Government of Virgin Islands v. Bedford

• Decision Date: 23 February 1982
• Docket Number: No. 81-1172,81-1172
• Citation: 671 F.2d 758
• Parties: 9 Fed. R. Evid. Serv. 1645 GOVERNMENT OF the VIRGIN ISLANDS, v. BEDFORD, Warren, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 758

671 F.2d 758

9 Fed. R. Evid. Serv. 1645

GOVERNMENT OF the VIRGIN ISLANDS, v. BEDFORD, Warren, Appellant.

No. 81-1172.

United States Court of Appeals Third Circuit.

Argued Dec. 7, 1981.

Decided Feb. 23, 1982.

Joseph B. W. Arellano (argued), Law Office of Roger L. Campbell, Charlotte Amalie, St. Thomas, V.I., for appellant.

Kathleen A. Felton, Atty., U.S. Dept. of Justice (argued), Washington, D.C., Ishmael A. Meyers, U.S. Atty., Hugh P. Mabe, III, Asst. U.S. Atty., D.V.I., Charlotte Amalie, St. Thomas, V.I., for appellee.

Before HUNTER, VAN DUSEN and SLOVITER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Defendant Warren Bedford was convicted of attempted grand larceny, in violation of 14 V.I.C. § 1082 (Count One), attempted assault with a deadly weapon, in violation of 14 V.I.C. § 297(3) (Count Three), and unlawful possession of a firearm during the commission of a crime of violence, in violation of 14 V.I.C. § 2253(a) (Count Four). ¹ He was sentenced to three and one-half years' imprisonment for attempted grand larceny, and two and one-half years' imprisonment on each of the other two counts. All sentences were to be served concurrently.

Defendant appeals on three grounds. First, he argues that the district court committed reversible error in allowing him to be impeached with evidence of a prior conviction without first determining that its probative value would outweigh its prejudicial effect. Second, defendant argues that the use of the term "dangerous weapon" instead of "firearm" in the verdict form, given to and signed by the jury, resulted in his conviction of a crime with which he was never charged. Third, defendant argues that the district court improperly allowed the information against him to be amended in violation of Fed.R.Crim. P. 7(e). We are not persuaded by defendant's arguments and will affirm the judgment of the district court.

FACTS

Mr. and Mrs. Thomas Gurklis arrived in St. Thomas on September 14, 1980, on their honeymoon. After checking into the Pavilion and Pools Hotel at about 8:00 p. m., they went to the hotel bar for a drink. After having one drink each, they started back to their room with a bottle of wine, some soft drinks and snacks. As they entered a patio area adjacent to their room, a man wearing a nylon stocking mask and knit cap rushed towards Mrs. Gurklis and attempted to grab her purse. Mr. Gurklis testified that he saw the man run up to his wife and stick a gun in her back. Mr. Gurklis heard the man say he had a gun. Mrs. Gurklis held on to her purse, and her husband managed to push the assailant into the swimming pool.

Mrs. Gurklis then jumped into the pool after the assailant, trying to subdue him by stabbing him with her high-heeled shoes. The assailant swam to the edge of the pool, got out, and, holding a gun, threatened to kill Mr. Gurklis. A struggle ensued and as the two men wrestled, Mrs. Gurklis attempted to assist her husband. In the struggle, both Mr. and Mrs. Gurklis were struck by the assailant. Mr. Gurklis was struck in the face and hand and Mrs. Gurklis in the head. Finally, Mrs. Gurklis was able to get help from the hotel office. Two employees helped subdue the assailant until the police arrived and arrested him. The assailant was later identified as the defendant Warren Bedford.

Bedford testified in his own defense that he had been on the hotel grounds picking genips, and that he was suddenly attacked by an unknown man. He denied having made any attempt to steal Mrs. Gurklis' purse or to shoot Mr. Gurklis, and he denied knowledge of the gun or mask.

DISCUSSION

Evidence of Prior Conviction

Defendant claims that the district court committed reversible error by admitting evidence of his prior conviction for possession of a switchblade knife. He argues that the district court admitted this evidence without first determining that the probative value of the evidence outweighed its prejudicial effect, a determination required by Fed.R.Evid. 609(a)(1). ²

During the cross-examination of the defendant, the prosecutor asked, "Are you the same Warren Bedford who was convicted on his guilty plea of possession of a switchblade knife in March of 1978?" Transcript at 163-64. Defense counsel immediately objected to the question on the ground that it was not probative of the defendant's credibility. The court overruled the objection stating: "If it is a felony, they may ask." Transcript at 164. Defense counsel again objected on the basis of relevance, pointing out that the probative value of the prior conviction must be weighed against its prejudicial effect under Rule 609(a)(1). The court again overruled the objection and permitted the question to be answered (in the affirmative). The Government concedes that the court did not make any attempt to weigh the probative value of admitting this evidence against its prejudicial effect to the defendant. Government's Brief at 8. ³

Evidence of a prior conviction can be admitted under Rule 609(a)(1) solely for purposes of attacking credibility. Rule 609(a)(1) is absolutely clear and explicit in requiring the trial court, before admitting evidence of a prior conviction, to make a determination that the probative value of the evidence outweighs its prejudicial effect to the defendant. ⁴ See United States v. Provenzano, 620 F.2d 985, 1003 (3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980); United States v. Cook, 608 F.2d 1175, 1185 (9th Cir.) (en banc), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1979); United States v. Preston, 608 F.2d 626, 639 (5th Cir. 1979); United States v. Seamster, 568 F.2d 188, 190-91 (10th Cir. 1978); United States v. Hawley, 554 F.2d 50, 52 (2d Cir. 1977); United States v. Oakes, 565 F.2d 170, 173 (1st Cir. 1977); United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976). The Government bears the burden of persuading the court that the evidence should be admitted, i.e., that its probative value outweighs its prejudicial effect. Oakes, 565 F.2d 534; Mahone, 537 F.2d 922. The defendant is then permitted to rebut the Government's presentation, explicating the potentiality for unfair prejudice from admission of the evidence. Mahone, 537 F.2d at 929.

In this case, the district judge was apparently of the opinion that because the crime in question was a felony, it was automatically admissible under Rule 609(a)(1). This is incorrect. Rule 609(a)(1) is stated conjunctively: the crime must be punishable by death or imprisonment in excess of one year and there must be a determination by the district court that the probative value of the evidence outweighs its prejudicial effect.

Although the district court clearly erred in holding that it need not make this advance determination, its error does not call for reversal of Bedford's conviction. We find that the court's erroneous evidentiary ruling was harmless error. " '(A) defendant is entitled to a fair trial but not a perfect one,' for there are no perfect trials," Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 1570-71, 36 L.Ed.2d 208 (1973), quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). The reviewing court must decide "whether the error itself had substantial influence (on the minds of the jury.)" Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976), quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). Accord, Government of the Virgin Islands v. Carino, 631 F.2d 226, 230 (3d Cir. 1980). Unless "there is a reasonable possibility that (the error) contributed to the conviction, reversal is not required." Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972).

On this record, there was overwhelming evidence of Bedford's guilt. Even if the district judge had made an advance determination pursuant to Rule 609(a) (1), and had incorrectly admitted the evidence anyway, there is no reasonable possibility that the evidence of his prior conviction could have had a "substantial influence" on the jury's decision. Both Mr. and Mrs. Gurklis testified about the circumstances of the assaults, their testimony was corroborated by two other witnesses, and all of the witnesses had helped to subdue Bedford and hold him until the police arrived. The district court's error was therefore harmless.

Use of the Term "Dangerous Weapon" Instead of "Firearm" in

the Verdict Form

Count Four of the information against the defendant charged him with possession of an unlicensed firearm during the commission of a crime of violence, in violation of 14 V.I.C. § 2253(a). ⁵ Count Four charged as follows:

On or about the 14th day of September, 1980, in the Virgin Islands of the United States, Judicial Division of St. Thomas and St. John, WARREN BEDFORD, did unlawfully possess a firearm, to wit: a loaded .25 caliber automatic pistol during the commission of crimes of violence, to wit: Robbery and Assault, in violation of Title 14, Virgin Islands Code, Section 2253(a).

(Emphasis added.) Count Four remained unchanged throughout the trial. However, the verdict form signed by the jury with respect to Count Four read:

We, the Jury, impanelled and sworn to try the guilt or innocence of the defendant above named, find the defendant, Warren Bedford, GUILTY of the crime charged, to wit: Possession of a Dangerous Weapon during the commission of a crime of violence.

(Emphasis added.) Although the verdict forms were read in open court before being submitted to the jury, the defense did not object nor otherwise call the discrepancy to the court's attention. Transcript at 235. It is not clear exactly how this error came about. However, defendant argues that, regardless of the cause of the error, the verdict is fatally flawed and at variance with the charge because possession of a dangerous weapon is a separate...