FSM 5 Intrm. 281-293

FSM SUPREME COURT

APPELLATE DIVISION

Cite as Welson v. FSM,

5 FSM Intrm. 281 (App. 1992)

[5 FSM Intrm. 281]

JACQUELINE WELSON,

Appellant,

FEDERATED STATES OF MICRONESIA,

Appellees.

FSM APP. P3-1989

OPINION

Argued: February 15, 1990

Decided: August 6, 1992

Before:

Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;

Hon. Edwel H. Santos, Temporary Justice, FSM Supreme Court*;

Hon. C. Guy Powles, Temporary Justice, FSM Supreme Court**

*Chief Justice, Pohnpei State Supreme Court

**Former Justice, Western Samoa

[5 FSM Intrm. 282]

APPEARANCES:

For the Appellant: Michael K. Powell, Esq.

Office of the Public Defender

P.O. Box PS-174

Palikir, Pohnpei FM 96941

For the Appellee: Daniel J. Berman, Esq.

State Attorney's Office

Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Evidence

Judicial notice may be taken on appeal. Welson v. FSM, 5 FSM Intrm. 281, 284 (App. 1992).

Appeal and Certiorari

In reviewing the sufficiency of evidence to warrant conviction, the issue is whether the evidence, viewed in a light most favorable to the finding, would justify a finder of fact, acting reasonably, to conclude that guilt was established beyond a reasonable doubt. Welson v. FSM, 5 FSM Intrm. 281, 285 (App. 1992).

Criminal Law and Procedure - Homicide

A necessary element of proof in a prosecution for the homicide of an infant is that the infant was born alive. Welson v. FSM, 5 FSM Intrm. 281, 285 (App. 1992).

Criminal Law and Procedure - Standard of Proof

Proof beyond a reasonable doubt is not established in a case in which only one witness testifies as to the presence of an element of the crime (live birth) and he expresses assumptions and has difficulty in being exact or sure, and states that the infant was either born alive or its heart was beating. Welson v. FSM, 5 FSM Intrm. 281, 286 (App. 1992).

Criminal Law and Procedure - Standard of Proof

In a case in which the existence of an element of the crime (live birth) was not established because of the uncertainty of the evidence on this point, and in which a review of all the evidence yields the possibility that the infant was dead at the time the defendant disposed of the body, a reasonable doubt would exist in the mind of the trier of fact as to the element of live birth. Welson v. FSM, 5 FSM Intrm. 281, 287 (App. 1992).

* * * *

[5 FSM Intrm. 283]

COURT'S OPINION

Introduction

The defendant appeals her conviction of manslaughter arising out of the death of her infant child.

We are presented with the issue of whether there was sufficient evidence presented at trial upon which the court could have found beyond a reasonable doubt that the child was born alive. We conclude that there was not sufficient evidence and reverse.

At trial the witnesses for the government were the physician who examined the dead infant, the person who discovered the body and the investigating policeman. The defendant was the sole defense witness.

After early morning mass on December 26, 1988, a dead male infant was found in an outdoor overland toilet (a benjo) in Kolonia, Pohnpei. The infant was taken to the hospital where the Director of Health Services, Dr. Aminis David, examined the child. Dr. Aminis David is a general practitioner of 22 years experience with special training in ophthalmology. He was chief of staff of the hospital for five years prior to becoming Director of Health Services. No autopsy was performed.1 The physician determined that the cause of death was either bleeding from the cut but unligated umbilical cord, or suffocating from the cord wound tightly twice around his neck.

The physician gave his opinion at trial that the child was born alive or his heart was beating based on his observation

a) that the infant was a full term, normal baby without trauma,

b) that there had been a settling of the blood in parts of the body (livor mortis or hypostasis), and

c) that his skin showed no staining of the skin from fecal matter had the child been dead for a long time in the womb.

The physician said the head of the baby was molded (elongated) a result from not less than six hours of good labor, an occurrence when the delivery is the mother's first. He also stated that the degree of stiffening (rigor mortis) indicated a death occurring not less than six hours prior to his examination.

[5 FSM Intrm. 284]

An investigation on the same day revealed that the defendant was the mother of the child. She gave a full statement to the police which was admitted into evidence. She stated that she had given birth a few feet outside her house, near the benjo, after 10:00 p.m. She said that the baby did not cry, move or show any signs of life in her hands. The defendant said that she put the baby in the benjo because she was afraid of her parents' anger. They did not know that she was pregnant.

At trial, the defendant added that she was unsure of the time of birth because she was not wearing a watch. The birth was long and painful and she lost consciousness immediately, "probably for hours." Although her statement to the police records her as having said that she placed the baby in the benjo "maybe after five (50) [sic] minutes or so after the child had come down"2 she would not confirm that statement at the trial. She was emphatic that she had passed out and fallen to the ground and did not know what the time was when she regained consciousness and moved the baby to the benjo, it showing no signs of life.

The court found the defendant guilty of murder - having caused the death of the child recklessly under circumstances manifesting extreme indifference to the value of human life. This finding was reduced to manslaughter because the trial judge found that she acted while in a state of extreme emotional disturbance for which there was a reasonable excuse.

The conviction was based on the trial court's finding that although the cause of death could not be stated (bleeding or suffocation) "the act of putting the baby in the benjo at the time the baby was alive was the specific human cause of death."

A. Judicial Notice. On appeal the parties consent to our taking judicial notice of medical treatises. FSM Evid. R. 201 (f) states that notice can be taken "at any stage of the proceedings." Although previously we have made no decision whether or not judicial notice may be taken on appeal, we note that the comment of the Advisory Committee on the identical U.S. rule, from which ours is drawn, provides that judicial notice may be taken on appeal. U.S. cases are in accord.Government of the Canal Zone v. Burjan, 596 F.2d 690 (5th Cir. 1979).

However, although we find that the sources to which we have been directed provide some background and context, no specific source has caused us to reach our conclusion. Instead our conclusion is reached by a careful examination of the record of the proceedings in the trial court.

[5 FSM Intrm. 285]

B. Standard of Review. We must consider whether the evidence, viewed in a light most favorable to the finding, would justify a finder of fact, acting reasonably, to conclude that the guilt was established beyond a reasonable doubt. Engichy v. FSM, 1 FSM Intrm. 532 (App. 1984).

C. Live Birth. In a prosecution for the homicide of an infant, it must be proven, as a necessary element, that the infant was born alive. Annotation, Proof of Live Birth in Prosecution for Killing Newborn Child, 65 A.L.R.3d 415 (1975); W. LaFave & A. Scott, Criminal Law 513 (1972).

The general standard to establish a live birth is that the child had a separate and independent existence from its mother. 65 A.L.R.3d at 417.

Although not always determinative, the basic test is whether the child breathed. Both parties agree on the basic character of this inquiry. The manner in which medical science determines whether lungs have ever been inflated with air is a hydrostatic test to see if they float. This test alone is not conclusive and all the surrounding circumstances must be weighed. Id. at 417-20.

In this case the physician did not state what criteria he was using when he gave his opinion that the child was born alive. That is, he did not give his definition of "live birth." He only said that because of the child being full term, normal and without trauma, and because of the settling of the blood he believed the child was alive or his heart was beating at the time he was placed in the toilet.

D. Analysis of Evidence.

The findings of the trial court rely entirely upon the testimony of the physician in reaching the conclusion that the child was born alive. The physician was not asked on December 26, 1988, whether the child was born alive. The child was brought to him for an examination by a medex and the lay person who had discovered the infant. The physician was thus not forewarned of criminal proceedings where the issue of live birth would be an element. We cannot assume that he would have known that this issue of whether the child was born alive would be needed in the event of a prosecution.

At trial Dr. David was asked his opinion as to "whether this infant was born alive or dead." He said, "Again, on the assumption I made there from the presence of liver [sic] mortis, but it is difficult to be exact or be sure that the baby was alive during the time of birth."

He was also asked his opinion as to whether the baby was alive or dead when placed in the toilet. He said, ". . . I think the child was still, at least, the heart was still beating when the child was placed there."

The question was asked a third time by the prosecutor:

"Do you still believe that the baby was alive, or the heart was beating when it was placed in the benjo?" The physician answered, "Yes."

[5 FSM Intrm. 286]

On cross examination he was asked, "Dr., you really have no basis to form the conclusion that the baby was alive when it was left in the overland benjo as if you were told?"

He answered, "I cannot prove it. But from my examination . . . I cannot find any signs of the baby being suffocate [sic] in the belly, in the womb, no sign of trauma. I assumed -- with a normal looking baby, I assumed the baby was born either alive or the heart could have been beating."

We find that these answers lack the certainty upon which belief beyond a reasonable doubt could be based.

We have not been referred to any case or medical authority that the beating of the heart alone is sufficient to conclude a live birth occurred. We find that consistent with the physician's use of the disjunctive that the infant was alive or his heart was beating.3

It is helpful to consider further the reasoning which the prosecution urged the physician to adopt. In doing so, we note that, as an experienced and professional medical witness, Dr. David was careful to qualify most of his observations with the uncertainty which he felt was appropriate. Indeed, much of his testimony leaves the impression that he wished to signal that uncertainty to the court.

The prosecution attempted to establish that the child was born alive late in the evening and placed soon afterwards in the benjo where it subsequently died. However, apart from observing that the child appeared normal and free of staining, the testimony of Dr. David which supported the prosecution's case related only to the period during which death could have occurred. Based on his external examination of the child's body at 9 a.m. on December 26, he concluded from the extent of rigor mortis that death had probably occurred not less than six hours prior to the examination (i.e. before 3 a.m.) and not earlier than ten hours prior to the onset of rigor mortis in the upper limbs (about which latter point Dr. David was not clear) which would put the

[5 FSM Intrm. 287]

earliest time of death at about 10 p.m.

As to the significance of livor mortis, Dr. David was careful to say, as we have noted, that the extent of this phenomenon did not enable him to be sure whether or not the baby was alive at birth. The observed settling of the blood indicated that the body had lain in the same position for some time soon after the heart had stopped beating. The physician was unable to say with any accuracy for how long the body had lain in the same position. In other words, Dr. David was able to give evidence that his findings as to both rigor mortis and livor mortis were consistent with the body having been found dead in the benjo - but he could not directly substantiate the first part of the prosecutor's proposition (that the child was born alive). It seems to us that it would have been difficult for him to do so, in the particular circumstances of this case, without an autopsy to examine the lungs.

Usually, medical evidence surrounding the events leading up to, during and immediately following the birth of a child can be supported by the testimony of the mother and others who have assisted her. In this case however, the defendant gave birth to her first child alone and she said she fainted immediately after what the physician said would have been a long process.

On the evidence of Dr. David, death prior to 48 hours before birth can be ruled out, and, because of the absence of fecal staining, suffocation caused by the umbilical cord is unlikely to have occurred in the womb, although he did not say how long prior to birth such suffocation might have occurred without evidence of staining. Suffocation in the latter stages of birth or on the ground afterwards cannot be ruled out. After birth, the baby could have bled to death while the mother was unconscious.

Looking carefully at the evidence relating to livor mortis, we note that after the heart stops beating, the blood begins to settle to the lowest points of the body and that lividity (skin discoloration) begins to appear in 20 minutes to four hours. It deepens in hue and becomes 'fixed' in four to six hours. Lividity takes longer to appear, progresses more slowly and may not develop significantly in anemic individuals or where there has been an excessive loss of blood. If the body is moved before the blood settles and becomes 'fixed', the subsequent evidence of discoloration is also less reliable.

In the light of our review of all the testimony and the medical texts referred to, we believe that it is possible to conclude that the child was dead when the defendant placed it in the benjo. Whether the moderate extent of livor mortis observed by Dr. David was caused while the body lay on the ground during its mother's loss of consciousness or while it lay in the benjo, or whether the settling began on the ground and did not result in discoloration until the body was moved to the benjo, is speculation.

We acknowledge that the infant could have been born alive and that defendant could have caused his death. However the testimony is susceptible to a contrary conclusion. It is the existence of this alternative that creates the reasonable doubt that would exist in the mind of the trier of fact.

[5 FSM Intrm. 288]

The minority opinion refers to the seriousness of "discarding a new born babe in a benjo," infra at 289, and what the minority calls "inculpatory facts", namely that the defendant "concealed" the pregnancy and the birth from her parents, and the fact of her "discarding" the baby. Infra at 290. Further importance is attached to the shame of the unmarried mother and the hiding of the baby in the remarks made as to sentence.

We do not consider that the evidence (such as it is) of the state of mind of the defendant when placing the baby in the benjo assists the Court in its task of deciding whether the evidence of live birth was sufficient. The defendant may have violated community standards in seeking to conceal her pregnancy and its consequences, but she was charged with murder, not concealment.

For the reasons stated, the judgment is reversed and remanded to the trial court for a dismissal of the information.

* * * *

DISSENTING OPINION

EDWEL H. SANTOS, Temporary Justice:

The basic issue presented in this appeal is "whether there was sufficient evidence presented at the trial level upon which the trial court could have found beyond a reasonable doubt that the defendant's child, the subject matter of the criminal charge against the defendant, was born alive." The majority concluded that there was no sufficient evidence presented, thus reversing the finding of the trial court.

After hearing testimony of witnesses and analyzing the evidence presented at trial, the trial court found the defendant guilty of murder - having caused the death of her new born child recklessly under circumstances manifesting extreme indifference to the value of human life. The trial court's finding was reduced to manslaughter because the trial judge found that the defendant acted while in a state of extreme emotional disturbance for which there was a reasonable excuse.

In reaching its finding the trial court relied entirely upon the testimony of Dr. Aminis David, the then Director of the Pohnpei State Department of Health Services and a local physician of 22 years experience who testified on behalf of the Government. Dr. David was asked at the trial "whether the infant was born alive or dead." His response was: "Again, on the assumption I made there from the presence of liver (sic) mortis, but it is difficult to be

[5 FSM Intrm. 289]

exact or be sure that the baby was alive during the time of birth." Dr. David was further asked "whether the baby was alive or dead when placed in the toilet. He replied, ". . . I think the child was still, at least, the heart was still beating when the child was placed there." And the prosecutor asked Dr. David for the third time: "Do you still believe that the baby was alive, or the heart was beating when it was placed in the benjo?" Dr. David responded, "Yes."

On cross examination Dr. David was asked, "Dr., you really have no basis to form the conclusion that the baby was alive when it was left in the overland benjo as if you were told?" Dr. David responded, "I cannot prove it. But from my examination . . . I cannot find any signs of the baby being suffocate (sic) in the belly, in the womb, no sign of trauma. I assumed -- with a normal looking baby, I assumed the baby was born either alive or the heart could have been beating."

In view of the foregoing testimony as reflected in the record, the majority concludes, "We find that these answers lack the certainty upon which belief beyond a reasonable doubt could be based." Supra at 286.

The significance of this unprecedented and unanticipated event (discarding a new born babe in a benjo) happening in a small community should not be lightly dismissed. Under the test enunciated in Engichy v. FSM, 1 FSM Intrm. 532 (App. 1984) the function of the appellate court in this regard is to determine whether the testimony as presented before the trial court was sufficient enough to convince the trial court beyond a reasonable doubt that the infant in question was born alive.

The majority opinion says at page 10, "In the light of our review of all the testimony and the medical texts1 referred to, we believe that it is possible to conclude that the child was dead when the defendant placed it in the benjo."

In concluding, however, the majority opinion went on to say, "We acknowledge that the infant could have been born alive and that defendant could have caused his death. However the testimony is susceptible to a contrary conclusion. It is the existence of this alternative that creates the reasonable doubt that would exist in the mind of the trier of fact." Supra at 287.

With all due respect to the conclusion reached by the majority, I find it quite difficult to reach the same conclusion. Notwithstanding the information contained in the medical text referred to, nor any influence it

[5 FSM Intrm. 290]

might have cast on the conclusion of the majority, what was available for the trial court to consider in making its determination was the testimony of those witnesses who testified at trial and the out-of-court statement of the defendant received in evidence, considered in the light of the Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia. To require more, considering the circumstances and the degree of sophistication of our young nation, would in my view be impracticable and unreasonable.

If the defendant's out-of-court statement, together with her testimony in court are correct, the natural conclusion drawn therefrom would be that she gave birth to her child alive and did not know that the baby was alive, "the baby did not cry, move or show any signs of life in her hands." The fact that the defendant concealed her pregnancy and her giving of birth to her baby from her parents, coupled with the fact of her discarding the baby, whether dead or alive, in someone else's overland benjo are inculpatory facts which, when considered along with the other circumstantial evidence and the opinion of Dr. David, justified guilt beyond a reasonable doubt. If the defendant was truly afraid of her parents' anger, the natural thing for her to do under the circumstances was to take the baby to her "grand mother", and if the baby was in fact dead, to ask the grand mother to bury the baby in a natural manner. An overland benjo is not a burial place in Pohnpei. One would choose to bury a dead person in an overland benjo mainly if he had caused the death of that person, and he intended to conceal that fact. The circumstances surrounding the event of this case strongly suggest that the baby was born alive, and was placed in someone else's overland benjo still alive, believing that someone else may find the baby alive so to raise it. Unfortunately the length of time the baby was placed and remained in the overland benjo from approximately 10:05 p.m. on the eve of Christmas, December 25, 1988 to approximately 8 a.m. on December 26, 1988 was too long a period for the baby to remain alive for someone to redeem it.

The trial court observed the tones, hesitations, inflections, mannerisms and general demeanor of those who testified before it. Dr. David determined that the "cause of death was either bleeding from the cut but unligated umbilical cord, or suffocating from the cord wound tightly twice around his neck.

On the basis of the testimony presented before the trial court two possible conclusions could result: the infant was born alive or his heart was still beating. Despite the fact that Dr. David did not give his definition of "live birth", there is strong inference which the trial court was entitled to draw from the testimony of Dr. David that is, that "life exists when the heart is still beating."

The question raised on cross examination: "Dr., you really have no basis to form the conclusion that the baby was alive when it was left in the overland benjo as if you were told?" points directly to the time the baby was placed in the overland benjo and thereafter. The answer given by Dr. David: "I cannot prove it. But from my examination . . . I cannot find any signs of the baby being suffocate (sic) in the belly, in the womb, no sign of trauma. I

[5 FSM Intrm. 291]

assumed -- with a normal looking baby, I assumed the baby was born either alive or the heart could have been beating" points to the time of birth up to the time the baby was placed in the overland benjo. The physician's testimony as recited here supports a finding of live birth of the baby victim in this case, thus justifying the trial court conclusion that "the act of putting the baby in the benjo at the time the baby was alive was the specific human cause of death." This, in my view, is substantial evidence upon which the trier of fact, acting reasonably and under the unprecedented circumstances of the case, could be convinced that the child was born medically alive and that guilt was established beyond a reasonable doubt and to a moral certainty. The obligation of the appellate tribunal is to review the evidence in the light most favorable to the trial court's factual determinations. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1941), as adopted in Engichy, supra. The standard of review extends to inferences drawn from the evidence as well. Id.

Absolute certainty not necessary

For want of precedent in the jurisdiction of our young Federated States of Micronesia nation determining how much "certainty" is required to sustain the proof beyond a reasonable doubt in criminal cases, I am obliged to look to foreign decisional laws for assistance on this point. "Proof beyond a `reasonable doubt' does not mean that the guilt of the accused or any other fact shall be established with the absolute certainty of a mathematical demonstration, but the facts must be proved to a moral certainty." State v. Blackburn, 75 A. 536, 541 (Del.).

In the case of State v. Brinte, the court stated,"Proof beyond a `reasonable doubt' does not mean that the guilt of the accused or any other fact shall be established with the absolute certainty of a mathematical demonstration. Matters of fact are required to be proven merely to a moral certainty. To require more in dealing with human conduct and the ordinary affairs of life would be impracticable and therefore unreasonable. It is sufficient that any disputed fact relating to these shall be established by that amount of competent or appropriate evidence which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a man of common sense and ordinary discretion, and so to convince him that he would act upon that conviction in matters of the highest concern and importance to his own interest. `Reasonable doubt,' in the legal sense, therefore, does not mean a vague, speculative, or whimsical doubt or uncertainty, nor a merely possible doubt of the truth of the fact to be proved." State v. Brinte, 58 A. 258, 264 (emphasis in the original).

I am of the conviction that the trial court in the instant case should be able to pronounce that guilt was proven to a moral certainty, and that the appellate court, applying the test given in Engichy, should defer to the trial court's pronouncement.

[5 FSM Intrm. 292]

The Judicial Guidance Clause

The Constitution of the Federated States of Micronesia directs the courts of this nation to render their decision "consistently with the Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia", art. XI, §. 11.2 "The wording `. . . social and physical configuration of Micronesia' means that the courts shall consider cases on the basis of pertinent aspects of Micronesian society and geography rather than considering those aspects of some outside and possibly quite different society." II J. of Micro. Con. Con. 822. "The intent and purpose of [the judicial guidance provision] is that . . . Micronesian courts base their decisions not on what has been done in the past but on a new basis which will allow the consideration of the pertinent aspects of Micronesian society and culture." Id. It is thus of paramount importance that the appellate court determines whether the trial court's finding of guilt in the instant case satisfies the pertinent aspects of Micronesian society and culture, more particularly that of the Pohnpeian society.

The accused in this case is a citizen of Pohnpei and of the Federated States of Micronesia. She lives in and is a part of a community whose general perceptions about a living soul (body) is that where the heart of a soul is still beating, life still exists in that soul. This perception of life applies equally to a new born baby. Notwithstanding the lack of a definition of the term "live birth" given by Dr. David, his opinion testimony based on: "no signs of the baby being [suffocated] in the womb, no sign of trauma, a normal looking baby", alludes to this Pohnpeian perception of a living person. The finding of the trial court is consistent with this general perception of the Pohnpeian community about the existence of life in a body where the "heart is still beating."

Of additional concern is the colloquy between the trial judge and the defendant, including her relatives during sentencing held on February 24, 1989:

"COURT: I ask the -- or, do either of the relatives of the defendant that are here have anything that you would like to say?

TRANSLATOR JOHNNY: The grandmother said that she has nothing to say, and her mother [this is assumed to be the defendant's mother] said that she would like for the Court to forgive her.

COURT: Jacqueline Welson, do you have anything you would like to say?

JACQUELINE WELSON: I ask forgiveness." (Tr. of the Sentencing Proceeding, at 5-6).

[5 FSM Intrm. 293]

What was uttered by the defendant and her mother to the trial judge amounted to what is known in Pohnpeian as "soakoan pwoud" (asking for forgiveness for a wrong one has admittedly committed, which is similar to tendering an apology). It is a known part of the Pohnpeian culture that when one commits a wrong and that wrongful conduct is revealed to be done by certain identified person, the perpetrator of that wrongful conduct or one who can speak on his behalf naturally asks for forgiveness from the victim or from one who is in a position to speak for the victim. This phenomenon served as an admission of "guilty feeling" by the defendant as well as by her mother, which, considered on the side, reinforced the finding of the trial court.

Consequently, the age of the accused needs also to be considered in assessing the appropriate sanction for the offense committed. After she gave birth to her first born baby, the defendant said "she put the baby in the benjo because she was afraid of her parents' anger", because they did not know she was pregnant. Why would her parents be angry about the defendant's giving birth to her first born baby, or about her pregnancy? Again, the general perceptions of the people of Pohnpeian community is important here. An unmarried daughter brings shame to her parents when and if she gets pregnant and gives birth to a child without the daughter getting married to the putative father of that child. The accused in this instance chose, in addition to other motives, to save the face of her parents by hiding her first born baby in a benjo. Despite the meaning, purpose or intent one may ascribe to any element in the entire spectrum of events in this case, the conduct of the defendant as demonstrated in the choice she made (hiding the baby in the benjo so as to save the face of her parents) is condemnable. In my view that conduct cannot be condoned in view of the Pohnpei constitution which "acknowledges the duties and rights of children in regard to respect and good family relations as needed." Pon. Const. art. 5, § 3(2). Good family relations within Pohnpeian community require reciprocal good behavior between parent and child both within and without the family circle.

In view of the foregoing, and considering the age of the defendant, the sentence imposed by the trial court needs to be adjusted to take into account the "family obligations" provisions as stated in the Constitution of Pohnpei. The trial court may require the defendant to undergo a specified period of behavioral or mental rehabilitation and as a condition the defendant, including her parents, if appropriate, be required to declare a statement on the court record showing their remorse over the unprecedented and unfortunate conduct exhibited by the defendant in this case. And once the court is satisfied that true remorse is shown, the court may expunge the record and blot out the criminal conviction of the defendant.

I would sustain the finding of the trial court and remand the case to the trial court for appropriate action.

* * * *

Footnotes:

1. Although Dr. David testified he had been performing autopsies for 10 to 12 years, he was not asked why he did not perform an autopsy on this child when it was brought to him.

2. This passage is found in the trial transcript, p. 66, and is an answer of the defendant in her statement to police. An examination of that statement, Government's Exhibit 4, shows that the time is five minutes.

3. The minority opinion refers to the judicial guidance clause (FSM Const. art. XI, § 11), equates the general perceptions of the community with custom, and states that the "general perceptions about a living soul (body) is that where the heart of a soul is still beating, life still exists in that soul. This perception of life applies equally to a new born baby." Infra at 292.

However, the government proffered no evidence to support a finding of live birth by virtue of the heart beating. There was no evidence of a customary view of a live birth (see, 11 F.S.M.C. 108) nor was the court asked to take judicial notice of custom (FSM Evid. R. 201).

The record before us does not permit us to adopt this pivotal view of the minority (that a beating heart means, by custom, live birth).

Footnotes (Dissenting Opinion):

1. The medical text referred to and judicially noticed by the appellate court was not presented to the trial court for consideration along with the testimony of live witnesses before it. Thus the trial court was without the benefit of the information contained in the referenced medical text as well as the influence such information might have cast on the trial court's determination.

2. This provision of the constitution was amended by the 1990 Constitutional Convention by adding the following sentence: "In rendering a decision, the court must consult and apply sources of the Federated States of Micronesia." The amendment came into force on July 2, 1991.