FSM SUPREME COURT
APPELLATE DIVISION (Yap)
Cite as Runmar v. FSM,
3 FSM Intrm. 308 (Pon 1988)

[3 FSM Intrm. 308]

HENRY RUNMAR,
Appellant,

v.

FEDERATED STATES OF MICRONESIA,
Appellee.

APP. NO. YI-1986

From:  Crim. 1985-3506
Benson, J.; Decided March 3, 1986

OPINION
 
Argued:  September 17, 1987
Decided:  March 11, 1988

Before:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court
     Hon. John Tharngan, Temporary Justice, FSM Supreme Court*
     Hon. Arthur Ngiraklsong, Temporary Justice, FSM Supreme Court**

     *Chief Justice, Yap State Court
     **Associate Justice, Supreme Court, Republic of Palau

APPEARANCES:
          For the Appellant:         Fred Atcheson
                                                 Public Defender
                                                 Office of the Public Defender
                                                 Yap, FSM   96943
 
     For the Appellee:              Rick Faus
                                                 Assistant Attorney General
                                                 Office of the Attorney General
                                                 Federated States of Micronesia
                                                 Truk, FSM 96942
 
[3 FSM Intrm. 309]
*        *        *        *

HEADNOTES
Criminal Law and Procedure - Due Process
     Due Process Clause of Article IV, section 3 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. Runmar v. FSM, 3 FSM Intrm. 308, 311 (App. 1988).

Criminal Law and Procedure - Defenses
     If there are defenses, proof of which would not negate any essential element of the crime itself, it is constitutionally permissible to place same burden of proof for those defenses upon defendant.  Runmar v. FSM, 3 FSM Intrm. 308, 311 (App. 1988).

Criminal Law and Procedure - Defenses
     Mental condition defense established by 11 F.S.M.C. 302(1) is an affirmative defense and therefore places squarely upon the defendant the burden to establish "the facts which negative liability" by a "preponderance of the evidence."  11 F.S.M.C. 107(1)(b).  Runmar v. FSM, 3 FSM Intrm. 308, 312 (App. 1988).

Criminal Law and Procedure - Defenses;
Criminal Law and Procedure - Due Process
     Mental condition defense established by 11 F.S.M.C. 302(1), and other affirmative defenses, do not lift from government the burden of establishing all essential elements of the crime beyond a reasonable doubt.  Runmar v. FSM, 3 FSM Intrm. 308, 312 (App. 1988).

Criminal Law and Procedure - Evidence
     11 F.S.M.C. 107 does not create any presumption as to mental health or lack thereof but merely establishes the standard of proof for a defense based upon mental disease, disorder, or defect, and places the burden of persuasion for that defense upon the defendant.  Runmar v. FSM, 3 FSM Intrm. 308, 314 (App. 1988).

Appeal and Certiorari;
Criminal Law and Procedure - Evidence
     Standard to be applied in reviewing a claim of insufficiency of evidence in a criminal proceeding is whether the appellate court can conclude that the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true.  Runmar v. FSM, 3 FSM Intrm. 308, 315 (App. 1988).

Criminal Law and Procedure - Homicide
     Under the law of the Federated States of Micronesia, manslaughter is a lesser degree of homicide included within the charge of murder.  Runmar v. FSM, 3 FSM Intrm. 308, 318 (App. 1988).

[3 FSM Intrm. 310]

Criminal Law and Procedure - Homicide;
Evidence
     In order for trier of fact to be free to choose between the lesser offense, manslaughter, or a greater degree of homicide, there must be a factual element, the resolution of which will determine whether the greater or lesser offense is applicable.  Runmar v. FSM, 3 FSM Intrm. 308, 318 (App. 1988).

Criminal Law and Procedure - Homicide
     Defendant who fails to request consideration of a lesser offense normally may not successfully appeal from a conviction arrived at without such consideration, but where all elements for murder exist but homicide was caused under extreme mental or emotional disturbance for which there is reasonable explanation or excuse, defendant is entitled to be convicted of manslaughter rather than murder, without regard to whether request for consideration of manslaughter was made by either counsel.  Runmar v. FSM, 3 FSM Intrm. 308, 319 (App. 1988).

*        *        *        *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This is the first case which has reached the appellate division in which a party has asserted nonculpability for criminal conduct on the ground that the conduct was a result of mental disease, disorder or defect of the defendant.  We consider here whether the statutory framework concerning a defense based upon the mental condition of the defendant meets the requirements of the Constitution of the Federated States of Micronesia, and has been applied correctly by the trial court.  Also at issue is whether the trial court gave sufficient consideration to the possibility of convicting this defendant of manslaughter instead of the crime of murder.

     We conclude that the case must be remanded to the trial court to consider whether the actions of the defendant were "under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse," within the meaning of 11 F.S.M.C. 912 so that the conviction should be for manslaughter rather than murder.

I.  Factual Background
     For reasons not explained in the record, defendant Henry Runmar, who had for several years been under treatment for mental disturbances, on June 29, 1985 took his sons, Irwin and victor, into his house at the village of Yinuf, Rull Municipality, on Yap Island and began doing something that made them cry.

     Mr. Runmar's father heard the commotion and approached the house in an effort to stop Mr. Runmar from hurting the boys.  Mr. Runmar came to the door and shouted for his Lather to leave.  The younger boy, Victor, took that opportunity to escape,

[3 FSM Intrm. 311]

     This seems to have enraged Mr. Runmar who renewed his abuse of nine year old Irwin, demanding that Victor be returned to the home.  Efforts by the father to calm Mr. Runmar failed.  The defendant's father sought the aid and advice of others, including Teteth, the chief of Yinuf, and the police.

     Despite the entreaties of many people who had gathered, Mr. Runmar remained inside his locked house and continued to beat Irwin, including hitting and slapping him with a machete, all the while demanding that Victor be returned to the house.

     Eventually, Mr. Runmar was driven out of the house by use of tear gas.  Before that occurred however, he had inflicted such grievous injuries upon Irwin that the boy died within two hours.

     Runmar was charged with the crime of murder.  His counsel raised the defense of insanity.  After trial, the trial court found that the defendant had failed to prove insanity by a preponderance of the evidence as is required by the applicable Federated States of Micronesia statutes.  Mr. Runmar was convicted of murder in violation of 11 F.S.M.C. 911(1).  He appeals from the conviction.

II.  Legal Analysis
A.     Constitutional Requirements.
     The defendant contends that as a matter of constitutional due process, once the sanity of the defendant has been placed at issue, the government must bear the burden of proving sanity beyond a reasonable doubt.

     The basic principle concerning burden of proof in criminal cases was articulated in Alaphonso v. Federated States of Micronesia, 1 FSM Intrm. 209 (App. 1982).  We held there that, "The due process clause of article IV, section 3 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."  1 FSM Intrm. at 223.

     Considering the assertion of an alibi defense in Alaphonso, the Court recognized that "a shift of the burden of persuasion to the defendant concerning any essential element of an alleged crime would be violative of the due process requirement that the Government must prove all elements of the crime beyond a reasonable doubt."  1 FSM Intrm. at 224.

     This however does not mean that the government must bear the burden of proving beyond a reasonable doubt every issue relevant to a criminal charge.  If there are defenses the proof of which would not serve to negate any essential element of the crime itself, it is constitutionally permissible to place some burden of proof for those defenses upon the defendant.  Ludwig v. FSM, 2 FSM Intrm. 27, 35-37 (App. 1985).

     In Ludwig, we interpreted provisions in the Weapons Control Act, 11

[3 FSM Intrm. 312]

F.S.M.C. 1203, as imposing upon the defendant the burden of producing evidence to place at issue claims of certain kinds of exemptions.  That interpretation did not clash with the requirements of Alaphonso because the factual considerations pertinent to the exemptions were "separate from the essential elements of the crime" and proof of the exemptions did not require the defendant to establish the negative of the government's required case.  2 FSM Intrm. at 36-37.  We noted also that the exemptions claimed brought into play "new facts, uniquely within the knowledge of the defendant, which the government could overlook by focusing on whether the conduct prohibited by the Act has occurred."  Id.

     Admittedly, the burden placed on Mr. Runmar here is greater than that in Ludwig.  The mental condition defense established by 11 F.S.M.C. 302(1),1 upon which Mr. Runmar relies, is an affirmative defense. 11 F.S.M.C. 302.  The statute places squarely upon the defendant the burden to establish the "facts which negative penal liability" by a "preponderance of the evidence."  11 F.S.M.C. 107(2)(b).2

     This statute however does not lift from the government the burden of establishing all elements of the crime beyond a reasonable doubt.  In this case, it was necessary for the government to establish beyond a reasonable doubt that the actions of Mr. Runmar did in fact cause the death of Irwin and that the killing was done "knowingly."3  11 F.S.M.C. 911(1)(a).  Only because those basic elements of the crime were proved beyond a reasonable doubt was it necessary for the defendant to try to establish that his mental condition was such that he should not be held responsible.

     Like the exemption defenses upheld in Ludwig, the 11 F.S.M.C. 302(1) defense based upon mental disease, disorder or defect brings into play factual

[3 FSM Intrm. 313]

considerations separate from the essential elements of the crime.  For example, the evidence presented by the government was concentrated upon Mr. Runmar's conduct on the night of June 29, 1985, the wounds he inflicted upon Irwin, his awareness that his actions were practically certain to cause Irwin's death, and the fact that the boy did indeed die.  This was sufficient to establish the crime of murder.

     The evidence introduced concerning the mental condition defense, on the other hand, related to a history of mental disturbances, antisocial oraberrational conduct, hallucinations, delusions and consultations with doctors.

     While there is an apparent relationship between the mental condition of a person and whether he has acted intentionally or knowingly, it is important to recognize that these are discrete, distinguishable concepts.  One may intend to kill another and know he is doing so, even though he is suffering under delusions and believes that saintly voices are telling him that such a killing would be an important service to the divine order of things.  Purposeful activity is all the law requires.  On the other hand, evidence of mental abnormality may help indicate a lack of the intention or knowledge requisite for murder even when a defendant is legally sane.

     In short, the requisite intention for murder may exist in one who has a mental disease, disorder or defect as referred to in 11 F.S.M.C. 302(1) and the absence of such a mental disease, disorder or defect is not essential to proof of intentional or knowing misconduct.  We conclude that the statutory requirement that one claiming nonculpability on the basis of a mental condition must prove such a condition by a preponderance of the evidence is not violative of the requirement of due process enunciated in Alaphonso and Ludwig, that the government must prove beyond a reasonable doubt all essential elements of the crime charged.

     The principles upon which this decision is based are well established within the Federated States of Micronesia.  Therefore reference to outside Jurisdictions is not necessary.  We note however that our opinion is in accord with decisions of courts in the United States construing the due process clause of the United States Constitution, from which the Federated States of Micronesia due process clause is drawn.  United States courts have consistently upheld the constitutionality of statutes placing upon a defendant asserting an insanity defense the burden of persuasion as to that defense.  See, e.g., Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1951); Daisen v. Wyrick, 566 F.2d 616 (8th Cir. 1977); Phillips v. Hocker, 473 F.2d 395 (9th Cir. 1973). United States v. Greene, 489 F.2d 1145, 1156 (D.C. Cir.

[3 FSM Intrm. 314]

1973); Oregon v. Dodson, 551 P.2d 484 (Or. 1976).

B.     Weighing the Evidence.
     Mr. Runmar also asserts that the statutory scheme, by placing the burden of persuasion concerning sanity on the defendant, creates a presumption of sanity. He contends that this presumption should be considered rebutted by evidence of defendant's previous insanity so that the government then is required to establish the sanity of the defendant.  See People v. Baker, 268 P.2d 705 (Cal. 1954).

     We do not read 11 F.S.M.C. 107 as creating a presumption.  Instead the section merely establishes the standard of proof for a defense based upon mental disease, disorder or defect and places the burden of persuasion upon the defendant.

     Under this statute, talk of rebutting a presumption of sanity is misplaced.  The defense did introduce evidence of previous diagnoses of Mr. Runmar and his treatment by several- doctors for mental disorder.  To be sure, this evidence is relevant to the issue of Mr. Runmar's mental condition at the time of the crime and Mr. Runmar was entitled to have it considered for that purpose.  However, we reject the suggestion that this evidence somehow triggers an automatic response or places the burden of persuasion on the government.

     We do not understand the defense to be contending, and we see no indication in the record, that the trial court failed to take evidence into consideration in reaching the conclusion that the defense had failed to establish lack of responsibility due to mental disease, disorder or defect.

     We find no error by the trial court in assessing the import of the evidence concerning Mr. Runmar's mental condition and concluding that the evidence produced by the defendant, when considered in the light of contrary prosecution evidence, failed to establish the claimed mental condition by a preponderance of the evidence.

C.     Proof of the Defendant's Intention.
     Mr. Runmar makes two contentions about proof of intent as an essential element of the crime of murder.

     1.     Legal error - The first claim is that the trial court failed to apply the correct legal standards.  In essence the argument is that the defendant's assertion of a defense based upon his mental condition diverted attention in such a way that the trial court overlooked the fact that the government retained the obligation to prove the wrongful intent of the defendant beyond a reasonable doubt.

     We have reviewed the transcript and find no basis for that contention.

[3 FSM Intrm. 315]

Indeed, the contrary is clear.  In a colloquy at the conclusion of closing arguments the trial judge patiently and at length confirmed to defense counsel his understanding of the distinction between the possibility that the defendant might raise reasonable doubt as to whether the government had established the requisite criminal intent under 11 F.S.M.C. 911, and the burden upon the defendant of establishing the 11 F.S.M.C. 302(1) defense by a preponderance of the evidence.  Tr. 331, line 22, to 339, line 21.

     2.     Factual basis - The defense also contends there was insufficient evidence to support the trial court's conclusion that Mr. Runmar knowingly killed Irwin.  We have previously discussed the standard to be applied in reviewing a claim of insufficiency of evidence in a criminal proceeding.

We ... recognize the obligation of this appellate tribunal to review the evidence in the light most favorable to the trial court's factual determinations .... The standard of review extends to inferences drawn 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.

Engichy v. FSM, 1 FSM Intrm. 532, 545-46 (App. 1984).

     We find abundant evidence in the record to support the decision of the trial court under this standard.

     The trial record reveals that Irwin was lying face down, covered with blood when he finally was recovered from his father.  His death, which occurred within two hours, was caused by severe hemorrhage, shock and brain laceration.  The government accurately summarizes the evidence of his wounds as follows:

Also contributing was a laceration wound in the chest to the main blood vessel.  Irwin had multiple knife wounds; small wounds on his hand, one wound taking off the top of his head including part of his brain, another wound across the bridge of his nose cutting just above both eyes that went into the inner plate of his skull, another wound  across his left upper arm cutting completely through the bone of the arm and a wound across the left side and upper back which went into his chest.  Irwin also had numerous bruises on his legs.

Gov't Br. 5.

     The trier of fact may infer an intent to kill from the defendant's

[3 FSM Intrm. 316]

performance of acts which plainly could be anticipated to kill a person.  Loch v. FSM, 1 FSM Intrm. 566, 567 (App. 1984).

     These wounds inflicted by Mr. Runmar are themselves powerful evidence that he was aware of the nature of his conduct and that such conduct was practically certain to cause Irwin's death.

     There is additional evidence tending to indicate that Mr. Runmar was acting pursuant to a coherent plan calculated to produce foreseeable results.  The record reflects that he kept the door to the house locked and Irwin out of sight. Irwin was punished even more severely when he tried to look out the window.  Mr. Runmar put out the light to prevent others from seeing in the house and refused to be lured outside by stratagems devised by those outside.  All of those acts were calculated to make it more difficult for those outside to learn what was happening to Irwin, and to thwart efforts to rescue him.

     When people surrounding the house, including the chief of the village, procrastinated in order to gain more time, Mr. Runmar specifically threatened to beat up Irwin if Victor was not brought back fast.  Mr. Runmar said "something" would happen by 10:00 p.m. if Victor was not brought.  Tr. 29.  These statements reflect an intention to harm Irwin.  Indeed, throughout it all the defendant was inflicting grievous injuries which caused Irwin's death soon after the ordeal ended.

     The trial court could reasonably conclude from this record that Mr. Runmar was capable of recognizing cause and effect and adjusting his own conduct to bring about desired results.  The record supports a conclusion that Mr. Runmar was aware of the nature of his own conduct and knew it to be practically certain that Irwin would die from the beating and torture to which he was being subjected.

D.     Consideration of Manslaughter
     The defense also contends that the record establishes that Mr. Runmar was "under the influence of extreme mental disturbance" at the time he killed Irwin and that the trial court should have reduced the charge against him from murder to manslaughter, defined at 11 F.S.M.C. 912:

[A] person commits the offense of manslaughter if he   causes the death of another human being . . . [under circumstances] which would otherwise be murder...[but he acted] under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.

     Jurisdiction over a particular crime places in the trial division the necessary authority to find the defendant guilty of any "offense necessarily included in the offense charged."  See FSM Crim. R. 31(c).

     It is not immediately obvious that the 11 F.S.M.C. 912(1)(b) crime of

[3 FSM Intrm. 317]

manslaughter is necessarily included in the offense of murder.  Under 11 F.S.M.C. 912(1)(b), manslaughter requires "extreme mental or emotional disturbance" in addition to "a homicide which would otherwise be murder."  Thus manslaughter could be seen as requiring more, not fewer, elements than murder.

     Despite this, United States courts generally have regarded manslaughter as a lesser offense necessarily included within the charge of murder. Stevenson v. United States. 162 U.S. 313, 16 S. Ct. 839, 40 L. Ed. 980 (1881); Belton v. United States, 382 F.2d 150, 155 (D.C. Cir. 1979); Sims v. United States, 405 F.2d 1381, 1384 n.5 (D.C. Cir. 1968); State v. Selig, 635 P.2d 786, 790 (Wyo. 1981); 3 C. Wright, Federal Practice and Procedure 515 (1982).  This rule apparently is based upon the "inherent relationship" between murder and manslaughter.  United States v. Johnson, 637 F.2d 1224, 1234-39 (9th Cir. 1980).  "All degrees of homicide which the law will punish are included in a charge of unlawful killing, so long as the verdict finds a lesser degree of homicide than was charged in the indictment."  Barbeau v. United States, 193 F.2d 945 (9th Cir. 1952).

     The FSM national criminal code is based in great part on the American Law Institute Model Penal Code.  Laion v. FSM, 1 FSM Intrm. 503, 511 (App. 1984); SCREP No. 1-299, J. of 1st Cong., 4th Reg., Sess. 281, 282 (1980).  The language of 11 F.S.M.C. 911 plainly is derived from ALI Model Penal Code 210.2, and 11 F.S.M.C. 912 is virtually identical with Model Penal Code 210.3. Thus, United States cases are helpful guides to the meaning of 11 F.S.M.C. 911 and 912.  It is especially significant that United States courts faced with statutory language similar to that set out in 11 F.S.M.C. 911 and 912 have concluded that manslaughter is necessarily included within the charge of murder. Farrow v. Smith, 541 P.2d 1107, 1109 (Utah 1975) ("for many years the definition of second degree murder has been the unlawful killing of a human being with malice aforethought, and that of manslaughter was the unlawful killing of a human being without malice.  In our opinion the new criminal code has not changed those definitions."); State v. Gregory, 543 P.2d 1051, 1054-55 (Kan. 1975).

     The FSM national criminal code, at 11 F.S.M.C. 911 and 912, retains this historical differentiation between murder and manslaughter.  Under these provisions, the crime of manslaughter is less grievous than murder and one who kills while under a reasonably explained disturbance is considered less culpable than one who kills intentionally or knowingly with no such disturbance.  The person who commits manslaughter lacks the reflective premeditation, that is, malice aforethought, necessary for murder.

     The crimes of manslaughter and murder "relate to the protection of the same interests," and are "so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presenter] as part of the showing of the commission of the greater offense."  United States v. Johnson, 637 F.2d at 1239, quoting United States v. Whitaker, 447 F.2d 314, 319 (D.C. Cir. 1971).

[3 FSM Intrm. 318]

     We conclude that under the law of the Federated States of Micronesia today, manslaughter is a lesser degree of homicide included within the charge of murder.

     This is not to say, of course, that the two crimes are so intrinsically linked that any time the crime of murder is charged, the trier of fact would be free to convict of either murder or manslaughter.  For example there may be proof of homicide but none whatever of mental or emotional disturbance.  Under those circumstances a conviction for manslaughter would be impermissible.  Sansone v. United States, 380 U.S. 343, 350, 85 S. Ct. 1004, 1009, 13 L. Ed. 2d 882, 888 (1965); United States v. Citron, 783 F.2d 307, 314 (2d Cir. 1986); United States v. Harry, 457 F.2d 471, 479 (2d Cir. 1972).4 There must be a disputed factual element the resolution of which will determine whether the greater or lesser offense is applicable.  United States v. Giampino, 680 F.2d 898, 901 (2d Cir. 1982).

     The record here contains evidence that Mr. Runmar was "under influence of extreme mental or emotional disturbance." The trial court was not barred from considering the lesser crime of manslaughter by absence of supporting evidence.

     Thus, the trial court had authority to consider the lesser offense of manslaughter.  Mr. Runmar would have been entitled to such consideration if he had requested it.  Keeble v. United States, 412 U.S. 205, 208, 93 S. Ct. 1973, 1975, 36 L. Ed. 2d 844, 847 (1973); Belton v. United States, 382 F.2d at 155. However, no request was made by either party.  Indeed, only the trial judge broached the possibility of considering manslaughter as an included offense. Defense counsel's reply was merely that, because of diminished capacity, the defendant should not be convicted of either crime.  Tr. 324.

     The question here then is whether a defendant who does not request consideration of a lesser included offense at the trial level may then obtain reversal of the conviction for the greater offense on the ground that the trial court failed to consider the lesser offense.  For several reasons we have concluded that while persons accused of most crimes may not prevail with such an appeal, the crime of murder should be treated differently.

     We begin by recognizing that there may be sound tactical reasons, grounded in a search for justice, why counsel may choose not to invoke a right to have the trier of fact consider a lesser crime included within the one charged.  The prosecution or the defense, or both, may prefer that the

[3 FSM Intrm. 319]

trier of fact face squarely the question of guilt as to the larger crime rather than consider convicting for a lesser offense.  Such a preference  could be prompted by concern that the trier of fact in a close case might be tempted to view the lesser crime as a desirable compromise even if not adequately supported by evidence.  United States v. Tasnas, 572 F.2d 340, 345-46 (2d Cir. 1978); Colorado v. Lewis, 676 P.2d 682, 688 (Colo. 1984).

     This concern about a compromise verdict may be greater in jurisdictions where the trier of fact is a jury.  The key point remains though.  Tactical and evidentiary assessments must be made by both counsel in determining whether to request that the court consider finding guilt on a lesser offense than that charged in the information.

     The trial court remains free to consider a lesser offense supported by evidence regardless of whether either counsel requests such consideration.  Yet judges are not privy to all thoughts counsel may have concerning representation of their clients.  It is proper that the trial court regard counsel's failure to request consideration of a lesser offense as an affirmative decision made in the interests of the client.  We hold that the defendant who fails to request consideration of a lesser offense normally may not successfully appeal from a conviction arrived at without such consideration.

     Yet, as we have already noted the relationship between murder and manslaughter is different from the normal larger and lesser included offense. Usually when the trier of fact finds all elements of the larger crime proved beyond a reasonable doubt, it is the duty of the court to convict for that larger crime.  We have found that the murder conviction here was supported by the evidence.  For most crimes, such a finding that   all elements of the larger crime have been fulfilled would preclude further consideration of a lesser included offense. However, since manslaughter  under 11 F.S.M.C. 912(1) requires "extreme mental or emotional disturbance"  in addition to "a homicide which would otherwise be murder," a finding of guilt for murder does not negate the possibility that the highest proper conviction would be for manslaughter.  If the trier of fact ends the analysis upon finding that the elements necessary for murder are fulfilled, injustice could result.  We hold that when all elements for murder exist but homicide was carried out under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse, the  defendant is entitled to be convicted of manslaughter rather than murder.  This is without regard to whether a request for consideration of manslaughter has been made by either counsel.

     Thus where, as here, there is evidence suggesting that the person who caused a death which would otherwise be murder was under the influence of mental or emotional disturbance, the trial court must give specific consideration to the possibility of manslaughter.  If the trial court finds guilt for murder rather than manslaughter under these circumstances, there Must be a specific finding, made orally or in writing, explaining why 11 F.S.M.C. 912 is not applicable.

[3 FSM Intrm. 320]
 
Conclusion
     There is no indication whether the trial court gave consideration to manslaughter and no finding of the kind described here.  This case is remanded to the trial court for consideration of manslaughter and, if manslaughter is found not to be applicable, written or oral findings explaining the reasons therefor.
 
 
Footnotes:

1. Section 302(1) provides:  "A person is not responsible for criminal conduct if, at the time of such conduct as a result of physical or mental disease, disorder, or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law."

2. The section, 11 F.S.M.C. 107, provides in pertinent part: "Defenses.
     (1)     A defense is a fact or set of facts which negatives penal liability.
     (2)     No defense may be considered by the trier of fact unless evidence
of the specified fact or facts has been presented.  If such evidence is presented, then:
 
*     *     *     *
     (b)     if the defense is an affirmative defense, the defendant is entitled to an acquittal if the trier of facts finds that the evidence, when considered in the light of any contrary prosecution evidence, proves by a preponderance of the evidence the specified fact or facts which negative penal liability."

3. The statutory definition of "knowingly," at 11 F.S.M.C. 104(5) is: "A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result."

4. FSM Crim. R. 31(c) is based upon the same numbered rule of the United States Federal Rules of Criminal Procedure.  This factor, and the implication of notions of due process, suggest that United States federal cases should be consulted in determining the proper application of the necessarily included offense doctrine within the Federated States of Micronesia.