Government of Virgin Islands v. Lima, s. 84-3040
| Decision Date | 17 October 1985 |
| Docket Number | 84-3713,Nos. 84-3040,s. 84-3040 |
| Citation | 774 F.2d 1245 |
| Parties | GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Jose LIMA, Sr., Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Alexander A. Farrelly (argued), Birch, deJongh and Farrelly, Charlotte Amalie, St. Thomas, V.I., for appellant.
James W. Diehm, U.S. Atty., Terry M. Halpern (argued), Hugh P. Mabe, III, Asst. U.S. Attys., Charlotte Amalie, St. Thomas, V.I., for appellee.
Before ADAMS, GARTH, and EDWARD R. BECKER, Circuit Judges.
Jose Lima, Sr. appeals his conviction by the District Court of the Virgin Islands, after a bench trial, of burglary in the first degree, three counts of assault in the third degree, and possession of a firearm during the crime of violence. He challenges: (1) the sufficiency of the district court's findings of guilt; (2) the district court's refusal to grant a new trial on the grounds of alleged newly discovered evidence that the key prosecution witness had manufactured her story; and (3) the district court's failure to conduct a hearing based upon the affidavits supporting the new trial motion. In denying the new trial, the district court noted its concern about the unduly harsh penalty it was obliged by law to impose: thirty years in prison with ineligibility for parole until ten years have been served. This penalty was imposed for what the district court described as
an utterly mindless, not to say totally asinine act or series of acts on the part of the defendant stemming from the dissolution of a marriage between the defendant and the complaining witness with the award of custody of the son of the marital partners to the wife, a judgment of the Domestic Relations Court which the defendant ... cannot seem to accept and which he sought to have changed by a most bizarre and wholly unlawful scheme.
Although we, too, are concerned about the harshness of the sentence, we conclude that the district court's judgment of conviction is supported by the evidence and, given its intimate familiarity with the case, we cannot say that the court abused its discretion in determining that the newly discovered evidence would not have changed the outcome. Therefore, we will affirm the court's judgment and its order denying the new trial motion without a hearing.
Jose Lima, Jr. ("Jose"), was arrested on April 18, 1983, upon the complaint of his former wife, Virginia Lima ("Virginia") and was charged with assault in the third degree. On May 9, 1983, the Government of the Virgin Islands filed a ten (10) count criminal information against Jose charging him with two counts of burglary in the first degree in violation of Title 14, Virgin Islands Code, section 442(1) and (4); three counts of assault in the third degree in violation of Title 14, Virgin Islands Code, section 297(2); one count of possession of a firearm during a crime of violence in violation of Title 14, Virgin Islands Code, section 2253(a); and four counts of grand larceny in violation of Title 14, Virgin Islands Code, section 1083(2) and (1). On August 5, 1983, after a bench trial, the district court found Jose guilty of first degree burglary (count I), third degree assault (counts III, IV, and V), and possession of a firearm during the commission of a crime of violence (count VI). The remaining counts were dismissed.
On August 12, 1983, pursuant to Fed.R.Crim.P. 33, Jose moved for reconsideration and vacatur of the district court's finding of guilt. On November 9, 1983, the motion was summarily denied, and Jose was sentenced to a term of ten years imprisonment on count I, fourteen months on each of counts III, IV, and V, and two and one-half years on count VI, the sentences to run concurrently. A timely notice of appeal followed, No. 80-3040. Nine months later, after obtaining another counsel, Jose moved for a new trial on the basis of newly discovered evidence. The district court denied that motion by a memorandum and order, dated October 18, 1984. In its order the district court modified the sentence on count I to comply with 14 V.I.C. Sec. 442(1), which provides that, if a dangerous weapon of any kind is used in the commission of a burglary, the sentence must be a minimum of thirty years imprisonment, no part of the sentence to be suspended, nor parole granted or credit given for good conduct until the defendant has served a minimum of ten years. The sentence was amended accordingly. Jose filed a notice of appeal from the denial of the motion for a new trial on October 29, 1984, No. 84-3713. 1
On April 17, 1983, Virginia went to the beach with her friend, Monisa Stuart, and a casual acquaintance, Andre Carmona. While there, Virginia saw Jose, to whom she had been married for over four years and from whom she had recently been divorced. Virginia, Andre, and Monisa, along with Monisa's children, later returned from the beach to Virginia's home.
At approximately 9:00 p.m. that evening, Jose entered Virginia's home through a sliding glass door. With a gun in his hand, Jose threatened Andre in the kitchen and forced him to a couch in the living room. Jose then proceeded to the bathroom where Monisa was showering and ordered her to join the others in the living room. Jose prevented all of Virginia's attempts to contact the police.
Jose then ordered his captives to remove their clothes, and spread marijuana from an envelope onto a living room table. According to the government, Jose intended to photograph the group in attitudes that would make it appear that an orgy had taken place in the house in order to create the impression that Virginia was an irresponsible mother to the child born of their marriage, presumably for use in a custody hearing.
When Andre objected to the order to remove his clothes, Jose ripped his shirt, Monisa, crying, reluctantly removed her shirt and held her child close to her. Virginia attempted to persuade Jose to leave Andre and Monisa alone, calling upon him to imagine that Monisa's child was his own. Jose answered by again ordering Virginia to remove her clothes, but she refused. Jose then pointed the gun at her forehead, grabbed her by the neck, ripped her chains, and scratched her. When Virginia tried to reason with Jose, he hit her on the forehead and pushed her against a wall, thereby bruising her.
Jose then told Virginia that as she "would rather be with other men than to be with" him, he was going to shoot her. Virginia, recognizing the gun as belonging to Jose's father, told Jose that if he shot her, his father would get into trouble. At this point, Jose apparently became unsure of himself and fled the scene. Virginia then called the police. The responding officers described Virginia as hysterical and frightened, and testified that Monisa and Andre were also frightened. The officers recovered the torn T-shirt Andre had worn and observed marijuana on the table. Two officers went to the home of Jose's father to recover the weapon allegedly used, and found Jose asleep in bed. The weapon was found locked in the compartment of a valet chair in Jose's parents' bedroom. Jose was arrested.
The government presented its case through the testimony of Virginia, Monisa, and the police officers. Andre failed to appear at trial, fled to Puerto Rico, and was subsequently apprehended as a fugitive. 2
Jose took the witness stand in his own behalf and testified, as did his father, mother, brother Augustine, and Augustine's girlfriend Deborah Santiago, that Jose was at home on the night of the alleged incident. Jose submitted that Virginia had fabricated the incident as part of a plot against him and his family.
The district court found that Virginia and Monisa were credible witnesses and that Jose was not. The court stated that it was "incomprehensible" that Virginia Lima would fabricate this incident "out of the clear blue sky," and that it was especially implausible that she would inflict injury upon herself to prove that the incident occurred.
After he was convicted and sentenced, Jose hired new counsel who in turn hired a private investigator to determine whether there were witnesses who could shed further light on the incident. The investigator located Carmen Yosiry Molina ("Molina"), Hipolita Rivera ("Rivera"), and Julio Sanchez ("Sanchez"), whose affidavits were the basis of the motion for new trial. The substance of the affidavits is as follows.
The day following the incident, Molina spoke with Virginia and, in the course of the conversations, asked her why so many police officers were around the area the night before. According to Molina, Virginia replied that she had concocted a ploy to show that Jose assaulted her in her home. Virginia said that if Jose would not be hers, he would not be anybody's; she would rather see him in jail. Molina alleged that Virginia then asked her to testify as an eyewitness that the incident had occurred in this way. Molina further states in the affidavit that she had had an opportunity to speak with Andre about the incident, and that Andre had explained to her that he, Virginia, and Monisa had been drinking and smoking throughout the day of the incident, and that his story to the police was fabricated.
Rivera stated in her affidavit that she lives across the street from Virginia. On the day of the incident, Sanchez came to visit her, arriving at 5:30 p.m. At 8:00 p.m., she and Sanchez went to the porch of her home, which is situated directly across the street from Virginia's house. According to the affidavit, the two observed Virginia, Andre, and another female, whom Rivera did not recognize, inside Virginia's home. At no time did Rivera see Jose, whom she had known for many years, enter or leave the house. The affidavit of Sanchez, who was at...
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