THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982)

APPELLATE DIVISION

PAKO ALAPHONSO,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. T1-1981

OPINION

Before Edward C. King, Chief Justice, FSM Supreme Court; and 
Federated States of Micronesia Supreme Court designated justices 
Alfred Laureta (Judge, United States District Court, Northern Mariana Islands) and 
Herbert Soll (Judge, Commonwealth Court of the Northern Mariana Islands).

December 20, 1982

APPEARANCES:

For Pako Alaphonso:
Wanis Simina
Public Defender
State of Truk
Truk, Caroline Islands 96942

For the Federated States of Micronesia:
Jeanne Rayphand
Acting Attorney General
State of Truk
Truk, Caroline Islands 96942

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EDWARD C. KING, Chief Justice,

Defendant Pako Alaphonso appeals from his conviction on three counts of assault with a dangerous weapon in violation of 11 F.S.M.C. 919. All counts involve the same October 4, 1981 incident but relate to separate victims of the alleged actions. Defendant Alaphonso was sentenced on each count to 18 months' imprisonment, all three sentences to run concurrently.

Defendant's appeal is grounded on claims that there was insufficient evidence to support findings of guilt for the three counts and that the trial court improperly rejected the defendant's alibi defense.

We find that the trial court's substantive rulings appealed from were correct and we affirm the trial court's

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decision. Because this is the first appeal on the merits to this Court's appellate division and to assist in developing the jurisprudence of this new nation, we find it appropriate here to discuss at some length several fundamental aspects of this case.

Factual Background

The Government presented three witnesses. All three were in a motorboat on the afternoon of October 4, 1981 attempting to proceed from the Neotes section of Moen Island in the State of Truk to the boat pool area, when a man in another motorboat began shooting at them. Each witness saw their assailant standing at the front of the other motorboat pointing a revolver toward them and shooting. Transcript at 3, 4, 6, 13, 14, 17 and 18. Two witnesses said he shot twice, id. at 6 and 13, and one testified that he shot only one time. Id. at 18. All three Government witnesses, one of whom had been a childhood playmate of Pako Alaphonso, identified Pako Alaphonso as the person shooting at them from a distance of approximately 200 feet. Id. at 6, 13, 14 and 18.

The defense countered with an attempt to establish an "alibi," that is, to show that the defendant was on Wonei Island at the time when the crime occurred and that he therefore could not have been the person shooting at the victims. Id. at 24-36.

Standard of Proof in Criminal Cases

This is a case of first impression in the sense that it is the first appeal on the merits within the Federated

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States of Micronesia from a finding of criminal guilt of a citizen of the Federated States of Micronesia by a Court established under the Constitution of the Federated States of Micronesia.

Consequently, there is no direct precedent establishing the standard of proof to be met in criminal cases, either for a finding of guilt or to consider alibi defenses. Such a standard is obviously necessary for us to assess the actions of the trial court. We must therefore develop a method for determining standards and then arrive at the standards themselves.

A. The Judicial Guidance Provision - The parties here have not addressed these issues but have merely cited legal authorities from the United States, including decisions of United States federal and state courts, without explaining why those authorities are pertinent to these issues before this Court.

The Constitution instructs us that we may not merely assume away, or ignore, fundamental issues on the grounds that these basic issues have previously been decided in a particular way by other courts in other circumstances and under different governmental systems. The "judicial guidance" provision, art. XI, § 11 of the Constitution, tells us that our decisions must be "consistent" with the "Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia."

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The Report of the Constitutional Convention's Committee on General Provisions, which reported out this Judicial Guidance Provision, stated that:

The intent and purpose of this provision is that future 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.

The failure to include such a provision in the Constitution may cause the courts to follow the decisions of past Trust Territory cases or various foreign decisions which have dealt with similar interpretive or legal questions. This may be undesirable since much of the reasoning utilized in these various courts may not be relevant here in Micronesia. Micronesia is an island nation scattered over a large expanse of ocean. Customary and traditional values are an important part of our society and lifestyle. It is important that this Constitution be interpreted in light of our customs and traditions. Without such assurance in the Constitution, the words we use may be interpreted to mean other than what we have intended.

SCREP No. 34, II J. of Micro. Con. Con. 821, 822 (1975).

Of course, this Court can and should consider decisions and reasoning of courts in the United States and other jurisdictions, including the Trust Territory courts, in arriving at its own decisions. What is clear from the Constitution, however, is that we are not to consider ourselves bound by those decisions and must not fall into the error of adopting the reasoning of those decisions without independently considering suitability of that reasoning for the Federated States of Micronesia.

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We therefore first look to sources of law and circumstances here to establish legal requirements in criminal cases rather than begin with a review of cases decided by other courts.

B. The Reasonable Doubt Standard - We start with the Constitution, the fundamental governing document of the people of the Federated States of Micronesia. The Constitution contains no language directly specifying the standards of proof in criminal cases but provides that, "A person may not be deprived of... liberty ... without due process of law..." FSM Const. art. IV, § 3.

The precise meaning of these words, especially as they may pertain to the standards of proof for criminal cases, is not self-evident. It therefore is permissible for us to seek assistance in determining the meaning of those words, and how the framers of our Constitution intended that they would be applied.

Trial division decisions of this Court have noted that the Constitution and Journal of the Constitutional Convention reveal the United States Constitution as the historical precedent for most provisions in the Declaration of Rights. Tosie v. Tosie, 1 FSM Intrm. 149, 153-55 (Kos. 1982); FSM v. Tipen, 1 FSM Intrm. 79, 83-85 (Pon. 1982). Most concepts and many actual words and phrases employed in the Declaration of Rights come directly from the

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United States Constitution, especially that Constitution's Bill of Rights. This is decidedly so in the provisions upholding the right to due process of law. In the two constitutions, the language on that topic is nearly identical.

The Due Process Clause in the Constitution of the Federated States of Micronesia at Article IV, § 3 says: "A person may not be deprived of life, liberty, or property without due process of law..." The United States Constitution's Due Process Clause is contained in the Fifth Amendment together with various other provisions but the due process language itself is practically identical with the words in the Declaration of rights: "No person shall ... be deprived of life, liberty, or property, without due process of law..." These parallels in language leave little doubt that the Due Process Clause of the United States Constitution is the historical precedent for the Declaration of Right's Due Process Clause in our Constitution.

Any remaining doubt is allayed by the Journal of the Constitutional Convention. The Declaration of Rights was drafted and reported out by the Micronesian Constitutional Convention's Committee on Civil Liberties. SCREP No. 23, II J. of Micro. Con. Con. 793-804 (Oct. 2, 1975). In discussing the proposed Declaration of Rights, ultimately adopted substantially as proposed, the Committee relied principally upon decisions of the United States Supreme Court and other United States Courts interpreting similar provisions of the United States Constitution. Id.

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The Committee's explanation of its basis for, and the meaning of, the proposed Due Process Clause focused exclusively on United States Supreme Court decisions interpreting the Due Process Clause of the Fifth Amendment of the United States Constitution. The obvious lesson is that we are to look to the interpretative decisions of United States courts concerning the Due Process Clause of the Fifth Amendment of the United States Constitution. The framers of this Constitution, and subsequently the voters in ratifying could only have been aware of constitutional interpretations rendered prior to and at the times of the Constitutional Convention, and ratification of the Constitution through plebiscite. We should therefore emphasize interpretations in effect at those times.

Others before us have identified historical analysis as a preferred method of constitutional interpretation. Indeed Justice Black of the United States Supreme Court employed words which seem almost to have anticipated our need here. Of the four words, "due process of law," in the Fifth Amendment to the United States Constitution he said:

Some might think that the words themselves are vague. But any possible ambiguity disappears when the phrase is viewed in the light of history and the accepted meaning of those words prior to and at the time our Constitution was written.

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In re Winship, 397 U.S. 358, 378, 90 S. Ct. 1068, 1080, 25 L. Ed. 2d 368, 383 (1970) (Black, J., dissenting). We too shall view the words "due process of law" in "the light of history and the accepted meaning of those words prior to and at the time" this Constitution was written.

Once having determined the appropriate source of guidance in determining the meaning of the words, "due process of law," we can reach our conclusion with relative ease. At the time of adoption and ratification of the Constitution of the Federated States of Micronesia the meaning of the words "due process of law" in the United States Constitution as they mandate the standard of proof for criminal cases had been determined in In re Winship.

There, a juvenile was appealing from a finding that he was a juvenile delinquent. This finding was based upon proof which the juvenile court judge said established delinquency by a preponderance of the evidence although perhaps not beyond a reasonable doubt. Id. at 360, 90 S. Ct. at 1070, 25 L. Ed. 2d at 373.

The United States Supreme Court set aside the juvenile court's decision as violative of due process. The Supreme Court held that a child in a juvenile delinquency proceeding has at stake interests sufficiently similar to those of a defendant in a criminal proceeding to require the same protections concerning standard of proof. The required standard of proof for all such cases, the court held, is mandated by the Due Process Clause:

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Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

Id. at 364, 90 S. Ct. at 1073, 25 L. Ed. 2d at 375. This was the accepted meaning of the words "due process of law" in the United States Constitution at the time those words were inserted by the framers into the Constitution of the Federated States of Micronesia and adopted by the constitutional convention. This was still their accepted meaning under United States constitutional interpretations when the Constitution here was ratified, and remains the accepted interpretation of the United States Constitution to this day. See also Mullane v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

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We may not, however, conclude our interpretative effort simply by determining the accepted meaning in the United States of words included in the Constitution of the Federated States of Micronesia.

As already noted the Constitution's Judicial Guidance Section instructs that we may not follow blindly decisions of the United States or other courts. This cautionary note should be kept in mind even in applying the above method of constitutional interpretation for provisions within the Declaration of Rights. Before accepting an interpretation of United States courts concerning the meaning of words in this Constitution, we must review the reasoning of those courts and determine whether that reasoning and the results reached are suitable for the Federated States of Micronesia.

In Winship, the court explained why it considered proof beyond a reasonable doubt as an essential prerequisite to "a criminal conviction. We find each of these reasons suitable for application within the Federated States of Micronesia.

First, the Court pointed to the "virtually unanimous adherence to the reasonable doubt standard in common-law jurisdictions." 397 U.S. at 361, 90 S. Ct. at 1071, 25 L. Ed. 2d at 374. The framers have made clear to us through the Judicial Guidance Section that we are not to consider ourselves bound by common law concepts, even perhaps concepts to which there is "virtually unanimous" common law adherence. Nevertheless, in our efforts to develop a judicial system suited for the

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people of the Federated States of Micronesia, it is surely useful to consider the experience, lessons and conclusions of other legal systems.

"Common law" is a label identifying a widespread historical legal process tracing its origins back to medieval England. This is a trial and error process in that common law judges base current decisions upon earlier precedents but, where those precedents are at odds with current accepted notions of social justice, the judges are free to modify or overrule earlier precedent. This system is now employed by numerous independent sovereignties throughout the world including Great Britain, the United States, India and nations in Africa and throughout the Pacific. If indeed there is "virtually unanimous adherence" to the reasonable-doubt standard among those varied sovereignties and after centuries of experience with the common law system, we agree with the Winship court that this does "reflect a profound judgment about the way in which law should be enforced and justice administered." 397 U.S. at 361-62, 90 S. Ct. at 1071, 25 L. Ed. 2d at 374 (quoting Duncan v. Louisiana, 391 U.S. 145, 155, 88 S. Ct. 1444, 1451, 20 L. Ed. 2d 491, 499 (1968)).

A second reason given for the rule in Winship is that the reasonable-doubt standard and other related rules of evidence are "historically grounded rights...developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property." 397 U.S. at 362, 90 S. Ct. at 1072, 25 L. Ed. 2d at 374. The reasonable-doubt standard the court said, is "implicit" in constitutions which "recognize

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the fundamental principles that are deemed essential for the protection of life and liberty" and is a "prime instrument for reducing the risk of convictions resting on factual error." Id. at 362-63, 90 S. Ct. at 1072, 25 L. Ed. 2d at 374-75.

The accused during a criminal prosecution has at stake interest of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he will be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.

*  *  *

To this end, the reasonable-doubt standard is indispensable, for it "impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue."

397 U.S. at 363-64, 90 S. Ct. at 1072, 25 L. Ed. 2d at 375. We state with confidence that the people of the Federated States of Micronesia "value the good name and freedom of every individual" and wish to safeguard citizens from dubious and unjust convictions.

It may conceivably be argued that in island society the risk of "dubious and unjust conviction" is diminished so that the reasonable doubt standard becomes unnecessary. The theory would be that, since so many people on an island know each other, everybody "knows" who is guilty and who is not. However, there is no reason to believe that people of islands are more immune from rumors, prejudice, mob action and hysteria than are people who live on other geographical configurations. Indeed, we have all seen examples of "truths" rapidly accepted in small communities, later rejected as incorrect and unfounded. It appears that the need for a

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reasonable doubt standard is at least as great here as in other societies.

Thus, this second Winship reason also has application within the Federated States of Micronesia.

Finally, the United States Supreme Court in Winship concluded that the reasonable doubt standard is necessary to earn community respect for the criminal justice system:

[U]se of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.

387 U.S. at 364, 90 S. Ct. at 1072-73, 25 L. Ed. 2d at 375.

We recognize that there may be times when the community at large is satisfied that a particular accused is guilty and demands nothing more intensely than that person's conviction and punishment. The reasonable doubt standard may increase the difficulty of conviction and in some instances may result in the acquittal of guilty persons. We nevertheless believe that the people of the Federated States of Micronesia will hold greater respect for their criminal justice system if it proceeds cautiously and respects the liberty of individual Micronesian citizens rather than responds to the tensions and passions of the moment and sacrifices individuals to the expectations of an inflamed community.

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For all of these reasons, we accept the interpretations of the words "due process of law" existing at the time of adoption and ratification of the Constitution of the Federated States of Micronesia. We hold that the Due Process Clause of Article IV, § 3 of the Constitution of the Federated States of Micronesia requires proof beyond a reasonable doubt as a condition for criminal convictions in the Federated States of Micronesia.

C. Standard of Proof: Alibi - The standard of proof for an alibi defense derives from the constitutional due process rule requiring proof of guilt beyond a reasonable doubt as justification for a criminal conviction. Most courts in the United States applying the Due Process Clause of the United States Constitution who have discussed the standard of proof to be employed in considering an alibi have concluded that the assertion of an alibi may not alter the basic principles that the burden of persuasion remains on the Government and that the standard is proof of guilt beyond a reasonable doubt.

These courts have held that the trier of fact must consider the evidence in its totality, including the alibi, in deciding the guilt of the defendant and must bear in mind

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that the burden of persuasion never shifts from the government. If after considering the alibi evidence with all other evidence there is reasonable doubt in the mind of the trier of fact, the defendant may not be found guilty. Smith v. Smith, 454 F.2d 572 (5th Cir.), cert. denied, 409 U.S. 885, 93 S. Ct. 99, 34 L. Ed. 2d 141 (1972); Stump v. Bennett, 398 F.2d 111 (8th Cir.), cert. denied, 393 U.S. 1001, 89 S. Ct. 483, 21 L. Ed. 2d 466 (1968); United States v. Harrigan, 586 F.2d 860 (1st Cir. 1978); United States v. Alston, 551 F.2d 315, 320 (D.C. Cir. 1976); United States v. Beedle, 463 F.2d 721 (3rd Cir. 1972).

These conclusions have been grounded in part upon a belief that placing the burden of persuasion upon a defendant asserting an alibi defense is contrary to the presumption of innocence, which is fundamental to criminal procedure in the United States. Stump, 398 F.2d at 116, Smith, 454 F.2d at 579; Johnson v. Spalding, 510 F. Supp. 164, 167 (E.D. Wash. 1981).

More germane to our analysis in this case is the general agreement of those other courts that a shift of the burden of persuasion to the defendant concerning, any essential element of an alleged crime would be violative of the due process requirement that the Government must prove all elements of the crime beyond a reasonable doubt.

This we find directly pertinent to our conclusions about the import of the Due Process Clause in Article IV, § 3 of the Constitution of the Federated States of Micronesia

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and we hold this Constitution's Due Process Clause requires the same conclusion.

Thus, as a matter of constitutional due process, a  trial court presented with an alibi defense should consider evidence concerning the alibi along with all other evidence and shall not find the defendant guilty if after considering all of that evidence, the judge feels there is a reasonable doubt as to the defendant's guilt.

D. The Standards Applied - Our review of the record satisfies us that the trial court applied the correct standards and that proof in this case met the reasonable-doubt standard and abundantly supports the trial court's findings that the defendant attempted to cause bodily injury to each of three persons.

All three witnesses testified that they saw the defendant shooting at them. With this testimony it was reasonable for the trial court to infer that the defendant was attempting to use the gun to cause bodily injury to these three persons.

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On appeal, the defendant suggests various factual possibilities which, if believed, could possibly have raised reasonable doubts, such as that the gun may not have been loaded, hence could not actually have harmed the three boat occupants, that perhaps the defendant only intended to scare them and really did not seek to harm those in the boat, and that perhaps the witnesses were confused and that all of the shots came from a ship that was in the vicinity that day. As already stated we consider the trial court's findings of guilt reasonable and fully justified by the evidence. Moreover, the speculations raised by the defendant are plainly at odds with the testimony of three eyewitnesses who saw the defendant shooting at them.

None of these suggestions was seriously urged at the trial and none is supported by evidence introduced at the trial. All of the pertinent evidence is to the effect that Pako Alaphonso was shooting a revolver at the three boat occupants. If this testimony was believed, as it obviously was by the trial court, there could halve been no basis in the record for findings that the revolver was not loaded, that defendant actually did not intend to hurt the boat occupants, or that all the shots came from some other source.

Subsequent and unsubstantiated speculations are not sufficient to raise reasonable doubt as to Mr. Alaphonso's

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guilt in light of the eyewitness' testimony. If there had been any basis for these speculations, evidence to that effect should have been introduced at the trial. In the absence of evidence, these speculations now seem frivolous.

The trial court was entitled to rely upon the testimony and observations of the Government's witnesses and, drawing reasonable inferences, to conclude that, beyond a reasonable doubt, Mr. Alaphonso was attempting to cause bodily injury to the witnesses with a loaded revolver. The trial court did so conclude and we find that conclusion supported by the evidence.

Similarly, the trial court concluded, that the defense of alibi did not "create a reasonable doubt as to the guilt." Tr. 41. To establish the alibi, the defense called three witnesses, each of whose testimony suggested that Pako Alaphonso was on Wonei Island on October 4, 1981. If this evidence had been accepted as establishing that Pako Alaphonso was indeed on Wonei Island all day on October 4, 1981, this would have negated the possibility that he was shooting at the motorboat just off of Moen Island on that same day. However there are gaps in the alibi evidence. The trial court could have accepted the veracity of all three alibi witnesses yet found their evidence consistent with a finding that the defendant was guilty.

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The defendant's father testified that Pako was in the family house on Wonei the morning of October 4. The father testified that he left for Moen at 9 A.M., returned to Wonei at about 3 P.M., and after returning again saw Pako on Wonei some time that day. Transcript at 24-27.

State Legislator Casmiro Engichy was on Moen Island on October 4. He merely testified that when on Moen, the defendant normally stays at Casmiro Engichy's house. Since Mr. Engichy did not see the defendant on Moen that day, he assumed he was on Wonei. Id. at 34-36.

Those two witnesses obviously had no direct knowledge of Pako Alaphonso's whereabouts at approximately 1 P.M. or 2 P.M. on October 4, when he was allegedly shooting at Junior Bossy, William Bossy and Tano Meini.

The defendant's sister testified that the defendant was "around at our area and our house" in Wonei all of October 4. Id. at 22. Yet, even her account of Pako Alaphonso's location that day was general. She was away from the house to attend church for about three hours in the morning. There was no attempt to establish that she was physically with the defendant throughout the day or even that she could account for all of his time that day. Even if taken at face value and believed entirely, neither the sister's testimony nor that of any other defense witness precluded the possibility that the defendant may have departed from Wonei in the early afternoon hours and was in the waters off of Moen Island at the time of the shooting incident.

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Of course even if the alibi evidence had effectively accounted for the defendant's time throughout October 4 so that the trial court would have been confronted with inconsistent testimony, the trial judge would have been permitted to reject the alibi evidence if he concluded that evidence was not credible. Such a finding would not seem unreasonable when weighed against the direct eyewitness testimony of three witnesses who say they saw the defendant commit the crime.

After hearing all the evidence and observing the demeanor of the witnesses, the trial justice concluded that the alibi defense did not create a reasonable doubt as to guilt.

While it might have been useful to our analysis to have known whether this conclusion of the trial court was based upon gaps in the alibi testimony, upon a determination that some or all of that testimony lacked credibility, or upon some combination of these factors, we nevertheless conclude that the finding of the trial court is supported by the record in this case.

Late Filing

The Government has also moved under this Court's Rule 31(c) for dismissal of this appeal on the ground that appellant has failed to file his brief within the time provided. Rule 31(a) of this Court's Rules of Appellate Procedure states that an appellant "shall serve and file his brief within 40 days after the date on which the record is filed." According
to the court's appeal docket, the record was filed on March 4, 1982 and was mailed to the parties on March 8. Appellant's

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brief should have been filed on or before April 13. Instead the brief was filed on June 1, 88 days after the record was filed and some 78 days after appellants counsel received his set of the record, assuming 6 days' mailing time from Ponape to Truk. See FSM App. R. 26(c).

Although our Rule 26(c) provides for enlargement of time for filing of briefs upon a showing of good cause, no such motion was filed by the appellant. Nor did appellant offer to this Court any explanation for tardiness, either in response to the Government's motion or when the brief was submitted. This constitutes an independent ground for dismissal of this appeal.

Conclusion

The appeal is dismissed and the judgment of the trial division is affirmed.

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So ordered this 20th day of December, 1982.

EDWARD C. KING
Chief Justice

ALFRED LAURETA
Judge, United States District Court for the
Commonwealth of Northern Mariana Islands
(Designated Justice)

HERBERT SOLL
Judge, Commonwealth Court,
Commonwealth of the Northern
Mariana Islands
(Designated Justice)

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