FSM SUPREME COURT APPELLATE DIVISION

Cite as Nedlic v. Kosrae, 15 FSM Intrm. 435 (App. 2007)

[15 FSM Intrm 435]

APPEAL CASE NO. K8-2007

Argued:  November 21, 2007
Decided:  December 7, 2007

APPEARANCES:

HEADNOTES

Appellate Review; Bail

An appeal from bail orders brought pursuant to FSM Appellate Rule 9(a) may be heard by a single justice of the appellate division. Nedlic v. Kosrae, 15 FSM Intrm. 435, 437 (App. 2007).

Attorney and Client – Appearance

When one defendant's trial level counsel and his appellate counsel are both employed by the Kosrae Public Defender's Office and appellate counsel is admitted to practice before the FSM Supreme Court, but trial counsel is not, since both counsel are employed by the Kosrae Public Defender's Office, the appellate counsel properly appeared in the appeal, and it would have been improper for trial counsel to file the appeal, since he is not admitted to practice before the FSM Supreme Court. Nedlic v. Kosrae, 15 FSM Intrm. 435, 437 (App. 2007).

Appellate Review

When the court has not had occasion to consider the standard of review for an appeal of an order denying bail pending trial under FSM Appellate Rule 9(a), the court may consider authorities from other jurisdictions in the common law tradition since FSM Appellate Rule 9(a) is similar to U.S. Appellate Rule 9(a). Nedlic v. Kosrae, 15 FSM Intrm. 435, 437 (App. 2007).

Appellate Review – Standard of Review – Criminal Cases; Bail

An appeal from an order denying bail is to be determined upon such papers, affidavits, and portions of the record as the parties present, including any statement of the reasons of the court appealed from explaining the denial of release, or conditions. Nedlic v. Kosrae, 15 FSM Intrm. 435, 437, 438 (App. 2007).

Appellate Review – Standard of Review – Criminal Cases; Bail

The standard of review for an appeal from an order denying bail is that the reviewing court will undertake an independent review of the detention decision, giving deference to the trial court's determination, and, if, after its independent review of the facts and the trial court's reasons, the appellate court concludes that the trial court should have reached a different result, then the reviewing court may amend or reverse the detention order, but if the appellate court does not reach such a conclusion – even if it sees the decisional scales as evenly balanced – then the trial judge's determination should stand. Nedlic v. Kosrae, 15 FSM Intrm. 435, 437-38 (App. 2007).

Bail

Under Kosrae statute, one has a right to pretrial release on bail unless he is under the influence of intoxicating drugs and the court determines that he will be offensive to the general public. Nedlic v. Kosrae, 15 FSM Intrm. 435, 438 (App. 2007).

Bail; Evidence

The application of the Kosrae Rules of Evidence is expressly excluded from proceedings with respect to release on bail. Nedlic v. Kosrae, 15 FSM Intrm. 435, 438 (App. 2007).

Appellate Review; Bail

When it is demonstrably the case that bail was set for each of the appellants in the amount of $1,000, the issue on appeal is not whether they are entitled to bail, but rather the issue is whether the bail amount is excessive. Nedlic v. Kosrae, 15 FSM Intrm. 435, 438 (App. 2007).

Bail

The protection of the victim or the community from danger or physical violence posed by a defendant is a factor the court may consider in setting or denying bail. Nedlic v. Kosrae, 15 FSM Intrm. 435, 438 (App. 2007).

Appellate Review – Standard of Review – Criminal Cases; Bail

When, after the appellate court's independent review of all of the matter which it is entitled to consider under FSM Appellate Rule 9(a), along with the trial court's statement of its reasons for setting

bail in the amount it did, the appellate court cannot conclude that the trial court should have reached a different result, the appellants' motions to overturn the trial court bail orders will therefore be denied. Nedlic v. Kosrae, 15 FSM Intrm. 435, 438-39 (App. 2007).

COURT'S OPINION

DENNIS YAMASE, Associate Justice:

On October 11, 2007, the appellants filed their notice of appeal from bail orders entered by the Kosrae State Court that set bail in both State of Kosrae v. Marson M. Nedlic, Crim. Case No. 94-07, and State of Kosrae v. Lipar Langu, Crim. Case No. 98-07, in the amount of $1,000. Appellants also moved for immediate release. The appeal is brought pursuant to FSM Appellate Rule 9(a), which provides that an appeal from such an order may be heard by a single justice of the appellate division. By appellate division order of November 11, 2007, the appeal was assigned to Associate Justice Dennis K. Yamase for purposes of Appellate Rule 9(a). On November 21, 2007, the court heard argument. Harry Seymour, who appeared for the appellants, was present at the FSM Supreme Court in Palikir, as was Associate Justice Dennis K. Yamase. Snyder Simon, who appeared for the State of Kosrae ("Kosrae"), was present telephonically.

As a preliminary matter, Kosrae contends that the appeal on behalf of appellant Marson Nedlic was improperly filed by Harry Seymour. Mr. Seymour represented appellant Lipar Langu at the trial level, but did not represent Marson Nedlic, who was represented by Steve George. Kosrae asserts Mr. Seymour is a stranger to the proceeding, and that the appeal on Langu's behalf should have been filed by Steve George.

Both Mr. Seymour and Mr. George are employed by the Public Defender's Office in Kosrae. Mr. Seymour is admitted to practice before the FSM Supreme Court, while Mr. George is not. Since both appellants are represented by the Kosrae's Public Defender's Office, and since both Mr. George and Mr. Seymour are employed by that office, Mr. Seymour properly appeared for both appellants in this appeal. Indeed, it would have been improper for Mr. George to file the appeal, since he is not admitted to practice before the FSM Supreme Court.

This court has not had occasion to consider the standard of review for an appeal of an order denying bail pending trial under FSM Appellate Rule 9(a). In such an instance the court may consider authorities from other jurisdictions in the common law tradition. Rauzi v. FSM, 2 FSM Intrm. 8, 14-15 (Pon. 1985). FSM Appellate Rule 9(a) is similar to U.S. Appellate Rule 9(a). Two substantive differences are that the FSM rule provides that the reasons supporting an order that refuses release or imposes conditions must be stated orally on the record or in writing, while the U.S. rule requires that the reasons be stated in writing. The U.S. rule provides that the appeal shall be heard "upon such papers, affidavits, and portions of the record as the parties shall present," while the FSM rule provides the additional italicized phrase: "upon such papers, affidavits, and portions of the record as the parties shall present, including any statement of the reasons of the court appealed from explaining the denial of release, or conditions."

The standard of review for case proceeding under the U.S. rule is that the reviewing court will undertake an "independent[] review of [the] detention decision[], giving deference to the determination of the district court." United States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990). This standard is consistent with the FSM rule, since the FSM expressly provides that the reviewing court may consider any reasons that the trial court had for denying release or imposing conditions. If, after this

independent review of the facts and the trial court's reasons, the appellate court concludes that the trial court should have reached a different result, then the reviewing court may amend or reverse the order of detention. O'Brien, 895 F.2d at 814. On the other hand, if the appellate court "does not reach such a conclusion – even if it sees the decisional scales as evenly balanced – then the trial judge's determination should stand." Id.

Turning to the merits of the appeal, appellants urge that because they are unemployed and have limited means, the trial court effectively denied them bail by setting the bail at $1,000, which they are unable to post. They further urge that they are entitled to bail under Kos. S.C. § 6.4601, which provides in part that one has a right to pretrial release on bail "unless he is under the influence of intoxicating drugs and the Court determines that he will be offensive to the general public." Section 6.4601 has no application, since it is demonstrably the case that bail was set for each of the appellants in the amount of $1,000. Rather, the issue is whether the bail amount is excessive.

As previously noted, FSM Appellate Rule 9(a) provides that an appeal from an order denying bail shall be determined "upon such papers, affidavits, and portions of the record as the parties shall present, including any statement of the reasons of the court appealed from explaining the denial of release, or conditions." The record on this appeal is limited. It consists of the criminal informations themselves, the orders of the trial court, the appellants' notice of appeal and motion for immediate release, and Kosrae's response. The only new matter presented on appeal is that the appellants have not been able to post the $1,000 bail because of their limited resources.

The information in Kosrae v. Nedlic, Crim. Act. No. 94-07, contains serious allegations. Two of the seven counts are felonies. Kosrae asserts in its response to the motion that Nedlic attacked his wife with a piece of rebar while she was sleeping with the couple's infant daughter. The attack resulted in a severely broken leg that required his wife to be admitted to the Kosrae state hospital under intensive case. Kosrae further asserts that Nedlic is mentally unstable as a result of a skull fracture, and that he had on a prior occasion permanently maimed his wife by biting her face. While Kosrae's statements in this regard are hearsay, the application of the Kosrae Rules of Evidence is expressly excluded from "proceedings with respect to release on bail." Kos. Evid. R. 1101(d)(3). The trial court, "[a]fter hearing from both the Plaintiff and the Defendants on the issue of bail, based upon the information submitted before this Court, and the Court having considered counsel's arguments, the file in this matter, and the interests of justice," set bail at $1,000. Appellate Rule 9(a) expressly provides that this court may consider this statement of the trial court in reviewing the trial court's bail order.

"[T]he protection of the victim or the community from danger or physical violence posed by the defendant" is a factor the court may consider in setting or denying bail. Kos. Crim. R. 46(a)(1). The court has independently reviewed all of the matter which the court is entitled to consider under FSM Appellate Rule 9(a), along with the trial court's statement of its reasons for setting bail in the amount it did. The record includes information that Nedlic previously attacked and permanently disfigured his wife; that he is mentally unstable; and that the attack with which Nedlic is now charged resulted in serious injury to his wife. The court cannot conclude that the trial court should have reached a different result. O'Brien, 895 F.2d at 814. Nedlic's motion for immediate release is therefore denied.

Bail of $1,000 was also set in State of Kosrae v. Lipar Langu, Crim. Act. No. 98-07. The criminal information in that case alleges four counts, the first of which is aggravated assault. Kosrae states in its response to the motion for immediate release that Langu assaulted Bruce Olter with a machete, and that he had previously assaulted Olter with a shovel on August 15, 2007. Thus there is evidence that Langu has attacked the victim twice, with the second being worse than the first. Again, danger to the victim or the public is an appropriate consideration in denying bail. Kos. Crim. R. 46(a)(1). Reviewing the record independently, and considering everything that the reviewing court is

entitled to consider under FSM Appellate Rule 9(a), the court cannot conclude that the trial court should have reached a different result. O'Brien, 895 F.2d at 814. Bail in the amount of $1,000 was not excessive.

For the foregoing reasons, the motion for immediate release is denied.