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Ngirakesiil v Republic of Palau [2021] PWSC 23 (27 July 2021)

IN THE
SUPREME COURT OF THE REPUBLIC OF PALAU
APPELLATE DIVISION

Cite as: 2021 Palau 23
Criminal Appeal No. 20-001
Appeal from Criminal Case No. 19-070

Argued: July 23, 2021
Decided: July 27, 2021

Counsel for Appellants Yukiwo P. Dengokl

Counsel for Appellee Rebecca Sullivan, Assistant Attorney General, Kathleen M. Burch, Assistant Attorney General^[1]

BEFORE: JOHN K. RECHUCHER, Associate Justice
GREGORY DOLIN, Associate Justice
DANIEL R. FOLEY, Associate Justice

Appeal from the Trial Division, the Honorable Kathleen M. Salii, Presiding Justice, presiding.

OPINION

PER CURIAM:

[ 1] ea Ngirakesiil is appealppealing her conviction for manslaughter of her late husband, Charlie Ngcheed, on the grounds that the Republic has failed to carry its burden of proof. For the reason forth below, we REVERSEVERSE.

BACKGROUND

[ 2] On March2019, Appellant,lant, her late husband, and a number of other individuals attended a party in Ngermid Hamlet, Koror State. It is undisputed that alcohol was cod by both Appellant and her husband. There was also testimestimony that some skirmishes between unidentified participants took place. At one point during the evening the festivities were interrupted by a loud thud. As several witnesses testified, after hearing the sound, they saw Charlie on the ground. Dr. Jason Arurang who was at the scene, examined Charlie and advised the bystanders, including Appellant, that Charlie may have sustained a serious head injury and needed to be taken to the hospital as soon as possible.
[ 3] Iundisputed that Appellapellant did not follow Dr. Arurang’s advice. Instead, with the help of some friends and relatives, she bundled Charlie up into one vehicle, and then another, and eventually took him home. It is also undisputed that Appellant left him there for some time and returned to the party. Appellant claims that after dropping Charlie off at home she ran, barefoot, to her sister-in-law’s house in order to call the ambulance (though ultimately never did). Because, according to Appellant, her sister-in-law’s house is closer to the party than to her own home, Appellant returned to the party merely to ask for a ride back home. The Republic, on the other hand, contends that Appellant’s return was evidence of her lack of care for her husband.
[ 4] The next morning, Appellant woke-up only to find her husband in the same state as the night before. He was not responsive to her attempts (including physical shaking and slapping him) to wim up. It was only at this point 911 was called by Appellapellant’s brother and Charlie was brought to the hospital by ambulance.

[ 5] In ospital Charlie was awas administered CPR but his condition did not improve. Eventually a cranial CT scan was ordered and showed extensive damage to his skull and several areas of intracranial bleeding. Ultimately, Charlie was taken off of life support and died on April 1, 2019.
[ 6] On June 20, 2019,Republipublic charged Appellant with manslaughter alleging that she

recklessly cause[d] the death of Charlie Ngcheed, by striking him repeatedlyhe head, pushing him into the car, and releasing his shirt hirt allowing him hit his head on the concrete surface. Defendant was advised by a doctor, at the scene, to take the victim to the hospital immediately, which she failed to do and instead left victim on the porch of their home overnight, in violation of l7 PNC § 1303(a)(l).

Information at 1 (June 20, 2019).

[ 7] -day bench trial, beginneginning May 18, 2020, was held before Justice Salii. At trial, the Republic called several witnesses to testify about the events of March 30, 2019, as well as severalcal professionals who testitestified about Charlie’s condition when he was brought to the hospital and provided opinion as to the ultimate cause of death. Of particular note is that none of the Republic’s witnesses testified that they saw an altercation between Charlie and Appellant. Instead, all of the Republic’s witnesses who were questioned on the subject testified that they observed Charlie’s injury when he was already on the ground. Dr. Emais Roberts testified that he conducted the autopsy and that Charlie’s cause of death was “[e]xtensive [i]ntracranial [h]emorrhage causing brain tissue damage.” Exh. 5 (Autopsy Report) at 3 (April 22, 2019).
[ 8] The prosecution alsroducroduced into evidence an audio recording of Appellant’s conversation with police officers during her arrest for an unrelated drunk driving charge on ber 28, 2019. There is some dispute as to what Appellant aant actually said, but the Republic contends that on the tape Appellant admitted that she said “beat her husband to death.” Appellant challenged both the translation and completeness of the tape.

[ 9] The Trial Division cond cted Appellant of the charged offense and sentenced her to 10 years of probation, on condition that she serve a two-year term of incarceration in Koror Jail. The present appeal followed.[2]

STANDARD OF REVIEW

[ 11] “ge shall disqualsqualify himself or herself from participating in any proceedings in which . . . it may appear to a reasonable observer that the judge is unableecide the matter impartially.” ROP Code of Judicial cial Conduct Canon 2.5. At the same time, “a judge’s prior adverse ruling is not sufficient cause for recusal.” United States v. Studley, [1986] USCA9 365; 783 F.2d 934, 939 (9th Cir.1986); see also Ngerketiit Lineage v. Ngirarsaol, 8 ROP Intrm. 50, 50-51 (1999).
[ 12] We review the Trial Donision’s findings of fact for clear error and its conclusions of law de novo. Tulop v. ROP, 2021 Palau 9 & 11. Challenges to sufficiency of evidence to support a criminal conviction are subject toct to clear error review viewing “the evidence adduced at trial ‘in the light most favorable to the prosecution.’” Xiao v. ROP, 2020 Palau 4 8 (quoting Wasisang v. ROP, 19 ROP 87, 90 (2012)). “If the evidence presented was sufficient for a rational fact-finder to conclude that the appellant was guilty beyond a reasonable doubt as to every element of the crime, we will affirm.” Waisang, 19 ROP at 90 (internal quotations and alterations omitted).

DISCUSSION

I.

[ 13]Republic’s motion tion to recuse stems from its contention that our order of July 20, 2021, was ultra vires. According to the Republic, by acting beyond our authority, each of the Justices on the present panel can be perceived by a reasonable observer to harbor bias against the Republic. There is no merit to the Government’s position.
[ 14] “Thedard for recu recusal under [Canon 2.5] is whether a reasonable person with knowledge of all the facts would conclude the judge’s impartiality might reasonably be questioned.” Taylor v. Regents of Univ. of California, [1993] USCA9 1592; 993 F.2d 710, 712 (9th Cir. 1993) (quoting Studley, 783 F.2d at 939). “[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Prior adverse rulings are “proper grounds for appeal [or a motion for reconsideration], not for recusal.” Id. Thus, even assuming, arguendo (and dubitante) that our order was erroneously issued, that error does not require recusal.
[ 1 note that the order was iwas issued after the full briefing in the underlying appeal was complete, and based on the evaluation of the evidence and record before the Court. As parties are well aware, oral argument is not a requirement for the Court to act. See ROP R. App. P. 34(a) (“The Appellate Division on its own motion may . . . order a case submitted on briefs without oral argument even if oral argument is requested.”). As it happens, the Republic did not request one in its opening brief. Id. (“Parties must make their request on the cover sheet of the opening brief . . . .”).^[3] The argument was scheduled on the Court’s own motion. See id. Instead of scheduling argument, the Court could have, on the basis of briefs submitted by the parties and the record below only, issued a judgment and opinion in this matter, reversing Appellant’s conviction. Such an approach, though adverse to the Republic, surely could not raise a perception of “bias” in any reasonable observer. Neither can an interim order. To be sure, our order can, and probably did,

telegraph to the public our view about the relative strengths or weaknesses of parties’ respective cases. But judges must often express their view of a party’s case during the course of litigation. See, e.g., Tulop, 2021 Palau 9 10 (referencing the stay of execution of the sentence granted after the case was taken under advisement and following the Court’s conclusion that Appellants raised substantial questions of law in their appeal). For example, any time a judge rules on a motion for a temporary restraining order, or a preliminary injunction, or a motion for a stay, he necessarily express a view on whether the movant’s case is meritorious. See Etpison v. Rechucher, 2020 Palau 14 21. It cannot possibly be that a grant of a preliminary injunction (which necessarily involves a judge expressing a view that the applicant will likely succeed in his underlying claim, see id.) requires the judge to recuse himself from further proceedings in the case. So too here. The panel members reached their decision to release Appellant pending appeal as part of judicial proceedings and upon consideration of the record before them. This decision, reached in the ordinary course of litigation, however correct or erroneous it may be, cannot serve as a valid basis for seeking to recuse any of the members of this panel. See United States v. Holland, 519 F.3d 909, 913-14 (9th Cir. 2008) (noting that the law “generally requires as the basis for recusal something other than rulings, opinions formed[,] or statements made by the judge during the course of” the legal proceedings before him.).^[4]

[ 16]rdingly, we deny the mote motion to recuse members of this panel, and proceed to the consideration of the merits of the underlying appeal.

II.

[ 17]egin by noting what is n is not at issue. At oral argument the Republic conceded that there is no evidence in the record to prove, under any

standard, that Appellant did ct assault her late husbandsband.^[5] Instead, the Republic argued that the conviction can be sustained on the grounds that Appellant’s failure to take her husband to the hospital (after being advised to do so by Dr. Arurang) was reckless conduct which caused the victim’s death. Appellant, however, contends that because the Information alleged an assault, the Government’s failure to prove that element necessarily requires a judgment of acquittal.

[ 18]first question we have tave to address is whether the proof offered at trial matches the allegations of the Information. On the one hand, “[p]roof at trial that varies from the indictmetentially compromises [one][one] of the functions of the indictment—notice to the accused . . . Where defendant’s right to fair notice of the charges . . . has been violated, reversal is required.” People v. Grega, 531 N.E.2d 279, 282 (N.Y. 1988). However, a reversal is only necessary where the defendant was deprived of fair notice that the prosecution will attempt to prove a particular theory of a criminal conduct. See United States v. Miller, [1985] USSC 81; 471 U.S. 130, 134 (1985). Furthermore, some variance between charging documents and proof at trial is to be expected because the purpose of a charging document is to give society confidence that probable cause exists “for all of the alternative theories that go forward,” whereas a conviction at trial may be obtained “on any theory contained in the indictment” that is proven beyond a reasonable doubt. United States v. LaPointe, 690 F.3d 434, 440 (6th Cir. 2012).
[ 19] While (as even tvernmenrnment admits) the Information is not a model of clarity, we reject Appellant’s argument that the Government was red to prove both the assault and recklessness through failure to follow medical advice. Alt Although the Information can be read as if it is phrased in the conjunctive, it is well established that the Government has a “right to charge in the conjunctive and prove in the disjunctive.” Id. The question then is, whether the charging document in this case provided sufficient notice to Appellant that the Republic will seek to prove manslaughter by proving either an assault that led to the fatal trauma, or reckless failure to follow medical

advice to seek medical attention for Charlie (irrespective of who or what caused the trauma). In our view, the language alleging that Appellant “was advised by a doctor, at the scene, to take the victim to the hospital immediately, which she failed to do and instead left victim on the porch of their home overnight, in violation of l7 PNC § 1303(a)(l)” was sufficient to put Appellant on notice that the Government intends to prove that this conduct amounts to manslaughter. We, therefore, conclude that the variance between the allegations contained in the Information and the proof offered at trial does not violate Appellant’s right to a fair notice of the charges and legal theories, nor did it deprive her of the opportunity to put on a complete defense.

III.

[ 20]rder to establish that Ahat Appellant’s failure to take her husband to the hospital in the face of contrary medical advice was criminally reckless, the Government must first prove that Aant had a legal, and not meot merely moral, duty to aid her husband.

A defendant can only be found guilty of [] manslaughter for failing to obtain medical help for the victim if a duty to perform the omitted act is otherwise imposed by law. The affirmative legal duty [] is the vital element of a homicide charge based upon failure to supply medical or surgical attention . . . .

40 Am. Jur. 2d Homicide § 78. “This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation.” People v. Beardsley, 113 N.W. 1128, 1129 (Mich. 1907).

[ 21]her or not such duty exiy exists is a question of law that we review de novo. 40 Am. Jur. 2d Homicide § 76 (“Criminal liability cannot be premised on a failure to act unlessparty so charged has a lega legal duty to act, and whether or not there is a legal duty is a question of law.”).
[ 22] A venerable principle of common law (admittedly one that often shocks laypeople and beginning law students) is that “there is no general duty of care imposed on a person to protect, render assistance, or to otherwise be responsible for another’s safety and welfare.” State v. McLaughlin, 621 A.2d 170, 175 (R.I. 1993). Thus, in State v. Lisa, 919 A.2d 145 (N.J. App. 2007), a New Jersey appellate court set aside an indictment for reckless manslaughter

that was based on defendant’s failure to summon emergency services for his underage friend who suffered a drug overdose. The court reasoned that as the defendant had no affirmative duty to aid the victim, the failure to act, even if it resulted in death, could not have been criminal. Id. at 579-80. Even though the court recognized “that defendant’s actions, if true, were contemptible,” it refused to “equate ‘immorality with criminality.’” Id. at 580 (quoting State v. Cohen, 158 A.2d 497, 502 (N.J. 1960) (Weintraub, C.J., concurring)).

[ 23]rule that there is no duno duty to aid another, however, is not without exceptions. The law imposes such a duty when a “special relationship” exists. McLaughlin, 621 A.2d 5. For example, under comm common law, parents are obligated to provide aid to their children. See, e.g., LaFave & Scott, Criminal Law, § 3.3 at 203 (2d ed. 1986). Similarly, a custodian may be criminally liable for failure to render aid to a person in his custody. See, e.g., State v. Kraly, 423 P.3d 1019, 1023 (Idaho 2018). “[A] duty to supply medical attention may [also] arise where one has voluntarily assumed the care of another and has secluded the helpless person such as to prevent others from rendering aid.” 40 Am. Jur. 2d Homicide § 78. It is that last category of “special relationship” that is relevant to the case at hand.
[ 24] Testimontrial (includinluding Appellant’s own words) established that Dr. Arurang stated to the assembled crowd that the decedent must be taken to the hospital as as possible. Thereafter, Appellant took control of her huer husband, transferred him to one vehicle and then another, took him home, left him there (outside of the view of anyone else), and did not seek medical aid until the next morning. Even if Appellant had no duty to aid her husband prior to taking him home,^[6] she assumed such a duty once she took steps that isolated

Charlie from others who may have called for help. When Appellant placed her husband in a car and took him away from the location of his injury, other individuals could have reasonably believed that he was being taken to a hospital and that no further action on their part was needed. By depriving Charlie of an opportunity to receive help from others, Appellant assumed the duty to help him herself.

IV.

[ 25]Government must next shot show that Appellant not only breached her legal duty to the victim, but that such breach was reckless. 17 PNC § 1303(a)(1). Undlauan law, law, “[a] n acts recklessly with resp respect to a result of his or her conduct when he or she consciously disregards a substantial and unjustie risk that his or her conduct will cause such a result.t.” Id. § 207(c)(3#8220;A risk is subs substantial and unjustifiable . . . if, considering the . . . the circumstances known to [the defendant], the disregard of the risk involveross deviation from the standard of conduct that a law-abid-abiding person would observe in the same situation.” Id. § 207(c)(4). Whether ora defa defendant acted with the requisite mens rea is a question of fact and subject to a clear error review. See Tulop, 2021 Palau 9 32-35; Uchau v. ROP, 2017 Palau 34 24-27. Because following a conviction Appellant “no longer enjoys a presumption of innocence . . . we review the evidence adduced at trial ‘in the light most favorable to the prosecution’” and draw all inferences in prosecution’s favor. Xiao, 2020 Palau 4 8 (quoting Wasisang, 19 ROP at 90).
[ 26] In her briefs and at aral argument, Appellant contended that her behavior simply does not rise to the level of recklessness. She emphasized that thtim did not have any visible injuries and simply looked as if he had passed out from too muoo much drinking. Thus, according to Appellant, it was not reckless to wait until the next day to seek medical attention for her husband. The record, even when viewed in light favorable to Appellant, much less in light favorable to the Government, belies these contentions.
[ 27] Tin with, Appellant wast was explicitly advised by Dr. Arurang that her husband was in need of medical attention. She does not de this fact or claim that she somehow was unaware of, or misunderstood the advice. This fais fact alone is sufficient to show that even if in other circumstances it may have been reasonable to think that lack of visible injuries indicate that the victim’s condition does not warrant medical attention, in this case, such an assumption indicates a “conscious[] disregard[] [of] a substantial and unjustifiable risk.”

17 PNC § 207(c)(3). Furthermore, Appellant’s own behavior indicates that despite not seeing any external evidence of trauma she understood her husband’s injury to be extremely serious. In her own testimony she admitted that she “panicked” because she thought that her husband was dead. That is hardly consistent with her current argument that she thought that he was simply drunk and passed out and will regain consciousness upon sobering up. Appellant argues that even though she initially thought that her husband was dead, she was “reassured” by her cousin, Geggie Bai, that Charlie is “just sleeping.” However, unlike Dr. Arurang, Ms. Bai is not a medical professional. Relying on Ms. Bai’s advice to “relax” while ignoring Dr. Arurang’s advice to take the victim to the hospital is “a gross deviation from the standard of conduct that a law-abiding person would observe in the same situation.” Id. § 207(c)(4).

[ 28]llant’s other beha behavior also supports a finding of criminal recklessness. Her return to the party while her incapacitated husband was left at home alone is particularly egregious. lant argues that she only rnly returned to the party to get a ride back to her house. According to her version of events, after depositing Charlie at home, she walked over to Charlie’s sister house to see if she could render assistance. Appellant testified that given the relative location of her and her sister-in-law’s houses, returning to the party to request a ride home was quicker than walking back home directly. The story has an air of implausibility to it, but even if we were inclined to credit it had we been triers of fact, we are constrained by our standard of review to instead credit the Republic’s version of events, viz., that Appellant left Charlie at home, and, ignoring his critical state, returned to the revelries.^[7]
[ 29] In shonder any standardndard of review, and certainly given the deference owed to the trial court’s determination of factual matters, we have no trouble concluding that the Government proved, d a reasonable doubt,

that Appellant’s conduct was not merely morally opprobrious, but reckless within the definition of the Palau National Code.

V.

[ 30]last element that the Rehe Republic was required to prove in order to obtain a conviction was that Appellant’s reckless actions caused the victim’s death. 17 PNC § 1303(a)(1)220;A person commits the ofhe offense of manslaughter if [he] recklessly causes the death of another person.”) (emphasis added).

To show cause in fact, or proximate cause, where [a person] dies for want of medical care and the case does not involve two causes, each alone sufficient to bring about the harmful result, the state is required to show that but for the [defendant]’s failure to provide medical care, the [victim] would not have died. If the death was not proximately caused by the defendant’s failure to provide medical attention, he or she cannot be convicted.

40 Am. Jur. 2d Homicide § 78.^[8] It is here that the Republic stumbles.

[ 31]ation is a question of f of fact. See State v. Abella, 454 P.3d 482, 497 (Haw. 2019) (“Causation is a question of fact (and an element of the offense of manslaughter) and erefore reserved for the . he . . . fact finder to determine.”). Accordingly, we view the record in light most favorable to the prosecution and defer to trial court’s findings. Xiao, 2020 Palau 4 8. However, “‘deference does not imply abandonment or abdication of judicial review,’ and ‘does not by definition preclude relief.’” Brumfield v. Cain, 576 U.S. 305, 314 (2015) (quoting Miller–El v. Cockrell, [2003] USSC 1643; 537 U.S. 322, 340 (2003)). We therefore must ensure that the record contains at least some evidence that Appellant’s failure to obtain medical care for her late husband was a “but for” cause of his death. See United States v. Young, [1994] USCA11 2277; 39 F.3d 1561, 1565 (11th Cir. 1994) (“If there is a lack of evidence from which a reasonable fact-finder could find guilt beyond a reasonable doubt, the conviction must be

reversed.”). Unfortunately for the prosecution, the record is entirely devoid of such evidence.

[ 32]ral medical professionalionals testified for the prosecution. In addition to Dr. Arurang (whose involvement ended following his recommendation to take Charlie to the hospital), the Republic c Dr. Selailama Lalabalavu (avu (aka “Dr. Lala”) and Dr. Emais Roberts to the stand. Dr. Lala treated Charlie after he was brought to the hospital, whereas Dr. Roberts was responsible for performing the autopsy on Charlie’s body once Charlie passed away. Dr. Lala provided testimony about Charlie’s condition and treatment. She, however, was not asked and did not opine on what the outcome of Charlie’s injury would have been had he been brought to the hospital earlier. To the contrary, Dr. Lala noted that the physicians did not immediately discover his head injury and first treated him for suspected aspiration pneumonia.^[9] Dr.

Lala testified that her diagnosis evolved and changed as time progressed, and that eventually a CT scan of the head was ordered. The scan showed that Charlie suffered massive injuries. See Tr. Vol. I at p. 121, ll. 7-9 (“We found a lot of bleeding inside the brain. And it was quite extensive. Multiple sites where there was bleeding on the CT scan.”). However, nothing in Dr. Lala’s testimony indicated that earlier medical intervention would have saved Charlie’s life or even provided an increased chance of successful treatment. To the contrary, Dr. Lala testified that Charlie’s “outlook was really poor and basically he was on his way out.” Id. at 128, ll. 8-9. Dr. Lala alstified that she dide did not determine the cause of death, and instead relied on Dr. Roberts to do so following an autopsy. Id. at 123, ll. 8-10; at 127, ll. 27-28; at 128, ll.3-6.

[ 33]testimony of Dr. Robertsberts also does not establish a causal link between Appellant’s behavior and Charlie’s demise. Dr. Roberts testified that, at the request of the Ministry otice, he performed an autopautopsy on the victim so as to establish a cause of death. In his testimony, Dr. Roberts opined that the cause of death was brain injury caused by intracranial bleeding which itself was caused by trauma. Id. at 164-66. The in-court testimony was consistent with the autopsy report that Dr. Roberts prepared on April 27, 2019 which states the cause of death was “[e]xtensive [i]ntracranial [h]emorrhage causing brain tissue damage.” Exh. 5, p. 3. But Dr. Roberts was not asked, and he did not opine on how quickly the blood may have accumulated in the victim’s brain, nor whether given the extent of the injury, any medical intervention, at any time, would have been beneficial.^[10]

[ 34] At oral argument, the Republic suggested that although Palau does not have a resident neurosurgeon, an emergency trepanation could have been performed to relieve the pressure on the brain, which in turn would have allowerlie to be transferred off- off-island for more definitive treatment. This was not raised at trial and we are unable to take judicial notice to supplement the record on appeal of a fact subject to reasonable dispute. See Napoleon v. Children of Masang Marsil, 17 ROP 28, 32 (2009).^[11] Judicial notice on appeal should not be used as a tool “to subvert a trial court’s role as the finder of fact.” Id. at 34. We are not triers of fact and have no way of knowing whether such procedure could have been performed, or if performed would have yielded positive results. We are simply not in a position, and lack sufficient knowledge and information, to resolve this complex medical question. It is an issue that should have been explored at trial, where medical professionals could have offered expert testimony and been cross-examined on these questions. We, on the other hand, must take the record as we find it. In the absence of any testimony or documentary evidence suggesting that earlier medical intervention would have saved Charlie’s life (or at least increased his chances of survival), we must conclude that no such proof exists.

[ 35 absence of proof of a ca a causal connection between Appellant’s reckless conduct and her husband’s death dooms the Republic’s case for mansler. See 40 Am. Jur. 2d Homicide § 78 (“[220;[T]he state is required to show that but for the [defendant]’s failure to provide medical care, the [victim] would not have died. If the death was not proximately caused by the defendant’s failure to provide medical attention, he or she cannot be convicted.”). While, at this stage of litigation, we must draw all inferences in favor of the Government, no amount of favorable inferences can make up for a complete absence of evidence. See United States v. Ceballos, [2003] USCA2 318; 340 F.3d 115, 125 (2d Cir. 2003) (“[I]nferences must be based on evidence and . . . [the] verdict must be reasonably based on evidence presented at trial.”) (cleaned up). We are therefore constrained to reverse Appellant’s conviction.^[12]

CONCLUSION

[ 36] The Trial DivisionRj7;s judgment of conviction with respect to Appellant, Chelsea Ngirakesiil, is REVERSED and she is DISCHARGED.^[13]