Government of Virgin Islands v. Navarro

• Decision Date: 18 March 1975
• Docket Number: Nos. 74-1700 and 74-1988,Nos. 74-1700-74-1702,No. 74-1702,74-1898 and 74-1988,No. 74-1701 and N,74-1869,74-1763,No. 74-1763 and N,s. 74-1700 and 74-1988,74-1763 and N,74-1701 and N,74-1702,s. 74-1700-74-1702
• Parties: GOVERNMENT OF THE VIRGIN ISLANDS v. Alberto NAVARRO, Appellant in, et al. Appeal of Julio COLON, Jr., ino. 74-1898. Appeal of Israel MIRANDA, ino. 74-1869. Appeal of Sixto PINERO, Jr., in
• Court: U.S. Court of Appeals — Third Circuit

Page 11

513 F.2d 11

GOVERNMENT OF THE VIRGIN ISLANDS v. Alberto NAVARRO, Appellant in Nos. 74-1700 and 74-1988, et al. Appeal of Julio COLON, Jr., in No. 74-1763 and No. 74-1898 Appeal of Israel MIRANDA, in No. 74-1701 and No. 74-1869 Appeal of Sixto PINERO, Jr., in No. 74-1702.

Nos. 74-1700-74-1702, 74-1763, 74-1869, 74-1898 and 74-1988.

United States Court of Appeals Third Circuit.

Argued Dec. 5, 1974.

Decided March 18, 1975.

Stanley M. Poplow, Poplow & Abramson, Philadelphia, Pa., for appellants.

Julio A. Brady, U. S. Atty., John S. Wilbur, Jr., Asst. U. S. Atty., Christiansted Island of St. Croix, V. I., for appellee.

Before SEITZ, Chief Judge, VAN DUSEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

These appeals are from defendants-appellants' conviction of first degree murder and assault in the first degree after a jury trial in the District Court of the Virgin Islands and from denial of their motions for judgments of acquittal or for new trials. Defendant Julio Colon, Jr., was charged and convicted as the perpetrator of the offenses; ¹ defendants Israel Miranda, Alberto Navarro and Sixto Pinero, Jr., were convicted on the basis of their having aided and abetted Colon in the commission of the crimes. ²

Because all defendants convicted as aiders and abettors challenge the sufficiency of the evidence to sustain their conviction, it will be necessary to set forth the facts in some detail.

April 1, 1974, was a holiday in the Virgin Islands, and the day's activities included a performance by a local band at Cramer Park, St. Croix. A large crowd gathered at the park, including all defendants and Leroy Ford, an off duty policeman whose brother, Joseph Ford, was a member of the performing band. In mid-afternoon, a stabbing occurred at the east end of the park. Under Patrolman Ford's supervision the injured man was placed in an automobile for transportation to a hospital. Instead of immediately leaving the park, however, the car proceeded northward towards the beach from whence shots were then heard. Patrolman Ford, accompanied by his brother, walked in the direction of the shooting to investigate.

According to the policeman's testimony, as he and his brother Joseph neared a large genip tree on their return to the bandstand, "two Puerto Ricans was coming toward my direction." These men were later identified by Patrolman Ford as defendant Colon and Marcial Santana. ³ At trial, Ford testified that when he identified himself as a policeman, Colon responded with an obscenity and came forward to scuffle with Joseph Ford. During this fight, a crowd estimated by one witness to include as many as 25 people gathered near the fight scene. Three government witnesses, however, testified to the existence of a group of five or six young men who, according to one witness, came "close together" around the struggle. Evaristo Rios, a spectator, identified defendants Miranda, Pinero and Navarro as part of this group whose members in unison yelled "kill him" in Spanish while Joseph Ford and Colon fought. With the help of Rios, Patrolman Ford broke up the fight.

As he was disengaged from the struggle, Joseph Ford warned his brother that Santana, Colon's companion, had a gun. Patrolman Ford walked toward Santana to search him, but was spun around from behind and distracted. One witness at trial, Rudy Williams, indicated that the policeman was pulled around by members of the group of men of "Spanish birth" who had come "close together" around the fight scene. Williams and another witness, Joseph Gumbs, testified that at this time a gun was passed "from one to the next" among members of this group.

When Patrolman Ford searched Santana he found no gun. He testified that while he looked elsewhere for the gun, defendant Colon circled around the group and shot Joseph Ford in the chest from a distance of approximately eight feet. Joseph Ford fell to the ground near the base of the genip tree behind which Patrolman Ford and Rios immediately took refuge. Both Ford and a park employee, Ben Hur Brady, testified that Colon fired a second shot, which lodged in a branch some two feet above the policeman's head.

Thereafter, the guns of both Colon and Ford misfired when the two attempted to exchange further shots. The policeman was rushed from behind by a group which Rios testified included Miranda, Navarro and Pinero and was hit in the head with a shell wielded by Pinero, according to the testimony of Brady. Although Brady did not specifically see Miranda or Navarro engaged in this assault, he did, however, testify that Miranda, Navarro and Pinero all kicked the body of Joseph Ford before leaving and that Pinero hit the body with a rock. Medical evidence at trial established that the body of Joseph Ford had lacerations over the right temple and a deep wound above the left eye.

Brady testified that after the attack, all four defendants left the scene in a yellow Volkswagen. The driver of the car, Jose Gonzalez, testified, however, that he drove only Miranda, Navarro and Santana from the park.

All defendants testified at trial. Their testimony revealed that the four were from the same neighborhood and had known each other for some time. Julio Colon recalled that on April 1 he had heard two shots fired while he was at the bar in the band pavilion, but stated that he left with a stranger in a yellow Volkswagen without seeing or hearing anything else. Sixto Pinero denied having heard any shots at the park that day or seeing anyone with a gun. Alberto Navarro claimed that he heard shots but left shortly thereafter with Gonzalez, Santana and Miranda in a yellow Volkswagen. Israel Miranda admitted seeing the incident as described by other witnesses, but testified that he walked away from the scene and left with Gonzalez, Navarro and Santana.

Sufficiency of the Evidence

Defendants Miranda, Navarro and Pinero assert on appeal that there was insufficient evidence in the record on which the jury could find beyond a reasonable doubt that they aided and abetted Colon in the offenses charged: the murder of Joseph Ford and the assault of Leroy Ford "by firing at (him) with a revolver." In examining the evidence to determine whether it is in fact sufficient to support the jury verdict of guilty, this Court must view the evidence in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Cades, 495 F.2d 1166, 1169 (3rd Cir. 1974). Furthermore, we are bound by the jury's determination of credibility and its decision to accept the testimony of witnesses who contradicted the defendants. Government of the Virgin Islands v. Gereau, 502 F.2d 914, 921 (3rd Cir. 1974) cert. denied, --- U.S. ---, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975).

Viewed in this light, the testimony at trial establishes the following sequence of events with respect to these defendants:

1. They were members of a group of five to six men identified as "Puerto Ricans" or of "Spanish birth" who closed in around the fight between Joseph Ford and Colon and yelled "kill him" during the course of that struggle;

2. A gun was passed from Santana among some members of that group while Patrolman Ford was spun around and his attention diverted by members of the group;

3. After Joseph Ford was shot, all three defendants kicked the body and Pinero hit the body with a rock; and

4. All three defendants engaged in a physical assault on Patrolman Ford after Colon fired at him, with Pinero identified as striking the policeman in the head with a shell.

The question to be determined is whether this evidence is sufficient to support a finding that the defendants aided and abetted Colon in his attacks on the Fords.

In order to be convicted as a principal in the commission of a crime on the basis of aiding and abetting the perpetrator, an individual must have a "purposive attitude" to see the venture succeed and must participate in the criminal endeavor at least to the point of encouraging the perpetrator and "participate in it as something that he wishes to bring about . . . ." United States v. Peoni, 100 F.2d 401 (2d Cir. 1938) quoted in Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). In determining whether a defendant has associated himself with and participated in a criminal undertaking, care must be taken that speculation is not permitted to substitute for evidence. United States v. Barber, 429 F.2d 1394 (3rd Cir. 1970). This axiom is particularly apt in any case where a number of spectators view the events because there is the possibility that mere bystanders might have been erroneously identified as aiding the commission of the crime.

We are of the opinion, after careful review, that the evidence in this case substantiates the jury's finding of complicity on the part of these defendants in Colon's crimes. The jury could have found that the defendants, by yelling "kill him" when Colon grappled with Joseph Ford, encouraged and induced him to subsequently shoot Ford. The significance of these words of encouragement is increased by the fact that they came from a group of neighborhood friends of Colon whose close proximity to the fight could itself have been viewed by the jury as an encouragement. Cf. United States v. Thomas, 469 F.2d 145 (8th Cir. 1972). Furthermore, some members of the group actively facilitated the murder by diverting Patrolman Ford while Santana's gun was passed among them to Colon.

The physical attacks on Patrolman Ford and on the body of his brother weigh heavily against the defendants. Although generally proof showing one to be an aider and abettor relates to events occurring before the charged crime of the perpetrator, evidence of acts subsequent to the commission of the crime is competent to prove a common design, and is significant in evaluating the conduct prior to the commission of the offense of one charged as an aider and...