U.S. v. Crochiere

• Citation: 129 F.3d 233
• Decision Date: 10 October 1997
• Docket Number: No. 97-1555,97-1555
• Parties: UNITED STATES of America, Appellee, v. James A. CROCHIERE, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 233

129 F.3d 233

UNITED STATES of America, Appellee, v. James A. CROCHIERE, Appellant.

No. 97-1555.

United States Court of Appeals, First Circuit.

Heard Oct. 10, 1997.

Decided Nov. 18, 1997.

Marc D. Padellaro, Cambridge, MA, with whom Joseph W. Monahan, III and Mary Jane Walsh were on brief, for appellant.

S. Theodore Merritt, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before STAHL, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

James A. Crochiere, a correctional officer at the Worcester County Jail and House of Correction, was indicted on charges of violating and conspiring to violate the civil rights of a pre-trial detainee at the jail. See 18 U.S.C. §§ 2, 241, 242. Crochiere was charged with the act of and conspiracy to pour boiling water on the groin and upper thigh of Jose Nieves, who had been arrested on the charges of murdering a young girl. A jury found Crochiere guilty of the conspiracy count and acquitted him of the substantive count.

Crochiere makes three arguments on appeal. He challenges the district court's denial of his motion for a jury view of the scene of the crime. He contends that a portion of the district court's jury instructions on the conspiracy count was erroneous in that the instructions charged that no "overt act" is required under the criminal civil rights conspiracy statute, 18 U.S.C. § 241. He also argues that the evidence was insufficient to convict him on the conspiracy count. We affirm and hold that 18 U.S.C. § 241, the civil rights conspiracy statute, does not require an overt act.

I.

We state the facts in the light most favorable to the verdict. See United States v. Montas, 41 F.3d 775, 778 (1st Cir.1994). On April 18, 1993, Jose Nieves was brought to the jail to await trial on charges that he murdered a twelve year old girl. Nieves, a heroin addict who was undergoing detoxification, became highly agitated and unruly, banging his head against the bars of his cell. Nieves cut open his forehead. Several correctional officers, Crochiere among them, came to Nieves's cell to restrain him. The officers handcuffed Nieves and strapped him into a restraint chair. Nieves strongly resisted; the officers placed a blanket over Nieves's head to prevent him from spitting. The first time the officers placed Nieves in the restraint chair, he was able to free himself from the arm straps. The second attempt at restraint was more successful, and once Nieves was securely in the chair he was no longer a threat to himself or to the officers.

Rodney Lambert was another pre-trial detainee; he was indicted on the same federal civil rights charges as Crochiere. He pled guilty, cooperated with the government and testified against Crochiere. His cell was located three cells down from Nieves's cell. Lambert had a hot pot in his cell, and after Nieves was restrained and the commotion died down, Lambert began boiling water for soup. Crochiere approached Lambert's cell and asked Lambert if he had any salt. Crochiere wanted to rub salt into the open wound on Nieves's forehead. Lambert said that he did not, but offered Crochiere an alternative weapon: a cup of boiling water. Crochiere initially declined the offer, but soon returned and requested the boiling liquid. Lambert poured a cup of steaming water for Crochiere, who took the cup and walked toward Nieves's cell. Moments later, Nieves screamed out in pain, exclaiming that "[t]hey burned my pee pee," and that he was hurt. Following these screams, another voice said, "Now you know how the little girl felt."

Among the government's witnesses who testified to these events were Michael Robichaud, a correctional officer on duty on the evening of April 18, 1993; Foimai Tau, a Unit Supervisor on duty the same evening; and Scott Croteau, Anibal Antuna, and Rodney Lambert, three inmates whose cells were located in the same tier as Nieves's cell.

Nieves complained to Officer Robichaud of pain in his groin. Robichaud related this information to Lieutenant Tau, the Unit Supervisor. Lieutenant Tau went to see Nieves, who asked to see a nurse because someone had poured hot water on him. Lieutenant Tau summoned Nurse Elaine Gustafson, who spoke with Nieves but, being at the end of her shift, refused to examine him. Nurse Dorothy Hester, the supervising nurse at the jail, did examine Nieves the following morning. Because Nieves told her he had an injury in his groin area, she examined that area and observed a second-degree burn with blisters. The burn extended down to his inner thigh area, and upwards to his testicles.

On April 20, two days after the burning, Nieves was taken to Bridgewater State Hospital for a psychological examination as to his competence to stand trial for the charge of murder. A correctional officer at Bridgewater State conducted a routine strip search of Nieves and observed blisters and injury in Nieves's groin area. Pursuant to routine practice the officer photographed the injury, and the photograph was later sent, along with a report, to the Worcester County Sheriff's Office.

Kevin Foley, Assistant Deputy Superintendent of the Worcester County Sheriff's Office, then commendably initiated an investigation of the burning. Foley requested reports regarding Nieves's injury from several individuals, including Crochiere, Tau, and Gustafson. All of them denied that Nieves had been burned, or that Nieves had complained of pain and of being burned by a correctional officer. The following year, around September of 1994, the Federal Bureau of Investigations began an investigation into the events surrounding Nieves's injury, which, in turn, led to the prosecution of this case. Nurse Gustafson and Supervisor Tau eventually testified that they had previously reported falsely on the events of April 18, 1993, and stated that Nieves actually did complain of pain in his groin and told them that he had been burned with hot water.

II. Jury View

On the second day of trial, Crochiere filed a motion for a jury view of the lower left tier of cells at the jail, the location of these events. Crochiere argued that it was only by viewing the tier of cells that the jurors could properly assess the validity of the statements made by several of the witnesses --specifically inmates Croteau and Lambert--about what they saw and heard on that night. The district judge initially deferred the decision on the view, so that he could hear more of the evidence and "have a better sense of whether a view [would be] important and worthwhile in the context of the case." The court ultimately denied the view, reasoning that it would be "not just an unnecessary use of time, but actually potentially confusing and misleading, because neither Croteau nor Lambert said that they could see anybody going into Nieves's cell or see anything that was going on in the cell."

The decision to permit a view is entrusted to the sound discretion of the trial court. See United States v. Pettiford, 962 F.2d 74, 76 (1st Cir.1992); United States v. Passos-Paternina, 918 F.2d 979, 986 (1st Cir.1990). A court generally acts within that discretion in denying a motion for a view when there is sufficient evidence describing the scene in the form of testimony, diagrams, or photographs. See Pettiford, 962 F.2d at 76; United States v. Drougas, 748 F.2d 8, 31 (1st Cir.1984). In making this determination, the court may consider such factors as the orderliness of the trial, whether the jury would be confused or misled, whether it would be time-consuming or logistically difficult, and whether cross-examination had been permitted regarding the details of the scene. See id.; Pettiford, 962 F.2d at 76; Passos-Paternina, 918 F.2d at 986; Bundy v. Dugger, 850 F.2d 1402, 1422 (11th Cir.1988).

Crochiere made a non-frivolous argument in support of the view as to the events in Nieves's cell which underlay the violation of civil rights charge, as opposed to the conspiracy charge. Inmates Croteau and Lambert did at times testify to having been able to see beyond what was happening in front of their own cells. For example, Lambert testified that he could see officers walking into and out of Nieves's cell, and that he could see Crochiere "in front of one of the cells to [his] right." The evidence in this case was somewhat inconsistent, and the credibility of each witness's story as to what he saw and when he saw it was critical. The average juror has not seen a jail cell block, and might well have difficulty understanding the layout and the ability (or inability) of inmates to see up and down the corridor where Nieves's cell was located. Crochiere contended that photographs and charts could not do adequate justice to the layout and spacial arrangements of the cell block. Cf. Pettiford, 962 F.2d at 76 (upholding denial of view where view would not have provided clearer portrayal of scene than photographs did).

It is also true, as the district judge noted, that neither Croteau nor Lambert testified that they could see into Nieves's cell. Most of the inmates' testimony was of what they heard, and what they saw happen in front of their own cells. A view would not have helped to discredit this testimony. Additionally, the defendant had ample opportunity to cross-examine the various government witnesses on their ability to perceive what they claimed to see. The question of the view was not an easy one, and the district judge's decision was considered.

In light of the acquittal on the substantive civil rights charge, we need not decide the question of whether there was an abuse of discretion in denying the view. Any error Crochiere may claim in this ruling was harmless. "In the usual case, a non-constitutional evidentiary error will be treated as harmless if it is highly probable that the error did not contribute to the verdict." See United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.1997). The...