Garcia v. Gov't of the V.I.
| Decision Date | 25 September 2006 |
| Docket Number | D.C.Crim.App. No. 2005/018. |
| Citation | 48 V.I. 530 |
| Parties | Julio Ortiz GARCIA, Appellant, v. GOVERNMENT OF the V.I., Appellee. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
On Appeal from the Superior Court of the Virgin Islands.
Eric S. Chancellor, Esq., St. Croix, U.S.V.I., for Appellant.
Maureen Phelan, AAG, St. Thomas, U.S.V.I., for Appellee.
Before: CURTIS V. GOMEZ, Chief Judge, District Court of the Virgin Islands; RAYMOND L. FINCH, Judge of the District Court of the Virgin Islands; and RHYS S. HODGE, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.
Re: Super. Ct.Crim. 264/2002
Julio Ortiz Garcia (“Garcia” or “appellant”) was convicted in Superior Court of two counts of rape first degree, attempted rape first degree, unlawful sexual contact first degree, kidnapping for rape, and two counts of child abuse. Garcia now argues on appeal that:
1) The trial court erred in denying his motion to suppress his out of court and in-court identification;
2) The sentence imposed violated both the Eighth Amendment's prohibition against cruel and unusual punishment and the Fifth Amendment's protections against double jeopardy.
Having considered the parties' arguments and the relevant authorities thereto, we affirm the appellant's conviction and sentence.
I. STATEMENT OF FACTS & PROCEDURAL POSTURE
The charges against the appellant stemmed from a kidnapping and rape of a 13–year old girl in Frederiksted on July 13, 2002.
The girl was abducted from the driveway of her home in Estate William's Delight sometime after 6 p.m., when she went to retrieve items from her mother's car. As she opened the door of the vehicle, the appellant, whom she recognized as her next-door neighbor, approached and asked her to give him a ride. When she refused, explaining she was too young to drive, she said the appellant produced a knife and forced her to drive the vehicle out of the area. As they drove, the appellant told the victim he was going to have sex with her. After driving a short distance, the appellant had the victim stop the car, and he resumed driving, while she sat in the passenger's seat.
The victim was taken to a deserted area in Estate Cane Valley, after an estimated 15–minute drive. There, she said her attacker touched her genital area, and forced her head down onto his penis, ejaculating into her mouth. Thereafter, her attacker forced her to remove all her clothing and attempted to have vaginal intercourse with her, as she lay in the passenger seat, but he was unable to successfully penetrate her. During these attacks, the victim testified the car door was open and the interior lights remained on. Her attacker then took her out of the vehicle and, leaning her against the car, again unsuccessfully attempted to penetrate her. Another similar attack followed on the ground behind the car.
The girl was able to escape when she convinced the attacker that she had to urinate and convinced him to wait in the back seat of the vehicle. As he did so, the girl grabbed the knife from the front of the car and fled the area without her clothing. As she ran, she came upon an abandoned house, where she dropped the knife. After running for some time, the victim then came upon an occupied house, where she obtained help.
The occupants of that house noted that the girl was hysterical and kept spitting, and also told them her attacker had ejaculated into her mouth.
Police were immediately contacted, and the victim was able to provide a description of her attacker, including his clothing and physical characteristics. That description was disseminated by police radio. Within minutes, K–9 Police Officer Frankie Ortiz responded to the scene of the crime and, along with his dog, quickly discovered first the victim's car and then the appellant, who was crouched under the brush. The appellant's description matched the description that had been disseminated to police. The appellant was then placed, handcuffed, in the back of an unmarked police vehicle and driven by Police Detective Lydia Figueroa to the area where the victim had sought help. As the victim was being taken from her home to an ambulance, she was shown the appellant seated in the unmarked police vehicle. The victim identified Garcia as her attacker.
Garcia was charged with attempted rape first degree (Count 1); two counts of first degree rape (Counts 2 and 3); unlawful sexual contact first degree (Count 4); kidnapping for rape (Count 5); and two counts of child abuse (Counts 6 and 7). He was convicted by jury and sentenced as follows: 25 years imprisonment on Count 1, 99 years imprisonment for two counts of rape in the first degree (counts 2 and 3), and 25 years for unlawful sexual contact first degree (count 4), all to be served concurrently. [Judgment and Commitment, App. at 1–2]. The trial court determined that counts one through four should be merged for the purpose of sentencing. Garcia was additionally sentenced to 99 years imprisonment for his conviction of kidnapping for rape(count 5), to run consecutively with the sentences for counts 1–4. Finally, he was sentenced, for Counts 6 and 7, to a term of 20 years imprisonment, to be served concurrently with count 5. This timely appeal followed.
II. DISCUSSIONA. Jurisdiction and Standards of Review
We exercise jurisdiction to review the final judgment in this criminal matter, under our authority provided in The Omnibus Justice Act of 2005, Act No. 6730, § 54 (), and Revised Organic Act of 1954 § 23A, 48 U.S.C. § 1613a.1
We review de novo questions of law, issues implicating rights protected under the U.S. Constitution, and the interpretation of statute. However, we afford the more deferential clear error review to factual determinations. See Gov't of V.I. v. Albert, 89 F.Supp.2d 658, 663 (D.V.I.App.Div.200l).
Decisions denying motions to suppress evidence are reviewed for clear error with respect to the court's underlying factual findings, although the court's application of the law to those facts is entitled to plenary review. See United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002); see also, Gov't of V.I. v. Petersen, 131 F.Supp.2d 707, 710 (D.V.I.App.Div.2001). However, where, as here, there are no factual findings evident on the record, as required by Fed.R.Crim.P. 12(d), we may uphold the trial court's denial of a motion to suppress if there is any reasonable view of the evidence to support it. See Gov't of V.I. v. Graham, 2005 WL 1653102, *2 (D.V.I.App.Div.2005)(citing Scarbeck v. United States, 317 F.2d 546, 562 (D.C.Cir.1963); United States v. Belle, 593 F.2d 487, 497 (3d Cir.1979)( that while appellate court would ordinarily remand for initial probable cause determination, it could decide the issue where the record is sufficient for that determination to be made)); compare, United States v. Sebetich, 776 F.2d 412, 424 (3d Cir.1985)( that, absent factual findings, court of appeals reviewed record to determine whether denial of motion to suppress was clearly erroneous).
B. Whether The Trial Court Erred in Denying Appellant's Motion to Suppress Identification Evidence.
Garcia contends the showup at the scene of the crime was improper and also improperly tainted the later in-court identification.
Showup identifications are not per se unconstitutional. See Neil v. Biggers, 409 U.S. 188, 196–98(1972). Indeed, courts have consistently acknowledged the necessity and prudence in utilizing showups under certain circumstances, despite their inherent suggestibility. See Stovall v. Denno, 388 U.S. 293,301–02 (1967)(showup in victim's hospital room necessary under circumstances and not unconstitutional); Biggers, 409 U.S.at 196–98;United States v. Savage, 470 F.2d 948,949–50(3d Cir.1972)(upholding procedure where suspected bank robber taken back to the bank for identification by witnesses immediately after robbery and capture, and noting that on-the-scene confrontations shortly following a crime have consistently been upheld by the courts)(citing United States v. Gaines, 450 F.2d 186(3rd Cir.1971); Gov't of V.I. v. Callwood, 440 F.2d 1206,1209(3d Cir.1971)(recognizing the acceptance of on-the-scene showups made soon after the crime at the crime scene, based on the rationale that such procedures are oftimes desirable to prevent an innocent person from being unnecessarily held in jail, because the witness' identification will be more accurate at that time, and because of the need to enable the police to continue the search immediately, while the culprit may still be in the vicinity, in the event they have apprehended the wrong person).
However, as this circuit and other circuits have noted, such showup identifications are most useful and primarily upheld only where the showup occurs on the scene and close in time to the crime. See Savage, 470 F.2d at 949–50;Callwood, 440 F.2d at 1209;Vazquez v. Rossnagle, 163 F.Supp.2d 494,498 (E.D.Pa.2001)(upholding showup immediately following shooting incident); see also United States v. Funches, 84 F.3d 249, 254 (7th Cir.1996); Johnson v. Dugger, 817 F.2d 726,729 (11th Cir.1987); United States v. Watson, 76 F.3d 4,6 (1st Cir.1996); United States v. Abutista, 23 F.3d 726(2d Cir.1994); United States v. King, 148 F.3d 968 (8th Cir.1998); United States v. Wilson, 435 F.2d 403 (D.C.Cir.1970).
Only when the totality of the circumstances surrounding such pre-trial identifications reflect an “unnecessarily suggestive [manner] conducive to irreparable mistaken identification” do they violate constitutional due process. Biggers, 409 U.S. at 196–9( that the primary evil to be avoided is the substantial likelihood of misidentification) (citation omitted); United States v. Clausen, 328 F.3d 708, 713 (3d Cir.2003); see also, Lewis v. Gov't of V.I., 77...
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...issues implicating rights protected under the U.S. Constitution, and the interpretation of statute[s]." Garcia v. Gov't of the Virgin Islands, 48 V.I. 530, 534 (D.V.I. App. Div. 2006) (citing Gov't of the Virgin Islands v. Albert, 89 F. Supp. 2d 658, 663 (D.V.I. App. Div. 2001)); see also U......