Government of Virgin Islands v. Roldan

• Decision Date: 28 December 1979
• Docket Number: No. 79-1443,79-1443
• Citation: 612 F.2d 775
• Parties: 5 Fed. R. Evid. Serv. 606 GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Juan Ascencio ROLDAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 775

612 F.2d 775

5 Fed. R. Evid. Serv. 606

GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Juan Ascencio ROLDAN, Appellant.

No. 79-1443.

United States Court of Appeals Third Circuit.

Argued Dec. 7, 1979.

Decided Dec. 28, 1979.

Jean-Robert Alfred, Christiansted, St. Croix, V. I., Douglas A. Brady (argued), Christiansted, St. Croix, V. I., on the brief, for appellant; Russell B. Johnson, Christiansted, St. Croix, V. I., co-counsel for appellant.

Ishmael A. Meyers, U. S. Atty., Douglas R. Schwartz (argued), Asst. U. S. Atty., Christiansted, St. Croix, V. I., for appellee.

Before GIBBONS, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

This is an appeal from a conviction for murder in the first degree under V.I.Code tit. 14, § 922(a)(1). Juan A. Roldan, the convicted defendant, challenges first, the admission into evidence of his prior conviction and second, the sufficiency of the evidence of premeditation and deliberation. Because we are satisfied that the district court did not err in its evidentiary ruling or in submitting the case to the jury, we affirm.

I.

On the morning of March 23, 1978, Enrique Garcia was found dead in a yard close to Roldan's property. His body, which was covered with blood, revealed multiple stab wounds. An autopsy disclosed that the stab wounds were the cause of death.

Roldan, who was a neighbor of the owners of the yard where the body was found, was arrested and charged with first degree murder. Blood was found in and around Roldan's house, on some articles of clothing and on Roldan's person. A blood-stained machete, which fit the autopsy description of the murder weapon, was found atop an outhouse in Roldan's yard.

Roldan was found guilty by a jury after a two-day trial. Testimony included that of Luz Maria Cruz, the wife of Roldan's nephew. Cruz was called by the Government. Defense counsel's cross-examination began as follows:

Q Mrs. Cruz, I am a lawyer for Mr. Roldan, I am going to ask you a few questions.

Now, have you known Mr. Roldan for two or three years?

A Yes. I am married to my husband since 1961, ever since I know him.

Q Do you ever see people other than Mr. Roldan going to his house?

A No.

Q Would you say that he is a lonely unsociable fellow?

A He is a man that never bother anybody.

Trial Transcript at 38-39 (emphasis supplied). This line of questioning was not continued.

The Government, at a sidebar conference, and in chambers during a recess, contended that Roldan's counsel, by these inquiries, had introduced evidence of Roldan's good character, thereby allowing the Government to impeach Cruz' testimony on redirect examination. The Government offered defense counsel a choice either retract the third question ("Would you say that he is a lonely unsociable fellow?"), and strike the answer given, or the Government would question Cruz about Roldan's prior murder conviction. Roldan's attorney refused to retract the question or to move to strike the answer. At the same time he also objected to the Government's proposed impeachment. The district court then made clear to defense counsel that the Government would be allowed to question Cruz about the prior conviction.

On redirect examination, Cruz was asked the following questions by the Government:

Q Mrs. Cruz, you are aware, are you not, that the Defendant was convicted previously of murder in the 1st degree?

MR. JOHNSON: (defense counsel) I object to the question and ask that it be stricken and the jury instructed to disregard.

THE COURT: I will overrule the objection on the grounds I previously stated.

A (By the witness) Yes, I knew about that.

Q (By Mr. Schwartz (Assistant U.S. Attorney)) You knew he was convicted of murder in the 1st degree?

A Yes, sir, I have known of that.

Q And you would still say he is a man who never bothers anyone?

A Now, yes, I have to say that.

Id. at 51.

Before instructing the jury, the district court denied Roldan's motions for a mistrial based on admission of the prior conviction, and for acquittal for insufficiency of evidence of premeditation and deliberation required for first degree murder. The jury was instructed as to the elements of first and second degree murder and returned a verdict of guilty of first degree murder. Roldan was sentenced to life imprisonment. ¹

II.

Roldan argues that it was error for the district court to have allowed the Government to inquire whether Cruz knew that Roldan had been convicted previously of first degree murder, since evidence of prior bad acts is generally inadmissible.

A.

Rule 404 of the Federal Rules of Evidence provides in relevant part:

(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(b) 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.

Thus, if Roldan "opened the door" by putting his character in issue, it was permissible for the Government to put in evidence of Roldan's bad character through impeachment of Cruz's good character assessment, by asking her about her familiarity with Roldan's prior conviction. ² The permissible methods of doing so are specified in Fed.R.Evid. 405 (emphasis supplied):

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

Cruz was closely related to Roldan and could have been expected to render a positive character evaluation. The district court determined that by asking the questions about Roldan's social habits, Roldan's counsel had put Roldan's character in issue. We agree. The last two questions which Roldan's counsel asked Cruz, are apparently directed toward establishing that Roldan had little contact with anyone and would therefore be unlikely to have reason to murder anyone. We do not think that Cruz' answer, "He is a man that never bother anybody," was a gratuitous, unsolicited remark; on the contrary, it was precisely the type of answer called for by defense counsel. The court's admission of the Government's impeachment testimony was thus proper. ³

B.

Any doubts we might have had concerning the question whether Roldan had intentionally put his character in issue, or was rather the unfortunate victim of an unexpected and unresponsive answer, are resolved by the Government's willingness to forgo inquiry into Roldan's bad character provided Roldan's counsel agreed to retract the third question and move to strike Cruz' answer. The record reveals the colloquy that transpired in chambers:

THE COURT: . . .

Now, perhaps you can state specifically why you think you would be entitled to ask her about his previous conviction for murder?

MR. SCHWARTZ (Assistant U.S. Attorney): Yes. I think the witness is related to the Defendant; I am reasonably if not positively sure she is aware that the Defendant was convicted of Murder in the 1st degree before, and I think her statement to the jury that he is a man who never bothers anybody, couldn't be any more misleading than it was.

I told Mr. Johnson if he wanted to retract the question and the answer, that could be a possible remedy, but I think not only did Mr. Johnson put the Defendant's character in issue, but the witness then made the statement that was false and totally misleading.

THE COURT: And you want to impeach her?

MR. SCHWARTZ: If that is the only alternative, Your Honor.

THE COURT: As well as bring that trait of his character into issue?

MR. SCHWARTZ: Yes, sir. My main concern at this point is that she gave a statement that was misleading and untrue to the jury.

THE COURT: Mr. Johnson, have you checked Rules 404 and 405?

What do you say?

MR. JOHNSON: The way I read Rule 404 and 405 is that the specific act of misconduct resulting in a conviction may not be gone into under these circumstances.

THE COURT: What about impeachment?

MR. JOHNSON: I don't think the Government is entitled to impeach its own witness. The Government did not have to call her, she was there and the questions I asked were perfectly proper cross examination.

THE COURT: The Rules now allow a party to impeach his own witness especially when it is to impeach them for an answer given on cross examination.

MR. JOHNSON: We are treading on very thin ice, Judge.

MR. SCHWARTZ: Mr. Johnson, that was your mistake.

MR. JOHNSON: Don't compound it by making this mistake.

MR. SCHWARTZ: I told Mr. Johnson if he wants the Judge to strike the question and answer from the jury to keep the record free from any doubt, I would agree, but I think I am losing a very good opportunity.

THE COURT: Are you giving the defense the opportunity to ask the Court to strike?

MR. SCHWARTZ: Yes, sir, just to keep the record free from this issue. I don't think it is that material except that she gave a misleading answer.

I won't have any objection if that is done.

MR. JOHNSON: The defense will not make that request.

MR. SCHWARTZ: Then I make my motion.

THE COURT: I think under the circumstances I would say that on two grounds, one is that the character traits of the accused was put in...