Cite as Bagaw v. State of Yap, (Yap, 1992)
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Appeal No.1992-001
(From Crim. Case No. 1990-125)


ARGUED: September 29, 1992
DECIDED: November 13,1992

Hon. Martin Yinug, Associate Justice, FSM Supreme Court*
Hon. Soukichi Fritz, Chief Justice, Chuuk State Court*
Hon. Jesus C. Borja, Associate Justice, Supreme Court of the Commonwealth of the Northern Mariana Islands*
*(by special designation to Yap State Court for this case)
For the Appellant:           Marvin Hamilton
                                                                  Yap Public Defender
                                                                  Colonia, Yap 96943
                        For the Appellee:          Joseph W. Clough
                                                                Assistant Attorney General
                                                                Colonia, Yap 96943

* * * * * * * *

MARTIN YINUG, Associate Justice:

     This case comes to us on appeal of a decision to revoke probation of a criminal defendant. The single issue presented is whether the trial court erred in failing to consider defense of a third person as a justification for the defendant's  

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actions in assaulting two boys. For the reasons discussed below, we find no error and affirm the lower court's decision.

     The appellant/defendant in this case was convicted of Assault with a Dangerous Weapon on November 14, 1990 and sentenced to four years in the Yap State jail. This sentence was modified on December 18, 1990 to allow the defendant, Hilary Bagaw, to pay a fine instead of staying in jail and remain on probation for the length of his term.

     In February 1991 the government charged Mr. Bagaw with Assault and Battery in violation of 11 Y.S.C. 210 and filed a Petition to Revoke Probation. After evidentiary hearings on this petition, the trial court ruled that Mr. Bagaw had violated his probation by committing the crime charged and was therefore ordered to serve the remainder of his original sentence in Yap State jail. The defendant filed a notice of appeal and a Motion to Stay Execution of Sentence Pending Appeal. The trial court granted the stay while imposing certain conditions of release.

     The following are undisputed facts concerning the incident prompting Mr. Bagaw's probation revocation:

     On February 9, 1991 Mr. Bagaw became involved in a scuffle with two boys, Tuwun and Tithin, who were chasing and throwing rocks at another boy, Funuy. After scolding Tuwun and Tithin for throwing stones at Funuy, Bagaw slapped both boys, hit one with a ukelele, and kicked the other one. Mr. Bagaw was commended by an observer, a nearby hospital security guard, for

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his intervention.

     At the end of his revocation hearing, defendant argued that his actions in beating the boys should be excused as defense of a third person. The trial court in its ruling did not state any facts or conclusions regarding this issue; however, at the hearing on defendant's motion to stay execution pending appeal, the Court did note that in its view the facts did not seem to support defendant's assertion of this defense. (Sentencing Transcript, pp. 28-29.) The trial judge granted the stay so that the Appellate Division could consider the third person defense claim. (Sentencing Transcript, p.29.)

     The appellant argues that it was erroneous and an abuse of discretion for the trial court to fail to reach conclusions of law regarding the defense of a third person claim raised at the revocation hearing. The government challenges this argument largely by charging that appellant is precluded from even raising an appeal on this issue because he failed to request specific findings of fact at the hearing pursuant to Rule 23 of Yap Rules of Criminal Procedure. While we uphold the trial court's decision we decline to follow the government's principal rationale for doing so.

     There is no case law interpreting either Yap Crim. Pro. R. 23 or FSM Crim Pro. R. 23 regarding special findings and issue preclusion on appeal. Since the Yap rule closely tracks U.S. Fed. R. Crim. Proc. 23, it would be useful to look to U.S. sources as a guide in interpreting this rule. There we find no

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definitive view to the effect that a defendant automatically waives his right to appeal on an issue if he fails to request special findings at the original proceeding.

If the accused makes no request for special findings, the reviewing court is free to interpret the evidence in order to produce findings in support of the court's judgment of conviction. In order to preserve the issue on appeal, the defendant should request the court to make special findings, even though there is authority to the effect that noncompliance with this requirement does not foreclose defendant from raising the point on appeal.

9 Fed. Proc., L. Ed. 22:783 (1992) (cites omitted) (emphasis added).  

     Specific findings are not mandated by Rule 23, and we see nothing in the rule which makes such findings a prerequisite for reaching conclusions of law within a general ruling. Therefore we do not find that a waiver rule applies under Yap State law such that a defendant must make a request for specific findings at trial or lose the right to raise the issue on appeal.  

     While defendant is thus not blocked from his appeal on procedural grounds, the Court declines to adopt his view that the trial court was under an obligation to list separate conclusions of law on the third person defense claim. Defense of a third person does not presently exist under Yap state law, and thus the lower court was not bound to consider it and issue findings or come to conclusions about it. The trial court did, in fact, acknowledge that the claim had been raised but that it did not seem applicable in this case. As the reviewing court we have no trouble in finding that the record amply supports the revocation decision, and for the reasons set forth below we

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will neither reverse the decision nor remand for further findings.

     We note that in some jurisdictions, defense of a third person may be pleaded as a defense in a prosecution for assault and battery. Although defense counsel at oral argument identified several policy considerations commending this particular common law defense, this Court is reluctant to adopt it as Yapese law in the absence of customary and legislative evidence in support.
     Under the Yap Constitution's judicial guidance clause, Art. VII, sec. 7, court decisions must be consistent with . . . State traditions and customs, and the social and geographical configuration of the State." Yapese custom does not address whether a person is justified in using force to protect a third person to whom he is not related.

     The Yap State Legislature has not specifically adopted the common law defense of a third person, although it had access to the Model Penal Code upon which the Yap Penal Code is based. The Model Penal Code does provide for use of force in protecting another when the intervenor would be justified in using reasonable force in protecting himself were he in the third person's place, and if the intervenor believes his action is necessary for the protection of the other person. Model Penal Code 3.05. The Legislature may, of course, still adopt this part of the Model Penal Code as Yap State law in the future, but as of today it does not form part of our enacted law.

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     Even if this Court were to establish on its own initiative the defense of a third person as a viable defense in criminal prosecutions, we would be faced with various models to choose from. One version holds that in order for the defense to be asserted, a special relationship must have existed between the defendant and the person assisted, e.g. parent-child or spouse-spouse. Another version allows the defense regardless of relationship, but the defendant "steps into the shoes of" the third person (i.e. if the assisted person was in fact the aggressor in an attack and not the victim, the intervenor will not be able to invoke the benefits of the third-person defense). The Model Penal Code and some U.S. states "take the view that the rescuer is not chargeable with the apparent victim's knowledge of the situation, but is justified in intervening if it reasonably appears to him, on the basis of what he observes and knows, that the force used on the assailant is necessary to prevent death or serious bodily injury to the apparent victim." 6 Am Jur 2d 63 (1992) (cites omitted).

     One element that is common to all versions of the defense is that an intervenor is not entitled to use any more force than is reasonably necessary to protect the person assisted, or any more force than the intervenor would be entitled to use were he acting in self-defense. We agree with the trial court's observation that the facts of this case would thus not seem to warrant application of the defense, as the evidence fails to show that the amount of force the defendant used to

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stop the boys from attacking Runuy was reasonable.

     This defense, if it is to be developed as judicially created law, should come about after further evaluation at the trial level and in full consideration of Yapese custom and tradition in deciding whether any one of the existing renditions of the common law defense or some other modified version is appropriate here. The circumstances of this case do not provide the appellate panel with enough grist to declare new law.

     Our decision today should not be taken to mean that defense of a third person may never be part of Yap state law. However, for the reasons listed above adoption of this defense must await more considered development either legislatively or through trial level law.
     The decision of the trial court is AFFIRMED.

     So ordered the 13th day of November, 1992.

     Martin Yinug, Associate Justice FSM Supreme Court

     Soukichi Fritz, Chief Justice, Chuuk State Court

     Jesus C. Borja, Associate Justice,
Supreme Court of the Commonwealth of the Northern Mariana Islands
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