U.S. v. Rodriguez-Berrios

Decision Date23 July 2009
Docket NumberNo. 07-1854.,07-1854.
Citation573 F.3d 55
PartiesUNITED STATES of America, Appellee, v. Eddie S. RODRÍGUEZ-BERRÍOS, Defendant-Appellant.
CourtU.S. Court of Appeals — First Circuit
573 F.3d 55
UNITED STATES of America, Appellee,
v.
Eddie S. RODRÍGUEZ-BERRÍOS, Defendant-Appellant.
No. 07-1854.
United States Court of Appeals, First Circuit.
Heard October 30, 2008.
Decided July 23, 2009.

[573 F.3d 59]

G. Richard Strafer, for appellant.

Vijay Shanker, Attorney, United States Department of Justice, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Prez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.


After a jury trial, appellant Eddie Samir Rodríguez-Berríos was found guilty of committing a carjacking that resulted in the death of his ex-wife. He now challenges that conviction, arguing that the evidence against him was insufficient to support the jury's verdict that he had the requisite intent to commit a carjacking. He also claims that the trial judge made several erroneous evidentiary rulings, erred in excluding the testimony of a proffered expert witness on the flaws in eyewitness identification, and erred in denying his motion for a mistrial after a government agent referred in his testimony to a polygraph examination that appellant had been summoned to take. For the reasons set forth below, we affirm the conviction.

I.

Appellant was a police officer for the Commonwealth of Puerto Rico in Guayama. In 1995, he married the victim, Yesenia Ortiz-Acosta ("Ortiz"). They had one daughter together and were then divorced in February 1999. Ortiz disappeared approximately two months later, on April 15th, 1999, while driving her car in Guayama. About two weeks after her disappearance, her burned-out car was found in an area where smoke had been seen on the night she had disappeared. The car had been intentionally burned with an accelerant, such as gasoline, and the victim's body was never found. Appellant quickly became a suspect in the investigation of his ex-wife's disappearance. During the following month, he made several incriminating admissions linking him to her murder.

On April 14, 2004, a grand jury indicted appellant and two co-defendants for conspiracy to commit a carjacking (count one),

573 F.3d 60

carjacking resulting in death (count two), and using fire to commit the felonies of conspiracy and carjacking (count three). The government later dismissed all charges against the two co-defendants and counts one and three against appellant. Appellant then faced one charge for committing a carjacking resulting in death, in violation of 18 U.S.C. § 2119(3).

The jury trial began on September 7, 2006. During its case-in-chief, the government sought to describe a pattern of abuse and stalking of the victim by appellant in the months leading up to the victim's disappearance. Often over appellant's objections, several prosecution witnesses recounted their own observations of his abuse, stalking, and threats as well as statements made by the victim describing the same.

In his defense, appellant presented alibi witnesses, including his brother, who claimed that he spent the early evening of April 15th fishing with appellant. Appellant's ex-girlfriend then testified that she went to get ice cream with him when he returned from fishing. Appellant also testified, denying involvement in the victim's death and denying making the incriminating statements. He also denied several of the incidents of abuse and stalking described by prosecution witnesses.

At the close of evidence, appellant moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The court denied the motion. On September 13, 2006, the jury found appellant guilty of carjacking resulting in death. The district court sentenced him to life imprisonment followed by five years of supervised release.1 This appeal followed.

II.

Although appellant challenges the sufficiency of the evidence supporting the intent element of the carjacking conviction, he also claims that the district court erred in the admission of certain evidence. Because our resolution of those evidentiary challenges affects the body of evidence we may consider in assessing the sufficiency of the evidence, we will assess the evidentiary challenges first. See United States v. Avilés-Colón, 536 F.3d 1, 13 (1st Cir.2008). We review a trial court's decision to admit or exclude evidence for abuse of discretion. United States v. Gilbert, 181 F.3d 152, 160 (1st Cir.1999).

A. Hearsay Challenges

1. The Statements

Appellant contends that Rosa Ramos-Rodríguez ("Ramos"), a coworker and friend of the victim, was improperly allowed to testify about hearsay statements made by the victim. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Under the Federal Rules of Evidence, hearsay statements may not be admitted unless they fall within an exception or exclusion to the hearsay rules. Fed. R.Evid. 802.

573 F.3d 61

Appellant challenges Ramos's testimony that the victim told her that bruises on her arm were caused by appellant and that "she was afraid, afraid of him," and that she observed appellant pass the victim in a hallway and nudge her with his elbow, a seemingly minor incident that nonetheless caused the victim to become upset and to "los[e] control." Over defendant's hearsay objections, the court ruled that this evidence was admissible under Rule 803(2), which excepts excited utterances, or Rule 803(3), which excepts statements about "then existing mental, emotional, or physical condition[s]" (also known as the state of mind exception).

The government correctly concedes that the victim's statements to Ramos about past abuse by appellant were neither excited utterances nor admissible expressions of the victim's state of mind. Excited utterances are statements related to a startling event made while the declarant is "under the stress of excitement caused by the event or condition." Fed. R.Evid. 803(2). There is no evidence of a startling event occurring anytime near the victim's identification of her bruises or her statement that she feared appellant. We also agree that the statement identifying the cause of the victim's bruises was not admissible as a statement of "then existing mental, emotional, or physical condition," Fed.R.Evid. 803(3). As for her statement that she was afraid of appellant, while it did describe an emotional condition, the government acknowledges that Ortiz's state of mind was not relevant to any issue in this case.2

The defendant also attacks statements recounted by the victim's mother, Maria Cristina Acosta-Sanchez. In particular, appellant claims that the district court erred by admitting Acosta's testimony that, after being "confronted with her adultery,"3 the victim accused appellant of following her everywhere and said that she could not "have lunch in peace" because of his stalking. Appellant also claims that Acosta was erroneously allowed to testify that the victim called the defendant "an abuser" and said that he "would drop the baby at her from far away, that she was afraid the baby might drop." The government concedes that these hearsay statements were not admissible under the state of mind or excited utterance exceptions. We agree.4

573 F.3d 62

2. The Protective Order

Appellant also challenges the district court's admission of evidence that the victim obtained a protective order against him in February 1999. He argues that the admission of evidence of the protective order constructively amounted to admission of indirect testimonial hearsay in the form of the statements of the victim required to obtain the protective order, even though no such underlying statements were actually admitted into evidence. As such, according to appellant, the evidence about the protective order violated his rights under the Confrontation Clause.

We do not reach the merits of appellant's novel hearsay argument because we find that appellant has waived the right to make this argument on appeal. United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.2002) ("A party waives a right when he intentionally relinquishes or abandons it. . . . [A] waived issue ordinarily cannot be resurrected on appeal."). Evidence about the existence of the protective order was first admitted during the direct examination of the victim's mother, Acosta, when the government inquired about the protective order. The defendant made no objection to her testimony about the order, which included the following interchange:

Acosta: Yesenia said that she would obtain a court protective order. And I would tell her, no, not to do it, because I got scared, because — I was scared, and I thought that would make him even angrier, and that he could hurt her or worse.

Prosecutor: Do you know if Yesenia, in fact, requested a protective order?

Acosta: Yes. She went and she filed it anyway.

Prosecutor: After that day, what conversations, if any, did you have with the defendant concerning the protective order?

Acosta: He went home and told me Yesenia had obtained a court protective order. And he told me he knew what he would do before they disarmed him.

During cross-examination of Acosta, appellant's counsel asked questions about the protective order.5 Later, however, appellant objected when the government sought to enter the actual protective order into evidence or, alternatively, to have the court take judicial notice of the dates the order was issued and later dismissed at the victim's request. The government stated that the purpose of entering one of these two pieces of evidence was only "to establish the date it was filed and later retracted." Appellant then argued for the first time that "the order itself picks up on her statements. The statements are testimonial for Crawford purposes."

In response to appellant's objection, the court suggested taking judicial notice that, "She requested, and a...

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