THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Robert v. FSM ,
4 FSM Intrm. 316 (App. 1990)

[4 FSM Intrm. 316]

ROGER ROBERT,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA
Appellee.

FSM APP. CASE NO. T4-1989

from

Crim. Case No. 1989-1504

OPINION

Argued:April 26, 1990
Decided:September 7, 1990

BEFORE:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court
     Hon. John Petewon, Temporary Associate Justice, FSM Supreme Court*
     Hon. Jesus C. Borja, Temporary Associate Justice, FSM Supreme Court**

     *Associate Justice, Chuuk State Court, on this Court by designation for the case.
     **Associate Justice, the Supreme Court of the Commonwealth of the Northern Mariana Islands, on this Court by designation for this case.

APPEARANCES:

[4 FSM Intrm. 317]

For the Appellant:     Mr. Dan Maloney
                                    Public Defender
                                    Federated States of Micronesia
                                    Weno, Chuuk  FM  96942

For the Appellee:      Mr. Steven P. Pixley
                                    Chief of Litigation
                                    Office of the Attorney General
                                    Federated States of Micronesia
                                    Palikir, Pohnpei  FM  96941

*    *    *    *

HEADNOTES
Criminal Law and Procedure - Homicide
     Manslaughter is committed if death is caused by one acting recklessly. Robert v. FSM, 4 FSM Intrm. 316, 318 (App. 1990)

Criminal Law and Procedure - Homicide
     If the acts which caused the death were in willful disregard of the attendant circumstances and unjustifiably created excessive risks, the acts need not have been done with the purpose of causing death or with substantial certainty that death would result.  Robert v. FSM, 4 FSM Intrm. 316, 319 (App. 1990).

*    *    *    *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     Appellant Roger Robert, appealing from his conviction for manslaughter under 11 F.S.M.C. 912(1)(a), contends that the evidence was insufficient to support a finding of reckless conduct within the meaning of that term as defined in 11 F.S.M.C. 104(9).

I.  Factual Background
     Evidence presented before the trial court indicates that at dusk, shortly after sunset during the evening of March 15, 1989, a light brown sedan driven by the defendant, and traveling considerably faster than is normal for the area, struck a young boy, George Martin, who was leaning over to tie his shoelaces somewhere near the edge of the road in front of the Stop 'N Shop in Iras Village, Weno Island, Chuuk.  The boy was thrown to the top of the car, remained there for some 40 feet as the car continued to move forward, and then fell to the ground.  The car continued driving and did not stop.  George Martin was taken to the Chuuk Hospital and approximately 35 minutes later was pronounced dead.   
 
[4 FSM Intrm. 318]

     There is testimony by police officer Felix Santiago that earlier that same day, at approximately 4 P.M., he saw the defendant, Roger Robert, driving the light brown sedan.  As the two cars of Mr. Robert and Officer Santiago passed each other in opposite directions, Officer Santiago observed Mr. Robert's vehicle speeding.  Tr. 84.  Judging from the redness of Mr. Robert's eyes, Officer Santiago believed him to be drunk.  There was also testimony by Officer Edwin Raed that at approximately 5 P.M., he saw Mr. Robert driving at an excessive speed and going "up to the fence" close to the Truk Trading Center to pass a car.  Tr. 74.1

     Another witness saw Mr. Robert driving immediately after the accident.  She thought he was drunk because: he was speeding, his car almost hit the pickup truck in which she was riding, his eyes were red and he looked drunk.  Officer Raed also testified that shortly after he received the report that a car bearing a certain license plate number had hit a young boy and had left the scene of the accident, he saw the light brown sedan moving at a high rate of speed and bearing that same license number.  Officer Raed pursued that vehicle, which soon collided with another car.  By the time Officer Raed reached the sedan, the driver had disappeared, but the officer found a liquor bottle inside it.  No one disputes that this was the car Roger Robert had been driving.   Mr. Robert was charged in the FSM Supreme Court trial division with the crime of manslaughter. After trial he was convicted of that charge and sentenced to two years in jail.  He is appealing from the conviction.

II.  Legal Analysis
     "A person commits the offense of manslaughter if he causes the death of another human being when ... the person has acted recklessly."  11 F.S.M.C. 912(1)(a).  The definition of recklessness is set out at 11 F.S.M.C. 104(9):

     "Recklessness" means to act with willful disregard to the attendant circumstances, or if unaware of the circumstances, to act in such a manner that constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.
 
      The trial court held that Mr. Robert had acted with willful disregard to the attendant circumstances.

     The defense contends that the language in 11 F.S.M.C. 104(9) should be read against the definition of "criminal negligence" at 11 F.S.M.C. 104(2), and that recklessness for purposes of manslaughter requires a volitional act, carried out in willful disregard of the attendant circumstances, with the

[4 FSM Intrm. 319]

purpose to cause death or with substantial certainty that death will result.  App. Br. 25.  This argument is grounded upon the relationship between the crimes of manslaughter and negligent homicide in the original version of the National Criminal Code.

     The former national crime of negligent homicide, 11 F.S.M.C. 913, has been deleted from the National Criminal Code. Pub. L. No. 5-40 12 (5th Cong. 2nd Reg. Sess. 1987).  This amendment, enacted by Congress in 1987, was given an effective date of December 11, 1988 in the expectation that by then the various state legislatures would have replaced the deleted crimes through amendment of their own state criminal codes.  In the case of Chuuk however that still had not happened by March 15, 1989, when George Martin was killed.  Thus, at that time there was no such crime as negligent homicide under national law or in the State of Chuuk.

     Under these circumstances, we decline to accept the contention of the defense that the definitions of recklessness and criminal negligence, 11 F.S.M.C. 104(2), should be read in tandem to form a dichotomy between the crimes of manslaughter, covering only volitional acts intended to cause death or at least a substantial certainty of death, and negligent homicide, covering all other unintended deaths caused by unjustified creation of excessive risks.

     We have carefully reviewed the record in this case and are satisfied that no injustice has been done the defendant by the trial court's decision.  The actions of the defendant were such as could reasonably be found to have fallen within the definition of recklessness.

     For these reasons, the decision of the trial court is affirmed and the appeal is dismissed.

*    *    *    *
 
Footnote:
 
1.  Unfortunately, neither officer made any effort to curtail Mr. Robert's illegal driving activities at that time.  Officer Santiago's explanation at the trial was that "there were cars on the road" so that he "could not make a U-turn."  Tr. 82. Officer Edwin said he had just been dropped off "because it was raining," thus had no police car when he saw Mr. Robert drive by.  Tr. 75.
                                                                                                                                                                                                                                                                                                           
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