FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

JIM RAITOUN,

Defendant.

CRIMINAL CASE NO. 1984-1520

TRANSCRIPT OF FINDINGS

Before Honorable Richard E. Benson
Associate Justice
Decided October 25, 1985

APPEARANCES:

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HEADNOTES

Criminal Law and Procedure - Homicide

When the defendant is fighting another person and uses a wrestling hold which causes the death of the other person, but when the court is unable to find that reasonable person would be aware that such a hold, as applied, would create a substantial risk of death, the defendant is not guilty of the crimes of manslaughter or negligent homicide. FSM v. Raitoun, 1 FSM Intrm. 589, 590-92 (Truk 1984).

Criminal Law and Procedure - Defenses; Custom and Tradition

When no custom is established by a preponderance of the evidence that the vile phrases used are sufficient provocation for a serious attack on the speaker, that alleged custom will not be considered in determining the criminal culpability of the person who attacks the one who has used vile phrases. FSM v. Raitoun, 1 FSM Intrm. 589, 591-92 (Truk 1984).

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CLERK: This is Criminal Case No. 1984-1520, FSM v. Jim Raitoun. Today is Thursday, October 25, 1984, it is now 10:19 a.m. This session is for the Court to give its findings. The defendant is here in person and with his attorney, Mr. Michael Powell, and his language informant, Mr. Richard Eaz. FSM Government is represented by Assistant Attorney General Mr. David Brown and his assistant Mr. Awasio Eram. The Honorable Richard H. Benson, Associate Justice is presiding.

COURT: You said the defendant is present in person? This is an unusual case. I make the following findings of fact. On June 16, 1984, the victim of this homicide was drunk. As he left his house he was accompanied by young family members because they thought he might get in trouble. At the defendant's house he addressed the defendant using a vile phrase. The defendant went to the victim, hit him once with his fist on the left cheek and kicked him. The victim fell. He was helped up by family members. He again directed a vile phrase at the defendant when the defendant's sister was present. The defendant took a 2 x 4 and went to the victim and swung the 2 x 4 at the victim but did not hit him. The defendant dropped the 2 x 4, or in some manner the 2 x 4 left his hand. The victim and the defendant then came at each other and the fatal injury occurred in this way: while both were standing, the back of the head of the victim was against the sternum-solarplexus area of the defendant, the defendant extended his arms to the buttocks, rear thigh

area of the victim and pulled the victim toward him. The victim never became mobile again. The testimony is onflicting as to the degree, but the defendant did some battering of the victim after he ceased moving and was on the ground. The victim died 4 days later in the hospital. The victim was a patient in the hospital following the incident and there was an autopsy of the body. The neck was dislocated; there was an abrasion of the left cheek. No other physical evidence of injury exists. The attending physician testified that there was hyperflexion of the neck. This is called in the testimony, "anterior subluxation of the third cervical vertebra." This high cervical spine subluxation was the cause of death. In a comparison of size of the defendant and the victim the defendant was "maybe a bit huskier" than the victim. There was conflicting testimony on the question of what the customary response was to the use of the vile phrases.

One view was that the use of such words would result in a very serious attack on the speaker even causing death. And that relatives, lineage and clan of the hearer would fight the relatives, lineage and clan of the speaker. The other view was that circumstances could alter the effect of the use of such words; whether the speaker was drunk or sober, what the family training of the hearer had been and whether or not the hearer knows the law of the Trust Territory. That is the American system. No custom was established by a preponderance of the evidence that the vile phrases used are

sufficient provocation lessening the culpability of the actor. The finding is made because there was evidence on the point; it's not essential to the conclusion that the court makes.

I cannot find beyond a reasonable doubt that this hold created a substantial and unjustifiable risk of death. And I cannot find beyond a reasonable doubt that the manner in which the defendant held the victim would be known by reasonable persons to cause death or serious bodily injury. Conclusion therefore, is that the finding is not guilty as to each count of the Information.

There are some comments that should be made here. The first is that anybody aware of this decision should be warned that it does not represent a court's holding that words can justify the taking of human life. That is not what this case is about.

Under the common law, what occurred in this case would clearly be involuntary manslaughter. Involuntary manslaughter is the unintentional killing of another, by one intending to injure the victim, but not carrying out that intention in a way that would naturally be expected to cause death. But the law of homicide that's been enacted and is in effect in this country approaches that problem differently, and there must be a mental culpability of the defendant, a certain mental attitude, before he comes within the homicide statute. Now that mental responsibility can exist if there was a substantial and unjustifiable risk of death and the

defendant just disregarded it, acted as if such risk did not exist. A typical case in meeting those facts would be shooting a gun into a house that you know is occupied. The other mental responsibility can be provided under this law if the defendant should have been aware that there was a substantial risk of death. A case that's typical here would be drunk driving. As I've said in this case I can't find that reasonable men would have found that that hold created a substantial and unjustifiable risk of death. It is the law in this country that punishment is only inflicted where the person was reckless as to such or was seriously careless in neglecting such risks.

Anything further, Mr. Brown?
MR. BROWN: Nothing; Your Honor.
COURT: Very well, Court is adjourned

[1 FSM Intrm. 594]

C E R T I F I C A T I 0 N

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

I, Norsiana Akira, Secretary/Court Recording Technician, FSM Supreme Court, hereby certify: