FSM 4 Intrm. 310-316

It is normally for the trial court to fashion remedies and sanctions for failure of a party to comply with discovery requirements and the exercise of the trial court's discretion should not be disturbed by an appellate court absent a showing that the trial court's action has unfairly resulted in substantial hardship and prejudice to a party. Bernardo v. FSM, 4 FSM Intrm. 310, 313 (App. 1990).

For false evidence to lead to reversal of a conviction, there must be some reason to believe that the trier of fact may have been misled and that this may have contributed to the conviction. Bernardo v. FSM, 4 FSM Intrm. 310, 314 (App. 1990).

That a victim/aggressor scuffled with the defendant and chased the defendant with a rock in his hand before the defendant fatally stabbed the victim/aggressor is not such a mitigating factor as automatically to compel the reduction of a charge from murder to manslaughter. Bernardo v. FSM, 4 FSM Intrm. 310, 315 (App. 1990).

A trial court must give specific consideration to the possibility of manslaughter where there is evidence suggesting that the person who caused a death was under the influence of mental or emotional disturbance and if the trial court then finds guilt for murder rather than manslaughter, it must make a specific finding, either orally or in writing, explaining why 11 F.S.M.C. 912 is not applicable. Bernardo v. FSM, 4 FSM Intrm. 310, 315 (App. 1990).

In this appeal from his conviction for murder, defendant Iowanes Bernardo seeks reversal of the conviction on grounds that wrongful actions by the government, including failure to comply with discovery requirements, and presentation of false evidence, required the trial court to declare a mistrial. He also contends that the trial court should have reduced the conviction from murder to the lesser crime of manslaughter. We are remanding the case so that the trial court may make the findings required by this Court's decision in Runmar v. FSM, 3 FSM Intrm. 308 (App. 1988).

were sitting under a mango tree smoking marijuana when they were approached by the decedent, Asterio Welle. Trouble ensued when Asterio Welle became aggressive toward Aitaro Mitaro and the defendant intervened on behalf of Aitaro. The trial court found that Welle held rocks in his hand and hit Aitaro, then scuffled with the defendant. Then, still with a rock in his hand, Welle began chasing Iowanes Bernardo down the road until Bernardo disappeared into the jungle. Asterio Welle went into the jungle after Bernardo and eventually emerged on the road with a knife wound in his chest, indicating that Bernardo had stabbed him. Welle died a few hours later, at approximately midnight on May 20.

At about 7 A.M. on May 21, Iowanes Bernardo signed a written statement, admitting that he had stabbed Welle, saying he had done so because Welle had been acting aggressively and had chased him into the jungle with rocks in his hands. Apparently because of inadequate communication between the FSM Attorney General's Office and the Chuuk Department of Public Safety, the prosecution did not become aware of various statements, including this May 21 statement and medical records concerning the cause of Mr. Welle's death, until a few days before the trial was scheduled to begin. These items were not made available to the defense until July 31, the day the trial was to begin. The defense requested, and was granted, one day to review the new information provided to it.

The next morning, August 1, the trial began without objection by the defense. Upon hearing testimony concerning Mr. Bernardo's statement, the judge suggested that a hearing should be held to determine whether the statement was voluntary. However, counsel for the defense waived any objection to admission of the statement,1 which was then read into evidence by the detective who had obtained it from the defendant.

However, at the conclusion of his direct examination of the detective, counsel for the government, John Brackett, for the first time alluded to oral statements allegedly made by Mr. Bernardo at about midnight shortly after his arrest. At that point, the defense moved for a mistrial. In this appeal, Mr. Bernardo contends that the court erred in refusing to declare a mistrial.

We have had occasion before, in strikingly similar circumstances, to consider the proper response of a trial court to the failure of prosecuting governmental officials to provide full discovery to the defendant. In Engichy v. FSM, 1 FSM Intrm. 532, 558 (App. 1984), this Court addressed the problem of discovery violations:

It is clear that the attorneys of the national attorney general's office, representing the government in this case, were unaware of the existence of these statements and had not used them in their preparation.

Apparently the failure to communicate the existence of the statements was traceable to inadequate communication among Truk police officers, the Truk State Attorney's Office and national government officials. Counsel for the government advised opposing counsel and the court immediately upon becoming aware of the existence of the statements. Copies were promptly made available to all counsel.

Late disclosure of the statements, although inadvertent, plainly was in violation of discovery requests submitted earlier by the defendants. It is normally for the trial court to fashion remedies and sanctions for failure of a party to comply with discovery requirements. The exercise of that trial court's discretion should not be disturbed by an appellate court absent a showing that the trial court's action has unfairly resulted in substantial hardship and prejudice to a party.

In the instant case, the trial court imposed a substantial sanction upon the government, denying the admissibility of the two oral statements. Thus, the government realized no advantage from its failure to provide timely discovery and lost the opportunity to use the evidence that had not been revealed.

The appellant contends that the defense might have opposed admission of the written statement had counsel been aware of the two oral statements. However, this is speculative and conjectural. There is no suggestion that anything stated orally by Mr. Bernardo to the police officers throws doubt upon either the voluntariness or the accuracy of the written statement.

We find that the trial court's action was reasonable and assured that no substantial hardship or prejudice was caused to the defense by the government's failure to fulfill its disclosure obligations.

Although the actions of the trial court are here upheld as reasonable, we note that this is now the second instance where failures of communication between Chuuk state law enforcement officials and national government

officials have brought into question the fairness of court proceedings and have jeopardized prosecutorial efforts. We trust, and urge, that affirmative steps will be taken by the appropriate officials to guard against any repetition of these governmental failures to observe the full discovery rights of accused persons.

The defense also contends that the government's first witness, Vicky Kintoky, perjured himself during direct examination, and points to a line of cases in the United States holding that presentation of materially false testimony in the government's case in chief may violate due process and mandate a new trial. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). See also Republic of Palau v. Tmetuchl, 1 ROP Intrm. 450, 493-95 (App. 1988) (concurring opinion).

We readily accept the holdings of those cases as an appropriate rule of due process under the FSM Constitution. Even so, it is not every misstatement or misrepresentation by a government witness that requires reversal. For false evidence to lead to reversal of a conviction, there must be some reason to believe that the trier of fact may have been misled and that this may have contributed to the conviction.

The appellant's brief does not state with precision which testimony of Vicky Kintoky it claims to be false, merely referring generally to pages 27 and 28 of the transcript. Apparently the statements objected to were Vicky Kintoky's denials that he saw "anything unusual happen" as the hostilities were building, and that he saw anybody hit anybody.

The defense points out that when Mr. Brackett was asking these questions, he was in possession of the witness's statement saying that he had seen the decedent arguing and exchanging punches with Aitaro, that the defendant had walked away with Aitaro, and that the decedent then picked up rocks and chased after the other two, who ran in opposite directions. Tr. 2:69 and 70.

The prosecuting attorney may well have erred in judgment, or he may even have violated his ethical obligations, by closing out his direct examination of Vicky Kintoky without pointing out the discrepancy between that testimony and Mr. Kintoky's earlier statement. Cf. Republic of Palau v. Tmetuchl, 1 ROP Intrm. at 489-95. However, that is not the issue for purposes of this appeal. What is important here is whether the misstatements contributed to the defendant's conviction. Id. Plainly, they did not, for the defense was given a full opportunity to examine Mr. Kintoky later, at which time he confirmed that his original written statement was true and that his testimony during direct examination was false. By the time the trial ended, the trial court had been fully apprised of the facts and could not have been misled by the original misrepresentations of the witness.

The trial court found that Asterio Welle was the aggressor and that he chased Mr. Bernardo with a rock in his hand. The defense argues that these findings compel "mitigation" of the crime from murder to manslaughter, even if the court believed that Mr. Bernardo's actions in stabbing Asterio Welle were unreasonable.2

In support of this position, defendant cites homicide cases in which the defendants had been disputing with the decedent immediately prior to the death and there was some indication of a need for self-defense. State v. Jarvi, 474 P.2d 363 (Or. App. 1970)(holding that the trial court "correctly resolved" doubt as to whether the defendant should be convicted of manslaughter or second degree murder in favor of manslaughter); State v. Collins, 582 P.2d 1179, 1188 (Mont. 1978) (when a defendant has used unreasonable force in self-defense, a verdict of mitigated deliberate homicide is justified). We have reviewed these cases and do not find them to support the compulsory reduction to manslaughter urged by the defense.

However, we do find the trial court's findings that Welle was the aggressor and that he chased the defendant with a rock in his hand sufficient to suggest that Iowanes Bernardo may have been acting under the influence of mental or emotional disturbance when he stabbed Asterio Welle. We hold therefore that the trial court was required by our ruling in Runmar v. FSM, 3 FSM Intrm. 308, (App. 1988), to consider whether the conviction should have been for manslaughter rather than murder. In Runmar, the Court said:

We hold that when all elements for murder exist but homicide was carried out under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse, the defendant is entitled to be convicted of manslaughter rather than murder. This is without regard to whether a request for consideration of manslaughter has been made by either counsel.

disturbance, the trial court must give specific consideration to the possibility of manslaughter. If the trial court finds guilt for murder rather than manslaughter under these circumstances, there must be a specific finding, made orally or in writing, explaining why 11 F.S.M.C. 912 is not applicable.

1. In response to the trial court's suggestion, counsel for the defense said: "Your honor, I believe the court is right, there should be a finding of both fact and law as to the knowing, intelligent, voluntary, waiver of statements before the court. At this time, we are willing to waive those objections and we are willing for the officer to present the statements that Iowanes made assuming they're the same statements I have." Tr. 104.

2. The trial court said: "I do not find that the defendant believed that he was in immediate danger of death or serious bodily injury, and that the use of deadly force by him was necessary to prevent his death or serious bodily injury. In the light of all the circumstances I find that one could not reasonably believe that he was in immediate danger of death or serious bodily injury which made the use of deadly force necessary to prevent it. The force used was unreasonable." Tr. 2:127.


	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA Cite as Bernado v. FSM , 4 FSM Intrm. 310 (App. 1990) [4 FSM Intrm. 310] IOWANES BERNARDO, Appellant, vs. FEDERATED STATES OF MICRONESIA, Appellee. FSM APP. CASE NO. T5-1989 From Crim. Case No. 1989-1504 OPINION Argued: April 26, 1990 Decided: September 7, 1990 BEFORE: Hon. Edward C. King, Chief Justice, FSM Supreme Court Hon. Soukichi Fritz, Temporary Justice, FSM Supreme Court* Hon. Jesus C. Borja, Temporary Justice, FSM Supreme Court** Chief Justice, Chuuk State Court, on this Court by designation for this case Associate Justice, Supreme Court of the Commonwealth of the Northern Mariana Islands, on this Court by designation for this case APPEARANCES:* For the Appellant: Dan Maloney Public Defender Federated States of Micronesia Weno, Chuuk FM 96942 For the Appellee: Ready Johnny (argued) Assistant Attorney General Federated States of Micronesia Weno, Chuuk FM 96942 Steven Pixley (on the brief) Chief of Litigation Office of the Attorney General Federated States of Micronesia Palikir, Pohnpei FM 96941 * * * * [4 FSM Intrm. 311] HEADNOTES Appeal and Certiorari; Criminal Law and Procedure - Discovery It is normally for the trial court to fashion remedies and sanctions for failure of a party to comply with discovery requirements and the exercise of the trial court's discretion should not be disturbed by an appellate court absent a showing that the trial court's action has unfairly resulted in substantial hardship and prejudice to a party. Bernardo v. FSM, 4 FSM Intrm. 310, 313 (App. 1990). Appeal and Certiorari For false evidence to lead to reversal of a conviction, there must be some reason to believe that the trier of fact may have been misled and that this may have contributed to the conviction. Bernardo v. FSM, 4 FSM Intrm. 310, 314 (App. 1990). Criminal Law and Procedure - Homicide That a victim/aggressor scuffled with the defendant and chased the defendant with a rock in his hand before the defendant fatally stabbed the victim/aggressor is not such a mitigating factor as automatically to compel the reduction of a charge from murder to manslaughter. Bernardo v. FSM, 4 FSM Intrm. 310, 315 (App. 1990). Criminal Law and Procedure - Homicide A trial court must give specific consideration to the possibility of manslaughter where there is evidence suggesting that the person who caused a death was under the influence of mental or emotional disturbance and if the trial court then finds guilt for murder rather than manslaughter, it must make a specific finding, either orally or in writing, explaining why 11 F.S.M.C. 912 is not applicable. Bernardo v. FSM, 4 FSM Intrm. 310, 315 (App. 1990). * * * * COURT'S OPINION EDWARD C. KING, Chief Justice: In this appeal from his conviction for murder, defendant Iowanes Bernardo seeks reversal of the conviction on grounds that wrongful actions by the government, including failure to comply with discovery requirements, and presentation of false evidence, required the trial court to declare a mistrial. He also contends that the trial court should have reduced the conviction from murder to the lesser crime of manslaughter. We are remanding the case so that the trial court may make the findings required by this Court's decision in Runmar v. FSM, 3 FSM Intrm. 308 (App. 1988). I. The evidence adduced during the trial indicates that on May 20, 1989, defendant Iowanes Bernardo and two others, Vicky Kintoky and Aitaro Mitaro, [4 FSM Intrm. 312] were sitting under a mango tree smoking marijuana when they were approached by the decedent, Asterio Welle. Trouble ensued when Asterio Welle became aggressive toward Aitaro Mitaro and the defendant intervened on behalf of Aitaro. The trial court found that Welle held rocks in his hand and hit Aitaro, then scuffled with the defendant. Then, still with a rock in his hand, Welle began chasing Iowanes Bernardo down the road until Bernardo disappeared into the jungle. Asterio Welle went into the jungle after Bernardo and eventually emerged on the road with a knife wound in his chest, indicating that Bernardo had stabbed him. Welle died a few hours later, at approximately midnight on May 20. II. A. At about 7 A.M. on May 21, Iowanes Bernardo signed a written statement, admitting that he had stabbed Welle, saying he had done so because Welle had been acting aggressively and had chased him into the jungle with rocks in his hands. Apparently because of inadequate communication between the FSM Attorney General's Office and the Chuuk Department of Public Safety, the prosecution did not become aware of various statements, including this May 21 statement and medical records concerning the cause of Mr. Welle's death, until a few days before the trial was scheduled to begin. These items were not made available to the defense until July 31, the day the trial was to begin. The defense requested, and was granted, one day to review the new information provided to it. The next morning, August 1, the trial began without objection by the defense. Upon hearing testimony concerning Mr. Bernardo's statement, the judge suggested that a hearing should be held to determine whether the statement was voluntary. However, counsel for the defense waived any objection to admission of the statement,1 which was then read into evidence by the detective who had obtained it from the defendant. However, at the conclusion of his direct examination of the detective, counsel for the government, John Brackett, for the first time alluded to oral statements allegedly made by Mr. Bernardo at about midnight shortly after his arrest. At that point, the defense moved for a mistrial. In this appeal, Mr. Bernardo contends that the court erred in refusing to declare a mistrial. [4 FSM Intrm. 313] We have had occasion before, in strikingly similar circumstances, to consider the proper response of a trial court to the failure of prosecuting governmental officials to provide full discovery to the defendant. In Engichy v. FSM, 1 FSM Intrm. 532, 558 (App. 1984), this Court addressed the problem of discovery violations: It is clear that the attorneys of the national attorney general's office, representing the government in this case, were unaware of the existence of these statements and had not used them in their preparation. Apparently the failure to communicate the existence of the statements was traceable to inadequate communication among Truk police officers, the Truk State Attorney's Office and national government officials. Counsel for the government advised opposing counsel and the court immediately upon becoming aware of the existence of the statements. Copies were promptly made available to all counsel. Late disclosure of the statements, although inadvertent, plainly was in violation of discovery requests submitted earlier by the defendants. It is normally for the trial court to fashion remedies and sanctions for failure of a party to comply with discovery requirements. The exercise of that trial court's discretion should not be disturbed by an appellate court absent a showing that the trial court's action has unfairly resulted in substantial hardship and prejudice to a party. In the instant case, the trial court imposed a substantial sanction upon the government, denying the admissibility of the two oral statements. Thus, the government realized no advantage from its failure to provide timely discovery and lost the opportunity to use the evidence that had not been revealed. The appellant contends that the defense might have opposed admission of the written statement had counsel been aware of the two oral statements. However, this is speculative and conjectural. There is no suggestion that anything stated orally by Mr. Bernardo to the police officers throws doubt upon either the voluntariness or the accuracy of the written statement. We find that the trial court's action was reasonable and assured that no substantial hardship or prejudice was caused to the defense by the government's failure to fulfill its disclosure obligations. Although the actions of the trial court are here upheld as reasonable, we note that this is now the second instance where failures of communication between Chuuk state law enforcement officials and national government [4 FSM Intrm. 314] officials have brought into question the fairness of court proceedings and have jeopardized prosecutorial efforts. We trust, and urge, that affirmative steps will be taken by the appropriate officials to guard against any repetition of these governmental failures to observe the full discovery rights of accused persons. B. The defense also contends that the government's first witness, Vicky Kintoky, perjured himself during direct examination, and points to a line of cases in the United States holding that presentation of materially false testimony in the government's case in chief may violate due process and mandate a new trial. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). See also Republic of Palau v. Tmetuchl, 1 ROP Intrm. 450, 493-95 (App. 1988) (concurring opinion). We readily accept the holdings of those cases as an appropriate rule of due process under the FSM Constitution. Even so, it is not every misstatement or misrepresentation by a government witness that requires reversal. For false evidence to lead to reversal of a conviction, there must be some reason to believe that the trier of fact may have been misled and that this may have contributed to the conviction. The appellant's brief does not state with precision which testimony of Vicky Kintoky it claims to be false, merely referring generally to pages 27 and 28 of the transcript. Apparently the statements objected to were Vicky Kintoky's denials that he saw "anything unusual happen" as the hostilities were building, and that he saw anybody hit anybody. The defense points out that when Mr. Brackett was asking these questions, he was in possession of the witness's statement saying that he had seen the decedent arguing and exchanging punches with Aitaro, that the defendant had walked away with Aitaro, and that the decedent then picked up rocks and chased after the other two, who ran in opposite directions. Tr. 2:69 and 70. The prosecuting attorney may well have erred in judgment, or he may even have violated his ethical obligations, by closing out his direct examination of Vicky Kintoky without pointing out the discrepancy between that testimony and Mr. Kintoky's earlier statement. Cf. Republic of Palau v. Tmetuchl, 1 ROP Intrm. at 489-95. However, that is not the issue for purposes of this appeal. What is important here is whether the misstatements contributed to the defendant's conviction. Id. Plainly, they did not, for the defense was given a full opportunity to examine Mr. Kintoky later, at which time he confirmed that his original written statement was true and that his testimony during direct examination was false. By the time the trial ended, the trial court had been fully apprised of the facts and could not have been misled by the original misrepresentations of the witness. [4 FSM Intrm. 315] III. A. The trial court found that Asterio Welle was the aggressor and that he chased Mr. Bernardo with a rock in his hand. The defense argues that these findings compel "mitigation" of the crime from murder to manslaughter, even if the court believed that Mr. Bernardo's actions in stabbing Asterio Welle were unreasonable.2 In support of this position, defendant cites homicide cases in which the defendants had been disputing with the decedent immediately prior to the death and there was some indication of a need for self-defense. State v. Jarvi, 474 P.2d 363 (Or. App. 1970)(holding that the trial court "correctly resolved" doubt as to whether the defendant should be convicted of manslaughter or second degree murder in favor of manslaughter); State v. Collins, 582 P.2d 1179, 1188 (Mont. 1978) (when a defendant has used unreasonable force in self-defense, a verdict of mitigated deliberate homicide is justified). We have reviewed these cases and do not find them to support the compulsory reduction to manslaughter urged by the defense. B. However, we do find the trial court's findings that Welle was the aggressor and that he chased the defendant with a rock in his hand sufficient to suggest that Iowanes Bernardo may have been acting under the influence of mental or emotional disturbance when he stabbed Asterio Welle. We hold therefore that the trial court was required by our ruling in Runmar v. FSM, 3 FSM Intrm. 308, (App. 1988), to consider whether the conviction should have been for manslaughter rather than murder. In Runmar, the Court said: We hold that when all elements for murder exist but homicide was carried out under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse, the defendant is entitled to be convicted of manslaughter rather than murder. This is without regard to whether a request for consideration of manslaughter has been made by either counsel. Thus where, as here, there is evidence suggesting that the person who caused a death which would otherwise be murder was under the influence of mental or emotional [4 FSM Intrm. 316] disturbance, the trial court must give specific consideration to the possibility of manslaughter. If the trial court finds guilt for murder rather than manslaughter under these circumstances, there must be a specific finding, made orally or in writing, explaining why 11 F.S.M.C. 912 is not applicable. 3 FSM Intrm. at 319. IV. This case is remanded to the trial court for specific consideration of the possibility of manslaughter and specific findings as to whether 11 F.S.M.C. 912 is applicable. * * * * Footnotes: 1. In response to the trial court's suggestion, counsel for the defense said: "Your honor, I believe the court is right, there should be a finding of both fact and law as to the knowing, intelligent, voluntary, waiver of statements before the court. At this time, we are willing to waive those objections and we are willing for the officer to present the statements that Iowanes made assuming they're the same statements I have." Tr. 104. A moment later, counsel for the defense reiterated, "We are waiving objections to the statements assuming I have been provided those same statements." Tr. 105. 2. The trial court said: "I do not find that the defendant believed that he was in immediate danger of death or serious bodily injury, and that the use of deadly force by him was necessary to prevent his death or serious bodily injury. In the light of all the circumstances I find that one could not reasonably believe that he was in immediate danger of death or serious bodily injury which made the use of deadly force necessary to prevent it. The force used was unreasonable." Tr. 2:127.