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Republic of the Marshall Islands v Langley [1986] MHSC 11; 1 MILR (Rev) 45 (22 July 1986)

1 MILR (Rev.) 45

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CRIM. No. 85-01

(High Ct. Crim. No. 1985-023)

REPUBLIC OF THE MARSHALL ISLANDS
Appellee,

-v-

TEEN LANGLEY,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

JULY 22, 1986

BURNETT, C.J.
TENNEKONE, A.J., and KONDO, A.J. (sitting by designation)

SUMMARY:

The Supreme Court affirmed jury findings of guilty for attempted murder in the second degree, assault and battery with a dangerous weapon, and rape. In affirming the jury's findings, the Supreme Court repeated the often stated rules (i) an appellate court will not set aside findings of a trial court unless they are clearly erroneous and (ii) an appellate court will not re-weigh evidence. The Supreme Court also ruled that where there is overwhelming evidence to support the verdict rendered, the High Court's failure to include in the jury instructions a lesser included offense is not reversible error and that where the High Court did not impose the maximum sentences authorized by law nor make the sentences imposed to run consecutively, the High Court's failure to grant the defendant credit for pre-sentence detention, in the absence of a statute requiring such a credit, was not error.

DIGEST:

1. APPEAL AND ERROR – Review – Discretionary Matters – Findings of fact: An appellate court will not set aside findings of fact of a trial court unless they are "clearly erroneous."

2. APPEAL AND ERROR – Review – Questions of Fact: An appellate court does not weigh the evidence.

3. CRIMINAL LAW AND PROCEDURE – Jury Instructions – Lesser Included Offense: Where there is overwhelming evidence to support the verdicts rendered, the High Court's failure to include in the jury instructions a lesser included offense is not reversible error.

4. CRIMINAL LAW AND PROCEDURE – Sentencing: Where the trial court did not impose the maximum sentences authorized by law nor make the sentences imposed to run consecutively, the trial court's failure to grant the defendant credit for pre-sentence detention, in the absence of a statute requiring such a credit, was not error.

OPINION OF THE COURT BY BURNETT, C.J.

Teen Langley was charged in a three-count information with the offenses of Attempted Murder in the Second Degree (Count One) 11 TTC Section 4 (2) (b) and Section 752, Assault and Battery With a Dangerous Weapon (Count Two), 11 TTC Section 204, and Rape (Count Three), 11 TTC Section 1302. Count Three was severed for purposes of trial; he brought this appeal from jury verdicts finding him guilty on all three counts.

Appellant's first assignment of error, that the weight of the evidence did not support the verdict on any of the three charges, is a true exercise in futility.

[1] We are prohibited, by Section 66 of the Judiciary Act, PL 1983-18, from setting aside findings of fact of the High Court unless they are "clearly erroneous." This provision does no more than set out the rule universally followed by appellate courts:

"[W]here the evidence is in substantial conflict, the finding of the judge or jury on issues of fact will not be disturbed." TTPI vs. Macaranas, 7 TTR 350, 353 (App. Div. 1976)

[2] It has even been said that if there is any evidence to support the jury's findings, the verdict must stand. In short, an appellate court does not weigh the evidence.

The law and the rule are founded in reason. A printed record is a poor substitute for the opportunity given a jury to observe witnesses, their demeanor, and to evaluate their credibility. We will interfere only where there is clear error; we find none here.

We consider first this assignment of error in relation to Counts One and Two, in the first trial.

A brief summary of the events taking place on the night of January 17 and early hours of January 12, 1985, as disclosed by the record, will disclose the overwhelming nature of the evidence produced against the appellant before the jury.

I.

In order to develop the proper chronology, it is necessary to begin with Count Two. On the night of January 17, a number of people, including the victim Mike Musgrave, Elenor Mack (victim in Count One) and appellant Langley together with three Gilbertese friends, were drinking in the Rainbow bar. Musgrave testified that he did not know Langley or his friends, while Langley claimed that he had met Musgrave at least twice previously. In any event, there was no evidence of any conflict among them while inside the Bar.

At about midnight, Musgrave left the Bar. Immediately thereafter he was struck from behind and knocked to the ground where he was subjected to a continuing attack, being kicked repeatedly. While trying to rise, he received one final kick just below his left eye, resulting in what medical testimony referred to as a "blowout" fracture, rupture of one of two sinuses. He was unable to identify his assailants.

Two witnesses testified that the final kick was delivered by Langley following a run from approximately 10 feet away. According to one, Langley was wearing grey tennis shoes.

Langley was the sole defense witness on Count Two. According to his story, he left the Bar about 11:45 and returned around midnight; at the time he left his car, Musgrave was already on the ground, being kicked by Langley's Gilbertese friends. He denies ever kicking Musgrave, and insists that he played the role of a peacemaker, stopping the "fight" and getting his troublesome friends into the car.

Obviously the jury found the witnesses for the prosecution to be more credible, and chose to believe them.

The crux of his argument as to the evidence is Langley's assertion that a tennis shoe cannot be termed a "dangerous weapon."

The Court instructed the jury that "a dangerous weapon is a weapon likely, in the natural course of things, to produce death or great harm, when used in the manner in which it was used in each particular case." This instruction is derived from Trust Territory High Court case law, and is consistent with holdings in other jurisdictions.

Initial inquiry must be as to the nature of the determination whether a particular article is a dangerous weapon, or not. Is the question one of law, or of fact?

"As the manner of use enters into the consideration as well as other circumstances the question is often one of fact for the jury, but not infrequently one of law for the court." (Citations omitted.) Black's Law Dictionary, Fourth Edition.

It would appear that, logically, the question will frequently be a mixed one. That is, the court will determine whether, as a matter of law, the article in question is a dangerous weapon if used in the manner and under the circumstances urged by the prosecution; it would remain for the jury to determine the facts as to its use and the surrounding circumstances.

In effect, that seems to be precisely what happened here. The jury found, as fact, that Langley delivered a vicious kick to the eye of a helpless victim; the shoe, used in that manner and under those circumstances, could well be thought likely to produce "great harm." We are unable to find such error as to warrant "appellate intervention."

II.

Appellant's contention that the evidence did not support the verdict in Count One must also fail.

After Langley had collected his friends and got then into the car, he backed his car around from in front of the bar, preparatory to driving on the main road in the direction of Delap. Had he taken the short, direct, route to the road, all would have been well; instead he drove off at an angle to pass directly in front of a small take-out stand located about 30-35 feet from the Bar.

Prosecution witnesses testified that there were a number of people standing in a group directly in front of the take-out, and thus in the line of Langley's travel. All agreed that he was traveling at a high rate of speed. One member of the group was brushed by the car and knocked to the ground. At that time, the car "almost stopped," then went forward again, knocking Elenor Mack to the ground and driving completely over her.

Two witnesses described the manner in which Langley revved his engine to a high rpm before letting out the clutch, resulting in an immediate start at high speed. Langley agreed, on cross examination, that he started that way, to go "too quick."

Appellant makes the specious argument that "attempt" was a legal impossibility under the facts shown, since there was no evidence of an external interruption of his course of action. The answer is simple – by reason of prompt medical intervention, Elenor Mack did not die. Had she succumbed, there can be little doubt that the charge would have been murder.

Appellant next urges that there was no evidence of malice, and obviously no showing of ill will towards the victim. Clearly, no such showing was required.

Without objection, the court instructed the jury that malice is implied by an act "involving a high degree of probability that it will result in death, which act is done for a base, anti-social purpose and with a wanton disregard for human life ...." It would be difficult to find a more appropriate set of facts to justify a jury finding of implied malice.

To the same effect, see Trust Territory vs. Techur, 7 TTR 412, 421 (App. Div. 1976), which also makes the point that the element of malice aforethought "does not necessarily require ill will toward the victim ...."

A further note should be made of testimony by Appellant Langley's wife, who related a visit to Elenor Mack in the hospital, prior to her evacuation to Hawaii, and Mack's purported statement that she was at fault. Even if the jury had believed her, such a statement was conclusory only, and had no probative value.

Appellant's second assignment of error, that the jury should have been instructed as to lesser included offenses, is somewhat more difficult of resolution. Certainly we may all agree that no fault could be found with a trial court that, in an exercise of caution, so instructed as a matter of course; in a close case, he probably would be required to do so.

We examine first the question whether counsel preserved this assignment of error for our review.

It is clear that the desired instructions were not submitted in written form. Prior to closing argument, counsel raised the question for the first time, still without appropriate instructions prepared for the court's consideration. Then, following the court's reading of instructions to the jury, counsel said:

"Your Honor, we approve the instructions as read."

Did counsel waive his objection? We are inclined to believe that he did, but we nevertheless consider the issue in order to determine whether the court's decision not to so instruct, sua sponte, was such egregious error as to warrant our correction. 6 TTC Section 351.

It is interesting to note that the lesser included offense doctrine was developed at common law "to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged ...." Keeble vs. United States[1973] USSC 117; , 93 S.CT 1993 (1973).

The right of a defendant, in a federal case, to a lesser included instruction is granted by Rule 31 (c) of the Federal Rules of Criminal Procedure. The Court in Keeble, supra, went on to say that it had never decided whether the Due Process Clause of the Fifth Amendment guarantees a defendant the right to the lesser included instruction. Thus, the claimed right rests on rule, rather than being grounded on constitutional values.

See also Pilon vs. Bordenkircher [1979] USCA6 143; 593 F.2d 264 (1979) where it is said that, under Rule 31 (c) F.R. Cr. P., "The Supreme Court has always held that there must be evidence which would permit the jury to rationally find the defendant guilty of the lesser included offense and acquit him on the greater offense before he is entitled to the lesser included offense instruction." (Citation omitted). To the same effect, see C. Wright and A. Miller, Federal Practice & Procedure: Criminal Section 515, p. 372.

Those states which mandate the inclusion of a lesser included offense charge to the jury generally do so on the basis of a specific rule or statute. We have no such rule or statute on which to rely.

[3] It is clear, of course, that the evidence would have supported a conviction of the lesser offenses. It is equally clear that, given the overwhelming evidence on which the verdicts were based, such instruction would have been nothing more than an invitation to the jury to show mercy. This is not a permissible basis to justify such an instruction. Kelly vs. United States, 370 F2d 227 (1966).

Appellant's third assignment of error, applicable to all three counts, is the Court's denial of credit for pre-sentence detention.

[4] Langley was in custody for 116 days prior to sentencing. On Count One he was sentenced to 30 years, 20 of which were suspended. On Count Two, he received 5 years, with 4 suspended. On Count Three, 20 years, with 10 suspended. All three sentences run concurrently. The basic sentence on Counts One and Two are statutory maximums. Count Three is 5 years less than the maximum. In each, of course, substantial portions were suspended, so that Langley faces only a total of 10 years imprisonment.

Those cases cited by Appellant are from jurisdictions having a statutory basis for the desired credit, and generally deal with situations where the statute mandates a maximum and minimum. One, Reanier vs. Smith, Wash., 517 P2d 949, concerned discrimination under such a statutory scheme. We have no such statute here.

In point of fact, Langley did not receive the maximum sentence authorized by law. His sentences could have been made to run consecutively, in which case his claim might have more validity.

In this case, and on these facts, we are not disposed to go in search of a constitutional issue which is nebulous at best.

III.

In the second trial, of Count Three, the only error assigned is that the weight of the evidence did not support the verdict.

As we have said repeatedly, we do not weight the evidence, and we cannot upset a jury's findings unless they are clearly erroneous.

Here there is ample evidence to support the finding of guilt. Langley's only complaint (not judicially cognizable) is that the jury chose not to believe him.

Having found no reversable [sic] error as to any of the three Counts:

We Affirm.

Joseph C. Lehman, Assistant Public Defender, for Appellant
Witten T. Philippo, Assistant Attorney-General for Appellee