had pants on.   He was a small frame, short  -- not too short, about
              average size for his age.

Q.   Earlier in your testimony you stated that the boy was trying to fend1 off blows.   I'd like  to ask you if you can describe what you meant  by fending off blows?

A.   Okay when he was first being hit, he was just holding his arms like this and trying to catch the blows or just fend them off.  Once he got knocked down to the ground, he was in a sitting position, doing the same thing, holding his arms up for his head, trying to catch blows.

Q.   Could you describe as best as you can the pipe, I believe you said, that the first person who reached that boy had in his hand?

A.   It was a pipe used for plumbing.  It's about three or four feet long.  It looked hollow, and made out of iron or steel.

Q.   The males that joined that man with the pipe, after that, could you describe what, if anything, they were carrying?

A.   I recall that one person had a pipe wrench  about three to four feet long, and another boy had a saw -- carpenter saw about the same length, one person had a crowbar, and another person had 2 x 4, about the same length.  They're all pretty long."

     Transcript, P. 84, lines 23, to P. 86, line 15.

     The witness then was asked to elaborate concerning the  men on the truck.

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"A.  Three to four guys got out of the truck.  They had instruments like I said before, pipe  wrench, 2 x 4, crowbar.  They started hitting the boy that was down, together with the three other guys that were already hitting him.  They were hitting him, looked like a lot of times at the same time, hitting him on the legs, hitting him in the head.  The boy was trying to just protect his head mostly.  The other guys in the truck were just standing in the truck looking around.  After awhile, they stopped hitting the boy and they got back in the truck and drove off."

     Transcript, P. 88, line 8-17.

     Testimony at the trial indicated that the other victims were beaten in substantially similar fashion.  The particular victim, Johnson Ruben, 16, whose beating is described above sustained head wounds requiring suturing and had to be hospitalized.  Yet he was able to walk or crawl away from the scene.

     The other victims were not so fortunate.  When the pickup truck left the area, its many weapon-wielding occupants shouting and cheering in celebration of their feat, they left behind Jennings Rochon, 14, and Mickensy Ruben, 19, both unconscious and bleeding.

     According to the medical officer who treated him at the hospital Mickensy Ruben sustained two lacerations on the back of his head, both penetrating down to the skull.  Mickensy testified that he also sustained a wound on his forehead, and injuries to his back and arm.  A headache remained with him for about a month.

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     The other victim, 14 year old Jennings Rochon, sustained such devastating injuries, including various broken bones in his head and a major puncture wound in his neck, that he died almost immediately after he was transported to the Truk Hospital.  He had large cuts on his forehead, under his eye, and from his upper lip to the tip of his nose, all penetrating down to the bone.  His skull was cracked at the forehead and his upper jaw was broken.  The puncture wound in his neck went all the way to the spinal column.  He died within about five minutes after treatment began, apparently of loss of blood.

     There is evidence indicating that Kirino Otokichy was one of the more zealous attackers, if indeed not the inspirational leader of the entire affair.  Mickensy was the first of the Dublon boys attacked when Kasimiro Engichy's pickup truck arrived at the area, and Mickensy testified that Kirino Otokichy was the first person to hit him.  This indicates that Kirino Otokichy led the original attack and was the first to use a dangerous weapon on a victim.

     There is ample evidence also to establish that he was still a spirited participant as the final beating, of Johnson Ruben, was completed.

     The beating of Jennings Rochon occurred, both chronologically and geographically, between the beatings of Mickensy and Johnson.  Although the trial court was not

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persuaded beyond a reasonable doubt that Kirino Otokichy actually struck Jennings Rochon, it bears mentioning that there was some testimony that Kirino did directly attack Jennings.2

     As already noted, Kasimiro Engichy was the driver of the pickup truck.  There is evidence, and the trial court found, that immediately upon arriving at the area he chased the fleeing Jonas Rochon and banged a shovel on the door of the house to which Jonas fled, challenging him to come out and fight.  There is substantial evidence as well that he not only drove the armed men to the area but also shuttled them from one beating to another, then observed from the comfort of his truck.  There is evidence that he stopped his truck to let them off to carry out the beatings, signalled them when to stop by saying, "Finish.  It's enough," and then let them climb back on his truck in anticipation of the next events.

     There is also evidence that after completing the tour of victims, Kasimiro Engichy drove to the door of the Truk Trading Company store, stopped to let several of his riders off, and waited while they ran inside searching for yet another Dublon boy.  Failing to find the boy, the searchers again jumped into the Engichy pickup truck and were transported away from the area, shouting and cheering.

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Procedural Background
     Charges were filed against eight males.  Before the trial began, charges against two of the defendants were severed so proceedings could continue separately against them as juveniles.  Two of the defendants, Appepe Engichy and Keresen Otokichy, pled guilty to assault with a dangerous weapon and were sentenced to 18 months and 10 months in jail, respectively.  Two other defendants were acquitted after trial.

     The appellants here, Kasimiro Engichy and Kirino  Otokichy, were each convicted of the murder of Jennings Rochon and two counts of assault with a dangerous weapon, upon Mickensy Ruben and Johnson Ruben.  Each was found not guilty of aggravated assault since the trial judge was not persuaded that they intended to cause serious bodily injury to Johnson and Mickensy Ruben.  They were sentenced to 15 years in jail for murder and 18 months for each assault with a dangerous weapon, all sentences to run concurrently.  They appeal from all convictions.

Aiding and Abetting
     The conviction of Kasimiro Engichy, and the murder conviction of Kirino Otokichy, are based upon their aid and assistance to others who actually committed the crimes, rather than a showing that they committed these crimes directly.

     A.  Pleading
     Both appellants point out that the statutory provision authorizing criminal liability for the crimes of another, 11

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F.S.M.C. 301, was not referred to in the Information filed against the defendants in this case.

     They claim that this left them uncertain as to whether they were being charged with having committed the crimes themselves or as aiders and abettors.  They urge this Court to implement defendants' constitutional rights to be informed of the nature of the accusation, FSM Const. art. IV, 6, and due process, id. 3, by requiring the government to specify when  it intends to rely on 11 F.S.M.C. 301.

     They also assert that the government's failure specifically to plead 11 F.S.M.C. 301 violated Rule 7(c)(1) of our Rules of Criminal Procedure.

     The provisions in the Declaration of Rights concerning  due process and the right to be informed are traceable to the Bill of Rights of the United States Constitution.  Laion v. FSM, 3 FSM Intrm. 503, 512 (App. 1984).  Similarly, our Rule 7 is based upon Rule 7 of the Federal Rules of Criminal Procedure employed by the United States federal courts.

     A persuasive response to the contentions of defendants here then is that the United States federal courts have found neither constitutional precepts nor procedural rules to require specific aiding and abetting allegations to he included in a criminal information in order to permit conviction on that basis.  See United States v. Vines, 580 F.2d 850, 853 (5th Cir. 1978), cert. denied, 439 U.S. 991 (1978); Carothers v. Rhay,

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594 F.2d 225, 229 (9th Cir. 1979).  See also Nye & Nissen v. United States, 336 U.S. 613, 69 S. Ct. 766, 93 L. Ed. 919 (1949).

     Defendants' reliance on FSM Crim. R. 7 reveals the error in their analysis. They emphasize the Rule 7 requirement that the information "state for each count the ... citation of the statute ... or other provision of law which the defendant is alleged to have violated."  (Defendant Otokichy's emphasis.)

     That emphasis is misplaced.  The salient point is that 11 F.S.M.C. 301 is one of a set of sections in Chapter 3 of the National Criminal Code specifying general principles of responsibility.  These principles apply implicitly to all substantive offenses but the sections in Chapter 3 do not themselves enunciate substantive offenses.  These provisions, including 11 F.S.M.C. 301, are not subject to "violation." They are therefore not reached by our Rule 7.  By the same token, these general principles are deemed applicable to all crimes, and mere failure to restate them in an Information can hardly be said to be a failure to inform or a violation of due process.

     That having been said, we do recognize that unfairness could occur in a specific case if a defendant is indeed misled as to the nature of the government's charges where there has been no indication of reliance upon 11 F.S.M.C. 301.

     However, we have reviewed the trial record thoroughly and we are satisfied that this is not such a case.  Admittedly, as the defendants emphasize, the trial transcript contains several

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statements by defense counsel that they were confused as to the theory of the government's case.  The record though undercuts those claims.  If there was originally any confusion, it should have been erased by the statements of government attorneys made before the presentation of any evidence.  One of the government counsel, Mr. Michelsen, responding to pretrial motions for a bill of particulars, explained that "all of them are charged jointly and all of them are charged with participating in the assault at the same time or contemporaneously thereto.  Under that theory, there [sic-they] are all aiders and betters [sic-abettors] of each other..." Transcript 21.

     Later that same day, in responding to the pretrial motion to dismiss, Mr. Michelsen said, "The position of the government is that this case centers -- around Section 301 of the National Criminal Code and that the activities of all of the defendants on that day make them jointly and severally liable...." Id. at 35.  Mr. Ramp, then FSM attorney general, confirmed the government's position in his opening statement as the trial began: "The evidence will show that each of the defendants aided and abetted the others in the commission of these crimes...." Id. at 68.

     Indeed it is difficult to imagine how the defendants in this case could leave read the Informations as charging each directly with the murder itself and precluding the possibility that they were being charged with aiding and abetting. The

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information originally charged eight defendants with murder, assault with a dangerous weapon and aggravated assault, all upon the same individuals. When several persons are charged with murder of the same victim, the plain implication is that while one person's act may have been the direct cause of the death of the victim, the government surely will be contending that all the others participated or aided or assisted the killing in some way.  In other words, it is inherent in a prosecution against multiple defendants for a single murder that the defendants will be confronted with charges that they either actually killed the victim or assisted one or more other persons who did so.

     We conclude that the Informations were in sufficient compliance with any statutory requirements and this Court's.  Rules of Criminal Procedure and that the defendants received adequate notice of the charges against them in accordance with constitutional requirements.

     B.  The Convictions
     Both defendants also contend the evidence was  insufficient to support their convictions as aiders and abettors under 11 F.S.M.C. 301.

     The trial court found that Kirino Otokichy assaulted both Johnson and Mickensy Ruben with a dangerous weapon.  However, the trial judge was unable to conclude from the evidence that either Otokichy or Engichy intended to cause serious bodily

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injury to either of the Rubens.  Both therefore were acquitted of the aggravated assault charges.  The trial court also was not persuaded beyond a reasonable doubt that Kirino Otokichy had actually struck Jennings Rochon directly.

     Kirino Otokichy contends that these latter two conclusions, coupled with the additional fact that the government contended that Jennings Rochon was murdered recklessly, not intentionally, erase any possibility that Otokichy either intentionally aided or assisted in the killing, or acted with the state of mind necessary to permit a finding of murder.

     Kasimiro Engichy was not shown to have struck any of the victims.  He asserts that there was insufficient evidence to justify the trial court's findings that he aided and abetted, and therefore is criminally liable for, the assaults with dangerous weapons on Mickensy and Johnson Ruben and the murder of Jennings Rochon.

     In considering these challenges, we are guided by our rules of procedure and the interpretation by United States federal courts of similar language in their rules, upon which ours are based.  We therefore recognize the obligation of this appellate tribunal to review the evidence in the light most favorable to the trial court's factual determinations.  Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1941).  This standard of review extends to inferences drawn

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from the evidence as well.

     The test is not whether the appellate court is convinced beyond a reasonable doubt but whether this court can conclude the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); In re Joyce, 506 F.2d 373 (5th Cir. 1975).

     With these principles in mind, we address the Otokichy and Engichy challenges to their convictions for the conduct of others under 11 F.S.M.C. 301.

     The National Criminal Code's pertinent language is as follows:

301(1).  A person is criminally liable for the conduct of another, if:

          (a)   he intentionally aids, abets, advises, solicits, counsels, or conspires with or otherwise procures the other to commit an offense . . . .

(2)  A person liable under subsection (1) of this section is also liable for any other offense committed in the pursuance of the intended crime if reasonably foreseeable by him as a probable consequence of committing or attempting to commit the offense intended.

11 F.S.M.C. 301.

     Under this section, the guilt or innocence of Kirino Otokichy for murder does not turn on whether his rebar, crowbar or saw actually touched the flesh of Jennings Rochon.  Nor is the guilt of either defendant on the basis of 11 F.S.M.C. 301 determined by whether either intended to cause serious bodily

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injury to Mickensy or Johnson Ruben.

     The evidence establishes conclusively that these attacks were not carried out as isolated or separate assaults on specific individuals.

     It was not, for example, that Kirino Otokichy or others had a specific grudge against Johnson and Mickensy but intended no harm to Jennings.  Instead, each attack was part of a general rout of the unarmed boys from Dublon by the men of Wonei.  The identity of the specific victims was determined only by the happenstance that these were the ones who did not get away.

     By leading and joining in the beatings of Mickensy Ruben and Johnson Ruben, Kirino Otokichy made himself an integral part of the general rout of the Dublon boys by the Wonei men.  A hallmark of this mob violence was the use of dangerous weapons by numerous men on each Dublon boy they caught.  The evidence suggests that Kirino was the first person actually to use a weapon on one of the Dublon boys.  This first blow, delivered at Mickensy Ruben, could reasonably be seen as the spark which set off the entire conflagration.  At a minimum, his participation in the attacks of this kind on Mickensy and Johnson assisted, aided and abetted, indeed may well have inspired and incited the other men, including those who killed Jennings Rochon, to use their dangerous weapons on human beings.

     Similarly, a reasonable trier of fact could conclude from

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the evidence that there is no reasonable doubt that Kasimiro Engichy aided and abetted all the crimes that were perpetrated there.  His assistance, aid, encouragement and participation were shown to have included driving the men to the scene, chasing one man and pounding the front door with a shovel in a futile effort to get at him, driving within the area while the attacks were occurring, watching the attacks in progress and signaling when they should stop, transporting attackers to expedite their assaults, then driving the celebrants away when the carnage was completed.  His participation and benign approval were all the more significant and inciting because of his position of community leadership.

     Under 11 F.S.M.C. 301(2) Kirino Otokichy and Kasimiro Engichy must be held responsible for the natural consequences of joining and encouraging others in the use of dangerous weapons and brutal beating of any Dublon boy caught that day.

     Their overt actions aided all of those involved in these criminal attacks and it is clear that it was their intention to do so.  Even if perhaps they did not actually intend that the victims be killed or seriously injured, it was reasonably foreseeable by them that somebody might be fatally injured as a probable consequence of the savage beatings that they aided and abetted.  Thus Otokichy and Engichy are legally liable for the death resulting from their aiding and abetting the reckless conduct of the persons who committed the actual assaults with

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dangerous weapons.

     The result here, that the defendants by virtue of intentionally aiding and abetting others to commit illegal assaults with dangerous weapons, find themselves legally responsible for the death caused by those assaults, is dictated by the language of the National Criminal Code and requires no other explanation or support.

     Yet it may warrant mention that this does not represent a departure from other legal traditions but is in accord with principles long announced, and results reached in otherjurisdictions.3  See, for example, Dorsey v. State, 240 S.W.2d 30, 34 (Ark. 1951) ("The general rule is that, where persons combine to do an unlawful thing, if the act of one, proceeding according to the common plan, terminates in a criminal result, though not the particular result meant, all are liable."); Commonwealth v. Rife, 312 A.2d 406, 409 (Pa. 1973) (Where two defendants were engaged in a fight with the deceased when he was killed by a blow both defendants denied delivering, both were convicted of manslaughter. "No principle of law is more

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firmly established than that when two or more persons conspire or combine with one another to commit an unlawful act, each is criminally responsible for the acts of his associate or confederate committed in furtherance of the common design.") State v. Manson, 251 N.W.2d 788, 790 (Wis. 1977) (. One charged with aiding and abetting must be held responsible for the natural consequences of his act."); Commonwealth v. Vaughn, 326 A.2d 393, 395 (Pa. 1974)("The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all."); Turner v. State, 12 So. 54, 55 (Ala. 1892)("[I]t is not always necessary to show prearrangement to do the particular wrongful act committed; but it is true that when two or more persons enter upon an unlawful purpose, with a common intent to aid or encourage each other in carrying out their common design, they are each responsible, civilly and criminally, for everything which may consequently and proximately result from such unlawful purpose, whether contemplated or not."); Government of Virgin Islands v. Bennett, 427 F.2d 535, 536 (3rd Cir. 1970)("Defendant was part of a group which had shown its malevolence toward the occupants of the house who had cowered inside and had closed the wooden windows for safety .... The record presents a case of a group associated together  in the commission of aggression and violence, and although defendant did not fire the fatal shot, he was an active and prominent member of the group as was shown by his hurling the pickaxe into the boarded window.  The jury

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therefore was fully justified in its finding of guilt [for first degree murder]"); State v. Ochoa, 72 P.2d 609, 618 (N.M. 1937) ("[H]owever free from felonious intent a participant in the combat of opposing parties may have been in the beginning, once it becomes known to him that another member of his party is employing a deadly weapon, he exposes himself to an inference of sharing the latter's intent if, except in necessary defense of his own person, he continues his participation.").

Judicial Immunity
     Defendant Otokichy also asserts that the trial court  erred in failing to grant immunity to three witnesses who declined to testify on the grounds that their testimony might incriminate themselves.  Defendant's counsel stated to the trial court that the testimony of two of those witnesses, Onoven Engichy and Asachop, were "essential or important" to the defense.  Otokichy also asserts that a third witness was expected to give favorable testimony.

     The granting of immunity is traditionally a matter within the powers of the prosecution.  This is so, of course, because grants of immunity call for the balancing of numerous factors and weighing of important prosecutorial policies. In determining guilt the trier of fact should consider only those matters presented in the trial itself.  It follows that the trial judge may often be unaware of numerous important considerations which bear upon the desirability of grants of

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immunity to possible witnesses.

     Otokichy emphasizes that some courts have concluded that they have power to grant immunity.  This Court may well have that power also.  However, that does not alter the rationale underlying the reality that the granting of immunity is traditionally a matter of executive or prosecutorial discretion.  In the Federated States of Micronesia, where there is no right to trial by jury and the trial judge is the trier of both fact and law, it seems especially unwise for the Court to play an aggressive or active role concerning grants of immunity.

     Courts generally have recognized that they should grant immunity only under extraordinary circumstances.  No such extraordinary circumstances have been brought to our attention in this case.  More important, none was brought to the attention of the trial court.  At no point has Otokichy made an offer of proof suggesting why the testimony of the proposed witnesses might be essential, or even favorable to his case.

     This then is not an occasion for giving careful consideration to the power of this Court to grant immunity nor to the circumstances under which that power, if it exists, should be exercised.  It was not error for the trial court to decline to grant immunity.

Burden of Proof
     Otokichy also argues that the trial court may have improperly placed the burden of proof upon the defense.  The

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basis for this argument is the trial court's original findings of fact, which said, "No defense of Kirino gives me a reasonable doubt as to his guilt, and he has failed to establish an affirmative defense by a preponderance of the evidence."  After consideration of Otokichy's motion for new trial, the Court amended the finding to read, "No defense of Kirino Otokichy gives me reasonable doubt as to his guilt." The portion relating to affirmative defenses was deleted.  Otokichy argues that the original finding bespeaks the use of an improper standard and that the amendment came too late, after the court had already made a determination of guilt.

     First, we reject Otokichy's assumption that the change in itself had great import.  The original and the later finding both contained the statement that, . No defense of Kirino's gives me a reasonable doubt as to his guilt."  This statement reflects a proper approach to the treatment of defenses.

     In Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982), we concluded that the Due Process Clause of the Constitution of the Federated States of Micronesia requires proof beyond a reasonable doubt as a condition for criminal convictions in the Federated States of Micronesia.  What we said there, at 225, about alibi defenses holds true for other defenses as well.

[A]s a matter of constitutional due process, a trial court presented with an alibi defense should consider evidence concerning the alibi along with all other evidence and shall not find the defendant guilty if after considering all of that evidence, the judge feels there

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is a reasonable doubt as to the defendant's guilt.

     The trial judge's statements that no defense gave him a reasonable doubt as to guilt are wholly consistent with our holding in Alaphonso.  See also 11 F.S.M.C. 107(2)(a).

     The original statement concerning affirmative defenses, while momentarily troubling, does not indicate a misapplication of standards by the trial court in this case, for no affirmative defenses were at issue.

     Otokichy insists that the statement implies use of improper standards concerning evidence pertaining to self-defense.  Self-defense however is not an affirmative defense.  A defense is an affirmative defense only if it is so designated by the National Criminal Code or another statute.  11 F.S.M.C. 107(3).  There are few affirmative defenses designated in the Code4 and self-defense is not among them.

     Thus, we read the original finding as a somewhat ritualistic restatement of the distinction found in 11 F.S.M.C. 107 between defenses and affirmative defenses. The portion of the finding concerning defenses applies to any defense possible in this case and reflects a proper approach to claims of self-defense.

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     Our conclusion as to the import of the original finding  is not altered by the trial judge's statement in his subsequent order that defendant's motion for new trial would reach Count 4 since that count involved Kirino Otokichy's claim of self-defense against Mickensy Ruben.  The trial court's statements at that time were in response to Otokichy's assertions in his motion for new trial and were not an acknowledgement that those assertions accurately reflected the meaning of the trial judge when he issued his original findings.

     The trial court stated, in the order amending the special findings, that prior to making its original finding, it had concluded that no defense asserted, including self-defense, was an affirmative defense.  The trial court further noted that it had applied the standard specified in 11 F.S.M.C. 107(2)(a) to all defenses in the case.

     There is an additional, separate reason for our conclusion.  The amended special findings were entered at the time of denial of the motion for a new trial, while the trial court was still involved in the review of the evidence and the law pertaining to it.  The decision on that motion is equally as significant as the original findings and constituted separate affirmation of the determinations of guilt.  There can be no doubt that at the time of the latter findings the trial judge was correctly applying the law.

     In his brief, Otokichy has used the trial court's findings as a wedge to argue against the factual determinations

[1 FSM Intrm. 556]

made by the trial judge.  Kasimiro Engichy also emphasizes his disagreement with the trial court's conclusion.
     We have already in this opinion discussed the limited  role of the appellate court in reviewing evidence.  What we have said applies here too but perhaps the point should be embellished.

     Otokichy points out that there is much in the record contrary to the factual findings of the trial court.  That is true.  However, it does not warrant intrusion by us into the domain of the trial court.  At the core of the task of the trier of fact is the power and obligation to determine credibility of witnesses.  The trial court may rely upon that testimony which he finds credible and disregard testimony which does not appear credible.  To do this, the trial court must be a sensitive observer of tones, hesitations, inflections, mannerisms and general demeanor of actual witnesses.  An appellate court has before it only bound volumes of paper setting forth the words spoken at the trial.  Appellate courts have no opportunity to observe the witnesses themselves or the manner of their testimony.  Thus the long-established rule that an appellate court should not overrule or set aside a finding of fact of a trial court where there is credible evidence in the record to support that finding.  Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1941).

     Plainly, such evidence does exist here.  Whether the value of that evidence was erased or diminished by the contrary

[1 FSM Intrm. 557]

evidence, or the internal contradictions to which Otokichy and Engichy point, was an issue on which the trial judge's determination is entitled to deference.  The trial court's findings will be upheld so long as they rationally reflect evidence which is reasonable and combines with other evidence to present a coherent, believable, overall picture.

     An example of the scope and application of this principle may be helpful.  Both defendants attack as unjustified the trial court's finding that the group of which the defendants were a part was speeding to the scene "to punish" the others.  Both defendants testified that they were going there for the sole purpose of securing their brother, Orichy, who was reportedly "dying" or "injured."  The defendants also emphasize that nobody testified that the intent of the persons leaving the dock was to punish anybody.

     Yet, we do not find the trial court's finding unwarranted or without support in the record.  The evidence that a large number of armed men piled into the truck, coupled with the evidence of their conduct as soon as they arrived, fully justified the trial court's inference that even before arriving their intention was "to punish."

     Two other points raised by the appellants require only brief comment.

     After the trial was well under way it was learned that  the files of the Truk State Attorney's office and Truk State

[1 FSM Intrm. 558]

police contained statements made by various persons, including witnesses who had already testified in the trial, and other witnesses.

     It is clear that the attorneys of the national attorney general's office, representing the government in this case, were unaware of the existence of these statements and had not used them in their preparation.  Apparently the failure to communicate the existence of the statements was traceable to inadequate communication among Truk police officers, the Truk State Attorney's office and national government officials.  Counsel for the government advised opposing counsel and the court immediately upon becoming aware of the existence of the statements.  Copies were promptly made available to all counsel.

     Late disclosure of the statements, although inadvertent, plainly was in violation of discovery requests submitted earlier by the defendants.  It is normally for the trial court to fashion remedies and sanctions for failure of a party to comply with discovery requirements.  The exercise of that trial court discretion should not be disturbed by an appellate court absent a showing that the trial court's action has unfairly resulted in substantial hardship and prejudice to a party.

     The action of the trial judge in response to this unfortunate development was reasonable.  A hearing was held to consider appropriate steps to be taken.  After considering the various arguments advanced, the court decided to authorize the recalling of the witnesses, so that the defendants could

[1 FSM Intrm. 559]

question them concerning the statements.  All parties were immediately given an opportunity to review contents of the statements and to incorporate the newfound information into their presentations.  The defendants were given full opportunity to question each witness concerning the contents of the statements.

     Otokichy has not brought to our attention any facts indicating that the late disclosure of the statements worked any substantial prejudice or hardship on him, and we are unable to discern any such harm.  We note Otokichy's argument that, in determining whether to re-examine witnesses whose testimony was completed, counsel faced some difficult tactical decisions.  This is not a sufficient showing of prejudice to mandate mistrial or justify reversal of the convictions.

     Finally, this is not an apt case for merger of convictions under the approach taken in our recent decision in Laion v. FSM, 1 FSM Intrm. 503 (App. 1984).  In Laion, the defendant's single action resulted in only one injury to one person. Here, the defendants carried out various actions affecting different victims.

     There is ample evidence to support findings that Kasimiro Engichy and Kirino Otokichy played key roles in the October 3, 1981 assaults on these victims, which culminated in the death of Jennings Rochon, and that Kirino Otokichy struck the other two victims with a dangerous weapon.  The convictions are

[1 FSM Intrm. 560]


     So ordered the 30th day of October, 1984.

 /s/ Edward C. King
Chief Justice

 /s/ Mamoru Nakamura
Chief Justice
Supreme Court
Republic of Palau
(Designated Justice)

/s/ Herbert D. Soll
Judge, Commonwealth Court
Commonwealth of the Northern
Mariana Islands
(Designated Justice)

     Entered the 30th day of October, 1984.

 /s/ Emeliana J. Musrasrik
Chief Clerk of Court
Supreme Court of the
Federated States of Micronesia


1.  The word "fend" in this testimony was erroneously reproduced each time as "vent" in the trial transcript.  This has been converted, and several superfluous "ands" deleted, in the quotation. Back to opinion

2.We do not here rely upon the testimony of Johnson Ruben, who originally said that he saw Kirino hit Jennings, but on cross-examination admitted that there were too many people between him and Jennings to permit him to see. Back to opinion

3.Some of the cases cited in this paragraph are not generally available within the Federated States of Micronesia.  Therefore copies of those cases are being delivered to counsel.  Copies are also currently available for review at Truk or Pcnape upon request to clerks of this Court in those states. Back to opinion

4.See, for example, 11 F.S.M.C. 302(3), 602(3), 931(4), 917(3), 935(2) and 944(3). Back to opinion