Government of Virgin Islands v. Sanes

• Decision Date: 15 June 1995
• Docket Number: No. 94-7612,94-7612
• Citation: 57 F.3d 338
• Parties: 42 Fed. R. Evid. Serv. 578 GOVERNMENT of the VIRGIN ISLANDS v. Sotero SANES, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 338

57 F.3d 338

42 Fed. R. Evid. Serv. 578

GOVERNMENT of the VIRGIN ISLANDS v. Sotero SANES, Appellant.

No. 94-7612.

United States Court of Appeals, Third Circuit.

Argued April 18, 1995.

Decided June 15, 1995.

Jeffrey Moorhead (argued), Patricia Schrader-Cooke, Office of Federal Public Defender, Christiansted, St. Croix, Virgin Islands, for appellant.

W. Ronald Jennings, U.S. Atty., Azekah E. Jennings (argued), Asst. U.S. Atty., Christiansted, St. Croix, Virgin Islands, for appellee.

Before: BECKER, NYGAARD and ROTH, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge:

Sotero Sanes appeals from a final judgment and commitment order of the district court. On December 29, 1993, an information was filed charging Sanes with burglary in the first degree, in violation of 14 V.I.C. Sec. 442(1); rape in the first degree, in violation of 14 V.I.C. Sec. 1701(3); robbery in the first degree, in violation of 14 V.I.C. Sec. 1862(2); and possession of a dangerous weapon during the commission of a violent crime, in violation of 14 V.I.C. Sec. 2251(a)(2)(B).

Sanes was accused of attacking Carmen Velez on January 13, 1993 and again on July 14, 1993. Counts I, II, III and IV stem from the first attack and Counts V, VI and VII from the second. Sanes was convicted on all counts.

Sanes argues that the district court erred by denying his motion to suppress. He contends that the voice identification procedure was impermissibly suggestive. Further, he argues that the district court abused its discretion by limiting his expert witness' testimony about the validity of the voice identification procedures. Finally, Sanes contends that the district court erred by denying his pretrial motion to sever Counts I, II, III and IV from Counts V, VI and VII, arguing that the charges arose from separate incidents and that their joinder was highly prejudicial to him. We will affirm.

I.

Sanes argues that the trial court violated his right to due process by denying his motion to suppress the voice identification. He contends that his voice sample was tainted by outside factors, technical and otherwise, which could have influenced the listener, making it more likely that his voice would be selected. He cites background voices, longer delivery time, different transition time between the statements made in Spanish and those made in English, his monotone, and a number of interruptions as examples of the factors which he believes, when taken cumulatively, compromised the reliability of the identification.

We find no evidence that the procedures used were impermissibly suggestive or that there was a substantial likelihood of misidentification. Ms. Velez heard the voice of her attacker on both January 13, 1993 and July 14, 1993. On each occasion, she conversed with the intruder for ten minutes. During the voice identification procedure, she listened to the voice array three times. She was ready to identify Sample No. 4 after the second time, but was encouraged by the police to listen to the tape one more time. Velez then positively identified the fourth voice as that of her attacker. Sample No. 4 was Sanes' voice.

The district court listened to the voice array and found that all of the voices contained unique factors. After listening to Sanes' expert witness on voice identification procedures, the court further found that, although Sample No. 4 was different from the other samples, the differences did not present a sufficiently significant contrast as to cause misidentification. Before denying Sanes' motion to suppress, the district court applied the eyewitness identification test, enunciated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Sanes argues that this test is inapposite. We disagree.

In Neil, the Supreme Court developed a five-part test to elevate the reliability of an eyewitness identification. The Neil factors include the opportunity of the witness to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description of the criminal; the level of certainty demonstrated by the witness at the time of the confrontation; and the length of time between the crime and the confrontation. 409 U.S. at 198-200, 93 S.Ct. at 382. Expanding on Neil, Manson held that admitting testimony even following a suggestive identification procedure does not violate due process if the identification has sufficient indicia of reliability. 432 U.S. at 112-16, 97 S.Ct. at 2252-53. Although voice identification obviously differs from eyewitness identification (for example, what is at issue in the first part of the Neil and Manson test is opportunity to view rather than opportunity to hear), we conclude that the Neil and Manson eyewitness identification test, adapted to voice identification, provides a standardized source of guidance to district courts for assessing the reliability of voice identification as well.

Applying Neil, the district court found that Ms. Velez was alert and had a sufficient opportunity to view or hear her attacker on both occasions and that she presented an accurate description of the defendant and his clothing, which she later identified. Moreover, she identified the items taken from appellant as looking like items the perpetrator had worn, and there is no evidence indicating that these items, when presented to Ms. Velez, were suggestively linked to either the appellant or to Sample No. 4. Further, Ms. Velez stated that she was certain that Sample No. 4 was the voice of her attacker. Finally, although there was a six-month period between the incidents, only fifteen days elapsed between the last attack and her positive voice identification. We also note that Ms. Velez not only listened to her attacker for a considerable period of time during the two incidents but testified that she engaged him in conversation in the hope that she could identify his voice, and hence the opportunity and degree of attention criteria of Neil/ Manson are met. We also listened to the tape during oral argument and conclude that the...