STATE COURT OF YAP
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Yinmed v. State of Yap, Yap St. (1997)
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FRANCIS YINMED,
Appellant;
v.
THE STATE OF YAP,
Appellee.
APPEAL NO. 1993-001
CRIM. CASE NO. 1992-232
Opinion
Decided: June 20, 1997 (no oral argument)
BEFORE:
Hon. Constantine Yinug, Chief Justice, State Court of Yap Hon. Andrew Ruepong, Associate Justice, State Court of Yap Hon. Martin Yinug, Temporary Justice, State Court of Yap*
* Associate Justice, FSM Supreme Court
APPEARANCES:
For the
Appellant: Marvin Hamilton
Yap Public Defender
P.0. Box 425
Colonia, Yap 96943
For the Appellee: Kathleen M. Burch
Office of the Attorney General
Colonia, Yap 96943
* * * *
COURT'S OPINION
CONSTANTINE YINUG, Chief Justice
I. Introduction
Appellant Yinmed appeals his conviction on all counts of a four count information, which charged the him with aggravated assault, assault with a-dangerous weapon, burglary, and trespass,
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pursuant to 11 YSC 207; 208,302, and 307 respectively. On appeal, Yinmed raises three issues:
1. Whether the trial court erred in denying his motion to suppress evidence.
2. Whether the trial court: erred in convicting him of the separate offenses of aggravated assault and assault with a dangerous weapon based on the same conduct.
3. Whether the trial court erred in convicting defendant of the separate offenses of trespass and burglary based on the same conduct.
A fourth issue arises from the disposition which the court makes of this case, and is whether remand for resentencing is necessary.
This court affirms the trial court's ruling on the motion to suppress evidence. The judgments of conviction for aggravated assault and trespass are vacated. For the reasons set out below, no remand for resentencing is required.
II. Factual Background
The evidence concerning the commission of the crime itself was that in the early morning hours of Christmas Day, 1992, the defendant entered the house of Yiftheg and assaulted him with a machete causing serious injury. Yiftheg sustained blows to his head, wrist, and leg. He was taken to the hospital, where he remained for 27 days.
Facts relevant for purposes of review of the trial court's
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denial of the motion to suppress center on events which occurred later on Christmas Day. At about 7:00 a.m., an unidentified person called the Yap Division of Public Safety and reported that Yinmed had assaulted Yinmed. The police had in mind two places to look for the Yinmed, one of which was Nug's house.The police went to one family's house, and were told that Yinmed was staying with Nug. They went, to Nug's place in Riken, asked Nug's wife where Yinmed was, and she said he was in the koyeng, a small, open-sided hut, on Nug's property. The officers went to the koyeng, where they found Yinmed, who was sleeping. The police woke Yinmed, arrested him, and handcuffed his hands behind his back. As an officer was escorting Yinmed out to the road, Officer Gililung received a radio message that the weapon used in the assault was probably in Yinmed's basket with the flashlight. Officer Gililung asked officer Ramngen to ask the other people where Yinmed's basket was. Nug pointed Yinmed's basket out to a police officer. The basket was on the floor "laying beside" (Tr. p. 29) the place where Yinmed had been lying in the koyeng. When Officer Gililung looked toward the basket, he saw the machete. At Officer Gililung's direction, Officer Ramngen took the basket. At this point, Yinmed and the other police officers were outside the fence walking along toward Wanyan. Officer Ramngen then asked where Yinmed's flashlight was, and Nug said the flashlight was near the basket. Officer Ramngen took the flashlight; Nug told him that he had to return the flashlight because it was his, Nug's.
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III. Discussion
A. The motion to suppress
Yinmed appeals the trial court's denial of his motion suppress. The motion sought to exclude the defendants basket, containing a machete, and a flashlight which were seized from the koyeng on Nug's property where Yinmed was staying at the time of arrest. The basket was located near where Yinmed had been sleeping; the flashlight was near the basket. Appellant's position is that because the police seized the basket and flashlight after taking Yinmed from the koyeng, the seizure did not fall within the search incident to lawful arrest exception to the warrant rule. That exception has its rationale in the notion the police may search the area within the arrestee's immediate control: Yinmed urges that after he was taken from the koyeng, he had no access to the area searched or the things seized. Appellant also contends that the search was not valid under the exigent circumstances exception to the warrant rule. The state responds that the basket and flashlight were seized as a part of a search incident to a lawful arrest; that the search was valid under the plain view doctrine; that the search of Nug's koyeng was consensual that the police were authorized to make the search under 12 TTC 101; and that the admission into evidence of the machete, basket, and flashlight was harmless error.
This court concludes that the trial court's consideration of the basket, machete, and flashlight was not harmless error,
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given the significant nature of those pieces of evidence. This court also concludes that the trial court properly considered these items of evidence because the basket, machete, and flashlight were properly seized as part of a search, incident to a lawful arrest.
1. Harmless error
It appears, based on this court's search of the record, that the trial court did not formally admit the basket, machete, or flashlight into evidence. The state moved at the conclusion of its case to admit these items, but no ruling admitting them is of record in so far as this court can detevaine. Nevertheless, the trial court makes mention of the machete and flashlight, but not the basket, in its Findings. Specifically, reference is made to the machete in the context of the discussion of Tina Bowens testimony. Tina Bowen is Yiftheg's daughter who was sleeping in the same room as Yiftheg at the time of attack. The court noted:
The witness [Tina Bowen, the victim's daughter] noticed that the defendant had a flashlight and a machete when she saw him crouching near a drum-can. The machete was in the defendant's hand and was used to cause the first strike which the witness saw before she fled. At Trial Tina identified the machete seized from defendant upon arrest as the same type and size as the one she saw in defendant's possession at their encounter before and during the attack on her father.
Findings, page 4. Although not formally admitted, the court considered the machete, which was found in Yinmed's basket, and flashlight. This court will treat the machete, basket, and flashlight as having been admitted into evidence.
Rule 52(a) of the Rules of Criminal Procedure for the Trial Division of the State Court of Yap provides as follows:
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Rule 52. Harmless Error and alain Error
(a ) Harmless Error. Any error, defect, irregularity or va-rlance-which does not affect substantial rights shall be disregarded.
This court has not considered the question of the standard of review for-harmless error. The FSM Supreme Count in considering the issue has held that the reviewing court must be able to determine that the error was harmless beyond a reasonable doubt. Jonah v. FSM, 5 FSM Intrm. 308 (App. 1992) (interpreting similar FSM Crim. R. 52, and citing Chapman v. California; 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Chapman a established the rule that before error can be harmless, the court must conclude that it
was harmless beyond a reasonable doubt. Commenting on a man, the Jon court said:
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 Alphonso 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.
Jonah, 5 FSM Intrm. at 315. Looking to Jonah; this court finds that before error can be harmless, the court must conclude that it was harmless beyond a reasonable doubt.
As applied to the facts of this case, the alleged error in the court's consideration of the basket, machete, and flashlight was
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not harmless: In Bumper v.s North Carolina, 391 US 543, 20 L Ed 2d 797, 88 5 Ct 1788 (1968), a case coming after Chapman, a rifle, illegally seized, was introduced into evidence as the weapon allegedly used in the commission of the crime. The court held that "[b]ecause the rifle was plainly damaging evidence against the petitioner with respect to all three of the charges against him its admission, at the trial was not harmless error." 20 L Ed 2d at 803. The basket, machete, and flashlight were plainly damaging to the defendant in this case. There was eye-witness testimony from the victim's daughter that she saw the defendant assault her father. She said that defendant had a machete and flashlight just before the attack and that the machete was like the one offered by the prosecution, which was taken from defendant's basket. The basket tied the defendant to the machete. The basket, machete, and flashlight were significant items of evidence. Viewed in one light, the testimony of the victim's daughter was independent, eyewitness testimony about the attack; necessarily, though, the real evidence gave credence to that eye-witness testimony. The admission of the basket, machete, and flashlight was not harmless error beyond a reasonable doubt.
2. Search incident to lawful arrest
The court now-turns to the question whether the warrantless seizure of the basket, machete and flashlight from the koyeng falls within an exception to the warrant rule. In Ludwig v. FSM, 2 FSM Intrm. 27 (App. 1985), the court held that an officer making an arrest has a limited right to conduct a search incident to that
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arrest. This right to search is for the limited purposes of preventing the arrested person from reaching concealed weapons to injure the officer or others, and from destroying evidence. Yinmed contends that after the arresting. officers had moved him away from the koyeng, neither of these concerns were operative. He argues that the officers were required to obtain a search warrant before seizing the basket, machete, and flashlight, and that as a consequence, these items of evidence should have been suppressed. The state's answer to this is that the search was incident to a lawful arrest because the search was remote neither in time nor place.
The reported cases in the FSM are limited with respect to discussion of the contours of a search incident to lawful arrest. A case from the United States Supreme Court, ,United States v. Edwards, 415 US 800, 39 L Ed 2d 771, 94 S Ct 1234 (1974), offers insight. Respondent Edwards was lawfully arrested at 11 p.m. and placed in a jail cell. The clothes which he was wearing at the time of the arrest were not taken from him until the next morning after substitute clothing had been obtained. Paint chips taken from his clothes matched paint from a wooden window frame through which a forced entry had been made into a post office. The paint chips were admitted into evidence at trial over Edward's objection that the warranthess seizure of his clothes was invalid under the Fourth Amendment to the United States Constitution. The court said:
The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant
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is subject-to various exceptions. One of them permits warrantless searches incident to custodial arrest, [citations omitted], and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.[cit. omitted]
It is also plain that searches seizures. that could be made on the spot at the time- of arrest may legally be conducted later when the accuse& arrives at the place of detention.
39 L Ed 2d 771
at 775. In Edwards , the police did not develop probable cause to believe that Edward's clothing itself was material evidence of the crime until after he had been arrested and jailed. His clothes were taken from him the next morning after substitute clothes had been found. On this point the court noted:
This was no more than taking from respondent the effects in his immediate possession that constituted evidence of crime. This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. The police did no more on June 1 than they were entitled to do incident to the usual custodial arrest and incarceration.
39 L Ed 2d at 777.
In the case at bar, the basket, which contained the machete, and flashlight were found in the koyeng. The basket was lying beside the place where Yinmed had been sleeping when he was awakened and arrested; the flashlight was near the basket. As such, these items would have been subject to search and seizure at time of arrest. Chimel v. California , U.S. 752, 89 S Ct 2034, 23 L Ed 2d 685 (1969) (search incident to valid arrest must be confined to the person and the area from within which he or she might have reached weapons or destructible evidence). As it
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happened, the search and seizure of Yinmed's effects took place some minutes after the arrest, while Yinmed was being escorted away from Nug's property, and after the police had received a radio message that the machete was probably in Yinmed's basket: As previously noted, Edwards holds that "[i]t is Q.so plain that searches and seizures that could be made on the spot at the time of arrest may 'legally be conducted later when the accused arrives at the place of detention." Edwards, supra, at 775. The delay in searching and seizing in the instant case was of a lesser order altogether than the delay which occurred in Edwards. The search and seizure happened not at the ultimate place of detention, i.e. jail, as contemplated by Edwards, but at the scene of arrest itself while Yinmed was being escorted from the koyeng. Looking to the language of Edwards, when the police did make the seizure, they "did no more . . . than they were entitled to do incident to the usual custodial arrest" (id. at 777); and Yinmed was "no more imposed upon", id, than he would have been had the seizure taken place simultaneously with his arrest.
The seizure of the basket, containing the machete, and the flashlight, was valid under the search incident to lawful arrest exception to the warrant rule. Although not formally admitted into evidence, they were properly considered by the trial judge.
B. The separate convictions for aggravated assault and assault with a dangerous weapon
Yinmed argues that the trial court erred in maintaining separate convictions for aggravated assault and assault with a
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dangerous weapon, and in support of this argument cites to Laion v. FSM, 1 FSM Intrm. 503 (App. 1984). In Laion , as in this case, the defendant was convicted of both assault with a dangerous weapon and aggravated assault based on a single act. In Laion, the act was that of throwing a rock at the victim: here Yinmed was convicted of both aggravated assault and assault with a dangerous weapon based on the single act of assaulting Yiftheg with a machete. The appellant in Laion asserted that this constituted double jeopardy. The court rejected this contention, and relied on the facts that assault with a dangerous weapon requires proof of an additional fact, the use of a weapon, that aggravated assault does not: and that the trial court imposed concurrent as opposed to consecutive sentences. The Laion court went on to hold that convictions for both aggravated assault and assault with a dangerous weapon could not be sustained under 11 FSMC 918 and 919 absent specific legislative intent authorizing dual convictions. Because the appellate court could find no such intent, and applying the socalled rule of lenity, it found that as between aggravated assault and assault with a dangerous weapon, the defendant could be convicted only of the more major crime proved beyond a reasonable doubt.
The Yap aggravated assault and assault with dangerous weapon statutes, 11 YSL 207 and 208 are analogous to the FSM statutes. Although different in wording from the FSM statutes, Yaps assault with a dangerous weapon statute has, as does the FSM statute, an additional element, use of a dangerous weapon, that aggravated
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assault does not have. Applying the reasoning of Laion , there appears to be no legislative history which demonstrates a positive legislative intent to authorize conviction for both on the same facts.The Committee Report dated September 6, 1988 for YSL 2-48, the basis for most of Title 11, makes slight reference is to what is now section 206, sexual abuse, and 209, assault. No reference is made to either section 207, aggravated assault, or 208, assault with a dangerous weapon. There is no basis for concluding that the Yap State Legislature intended dual convictions for these two crimes.
In Laion, the court held that a trial court "should render a decision and enter a conviction only on the more major of the crimes proven beyond a reasonable doubt." 1 FSM Intrm. at 529. In the instant case, the trial court, applying the reasonable doubt standard, found the defendant guilty of assault with a dangerous weapon. The record amply supports this finding: the trial court, acting reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt. Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992). The conviction for aggravated assault, the less serious offense, is vacated.
C. Trespass as a lesser included offense of burgulary
Yinmed argues, and the State concedes that trespass is a lesser included offense of burglary. The Yap trespass statute, 11 YSC 307 provides as follows:
Every person who shall unlawfully violate or interfere with the peaceful use and possession of the dwelling
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house, premises, or property of another, whether for force or by stealth, shall be guilty of trespass, . . .
The Yap burglary statute, 11 YSC 302, provides as follows:
Every person who enters a building or occupied structure with purposcommit any felony, assault, or larceny therein, unless at the time the premises are open to the public or the defendant is licensed or privileged to enter, shall be guilty of burglary, . . .
As compared to trespass, the Yap burglary statute requires the additional element of purpose to commit a felony, assault, or larceny while engaging in the trespass. As such, trespass is a lesser included offense of burglary. The trial court, acting reasonably, could have been convinced beyond a reasonable doubt that appellant was guilty of burglary. Alfons v. FSM, Supra. The conviction for the lesser included offense, trespass, is vacated.
C. The consolidated sentence
Yinmed urges that this case should be remanded for resentencing on the assault with a dangerous weapon and burglary charges. The sentence imposed, with the exception of three illegal possession and consumption of alcohol counts on which Yinmed was sentenced separately, was a general or consolidated one imposed pursuant to convictions and pleas in five different cases: CR 1992-230; CR 19q2-232; CR 1993-046; CR 1993-047: and CR 1993-188.
The appealat bar is from trial level case CR 1992-232. In that case, Yinmed was convicted of aggravated assault, assault with a dangerous weapon, burglary, and trespass. Aggravated assault, and assault with a dangerous weapon, 11 YSC 207 and 208
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respectively, both carry a maximum penalty of five years imprisonment, a fine of $5,000, or both. Burglary, 11 YSC 302, carries a maximum penalty of three years imprisonment, a fine of $5,000, or both. Trespass, 11 YSC--307- carries a maximum penalty of six months imprisonment, $100-fine, or both. Thg total maximum sentence for conviction on all counts for the CR 1992-232 case would have been thirteen years and six months and a maximum fine of $15,100 or both.
In CR 1992-230, Yinmed pled guilty to malicious mischief and illegal possession and consumption of alcoh6l. Malicious mischief, 11 YSC 306, carries a maximum penalty of six months imprisonment, a fine of $100 or both. illegal possession and consumption of alcohol, 11 YSC 808, carries a maximum penalty, for a person over 21, of six months imprisonment, a fine of $500 or both. In CR 1993-046, Yinmed pled guilty to burglary (maximum 5 years imprisonment, fine of $5,000 or both) and larceny from a dwelling house. Larceny from a dwelling house, 11 YSC 304, carries a maximum penalty of three years imprisonment, a fine, of $1,000 or both. In CR 1993-047, Yinmed pled guilty to burglary (five years imprisonment, $5,000 fine or both), larceny from a dwelling house (three years imprisonment, $1,000 fine or both), and illegal possession and consumption of alcohol (six months imprisonment, $500 fine or both). In CR 1993-188, Yinmed pled nolo-corrtendere to illegal possession and consumption of alcohol, and two counts of assault and battery. Assault and battery, 11 YSC 210, carries a maximum penalty of three years imprisonment, and a fine of $100.
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The total maximum sentence on all counts on which Yinmed was convicted, pled guilty, or pled nolo contendere in CR -1992-230, 1992-232, 1993-046, 1993-047, and 1993-188 was 37 years, six months imprisonment and a fine of $38,900. The sentence imposed on all counts in these cases was five years imprisopment, with the execution of two years suspended, and a fine of $90, plus restitutibn. Since the $90 fine represents three fines of $30 dollars each imposed on the illegal possession and :consumption charges, the fine aspect of appellant's sentence does not enter into the discussion of general sentencing which follows.
Courts take two views with respect the general or consolidated sentence of the type imposed in this case. The majority view is that such sentences are proper, while the minority view holds to the contrary. See J.C. Vance, Annotation, Propriety of General Sentence Covering Several Counts in Information or Indictment not Exceeding in Aggregate the Sentences Which Might Have Been Imposed Cumulatively Under the Several Counts. 91 A.L.R. 2d 511 (1963) 2 and 4 respectively. This court adopts the majority view.
Within the majority view, courts take two approaches. The more expansive view is that a single sentence may be imposed for all offenses so long as it does not exceed the aggregate of sentences that might have been separately imposed on all the counts consecutively.1 Id. 2; 21 Am Jur 2d, criminal Law, 551 (1981)
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and the cases cited therein. This court will refer to this as the aggregate approach. The more stringent approach is that
a consolidated or general sentence, that is, one that does not specify the punishment imposed under separate counts of an indictment, will not be upheld if it exceeds the maximum term of punishment permissible under any single count of the indictment.
21 Am Jur 2d, Criminal Law, 551. This court will refer to this as the single count approach.
The court has found that the trial court erred when it convicted the defendant on the aggravated assault and trespass counts, and has vacated those convictions: Backing out the maximum term of imprisonment for those two counts, five years and six months, from the total maximum imprisonment calculated above leaves a total maximum term for all counts on which Yinmed was properly convicted, or pled, of 32 years. Under the aggregate approach, the sentence actually imposed of five years with two suspended is well within the 32 year maximum. Likewise, with respect to the single count approach, after vacating the aggravated assault and trespass convictions, there remain four counts as to which defendant remains properly convicted which carry a maximum sentence of five years: the assault with a dangerous weapon and burglary counts in the CR 1992-232 case; the burglary conviction in the CR 1992-046; and the burglary conviction in the 1993-047 case. The sentence actually imposed, five years with execution of two suspended, is no greater
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than that which could have been imposed on any of the four most serious counts remaining. The sentence meets the criteria of the single count approach as well. As a consequence, no remand for resentencing is required.
This is not to say that a general or consolidated sentence is the preferred manner in which to impose sentence. The court in Vandearift v. State, cited at footnote 1 above, made this observation:
We hold that the general sentencing was not improper. Ordinarily, however, the better practice is to sentence a defendant separately on each count of an information or indictment. This is so because if any part of a conviction is reversed on appeal, the sentence imposed under the valid count would not have to be disturbed.
91 ALR 2d 507, 511. In multi-count sentencing, the better practice is for the trial division of this court to impose sentence on each count individually. The court should indicate on the record whether the sentences are to run concurrently or consecutively. A sentence which tracks the individual counts in this manner facilitates appellate review, and obviates the need for the appellate court to review the propriety of the entire sentence in the event any count underlying a general sentence is vacated.
IV. Conclusion
This court affirms the trial court's denial of the motion to suppress. The convictions for aggravated assault and trespass are vacated.
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Dated this day of June, 1997.
/s/
Constantine Yinug,
Chief Justice
/s/
Andrew Ruepong,
Associate Justice U//e
Entered this day of June, 1997.
/s/
Chief Clerk of Court
Footnotes:
1. The case which is the subject of the ALR annotation applies the aggregate approach. In Vandegrift v. State, 226 Md 28, 171 A.2d 713, 91 A.L.R. 2d 507 (App. 1961), the trial court convicted on nine counts; the appellate court found six to be valid. The sentence imposed by the trial court on the nine counts was four and a half years. Each of the valid
six counts carried a maximum sentence of eighteen months for a maximum
consecutive sentence on the valid counts of nine years. Since the actual
sentence of four and a half years was less than this maximum, the
appellate court affirmed the sentence. ( Back to Opinion )