FSM 5 Intrm. 224-237

A codefendant's inculpatory statement which has been admitted into evidence may not be used against any defendant other than the declarant without violating the right of confrontation guarantee of the FSM Constitution. Hartman v. FSM, 5 FSM Intrm. 224, 229 (App. 1991).

Although there is a danger of prejudice in cases where a co-defendant's inculpatory statement is admitted into evidence, because the Court is hesitant to limit the broad discretion afforded the trial judge by FSM Crim. R. 14, and because many problems can be eliminated by redaction of the statement, the Court will not adopt a per se rule of severance at this time. Hartman v. FSM, 5 FSM Intrm. 224, 230 (App. 1991).

Under 11 F.S.M.C. 301, defendants who are charged with being aided and abetted by others are not entitled to an allegation specifying the acts constituting the aiding and abetting. Hartman v. FSM, 5 FSM Intrm. 224, 232 (App. 1991).

Where defendant's counsel had five days to prepare for the defense of the accused, and was granted a two day continuance, in the absence of any showing in the record or representation by counsel of resulting prejudice or ineffectiveness of counsel, the trial court's refusal to grant a longer continuance was not an abuse of discretion and did not violate art. IV, § 6 of the FSM constitution. Hartman v. FSM, 5 FSM Intrm. 224, 233-34 (App. 1991).

For a confession of a defendant to be admissible as evidence the defendant must not merely waive his right to counsel but must also specifically waive the independent right to remain silent. Hartman v. FSM, 5 FSM Intrm. 224, 234-35 (App. 1991).

The defendants Paulus Hartman, William Ladore and Kasiano Primo appeal their convictions in the trial division of aggravated sexual assault. The circumstance of aggravation was that each was aided by one or more of the others.

Each defendant was separately charged with aiding and abetting the sexual assault, with kidnapping, and with aiding and abetting the others in the kidnapping. The defendants were acquitted of these charges.

The evidence showed that after the closing of a bar near Kolonia in Pohnpei the defendants and others, sharing a pickup truck, began the trip to their homes. After travelling one or two miles they stopped where a few people had congregated because of a disturbance. The victim, who had been drinking in bars that night and who had been involved in the disturbance, at the urging of defendant Hartman got into the pickup, and the journey continued.

In the rural area of Awak the victim, the defendants and others got out of the pickup. The pickup truck was driven on. The defendants committed the sexual acts in a nearby nahs while other men were present.

Initially the court stated that although the victim's demeanor seemed believable and her story was internally consistent, the court concluded she did not tell the full truth. But generally, after weighing all of the evidence, what the victim said was "generally true but it must be consistent with other information in order to be believed [so that] the court can consider itself beyond a reasonable doubt."

When the truck arrived at Awak, all of the riders, except Hartman, got out. Hartman then went to his house but quickly returned to the group. As the group got out of the truck, Mrs. Amor, a neighbor, heard some noises for a few minutes. The group headed down the road toward the nahs, although not against the victim's will. The court found that she did not enter the nahs of her own free will in great part based upon statements made by codefendants Ladore and Primo. By the time she entered the nahs, Hartman was there and played "a force in requiring her to go inside that nahs."1 (Trial transcript at 998: 5-6. All references designated by : are to the indicated trial transcript page and line number.).

The court concluded that the victim's testimony concerning what happened in the nahs was true. She identified Hartman as the first person who had sex with her against her will. The court noted Ladore's statement "that forceful sexual conduct was taking place and that he did not know whether she consented

The court also considered the torn clothing as evidence that the sexual acts were against the victim's will as well as Mrs. Amor's testimony that she heard screaming and saw the victim's cut and bruises. (999: 25; 1000: 1-7). According to the court Hartman, "by his own statement," admitted aiding and abetting. Further, the victim testified that Hartman took her clothes off while she was held by others, one of whom was Ladore. "The fact of disrobing [her] [was] assistance to the other parties... The fact that Mr. Hartman subjected [her] to his own will in the presence of the others was also useful in breaking her will...[and] ability to resist and in encouraging the others."

At trial Hartman testified he had consensual intercourse with the victim. Co-defendants Ladore and Primo did not testify. Their statements given to the police were admitted into evidence. In these statements each admits sexual intercourse with the victim.

The record reflects that on July 11, 1989 the court entered an order appointing Hartman's counsel. Because of the conflict, the public defender could not represent all three defendants. On the same date the court also set the trial for August 2, 1989.

Because he was off island, Hartman's counsel did not get notice of the appointment until July 24, at a time when he was in Chuuk. He returned to Pohnpei the next day and thus had five working days to prepare for trial. On July 28 he filed a motion requesting a continuance of one week. The motion was supported by a memorandum of law and an affidavit. The grounds set forth were uncontested: the late notice and consequent brief time for investigation and preparation; his inexperience - having never tried any case, civil or criminal; the gravity of the accusations; the complexity of possible defenses; his lack of staff which necessitated using volunteer translators which inhibited his preparation and access to witnesses; and his inability to confer with co-counsel because they were otherwise occupied. Only the government opposed the motion, on the ground that the complaining witness had made plans to leave Pohnpei. The court granted a two day continuance at the hearing on the motion on August 1, 1989.

On August 4, 1989, prior to trial beginning that day, Hartman began his presentation of his motion to suppress his out-of-court statement. Ladore attempted to join in the motion, saying that the two defendants were "similarly situated." The trial court refused to allow him to join in the motion on the ground that Ladore's time for pretrial motions had passed.

the police station. He was arrested and informed of his right to counsel and of his right to remain silent. He waived his right to counsel. He was not questioned at that time but remained overnight in the jail. The following day, after his rights were again read to him, he waived his right to counsel and his statement was taken.

Ladore objected to the admission of his statement at trial on the ground that the defendant was not informed of his right to silence or to counsel. His counsel urged a presumption that the rights were not given because no written form was produced. The court overruled the objection on the ground that the matter was untimely raised, and that the rights were given.

A. First we examine whether the joint trial of three co-defendants, two of whom made admissions to the police which were admitted into evidence, deprived each of them of the right of confrontation as guaranteed by the constitution. Although we hold that a severance of their trials was not required, we have carefully examined the trial court's findings and are presented with the possibility that the trial court may have impermissibly used information obtained from the out-of-court admissions as evidence against the co-defendants. Thus we remand the case for further findings specifically with respect to the court's use of the out-of-court statements in determining the guilt of the defendants.

B. We next examine whether in a prosecution for aggravated sexual assault, aggravated in that it is alleged that each defendant was aided and abetted by one or more, it is required that the specific acts of such aiding and abetting be alleged. We conclude that 11 F.S.M.C. 304(4) does not require the prosecution to allege the specific acts committed by the aider in assisting the principal actor.

C. We also examine whether Hartman's right to counsel was denied by the court's denial of a continuance motion, which request was made to give his counsel adequate time to prepare Hartman's defense. In the absence of any showing in the record or representation by counsel of resulting prejudice or ineffectiveness of counsel because of the denial, we cannot find that the court abused its discretion.

D. We further review whether the court improperly admitted Ladore's and Primo's in-custody statements into evidence. This question is remanded to the trial court for entry of findings as to whether the defendants waived their rights to silence.

The three defendants made statements to the police. Hartman's pretrial motion for the suppression of his statement was granted. Because of the statements, each defendant moved pretrial for a severance of his trial from the trial of the remaining two defendants, relying particularly on Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). In Bruton, the Supreme Court held that the admission of a codefendant's confession which implicated a defendant at a joint trial constituted a violation of the Confrontation Clause, even though the trial court gave clear, concise and understandable instructions to the jury that the confession could only be used against the codefendant and must be disregarded with respect to the defendant. In the present case, the trial court denied the motions to sever. At trial, neither Ladore nor Primo testified and their out of court statements were admitted. Both Hartman and Primo appeal the court's denial of their severance motions.

Our constitution provides a criminal defendant with the right to be confronted by his accusers. FSM Const. art. IV, § 6. Confrontation in this context means the right to cross examine the witness. A statement cannot be crossexamined; consequently, the court is forbidden to consider as evidence against a defendant any part of a statement of a nontestifying codefendant which inculpates the defendant.

The question presented is whether a judge hearing a statement of a codefendant which implicates a defendant can disregard that part insofar as the guilt of the defendant is concerned. The U.S. Supreme Court in Bruton concluded that jurors could not. We have no case referred to us that establishes a like rule for trials before a judge. Instead, the cases cited to us concerning trials by judges were those in which the judges did consider the codefendant's statement as evidence against the defendant. Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986); United States v. Longee, 603 F.2d 1342 (9th Cir. 1979).

It is indeed very hard to believe that a jury will, or for that matter can, in practice observe the admonition. Possibly it would be extreme to say that nobody can ever so far control his reasoning that he will not in some measure base his conclusion upon a part of the relevant evidence before him, that relatively few persons have any such power, involving as it does a violence to all

Although we have carefully considered the defendant's contention regarding the potential danger and prejudice presented when a codefendant's inculpatory statement is admitted into evidence, we will not adopt a per se rule of severance at this time. We hesitate to limit the broad discretion afforded the trial judge pertaining to joinder under FSM Crim. R. 14. In addition many problems can be eliminated by a redaction of parts of the inculpatory statements referring to codefendants who are jointly tried.3 See Bruton, 391 U.S. at 134 & n.10, 88 S. Ct. 1626 & n.10, 80 L. Ed. 2d at 484 & n.10; A.B.A. Standards, ch. 13, § 13-13.2(a).4

The aggravating element alleged as to each defendant is that each defendant, "while being aided and abetted by one or more of the other defendants," committed the sexual assault. The specific acts constituting the aiding and abetting were not alleged.

Hartman and Ladore moved pretrial for a dismissal of the aggravated sexual assault allegations on the ground that 11 F.S.M.C. 301 requires the prosecution to plead the specific acts which constitute the aiding and abetting. We begin our analysis by examining the language and legislative history of section 301(4). We must first determine whether that section applies to the present circumstances. In pertinent part section 301 provides:

(4) No person may be convicted under this section unless the information specifically alleges that the defendant aided and abetted and that said information provides specific acts constituting the means of aiding and abetting so as to afford the defendant adequate notice to prepare his defense.

Section 301(4) does not, by its language, reach the defendants; this section premises one's criminal liability if one is an aider and abettor. Count I(a) of the information charges the defendants as principals, not as aiders and abettors. In other words each was alleged to have acted as a principal, aided and abetted by others. Therefore, the defendants' reliance on Section 301(4) is misplaced. Sub-section 4 is unambiguous in its language and the Congressional history5 is consistent: the purpose of this pleading requirement is to inform one who is criminally accused that the basis of his

We examine the allegations pled in Count I(b) to illustrate this. In Count I(b) (of which the defendants were acquitted) each of the defendants was accused of aiding and abetting the other in the sexual assault. As required by Section 301(4), the government alleged specifically the acts of aiding as to each defendant. Thus in Count I(b) the defendants are not charged as principals, in contrast with the allegations in Count I(a). Had the acts not been specifically pleaded in Count I(b), a violation of 301(4) would have occurred.

We hold that defendants who are charged with being aided and abetted by others are not entitled to an allegation specifying the acts constituting the aiding and abetting pursuant to 301(4). However, we do not hold that criminal defendants can be denied access to such information. FSM Crim. R. 7(f) provides for the filing of a bill of particulars. The purpose of the bill of particulars is to inform the defendant sufficiently about the charge so he can prepare his defense and can avoid surprise.

Concerning the trial court's denial of the continuance motion requested by Hartman, the defendant argues that the denial itself, under all of the circumstances, deprived him of his constitutional right to counsel. The trial court failed to consider whether the lawyer's defense at trial could be effective. We will examine both issues. The standard of review is whether the trial court abused its discretion.

Art. IV, section 6 of the FSM Constitution provides that a "defendant in a criminal case has a right...to have counsel for his defense..." The Journal of the Constitutional Convention states that the provision is intended to provide the accused "effective representation." This term is defined not only as the "assistance of competent and loyal counsel, but the presence of legal counsel both in the preparation for, and conduct of, the trial." II J. of Micro. Con. Con. 803.7

In assigning error before us, the defendant relies upon the circumstances as they existed on July 28, 1989 when counsel filed his motion for continuance. Hartman relies upon the criteria set out in United States v. LaMonte, 684 F.2d 672 (10th Cir. 1982) (time afforded for investigation and preparation, experience of counsel, gravity of the charge, the complexity of possible defenses, and the accessibility of witnesses to counsel.)8 Here, Hartman contends that these circumstances, standing uncontested, are sufficient to establish that the defendant would receive ineffective assistance of counsel.

Defendant cites no other authority in support of his position that the circumstances set out in the lawyer's affidavit alone are sufficient to establish that the defendant would be deprived of effective assistance of counsel if the trial were held as then set (August 2, 1989). We cannot reach this conclusion.

2. Neither in written nor oral argument on appeal did the defendant point to any acts by the defense lawyer which demonstrated deficient performance or acts that otherwise prejudiced the defendant. In this regard we note that appellate counsel is not the same lawyer who defended Hartman at trial. Thus an independent evaluation of this point could have been made by counsel on appeal.

3. On July 31, 1989 defense counsel filed a motion to dismiss the information and to sever the trial of the defendant. The motion was supported by a 16 page memorandum. Prior to these matters being heard on August 1, 1989, defense counsel opposed in part a motion by the government to file an amended information. The amendment was prompted by the defendant's motion. Defense counsel's arguments on that day on all these matters and his motion to continue reflect his competent and thorough understanding of the case and his preparation for it.

4. On August 4, 1991 defense counsel filed a two page motion to suppress the statement that Hartman had made to the police. The motion was supported by a seven page affidavit of counsel and numerous exhibits. Before trial began on August 4, 1989 the motion was heard and granted.

5. When trial began in the afternoon of August 4, 1989 defense counsel made no objection on the ground that witnesses and translators were inaccessible to him due to a lack of trial preparation time. During trial he asked for no continuance to interview a witness or conduct any further investigation and preparation.

We note that the standard in the United States is similar. If the "case is not one in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel" (United States v. Cronic, 466 U.S. 648, 666, 104 S. Ct. 2039, 2050-51, 80 L. Ed. 2d 657, 672 (1984)), specific errors - acts or omissions - of counsel must be identified. Id., 80 L. Ed 2d 673. In our case there are no errors to which we have been directed. Nor are we able to ascertain independently from the record any prejudice resulting from the denial of the motion to continue. We conclude that the trial court did not abuse its discretion.

1. The form used for the advice of rights covers the right to counsel and the right to silence. However the waiver on the same page only seeks a waiver of one right, to wit: "Do you want us to get you counsel now?"

The objection is overruled at this point...First is that the motion to suppress at this point is not timely. It was not raised during the time set out for pretrial statements (sic) and no reason appears why it could not have been raised. The absence of such statement could have been apparent all along.

3. With respect to Primo, at trial his counsel objected to the admission of his custodial statement, but stated that he would "accept the fact that those admissions will be coming into evidence against my client." 157: 18-19. The court overruled the objection on the ground that the statement was a record of Primo's admissions (163: 17-20) and the prosecution stated the confession would only come in against Primo. 158: 15-18.

We decide this issue based on our holding in Moses v. FSM, 5 FSM Intrm. 156 (App. 1991). With respect to Ladore and Primo we remand this issue to the trial court so it may enter its findings as to whether they waived their right to remain silent.

The trial court gave lengthy findings as to the incidents in the nahs, which we have summarized in section I. The findings were not separately given as to each defendant, but rather were rendered in a narrative form.

Although the court during trial stated that statements by Ladore and Primo were only admissible against the declarant, the findings are clearly susceptible to an inference that the trial court used the statements as evidence against one or more of the declarant's codefendants9 .

Furthermore, the findings do not address two elements of the offense: the first is that the principal committed the sexual assault while being aided and abetted; and the second is that the aider must intend to assist the principal.

The statutory definition of aggravated sexual assault does not require that the principal act while being aided. (We give "while" its usual meaning of "contemporaneous," or "at the same time.") However the amended information so accused the defendants, and thus must be proved. FSM v. Boaz (I), 1 FSM Intrm. 22 (Pon. 1981).

Second, aiding and abetting requires a mens rea of intention. See generally, Black's Law Dictionary 16 (5th ed. 1979), which defines "accomplice" as one who "knowingly, voluntarily and with common intent unites with the principal offender in the commission of a crime" and cites Model Penal Code Section 2.06(3) ("A person is an accomplice of another... if...with the purpose of promoting or facilitating the commission of the offense, he...aids...such other person in planning or committing it." Id. Thus a person may do something that somehow assists a principal, but he is not an aider unless his purpose was to aid the other in the commission of the crime.

The court said, "it is clear, however, to this Court that [the victim] did not enter the nahs of her own free will. In great part this conclusion is based on the statements made by defendants William Ladore and Kasiano Primo." (997: 16-19). The court continues that the statement of Kasiano Primo was that she was taken there by Paulus Hartman, that she refused to enter the nahs, and that Paulus Hartman "lifted her and took her into the nahs." (997: 19-24).

It is also unclear what the trial court intended, as to findings, when it said, "I note also William Ladore's statement that [the victim] screamed saying that she wanted to go and spend the night at Deacon Amor's house and Kasiano and Kapir told her that she will spend the night at the nahs." (998: 6-9). The finding is drawn almost word for word from Ladore's statement. But it is ambiguous as to against whom is it being used, and for what purpose the words of Kasiano and Ladore were admitted.

It appears from the findings that the aid Ladore received was from Paulus Hartman: that his disrobing of the victim was of "assistance to the other parties" (1000: 25) and that his subjecting the victim "to his own will in the presence of others was also useful in breaking her will to resist...and in encouraging others to do the same with her." (1001: l3-6).

The findings are troublesome in that the defendants were acquitted of aiding and abetting. Most striking is that Ladore was charged with holding the victim for Hartman. In his findings as to Hartman the court said that Hartman took the victim's clothes off while she was being held by others, one of whom was Ladore. It appears that the trial court found beyond a reasonable doubt in convicting Hartman of aggravated sexual assault that Ladore aided by holding the victim, but did not find beyond a reasonable doubt that Ladore was guilty of aiding.

The comments as to the elements of intent and contemporaneousness similarly apply to the need for specific findings as to this defendant. The findings should also reflect whether the statement of Ladore was used against Primo.

1. We specifically refer to this excerpt of the trial court's findings because of our uncertainty as to its meaning, particularly with respect to what facts the trial court considered in characterizing Hartman's presence or conduct as a "force" in requiring the victim to enter the nahs. In light of our order, infra, the trial court's clarification of the excerpt would be helpful.

2. We note that Judge Hand authored the lead opinion which affirmed a conspiracy conviction based in part upon evidence admitted by the trial court of a codefendant's statement. The statement was admitted against the declarant with jury instructions that it should be disregarded in deciding the guilt of the codefendants.

3. In Part III (E) below we discuss the possibility that the court considered improperly parts of the statements, a question distinct from whether there should always be severance in cases in which a nontestifying codefendant's statement implicating a defendant is to be introduced.

4. When a defendant moves for severance...the court should determine whether the prosecution intends to offer the statement in evidence as part of its case in chief. If so, the court should require the prosecuting attorney to elect...(i) a joint trial at which the statement is not admitted into evidence; (ii) a joint trial at which the statement is admitted...only after all references to the moving defendant have been deleted provided that, as deleted, the statement will not prejudice the moving defendant; or (iii) severance of the moving defendant.

5. SCREP No. 4-198, J. of 4th Cong., 4th Reg. Sess. 270 (1986) outlines the origins of 301(4): "Through research and investigation, the committee learned that this bill stems from a real case, Criminal Case No. T4-1982. The crux of the complaint in Criminal Case No. T4-1982 was that the defendants were never put on notice that they were charged with the offense of aiding and abetting as provided for under section 301 of title 11 of the Code of the Federated States of Micronesia."

Appellate case number T4-1982 is reported as Engichy v. FSM, 1 FSM Intrm. 532 (App. 1984). At 542-44 of the opinion, the court recites the repeated actual notice the defendants had, prior to any evidence being received, of the government's theory that they were being charged for aiding and abetting the acts of violence.

6. "Aiding and abetting" is not a substantive offense (Engichy v. FSM, 1 FSM Intrm. 532, 542 (App. 1984)), although the Congressional committee report twice speaks of the "offense of aiding and abetting," and that phrase is sometimes heard in speech. The underlying concept is that one who aids and abets, is just as guilty of the substantive crime as is the one who commits it as a principal.

7. The Sixth Amendment of the U.S. Constitution ("In all criminal prosecutions, the accused shall enjoy the right...to have assistance of counsel for his defense") has been given the same meaning: "It has long been recognized that the right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970).

8. In LaMonte, the lawyer was appointed to represent the defendant on the day set for her trial, and the ground of his motion was to permit him time to prepare. It was held that the denial of the lawyer's motion to continue the trial of the case did not deprive the defendant of her constitutional right to the assistance of counsel, although the action of the trial court was not condoned.

9. E.g., "It is clear that [the victim] did not enter the nahs of her own free will. In great part this conclusion is based on statements made by Ladore and Primo... Primo said in his statement that [the victim] did not want to go to the nahs and that she was taken there by... Hartman (997: 16-22); I note also Ladore's statement that... [Primo] told her she spend the night at the nahs (998: 6-9); [Ladore] stated in his statement that forceful sexual conduct was taking place (998: 23-24); Primo's statement was essentially to the same effect (999: 1-3)."