11 V.I. 542 | 3rd Cir. | 1975
OPINION OF THE COURT
These appeals are from defendants-appellants’ conviction of first degree murder and assault in the first degree after a jury trial in the District Court of the Virgin Islands and from denial of their motions for judgments of acquittal or for new trials. Defendant Julio Colon, Jr., was charged and convicted as the perpetrator of the offenses;
Because all defendants convicted as aiders and abettors challenge the sufficiency of the evidence to sustain their conviction, it will be necessary to set forth the facts in some detail.
According to the policeman’s testimony, as he and his brother Joseph neared a large genip tree on their return to the bandstand, “two Puerto Ricans was coming toward my direction.” These men were later identified by Patrolman Ford as defendant Colon and Marcial Santana.
As he was disengaged from the struggle, Joseph Ford warned his brother that Santana, Colon’s companion, had a gun. Patrolman Ford walked toward Santana to search
When Patrolman Ford searched Santana he found no gun. He testified that while he looked elsewhere for the gun, defendant Colon circled around the group and shot Joseph Ford in the chest from a distance of approximately eight feet. Joseph Ford fell to the ground near the base of the genip tree behind which Patrolman Ford and Rios immediately took refuge. Both Ford and a park employee, Ben Hur Brady, testified that Colon fired a second shot, which lodged in a branch some two feet above the policeman’s head.
Thereafter, the guns of both Colon and Ford misfired when the two attempted to exchange further shots. The policeman was rushed from behind by a group which Rios testified included Miranda, Navarro and Pinero and was hit in the head with a shell wielded by Pinero, according to the testimony of Brady. Although Brady did not specifically see Miranda or Navarro engage in this assault, he did, however testify that Miranda, Navarro and Pinero all kicked the body of Joseph Ford before leaving and that Pinero hit the body with a rock. Medical evidence at trial established that the body of Joseph Ford had lacerations over the right temple and a deep wound above the left eye.
Brady testified that after the attack, all four defendants left the scene in a yellow Volkswagen. The driver of the car, Jose Gonzalez, testified, however, that he drove only Miranda, Navarro and Santana from the park.
. All defendants testified at trial. Their testimony revealed that the four were from the same neighborhood
Sufficiency of the Evidence
Defendants Miranda, Navarro and Pinero assert on appeal that there was insufficient evidence in the record on which the jury could find beyond a reasonable doubt that they aided and abetted Colon in the offenses charged: the murder of Joseph Ford and the assault of Leroy Ford “by firing at [him] with a revolver.” In examining the evidence to determine whether it is in fact sufficient to support the jury verdict of guilty, this Court must view the evidence in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Cades, 495 F.2d 1166, 1169 (3rd Cir. 1974). Furthermore, we are bound by the jury's determination of credibility and its decision to accept the testimony of witnesses who contradicted the defendants. Government of the Virgin Islands v. Gereau, 502 F.2d 914, 921 (3rd Cir. 1974).
Viewed in this light, the testimony at trial establishes the following sequence of events with respect to these defendants:
1. They were members of a group of five to six men identified as “Puerto Ricans” or of “Spanish birth” who closed in around the fight between Joseph Ford and Colon and yelled “kill him” during the course of that struggle;
3. After Joseph Ford was shot, all three defendants kicked the body and Pinero hit the body with a rock; and
4. All three defendants engaged in a physical assault on Patrolman Ford after Colon fired at him, with Pinero identified as striking the policeman in the head with a shell.
The question to be determined is whether this evidence is sufficient to support a finding that the defendants aided and abetted Colon in his attacks on the Fords.
In order to be convicted as a principal in the commission of a crime on the basis of aiding and abetting the perpetrator, an individual must have a “purposive attitude” to see the venture succeed and must participate in the criminal endeavor at least to the point of encouraging the perpetrator and “participate in it as something that he wishes to bring about. . . .” United States v. Peoni, 100 F.2d 401 (2d Cir. 1938) quoted in Nye & Nissen v. United States, 336 U.S. 613 (1949). In determining whether a defendant has associated himself with and participated in a criminal undertaking, care must be taken that speculation is not permitted to substitute for evidence. United States v. Barber, 429 F.2d 1394 (3rd Cir. 1970). This axiom is particularly apt in any case where a number of spectators view the events because there is the possibility that mere bystanders might have been erroneously identified as aiding the commission of the crime.
We are of the opinion, after careful review, that the evidence in this case substantiates the jury’s finding of complicity on the part of these defendants in Colon’s crimes. The jury could have found that the defendants, by yelling “kill him” when Colon grappled with Joseph Ford, encouraged and induced him to subsequently shoot Ford. The
The physical attacks on Patrolman Ford and on the body of his brother weigh heavily against the defendants. Although generally proof showing one to be an aider and abettor relates to events occurring before the charged crime of the perpetrator, evidence of acts subsequent to the commission of the crime is competent to prove a common design, and is significant in evaluating the conduct prior to the commission of the offense of one charged as an aider and abettor. United States v. Thomas, supra; People v. Kolep, 29 Ill.2d 116, 193 N.E.2d 753 (1963). At a minimum, defendants’ attacks upon the Ford brothers after the shooting ceased pointedly demonstrate that the defendants approved of Colon’s conduct and give rise to an inference that they shared his criminal purpose of engaging in a general assault on the Fords. Viewed against the background of this conduct, the earlier exhortation to “kill him” takes on added significance as an encouragement to Colon.
The jury had a right and an obligation to consider all the facts and circumstances respecting the defendants in determining the question of their criminal liability as aiders and abettors. Our review of that evidence convinces us that there was sufficient evidence to support the jury verdict and that the district court did not err in denying the motions of defendants Miranda, Navarro and Pinero based on insufficiency of the evidence.
Jury Charge
The same three defendants also urge that the trial court
To aid and abet one another in the commission of a crime means to assent to. an act or to lend countenance or approval to it by active participation or by encouraging it in some other manner. Mere presence at the scene of the crime or knowledge that a. crime is being committed, or acquiescence, is not, in itself, sufficient to constitute a person as an aider and abettor. The assistance may consist of either overt acts or oral expression?.
Defendants contend that the instruction was deficient in that the court failed to advise the jury that the defendants could not be convicted of aiding and abetting the commission of a crime unless their acts or words had been done or spoken with the intention of effecting the crimes.
We note at the outset that no objection to this portion of the court’s charge was made by any of the defendants’ attorneys when an opportunity for objections was offered at trial. In view of this failure to comply with the mandate of Rule 30, F. R. Crim. P., that objections to the charge must be made before the jury retires, we could sustain defendants’ challenge only if the charge as given constituted plain error. Rule 52(b), P. R. Crim. P.
Defendants urge that the charge is grossly deficient when assessed against the standards established in Hicks v. United States, 150 U.S. 442 (1893). In Hicks the evidence showed that the defendant had sat astride a horse beside one Colvard while Rowe, an acquaintance of the defendant, had repeatedly raised and lowered a rifle aimed at Colvard. Each time the rifle was lowered the defendant laughed, and on the last occasion pulled off his own hat and said to Colvard “pull off your hat and. die like a man.” Rowe then shot and killed Colvard, and the defendant was tried as an aider and abettor.
In this case, however, the charge given by the district court contained elements of affirmative conduct not present in the Hicks charge. The definition of aiding and abetting given by the trial judge required that the defendants “assent to an act,” or lend “countenance or approval to it by active participation.” The inclusion of such elements in the charge largely removes the possibility that the defendants could have been found guilty regardless of the intent with which they spoke and acted.
Furthermore, a charge must be viewed in its factual setting in order to determine if plain error exists. Herzog v. United States, 235 F.2d 664 (9th Cir.), cert. denied, 352 U.S. 844 (1956). Such a view of the charge here also distinguishes this case from Hicks. In Hicks, the only evidence that the defendant might have aided or abetted Rowe was that he laughed, spoke the quoted words to the victim, and, under duress according to the defendant’s testimony, left with Rowe. The case against Miranda, Navarro and Pinero, however, included testimony of more active participation, including words of encouragement to Colon, assistance in passing the murder weapon, and attacks on the Ford brothers after Colon ceased firing.
Identification Procedures
Defendants Colon and Navarro challenge the procedures through which they were confronted by witnesses who ultimately identified them at trial. Treatment of the issues raised by these procedures will require an elaboration of the facts surrounding the confrontations.
On April 1, the evening of the incident at Cramer Park, Ben Hur Brady was shown six mug shot books containing several hundred pictures. From these photographs, he identified Colon as the individual who had done the shooting and Santana as the individual accompanying Colon at the initial confrontation with the Fords.
The next day, April 2, all four defendants and Jose Gonzalez were at the police station for questioning. The defendants, all of Puerto Rican descent, were in a small room with at least three detectives, including two of Puerto Rican heritage, and were apparently standing in an unformed line near a desk. Evaristo Rios, who had been brought to the station to give a statement, walked through the room in which the defendants were waiting to a back room. Through a one-way mirror from that room he identified Colon, Navarro, Miranda and Pinero as having been involved in the incident at Cramer Park.
Patrolman Ford was then brought into the room in which the defendants were standing. Initially he pointed out Gonzalez and left the room. After entering and leaving a second time, this time with a detective and another policeman, Ford identified Colon as the individual who had shot his brother.
Defendants Colon and Navarro contend that the “showup” procedure at the police station was so suggestive that the in-court identifications of both of them by Kios, and of Colon by Ford, should have been suppressed. Navarro also contends that Brady’s photographic identification of him, was achieved through impermissibly suggestive means, while Colon urges suppression of the Ford and Bios identification on the additional ground that he was not provided counsel prior to the showup. No challenge is made to Brady’s photographic identifications of Colon, and defendants Miranda and Pinero do not attack the identification procedures on appeal.
While the use of a showup rather than a lineup and the presence of more than one picture of the defendants in the photographs shown Brady on April 2 may have been “suggestive” to some degree, this does not dictate that the witnesses’ in-court identifications be suppressed. In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court explicitly reaffirmed the proposition that the underlying rationale of decisions such as Simmons v. United States, 390 U.S. 377 (1968) (photographicidentifications), and Stovall v. Denno, 388 U.S. 293 (1967) (one man showup), is that a defendant is denied due process when the identification procedure is so suggestive as to create “a very substantial likelihood of irreparable misidentification.” The question is whether “under the ‘totality of
In applying the Neil criteria to this case we find that the district court’s denial of motions to suppress the in-court identifications was not error. Patrolman Ford and Evaristo Rios had an unimpeded opportunity to view the individuals involved in the incident at close range during the course of the fist fight and subsequent shootings. Ben Hur Brady viewed the physical attacks on the policeman and his brother from a distance of approximately 40 feet, but he had seen all defendants earlier in the day at the park and .thus had some familiarity with their faces. All witnesses were intent on the shooting incident, with Patrolman Ford and Rios in the very center of .the proceedings from beginning to end. The testimony at the suppression hearing indicates no lack of certainty on the part of Rios in identifying all four defendants at the police station or on the part of Brady in selecting Colon and Navarro from photographs shown him. Although Patrolman Ford entered the interrogation room twice before identifying Colon, he was certain in his identification when made and testified that no suggestions were made to him while he was out of the room. Finally, the length of time between the incident and the identifications was in no case more than 24 hours, thus insuring that the witnesses’ memory of the incident and of those involved was fresh.
Neither do we feel that the in-court identification of Colon by Ford and Rios should be subject to the exclusionary rule of United States v. Wade, 388 U.S. 218 (1967), because counsel had not been provided Colon prior to the police station showup. After an evidentiary hearing, the district judge specifically found that Colon was not under arrest at the time of the police station confrontation and therefore was not entitled to counsel, relying on Kirby v. Illinois, 406 U.S. 682 (1972). This finding was not clearly erroneous and effectively disposes of Colon’s claim. Furthermore, even if we held that the showup was conducted after Colon’s freedom had been restrained, the failure to provide counsel would not taint the identifications, since the presence of counsel is not constitutionally required at a confrontation held after arrest but before the initiation of “judicial criminal proceedings.” Id.; United States v. Coades, 468 F.2d 1061 (3rd Cir. 1972); United States v. Miramon, 470 F.2d 1362 (9th Cir.), cert. denied, 411 U.S. 934 (1973).
Since we have determined that admission of the in court identifications violated neither the defendants’ due process rights nor their right to counsel, we conclude that the trial judge did not err in permitting the identifications to go to the jury.
Jury Array
Defendant Colon urges that we remand his case for an evidentiary hearing on the make-up of the array
This challenge was raised in the district court, but not, as Colon concedes, in a manner that complied with the provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-69 (1970). Compliance with the procedural provisions of the Act is the exclusive means of challenging the jury on the basis of a violation of the statute. 28 U.S.C. § 1867(e); United States v. Arnett, 342 F.Supp. 1255, 1258 (D. Mass. 1970).
Defendant contends, however, that his failure to comply with the statutory procedures does* not preclude a constitutional attack on the composition of the jury array. Even if such a constitutional attack was permissible in this case, a question which we do not decide,
The defendant was not entitled to a jury of any particular composition so long as the selection process which produced his jury did not operate to “systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Taylor v. Louisiana, 43 U.S.L.W. 4167 (Jan. 21, 1975). The burden was on the defendant to establish a prima facie case of systematic exclusion. See Alexander v. Louisiana, 405 U.S. 625 (1972); Wright v. Smith, 474 F.2d 349 (5th Cir.), cert. denied, 414 U.S. 853 (1973). In the absence of even an offer at trial to shoulder this burden we are unwilling to remand in order to provide defendant a second opportunity to develop a record on this issue for purposes of this appeal.
The judgment of the district court will be affirmed.
Violations, respectively, of 14 V.I.C. §§ 922(a)(1) and 295 (1964). Colon was sentenced to mandatory life imprisonment on the murder count and to a consecutive six year sentence for assault.
14 V.I.C. § 11 (1964) punishes as a principal anyone who “aids, abets, counsels, commands, induces or procures” the commission of a crime. All three defendants convicted of aiding and abetting Colon were sentenced to concurrent prison terms of life imprisonment (murder count) and five years (assault).
Although named in the information filed against these defendants, Marcial Santana was not tried with them because he could not be apprehended.
Because more favorable to the government, we accept for purposes of this appeal Brady’s testimony that the display of photographs was made to him at Cramer Park on April 2, 1974, rather than Detective McBean’s uncertain statement that the showing was made “more or less” on April 3, 1974.
We need not reach, therefore, the difficult question of whether failure to comply with 28 U.S.C. § 1867(a) bars assertion of even a constitutional challenge in the same action and whether United States v. Rickus, 351 F.Supp. 1386 (E.D. Pa. 1972), aff’d mem., 480 F.2d 919 (3rd Cir. 1973), cert. denied, 414 U.S. 1006 (1973), was correctly decided. Compare Paige v. United States, 493 F.2d 22 (9th Cir.), cert. denied, 417 U.S. 935 (1974) and United States v. Greene, 489 F.2d 1145 (D.C. Cir. 1973), with United States v. De Alba-Conrado, 481 F.2d 1266 (5th Cir. 1973).
Defendant has not contended that the array in this case was chosen other than in accordance with the jury selection plan of District Court of the