SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Loch v. FSM, 1 FSM Intrm. 566, (App. 1984)

[1 FSM Intrm. 566]

APPELLATE DIVISION

ROBERT LOCH,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. T3-1983

December 21, 1984

OPINION
Before:
Hon. Edward C. King, Chief Justice, FSM Supreme Court;
Hon. Mamoru Nakamura, Chief Justice, Republic of Palau Supreme
Court;*
Hon. Herbert D. Soll, Judge, Commonwealth Trial Court, Northern
Mariana Islands*

APPEARANCES:

For the Appellant:		Michael K. Powell
Public Defender
Office of the Public Defender
Moen, Truk 96942

For the Appellee:		Carl V. Ullman
Chief, Division of Litigation
Office of the Attorney General
Federated States of Micronesia
Kolonia, Pohnpei 96941

---------------------

*Designated Justice EDWARD C. KING, Chief Justice,

[1 FSM Intrm. 567]

Defendant here, a police officer, appeals from his murder conviction arising out of his actions in beating a person whom he claims he was trying to arrest.  Aside from challenges to the sufficiency of the evidence, the defendant's principal legal argument is that his actions were justified efforts to enforce the law.  The record here supports a conclusion that the defendant's violent actions far exceeded the degree of force allowed of a police officer under the circumstances.  The conviction is affirmed.

Factual Background

During the afternoon of February 6, 1982, Robert Loch, a municipal police officer on Fefan Island, in the Truk lagoon, was told that Loch's cousin, a young man named Chinup, and another man, Neo, were intoxicated and had been fighting and disorderly.

Loch, unarmed, approached Chinup and told him he was going to "take him to a place" because he was drinking, an apparent violation of a Fefan ordinance.  Chinup, however, showed a knife.  Loch says his finger was cut by Chinup although none of the other persons who witnessed the incident saw that occur.

In any event, Loch withdrew and ran to his cookhouse to get his coconut husker, a solid mangrove pole.1

[1 FSM Intrm. 568]

In the meantime, Chinup tossed his knife away, although Loch says he did not know that.  Loch returned, again approached Chinup, this time without warning, and hit him from behind with the husker in the upper back, neck or head as Chinup was walking away.

At this point, the testimony differs.  Loch says that Chinup began turning toward Loch after the first blow and that  Loch swung at Chinup's forearm, attempting to prevent Chinup from using the knife, but instead hit Chinup's chest, whereupon Chinup
fell, hitting his mouth on a rock.

Other witnesses testified that Chinup immediately fell, face up, after the first blow, and that Loch then smashed him three more times on the face, chest and legs, while Chinup was down and immobile.

Loch then walked away, returning to his own house.  Chinup never regained consciousness.  Aside from a gurgling sound, some chest movement, and the brief opening of one eye shortly after the beating, there was no further sign of breathing or any other kind of movement by Chinup.  At first only a weak pulse, then no pulse could be detected.  His body changed color, from pale, to gray, to a darker color, and swelled.  His blood seemed to change in color, becoming darker; texture, becoming thick and watery; and smell.  He was buried the next afternoon, some 24 hours after the beating took place.

Privileged or Justifiable Force

The defendant contends that he was acting as a police

[1 FSM Intrm. 569]

officer and that his conduct which resulted in Chinup's death is therefore privileged.

Loch testified that he was originally intending to arrest Chinup for violating Fefan Ordinance No. 10, prohibiting the consumption of intoxicating beverages.  When he approached Chinup the first time Loch's actions plainly were reasonable.  Any person, including a police officer, making an arrest is required to "make every, reasonable effort to advise the person arrested as to the cause and authority of the arrest."  12 F.S.M.C. 214(1). According to Loch, he told Chinup he was going to take him "to a place" because he was drinking.  While the phrasing lacked precision, two other witnesses testified that Chinup responded by saying Loch should go arrest Neo.  Chinup apparently understood that Loch was seeking to effect an arrest.  We consider this,% coupled with the fact that Chinup and Loch already knew each other, sufficient compliance with 12 F.S.M.C. 214.

The scene took on a different hue when Chinup flashed a knife and challenged Loch's good faith effort to enforce the law.  Whether or not Loch was actually cut, Chinup's introduction of a dangerous weapon altered the equation and expanded the range of reasonable options available to Loch.

Chinup's use of a knife to challenge Loch's attempts to effect an arrest could have been interpreted by Loch as having constituted several crimes more serious than anything Chinup had done to prompt the original arrest attempt.  These include assault with a dangerous weapon, 11 F.S.M.C. 919; carrying a

[1 FSM Intrm. 570]

dangerous device while under the influence of alcohol, 11 F.S.M.C. 1223(4); and obstructing justice, 11 TTC 1151.  There can be no doubt, then, that Loch was entitled to arrest Chinup without a warrant.  12 F.S.M.C. 211.

Although it might have been wiser to do so, Loch was not required to retreat or acquiesce in Chinup's refusal to submit.  Under 12 F.S.M.C. 215, a police officer may persist against one resisting arrest and employ such degree of force as is "necessary to compel submission."2  The officer is also entitled to respond to physical resistance or attacks against him as he attempts to make an arrest, by using whatever force is reasonable to defend himself or others from harm.

[1 FSM Intrm. 571]

For neither purpose, either to effect arrest or to defend himself, however may the police officer employ more force than he reasonably believes to be necessary.  Restatement (Second) of Torts §§ 70 and 132 (1965).

Crucial to our analysis is the fact that Loch, in swinging the coconut husker at the upper part of Chinup's body, was using deadly force, that is, force of a type which might have been anticipated to kill or seriously injure Chinup.  The common law has long recognized the need for special care and consideration in the use of deadly force.

    The interest of society in the life of its members, even though they be felons or reasonably suspected of felony, is so great that the use of force involving serious danger to them is privileged only as a last resort when it reasonably appears to the actor that there is no other alternative except abandoning his attempts to make the arrest.  Therefore, in determining whether the use of such force is privileged, the actor has not the same latitude of discretion which is permitted to him in determining whether it is necessary to use force which is intended or likely to cause less serious consequences.

Restatement (Second) of Torts § 313 comment f, (1967).  See also id. § 65 comment c:

The privilege to inflict upon another an offensive contact or bodily harm less than death or serious bodily harm exists if the actor reasonably believes that the other's conduct threatens him with an offensive contact or bodily harm, however great or small, including at the one extreme, death, and at the other, the most trivial scratch.  The privilege to use force intended or likely to cause death or serious bodily harm exists if, but only if, the actor reasonably believes that the other's conduct threatens him with death or serious bodily harm or ravishment.

[1 FSM Intrm. 572]

Thus, Loch's use of deadly force could have been justified by evidence indicating that Loch might have reasonably concluded that there was no alternative method of arresting Chinup and that deadly force was necessary as a last resort.  We find insufficient evidence in the record to compel such a finding.

Chinup did pull out and display a knife about eight inches long when Loch first approached him.  Others who saw the confrontation saw no effort by Chinup to use the knife against Loch, although one other person did verify that Loch had a cut finger after he had finished beating Chinup.  Keichiro Chipen testified that Loch asked Chinup whether he was "going to stab" and Chinup replied that he would not.

Even if the trial court credited Loch's claim that Chinup scratched Loch's finger with the knife, this would not have compelled reasonable doubt that Loch's ensuing conduct was unlawful.

The reasonableness of Loch's conduct must be assessed on the basis of the information Loch had when he acted.  Although Chinup had thrown the knife to Keichiro Chipen before Loch returned with the husker, Loch says he did not know that.  We therefore consider whether his conduct would have been reasonable if Chinup had still retained the knife.

Nobody, including Loch, testified that Chinup had tried or threatened to use the knife in an aggressive manner indicating that he might attempt to kill or seriously injure Loch.  It is

[1 FSM Intrm. 573]

pertinent also that when Loch ran away to get his husker, Chinup did not pursue or seek to press an attack on him.  Nevertheless, because a knife is a dangerous weapon, we consider it quite reasonable for Loch to have obtained a weapon which afforded him a means of protecting himself against the knife and intimidating Chinup into submission.

But Loch did not use the husker for either of these reasonable purposes.  He did not give Chinup an opportunity to submit to Loch's show of force and he did not test to determine whether Chinup intended to try to use the knife to prevent arrest.  Instead, without warning and while Chinup was walking away from him, Loch swung the husker at Chinup's neck, knocking Chinup down.

That use of deadly force can not be viewed as a last resort necessary to arrest Chinup.  Loch had made no effort to determine whether Chinup would submit in the face of Loch's show of force. indeed the evidence is inconclusive as to whether Chinup even knew that Loch had the husker.  Similarly, Loch's blow, administered to a man walking away from him, at that time offering no violence to anybody and with his back turned to Loch, can not be justified as reasonably necessary to protect Loch from serious bodily injury.

When this blow is considered with other evidence, especially the three blows administered while Chinup was immobile

[1 FSM Intrm. 574]

on the ground,3 a logical conclusion is that the first and all other blows were administered, not in the name of self-defense or to arrest Chinup, but to punish Chinup for drinking and for defying Loch or perhaps for other reasons not reflected in the record.  This conclusion is bolstered by testimony of Enisi Salle that Loch said to Chinup, while he was running to get the husker, that Chinup should wait there because Loch would "beat him up." The same conclusion is supported by Kotlip Chura's testimony that, after Loch had beaten Chinup, Neo was brought to Loch but ran away whereupon Loch became angry and said, "Why did you let him go?  I want myself to beat him up also because I beat up Chinup and he's dead."

The conclusion is confirmed by the undisputed testimony that after beating Chinup, Loch did not take him in or in any way act as though he had custody over him or responsibility for him.  Instead, Loch simply walked away leaving Chinup dead or dying, and returned to his own house.  While a police officer may use force to effect an arrest and to protect himself and other citizens, he may not use force or violence simply to punish people he dislikes or those he decides have done wrong.  The principal functions of the police officer are to preserve peace

[1 FSM Intrm. 575]

and order to apprehend lawbreakers so that they may be tried by the courts and handled justly.

Punishment is no part of the police officer's assignment. A policeman who chooses to mete out punishment violates his  office and does so at his own peril.

We conclude that none of the blows administered by Loch were justified.  Each was an excessive and unlawful use of force.

Intent

Prior to trial, the government was requested by the defendant to elect the adjective, from "intentionally," "knowingly" or "recklessly," in 11 F.S.M.C. 911(1) which accurately describes the government's contention as to Loch's state of mind in causing Chinup's death.  The government took the position that Loch acted intentionally.

Loch now contends that while the evidence shows that Loch intended to hit Chinup, the evidence does not demonstrate intention to kill him.

This is in essence a challenge to the trial court's finding, implicit in its determination of guilt, that by hitting Chinup four times with a coconut husker, three times while Chinup was lying on the ground, immobile and posing no threat whatever to Loch, Loch demonstrated an intention to kill Chinup.

The standard to be applied in reviewing the decision is not whether we are convinced that Loch's intent in administering those blows was to kill Chinup but whether we believe that the

[1 FSM Intrm. 576]

evidence was sufficient to persuade a reasonable trier of fact beyond a reasonable doubt that Loch did intend to kill Chinup. Engichy, 1 FSM Intrm. at 546.

As the defendant correctly points out, evidence showing only that Loch intended to hit Chinup with a coconut husker and that Chinup's death was caused by those blows would not serve as an adequate basis for finding the intent required for murder under 11 F.S.M.C. 911(1)(a).  Laion v. FSM, 1 FSM Intrm. 503 (App. 1984).  The evidence must justify a conclusion that Loch, in hitting Chinup, intended to kill him. 

We conclude that the evidence could reasonably have persuaded the trial court beyond a reasonable doubt that Loch hit Chinup several times with a coconut husker, once in either the back of the head, neck or upper back, once in the face and once in the chest.  It is difficult to imagine a more fearsome wooden bludgeon than a coconut husker made of mangrove, a uniquely solid and hard wood.  Even one blow from such a weapon could be lethal.

We cannot say it was unreasonable for the trial court to conclude that Loch, in hitting Chinup four times with a mangrove husker was trying to kill him.

Proof of Death

Loch points to the fact that no medically trained person examined Chinup after the assault and that blood continued to ooze from Chinup's nose for some 24 hours after the beating, almost up to the time of burial.

[1 FSM Intrm. 577]

He argues that there was no adequate proof that his actions caused Chinup's death and he suggests that there is some doubt that the victim even was dead when he was buried.  We have already described Chinup's lack of movement, breathing, and pulse, and alterations in his skin color, blood color and blood texture, as well as the swelling of his body.  At the trial a medical doctor, Dr. Colleen Murphy, upon having these symptoms described to her, stated that in her opinion these symptoms represented death resulting from internal injuries, particularly to the chest region.  She explained that it is not uncommon for people who have died to have blood seepage for a considerable time after death.  We find the evidence sufficient to establish beyond a reasonable doubt that Chinup was dead and that Loch's actions caused his death.

We decline to establish a flat requirement, as a condition for proof of death and cause of death, that a victim be examined by medically trained personnel.  Death and cause of death can be shown by circumstantial evidence.

Conclusion

The evidence here fully justifies the trial court's apparent conclusions that the force employed by Fefan Municipal Police Officer Loch was excessive and unjustified in the eyes of the law.  We add however two observations.

First, we harbor a strong suspicion that this tragedy is in great part traceable to inadequate care in selecting, training

[1 FSM Intrm. 578]

and supervising municipal police officers.  As the facts here demonstrate, municipal police officers, like any others, will almost invariably confront difficult and potentially dangerous situations.  A police officer who believes he is under a duty to arrest an offender and to restore order, but who lacks good judgment and training, may pose a greater threat to his own safety and the well-being of the community than does the offender himself.  This risk is magnified by the fact that a municipal police officer, probably more often than a state or a national police officer, is required to work in isolation, as the only officer available.  The quality, training and judgment of the individual municipal police officer can therefore be crucial.  We urge that appropriate government officials give careful consideration to these needs.

Second, we note that no justice ombudsman was serving in Truk when Mr. Loch was sentenced.  We assume that a motion for modification of sentence may be filed in this case. If so, we trust that a careful presentence report will be prepared and that full consideration will be given to the question of whether lack of training was a significant mitigating factor here.

The judgment of the trial court is affirmed.

So ordered the 20th day of December, 1984

/s/ Edward C.  King
EDWARD C. KING
Chief Justice
Supreme Court of the
Federated States of
Micronesia

[1 FSM Intrm. 579]

/s/ Mamoru Nakamura
MAMORU NAKAMURA
Chief Justice
Supreme Court
Republic of Palau
(Designated Justice)

/s/ Herbert D. Soll
HERBERT D. SOLL
Judge, Commonwealth Court
Commonwealth of the Northern
Mariana Islands
(Designated Justice)

Entered this 21st day of December, 1984

/s/ Norsiana W. Akira
Clerk of Court
Supreme Court of the
Federated States of
Micronesia

1. We take judicial notice that coconut huskers are about the size of a baseball bat, with a point at one end.  Huskers are commonly employed in Micronesia to remove the fibrous outer layers of the coconut.

2. The Code's provisions concerning arrests, found in Title 12, Chapter 2, were all promulgated by the Trust Territory High Commissioner even before establishment of the former Congress of Micronesia.  No Micronesian legislative body appears ever to have addressed itself to the rules concerning legislative history to guide us in determining the scope of a police officer's right to use force and we have been unable to find any court decisions here addressing the issue.  Further, no party has suggested that this is a matter governed or even influenced by customary law.  Under these circumstances, we rely upon the "rules of the common law, as expressed in the Restatements of the law approved by the American Law Institute," as guides to the interpretation of 12 F.S.M.C. 215 and as the rule of decision for the scope of a police officer's right to defend himself while making an arrest. See 1 F.S.M.C. 203.  Use of the Restatements of course is subject to the requirement that the results of our decisions must be suitable for Micronesia, as mandated by the Constitution's Judicial Guidance Provisions.  FSM Const. art. XI, § 11.  Alaphonso v. FSM, 1 FSM Intrm. 209, 212-13 (App. 1982).

We find the principles stated in the Restatement of Torts concerning use of deadly force suitable for application to the issues of criminal law in this case.

3. Loch testified that he hit Chinup only twice, and while Chinup was standing.  We accept the credible evidence of other witnesses to the contrary, as supportive of the trial court's conclusions.  See Engichy v. FSM, 1 FSM Intrm. 532, 545 (App. 1984).