Cite as Laion v. FSM, 1 FSM Intrm. (App. 1984)
APPEAL CASE NO. T2-1983
September 10, 1984
Before:
Hon. Edward C. King, Chief Justice, FSM Supreme Court;
Hon. Mamoru Nakamura, Chief Justice, Republic of Palau Supreme Court;*
Hon. Herbert D. Soll, Judge, Commonwealth Trial Court, Northern Mariana Islands*
APPEARANCES:
| For the Appellant: | Michael K. Powell |
| Public Defender | |
| Office of the Public Defender | |
| State of Truk | |
| Eastern Caroline Islands 96942 | |
| For the Appellee: | Jack H. Warndof |
| Assistant Attorney General | |
| Office of the Attorney General | |
| Federated States of Micronesia | |
| Ponape State | |
| Eastern Caroline Islands 96941 |
______________
*Designated Justice.
A criminal statute must not be so vague and indefinite as to fail to give fair notice of what acts will be punished but the right to be informed of the nature of the accusation does not require absolute precision or perfection of criminal statutory language. Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984).
The right to be informed of the nature of the accusation requires that a statute be sufficiently explicit to prescribe the offense with reasonable certainty and not be so vague that persons of common intelligence must necessarily guess at its meaning. Laion v. FSM, 1 FSM Intrm. 503, 507 (App. 1984).
The required degree of precision under the right to be informed of the nature of the accusation may be affected by considerations such as limits upon the capacity for human expression and difficulties inherent in attempts to employ alternative methods of stating the concept. Laion v. FSM, 1 FSM Intrm. 503, 508 (App. 1984).
Some generality may be inescapable in proscribing conduct but the standard of precision required under the right to be informed of the nature of the accusation is greater in criminal statutes than in civil statutes. Laion v. FSM, 1 FSM Intrm. 503, 508 (App. 1984).
Courts are far more inclined to set aside as unconstitutionally vague statutes or ordinances reaching into marginal areas of human conduct such as prohibitions against loitering or vagrancy aimed at conduct often thought of as offensive or undesirable, but not directly dangerous to others. Laion v. FSM, 1 FSM Intrm. 503, 509 (App. 1984).
Prohibitions against assaults with dangerous weapons fall within the more traditional realm of criminal law and therefore are entitled to greater deference by courts in determining whether they are unconstitutionally vague. Laion v. FSM, 1 FSM Intrm. 503, 509 (App. 1984).
Commonly accepted meanings arising out of prior court interpretations in the jurisdictions from which statutes are borrowed may be considered in testing a claim that the statute is unconstitutionally vague. Laion v. FSM, 1 FSM Intrm. 503, 509-10 (App. 1984).
Whether a particular item is dangerous often depends upon the use to which it is being put. Laion v. FSM, 1 FSM Intrm. 503, 511 (App. 1984).
Although the Model Penal Code was the primary source for the National Criminal Code it was modified to suit the particular needs of the area. Laion v. FSM, 1 FSM Intrm. 503, 511 (App. 1984).
A "dangerous weapon" under 11 F.S.M.C. 919(1) is an object which, as used, may be anticipated to produce death or great bodily harm. Laion v. FSM, 1 FSM Intrm. 503, 512 (App. 1984).
There is no suggestion in the Constitutional Convention Journal that the framers of the FSM Constitution wanted to depart from or expand upon United States constitutional principles concerning particularity and definitions in criminal statutes. Reliance in the Report of the Committee on Civil Liberties upon United States court decisions in explaining the words confirms that the intent was to adopt the American approach concerning the statutory specificity needed so as not to be unconstitutionally vague. Laion v. FSM, 1 FSM Intrm. 503, 513 (App. 1984).
In considering whether the term "dangerous weapon" is so vague as to render 11 F.S.M.C. 919 unconstitutional, it is relevant that a court in the United States has held that term sufficiently definite to meet United States constitutional standards. Laion v. FSM, 1 FSM Intrm. 503, 513 (App. 1984).
When an information sufficiently apprises the defendant of the charges against which he must be prepared to defend and is sufficiently detailed to enable him to plead his case as a bar to future prosecutions for the same offense, it is generally sufficient that an information set forth the offense in words of the statute itself. Laion v. FSM, 1 FSM Intrm. 503, 516-17 (App. 1984).
The language of Rule 7(c) of the FSM Supreme Court Rules of Criminal Procedure has been interpreted by other courts as permitting the prosecution to charge commission of a single offense by different means, or by charging in the conjunctive actions prohibited disjunctively in a statute. Laion v. FSM, 1 FSM Intrm. 503, 517 (App. 1984).
Interpretations by other jurisdictions may be considered in determining the meaning of language borrowed from those other jurisdictions. Laion v. FSM, 1 FSM Intrm. 503, 517 n.7 (App. 1984).
When more than one offense or wrongful intent is charged in a single count, the trial court may require the government to select among the charges if failure to do so might result in prejudice to the defendant. However, this is a matter within the trial court's discretion. Laion v. FSM, 1 FSM Intrm. 503, 517 (App. 1984).
A defendant is not unfairly prejudiced or incapable of preparing an intelligent defense, simply because the government insisted on each of 11 F.S.M.C. '' 918 and 919's three adjectives, "intentionally, knowingly and recklessly," as possibly accurate descriptions of a defendant's frame of mind. Laion v. FSM, 1 FSM Intrm. 503, 518 (App. 1984).
The FSM Supreme Court Rules of Criminal Procedure were designed to avoid technicalities and gamesmanship in criminal pleading. They are to be construed to secure simplicity in procedure. Convictions should not be reversed, nor the information thrown out, because of minor, technical
objections which do not prejudice the accused. Laion v. FSM, 1 FSM Intrm. 503, 518 (App. 1984).
The requisite intent for aggravated assault cannot be found simply by determining that the defendant purposely engaged in conduct which caused serious bodily injury. The crime of aggravated assault assumes at the very least disregard by the defendant for the well-being of the victim, and more typically, requires desire on the part of the defendant to injure the victim seriously. Laion v. FSM, 1 FSM Intrm. 503, 519-20 (App. 1984).
Causal connection between an act done purposely and serious bodily injury to another is not sufficient to establish the crime of aggravated assault, even when the act is coupled with an intention to cause bodily injury. Serious bodily injury, not just an injury, must have been intended in order to commit aggravated assault. Laion v. FSM, 1 FSM Intrm. 503, 520 (App. 1984).
In context of a claim of aggravated assault which calls for "causing serious bodily injury intentionally," the words, "engaged in the conduct," in 11 F.S.M.C. 104(4) mean engaging in the conduct of causing serious bodily injury. Section 104(4) mean engaging in the conduct of causing serious bodily injury or to cause a result, which is itself serious bodily injury. Laion v. FSM, 1 FSM Intrm. 503, 520 (App. 1984).
The principal purpose of the protection against double jeopardy established by FSM Constitution, article IV, section 7 is to prevent the government from making repeated attempts to convict an individual for the same alleged act. Laion v. FSM, 1 FSM Intrm. 503, 521 (App. 1984).
The double jeopardy clause, FSM Const. art. IV, ' 7, of the Declaration of Rights of the FSM Constitution was drawn from the Bill of Rights of the United States Constitution. Laion v. FSM, 503, 522 (App. 1984).
The double jeopardy clause of the FSM Constitution protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984).
United States constitutional law at the time of the Micronesian Constitutional convention furnishes guidance as to the intended scope of the FSM Constitution=s double jeopardy clause. Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984).
When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. If the test is met a dual conviction will not violate the constitutional protection against double jeopardy. Laion v. FSM, 1 FSM Intrm. 503, 523-25 (App. 1984).
When assault with a dangerous weapon requires use or attempted use of a dangerous weapon, a fact not required for aggravated assault, and aggravated assault requires an intent to cause serious bodily injury, which need not be proved for conviction of assault with a dangerous weapon, conviction on both charges for the same wrongful act will not violate the double jeopardy clause of the Constitution. Laion v. FSM, 1 FSM Intrm. 503, 524 (App. 1984).
When a trial court orders concurrent sentences of two convictions of different offenses flowing from a single wrongful act, there is not cumulative or multiple punishments that might violate the double jeopardy clause. Laion v. FSM, 1 FSM Intrm. 503, 524 (App. 1984).
While Congress is not prevented by the double jeopardy clause from providing that two convictions of the same import may flow from a single wrongful act, a court will not merely assume such a congressional intention. Laion v. FSM, 1 FSM Intrm. 503, 525 (App. 1984).
The statutory construction rule of lenity reflects the reluctance of courts to increase or multiply punishments absent a clear and definite legislative direction. Laion v. FSM, 1 FSM Intrm. 503, 528 (App. 1984).
When two statutory provisions aimed at similar types of wrongdoing and upholding citizen and public interests of the same nature would apply to a solitary illegal act, which caused only one injury, the statutes will be construed not to authorize cumulative convictions in absence of a clear indication of legislative intent. However, the government is not denied the right to charge separate offenses to guard against the risk that a conviction may not be obtained on one of the offenses. Laion v. FSM, 1 FSM Intrm. 503, 529 (App. 1984).
A trial court may in its discretion permit a case involving separate charges based upon the same act to proceed to trial. The court, however, should render a decision and enter a conviction only on the more major of the crimes proven beyond a reasonable doubt. After appeal, if any, has been completed, and the greater charge is reversed on appeal, the trial court may then find it necessary to enter a judgment on the lesser charge. Laion v. FSM, 1 FSM Intrm. 503, 529 (App. 1984).
EDWARD C. KING, Chief Justice,
This case requires us to examine carefully for the first time the crimes of assault with a dangerous weapon and aggravated assault as set out in the National Criminal Code. We also consider whether a person who commits one act seriously injuring another person can be convicted of both of the above crimes for that single act.
The evidence shows that during the night of October 22, 1982, in Nepukos, on Moen Island in the State of Truk, Takaichy Laion approached a table outside the house of Kenchy Kincho, where four men were sitting at a table drinking beer. Takaichy Laion stopped about three feet behind one of the men, Benito Moufa, and called out to him. As Moufa turned, Takaichy threw a rock about the size of a man's fist at his face. The rock hit Moufa in the left eye, causing what appears to be permanent loss of central vision in that eye.
Based upon that evidence, and findings that Laion intentionally threw the rock at Moufa to injure him, this Court's Trial Division convicted Laion of aggravated assault in violation of 11 F.S.M.C. 918 and assault with a dangerous weapon, 11 F.S.M.C. 919.
The trial court sentenced Laion to 10 months in jail for aggravated assault and five months for assault with a dangerous
weapon but provided that the sentences would run concurrently so that the defendant would remain in jail for a total of 10 months.
Laion appeals on several grounds. He challenges each conviction and also attacks the fairness of dual convictions for a single wrongful act. We find merit in. each challenge. The convictions are set aside and the case is remanded for further proceedings.
Laion contends that the refusal of the trial court at the beginning of the trial to define what is meant by "dangerous weapon" prevented him from understanding the nature of the charge well enough to defend against it. This claim is closely related to his. second argument, that the words dangerous weapon" in 11 F.S.M.C. 919 are unconstitutionally vague. 1
We reject at the outset Laion's contention that the trial court was somehow under an obligation to define "dangerous weapon" before the trial could proceed. This was entirely a matter within the discretion of the trial court. The statute defines the offense and there is no requirement that the court elaborate upon the statute as the trial begins.
A. Vagueness
We therefore restrict ourselves to considering constitutionality of the statutory language itself. on this issue, Laion invokes the rule, long established under constitutional law in the United States, and common law elsewhere, that a statute so vague and ill-defined that the acts prohibited cannot be understood by people of ordinary intelligence, cannot serve as a basis for criminal prosecution.
Laion's arguments here are constitutional ones, that his conviction under 11 F.S.M.C. 919 violates Article IV, Section 3 of the Constitution of the Federated States of Micronesia which states that, "A person may not be deprived of ... liberty... without due process of law," and Article IV, Section 6, which confirms that the defendant in a criminal case "has a right...to be informed of the nature of the accusation." 2
The right to be informed is one of fundamental fairness, basic to the human values embodied in the Declaration of Rights. Yet the right does not transcend the human context for
which it is constructed nor claim for a defendant or potential lawbreaker absolute precision or perfection of criminal statutory language. The constitutional clauses speak of rights to be informed of the "nature" of the charges and to receive "due" process. This is not language calculated to require absolute precision or even the best possible statement of the charge or violation.
This observation is supported by the constitutional journals. Both clauses were proposed by the Committee on Civil Liberties. Their intended meaning was explained in the committee's report. SCREP No. 23, II J. of Micro. Con. Con. 793.
In discussing "due process of law," the report says only that a criminal statute "must not be so vague and indefinite as to fail to give fair notice of what acts will be punished." Id. at 796 (emphasis added).
As to the "right to be informed of the nature of the accusation," the report speaks of the need that the statute be sufficiently explicit" to prescribe the offense with "reasonable certainty" and not be "so vague" that persons of common intelligence" must "necessarily guess at its meaning." Id. at 802 (emphasis added).
These also are not words or phrases mandating that the right to be informed sweep aside every statutory prohibition
which falls short of perfect clarity. Instead, the implication is that the required degree of precision may be affected by other considerations, including limits upon the capacity for human expression and difficulties inherent in attempts to employ alternative methods of stating the concept.
This Court's Trial Division has previously noted that some generality may be inescapable in proscribing conduct. Suldan v. FSM (II), 1 FSM Intrm. 339, 353 n.16 (Pon. 1983). While the standard of precision is greater in criminal proceedings than in civil, 3 it is nevertheless pertinent here that it would have been difficult or impossible for Congress to have anticipated every instrument, tool or item which might be employed as a dangerous weapon. Even had Congress thought to declare specifically that a thrown rock might be a dangerous weapon, this too might be considered lacking in precision unless the size of the rock, the distance between the thrower and the target, and the part of the victim at which the thrower aims are prescribed. Such an attempt to itemize every instrument, and its method of use, which might constitute a dangerous weapon surely would have yielded a much lengthier and more complex, and probably more obscure, result than the single straightforward sentence in 11 F.S.M.C. 919(1).
Another factor merits consideration. Often when courts have held statutes violative of a constitutional right to be informed, or of due process, and therefore void on grounds of vagueness, the statute or ordinance is one reaching into marginal areas of human conduct. For example, prohibitions against "loitering" or "vagrancy" are aimed at conduct often thought of as offensive or undesirable, but not directly dangerous or harmful to others. Such statutes are commonly seen by courts as questionable intrusions by government into the everyday activities, or inactivities, of ordinary citizens. Because that type of prohibition goes beyond physical well-being, property rights or other interests of citizens traditionally protected by criminal law, such statutes are treated with less sympathy. Courts have been far more inclined to set these statutes aside as unconstitutionally vague, in contrast to those more traditional criminal proscriptions of conduct plainly dangerous or injurious to other citizens.
Prohibitions against assaults with dangerous weapons fall within the more traditional realm of criminal law and therefore are entitled to greater deference. Moreover, such statutes often bring with them commonly accepted meanings arising out of prior court interpretations in the jurisdictions from which the statutes are borrowed. Andohn v. FSM, 1 FSM Intrm. 433,
441 (App. 1984). Those established meanings in turn may be considered in testing a claim that the statute is unconstitutionally vague. See In re Bushman, 463 P.2d 727 (Cal. 1970).
That is so with the statute before us now. For at least 100 years courts have uniformly held that a dangerous weapon is one which is likely to or may produce death or great bodily injury. United States v. Williams, 2 F. 61, 64 (1880). See also United States v. Reeves, 38 F. 404, 406 (1889) ("A dangerous weapon is one likely to produce death or grea t bodily harm"). Courts have repeatedly recognized that whether a particular item is a dangerous weapon often depends upon the use to which it is being put. United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963) ("[A]lmost any object which as used or attempted to be used may endanger life or inflict great bodily harm can in certain circumstances be a dangerous weapon."). Thus, items such as a wine bottle, shoes, a rake, a thrown club, a brick, a chair, and a chair leg have been declared dangerous weapons. Id.
This general agreement as to the meaning of the words "dangerous weapon" has found its way to the present day, Commonwealth v. Daves, 406 N.E.2d 417, 8 A.L.R.4th 1259 (Mass. App. Ct. 1980), and to this geographical area. In Paul v. Trust Territory, 2 TTR 603, 607 (App. 1959), a case arising out of Truk, the Trust Territory High Court Appellate Division said
that "a dangerous weapon ... is a weapon which is likely, in the natural course of things, to produce death or great bodily harm, when used in the manner it was in the particular case in question." The Trust Territory High Court also specifically recognized that throwing stones at a person may constitute assault with a dangerous weapon. Trust Territory v. Benemang, 5 TTR 32 (Yap 1970).
The Congressional Journals contain no direct discussion of t he section which became 11 F.S.M.C. 919 although the Report of the Committee on Judiciary and Governmental Operations furnishes a clue as to Congressional intention. The report points out that the Model Penal Code was the primary source for the National Criminal Code but that "outside sources" were "in many respects modified to suit the particular needs of the area." SCREP No. 1-299, J. of 1st Cong., 4th Reg. Sess. 281, 282 (1980).
We note that the Model Penal Code contains no reference to dangerous weapons but instead uses the term "deadly weapon." Model Penal Code §§ 211.1(1)(b) and 211.1(2)(b). 4 Retention of the words "dangerous weapon" in the
National Criminal Code implies that Congress may have been contented with the definition of that term as it had been applied under the Trust Territory Code. See 11 TTC 204.
In any event, there is no reason to believe that Congress intended to depart from the commonly understood meaning of the words, confirmed by courts in diverse places and various circumstances for at least 100 years, and applied by courts here for at least 20 years before the Congress employed the words in 11 F.S.M.C. 919(1). We therefore conclude that a "dangerous weapon" is an object which, as used, may be anticipated to produce death or great bodily harm.
What has already been said is sufficient to establish the constitutionality and meaning of the words "dangerous weapon" in the National Criminal Code. However, it bears mentioning that decisions in United States courts also support our conclusion as to constitutionality.
The Due Process Clause, and other provisions of the Declaration of Rights, are traceable to the Bill of Rights of the United States Constitution. 5 Alaphonso v. FSM, 1 FSM
Intrm. 209, 214 (App. 1982). There is no suggestion in the Report of the Committee on Civil Liberties or elsewhere in the Constitutional Convention Journal that the framers of this Constitution wanted to depart from or expand upon United States constitutional principles concerning particularity and definitions in criminal statutes. Rather, the report's reliance upon United States court decisions in explaining the words confirms that the intent was to adopt the American approach concerning statutory specificity.
It is therefore relevant that a court in the United States has held explicitly that the term dangerous weapon is not so vague as to render the statute unconstitutional. Stout v. Dallman, 492 F.2d 992, 994 (6th Cir. 1974). That court relied upon Jordan v. DeGeorge, 341 U.S. 223, 230-232, 71 S. Ct. 703, 707-08, 95 L. Ed. 886, 892 (1951), where the United States Supreme Court said:
We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508 (1930). Impossible standards of specificity are not required. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.
This decision, reflecting the state of United States
constitutional law when the Micronesian Constitutional Convention was in session in 1975, is entitled to careful consideration in determining the meaning intended by the framers in adopting Article IV, Sections 3 and 6 of the Constitution of the Federated States of Micronesia. We adopt the reasoning of the Stout court, with its reliance upon Jordan v. DeGeorge, as suitable for the Federated States of Micronesia.
For all the above reasons, we hold that the language of 11 F.S.M.C. 919 is not unconstitutionally vague.
B. Application
We now ask whether the statute was correctly applied in this case. The question arises because of Mr. Laion's insistence that the trial judge provided two different definitions, and our concern that the second definition is improper. First, after denying the defendant's motion to dismiss upon conclusion of the government's case in chief, the trial judge stated that the words "dangerous weapon" include "any object which by the manner in which it's used may cause death or serious bodily injury." Transcript 66. Subsequently, in Finding No. 4 of its special findings, the trial court said that "A rock is a dangerous weapon when used in a manner that may cause bodily injury."
The trial court's first statement comports with the generally accepted definition of dangerous weapon approved in
this opinion, requiring that the object as used have a potential of causing either death or serious bodily injury.
The second statement expands the definition to include rocks which may cause any bodily injury, not just serious bodily injury. The government contends that this second statement is not a new definition contrary to the first, but merely a finding of fact. It is difficult to credit that claim, especially since the statement cites Websters Third International Dictionary as its source. We read Finding No. 4 as a conclusion of law, not a finding of fact.
We cannot speculate or state with certainty that Finding No. 4 was considered insignificant by the trial judge or that it had no effect on his Findings 1 through 3. On the face of things, Finding No. 4, with its unacceptably broad definition of "dangerous weapon," suggests that the wrong legal principles may have been applied in arriving at Findings 1 and 3, both of which use the term "dangerous weapon."
This case is therefore remanded to the trial division with instructions to apply the definition of dangerous weapon set forth in this opinion and to determine whether the rock, as used by the defendant, was a weapon which could be anticipated to produce death or serious bodily injury.
Laion also raises several objections to his conviction
for aggravated assault under 11 F.S.M.C. 918. 6
A. Election among charges
At the beginning of the trial, the defense requested the trial court to require an election 'by the prosecution as to whether it was contending that the defendant had committed aggravated assault "intentionally", "knowingly" or "recklessly." The trial court refused to force such an election, and Laion now argues that this left him uncertain as to the precise charge and gave the prosecution too much flexibility.
The argument places undue emphasis on formalism. The information meets the requirements of Rule 7(c) of our Rules of Criminal Procedure in that it is a "plain, concise and definite written statement of the essential facts constituting the offense charged."
The information sufficiently apprised the defendant of
the charges against which he must be prepared to defend and is sufficiently detailed to enable him to plead this case as a bar to future prosecutions for the same offense. It is generally sufficient that an information set forth the offense in the words of the statute itself when those two basic requirements are met. Dranow v. United States, 307 F.2d 545 (8th Cir. 1962). Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 2907, 41 L. Ed. 2d 590, 620-21 (1974). The language of Rule 7(c) of our Rules of Criminal Procedure has been interpreted by other courts as permitting the prosecution to charge commission of a single offense by different means, or by charging in the conjunctive actions prohibited disjunctively in a statute. 7 Turf Center, Inc. v. United States, 325 F.2d 793 (4th Cir. 1963). This technique of pleading is used by prosecutors to avoid variances between pleading and proof.
Where more than one offense or wrongful intent is charged in a single count, the trial court may require the government to elect among the charges if failure to do so might result in prejudice to the defendant. However, this is a matter within the discretion of the trial court.
There is no occasion here for disturbing the trial judge's discretion. The information unmistakably warned the defendant that the government would be attempting to prove that Laion's actions toward Benito Moufa on the night of October 22, 1982, violated 11 F.S.M.C. §§ 918 and 919. Laion does not deny he knew at the outset of the trial that the only act in issue was his throwing a rock at Moufa. Laion can hardly claim to have been unfairly prejudiced, or incapable of preparing an intelligent defense, simply because the government insisted on each of the statute's three adjectives, "intentionally, knowingly and recklessly," as possibly accurate descriptions of Laion's frame of mind when he threw the rock. Indeed, to have required the election would have faced the government with a hair-splitting choice and presented the defendant with "the inappropriate opportunity to contend that whichever adjectives the government chose to strike were after all the only ones which properly described his state of mind when he threw the rock.
Our Rules of Criminal Procedure were designed to avoid technicalities and gamesmanship in criminal pleading. They are to be construed to secure simplicity in procedure. FSM Crim. R. 2. Convictions should not be reversed, nor informations thrown out, because of minor, technical objections which do not prejudice the accused.
B. Intentional conduct
Laion also contends that the trial court erred in holding that he acted "intentionally" in causing serious bodily injury to Moufa. In its findings, the trial court concluded that Laion intended to cause injury to Moufa, that he purposely threw a rock at him, that the rock caused injury to Moufa's eye, that the eye was permanently impaired, and that this was serious bodily injury. The trial court made no finding as to whether Laion intended to cause serious bodily injury.
The issue raised by Laion is whether these findings are sufficient to find that he "intentionally" caused serious bodily injury within the meaning of the National Criminal Code. The word "intentionally" is defined in 11 F.S.M.C. 104(4): "A person acts intentionally, or with intent, with respect to his conduct or to a result thereof when it is his conscious purpose to engage in the conduct or cause the result." The trial court, in finding that Laion purposely threw a rock at Moufa, apparently felt that a finding that Laion had purposely "engaged in the conduct" which in turn caused the serious bodily injury constituted a sufficient finding of intent within the meaning of 11 F.S.M.C. §§ 104(4) and 918(1).
We conclude that the requisite intent for aggravated assault cannot be found in this manner. The crime of aggravated assault assumes at the very least disregard by the defendant for
the well-being of the victim. More typically, it requires desire on the part of the defendant to injure the victim seriously.
Causal connection between an act done purposely and serious bodily injury to another is not sufficient to establish the crime of aggravated assault, even when the act is coupled with an intention to cause bodily injury. The crime is aggravated assault. Serious bodily injury, not just any injury, must have been intended in order to commit this crime. In the context of a claim of aggravated assault which calls for "causing serious bodily injury intentionally," the words, "engaged in the conduct," in 11 F.S.M.C. 104(4) mean engaging in the conduct of causing serious bodily injury. Section 104(4) requires a conscious purpose either to engage in the conduct of causing serious bodily injury or to cause a result, which is serious bodily injury.
We therefore remand this case to the trial court for a determination as to whether the requisite intent, an intention to cause serious bodily injury, existed in the mind of Laion at the time that he threw the rock. If the trial court is unable to find such an intention beyond a reasonable doubt, consideration then should be given to whether the defendant caused serious bodily injury "recklessly" or "knowingly."
The defendant also objects to the fact that although he committed only one act, throwing a rock at Moufa, he has been convicted of two crimes, assault with a dangerous weapon and aggravated assault.
A. Double Jeopardy
He contends that this constitutes a form of multiple punishment in violation of his constitutional protection against being put in jeopardy twice for the same offense. FSM Const. art. IV, § 7. The government insists that the protection against double jeopardy does not prevent dual convictions for one act in the circumstances of this case, especially where the sentences are ordered to run concurrently rather than consecutively.
We agree with the government. The principal purpose of the protection against double jeopardy established by this constitutional provision is to prevent the government from making repeated attempts to convict an individual for the same alleged act. Multiple prosecutions expose defendants to continued embarrassment, anxiety and expense, and increase the risk of an erroneous conviction or an impermissibly enhanced sentence. As the report of the Constitutional Convention Committee on Civil Liberties explained to the convention:
In its traditional application, double jeopardy is a rule of finality. A single fair trial on criminal charges bars reprosecution.
A criminal trial can have detrimental and lasting effects on the defendant's life. Double jeopardy allows this ordeal to be imposed only once and for reasonable cause, not repeatedly at the prosecutor's whim.
SCREP No. 23, II J. of Micro. Con. Con. 793, 798-99. Multiple prosecutions have not occurred in this case. Although two criminal charges were leveled against Laion, and two convictions had based upon a single act, he was tried on only one occasion.
To be sure, the history of the provision establishes that the Double Jeopardy Clause does furnish some protection beyond the simple prohibition against two trials for the same act or offense. Yet even that broader protection cannot be stretched to cover Laion's situation.
The Double Jeopardy Clause, like most provisions of the Declaration of Rights, was drawn from the Bill of Rights of the United State Constitution. This is indicated by similarity of language in the two Double Jeopardy Clauses, as well as by the exclusive reliance of the Convention's Civil Rights Committee upon United States authorities in explaining to the convention the meaning of the proposed Double Jeopardy Clause. 8 SCREP
No. 23, II J. of Micro. Con. Con. at 798-99. Thus, United States constitutional law at the time of the Micronesian Constitutional Convention furnishes guidance as to the intended scope of this Constitution's Double Jeopardy Clause. Alaphonso v. FSM, 1 FSM Intrm. 209, 216-17 (App. 1982).
By the time of the Micronesian Constitutional Convention, the United States courts had reached agreement that the Double Jeopardy Clause of the United States Constitution affords a defendant three basic protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969).
We have already noted that there was no second prosecution after either acquittal or conviction. The only remaining Double Jeopardy Clause protection is the bar against multiple punishments for the same offense. There are two reasons, however, why that protection is of no avail to Laion here. First, the convictions were not based on the same offense" as that term is used in considering multiple punishment claims. In this context, the rule for determining whether two offenses are the "same" is that stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). "The applicable rule is that where
the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."
Assault with a dangerous weapon requires use or attempted use of a dangerous weapon, a fact not required for aggravated assault. The latter however, requires an intent to cause serious bodily injury, which need not be proved for conviction of assault with a dangerous weapon. Thus, the convictions were not for the "same offense."
Secondly, although Laion was sentenced for each conviction, the trial court ordered the sentences to run concurrently. Thus, there have not been cumulative or multiple punishments.
No reason has been brought to our attention, and we find none, for doubting the suitability of the above constitutional principles, as applied in the United States at the time of the Micronesian Constitutional Convention, for application in the Federated States of Micronesia. We therefore adopt those principles and the analysis discussed above as reflecting the meaning intended by the framers for the Double Jeopardy Clause in Article IV, Section 7 of the Constitution of the Federated States of Micronesia.
Accordingly, we reject defendant's claim that his dual
conviction in one trial arising out of his single action violates his constitutional protection against double jeopardy.
B. Statutory Construction
This, however, does not end our analysis but turns us to statutory construction. While we conclude that Congress is not prevented by the Double Jeopardy Clause from providing that two convictions of the same import may flow from a single wrongful act, it is not clear to us that Congress intended for 11 F.S.M.C. §§ 918 and 919 to be applied in this tandem fashion. We are not content merely to assume such a congressional intention.
Some legislatures have recognized the dubious fairness of allowing two convictions to be imposed as a result of a single criminal act. Various devices have been used to prevent that result. For example, one legislature has provided that "an act or omission which is made punishable in different ways by different criminal provisions may be punished under either of such provisions, but in no case can it be punished under more than one." See Neal v. State, 357 P.2d 839 (Cal. 1960) (Cal. Penal Code ยง 654). See also Ohio v. Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984) (Ohio statute preventing dual convictions for "allied offenses of similar import").
Other legislatures have taken the opposite tack, specifically mandating or authorizing cumulative sentences for dual convictions based upon offenses of the same nature. See
Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983) (upholding Mo. Ann. Stat. App. § 560.135); Washington v. Johnson, 600 P.2d 1249, 1252 (Wash. 1978) (quoting RCW 9A.52.050.).
Our Congress has expressed no intention as to whether these two statutes should be applied simultaneously in response to a single wrongful act. Review of the Congressional Journal relating to adoption of the National Criminal Code confirms that Congress did not consider the question or possibility of dual convictions arising out of one act. Under these circumstances, courts have held that the different statutory offenses relating to a single course of action may be deemed to be merged so that only one conviction may result. See Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1947); State v. Johnson, 600 P.2d 1249 (Wash. 1979); Dycus v. State, 529 P.2d 979 (Wyo. 1974). Walton v. State, 448 S.W.2d 690 (Tenn. Crim. App. 1969) reprinted in part in P. Johnson, Criminal Law 307 (2d ed. 1980).
Any unfairness of dual convictions for the single wrongful act here is alleviated by the action of the trial court in providing for concurrent rather than consecutive sentences. Nevertheless, a conviction itself is an important event. Existence of two convictions, rather than one, surely could have harmful effects upon the defendant as his life continues. As Justice Marshall of the United States Supreme
Court has pointed out:
...quite apart from any sentence that is imposed, each separate criminal conviction typically has collateral consequences, in both the jurisdiction in which the conviction is obtained and in other jurisdictions. See Benton v. Maryland, 395 U.S. 784, 790 (1969); Sibron v. New York, 392 U.S. 40, 53-58 (1968). The number of convictions is often critical to the collateral consequences that an individual faces. For example, a defendant who has only one prior conviction will generally not be subject to sentencing under a habitual offender statute.
Furthermore, each criminal conviction itself represents A pronouncement by the State that the defendant has engaged in conduct warranting the moral condemnation of the community. See Hart, The Aims of the Criminal Law, 23 Law Contemp. Prob. 401, 404-405 (1958). Because a criminal conviction constitutes a formal judgment of condemnation by the community, each conviction causes additional damage to the defendant's reputation. See O'Clair v. United States, 470 F.2d 1199, 1203 (1st Cir. 1972), cert. denied, 412 U.S. 921 (1973).
A statutory scheme that permits the prosecution to obtain two convictions and two sentences therefore cannot be regarded as the equivalent of a statute that permits only a single conviction, whether or not that single conviction can result in a sentence of equal severity.
Hunter, 459 U.S. at 372-73, 103 S. Ct. at 681-82, 74 L. Ed. 2d at 546-47 (dissent). In absence of clear Congressional direction, we are reluctant to assume that a person who engages in a single illegal activity was intended by Congress to sustain more than one conviction of the same type as a result of that solitary action. This judicial reluctance does not rise to the level of
constitutionality and would not outweigh expressed wishes of the Congress. It is nonetheless serious. We do not wish unwittingly to impose double convictions in circumstances neither intended nor foreseen by Congress.
This is an apt occasion for application of the rule of lenity, the rule of statutory construction reflecting, among other things, reluctance of courts "to increase or multiply punishments absent a clear and definite legislative direction."
Simpson v. United States, 435 U.S. 6, 15-16, 98 S. Ct. 909, 914, 55 L. Ed. 2d 70, 78 (1978).
When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.... It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment .... It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes.
Bell v. United States, 349 U.S. 81, 83-84, 75 S. Ct. 620, 622, 99 L. Ed. 905, 910-11 (1955).
Our underlying assumption is that Congress ordinarily does not intend to punish the same action under two different statutes. Moreover, merger of the offense here would not appear to impede any, significant governmental objectives. Both provisions uphold the same societal interests, prevention of attacks and disorder, and both protect the interests of
individual citizens in their own physical integrity and well-being. These interests would be served by conviction under either statute.
We therefore hold that where two statutory provisions aimed at similar types of wrongdoing and upholding citizen and public interests of the same nature would apply to a solitary illegal act, which caused only one injury, the statutes will be construed not to authorize cumulative convictions in absence of a clear indication of legislative intent.
Our holding today should not be construed as forcing the government to premature election between similar charges. The government is not denied the right to charge separate offenses to guard against the risk that a conviction may not be obtained on one of the offenses. This holding relates to mergers only of convictions, not charges, and should hold out no threat of an unjust acquittal.
A trial court may in its discretion permit a case involving separate charges based upon the same act to proceed to trial. However, the court should render a decision and enter a conviction only on the more major of the crimes proven beyond a reasonable doubt. After appeal, if any, has been completed, the lesser charge may be dismissed. of course, if conviction on the greater charge is reversed on appeal, the trial court may then find it necessary to enter a judgment on the alternative charge.
Laion has raised several other issues, including sufficiency of the evidence to support the trial court's findings, and the acceptance of testimony of a witness concerning whom appellant claims the government failed to fulfill its obligations to disclose statements. We have reviewed those claims and find them without merit.
New findings are needed. Specifically, concerning the crime of assault with a dangerous weapon, the trial court should determine whether the rock as used by Laion against Benito Moufa would have been anticipated to cause death or serious bodily injury.
As to the crime of aggravated assault, the court should determine whether Laion acted with the conscious purpose of causing serious bodily injury to Moufa and, if not, whether he acted recklessly or knowingly in causing serious bodily injury.
Because these two statutory provisions prohibit the same kind of conduct and protect similar societal interests, the statutes as applied to Laion's conduct in question here, one act causing one injury, merge in this prosecution and no more than one conviction should be entered against the defendant.
The convictions in this case are set aside. The case is remanded to the trial division for new findings and further
proceedings in accordance with this opinion.
So ordered the 10th day of September, 1984.
/s/ Edward C. King
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EDWARD C. KING
Chief Justice
/s/ Mamoru Nakamura
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MAMORU NAKAMURA
Chief Justice
Supreme Court
Republic of Palau
(Designated Justice)
/s/ Herbert D. Soll
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HERBERT D. SOLL
Judge, Commonwealth Court
Commonwealth of the Northern
Mariana Islands
(Designated Justice)
Entered the 10th day of September, 1984.
/s/ Emeliana Musrasrik
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Chief Clerk of Court
Supreme Court of the
Federated States of Micronesia
1. The statute says, § 919(1): "A person commits the offense of assault with a dangerous weapon if he attempts to cause or purposely causes bodily injury to another with a dangerous weapon."
2. Laion's brief throughout refers to Article IV, Section 5. However, it is plain from the substance of his argument that he was intending to invoke his right to be informed of the nature of the accusation, and this was confirmed by counsel in oral argument. We therefore treat this as an Article IV, Section 6 argument.
3. II J. of Micro. Con. Con. 796.
4. Although of uncertain significance, it is of at least passing interest that the Model Penal Code defines deadly weapon as one "which in the manner it is used or is intended to be used is capable of producing death or serious bodily injury." Thus, although the words are different, the meaning is quite similar to our "dangerous weapon."
5. This is true also of the right to be informed. Compare "The defendant in a criminal case has a right...to be informed of the nature of the accusation ...." FSM Const. art. IV, § 6,with "In all criminal prosecutions, the accused shall enjoy the right...to be informed of the nature and cause of the accusation." US Const. amend. VI.
6. 11 F.S.M.C. 918(1) provides as follows: "A person commits an offense of aggravated assault if he attempts to cause serious bodily injury to another or causes serious bodily injury intentionally, knowingly, or recklessly under circumstances showing extreme indifference to the value of human life."
Section 918(2) then varies the sentence depending on whether serious bodily injury was caused: "A person convicted of assault with a dangerous weapon shall be punished by imprisonment for not more than five years if he causes bodily injury; otherwise, he shall be punished by imprisonment for not more than three years."
7. As pointed out elsewhere in this opinion, interpretations by other jurisdictions may be considered in determining the meaning here of language borrowed from those other jurisdictions. Andohn v. FSM, 1 FSM Intrm. 433 (App. 1984).
8. Article IV, Section 7 of the Constitution says, "a person may not be ... twice put in jeopardy for the same offense." The comparable provision of the United States Constitution, the Fifth Amendment, provides that, "No person shall be...subject for the same offense to be twice put in jeopardy of life or limb."