FSM 6 Intrm. 083-093

only if the circumstances known by the defendant at the time of acting created a substantial and unjustified risk of death and he nonetheless willfully and irresponsibly accepted this risk by acting in a manner considerably different from the conduct that might be expected of a well-meaning, law-abiding citizen. Alouis v. FSM, 6 FSM Intrm. 83, 86 (App. 1993).

Reckless manslaughter as defined in the FSM Code is intended to apply to willfully irresponsible, life-threatening behavior, actions which grossly deviate from the standards of conduct that a law-abiding person in the actor's situation would observe. Alouis v. FSM, 6 FSM Intrm. 83, 88 (App. 1993).

This appeal of defendant Antonio Alouis from his conviction for the crime of manslaughter under 11 F.S.M.C. 912(1)(a) requires the Court to consider whether a taxi driver, who sees on the road ahead of him a disturbance which he knows is being caused by intoxicated, rock-throwing young men, can be said to have acted "recklessly" within the meaning of 11 F.S.M.C. 104(9) and to have committed manslaughter, when he attempts to maneuver the pickup truck through the group at a speed of some 15 to 25 miles per hour but is unable to avoid striking and killing one of the young men, who intentionally and repeatedly steps in the path of the car as the defendant tries to proceed down the road.

We conclude that under the circumstances of this case, neither the decision to attempt to drive through the group nor the defendant's failure to avoid hitting the victim constituted the reckless conduct requisite to a conviction for manslaughter.

On February 22, 1990, the defendant, Antonio Alouis, was driving his pickup truck, as a taxi, from Nepukos to Southfield, carrying passengers. In Neuo, a male named Jeries threw a rock at the taxi causing minor damage. The decedent, Ichiro Orichy, was with Jeries at that time.

The defendant drove on to Southfield where he saw that another vehicle had been damaged by a rock thrown by someone in the same area. He picked up some new passengers in Southfield and within approximately ten minutes began the return trip.

Alouis stopped for a moment, but then, in the words of the trial judge, "At a time before any danger existed to him, his passengers or his car, Antonio Alouis made the decision to get past the group as best he could and he did not alter that decision." Tr. II:265.

When Ichiro moved to the center of the lane in which the defendant was traveling, Antonio Alouis turned to the left moving toward the center of the road in order to have an open way to pass Ichiro. Ichiro then moved to the center of the road to again block the defendant. The defendant tried to avoid hitting Ichiro by changing his direction again to the left, but he was unsuccessful because Ichiro continued to move in front of the defendant's pickup. Antonio Alouis had to turn back to the right to avoid hitting people on the left side of the road or the pickup on the left side of the road. And he struck Ichiro.

This is only the second case which had come before this Court on an appeal from a conviction under 11 F.S.M. 912(1)(a), and we have not previously considered carefully the 11 F.S.M.C. 104(9) definition of recklessness.1 This case requires careful analysis of the statutory language in order to enable us to determine whether the trial court's factual findings justify this conviction for manslaughter.

The manslaughter statute says that, "A person commits the offense of manslaughter if he causes the death of another human being when . . . (a) the person has acted recklessly . . . ." 11 F.S.M.C. 912(1)(a). Recklessness is defined as meaning: "to act with willful disregard to the attendant circumstances, or if unaware of the circumstances, to act in such a manner that constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation." 11 F.S.M.C. 104(9).

Although the National Criminal Code is modeled primarily upon the Model Penal Code proposed by the American Law Institute in 1962,2 the MPC's definition of recklessness was not incorporated within the FSM statute. The legislative history contains no explanation for this

Thus we approach this clause barehanded, without weapons or tools to ease the way. At the outset, we observe that the definition covers two possibilities, that the actor: (1) may act with knowledge of the factors creating risk, in "willful disregard" of the attendant circumstances, or (2) may be unaware of the circumstances.3 Mr. Alouis' actions were found by the trial court to have fallen within the former category. It is therefore the first clause of section 104(9), "act with willful disregard of the attendant circumstances," that here demands our attention.

Drawing on normal English usage, we interpret "attendant" circumstances as those which are pertinent to the nature of the particular charge. Here, where the defendant is charged with recklessly causing the death of another, the "attendant" circumstances would be those which created a risk that the actions of the defendant would cause Ichiro's death.

To act while disregarding something willfully or intentionally requires that the actor be aware of the information disregarded. Thus, section 104(9) requires us to assess those circumstances, known to Mr. Alouis at the time he acted, which created a risk that his actions would cause the death of another person.

A conviction for manslaughter may be upheld only if the circumstances known by the defendant at the time of acting created a substantial and unjustified risk of death.4 FSM v. Raitoun, 1 FSM Intrm. 589, 592 (Truk 1984). The words "willful disregard" also confirm that more than mere misjudgment or negligence must have been involved. To constitute reckless manslaughter, the defendant's action must be plainly irresponsible, a gross deviation from the kind of conduct that might be expected of a law-abiding citizen.

Based upon all of these considerations, we conclude that a conviction for manslaughter requires a showing that at the time of acting the defendant was aware of circumstances which in combination with his action would create a substantial and unjustifiable risk of death, and that, nonetheless, he willfully and irresponsibly accepted this risk by acting in a manner considerably different from the conduct that might be expected of a well-meaning, law-abiding citizen.

All of the description of the area with troublemakers, movement going on, intoxication, a vehicle practically blocking the road, the knowledge of the first incident to this defendant, Alouis ) all of those circumstances and the description, the narrative that I've given ) are the circumstances that describe what existed at that time and place.

The defendant willfully disregarded those circumstances and was reckless in that he did not take the step of stopping his vehicle at a time, when no danger existed to him and continued . . . at a . . . relatively steady speed . . . trying to get through the group. And the fact of . . . continuing to move at that speed, 15 to 25 miles an hour, under those circumstances led to this homicide.

Tr. II:264-65. These findings are supported by the record. They confirm that the defendant was aware of circumstances creating danger, that he nonetheless acted in a way which added to the danger, and that the victim's death resulted. Yet, we conclude that in several respects the findings fall short of the necessary support for a conviction of manslaughter through recklessness.

Substantial risk of death ) The record does not reveal, and the trial court did not find, that the defendant was aware of circumstances creating a substantial risk of death, as distinguished from a more generalized risk of trouble or danger.

Of course the circumstances outlined in the findings of fact were sufficient to alert Mr. Alouis that there could be danger if he should attempt to proceed through the group. It may be said that one who drives into a group of drunken troublemakers who have been throwing rocks at passing vehicles, should be aware that anything may happen. Because of this inherent unpredictability, there can be no guarantees as to the nature of the risk and there is in this broad sense some risk of death.

However, such speculative risk based upon vague possibilities, uncertainties and unpredictability is not sufficient to support a conviction for reckless manslaughter. It must be shown that the defendant acted despite awareness of circumstances posing a substantial risk of death.

There is nothing in the record to suggest that Mr. Alouis was aware that anybody was likely intentionally to step in front of the oncoming taxi. Indeed the record is devoid of any indication that either Ichiro Orichy or any of the others with him had previously stepped intentionally into the path of an oncoming vehicle.

Perhaps Mr. Alouis could have been expected to foresee the possibility that an intoxicated person might inadvertently wobble or stagger toward the path of the truck. However, it is apparent that he was attempting to guard against such a possibility. He drove at a moderate speed and changed direction to avoid persons on the road. As the trial court noted, Mr. Alouis responded quickly two times in an effort to avoid the victim's intentional efforts to obstruct the vehicle's movement. It was necessary for the victim intentionally to adjust his position three time in order to thwart Mr. Alouis' efforts to drive through the group without injury to anybody.

There also is no showing that Mr. Alouis was aware of any kind of violent behavior creating a substantial risk that death might occur if he attempted carefully to drive through the group at a relatively low speed of 15 to 25 miles per hour. Although he was aware that those in the vicinity of the road had been throwing rocks at vehicles, there was no evidence establishing that rocks had been thrown at people.

Thus we find in the record no circumstances adequate to have revealed to Mr. Alouis that if he tried to proceed carefully through the group he would be creating a substantial risk that somebody would be killed. This requires reversal of the conviction.

Unjustifiable ) Of course the social acceptability of conduct causing risk may be affected by the reasons or justification for engaging in that conduct. For example, in an emergency, the driver of an ambulance or other vehicle rushing a person to medical care may be forgiven for driving in a manner that would be inexcusable in most circumstances. In assessing whether conduct which has caused death was reckless, courts must also determine whether the conduct was unjustifiable. Raitoun, 1 FSM Intrm. at 592; see also Pt. I, Model Penal Code and Commentaries § 2.02 cmt. 3, at 237 (ALI 1980).

In this case, it is by no means clear that the defendant was acting unjustifiable in attempting to proceed down the public road despite the disturbance. The defendant was driving a taxi, transporting passengers whose destinations were beyond the place of the disturbance. There was no alternative road available by which the defendant and his passengers could have reached their destinations.

In light of our conclusion that the record as to circumstances indicating risk of death is inadequate to support a conviction of reckless manslaughter, and also because of the limited role of an appellate court in weighing facts, we shall not here attempt to assess the importance which should have been given to these possible justifications. We do however hold and emphasize that these factors should have been taken into consideration for purposes of determining whether the conduct of the defendant in attempting to proceed through the disturbance was reckless.

Willful disregard ) As already noted, the term "willful disregard" implies a conscious decision on the part of the defendant to act in a way that poses a substantial risk of death. The same words suggest that an actor who is conscientiously attempting to minimize risk would not be guilty of manslaughter despite the fact that it subsequently becomes apparent that the actor misjudged and did in fact cause death. Reckless manslaughter as defined in the FSM Code is intended to apply to willfully irresponsible, life-threatening behavior, actions which grossly deviate from the standards of conduct that a law-abiding person in the actor's situation would observe.

We find no such conduct in this case. While the trial court was undoubtedly correct in suggesting that it would have been prudent for the defendant to have stopped his vehicle before approaching the disturbance and when no danger existed to him, we see no basis for finding his decision to attempt to proceed through the disturbance to be a gross deviation from the standard of conduct that a law-abiding person in the defendant's situation would have followed. Indeed, we are by no means confident that the majority of law-abiding persons, faced with such a disturbance on the road ahead of them, would have simply abandoned their efforts to proceed down the road until the disturbance was terminated. We would be loath to mandate such forbearance.

cautiously, at a speed of 15 to 25 miles per hour and several times adjusted direction to attempt to avoid hitting the victim and others. This is not the kind of willful irresponsibility that can support a conviction of manslaughter.

For all of these reasons, we conclude that the action of Mr. Alouis in deciding to attempt to drive through the disturbance at a relatively low speed while aware of the circumstances outlined by the trial court did not constitute manslaughter.

We have also considered, but rejected, the possibility that the conviction could be affirmed based upon Mr. Alouis' failure to stop after he could see that the victim was intentionally trying to step in front of his vehicle.

Affirmation on this ground would be improper primarily because the conviction plainly was not based upon the defendant's failure to stop within the disturbed area after he saw that Ichiro Orichy was trying to step in front of his car. Instead, the conviction was grounded upon the trial court's view that Mr. Alouis should have stopped before he reached the disturbance.5

Moreover, our own independent review of the record reveals no basis for a conclusion that after Mr. Alouis entered the area of disturbance his actions were reckless. By then, with the victim intentionally stepping in front of the moving vehicle, with rock-throwing intoxicated 'troublemakers" around the truck, and with passengers in the vehicle, the justifications for refusing to stop in the midst of the group were substantial. Mr. Alouis did adjust directions several times in an attempt to avoid hitting Mr. Orichy and it is unclear in the record whether he could have stopped and avoided hitting Mr. Orichy after it became clear that Orichy would persist, to the end, in stepping before the moving vehicle.

Appellant filed an appeal with this court on May 6, 1990 to overturn his conviction. Appellant now argues two grounds as the basis for this appeal; the appellant's conviction should be reversed for either or both of the following errors alleged to have been committed by the trial court judge:

2. The trial judge committed reversible error in denying appellant's motion for acquittal, because the conduct of the decedent, as an independent and intervening cause of his own death, should be required that the appellant be acquitted of the manslaughter charge.

The two other members of this appellate panel have chosen to reverse the appellant's conviction. However, they base their decision on issues that were not raised by either party during this appeal. For that reason, and for the reason discussed below, I respectfully dissent.

Appellant would have the Court believe that Justice Benson found the appellant's conduct to be reckless for the reason that the appellant "refused to stop the pursuit of his legal business to avoid a potential conflict with a known troublemaker." Appellant further seems to contend that the trial judge based his findings of recklessness on the fact that appellant made the decision to try to drive past the group of "troublemakers" involved in this case, and that appellant's failure to stop at that early point was the defining moment of the appellant's recklessness.

This interpretation of the trial court proceedings is clearly erroneous and without support in the trial record. Rather, what the record does show is that the trial judge found the appellant to be reckless for these reasons: First, the appellant did make the decision to proceed through the group of troublemakers. That decision is not what made appellant's conduct's reckless, but rather, it was the fact that he chose to carry out that decision in an inflexible and knowingly risky manner. Upon reaching the group of troublemakers, at a speed of about 25 mph, appellant insisted on maintaining a constant speed while passing through a group of people that he knew were heavily intoxicated. Thus, after deciding to get past the group, appellant's conduct showed that he did not, and would not, alter that decision, even when doing so later proved to pose a substantial and knowing risk of harm to others. The trial judge added that the appellant's recklessness was in continuing to drive through the group at a constant speed of 25 mph, and never stopping or slowing down to avoid the collision that occurred.

Thus, the fact that the appellant chose to try to drive through the group was not in itself what characterized the conduct here as reckless, it was the fact that while proceeding to pass through the group, the appellant chose to stubbornly and inflexibly maintain a constant speed, under circumstances where doing so caused a substantial and knowing risk of serious injury to the pedestrians around the car. At each of the times that the decedent moved in front of the appellant's vehicle, appellant could have chosen to slow down, or stop ) he did not; he maintained the same constant speed, even in the face of a possible and obvious collision with a trouble-making

Justice Benson found that, "Antonio did not try to avoid hitting Ichiro by stopping ) nothing prevented him from stopping. The impact could have been avoided by stopping." Tr. II:265:22-24. The trial judge also found that the decedent more than once purposely placed himself in a collision course with the appellant's approaching vehicle. However, this explicit language from the trial transcript shows that the trial judge specifically found that it was the appellant's stubborn and inflexible failure to stop that was in fact the cause of death of the decedent here. Of course, the behavior of both parties is relevant to the issue of causation here, but the trial judge's finding of fact clearly shows that but for the appellant's failure to stop, the victim here would have not have been hit, and killed.

According to Engichy v. FSM, 1 FSM Intrm. 532 (App. 1984), the standard of review for an appellant court is not whether the appellate court is convinced beyond a reasonable doubt but whether the court can conclude that the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. Id. at 546. Further, an appellate court should not overrule or set aside a finding of fact of a trial court where there is credible evidence in the record to support that finding. Id. at 556.

In this case, the trial transcripts show that there was ample evidence in the record to support Justice Benson's above findings of facts in regards to causation. Hence, it was reasonable for him to conclude that the appellant's conduct was the cause of the victim's death.

In my opinion, the only issues properly before the court on appeal are those two discussed above, as those are the only matters that were argued by the appellant. Therefore, the resolution of those matters should be the end of the Court's inquiry in deciding whether to overturn the appellant's conviction. However, the majority of this Court has taken upon itself to decide this case on the basis of issues that were not addressed or argued by either of the parties. Specifically, the Court here decides to reverse the appellant's conviction based on the conclusion that, as a matter of law, the majority believes that the appellant's conduct cannot be considered "reckless" for the purpose of a manslaughter conviction. Again, however, that issue was not raised by either party as a basis of this appeal.

I dissent not only for the reason that I feel it is improper for the court to decide a case based on issues that were raised solely on the Court's own initiative, but also, I dissent from the reasoning and conclusions for the majority's analysis on this unnecessarily considered issue.

Appellant here was charged and convicted of manslaughter. Under 11 F.S.M.C. 912(1)(a), "A person commits the offense of manslaughter if he caused the death of another human being when . . . (a) the person has acted recklessly." The majority contends that as a matter of law,

Recklessness is defined as acting "with willful disregard to the attendant circumstances, or . . . to act in a manner that constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation." 11 F.S.M.C. 104(9). Further, recklessness is also commonly defined as conduct "with a disregard for consequences," "conscious appreciation of the probable extent of danger or risk incident to contemplated action," "proceeding without heed of, or concern for, consequences," "heedless disregard for, or indifference to, the rights of others, or . . . consequences." 76 C.J.S. Reckless, Recklessly, Recklessness at 65-66 (1952).

Recklessness is thus more culpable than mere negligence. It requires the added element of the conscious disregard of an unreasonable risk of harm created by one's conduct, or, conduct that grossly creates an unreasonable risk of harm to others, and substantially deviated from the standard of care required of a person in alike or similar situation ) merely acting unreasonably or imprudently is not sufficient.

In this case, the majority argues that the appellant's conduct did not amount to such recklessness. In support of this conclusion, they cite to the fact that the appellant was traveling at a 25 mph, changed direction more than once in an attempt to avoid the decedent, and because of these factors, acted in a manner careful enough to not qualify as recklessness.

The fact that the appellant was traveling at a 25 mph and changed his course is not disputed in this dissent. However, that was not the basis upon which Justice Benson made his finding of recklessness in this case. Rather, Justice Benson found the appellant here to be reckless because of his inflexible and determined insistence on passing through the group of pedestrians at a constant speed, from which he was unwilling to slow down or stop, even when doing so would have prevented the collision with the decedent.

The basis for the finding of recklessness here is that it is extremely dangerous to pass closely through a group of pedestrians known to be drunk, if the driver of such a vehicle refuses to reduce his speed or stop, when doing so would have prevented serious injury or death to one of the pedestrians.

Any driver knows that hitting a person with a car traveling at a 25 mph could seriously injure them, or kill them. What is worse in this case is that after the appellant had already hit a pedestrian, he essentially continued to drive, and as a result, ran the pedestrian over, thus inflicting mortal wounds. Certainly if failing to slow down or stop before hitting someone is reckless, the same failure after hitting someone is definitely even more reckless.

As a matter of law, I sincerely hope that it would be considered a gross deviation from the required standard of care for a driver of a vehicle to fail to slow down or stop, when failing to do so will likely result in a collision with a pedestrian. Such conduct appears to me to clearly be an example of "proceeding without heed of, or concern for, consequences," and is a "heedless disregard for, or indifference to, the rights of others, or . . . consequences." 76 C.J.S. Reckless, Recklessly, Recklessness at 65-66 (1952).

1. The Court has concluded that neither the legal effect of the trial court's ruling, nor the jurisdiction of this Court over this appeal, are affected by the amendment, effective July 2, 1991, of article IX, section 2(p) of the Constitution.

3. In passing, we note that the second clause of 11 F.S.M.C. 104(9), purporting to impose criminal liability upon one who acts while "unaware of the circumstances," seems to require a finding as to the standard of care which could be expected to be met by a reasonable person who is unaware of the circumstances. This, we fear, may be impossible of application.

4. Although 11 F.S.M.C. 104(9) does not itself identify the requisite gravity or degree or risk, the "substantial and unjustified" risk requirement may be inferred from the definition of negligent homicide, which, like all the provisions under consideration here, was adopted as part of the National Criminal Code. See former 11 F.S.M.C. 913(2). That section, no longer in effect, posited liability upon acts by one who "should be aware of a substantial and unjustifiable risk" that death will result from his act. Traditionally, manslaughter is a more serious charge than that of negligent homicide. Congress obviously adhered to that standard view when it promulgated the prohibition against manslaughter since the maximum sentence for negligent homicide was set at three years in jail, compared to ten years for manslaughter. It follows that the degree of risk necessary for manslaughter liability must be at least as great as that for negligent homicide.

5. This is apparent not only from the trial court's identification of the attendant circumstances, but also from the court's subsequent comment that, "The defendant willfully disregarded those circumstances and was reckless in that he did not take the step of stopping his vehicle at a time when no danger existed to him . . . ." Tr. II:165. In explaining, a few days later, its denial of the defendant's motion for judgment of acquittal, the trial court also emphasized this decision of the defendant to move forward "at a time when neither the defendant nor his passengers were in danger of death or serious bodily injury or even of bodily injury or damage to the property," Tr. II:274, characterizing this as a decision to "run the gauntlet." Id. at 275.