502 F.2d 914 (3rd Cir. 1974), 73-1775, Government of Virgin Islands v. Gereau

Docket Nº:Beaumont GEREAU, Appellant in Nos. 73-1775 and 73-1873, et al.
Citation:502 F.2d 914
Party Name:GOVERNMENT OF the VIRGIN ISLANDS v.
Case Date:August 15, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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502 F.2d 914 (3rd Cir. 1974)

GOVERNMENT OF the VIRGIN ISLANDS

v.

Beaumont GEREAU, Appellant in Nos. 73-1775 and 73-1873, et al.

Appeal of Ishmael La BEET in No. 73-1776 and No. 73-1874.

Appeal of Warren BALLANTINE, in No. 73-1777 and No. 73-1875.

Appeal of Meral SMITH, in No. 73-1778 and No. 73-1876.

Appeal of Raphael JOSEPH, in No. 73-1779 and No. 73-1877.

Nos. 73-1775 to 73-1779 and Nos. 73-1873 to 73-1877.

United States Court of Appeals, Third Circuit

August 15, 1974

Argued May 13, 1974.

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William M. Kunstler, New York City, for appellant Beaumont Gereau.

Margaret L. Ratner, New York City, for appellant Warren Ballantine.

Chauncey Eskridge, McCoy, Ming & Black, Chicago, Ill., for appellant Ishmael La Beet.

Leroy A. Mercer, Christiansted, St. Croix, V.I., for appellant Meral Smith.

Ronald T. Mitchell, Mitchell & Hunter, Charlotte Amalie, St. Thomas, V.I., for appellant Raphael Joseph.

Julio A. Brady, U.S. Atty., Christiansted, St. Croix, V.I., John Barry, Richard S. Zackin, Asst. U.S. Attys., for appellee.

Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.

OPINION

SEITZ, Chief Judge.

Appeals are taken here from defendants-appellants' conviction, after trial to a jury in the District Court of the Virgin Islands, and sentencing for murder,

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assault and robbery 1 and from denial of their motion for a new trial. Because the factual basis for the appeals is somewhat complex, we will elaborate the facts, as relevant, in our discussion of the various issues raised by defendants and set forth here only those facts necessary to a basic understanding of this case.

On the afternoon of September 6, 1972, a group of young men entered the clubhouse area of the Fountain Valley Golf Course in St. Croix. Sixteen persons, including guests and staff, were in the clubhouse area at that time. The intruders, armed with a variety of weapons including a machine gun and shotguns, took cash from a clubhouse shop and snack bar, robbed some of the guests and killed eight persons. Four others were wounded while trying to escape and the remaining four were able to escape unharmed. The survivors reported seeing various numbers of gunmen, agreeing that the men wore masks and fatigue-type shirts and perhaps also fatigue pants.

Prior to the incident at Fountain Valley, arrest warrants had been issued for three of the defendants in this case, Ishmael La Beet, Warren Ballantine and Raphael Joseph, on charges including first degree assault, simple assault and battery, and failure to appear in court after release on bond. La Beet, Ballantine and Joseph had reportedly been seen in the general vicinity of Fountain Valley wearing fatigue shirts, a short time before the crimes with which they are charged here took place. The three immediately became suspects. Police also sought associates of La Beet, Ballantine and Joseph for questioning, among them the remaining defendants in the case, Meral Smith and Beaumont Gereau, who were seen with the trio the night before and afternoon of the Fountain Valley killings.

During the week following the killings, Virgin Islands police working with agents of the Federal Bureau of Investigation arrested all five of the defendants and seized all the weapons used in the killings along with articles of clothing identified as having been worn by the gunmen and various items taken from guests at the time of the shootings. Before dealing with the defendants' specific contentions, we will summarize the series of arrests, searches and confessions that produced the bulk of the evidence introduced at trial and all of the evidence use of which is challenged by defendants.

Early on September 7, Smith was arrested at 160 Estate Grove Place, where he had been observed little more than a day earlier with the other defendants. Police engaged in a warrantless search of 160 Estate Grove Place, at the time of Smith's arrest and again a few hours later. On September 8, a police officer attempting to locate another associate of defendants, one McIntosh, got into an altercation with yet another young man who answered the door at 46 Prince Street, Fredriksted, in front of which McIntosh had been seen earlier. The fight between the police officer and the young man started at the front door and progressed through the house, ending in a room in which Gereau had taken refuge. The policeman arrested Gereau, who he believed was wanted for failure to appear and answer to an assault charge. Later that day, police returned to and, with the owner-occupant's consent, searched 46 Prince Street. On September 8 and 9, after questioning, Smith and Gereau gave statements to F.B.I. agents regarding their and the other defendants' participation in the Fountain Valley incident. Also on September 9, agents and police conducted a warranted search of 160 Estate Grove

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Place. Late in the afternoon of September 9, Smith and Gereau were arraigned.

Warrants issued on September 10 for the arrest of defendants La Beet, Ballantine and Joseph for murder, robbery and assault at Fountain Valley. Warrants also were issued for the arrests of two described and partially named Puerto Ricans implicated in the statements given by Smith and Gereau. The three defendants were arrested during the afternoon of September 12 at 527 Hospital Street, Fredriksted. F.B.I. agents and police searched the Hospital Street premises, with a search warrant, at the time of defendants' arrest and again, with a warrant, a few hours later. Statements regarding their participation in the Fountain Valley killings were given by La Beet, prior to the second Hospital Street search, and by Ballantine and Joseph on September 12 before their arraignment that evening. On September 14, Gereau gave another statement, later suppressed, admitting that the two Puerto Ricans he and Smith had implicated in the crimes were fictional.

I. SUPPRESSION ISSUES

Before trial, defendants moved to suppress the statements given by them and the evidence seized in the searches noted above. The District Judge suppressed the statements given by defendants Smith and Joseph, finding that they had requested to see a lawyer and were denied an opportunity to do so until, after further questioning, their statements were obtained. 2 The district court also suppressed Gereau's statement of September 14, which was not immediately preceded by warning Gereau of his right to have counsel present. In all other respects the motion to suppress was denied. Crim. No. 97/1972 (D.V.I. July 23, 1973). Defendants contend that the Court erred in denying suppression of other statements and tangible evidence. We turn now to those contentions.

Statements of Gereau, La Beet and Ballantine: Brutality Claims

The first line of attack on admission of statements by defendants Gereau, La Beet and Ballantine is the defense claim that the statements were obtained as a result of brutal police treatment. Defendants allege that they were beaten, shocked with electric shock batons, burned with cigar stubs, partially suffocated by police placing plastic bags over their heads and by covering their mouths while dripping water into their nostrils, hung from certain trees, and otherwise mistreated. Testimony by various witnesses is pointed to by defendants as supporting portions of defendnats' testimony regarding police brutality directed at them. They admit that a wealth of conflicting testimony was introduced by the government and that defendants' testimony along with the testimony relied on by defendants as corroborating their stories was found by the District Judge not to be credible. Defendants contend, however, that the court below used improper legal standards to judge credibility.

It is the law of this Circuit, as well as many others, that a fact-finder's determination of credibility is not subject to appellate review. United States v. Brown, 471 F.2d 297, 298 (3d Cir. 1972); United States ex rel. Tillery v. Cavell, 294 F.2d 12, 22 (3d Cir. 1961), cert. denied, 370 U.S. 945, 82 S.Ct. 1589, 8 L.Ed.2d 811 (1962); see e.g., United States v. Owens, 472 F.2d 780, 784-785 (8th Cir. 1973); Wilkin v. Sunbeam Corp.,466 F.2d 714, 717 (10th Cir. 1972), cert. denied, 409 U.S. 1126, 93 S.Ct. 940, 35 L.Ed.2d 258 (1973). Credibility determinations may be influenced by factors such as a witness' demeanor, his tone of voice and other matters not subject to appellate scrutiny. For this reason, credibility determinations are uniquely the province of the fact-finder. Assuming, however, that we can separate

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the standards employed to make such determinations from their application to decide credibility, we find no error in the District Judge's selection of those standards. The court below found, on the basis of a horticultural expert's testimony, that defendants could not possibly have been 'hung' as they claimed from any of the trees in the area where the hangings allegedly took place; defendants' testimony, found false in this respect, was then discounted by the judge with respect to other matters, as to which the judge also found their accounts to be inherently incredible in various respects. We find no error in this. Defendants assert that the judge should have discounted testimony of police and F.B.I. agents because suit had been filed against them for violation of defendants' civil rights. Mere pendency of such a suit, however, cannot be viewed as grounds for discounting agents' testimony as biased. Defendants challenge the lower court's credibility determinations on numerous other grounds less substantial than...

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