FSM SUPREME COURT
APPELLATE DIVISION
Cite as Jonah v. FSM,
5 FSM Intrm. 308 (App. 1992)

[5 FSM Intrm. 308]

ANTON JONAH,
Appellant,

v.

FEDERATED STATES OF MICRONESIA,
Appellee.

FSM APP. NO. K7-1990

OPINION
 
Argued:  October 10, 1991
Decided:  April 27, 1992

Before:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
Hon. Jose S. Dela Cruz, Temporary Justice, FSM Supreme Court*;
Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court**

* Chief Justice, Supreme Court of the Northern Mariana Islands
**Chief Justice, Kosrae State Court

APPEARANCES:
For the Appellant:     Harvey Palefsky, Esq. (on brief)
                                   Shirley Paiz, Esq. (on brief and oral
                                   P.O. Box PS-174     argument)
                                   Palikir, Pohnpei  FM 96941

For the Appellee:      Glenn A. Jewel, Esq.
                                     Assistant Attorney General
                                     Office of the Attorney General
                                    P.O. Box PS-105
                                    Palikir, Pohnpei  FM 96941

*    *    *    *

HEADNOTES
Appeal and Certiorari
     In reviewing a criminal conviction on appeal the appellate court need not go beyond the standard of review in Engichy v. FSM, 1 FSM Intrm. 532, to require that the test be whether the trier of fact could reasonably include

[5 FSM Intrm. 309]

that the evidence is inconsistent with every hypothesis of innocence.  Jonah v. FSM, 5 FSM Intrm. 308, 310-11 (App. 1992).

Criminal Law and Procedure - Intoxication; Criminal Law and Procedure - Homicide
     In the absence of evidence as to how much alcohol the defendant drank and how it affected his conduct, the court need not determine whether the defendant's intoxication negated his ability to form the intent to kill.  Jonah v. FSM, 5 FSM Intrm. 308, 312 (App. 1992).

Evidence
     The excited utterance exception to the hearsay rule, FSM Evid. R. 803, does not permit admission of a statement made under stress of excitement caused by a startling event or condition, if the statement does not relate to the event or condition.  Jonah v. FSM, 5 FSM Intrm. 308, 313 (App. 1992).

Constitutional Law
     The appellate court will not decide a constitutional issue if not raised below and because unnecessary constitutional adjudication is to be avoided.  Jonah v. FSM, 5 FSM Intrm. 308, 313 (App. 1992).

Constitutional Law; Criminal Law and Procedure
     The Chapman rule, which holds that a constitutional error can be found harmless only when it is harmless beyond a reasonable doubt, is suitable for the FSM. Jonah v. FSM, 5 FSM Intrm. 308, 314 (App. 1992).

*    *    *    *

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
    This case comes before us on appeal from the judgment of the trial division convicting the defendant of murder.

    We are presented with the following issues:

     1.  Whether the evidence is sufficient to support the conviction;

     2.  Whether the trial court failed to properly consider evidence of defendant's intoxication; and

     3.  Whether the trial court erred in admitting a hearsay statement tending to implicate the defendant.

    We conclude that the defendant's contentions as to the first two issues are without merit; and that the admission of the hearsay statement was error, but was harmless beyond a reasonable doubt.

[5 FSM Intrm. 310]

Facts
    The victim, Delacruz Paulino, died about 12:30 a.m. May 26, 1990 of a single stab wound to his chest which lacerated his heart.

    Two groups of men had arrived at the scene of the killing about 11:00 p.m. the same night.  The groups were in separate locations until members of each group began fighting with those of the other group.  The confusion and disturbance did not end until about the time the death of the victim was observed and became known.

    Although among the groups at least three men were armed with knives at different times during the melee, only the victim was injured by that means.

Reasoning
    A.  Sufficiency of the evidence.  The particular contention of the defendant is that proof beyond a reasonable doubt could not, as a matter of law, be found against the defendant because the testimony showed the existence of another, Joarson Alik, who could have inflicted the fatal wound.  The defendant in his opening statement, which followed the government's opening statement, very clearly contended that the evidence would establish this defense.  Thus the court was aware of the defense contention before any witness was called and could consider it during the course of receiving the testimony.

    The defendant supports this contention by citing legal authority concerning the burden of proof.  "In determining the sufficiency of either direct or circumstantial evidence, the test is . . . whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of innocence."  United States v. Weischenberg, 604 F.2d 326, 330 (5th Cir. 1979).  "We must determine whether jurors could reasonably conclude the evidence is inconsistent with every hypothesis of innocence."  United States v. DeJean, 613 F.2d 1356, 1358 (5th Cir. 1980).

    The correct test for our consideration of the sufficiency of the evidence was first set forth in Engichy v. FSM, 1 FSM Intrm. 532, 545-46 (App. 1984):

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

The test is . . . 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.

Id.  (citation omitted).

[5 FSM Intrm. 311]

     We do not find any reason in this case to go beyond this standard, and require the test as formulated in the cases cited by the defendant.  We reach this conclusion first of all because in extensive special findings of fact the trial court set forth why this defense did not raise a reasonable doubt, saying, "Therefore, I conclude that there's no reasonable possibility that Joarson Alik could have been the person who caused the stab wound that killed Delacruz Paulino."  On this appeal the defendant invites us to conclude this conclusion is unreasonable because of some inferences drawn by the court, and some conflicts in the testimony.  We have examined these points and conclude we would be unjustified in substituting our views for that of the trial court in the light of Engichy. In reaching this conclusion, we note the trial court's finding that the testimony of Joarson Alik, who was a prosecution witness, was believable.

     Secondly, we reject the defendant's urging that we adopt an additional standard of review since it adds little to the present standard.  A process of restating the standard can continue.  This can be shown in the DeJean case cited by the defendant.  The portion relied upon is not the only statement of the standard of review in DeJean.  The court first states that the evidence is reviewed in the light most favorable to the government, and that all reasonable inferences must be made in favor of the verdict.  DeJean, 613 F.2d at 1358. DeJean then gives the formulation now urged upon us about "whether the jurors could reasonably conclude that the evidence is inconsistent with every hypothesis of innocence."  Id. (citations of Fifth Circuit cases omitted).  The DeJean opinion then concludes with a final formulation, "Stated another way, the test is whether a reasonably minded jury must have had a reasonable doubt."  Id. (emphasis in original).

     The trial court's findings are that the defendant struck one Peter Otto with a rock and then jumped on him and appeared prepared to hit Peter a second time; that he was kicked off Peter by Paliknoa, and said words similar to "You wait here, I'll be back"; that the defendant left the scene to get a weapon; that he did go to his nearby house and got a knife and returned to the scene with a knife with which he threatened others, that he confronted Paliknoa in a threatening manner cutting his jacket, that the victim arrived at the scene of this cutting and stood next to the defendant, that the defendant stabbed Delacruz Paulino, inflicting the mortal wound, and that the defendant then departed from the scene and threatened two others with his knife before surrendering his knife to the store owner at his place of business near the scene.

     These findings are extensive and refer to the physical and medical evidence before the court.  The trial court found that the testimony of Paliknoa, who was the only witness naming the defendant as the perpetrator, was believable.

     We conclude, applying the Engichy standard, that the Court did not err in finding the defendant guilty.  We decline to add to the Engichy standard the suggestion made by the defendant.

[5 FSM Intrm. 312]

     B.  Intoxication.
     We understand the defendant's argument on this issue to be two-fold.  First, that the defendant's intoxication negated the defendant's ability to form the intent to kill. This contention is reviewed under the Engichy standard.  Second, that the court was required to consider intoxication sua sponte to determine whether the conviction should be for manslaughter and not murder.

     As to the first point, the defendant is asserting a point he did not argue in the court below.  Nor did the defendant request a special finding on this question pursuant to FSM Crim. R. 23.

     We reject defendant's contention.  There are two independent reasons.  First, the matter is not properly before the court since it was not raised and ruled upon in the trial court.  Loney v. FSM, 3 FSM Intrm. 151, 154 (App. 1987).

     Second, consistent with our conclusion in Part A above, there is sufficient evidence to support the court's finding of intent.  We conclude that the trial court could find the element of intent from defendant's thrust with a knife into a vital spot in the chest of Delacruz Paulino, especially in the light of its other findings of aggression by the defendant using first rocks and then a knife.  In regard to the issue of intoxication now raised, there is evidence that defendant was one of a group which drank a large quantity of alcoholic beverages, but there was no evidence as to how much was drunk by defendant or how his conduct was affected.

     The second contention of the defendant is that the trial court was required on its own motion to consider whether intoxication required a finding of manslaughter.  But because there is no showing below as to the extent of the defendant's intoxication, we need not address this issue.

     We conclude therefore that there is no merit in the defendant's contentions concerning intoxication.

C.  Excited Utterance.
    1.  Rules of Evidence.  The prosecution witness, patrolman Miosi Tolenoa, with police detective Harry Jackson, was engaged in arresting Jackson Albert.  The witness was asked if Jackson Albert said anything.  The defense made a hearsay objection.  The prosecution responded by saying the answer would be an excited utterance, "that Jackson Albert had just learned of the death of his friend and was out of control, raging up and down at the scene."

     The defense replied that the immediate preceding witness prosecution, Harry Jackson, had testified that Jackson Albert said that Rolinson Ned had killed Delacruz.  The court overruled the objection.  The hearsay was "fuck military, why use the knife."

     This statement tended to incriminate the defendant because he was in the military.

[5 FSM Intrm. 313]

     Harry Jackson testified that on the night of the homicide he went to the scene. He arrested Jackson Albert because he was "mad and started shouting and couldn't control" upon seeing the dead body of Delacruz.  Harry Jackson said that Jackson Albert accused Rolinson Ned of the killing while he was being arrested.

     The next witness was Patrolman Miosi Tolenoa who testified that he was called to the scene to assist in arresting Jackson Albert.  He arrived at the scene after Harry Jackson.  Miosi Tolenoa is the witness who testified to Jackson Albert's statement.

FSM Rule of Evidence 803 reads in part,

   The following are not excluded by the hearsay  rule, even though the declarant is available as a witness:
                        . . . .
(2) Excited Utterance.  A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

     We conclude that the admission of the statement was in error.  While the testimony supports the view that Jackson Albert was under stress of excitement caused by seeing the dead body of Delacruz, the statement he made does not relate to that event or condition.  That is, naming the perpetrator does not relate to observing the dead body of Delacruz.  Stated another way, a statement as to who caused the death, to be an excited utterance, would have to be made under the stress of the excitement of seeing the perpetrator cause the fatal wound.

     Although the admission was in error it did not affect a substantial right of the defendant.  FSM Evid. R. 103(a).  The reasons for our finding of harmlessness are set forth in the section which follows.

     2.  Confrontation.  On appeal, for the first time, the defendant contends that the admission of the hearsay statement violated his right to confront a witness.  ("The defendant in a criminal case has a right . . . to be confronted with the witnesses against him . . ."  FSM Const. art. IV, 6.)  The contention has substance: there was no showing that the declarant was not available to testify, the statement, as decided above, does not come within an exception to the exclusion of hearsay,1 and as appears below, indicia of reliability are absent.  We however will not decide this constitutional issue.  First, because it was not raised below.  Loney v. FSM, 3 FSM Intrm. at 154.  Second, because "[u]nnecessary constitutional adjudication is to be avoided."  FSM v.

[5 FSM Intrm. 314]

Edward, 3 FSM Intrm. 224, 230 (Pon. 1987).

     We next address this issue in the light of FSM Crim. R. 52, assuming for this purpose that the admission of the hearsay  statement violated the defendant's right to confront a witness against him (the declarant Jackson Albert who said, "fuck military, why use the knife.").  Rule 52 reads,

             Harmless Error and Plain Error.

    (a)   Harmless Error.  Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.

    (b)  Plain Error.  Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

     In earlier cases involving Rule 52 in which the issue had not been properly raised and preserved in the trial court, we have held that substantial rights were affected.Hartman v. FSM, 5 FSM Intrm. 224 (App. 1991); Moses v. FSM, 5 FSM Intrm. 156 (App. 1991); In re Juvenile Appeal No. P2-1988, 4 FSM Intrm. 161 (App. 1989).  In those cases we did not address the standard by which the decision is made whether the error affects the substantial rights of the defendant. We must do that in this case because we conclude that the error (which is assumed, not decided) did not affect the substantial rights of the defendant.

     The standard has not been decided by us.  Rule 52 does not set forth a test of substantiality.  Having adopted this rule from the United States, we examine the cases of the highest court of that jurisdiction, since it is proper to consider that the rule was intended to have the same meaning as construed by the jurisdiction from which it was borrowed.  Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984).

     The United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) held "that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."  Id. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-11.

     The error in Chapman was the prosecutor's comment to the jury on the defendant's failure to take the witness stand.  The Chapman harmless error rule has been applied in subsequent cases.2

     The United States Supreme Court has stated that some constitutional

[5 FSM Intrm. 315]

errors could never be treated as harmless.3  The erroneous admission of hearsay has not been included among these.

     The next question is whether the Chapman rule is suitable for the Federated States of Micronesia.  We think it is, for reasons parallel to those expressed by us in Alaphonso v. FSM, 1 FSM Intrm. 209, 221 (App. 1982).  That case established that the government's burden in a criminal case is to establish proof beyond a reasonable doubt in order to support a conviction, and that this standard was suitable for Micronesia.

     If a constitutional error occurred in the trial, surely it cannot be declared harmless if a reasonable doubt existed as to its effect on the rights of the defendant.  The highest standard is appropriate.  We therefore hold that a constitutional error can be found harmless only when it is harmless beyond a reasonable doubt.

     We do hold that the admission of the hearsay was harmless according to this standard for the following reasons.

     1.  The trial court made no reference to the hearsay in its findings.  These findings are extensive, appearing in more than 13 pages of the transcript of the trial. (Because the trial judge is the finder of fact who gives the reasons for his findings, we are in a far better position to weigh the substantiality of the error than if all we had was the general verdict of a jury.)

     2.  Counsel for neither party gave the hearsay sufficient weight to even argue it in closing.

     3.  The statement is patently unreliable.

         a)  The record is silent as to whether the declarant saw the stabbing.  In closing argument the government said no one saw the stabbing except Paliknoa Palsis.

         b)  Just before the objected-to hearsay, the declarant made an inconsistent statement to another police officer who was also engaged in arresting him.  He said that Rolinson Ned killed Delacruz.  It was to the police officer Miosa Tolenoa, who was also arresting him, that Jackson Albert made the hearsay statement at issue.

         c)  As already noted, there was no showing of unavailability of Jackson Albert.

     For all the reasons stated, the admission of the hearsay was harmless beyond a reasonable doubt.

[5 FSM Intrm. 316]

Mandate
     The judgment of the trial division is affirmed and the appeal dismissed.

*    *    *    *

Footnotes:

1.  Cf. White v. Illinois, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992).  "[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied."  Id. at 743, 116 L. Ed. 2d at 859.  Spontaneous declarations and statements made for medical treatment were the hearsay proffered.
 
2.  Arizona v. Fulminante, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (coerced confession may be subject to harmless error rule).  The cases of particular relevance listed on page 111 S. Ct. at 1263, 113 L. Ed. 2d at 329-30 are those decided  before July 11, 1981, the effective date of our Rules of Criminal Procedure.

3.  E.g., Chapman, 386 U.S. at 23 n.8, 87 S. Ct. at 828 n.8, 17 L. Ed. 2d at 710 n.8. (right to counsel and right to an impartial judge); Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970).