Government of Virgin Islands v. Kirnon

• Decision Date: 28 June 1974
• Docket Number: 115-1973.,Crim. No. 114-1973
• Citation: 377 F. Supp. 601
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. James KIRNON, Defendant.
• Court: U.S. District Court — Virgin Islands

377 F. Supp. 601

GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. James KIRNON, Defendant.

Crim. Nos. 114-1973, 115-1973.

District Court, Virgin Islands. D. St. Croix.

June 28, 1974.

Julio Brady, U. S. Atty., Christiansted, St. Croix, V. I., for plaintiff.

Edward J. Ocean, Christiansted, St. Croix, V. I., for defendant.

MEMORANDUM OPINION AND ORDER ON MOTION TO SUPPRESS

WARREN H. YOUNG, District Judge.

This is a motion by defendant to suppress all evidence and statements obtained from him on the ground that they were acquired in violation of his constitutional rights. An extensive hearing on the motion was conducted on December 12 and 13, 1973. As certain novel legal questions were raised at the initial arguments on December 13, a full transcript of the proceeding was ordered and counsel for defendant and government were directed to file memoranda of law. Although the transcript was completed on January 25, 1974, additional delay resulted because defense counsel did not file his brief until May 14, 1974. The Government's memorandum was submitted on June 10, 1974 and was followed on June 11 with a motion to reopen the suppression hearing for the limited purpose of presenting evidence as to the time of day at which defendant arrived at the detective bureau on October 2, 1973. The motion to reopen was argued on June 14, 1974 and it was granted by the Court.¹ Thereafter defense counsel moved for a stay of further proceedings pending an appeal of the decision to reopen. This motion was denied by written Order dated June 19, 1974. Final arguments on the motion to suppress took place on June 21, 1974.

I. PRELIMINARY POINTS RAISED ONLY IN MOTION TO SUPPRESS

Before dealing with defendant's principal contentions with respect to the suppression of his confession, several points raised in the motion to suppress of October 31, 1973, but not pursued in the briefs or arguments, should be considered. The first of these is that defendant was arrested "without an arrest warrant, without authority, and without probable cause."

It is undisputed that the defendant was arrested at about 4 P.M. on October 2, 1973. (Tr. pp. 164-165.) Moreover, there is no question that the arrest took place without a warrant. The only possible issue, then, is whether the arrest was supported by probable cause or, in the language of 5 V.I.C. § 3562, whether Detective Doward had "reasonable cause for believing" that James Kirnon committed the felony under investigation.

Although on at least one prior occasion this Court has afforded a defendant what amounted to a preliminary hearing on probable cause for his warrantless arrest, there are strong arguments against engaging in such an inquiry at this stage of the proceedings. The Revised Organic Act § 25 and Federal Rule of Criminal Procedure 54(a)(1) authorize the prosecution by Information of all offenses before the District Court of the Virgin Islands. See Government v. Rijos, 285 F.Supp. 126 (D.C.V.I.1968) (procedure authorized is constitutional). In effect, the Information takes the place of a grand jury indictment, which is not required. Rivera v. Government, 375 F.2d 988 (3d Cir. 1967). Since the very fact that an indictment is returned makes a preliminary hearing unnecessary, United States v. Heap, 345 F.2d 170 (2d Cir. 1965); United States ex rel. Bogish v. Tees, 211 F.2d 69 (3d Cir. 1954), it would seem that the Information, which replaces the indictment, should have the same effect. While it is true that the Information represents the judgment of the United States Attorney, rather than of a disinterested grand jury, that probable cause exists, this distinction should not lead to the conclusion that an additional determination of probable cause by the Court at a preliminary hearing is required. State v. Hayes, 127 Conn. 543, 18 A.2d 895, 914 (1941). "The function of determining that probable cause exists for the arrest of a person accused is only quasi judicial, and not such that, because of its nature, it must necessarily be confided to a strictly judicial officer or tribunal." Ocampo v. United States, 234 U.S. 91, 100, 34 S.Ct. 712, 715, 58 L.Ed. 1231 (1914). Therefore, because an Information has been filed it is unnecessary for me to determine whether the arrest of James Kirnon on October 2, 1973 was supported by probable cause. However, because the question is one of first impression in this jurisdiction I will hold, alternatively, that the confession given by the defendant to Detective Doward shortly before his arrest (Tr. pp. 160-161) constituted reasonable cause for believing that James Kirnon committed the offense.

The second group of objections mentioned in the initial motion to suppress but not briefed or argued thereafter involve the search warrant issued on October 2, 1973 by Judge William Moorhead. Defendant argues that the warrant is insufficient because it does not name the victims of the crime. (October 31st Motion, Para. 5, Tr. pp. 7-8). No such requirement is stated in the 4th Amendment or Federal Rule of Criminal Procedure 41(c) and the omission is therefore immaterial. In any event, the affidavit of Detective Doward did reveal the victim's names rendering impossible any conceivable confusion about which October 1st murder was involved.

Defendant further stated that the affidavit and the search warrant were "insufficient" without clarifying the nature of the insufficiency. I have examined the warrant (Defendant's Exhibit A) and find that it describes with particularity both the place (by apartment and building number) to be searched and the things to be seized in a manner which enabled the officers to locate them definitely, with certainty, Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925), and without the exercise of discretion. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). Similarly, the affidavit of Detective Doward on the basis of which Judge Moorhead issued the warrant appears quite sufficient. It sets forth the facts revealed by the confession which establish probable cause for believing that the offense was committed and that relevant evidence would be discovered at the location described. Dumbra v. United States, 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032 (1925). The place to be searched is described as well as the property to be seized. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). Finally, as the affidavit reveals that the apartment was the defendant's own residence, the person having possession or control of the property was adequately set forth. See Crossland v. State, 266 P.2d 649 (Okl.Cr.1954).

The last preliminary objection of the defendant is that the search exceeded the bounds described in the search warrant. (October 31st Motion, Para. 6.) I find no evidence of such a departure from the directions of the warrant. I find that the search was reasonable, authorized by a valid search warrant supported by a proper affidavit, and satisfied the requirements of the 4th Amendment. Therefore, the physical evidence seized as a result of the search will not be suppressed on the basis of defendant's arguments raised in paragraphs 4-7 of his motion to suppress.

II. COERCION

Defendant's October 31st motion to suppress charges that any written or oral statements he made were "not made voluntarily" (Para. 1(c)) and were taken "when defendant was undergoing great mental strain and physical pain inflicted by investigating officers" (Para. 1(b)). Defendant's memorandum repeats this allegation under point No. III: "The confession is inadmissible because it was not voluntary but coerced through violence and threats." If defendant is correct and the detectives to whom he confessed did resort to brutality or threats of brutality, then his confession was involuntary and must be suppressed. Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). This section, then, will examine the testimony of the defendant and others in an effort to determine whether physical violence, threats of violence or other psychologically coercive tactics² were utilized in order to obtain a confession.

The only testimony suggesting that the incriminating statements given to the detectives in the case were coerced or involuntary came from the mouth of the defendant himself. His interest in so testifying is obvious and his motive for presenting evidence of brutality is a factor which the Court must consider in evaluating his credibility. But I cannot let this circumstance weigh too heavily in my consideration of his testimony. Rarely does a defendant have the benefit of a "friendly or disinterested witness" to the acts of brutality he alleges occurred. Culombe v. Connecticut, 367 U.S. 568, 574, 81 S.Ct. 1860, 6 L. Ed.2d 1037 (1961). Therefore his testimony must be given careful scrutiny. If it displays enough indicia of reliability, if it appears to the fact-finder to be probably or even possibly trustworthy, the defendant's testimony is entitled to great weight, despite the absence of corroboration by impartial observers.³ With these considerations in mind, I will examine James Kirnon's account of his encounter with police detectives on October 2, 1973 for evidence of brutality.

Mr. Kirnon stated that after he arrived at the detective bureau, Detectives Jorge Torres and Gerard Doward beat him with an iron pipe, two and a half feet long, (Tr. p. 87) with their fists (Tr. 88, 89, 99), struck him in the genital region (Tr. p. 90) and made him chew a cigarette. He also testified that they threatened to burn his eyes (Tr. p. 89), to hang him (Tr. pp. 90-91) and to shoot him (Tr. p. 91). After this last threat, Kirnon stated: "I say, okay, okay, okay," and made his confession.

In addition to defendant's testimony, the Court permitted Joseph Dyer, the husband of defendant's aunt, to testify about his experiences with police...