FSM SUPREME COURT
TRIAL DIVISION
Cite as FSM v. Hartman,
5 FSM Intrm. 350 (Pon. 1992)

[5 FSM Intrm. 350]

FEDERATED STATES OFMICRONESIA,
Plaintiff,

v.

PAULUS HARTMAN, WILLIAM
LADORE, and KASIANO PRIMO,
Defendants.

FSM CRIM. 1989-514

OPINION
 
Before Edward C. King
Designated Justice
Decided:  September 21, 1992

APPEARANCES:
For the Plaintiff:          Randy M. Boyer
                                     State Attorney
                                     Pohnpei State Government
                                     Kolonia, Pohnpei  FM 96941

For the Defendant:     Daniel J. Berman
(Kasiano Primo)         Attorney at Law
                                      Rush, Moore, Craven, Sutton, Morry and Beh
                                      P.O. Box 1491
                                      Kolonia, Pohnpei  FM 96941

For the Defendant:     Michael K. Powell
(Paulus Hartman)       Chief Public Defender
                                     FSM National Government
                                     Palikir, Pohnpei  FM 96941

For the Defendant:     Joseph Phillip
(William Ladore)        FSM Public Defender
                                     FSM National Government
                                     Palikir, Pohnpei  FM 96941

*    *    *    *

HEADNOTES
Courts
     When the remanding appellate court has not mandated a hearing on remand, it is within the sound discretion of the trial court to decide whether or not

[5 FSM Intrm. 351]

to convene a post-remand hearing. FSM v. Hartman (I), 5 FSM Intrm. 350, 351 (Pon. 1992).

Criminal Law and Procedure
     Forcing the victim into the nahs, holding and disrobing her, and subjecting her to sexual penetration against her will in the presence of others constituted a single contemporaneous series of events, all of which were intended to be, and were, mutually supporting the general plan to subject the victim to group rape.  FSM v. Hartman (I), 5 FSM Intrm. 350, 352 (Pon. 1992).

Criminal Law and Procedure - Interrogation and Confessions
     By responding voluntarily to questions asked without coercion, after he has been advised of his rights, a defendant waives his right to remain silent.  FSM v. Hartman (I), 5 FSM Intrm. 350, 353 (Pon. 1992).
*    *    *    *

COURT'S OPINION
EDWARD C. KING, Designated Justice:
     The appellate division of this Court has remanded this case to the trial court for additional findings.  This court has considered convening a hearing on remand but has concluded that no further hearing is necessary because the necessary findings are to be clarifications of the trial court's earlier findings, based upon the existing record in this case.  Further, counsel for defendants had a full opportunity to discuss these matters during the trial of the case.  Finally, the appellate decision provides full instruction as to the task of this court upon remand.1

I.  Findings
     At the conclusion of the trial in this case, the trial court explained orally and at length its findings of fact and conclusions of law in this case.
 
     A chronological narrative method of explanation was used so that the community might better understand the court's reasons and the results in this case.

     While such a narration seemed an effective way of communicating the decision to the community, the court's explanation and interpretation of

[5 FSM Intrm. 352]

events did cover all three defendants simultaneously and did not precisely indicate or confirm what had been stated earlier in this trial, that the statements of defendants William Ladore and Kasiano Primo respectively, were being considered as evidence only as to the particular defendant who had made the statement.

     The appellate division has expressed concern about this mode of presentation and has instructed this court to provide separate findings as to each defendant. These findings and responses to the other concerns expressed by the trial division, follow.

     Paulus Hartman - Paulus Hartman admits that he had sexual intercourse with the victim on the night in question but contends that she consented.

     Based upon testimony of the victim, corroborated by her torn parties, bruises on her head and neck, and the facts that she was heard crying loudly for a considerable time, with sounds like beating, by persons who lived nearby, Maria Amor and Mrs. Amor's daughter, before the Amors located her in the nahs, with men around, and the fact that the victim cried out, "Mother, I am going to die," when she was found, the court concludes that Paulus Hartman intentionally subjected the victim to sexual intercourse, i.e., penetration, against her will.

     Also, based upon the testimony of the victim, corroborated by the other factors already mentioned, the court finds that in so doing, Paulus Hartman was aided and abetted by William Ladore and at least one more accomplice who assisted Hartman by holding the victim while Hartman disrobed her and subjected her to sexual penetration.

     William Ladore - Based upon the victim's testimony corroborated by the other evidence referred to above, the court finds that William Ladore intentionally subjected the victim to sexual penetration against her will.
 
     He was aided and abetted in so doing by one or more accomplices who had forced or carried her into the nahs, had disrobed her and had already subjected her to sexual penetration against her will.  He was also aided in doing so by accomplices, including Kasiano Primo, who remained in the area, accepting the conduct which was taking place, depriving her of any hope or opportunity to escape and awaiting their own turns.

     The court finds all of these acts, forcing the victim into the nahs, holding and disrobing her, and subjecting her to sexual penetration against her will in the presence of others, to constitute a single contemporaneous series of evens all of which were intended to be, and were, mutually supporting the general plan to subject the victim to group rape.  See Engichy v. FSM, 1 FSM Intrm. 532, 547 (App. 1984)("[T]hese attacks were not carried out as isolated or separate assaults....Instead, each attack was part of a general rout of the unarmed boys from Dublon..."); FSM v. Hadley, 3 FSM Intrm. 281, 284 (Pon. 1987)("it was reasonably foreseeable that robbery of watch and money would be a probably consequences of a plan and efforts to take a bottle from some Koreans.")

[5 FSM Intrm. 353]

     Kasiano Primo - The victim testified, and the court finds, that Kasiano Primo also intentionally subjected her to sexual penetration against her will.  The court also finds that this action of his was aided by the actions of those who had rendered her mentally and physically incapable of resisting, as described above.

II.  Statements of Primo and Ladore
     The court makes the above findings without regard to the out of court statements of defendants Primo and Ladore.

     However, the court finds that the statements were made voluntarily, with the defendants having knowledge of their rights to remain silent and have legal counsel, and that each statement is acceptable, although superfluous, evidence in support of the findings as to the particular defendant who made the statement.

     Specifically, the court finds that by responding voluntarily to questions asked of him without coercion after he had been advised of his rights, defendant Primo waived his right to remain silent.  See transcript at 151.

     The court notes as well that there was never at any time during the trial any assertion by Mr. Primo that the statement was taken in violation of his right to remain silent.

     The court also finds that the statement of Mr. Ladore was made voluntarily, without coercion, after he had been advised of his rights and that this constituted a waiver of his right to remain silent.  Transcript 164-65 & 174.

     In any event, the court confirms that neither of these statements has been considered as against any defendant other than the one who made the particular statement.  The court also reiterates that neither statement is necessary as a basis for the findings discussed above of guilt beyond a reasonable doubt.

Conclusion
     Having thoroughly reviewed the trial record in this case once again, the court reaffirms its conclusion that the defendants, Paulus Hartman, William Ladore and Kasiano Primo, are guilty of the crime of aggravated sexual assault in violation of 11 F.S.M.C. 913(1)(b).

*    *    *    *
 
Footnote:
 
1.  Although there is no direct precedent in the Federated States of Micronesia as to the necessity for a hearing on remand when the remanding appellate court has not mandated such a hearing, the general practice in other jurisdictions seems to be that it is within the sound discretion of the trial court to decide whether to convene a post-remand hearing.  See, e.g., People v. Zamora, 701 P.2d 1242 (Colo. 1985); Stewart v. State, 756 P.2d 900 (Alaska App. 1988).
                                                                                                                                                                                                                                                                                                           
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