Cite as Kimoul vs. Federated States of Micronesia,
5 FSM Intrm. 53 (App. 1991)

[5 FSM Intrm. 53]




FSM App. C2-1990


Oral Argument: March 21, 1991
Decided: April 11, 1991

Hon. Edward C. King, Chief Justice, FSM Supreme Court
Hon. Mamoru Nakamura, Designate  Justice, FSM Supreme Court*
Hon. Keske Marar, Designated Justice, FSM Supreme Court**

 *Chief Justice, Supreme Court of the Republic of Palau, on
  this Court by designation for this case
**Associate Justice, Chuuk State Court, on this Court by
  designation for this case

For the Appellant:     Dan C. Maloney (on the brief)
                                    Ready Johnny (argued)
                                    Office of Public Defender, FSM
                                    P.O. Box 754
                                    Weno, Chuuk  FM  96942

For the Appellee:      Douglas J. Juergens
                                    Office of the Attorney General
                                    Federated States of Micronesia
                                    P.O. Box PS-105
                                    Palikir, Pohnpei  FM  96941

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[5 FSM Intrm. 54]

Criminal Law and Procedure - Standard of Proof
    In a murder case, the defendant's voluntary admissions, including an express statement to his mother that he had committed the crime and asking others if the victim had been killed at a time before the body had been found, corroborated by finding the body slain in a manner consistent with the defendant's statement, constitute evidence sufficient to permit a reasonable trier of fact to find beyond a reasonable doubt that the defendant in fact killed the victim.  Kimoul v. FSM, 5 FSM Intrm. 53, 58 (App. 1991).

Criminal Law and Procedure - Sentencing
    Sentencing is to be individualized, and the overall objective must be to make the sentence fit the offender as well as the offense.  The sentencing court's focus must be the defendant, the defendant's background and potential, and the nature of the offense.  The term of imprisonment fixed in the sentence must be the time which the sentencing judge believes the convicted person justly should be required to serve. There is no justification for the sentence to include an additional factor in recognition of the possibility of parole.  Kimoul v. FSM, 5 FSM Intrm. 53, 60-61 (App. 1991).

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EDWARD C. KING, Chief Justice:
    The defendant, Williander Kimoul, appeals from his conviction for the February 20 or 21, 1989 murder of Tawoch Curley on Ruo, a small island about 90 miles north of Weno, in the State of Chuuk.

    Kimoul contends that the trial division of the FSM Supreme Court had before it insufficient evidence to justify his conviction for murder. He also appeals from the 30-year sentence imposed by the trial court, arguing that the trial court improperly increased his sentence because of the possibility of eventual parole.

    We affirm the conviction but vacate the sentence, remanding the case to the trial division for resentencing.

    On the afternoon of February 20, 1989, at approximately 3:00 p.m., Williander Kimoul told his mother, Marsena Kimoul, that he had stabbed Tawoch Curley.  She testified as follows:  "He came and told me that he stab Tawoch and I said, what? And he repeated saying that I stab - Tawoch was dead

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because I stab him.  And he said, no I'm just kidding and then he left."  Tr. at 69.

    It is apparent that Marsena Kimoul was by no means confident that her son was "just kidding" however, for when another son, White Kimoul, came to the house at approximately 9:00 a.m. the next morning, she told White what his brother had said and asked him to check Tawoch Curley's house.

    White Kimoul's testimony confirms that neither he nor his mother considered the defendant to have been joking.  White's testimony was as follows:
     Q.  Why did you go to Tawoch's house that morning?

     A.  I want to find out the information I took from my mother, that my mother told me that he was -- he was dead.
     Q.  When did you receive this information that Tawoch was dead?
     A.  That time I already stated after mass, I went down to my house and that's where my mother told me.

Tr. 49.  White was so "nervous" when he arrived at Tawoch Curley's house that he could not bring himself to enter.  Tr. 53.  He therefore called to another person, Asikina Joseph, to accompany him.  Tr. 34-35 and 53.  When White Kimoul opened the door, they found the body of Tawoch Curley, with what appeared to be a machete cut at the back of the head through almost half of his neck, at about ear level.  Tr. 28 and 59.

     There is no suggestion in the record that anybody had found Tawoch Curley's body before White Kimoul and Asikina Joseph did so.  Therefore, it is also significant that on the morning of February 21, shortly before White Kimoul and Asikina Joseph found Tawoch Curley's body, Williander Kimoul approached a group of boys and asked them whether Tawoch was dead.

     The defense, arguing that the evidence is all merely circumstantial, points to alleged inconsistencies which it contends should bar us from affirming the trial court's decision.

     In appellate review of a conviction challenged for insufficiency of evidence, the test is not whether the appellate court believes the defendant is guilty but whether there is evidence sufficient to convince a reasonable trier of fact of the defendant's guilt beyond a reasonable doubt.  Engichy v. FSM, 1 FSM Intrm. 532, 546 (App. 1984).  In applying this test, we are to review the evidence in the light most favorable to the trial court's factual determination.  Id. at 545.

     At the outset, we note that this is not a case of circumstantial

[5 FSM Intrm. 56]

evidence, for Williander Kimoul's statement to his mother purported to be that of an eyewitness, indeed that of the perpetrator, of the crime.  That the statement was not made in jocular fashion is demonstrated by the response of Williander's mother and brother.  Nor does the statement stand alone, as an uncorroborated admission or confession.  The statement was fully corroborated by the body of Tawoch Curley, slain in the manner described by Williander Kimoul.

     One alleged inconsistency which the defense urges is that the defendant's mother quoted Williander Kimoul as saying that he had "stabbed" Tawoch.  The defense argues that this is inconsistent with the fact that the fatal blow actually was something in the nature of a chop or a slice.  In addressing this contention, we must keep in mind that both the defendant and his mother were speaking in Chuukese and that neither of them actually used the English word, "stab."  Although that word appears in the transcript of the record before this Court, it was selected by the court's translator. No emphasis was placed upon the word "stab" during the mother's testimony.  She was not pressed in any way on cross-examination to clarify or to confirm specifically what Chuukese word had been used by the defendant when he told her of Tawoch's death.  Moreover, the defense conceded at oral argument of the appeal that it had not checked the tapes of the trial, and did not know, what Chuukese word the mother used in her testimony.1

     A reasonable trier of fact could reasonably have believed that Williander had told his mother that he had used some kind of cutting instrument to cut and kill, and that the actual method used was consistent with the defendant's words to his mother. We therefore conclude that the word "stab" in the transcript does not indicate an inconsistency between what Williander Kimoul said to his mother and what actually happened to Tawoch Curley.

     The defense also contends that the record reveals an additional inconsistency with a finding of guilt in that although Williander Kimoul told his mother on February 20, 1989 at 3 p.m. that he had already killed Tawoch Curley, both White Kimoul and Asikina Joseph estimated that Tawoch Curley had actually died at approximately midnight, some nine hours after Williander's conversation with his mother.

     Asikina Joseph said, "The way I observed the blood, it was still soft and that means it still a little bit fresh."  Tr. 39.  Based upon that information, he thought that the machete blow had been struck against Tawoch Curley "about maybe at midnight."  Id.  The testimony of White Kimoul was to the same effect, that the blood looked fresh, Tr. 65, in fact that it was

[5 FSM Intrm. 57]

"kind of dripping from the wound," Tr. 66, and that he therefore felt that the cut probably happened that night.  Tr. 67.

     For several reasons, we conclude that these estimates of the time of death do not create a reasonable doubt as to the guilt of Williander Kimoul.  First, there is not sufficient evidence to enable the trier of fact to determine whether these witnesses possessed the necessary expertise to enable them to determine the time of death with any reasonable degree of precision, based simply upon their observations of the decedent's blood.  Mr. Joseph's basis for comparison was his observation of blood "when I had a cut on my arm and my legs."  Tr  42.  White Kimoul testified that he had experience in butchering pigs and killing other live animals as well as observing his own wounds from cuts.  These are not the credentials of which reliable evidence as to time of death are made.  While we do not suggest that the trial court abused its discretion in permitting these witnesses to testify concerning their opinions as to the time of death, the evidence on this point is not sufficiently sound or credible to require a belief or even a reasonable doubt by the trial judge as to whether the fatal cut actually was inflicted at approximately midnight rather than before 3 p.m.

     The inconclusive nature of these witnesses' estimates of the time of death is highlighted still further by the absence of precise information as to the cause of death.  There can be no reasonable doubt that Tawoch Curley was dead when he was found by White Kimoul and Asikina Joseph and that the cut in the back of Tawoch Curley's head was the cause of his death.2  However, neither witness said anything which could have enabled the trier of fact to ascertain whether Tawoch Curley was killed instantly by the blow.  As the government points out, it is quite possible that Mr. Curley was simply paralyzed and perhaps rendered unconscious by the blow, which presumably would have severed his spinal cord, but that he may have lingered on alive, continuing to bleed for several hours after the blow was inflicted, perhaps dying only shortly before his body was found.

     Finally, the defense finds "inconsistency" in the fact that both White Kimoul and the mother of Williander Kimoul said that they saw no blood on the clothing of Williander and that Williander continued to wear the same clothing at all times from 3 p.m. on February 20 until after Tawoch Curley's body was found.

     This also is insufficient to require a reasonable trier of fact to have reasonable doubt as to Williander Kimoul's guilt.  There is insufficient evidence in the record as to the manner of the killing to establish

[5 FSM Intrm. 58]

conclusively that Tawoch Curley's assailant inevitably would have had blood on his clothes.  Besides that, there is no evidence as to whether Williander Kimoul had changed clothes between the time that Tawoch Curley was struck with the machete and the time when he talked to his mother.

     The express statement of Williander Kimoul to his mother that he had killed Tawoch Curley, together with the inference of guilt which may be drawn from the fact that he asked the boys if Tawoch Curley had been killed at a time when Tawoch Curley's body had not yet been found, furnish a solid foundation for a finding of guilt. These voluntary admissions of Williander Kimoul are amply corroborated by the fact that Tawoch Curley's body was found slain in a manner consistent with what Williander had described to his mother.  The import of this evidence, we conclude, is not appreciably weakened or diminished by any of the questions raised by the defense.  We find the evidence in this case sufficient to permit a reasonable trier of fact to find beyond a reasonable doubt that Williander Kimoul did in fact kill Tawoch Curley.  The conviction therefore is affirmed.

     At the sentencing hearing the trial court indicated that he would take the parole law, Pub. L. No. 5-24, into consideration in imposing sentence.  It is in fact clear that he did so since the 30-year sentence imposed upon Mr. Kimoul is twice as large as any sentence ever previously imposed by the trial judge.3

     This Court has recently had occasion to confirm the sentencing obligations of Justices in the FSM Supreme Court.

[S]entencing decisions are to be individualized, arrived at only after consideration of all pertinent factors, typically including consultations with the Office of the Justice Ombudsman with the categories of persons referred to in Public Law No. 5-24.  Sentencing is to be individualized and the overall objective is to make the punishment fit the offender as well as the offense. Tammed v. FSM, 4 FSM Intrm. 266 (App. 1990). The sentencing court's focus at all times must be on the defendant, the defendant's background and potential, and the nature of the offense.  Id.

[5 FSM Intrm. 59]

Yalmad v. FSM, 5 FSM Intrm. 32 (App. 1991).

     In Tammed, we recognized the desirability of permitting the trial judge the "necessary latitude to assess and balance the various factors that should weigh upon a sentencing decision."  4 FSM Intrm. at 274.  Of course if a trial judge considers a particular crime especially heinous, the defendant's character and background extraordinarily vicious, and the defendant's potential for adjustment to community life entirely unpromising, the judge may conclude that the particular defendant should receive a sentence dramatically more harsh than any sentence the judge has meted out to any other defendant.  So long as the sentencing court bases the sentencing decision upon "the defendant's background and potential, and the nature of the offense," Id. at 273, such an individualized sentencing decision would be "entitled to the deference accorded to findings of facts."  Id. at 276.

     Here however the indications are that at least part of this unusually lengthy sentence was not based upon the trial judge's assessment of particular characteristics of the defendant or of the offense he committed.  The great disparity between this and all previous sentences, the absence of any statement by the trial judge indicating that he believed that this defendant actually deserved a much greater sentence than any previously ordered in the Federated States of Micronesia, and the trial judge's specific reference to the parole law, all combine to confirm that some portion of the 30-year sentence was an "add-on" to reflect, or offset, the possibility of parole.

     A decision to add time to the sentence simply because of the possibility of parole would be a "policy decision, tantamount to a rule of law."  Tammed, at 276. "Adoption of such a policy must be tested by the standards applied for review of legal rulings.  If the appellate court disagrees with the trial court on a legal ruling, the trial court's decision must be set aside."  Id.
     We acknowledge that in many jurisdictions, including the old Trust Territory High Court and formerly in most states in the United States, many sentencing judges adopted a practice of adjusting sentences upward in order to make allowance for the expectation that the defendant ultimately would be paroled.  Thus, for example, if a sentencing judge was aware that the parole law permitted a defendant to be eligible for parole upon expiration of one-third of the term of the sentence, that judge might fix a sentence three times as lengthy as the time for which the judge felt the defendant should actually remain in prison.4  Under a traditional parole system, this inflation of the sentence well beyond the actual intended punishment was seen as a proper attempt by the judge to achieve just punishment.  Indeed, when parole decisions are placed outside the power of the judiciary, such a practice of

[5 FSM Intrm. 60]

artificial inflation of the length of sentences may well be necessary as a means of achieving the "overall objective" of arriving at an actual sentence which will "fit the offender as well as the offense."  Id. at 273.

     However, the current parole statute in the Federated States of Micronesia does not mandate, but merely authorizes review of sentences.  More important, parole decisions are made by judicial officials.  Under this statute, there is no practice of routinely granting parole upon service of one-third or any other designated portion of the original sentence.

Any change in that sentence will not be lightly won by a  convicted person seeking parole.  A heavy burden is upon the convicted person to persuade the sentencing judge that the "prisoner's behavior in prison and any factors indicative of  the prisoner's chances for a successful adaptation to community life after release" are such as to warrant a change in the original sentence.

Yalmad v. FSM, 5 FSM Intrm. at 34.

     Under these circumstances, we perceive no justification for the sentence to include an additional factor in recognition of the possibility of parole.5

[5 FSM Intrm. 61]

     We hold that under the current state of the law within the Federated States of Micronesia, sentencing is to be individualized and the overall objective must be to make the sentence fit the offender as well as the offense.  The sentencing court's focus must be on the defendant, the defendant's background and potential, and the nature of the offense, and the term of imprisonment fixed in the sentence must be the time which the sentencing judge believes the convicted person justly should be required to serve.

     The conviction of Williander Kimoul for the crime of murder is affirmed.  Since it appears that a substantial part of the 30-year sentence for Mr. Kimoul may represent time added to offset the possibility of parole, the sentence is vacated. The case is remanded to the trial court for resentencing in accordance with this opinion. The defendant shall remain in custody pending resentencing.

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1. We note also that the record of White Kimoul's testimony indicates other people also using the word "stab" even after the circumstances of Tawoch Curley's death were known:  Q. (By Pixley):  "When you found the body, did it cause any type of reaction in the community -- did anything happen when you find the body?"  A.  "Yes." Q.  "What happened after you found the body?"   A.  "Yeah, there were ladies cried and there were some people saying when did someone stab the person but we saw him yesterday."  Tr. 55 (emphasis added).

2. While it is to be regretted that no careful medical examination or autopsy was conducted, this is not altogether surprising given that Ruo is a small island, populated by only some 400 people, and rather isolated, lying about 90 miles north of Weno, the state capital of Chuuk.  Of course the absence of expert testimony does not preclude the trier of fact from making a reasonable finding as to cause of death.  Loch v. FSM, 1 FSM Intrm. 566, 576-77 (App. 1984).

3. We take judicial notice that over the ten-year history of the FSM Supreme Court, 57 persons have been sentenced inhomicide cases.  Prior to this 30-year sentence, the longest time of imprisonment imposed was 16 years.  That sentence wasby Chief Justice King for a double-killing carried out in onenight.  The longest sentence heretofore imposed by JusticeBenson, the trial judge in this case, was for 15 years.

4.See, for instance, J. Mattina, New Trends in Sentencing, reprinted in The National Judicial College, Sentencing 244 (1978): "If the Parole Board is going to be abolished, or phased out, . . . then the . . . sentences have to be reduced accordingly to reflect the fact that under existing approaches, a sentence of five years is seen by everybody in the process as really a sentence of two years."

5. The minimization of parole in the Federated States of Micronesia, although a departure from Trust Territory High Court sentencing practices here, is in harmony with prevailing current thought as to appropriate sentencing practices.  For example, after extensive hearings on sentencing practices, the United States Senate Committee on the Judiciary made the following recommendations:

a.  Parole should be abolished.  This is our most urgent and our most important recommendation.

b.  The best research indicates that parole has failed.  The empirical studies show that there is a greater deterrent effect from certainty and not the severity of punishment.  Inmates in prison today enter in an agonizing holding pattern, waiting for faraway parole commissioners or hearing examiners that visit them in prison to determine that magic moment when, for whatever reason, they are to be released from prison.

3.  Parole should be replaced by a determinate sentencing system. The sentencing court, at the time of sentencing, should set the amount of time to be served.

Hearing Report, United States Senate Committee on the Judiciary, quoted in J. Mattina, supra note 4, at 245.  In recent years, the possibility of parole has been eliminated or considerably diminished in more than half of the states of the United States, and in the United States federal system.  Focus, Sentencing Conference Examines Reform Impact, 67 Judicature 409, 410 (1984).