FSM SUPREME COURT
TRIAL DIVISION
Cite as FSM v. Tammed,
5 FSM Intrm. 426 (Yap 1990)


[5 FSM Intrm. 426]

THE FEDERATED STATES
OF MICRONESIA,
Plaintiff,

v.

JOSEPH TAMMED,
Defendant.

FSM CRIM. 1988-3502

THE FEDERATED STATES
OF MICRONESIA,
Plaintiff,

v.

RAPHAEL TAMANGROW,
Defendant.

FSM CRIM. 1988-3508

OPINION
 
Richard H. Benson
Hearing:  September 20, 1990
Decided:  October 19, 1990

APPEARANCES:
For the Prosecution:     Clement Mulalap, Esq.
                                        P.O. Box 435
                                        Colonia, Yap  FM 96943

For the Defendant:        Robert Coate, Esq.
(Tamangrow)                 FSM Public Defender
                                        P.O. Box 425
                                        Colonia, Yap  FM 96943

For the Defendant:        Dan Maloney, Esq.
(Tammed)                      Public Defender
                                        P.O. Box 754
                                        Weno, Chuuk  96942

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[5 FSM Intrm. 427]

HEADNOTES
Criminal Law and Procedure - Sentencing
    In considering the mitigation in sentencing to be given because of the beatings received by the defendants without regard to custom, the severity of the beating is the primary consideration.  FSM v. Tammed, 5 FSM Intrm. 426, 428 (Yap. 1990).

Criminal Law and Procedure - Sentencing;
Custom and Tradition
    The court cannot give further mitigative effect in sentencing to reflect the customary nature of the beatings if the court cannot find from the evidence presented that the beatings were customary.FSM v. Tammed, 5 FSM Intrm. 426, 429 (Yap 1990).

Criminal Law and Procedure - Sentencing
    Even when mitigative effect cannot be given due to beatings suffered by the defendants the court may consider a reduction of sentence pursuant to FSM Crim. R. 35.  FSM v. Tammed, 5 FSM Intrm. 426, 430 (Yap 1990).

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COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
    On September 20, 1990 these cases came before the Court pursuant to the order of remand found in the opinion of the appellate division dated July 17, 1990. Tammed v. FSM, 4 FSM Intrm. 266 (App. 1990).

    The government appeared by counsel and the defendants appeared in person and by counsel.
 
    The defendants each plead guilty to sexual assault arising from separate incidents.  At sentencing it was established that each had been severely beaten several days after the incidents by persons from the villages of the victims.  At sentencing I refused to mitigate the sentences because of the beatings.  The appellate division vacated the sentences and remanded the cases for resentencing.

    The instruction of the appellate division is that upon resentencing I first give mitigative effect to the beatings regardless of any customary implications.  Id. at 280, 284.

    The court further instructed that if, after the new sentences were imposed, defense counsel requested further mitigative effect to reflect the customary nature of the beatings, I would then receive evidence to determine whether the beatings were indeed customary punishments.  Id. at 284.

    At the beginning of the resentencing hearing counsel stipulated and recommended that no further incarceration be imposed on either defendant.

[5 FSM Intrm. 428]

Their grounds were that the defendants continue to suffer adverse effects of the beatings, that the defendants had already served time in jail (Tammed 220 days) (Tamangrow 100 days), that in the two years the defendants had been under court supervision neither had been charged with any further offense, that each had been accepted into his community, and that the best interest of all was served by no further imprisonment.

    I followed the mandate instead of accepting this stipulation.

I.
    In considering the mitigation to be given because of the beatings without regard to custom, the severity of the beating is the primary consideration.

    A.  Tammed's beating included kicking and punching, and hitting his hand with a 2x4.  After the beating Tammed received treatment as an outpatient at the hospital. An x-ray did not show any broken bones in his right hand, which was swollen.  The x-ray does not reveal damage to cartilage and tendons if present. His face had swelling and abrasions.

    At resentencing several residual injuries were represented to me.  A physical examination by Dr. R. Paul of the Yap State Hospital this month concludes that the right thumb cannot be fully flexed as a result of the defendant's beating.  The disability did not prevent the defendant's participation in the July 1990 Micronesian Games as a player on the Yap State basketball team.

    B.  Tamangrow's beating included kicking, slapping and blows from the coconut fronds of adult trees.

    He was hospitalized immediately following the beating and remained there some six days.

    Tamangrow's eyes were swollen shut with multiple contusions and abrasions on his face, neck, back and arms.  Liquid had to be given intravenously.  Urinary difficulties necessitated catheter use to drain his bladder.

    At the resentencing there were representations as to the residual effects of the beating.  There were supported by medical records showing the defendant's complaints to the hospital of continuing back pain some fourteen months after the beatings.

    C.  In accordance with the mandate of the appellate division to give mitigative effect to the beatings without regard to any customary implications, I conclude that it is proper to reduce the sentence of each defendant from two years to eighteen months.

II.
    After I announced the foregoing reduction, counsel for both defendants requested that the further mitigative effect be given to reflect the customary

[5 FSM Intrm. 429]

nature of the beatings.

    The government and the defendants agreed upon one witness who would be called by the defendants to establish the customary nature of the beatings.  The witness, Mr. Kanmed, Chief of Fanif and Acting Chairman of the Council of Pilung is without question very knowledgeable in custom.

    Mr. Kenmed answered the questions asked of him.  The questions asked however did not lead to the testimony as to who sanctions customary punishment, or who inflicts the punishment.  He testified that death was the customary punishment for sexual offense.

    The testimony fails to address the particulars of the two beatings before the court and relate those particulars to custom nor is there any reconciliation of obvious differences in the cases.  For instance, that one beating was carried out by family members of the victim at the home of her father, and the other beating was inflicted on a low caste person by members of a higher caste.

    I acknowledge a conflict in the testimony that the counsel elicited.  For instance, Mr. Kenmed said that the beating of Tamangrow was in accordance with custom. However, he was not asked why this is so.  He said that he did not know how Tamangrow was beaten, nor did he know if the Chief of the village of the victim had been informed.

    The witness testified that a beating should be done before the chief knows, because if he knows, he will take steps to establish peace.  Later he said that there should be supervision by the elders of the beatings.  Mr. Kenmed was not asked to explain the two answers.

    One point was very clear: if a wrongdoer is beaten, as in these cases, there is no further punishment inflicted.

    On this factual issue of whether the punishments were customary, I did not have the benefit of the presentation of competing views which can give understanding. This is unfortunate because of the importance of the problem being addressed.

    From the evidence I cannot find that the beatings were customary.

III.
    I do not make the finding, but I acknowledge that the testimony permits an inference that customary punishment does not have any requirement as to who decides it should be done, or as to who carries it out.  If such had, however, been the finding, mitigative effect could not have been given since I could not make the additional finding that such customary punishment is consistent with the constitution. Id. at 284.  This is so because there is no showing that a responsible leader carefully confirmed the identity of the wrongdoer as the propriety of customary punishment, or prescribed the scope of the

[5 FSM Intrm. 430]

punishment in advance, or supervised the beatings.

    The defendants have failed to show that the beatings were inflicted pursuant to custom.  Therefore no additional mitigative effect of the beatings can be given.

IV.
    I next heard from counsel on the question of a sentence reduction pursuant to Rule 35 of the Rules of Criminal Procedure.

    Most important in my view was the condition of the Yap State Jail where an imprisonment would be served.  The situation there is such that no one should be confined unless serious reasons exist.  Such reasons do not exist in this case, and the defendants have, as far as is shown, been entirely compliant to the conditions of their release pending the appeal of their case.

    It is accordingly ordered that the sentence of eighteen months imprisonment imposed upon Joseph Tammed is reduced to the time already served (220 days), with the execution of the balance of his term of imprisonment suspended under the following conditions:

     1)  Joseph Tammed shall obey all laws and ordinances to which he is subject.

     2)  Joseph Tammed shall remain in custody of Meyan in Dachngar, Rull and shall not depart from his village unless he is going to work or for volleyball practice.  He must travel by the most direct route to and from work and to and from volleyball. Joseph Tammed must inform the State Justice Ombudsman of his work schedule, and of any changes in it, and of his volleyball practice schedule and place of practice, and of any changes.

    Joseph Tammed has leave to apply to the court for permission to go to Guam to attend the Yap State Fisheries work program.

    It is ordered that the sentence of eighteen months imprisonment imposed upon Raphael Tamangrow is reduced to time served (100 days) with the execution of the balance of the term of imprisonment suspended under the following conditions:

     1)  Raphael Tamangrow shall obey all laws and ordinances to which he is subject,

     2)  Raphael Tamangrow shall remain in custody of Chomed, his father, and shall not depart from his village of Michew, Map unless in the physical presence of his father or his mother, Maria Kapin.

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