Government of Virgin Islands v. Carino

• Decision Date: 20 August 1980
• Docket Number: No. 79-2132,79-2132
• Citation: 631 F.2d 226
• Parties: 6 Fed. R. Evid. Serv. 967 GOVERNMENT OF the VIRGIN ISLANDS v. Luis CARINO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 226

631 F.2d 226

6 Fed. R. Evid. Serv. 967

GOVERNMENT OF the VIRGIN ISLANDS v. Luis CARINO, Appellant.

No. 79-2132.

United States Court of Appeals Third Circuit.

Argued April 24, 1980.

Decided Aug. 20, 1980.

Allan A. Christian, argued, Frederiksted, V. I., for appellant.

Ishmael A. Meyers, U.S. Atty., Douglas R. Schwartz, Asst. U.S. Atty., District of Virgin Islands, Christiansted, V. I., David B. Smith, argued, Dept. of Justice, Washington, D. C., for appellee.

Before ADAMS, MARIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Luis Carino appeals from his conviction for assault with intent to commit mayhem and possession of an unlicensed firearm. ¹ At his jury trial, Carino claimed that he acted in self-defense. On appeal he argues that it was error for the district court to have excluded evidence of the victim's prior conviction for manslaughter which he wanted to use in order to show that the victim was the aggressor, to impeach her credibility and to show his state of mind at the time of the crime. For the reasons that follow, we will affirm the judgment of conviction.

II.

Luis Carino and Norilys Richardson, the complaining witness, lived together in St. Croix for about eighteen months. The relationship, for at least some period, was characterized by violence between them. They separated approximately two weeks before the incident in question. On that day, Richardson was talking to a neighbor, Moises Carmona, outside of the housing project where Richardson lived. Carino and his cousin Nelson Carino arrived and joined Carmona and Richardson. After a brief conversation, Carino and Richardson began to argue. According to Richardson, Carino took a stick and hit Richardson on the face and body. She tried to defend herself by looking for something behind a tree and by holding on to the stick which Carino was using to hit her. Carino then pulled a gun out of his jacket and fired at Richardson, shooting her with three bullets which caused extensive hemorrhaging and multiple internal injuries. Richardson was required to have emergency surgery which included the removal of her ruptured spleen.

Although several people observed the shooting, no one came to Richardson's aid. Richardson begged Carino to take her to a hospital. After she assured him that she would not "rat" on him, he agreed to help her. He carried her to a road where he attempted to flag a car down. Eventually, a police car stopped for them.

During the ride to the hospital, Carino told a police officer that they had been attacked by someone in a green army jacket. However, once Richardson was alone with a police officer in the hospital, she indicated that in fact Carino had shot her. Richardson's version of the facts as set forth above was substantiated by eye-witnesses.

Carino's testimony presented an entirely different version of the facts. According to Carino, Richardson came up to him when he was sitting on a bench and hit him with a stick. He then took the stick and hit Richardson on the head. She then reached into her jacket, and he rushed her, grabbed her hands and took a gun from her pocket. Richardson threatened him saying she was going to kill him, that he was "going to be the second man she kill(ed), because she killed a man." She then ran back, picked up and broke a bottle, and ran towards him with the sharp glass saying " 'I am going to kill you.'-I be the second one to kill (sic)." At this point in the testimony, there was a sidebar conference at the request of the prosecuting attorney who objected to the references to the prior killing by Richardson. The court instructed Carino not to refer in any way to the prior crime or Richardson's conviction for voluntary manslaughter.

Shortly before the trial, the Government had moved in limine to prevent the defense from using Richardson's past conviction for voluntary manslaughter for any purpose other than to impeach her credibility, which the Government conceded was permissible under Rule 609 of the Federal Rules of Evidence. The defense argued that it had a "right to ask this question under (609(a))" because it would show defendant was fearful of Richardson, since he claimed she had wounded him on previous occasions, and therefore defendant's "state of mind (was) important, knowing her (Richardson's) propensity for violence." The court granted the Government's motion, concluding:

I would say that (the Government) is right, that the prejudicial effect of (admitting the conviction) far outweighs any probative value. You are getting into the area of a character trait and you are trying then to show that character trait of the witness, the victim, by going into a conviction that has nothing to do with this man. He may have known about it but that doesn't mean she has a potentiality for violence.

After the presentation of the Government's case, Carino, out of the jury's presence, requested the court to reconsider its "determination . . . to exclude the testimony under Rule (609(a))." The Government again argued that while the conviction could properly be admitted for impeachment purposes, it could not be used to demonstrate the victim's propensity to commit a particular crime. The court ruled:

So far there has been no reason to use (the conviction) for impeachment so the only reason you could use it would be to show a propensity or trait of character, and I just wouldn't permit that.

Thereafter Carino, who had made no effort to impeach Richardson's credibility by use of the prior conviction during his cross-examination of her when she testified in the Government's case in chief, made no further attempt to introduce the record of the conviction for any other purpose.

On appeal, Carino argues that it was error for the district court to have excluded Richardson's conviction. He claims that evidence should have been admitted not only for its impeachment value, but also to demonstrate his fear and to corroborate his testimony that the victim was the aggressor. He further argues that when the trial court weighed the prejudice in admitting the conviction, the court erroneously considered the prejudice to the prosecution.

III.

Had Carino sought to impeach Richardson's credibility by the use of her conviction he could have done so. ² From our detailed review of the record, it is clear that the court, in fact, did not preclude introduction of the conviction for impeachment purposes. Although the defense may not have understood that the court's limitation did not apply to use of the conviction for impeachment purposes, it is evident from the record that the court imposed no such limitation. The Government clearly indicated in the presence of defense counsel that it would not object to such use of the prior conviction; the Assistant United States Attorney stated twice that the conviction could be admitted for impeachment purposes. Nonetheless Carino did not attempt to impeach Richardson's credibility, and therefore there is no basis for holding the court erred in excluding evidence of the conviction for impeachment purposes.

Carino may have believed that he could use proof of the prior conviction to show Richardson's character, because the Rules of Evidence treat character of the victim as an exception to the general rule rejecting the circumstantial use of character evidence. ³ However, the nature of evidence permitted for proof of character is limited by Rule 405(a) to opinion and reputation testimony, Government of the Virgin Islands v. Roldan, --- V.I. ---, 612 F.2d 775, 778 (3d Cir. 1979), cert. denied, 100 S.Ct. 1857 (1980); Government of the Virgin Islands v. Petersen, 14 V.I. 24, 32, 553 F.2d 324, 329 (3d Cir. 1977). See 2 Louisell & Mueller, Federal Evidence § 139 at 105 (1978) (hereinafter Louisell & Mueller). As we read the record, there was no effort to introduce reputation evidence of Richardson, as distinguished from her conviction and prior acts. Therefore, when the court excluded evidence of the conviction to show Richardson's character, it did not err.

However, the Rules provide an additional basis for the introduction of specific evidence of other crimes. Rule 404(b) provides:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Carino sought to introduce Richardson's conviction for manslaughter of her prior boyfriend to "demonstrate the fear" and "the state of mind" of defendant at the time of the incident. Although there is no specific reference in the Federal Rules of Evidence to admissibility for that purpose, we do not read the Rules as changing the prior precedent under which certain acts of violence by the victim are admissible to corroborate defendant's position that he "reasonably feared he was in danger of imminent great bodily injury." United States v. Burks, 470 F.2d 432, 435 (D.C. Cir. 1972). Commentators on the Federal Rules of Evidence have reached a similar conclusion. Professors Louisell and Mueller state, "If it can be established that the accused knew at the time of the alleged crime of prior violent acts by the victim, such evidence is relevant as tending to show a reasonable apprehension on the part of the accused. Since this is not the circumstantial use of character evidence to prove conduct, such use is not barred either by Rule 404 or Rule 405." Louisell & Mueller, supra § 139, at 108 (emphasis in original). While such use of a victim's prior acts may not fall precisely into any of the enumerated purposes, it is close to some of them, such as "intent" and "knowledge." In any event, the enumerated purposes are not exclusive, as demonstrated by the...