FSM SUPREME COURT APPELLATE DIVISION

Cite as Nena v. Kosrae, 14 FSM Intrm. 73 (App. 2006)

[14 FSM Intrm. 73]

SINGEO N. NENA and ELSIN G. JACK,

Appellants,

vs.

STATE OF KOSRAE,

Appellee.

APPEAL CASE NO. K1-2004

OPINION

Argued: August 25, 2005

Decided: February 14, 2006

BEFORE:

      Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court

      Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

      Hon. Dennis K. Yamase, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellants:   Harry A. Seymour, Esq.

                                   Office of the Public Defender

                                   P.O. Box 245

                                   Lelu, Kosrae   FM   96944

For the Appellee:   Edwin R. Mike, State Prosecutor

                                Arthur N. Buck, Esq. (brief)

                                J.D. Lee, Esq. (argument)

                                (supervising attorneys)

                                Kosrae Attorney General

                                P.O. Box 870

                                Tofol, Kosrae   FM   96944

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HEADNOTES

Appellate Review ) Standard of Review ) Criminal Cases

    Generally, when a criminal defendant has failed to raise and preserve an issue, he has waived his right to object, but when a plain error that affects the defendantís constitutional rights has occurred, the court may notice that error on its own. An appellate court may notice plain error when the error affects a criminal defendantís substantial rights. Nena v. Kosrae, 14 FSM Intrm. 73, 77 (App. 2006).

Criminal Law and Procedure ) Public Trial

    The FSM Constitution guarantees every criminal defendant the right to a public trial, as does the

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Kosrae Constitution. A criminal defendantís right to be present at trial extends to all stages of trial, including the return of the finding or verdict, even in a bench trial. Nena v. Kosrae, 14 FSM Intrm. 73, 78 (App. 2006).

Criminal Law and Procedure ) Public Trial

    The defendant shall be present at every stage of the trial including the finding of the court, and the judgeís finding must be returned in open court. Nena v. Kosrae, 14 FSM Intrm. 73, 78 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases; Criminal Law and Procedure ) Public Trial

    Under the constitutional guarantee of a public trial, an accused and the public both have a constitutional right that the courtís finding be announced publicly in open court with the accused present. This is true whether the finding is guilty or not guilty. Violation of this constitutional protection is not subject to a harmless error analysis and the defendant need not show any prejudice. Nena v. Kosrae, 14 FSM Intrm. 73, 78 (App. 2006).

Criminal Law and Procedure ) Public Trial

    The announcement of the decision to convict or acquit is neither of little significance nor trivial; it is the focal point of the entire trial. To exclude the public, the defendant, the prosecution, and defense counsel from such a proceeding)indeed not to have a proceeding at all)affects the integrity and legitimacy of the entire judicial process. Nena v. Kosrae, 14 FSM Intrm. 73, 78 (App. 2006).

Criminal Law and Procedure ) Public Trial

    The remedy for the constitutional violation of not pronouncing a defendant guilty or acquitted in open court is not a new trial on the merits ) instead the finding (and conviction) is vacated and the case is returned to the trial court for it to make a public pronouncement of its decision. Since a pronouncement in open court is constitutionally required, no other remedy is adequate. Nena v. Kosrae, 14 FSM Intrm. 73, 78 (App. 2006).

Criminal Law and Procedure ) Public Trial

    The trial court must, in all criminal trials, orally pronounce in open court its finding of guilty or not guilty on each count tried. The trial court may issue written findings at the conclusion of the oral proceeding in open court if it so chooses or if a party has requested special findings and they are lengthy. Nena v. Kosrae, 14 FSM Intrm. 73, 79 (App. 2006).

Attorney and Client) Disqualification of Counsel

    A lawyer must not represent a client if the representation of that client may be materially limited by the lawyerís responsibilities to another client unless 1) the lawyer reasonably believes the representation will not be adversely affected; and 2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation must include explanation of the implications of the common representation and the advantages and risks involved. Nena v. Kosrae, 14 FSM Intrm. 73, 79 (App. 2006).

Attorney and Client) Disqualification of Counsel; Criminal Law and Procedure ) Right to Counsel

    In criminal cases the potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and FSM MRPC R. 1.6(b)ís requirements are met. Nena v. Kosrae, 14 FSM Intrm. 73, 79 (App. 2006).

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Criminal Law and Procedure ) Right to Counsel

    It is an uncommon case where joint representation of criminal defendants is proper since the potential for conflict of interest in representing multiple criminal defendants is so grave that ordinarily a lawyer should decline to represent more than one codefendant. Nena v. Kosrae, 14 FSM Intrm. 73, 79 (App. 2006).

Criminal Law and Procedure ) Right to Counsel

    Because prejudice is presumed when counsel is burdened by an actual conflict of interest an attorney representing criminal codefendants with conflicting interests denies a defendant his constitutional right to effective assistance of counsel. Nena v. Kosrae, 14 FSM Intrm. 73, 79 (App. 2006).

Attorney and Client) Disqualification of Counsel; Criminal Law and Procedure ) Right to Counsel

    Rule 44 requires that the trial court inquire into possible conflicts when criminal defendants are charged or tried together and are represented by the same counsel or firm, and unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court must take such measures as may be appropriate to protect each defendantís right to counsel. Nena v. Kosrae, 14 FSM Intrm. 73, 79-80 (App. 2006).

Criminal Law and Procedure ) Right to Counsel

    A danger of representing criminal codefendants is that in any case with codefendants, one (or more) codefendant may insist upon his right to testify even if counsel advises against it since a criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. When one codefendant testifies and another codefendant is represented by the same counsel, the other codefendant is deprived of effective assistance of counsel because he is unable to cross-examine the testifying defendant. Nena v. Kosrae, 14 FSM Intrm. 73, 80 (App. 2006).

Criminal Law and Procedure ) Right to Counsel

    Even if codefendantsí testimony would be entirely consistent, defendants jointly tried may present a conflict because of the advantages and disadvantages of taking the stand may vary substantially as between them. A decision to have them testify or not testify might work to the disadvantage of one or the other, while a decision to have only one testify will undoubtedly highlight the lack of testimony from the other. Although these tensions between the codefendantsí interests may be lessened somewhat by separate trials, multiple representation may present various conflicts even in that setting. Nena v. Kosrae, 14 FSM Intrm. 73, 80 (App. 2006).

Criminal Law and Procedure ) Right to Counsel

    When a conflict between two codefendants may not have been obvious initially, but once one of the defendants testified, it was apparent and it turned out to be prejudicial, although it was entirely likely that if the defendants had been tried separately or if neither defendant had testified there would have been no conflict, the remedy for a defendant who had ineffective assistance of counsel is to reverse the conviction and remand for a new trial. Reversal of a conviction is warranted when there has been no inquiry into waiver of any conflict of counsel jointly representing codefendants, no hint of a waiver appears on the record, and an actual conflict existed. A new trial is then proper. Nena v. Kosrae, 14 FSM Intrm. 73, 81 & n.4 (App. 2006).

Criminal Law and Procedure ) Accessory

    Under Kosrae State Code section 13.201, the three elements needed for a conviction of accessory under Section 13.201 are: 1) that the accused knew that an offense had been committed; 2) that the accused knew of anotherís commission of an offense; and 3) that the accusedís assistance

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must have been given to another personally for the purpose of hindering or preventing his apprehension. Nena v. Kosrae, 14 FSM Intrm. 73, 81 (App. 2006).

Criminal Law and Procedure ) Accessory; Statutes ) Construction

    Since a statutory provisionís plain meaning must be given effect whenever possible and courts should not broaden statutes beyond the meaning of the law as written, when there is no requirement in Section 13.201's express language that the accused be absent at the time the offense was committed, absence is thus not an essential element of the offense of accessory. Nena v. Kosrae, 14 FSM Intrm. 73, 82 (App. 2006).

Criminal Law and Procedure ) Arrest and Custody

    If an arrested person refuses to submit or attempts to escape, the arresting person may use the force necessary to compel submission. In effecting an arrest, a police officer may not employ more force than he reasonably believes to be necessary. The reasonableness of a police officerís conduct while making an arrest must be assessed on the basis of information that the officer had when he acted. Nena v. Kosrae, 14 FSM Intrm. 73, 82 (App. 2006).

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COURTíS OPINION

DENNIS YAMASE, Associate Justice:

    This appeal arises from the Kosrae State Courtís June 17, 2004 conviction of Singeo N. Nena and Elsin G. Jack each on one count of obstructing justice, Kos. S.C. ß 13.611, and on one count of being an accessory, Kos. S.C. ß 13.201. Kosrae v. Nena, 12 FSM Intrm. 525, 530-31 (Kos. S. Ct. Tr. 2004). Nena and Jack were charged with and convicted of the offenses of accessory and obstruction of justice for their actions in aiding a relative, Gerson Nena (Singeo N. Nenaís brother and Elsin G. Jackís cousin), who, as a result of their actions, evaded arrest by a Kosrae state police officer that was attempting to apprehend him.

    The convictions are vacated, and a new trial is ordered for defendant Singeo N. Nena. Defendant Elsin G. Jackís case is remanded to the trial court so that it may set a date at which it shall pronounce its general finding in open court. The courtís reasons follow.

I.  Background

    The trial of Nena and Jack was held on April 22, 2004. On June 17, 2004, the trial court entered its written judgment of conviction finding both Nena and Jack guilty of accessory and obstructing justice. On June 25, 2004, Nena and Jack filed their appeal. On June 29, 2004, the trial court entered an order continuing sentencing of the appellants pending this appeal.

    The trial courtís findings of fact and conclusions of law are as follows: Lt. Harry Jackson, a Kosrae police officer, was in his house one evening when he heard loud noises outside his home. He went outside and saw Gerson Nena. Lt. Jackson followed Gerson and spoke to him and his friends. Gerson was intoxicated. Gerson and his friends left the area and Lt. Jackson followed them. Lt. Jackson heard Gerson shouting and using profanity. Lt. Jackson then announced the arrest of Gerson and attempted to arrest him.

    In trying to arrest Gerson, Lt. Jackson used restraint techniques he had learned in training to subdue an intoxicated person. He held Gerson by holding his arm behind his back while Gerson was

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on the ground. Gerson cried out three times saying that he was in pain and asked to be released.

    Having heard Gersonís cries, Nena and Jack grabbed Gerson and tried to reposition or pull him to a standing position while Lt. Jackson was still holding on to Gersonís right arm. Lt. Jackson warned Nena and Jack not to do this. When Gerson stood up with the assistance of Nena and Jack, he was released, and walked away.

    Nena admitted that he knew that Gerson had committed a criminal offense and that he came to Gersonís aid because he heard Gersonís cries for help and because they are related. Nena testified that Lt. Jackson had announced Gersonís arrest and that he, with Jackís assistance, released Gerson from Lt. Jackson so that he could be delivered to his other relatives.

    The trial court concluded that Nena and Jack, through their actions, did comfort and assist Gerson in order to prevent his apprehension or arrest by Lt. Jackson. They knew that Gerson had committed a criminal offense and that Lt. Jackson was attempting to arrest him. Jack admitted that they were trying to get Gerson away from Lt. Jackson so that he could be delivered to other relatives.

    Gerson Nena was convicted of drunk and disorderly conduct in violation of Section 13.504 and offensive behavior in a public place in violation of Section 13.508 of the Kosrae State Code. State v. Gerson Nena, Crim. Case No. 22-04, Judgment of Conviction and Sentencing Order, (Kos. S. Ct. Tr. June 8, 2004).

II.  Issues Presented by the Appellants

The issues as presented by the appellants in this case are:

1.   Was the trial courtís finding that the appellants, knowing that an offense has been committed, assisted Gerson in order to hinder his arrest, clearly erroneous?

2.   Was the trial courtís finding that the appellants interfered with a police officer in the lawful pursuit of his duties, clearly erroneous?

III.  Issues Reviewable under the Plain Error Doctrine

    Generally, when a criminal defendant has failed to raise and preserve an issue, he has waived his right to object, but when a plain error that affects the defendantís constitutional rights has occurred, the court may notice that error on its own. Moses v. FSM, 5 FSM Intrm. 156, 161 (App. 1991) (plain error for trial court not to have considered whether criminal defendant waived right to silence). An appellate court may notice plain error when the error affects a criminal defendantís substantial rights. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477 (App. 1996) (criminal conviction of two defendants who never appeared for trial was plain error).

There are two issues not raised that the court will consider under the plain error doctrine. The court raised the issues of public trial and the dual representation at oral argument and questioned counsel about them.

A.  Public Trial

    At the end of the defendantsí criminal trial on April 22, 2004, the trial judge took the matter under advisement. Kosrae v. Nena, 12 FSM Intrm. at 527. On June 17, 2004, the trial judge issued

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a written Judgment of Conviction; Order Setting Sentencing Hearing. No sentencing hearing was held, although one was set. The defendants had not been ordered to appear before the trial court for the court to deliver its findings orally and to render its verdict publicly before the written order was issued. Instead only a written order was issued. At oral argument, counsel for both sides acknowledged that not only were the defendants never called before the trial court for the court to pronounce its findings of guilty or not guilty, but also that it was the trial courtís usual practice that, when it took a matter under advisement after closing arguments in a criminal trial, the findings were made in writing and there were no further public proceedings unless a conviction resulted and a sentencing hearing was held. This is plain constitutional error.

    The FSM Constitution guarantees every criminal defendant the right to a public trial, FSM Const. art. IV, ß 6, as does the Kosrae Constitution, Kos. Const. art. II, ß 1(e). A criminal defendantís right to be present at trial extends to all stages of trial, including the return of the finding or verdict, even in a bench trial. United States v. Canady, 126 F.3d 352, 360 (3d Cir. 1997) (in criminal case tried to the bench, trial court mailed the judgeís findings to the parties). This includes the courtís delivery of its finding or verdict because the courtís pronouncement of its decision is a stage of the trial. The Kosrae Rules of Criminal Procedure acknowledge this. "The defendant shall be present . . . at every stage of the trial including the finding of the court . . . ." Kos. Crim. R. 43(a). "The finding of the judge shall be returned in open court." Kos. Crim. R. 31(a).

    Under the constitutional guarantee of a public trial, an accused and the public both have a constitutional right that the courtís finding be announced publicly in open court with the accused present. Canady, 126 F.3d at 362-63. This is true whether the finding is guilty or not guilty. Id. at 363. Violation of this constitutional protection is not subject to a harmless error analysis and the defendant need not show any prejudice. Id. at 363-64. This is because

[t]he announcement of the decision to convict or acquit is Ďneither of little significanceí nor Ďtrivial;í it is the focal point of the entire trial. To exclude the public, the defendant, the prosecution, and defense counsel from such a proceeding)indeed not to have a proceeding at all)affects the integrity and legitimacy of the entire judicial process.

Id. at 364. The remedy for this constitutional violation is not a new trial on the merits ) instead the finding (and conviction) is vacated and the case is returned to the trial court for it to make a public pronouncement of its decision. Id. Since a pronouncement in open court is constitutionally required, no other remedy is adequate. Id.

    Thus, since the trial judge never pronounced his decision from the bench (and was constitutionally required to do so before issuing a written opinion), the convictions are vacated and remanded to the trial court at the point when the trial ended on April 22, 2004 and the judge took the matter under advisement. On remand, the trial court shall set a date for it to orally deliver its general finding (guilty or not guilty).

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    Henceforth, the trial court, if it has not already done so, shall, in all criminal trials, orally pronounce in open court its finding of guilty or not guilty on each count tried. The trial court may issue written findings at the conclusion of the oral proceeding in open court if it so chooses or if a party has requested special findings, Kos. Crim. R. 23, and they are lengthy.

B.  Multiple (Dual) Representation

    The defendants were both represented at trial (and on this appeal) by the same counsel. Representation of more than one codefendant in a criminal case is not favored.

    A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyerís responsibilities to another client . . . unless:

(1)   the lawyer reasonably believes the representation will not be adversely affected; and

(2)   the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

FSM MRPC R. 1.6(b). This is particularly important in criminal cases because

[t]he potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of paragraph (b) are met.

    FSM MRPC R. 1.6 cmt. It is an uncommon case where joint representation of criminal defendants is proper since the potential for conflict of interest in representing multiple criminal defendants is so grave that ordinarily a lawyer should decline to represent more than one codefendant. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 479-80 (App. 1996). Because "[t]he potential for a conflict in the representation of codefendants is so grave that many attorneys simply will not undertake joint representation." 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure ß 11.9, at 76 (1984). Because prejudice is presumed when counsel is burdened by an actual conflict of interest an attorney representing criminal codefendants with conflicting interests denies a defendant his constitutional right to effective assistance of counsel. Ting Hong Oceanic Enterprises, 7 FSM Intrm. at 479 (court noticed as plain error attorneyís conflict of interest); see also Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981) (under plain error doctrine, U.S. Supreme Court noticed plain error of attorneyís conflict in representing codefendants).

    Kosrae Criminal Procedure Rule 44 requires that the trial court inquire into possible conflicts when criminal defendants are charged or tried together and are represented by the same counsel or firm.

Whenever two or more defendants have been jointly charged pursuant to Rule 8(b), or have been joined for trial pursuant to Rule 13, and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation. Unless it appears that there is good cause to believe no conflict of interest is likely to

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arise, the court shall take such measures as may be appropriate to protect each defendantís right to counsel.

Kos. Crim. R. 44. When questioned at oral argument, counsel indicated that no such inquiry had been made.

    This particular case illustrates a danger of representing codefendants. In any case with codefendants, one (or more) codefendant may insist upon his right to testify even if counsel advises against it. "A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel." FSM MRPC R. 3.3 cmt. When one codefendant testifies and another codefendant is represented by the same counsel, the other codefendant is deprived of effective assistance of counsel because he is unable to cross-examine the testifying defendant.

At trial, one of the codefendants, Elsin G. Jack, testified and the other, Singeo Nena, did not. The trial judgeís written opinion erroneously named Singeo Nena as testifying for the defense and further stated, in his findings of fact, that

Defendant Singeo Nena admitted that he knew that Gerson had committed a criminal offense. Defendant Nena also admitted that he came to Gersonís rescue because they were related and because he heard Gersonís cries for help. Defendant Nena testified that Lt. Jackson had announced Gersonís arrest, and that he, with Elsin Jackís assistance, came to Gerson to release him from Lt. Jackson and to deliver Gerson to other relatives.

    Nena, 12 FSM Intrm. at 527. From the transcript, it is clear that the other defendant, Elsin G. Jack, not Singeo Nena, testified. (The appellantsí brief also states that Elsin Jack was the defendant who testified.)

    The trial judge, as part of his conclusions of law in part of the written opinion discussing the offense of accessory, states, "Defendants admitted that they were trying to get Gerson away from Lt. Jackson, so that he could be delivered to other relatives." Nena, 12 FSM Intrm. at 528. Jack did testify that when he went to Gersonís aid that he assumed that Gerson had committed an offense. Tr. at 106. Defendant Singeo Nena didnít testify. Nevertheless, the trial judge extended Jackís testimony to cover defendant Nena. Since Nena was represented by the same counsel as Jack, the testifying defendant, he was not able to have "his" counsel cross-examine Jack to limit the application of Jackís testimony only to Jack, and not to Nena.

Even if [codefendantsí] testimony would be entirely consistent, defendants jointly tried may present a conflict because of the advantages and disadvantages of taking the stand may vary substantially as between them. A decision to have them testify or not testify might work to the disadvantage of one or the other, while a decision to have only one testify will undoubtedly highlight the lack of testimony from the other. . . . Although these tensions between the interests of codefendants may be lessened somewhat by separate trials, multiple representation may present various conflicts even in that setting.

    2 LaFave & Israel, supra, ß 11.9, at 77. In this case, the trial judge used the testifying codefendantís testimony against the non-testifying defendant and the non-testifying defendant was not able to

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challenge or limit the testimony by cross-examination because both defendants were represented by the same counsel.

Thus, the conflict between the two codefendants may not have been obvious initially, but once one of the defendants testified, it was apparent and it turned out to be prejudicial. The trial judge not only confused which defendant was the one that testified, but he extended the testifying defendantís "admission" to cover both defendants.

    The remedy for a defendant who had ineffective assistance of counsel is to reverse the conviction and remand for a new trial. Reversal of a conviction is warranted when there has been no inquiry into waiver of any conflict of counsel jointly representing codefendants, no hint of a waiver appears on the record, and an actual conflict existed. A new trial is then proper. Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 481, 483 (App. 1996). Singeo Nenaís conviction is therefore reversed and his case remanded to the Kosrae

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State Court for a new trial.

    Both defendantsí convictions are vacated and Elsin Jackís case returned to the trial court for the oral pronouncement of findings (that is, to where it was when the April 22, 2004 trial ended) and Singeo Nenaís case returned to the trial court for a new trial.

IV.   Analysis of Issues Raised by the Appellants

    The court will express an opinion, as a matter of guidance, on two legal issues imbedded in the appellantsí two asserted issues: 1) whether a conviction as an accessory requires the defendantís absence when the offense the principal was charged with was committed, and 2) whether a person may come to the aid of someone being arrested with unreasonable force.

    The appellants contend that an essential element of accessory, implied in the definition of accessory, is that the accused is absent at the time the offense was actually committed. They contend that the appellants were outside the home of Lina Hiteo when Lt. Jackson arrested Gerson, Tr. at 23, 50, 81, and that this means that the implied element of absence of the accused at the time the offense was committed could not have been found.

    The issue of whether a conviction as an accessory requires that the defendant be absent when the offense the principal was charged with was committed is a point of statutory construction. Our examination of Title 13, Section 13.201 of the Kosrae State Code indicates that this provision is generally based upon the common law offense of accessory, except that it is not limited to felonies. The three elements needed for a conviction of accessory under Section 13.201, as applied to this case, are: (1) that the appellants knew that an offense had been committed; (2) that the appellants knew of Gersonís commission of the offense; and (3) that the appellantís assistance must have been given to Gerson personally for the purpose of hindering or preventing his apprehension. See Wayne R. LaFave & Austin W. Scott Jr., Handbook on Criminal Law ∂ 66, at 522-25 (1972).

    A statutory provisionís plain meaning must be given effect whenever possible. Setik v. FSM,

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5 FSM Intrm. 407, 410 (App. 1992). Courts should not broaden statutes beyond the meaning of the law as written. Rodriguez v. Bank of the FSM, 10 FSM Intrm. 367, 368 (App. 2003); FSM v. Webster George & Co., 7 FSM Intrm. 437, 440 (Kos. 1996). There is no requirement in Section 13.201's express language that the accused be absent at the time the offense was committed. It is thus not an essential element of the offense of accessory.

    The trial court, after considering public policy and the constitutional protection of an individual from an arrest involving excessive force, accepted the common law rule that a person may resist a lawful arrest if the arresting officer uses unreasonable force. The trial court stated that in Kosrae, where many persons in the community are related and where it is customary for relatives to come to the aid of another in distress, it is appropriate to recognize the defense of others in an arrest involving a police officerís use of unreasonable force. Based upon the evidence presented, the trial court concluded that Lt. Jackson used reasonable force necessary in trying to subdue, hold, and arrest Gerson.

    Section 17.1104 of the Kosrae State Code provides that: "If an arrested person refuses to submit or attempts to escape, the arresting person may use the force necessary to compel submission." In effectuating an arrest, a police officer may not employ more force than he reasonably believes to be

necessary. The reasonableness of a police officerís conduct while making an arrest must be assessed on the basis of information that the officer had when he acted. Loch v. FSM, 1 FSM Intrm. 566, 571-72 (1982).

    Since the trial court and the appellants agree (and the appellee doesnít take a position) that the common law defense of resisting the arrest of another, where the arresting officer uses unreasonable force, is accepted and recognized as a defense to the offense of obstructing justice in the State of Kosrae, Kosrae v. Nena, 12 FSM Intrm. at 530, the court need not discuss this point further. The parties do, however, disagree whether the facts show that Gerson Nena was being subjected to unreasonable force while being arrested. Were we to review this contention we would use the clearly erroneous standard.

V.   Conclusion

    Singeo N. Nenaís conviction is vacated and the case against him is remanded to the trial court for a new trial. Elsin G. Jackís conviction is vacated and his case is remanded to the trial court so that it may set a date at which it shall pronounce its general finding in open court.

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Foot Notes:

1.   Because of the short ten-day span within which to appeal a judgment of conviction, FSM App. R. 4(b), it is good practice, although not required, for a court not to enter its judgment of conviction at the time it makes it finding, but to wait until sentencing. That way, any issues related to the sentence can be raised in the same appeal, thus conserving scarce judicial resources.

2.   On the date scheduled for sentencing, one defendant was off-island. The other defendant appeared but the trial court stayed sentencing since a notice of appeal had been filed.

3.   It is unknown whether Jack insisted on testifying or whether his testifying was a tactical decision by counsel.

4.   It is entirely likely that if the defendants had been tried separately there would have been no conflict. It is also likely that if neither defendant had testified there might not have been a conflict.

5.   Title 13, Section 13.201 of the Kosrae State Code reads in pertinent part as follows: "Accessory is knowing that an offense has been committed, and receiving, relieving, comforting, or assisting the offender in order to hinder or prevent his apprehension, trial, or punishment. . . ."

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