FSM SUPREME COURT
APPELLATE DIVISION
Cite as Kephas v. State of Kosrae ,
3 FSM Intrm. 248 (App. 1987)

[3 FSM Intrm. 248]

SAELUS KEPHAS,
Appellant,

v.

STATE OF KOSRAE,
Appellee.

APPEAL CASE NO.  K1-1986
(From Crim. Case No. 27-86)

OPINION
 
Argued:  April 9, 1987
Decided:  December 22, 1987

Before:
Hon. Edward C. King, Chief Justice, FSM Supreme Court;
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
Hon. Janet Healy Weeks, Temporary Justice, FSM Supreme Court*

     *Judge, Superior Court of Guam

APPEARANCES:
     For the Appellant:         Patrick Olter
                                            Public Defender
                                            State of Kosrae
                                            Lelu, Kosrae 96944
 
     For the Appellee:         Douglas Daley
                                            Attorney General
                                            Kosrae State Government
                                            Lelu, Kosrae 96944

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HEADNOTES
Appearances
     Only attorneys admitted to practice before the FSM supreme Court or trial counsellors supervised by an attorney admitted to practice may appear before the FSM Supreme Court on appeals from State court cases.  Kephas v. Kosrae, 3 FSM Intrm. 248, 252 (App. 1987).

[3 FSM Intrm. 249]

Appeal and Certiorari
     A delay of only two days in filing the appellate brief does not warrant dismissed of the appeal when there is no showing of prejudice.  Kephas v. Kosrae, 3 FSM Intrm. 248, 253 (App. 1987).

Appeal and Certiorari
     Unexcused and extended delay in service of appellate's brief after certification of the record warrant dismissal of the appeal.  Kephas v. Kosrae, 3 FSM Intrm. 248, 254 (App. 1987).

Appeal and Certiorari
     Failure of the appellant to include a transcript in the record on an appeal based upon a claim of insufficiency of evidence warrants dismissal of the appeal.  Kephas v. Kosrae, 3 FSM Intrm. 248, 254 (App. 1987).

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COURT'S OPINION
BENSON, A.J.
 
Procedural History
     The appellant, Saelus Kephas, was convicted following a trial on June 5, 1986, in the Kosrae State Court of assault and of offensive behavior in a public place.  He was sentenced on June 12, 1986.  A timely notice of appeal was filed. The appeal asserts that the evidence does not support the convictions.

     The appeal to this court is authorized by the Constitution of theFederated States of Micronesia (FSM Const. art. XI, 7:  "If a state constitution permits, the appellate division of the Supreme Court may review other cases on appeal from the highest state court in which a decision may be had") and by the Constitution of Kosrae (Kos. Const. art. VI, 6:  "Decisions of the State Court may be appealed to the appellate division of the Supreme Court of the Federated States of Micronesia").

     The defendant filed and served his brief late, failed to file the transcript as a part of the record, and subsequently moved to supplement the transcript.  The first two matters were raised by the government in motions to dismiss the appeal. The government opposes the motion to supplement.
 
     The court on its own motion has requested the views of the parties as to whether the Rules for Admission to Practice before this court should differ in cases coming before us from a state trial court.

Issues
     1.  Whether the court's present Rules for Admission are appropriate for those representing the parties in cases on direct appeal from a state trial

[3 FSM Intrm. 250]

court to the appellate division of this court.

     2.  Whether the appeal should be dismissed in a case in which the defendant submitted his brief to the assistant clerk of the Trial Division for filing before it was due, but the brief was not filed in the Appellate Division until two days after the due date.

     3.  Whether the appeal should be dismissed in a case in which the defendant failed to serve his brief upon the government until almost three months after filing.

     4.  Whether the appeal should be dismissed because the record as certified did not include the transcript.

     5.  Whether the defendant should be permitted to supplement the record after the government had filed its brief and almost five months after the record had been certified by the clerk, which supplement was not first presented to the trial court, and which contained no showing as to the accuracy of the proposed supplement.

     6.  Whether the evidence supports convictions for assault and for offensive behavior in a public place in which there was testimony that the defendant and the victim fought and wrestled on a public road, and the defendant chased the victim with a police baton, but contrary testimony was heard that there was no fight, and that the defendant was only trying to prevent the despondent victim from drowning himself.

Holding
     We hold:

     1.  That the Rules for Admission are suitable for cases coming to this court from state trial courts;

     2.  That the appeal not be dismissed for the lateness of filing of the defendant's brief;

     3.  That the appeal should be dismissed for the defendant's failure to serve his brief on the government until almost three months after filing;

     4.  That the appeal should be dismissed for the defendant's failure to include the transcript in the record;

     5.  That the motion to supplement the record be denied; and

     6.  That the trial court's findings of guilt are amply supported by the evidence.

Facts
     On May 20, 1986, a complaint was filed in the Kosrae State Court accusing the defendant of drunk and disorderly conduct and of assault, both

[3 FSM Intrm. 251]

occurring on May 14, 1986.  In its amended complaint filed June 5, 1986, the government added the accusation of offensive behavior in a public place.  The defendant was tried on June 5, 1986, and convicted the same day of assault and of offensive behavior in a public place.  The court acquitted the defendant of drunk and disorderly conduct.

     At the trial the government called four witnesses.  The first witness testified that the defendant told the victim that he had been looking for him, that wrestling started immediately, that the witness could not separate the men because the defendant opposed it, and that the victim asked the witness to call the police.

     The second witness said that the two men were fighting, that the defendant chased the victim with a police club, that she had been able to separate them and take the club from the defendant, and that the defendant had said bad words to the victim while chasing him.

     The third witness was the policeman who had been called.  He testified that there had been a fight and that the victim asked that the defendant be arrested.

     The fourth witness for the prosecution was the victim who testified that he was grateful to the defendant for stopping him because he had personal problems and was planning to go outside the reef.  He acknowledged that he had called the police and asked that the defendant be arrested.

     The defendant was the only witness for the defense.  He said that he was not drunk, that he had blocked the victim and that then the men wrestled.  He said that he did not have a club, and that he did not recall chasing the victim.

     Sentencing was held on June 12, 1986. on the same day the defendantfiled his notice of appeal, designation of record and request for a transcript.

     The transcript was certified by the clerk of the trial court on July 21, 1986.  The record was certified by the clerk of this court on July 28, 1986.  On July 30, 1986, she notified the defendant that the record had been certified and that he was required to file his brief by September 10, 1986.

     The defendant's brief is dated September 9, 1986.  It raises only the question of the sufficiency of the evidence to support the convictions.  He represents that he presented it that day for filing at the office of the assistant clerk of the Supreme Court in Kosrae.  He was notified that it must be forwarded for filing to the Chief Clerk of Court in Pohnpei.  His brief was filed by that person on September 12, 1986.  On December 1, 1986, the brief was served upon the government.  In a motion dated December 23, 1986 and filed January 7, 1987, the defendant sought permission to supplement the transcript by proffering in writing a series of nine questions purporting to be those posed by the defendant's attorney to the victim and the answers given by the victim to those questions.

[3 FSM Intrm. 252]

     On January 7, 1987, the government filed a motion dated December 31, 1986, seeking the dismissal of the appeal on the ground of the late filing and the late serving of the defendant's brief.  The government's brief was dated and filed on the same dates.  The brief responds to the defendant's brief, and raises the issues of the failure of the transcript to be included in the record, the late filing and serving of the defendant's brief, and the failure of the defendant's brief to have a table of contents, and a statement of the case.

     The last item in this chronology is the filing on January 27, 1987 of the government's opposition to the defendant's motion that the record be supplemented.

Reasoning
     Advocates appearing in appeals from state trial courts.  The State of Kosrae is the only state which so far permits direct appeals from its trial court to this Court as authorized in the Constitution of the FSM.  This appeal is the first appeal received by this Court from Kosrae.  We approached the appeal conscious of its importance in setting a pattern which meets the expectations and needs of the people of the State of Kosrae as expressed in their Constitution and yet is consistent where possible with normal appellate procedure developed for this court.

     The appeal was taken by the trial assistant for the defendant who is entitled to practice before the Kosrae State Court but not before this court.  We expect that many cases might be tried before the state court by those not admitted to this court (as is the case here) and we posed the question to counsel appearing whether our Rules for Admission should differ in such cases.

     Counsel very kindly gave the court their considered views.  Both felt that it was proper, and indeed necessary, that those appearing in this court on appeals from state court cases be attorneys admitted to practice before the Supreme Court according to its Rules for Admission or trial counsellors supervised by an attorney admitted to practice.  We agree with this view.   See Alaphonso v. FSM, 1 FSM Intrm. 209, 230, n.13 (App. 1982).

     Late filing and service of brief of defendant.  The government urges that we dismiss the appeal because the defendant failed to file or serve his brief on time. Rule 31(a) of the Rules of Appellate Procedure for this court require that the appellant "serve and file his brief within 40 days after the date on which the record is filed."  The parties relied upon the clerk's letter to the appellant as to the date the brief was due.  The government apparently brings its objection to the lateness pursuant to Rule 31(c) which permits motions to dismiss if the appellant fails to file on time.  The government contends that the late filing and service thwarted the operation of the salutary policy of finality of judgments and enabled the defendant to forestall serving his time in jail.  The record fails to reflect whether the defendant acted deliberately to achieve such ends.  It does however reveal an almost complete failure to read and observe the Rules of Appellate Procedure.

[3 FSM Intrm. 253]

     The case of King v. Laborers International Union, 443 F.2d 273 (6th Cir. 1971) is similar to the present case in that both involve inexperience of the appellant and a good faith pursuit of the appeal.  The court in that case refused to dismiss the appeal for the failure of the appellant to file the transcript and the brief on time, stating at 277, "In view of the obvious inexperience of Appellant with the judicial procedure and his good faith pursuit of his remedies, we believe it would be improper and unjust to dismiss his appeal for a simple failure to make a request for an extension of time."

     Concerning any prejudice to the appellee caused by the lateness, the court said, "Further, Appellee has not alleged any uncured prejudice by the delays which occurred before his motion to dismiss."  King, 443 F.2d at 277.

     The case of Marcaida v. Rascoe, 569 F.2d 828 (5th Cir. 1978) also involved a motion to dismiss for lateness in filing the appellant's brief.  The court noted that "[T]he filing of briefs is at most a non-jurisdictional defect in the prosecution of this appeal, which we consider insufficient to warrant dismissal."  Marcaida, at 830.  The court found no prejudice suffered by the appellee in that case because of the lateness and refused to dismiss the appeal.  The court further noted that Rule 26(b) of the United States Federal Rules of Appellate Procedure permits the doing of an act after the expiration of the time prescribed in the rules.  This Court's Rules of Appellate Procedure contain a provision identical to that relied upon in Marcaida.  [FSM App. R. 26(b)].

     The prejudice to it that the State asserts here is in the undermining of the public policy considerations which support finality of judgments.  Every late filing would to a degree entail prejudice of this type.  In this case there is no particularized harm to the State.  We do not find that such generalized prejudice as is caused by two days delay is of the kind warranting dismissal of the appeal.

     For the reasons stated, the motion for dismissal based on a delay of two days in filing the brief is denied.  The delay in serving the brief, however, is a different matter because of the length of the delay.  The service was 82 days after the due date.

     The defendant did not file any opposition to the motion of the government that the appeal be dismissed for lateness, nor did he file a brief replying to this new matter found in the government's brief.

     In oral argument defendant's trial assistant represented that he expected the clerk of the appellate division would return filed copies to him from among the three he submitted and that he would serve one on the government.

     This explanation does not conform with Rule 31 (FSM App. R. 31) which requires the filing and the service to be made within 40 days of the certification of the record.  Nor does it explain the very long time that passed while the trial assistant waited for the return of filed copies.  We find that the delay in serving the brief is without adequate excuse.

[3 FSM Intrm. 254]

     The delay in the service of the defendant's brief delayed the submission of the government's brief because the service of the defendant's brief is the act which commences the running of the period that the government has to file and serve its brief.  FSM App. R. 31(a).

     Whether by the defendant's design or not, each day of the delay postponed the final resolution of the case.  It forestalled the possibility that the defendant would be confined to serve his sentence.

     The long unexcused delay undermined the policy of finality.  The reasons underlying the policy were given by this court in Jonas v. Mobil Oil Micronesia, Inc., 2 FSM Intrm. 164, 166 (App. 1986).

First, the final resolution of a legal conflict should be useful in ending festering and troublesome disputes and restoring order between the disputants and those around them.  Second, the finaldetermination of right frees the prevailing party to exercise the rights which were at  issue and allows any contested resource to be used efficiently.  Third, finality is intended to prevent both the parties and governmental institutions from devoting still more resources to the dispute itself.

     The motion for dismissal for lateness in serving the brief is granted.

     Failure of the record to contain a transcript.  As stated above, the defendant requested a transcript in a timely manner.  It was signed and certified by the clerk of the Kosrae State Court on time, that is, within 30 days of the request. However no transcript was filed by the defendant.  It is not clear from the record before us what happened to the transcript.  The appeal has been heard on the transcript that is attached to the government's brief as Exhibit 1.

     The government in its brief says that the State "discovered the transcript," and representations during oral argument referred to defendant's counsel asking that the transcript be withheld because he felt it was incorrect.  These representations are also made in the affidavit accompanying the government's motion to dismiss.

     We find the duty of the defendant clear in this matter, and that duty was not fulfilled.  Rule 11 required the defendant to "comply with the provisions of Rule 10(b)" and to "take any other action necessary to enable the clerk to assemble and transmit the record."

     Rule 10(e) provides the procedure to be followed if a party believes the transcript is incomplete or incorrect.  This procedure was not followed.  The only point of the defendant's appeal was that the Court review the evidence presented at trial.  Lack of a transcript undermines this process.  The appeal

[3 FSM Intrm. 255]

is accordingly dismissed for the failure of the defendant to file a transcript to be included in the record on appeal.

     Motion of the defendant to supplement the record.  The facts concerning this motion and the opposition thereto by the government are set out earlier.  The motion must be denied:.

     1.  The matter was not first submitted to the trial court as required by Rule 10(e).

     2.  The affidavits attached to the motion fail to give the source of the questions and answers that are contained in the proposed supplement.

     3.  The supplement is inherently untrustworthy because of the length of time elapsing between the trial and the submission of the motion.

     Sufficiency of the evidence.  The defendant's only ground for appeal is that the trial court failed to give the proper weight to the testimony received at trial that would have exonerated him.  A recitation of the testimony of the five witnesses which appears above reveals that there was testimony which was helpful to the defendant.  Two cases before this court have dealt with the issue of whether the trial court erred in weighing the testimony.  Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982) and Engichy v. FSM, 1 FSM Intrm. 532 (App. 1984).  Each leaves the credibility of the witnesses and the weight of the testimony to the trier of fact. The test is whether the appellate division "can conclude the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true."  Engichy, 1 FSM Intrm. at 546.

     In this case the testimony of the first three witnesses was not impeached.  It appears clearly that the trial court had a right to believe that testimony and accept it as true.  The testimony of the other two witnesses, the defendant and the victim, is not entirely inconsistent with the first witnesses.  We have no hesitation in affirming the convictions.  To disturb them would be totally unwarranted and would constitute a complete departure from the proper role of this court.

     We rendered our decision affirming the conviction at the conclusion of the oral argument.  The following day a written Mandate was filed, and the defendant was committed to the jail to serve the sentence imposed.  This opinion sets forth the reasons for the decision rendered on April 9, 1987.

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