Cite as Jonas v. FSM,
2 FSM Intrm. 238 (App. 1986)

[2 FSM Intrm. 238]




APP. No.  P2-1983
From FSM v. Jonas ,
1 FSM Intrm. 306 (Pon. 1983)
Argued:  January 29, 1986
Decided:  August 5, 1986


     Honorable Richard H. Benson, Associate Justice, FSM Supreme Court
     Honorable Edwel H. Santos, Temporary Justice, FSM Supreme Court*
     Honorable Mamoru Nakamura, Temporary Justice, FSM Supreme Court**

     *Chief Justice, Pohnpei State Supreme Court
     **Chief Justice, Republic of Palau

*        *        *       *

     A party's motion to have a trial justice recuse himself is insufficient if not supported by affidavit as required by 4 F.S.M.C. 124(c).  Jonas v. FSM (II), 2 FSM Intrm. 238, 239 (App. 1986).

Judges; Constitutional law-Due Process-bias
     Where a trial justice is asked to recuse himself rather than continue to sit on remaining counts after receiving testimony concerning stricken counts, the issue presented is whether there exists either actual bias or prejudice, or appearance of partiality.  Jonas V. FSM (II), 2 FSM Intrm. 238, 239 (App. 1986).

*       *        *        *

RICHARD H. BENSON, Associate Justice:
     The issues presented are whether the trial court abused its discretion by refusing to recuse himself from proceeding in the trial on the remaining 14 counts of the information after dismissing 59 counts upon the close of the government's case and whether the court was justified in refusing to recuse himself when the motion to recuse was unsupported by affidavit.

[2 FSM Intrm. 239]

     We conclude that there was no abuse of discretion, and that the motion, unsupported by affidavit as required by law, was defective.  The decision of the trial court is accordingly affirmed.

     The case against the defendant proceeded to trial on an amended information accusing the defendant of 74 counts, 73 of which involved, according to the government, a course of theft, forgery and conspiracy in a single scheme carried out for some three years.

     Upon completion of the prosecution's case, some four counts were dismissed on motion of the government.

     At the same stage in the trial the defendant moved for a judgment of acquittal as to several counts pursuant to Rule 29 of the Rules of Criminal Procedure.  This motion was denied on the ground that the government had produced sufficient evidence to sustain a conviction.  Transcript at 960, 1100, 1102, 1104.  See Andohn v. FSM, 1 FSM Intrm. 433, 438, 439 (App. 1984).

     Before the defendant went forward in his case in chief, all remaining counts involving incidents prior to the effective date of the National Criminal Code (Pub. L. No. 1-123; Title 11 F.S.M.C.) were dismissed.  See Jonas v. FSM (I), 1 FSM Intrm. 322 (App. 1983).

     The defendant then moved that the trial justice recuse himself on the ground that his reception of testimony concerning the stricken counts rendered the court biased and deprived the defendant of a fair trial as guaranteed by
the Constitution if the trial justice continued to sit on the remaining counts.

     This motion was denied on the grounds that the defendant had not supported his motion with an affidavit as required by 4 F.S.M.C. 124(6), and on the substantive ground that he was not required to recuse himself since bias or prejudice did not exist.  See Skillinq v. FSM, 2 FSM Intrm. 209, 214 App. 1986).

     For the purposes of this appeal the defendant analogizes the posture of this case at the time the motion was made to the situation that would be presented to a trial judge on retrial after mistrial or reversal.  We note that the issue presented in such a situation is the same as dealt with in the trial court here: whether actual bias or prejudice existed or whether there existed the appearance of partiality.  We find nothing new to be decided because of the analogy used in argument before this court.

     A review of the record and of the opinion and order of the trial court reported at 1 FSM Intrm. 306, discloses that this appeal from the opinion and order is without merit.

     The opinion and order is affirmed for the reasons stated by the trial court.

     The conviction is affirmed.

*      *       *       *