Loney v FSM [1987] FMSC 8; 3 FSM Intrm. 151 (App. 1987) (3 April 1987)

FSM SUPREME COURT
APPELLATE DIVISION (Pon.)
Cite as Loney v. FSM, [1987] FMSC 8; 3 FSM Intrm. 151 (App. 1987)

[1987] FMSC 8; [3 FSM Intrm. 151]

KERHARD LONEY,
Appellant,

v.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P2-1985
(Affirming Crim. Case No. 1985-513)

OPINION

Argued: January 20, 1986
Decided: April 3. 1987

Before:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
Hon. Peter C. Siquenza, Jr., Temporary Justice, FSM Supreme Court;*
Hon. Ramon G. Villagomez, Temporary Justice, FSM Supreme Court;**

*Judge, Superior Court of Guam
**Judge, CNMI Commonwealth Trial Court

[3 FSM Intrm. 152]

APPEARANCES:
For the Appellant: Fred Atcheson
Mark L. Mausert (on the brief)
Pohnpei State Public Defender
Kolonia, Pohnpei 96941

For the Appellee: Thomas M. Tarpley
Pohnpei State Attorney
Kolonia, Pohnpei 96941

* * * *

HEADNOTES

Appeal and Certiorari
An issue not presented to and ruled upon by the trial court cannot properly come before the Appellate Division for review. In the absence of an objection in the trial court the Appellate Division will refuse to consider the issue. Loney v. FSM, [1987] FMSC 8; 3 FSM Intrm. 151, 154 (App. 1987).

Constitutional Law - due process
There is no deprivation of due process in a case in which the government at the trial elicited testimony revealing that it had custody of certain physical evidence but did not attempt to introduce it, and in which the defendant made no request that it be produced. Loney v. FSM, [1987] FMSC 8; 3 FSM Intrm. 151, 155 (App. 1987).

Appeals and Certiorari
A conviction for robbery is a finding which can only be reversed if the court's finding is clearly erroneous. Loney v. FSM, [1987] FMSC 8; 3 FSM Intrm. 151, 155 (App. 1987).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

The defendant, Kerhard Loney, appeals his convictions of all counts of the information - two counts of sexual assault and one count of robbery. The issues presented are 1) whether this court can review a question not presented to the court below, 2) whether the defendant's due process rights were violated by the failure of the government to offer certain physical evidence, and 3) whether there is sufficient evidence to support the robbery conviction.

We find the appeal is entirely without merit and affirm the convictions.

[3 FSM Intrm. 153]

The information was filed on September 16, 1985, alleging the offenses occurred on September 11, 1985. Prior to trial there was no motion by the defendant directed to any issue now before this court. Specifically, no motion for discovery was made.

The one day trial was held on October 31, 1985. The prosecution witnesses were the victim, the neighbor-friend over whose telephone the victim called the police, and the investigating and arresting police officers.

The court found that the defendant grabbed the victim, pulled her hair, hit her, threatened her life, forced her to go to the place where the offenses occurred, caused her to fall and injure herself, subjected her twice to sexual penetration against her will and took money from her by force.

The defendant testified that the intercourse was consensual. However the court found the defendant's testimony in large part supported the victim's version as to the force used.

The victim went to the house of a neighbor as soon as she was able and telephoned police. She was later interviewed at the police station. The defendant was arrested that evening.

The defendant contends that the failure to disclose the victim's panties prior to or at trial deprived the defendant of due process. The record is silent as to whether or not there was a disclosure of the panties prior to trial. A summary of the references from the trial transcript concerning the panties is necessary before discussing the merits of the defendant's contentions.

In the government's opening statement counsel, said that when the defendant was arrested he had in his possession panties later identified as belonging to the victim. The victim was the first witness and testified that the police showed her her panties during the interview. The second witness was the arresting officer. The third witness was the police officer at the station who testified that he searched the defendant, found and took possession of a woman's panty. The next witness was the police officer who interviewed the victim at the police station. He testified that the victim described the panties and then identified them when they were shown to her. The victim was recalled and testified as to the distinctive initials on the panties. Other than objections on grounds of leading questions and adequacy of foundation, no objections were made to this testimony.

The panties were not offered in evidence.

In describing what occurred at the police station the defendant testified on direct examination that the police took women's underwear from him. On cross examination he testified that he had picked up the victim's panties.

[3 FSM Intrm. 154]

The defendant made no request for the production or inspection of the panties at the trial.

During his closing argument, defense counsel, to emphasize the weakness of the prosecution's case, argued that no physical evidence was introduced. He pointed out that the panties were not offered, nor was any photograph, victim's clothing, diagrams, or results of any medical examination. The defendant's contention went to the sufficiency of the evidence and the burden of proof on the government. No contention was made that the lack of evidence deprived the defendant of due process of law.

The due process claim is now raised for the first time. Defense counsel could have, but did not, raise this issue before the trial court. It is a question that is thus not properly before this court forreview. Loch v. FSM, [1986] FMSC 12; 2 FSM Intrm. 234, 236 (App. 1986); Moore v. United States, [1972] USSC 194; 408 U.S. 786, 799[1972] USSC 194; , 92 S. Ct. 2562, 2570[1972] USSC 194; , 33 L. Ed. 2d 706, 716 (1972); 5 Am. Jur. 2d Appeal and Error § 545 (1962). The value of requiring an objection is apparent in this case in which, from what the record shows, the failure to raise the due process issue below may have been a considered decision by defense counsel. The absence of an objection in the court below is sufficient to dispose of the due process contention of the defendant.

Because of the seriousness of the assignment of error - that the defendant was deprived of due process of law - we summarize our views on that issue.

We have examined the cases cited as authority by defendant both in his brief and in oral argument. These United States authorities all lack a similarity of facts to this case which would render them useful. Three examples will suffice.

Brady v. Maryland, [1963] USSC 92; 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) involved the suppression by the government, after request by the defendant, of one statement by Brady's accomplice. The suppression did riot become apparent to the defendant until after conviction.

State v. Havas, 601 P.2d 1197 (Nev. 1979) was given repeated emphasis by the defendant in argument. The case differs from the facts here in that the case involved non-production of physical evidence after request by the defendant.

In United States v. Agurs, [1976] USSC 137; 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) there was no request by the defendant. The prosecution did not disclose to the defendant the existence of a prior criminal conviction of the homicide victim for an offense of violence. Had the defendant known of this conviction, it would have been offered at trial since it tended to support the defendant's claim that she was acting in self defense.

In the present case the defendant knew, at least by the time of the

[1987] FMSC 3; [3 FSM Intrm. 155]

opening statement of the government, that the panties had been taken into police custody. The defendant chose to make no request for production of the panties. No continuance was requested for an opportunity to study whether the panties would assist in the defense. Instead the defense counsel confined himself in regard to the panties to closing argument, asserting then that the lack of physical evidence raised a reasonable doubt of the defendant's guilt.

Lastly the defendant contends that there is insufficient evidence to support the robbery conviction. Here we are very limited in the scope of review. The conviction can only be reversed if we find that the court's finding is clearly erroneous. Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 24 (App. 1985). A review of the entire record shows the court's finding not clearly erroneous. The defendant took money from the bra of the victim in the course of violence and coercion imposed upon her. This clearly supports the finding that the taking was against her will and by force.

For the reasons stated the convictions are affirmed.