United States v. Delerme

• Decision Date: 14 March 1972
• Docket Number: No. 71-2047.,71-2047.
• Citation: 457 F.2d 156
• Parties: UNITED STATES of America v. Matias DELERME, Jr., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

457 F.2d 156 (1972)

UNITED STATES of America v. Matias DELERME, Jr., Appellant.

No. 71-2047.

United States Court of Appeals, Third Circuit.

Argued January 27, 1972.

Decided March 14, 1972.

Kenneth A. Rosskopf, Gamal & Rosskopf, Christiansted, St. Croix, V. I., for appellant.

Julio A. Brady, Asst. U. S. Atty, St. Thomas, V. I., for appellee.

Before SEITZ, Chief Judge, and ALDISERT and GIBBONS, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal from a judgment of conviction entered on a non-jury finding of guilty under 18 U.S.C. § 242, prohibiting the wilful deprivation under color of law of the rights, privileges or immunities guaranteed to an inhabitant by the Constitution, poses the single question whether there was sufficient proof that the accused, a police officer, took it upon himself to administer punishment for an alleged traffic offense. If such was his purpose, his conduct deprived a Virgin Islands resident of due process of law, and thus was duly cognizable as a federal criminal offense under the deprivation statute.

The prosecution emanated from an incident which occurred on Centerline Road, St. Croix, when appellant, an off-duty police officer, not in uniform and operating a private motor car in which a lady friend was a passenger, attempted to pass an automobile operated by Odo Harvey Chicot. It was appellant's contention that the Chicot vehicle accelerated as he attempted to overtake it, whereupon appellant undertook to apprehend Chicot for the purpose of giving him "a warning."

Testimony was conflicting as to what transpired thereafter, but the court found "that the weight of the evidence in this case supports the following facts:

Mr. Chicot left Frederiksted sometime around nine p. m. to go toward Christiansted. He left the middle of Frederiksted somewhere near St. Patrick\'s Church.

When he got to the Post Office he picked up a hitchhiker, Mr. St. Remaine, an acquaintance, and the two of them were seated and commenced going down the road from Frederiksted toward Christiansted.

When they approached Hannah\'s Rest corner they observed lights of a car coming up from behind and apparently intending to pass.

The occupants of that car that was going to pass were the defendant and Mrs. Almira Espinosa. They, too, were proceeding from Frederiksted toward Christiansted.

According to Mrs. Espinosa\'s testimony the vehicle driven by Mr. Chicot was going at a moderate rate of speed. The defendant testified that he was going slow. The testimony is that Mr. Delerme wanted to pass and he gave a passing signal. His testimony is that as soon as he tried to pass, the vehicle in front sped up, which prevented him from clearing the traffic lane of the vehicle coming from east to west and he had to backtrack and fall behind.

The Court finds that this may have angered the defendant because the evidence shows that immediately after this incident he determined to catch up with Mr. Chicot and, as he said, to warn him and tell him that he almost caused an accident. This was the beginning of a chase, and the Court finds that there was a chase from Hannah\'s Rest corner to approximately where Mr. Cintron\'s market is located. At that point the defendant was able to cut off Mr. Chicot, and with both vehicles stopped he got out to approach him.

He also testified that before he was able to cut him off he was holding his badge in his hand and attempting to yell across from car to car that he was an officer, that wanted him to stop. He also testified that as he approached Mr. Chicot\'s vehicle, at this area he was not able to approach very close but he was sure that Mr. Chicot saw his badge in his hand.

The Court does not express any opinion whether Mr. Chicot or his passenger saw the badge or not. I do not think it is relevant at this point; at this point there was no arrest.

Mr. Chicot then took up his flight and attempted to turn into another road off of Centerline Road — I believe it was said to be Good Hope Road, but between Cintron\'s Supermarket and this turnoff there apparently was a chase and zigzagging and an attempt to cut him off the road. As he tried to turn off Centerline Road and to proceed south he was stopped and blocked by the defendant. Here again he successfully backed up and decided to go back to Frederiksted. And the Court is impressed with the fact that he did turn around and proceed back to Frederiksted. As he testified, he went back to Frederiksted to report the incident to the police.

On his way back he was chased again by the defendant. The defendant was resolved to catch up with him. They finally stopped. The second time they stopped the defendant was able to block his exit so that he could not move forward. He tried to move back and he apparently stalled his car. This was at Queen\'s Cross Street.

The testimony of an eye witness, and the Court so finds, was as follows: that the defendant got out of his car and approached Mr. Chicot\'s car, first on the right side, and as he got to the right side he opened the door and the passenger came out. The passenger gave the credible story that as he got out he was struck with a nightstick. He also testified that the time before when they stopped that the defendant did come to or towards the car with a stick. He did not describe it as a police nightstick but he said it was a stick.

The Court finds that there was a slight scuffle between the defendant and the passenger Mr. St. Remaine, but Mr. St. Remaine fled and stopped any further encounter.

With that the defendant proceeded around the rear of the car and approached the driver\'s side. As he approached the driver\'s side the driver got out and there was a scuffle.

The Court finds that the defendant did use his nightstick, and used it without just cause, that he struck Mr. Chicot on the head, as testified by the eyewitness and Mr. Chicot.

The report from the doctor from the hospital, which was admitted into evidence by stipulation of counsel, indicates that Mr. Chicot suffered a laceration of the forehead which required eight stitches. He also suffered an abrasion of the left cheek. The Court believes that this was caused by the blow of the nightstick and discounts the defendant\'s testimony that this injury was caused by his falling to the pavement."

Having found the foregoing as historical facts, the court then proceeded to the ultimate finding of guilt:

The Court therefore finds that the defendant as a police officer under color of law did in fact wilfully subject Mr. Chicot to a deprivation of his civil rights in that he, without justification, gave him punishment, he chose to administer punishment himself and took it upon himself to do it right then and there.

The Court feels that this was done in the passion of anger, the evidence seems to bring that out, and of course impressed that it came from this chase that started at Hannah\'s Rest corner to Good Hope Road and all the way back to Frederiksted.

Initially, we are faced with the troublesome task of discerning the appropriate standard of appellate review of nonjury findings in a criminal proceeding. Unlike the corresponding civil rule, F.R. Civ.P. 52(a),¹. Criminal Rule 23(c) does not disclose what effect must be given such findings. It is suggested that the applicable standard of appellate review is dependent upon the specific findings being reviewed; that there is a difference between an ultimate finding of guilt and findings other than guilt. Professor Wright² indicates that in the former category there exists a division of authorities, with some courts holding that the guilt determination must stand if supported by substantial evidence.³ Others reverse only if the finding is "clearly erroneous,"⁴ while still others reverse when a reasonable mind could not find guilt beyond a reasonable doubt.⁵ Professor Orfield,⁶ on the other hand, states flatly that "the Court of Appeals applies the rule that the evidence is to be considered in the light most favorable to the Government, reversing only if it concludes that there was no substantial evidence to support the verdict."⁷

Concerning findings other than a determination of guilt there is persuasive authority that the "clearly erroneous" standard applies. Thus, the Supreme Court held that findings in a Jencks Act problem "properly are ones of fact, the determination of which by the district judge may not be disturbed unless clearly erroneous." Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501 (1963). Again, affirming a trial court's finding that consent was obtained prior to a search, the Court observed: "We cannot say as a matter of law that that finding was erroneous." Davis v. United States, 328 U.S. 582, 593, 66 S.Ct. 1256, 1261, 90 L.Ed. 1453 (1946). See also United States v. Gray, 421 F.2d 316 (5th Cir. 1970).

Although we have recently said that in reviewing a finding of guilty by a trial judge, the evidence must be considered in the light most favorable to the government, Government of Virgin Islands v. Duvergee, 456 F.2d 1271 (3d Cir., 1972), relying on United States v. Anderson, 409 F.2d 836, 837 (3d Cir. 1969), the cases cited in Anderson in support of that proposition merely announced the general rule relating to the standard utilized to review jury verdicts.⁸

As to findings describing historical or narrative events in a criminal proceeding, we see no cogent reason to depart from the "clearly erroneous" rule utilized by appellate courts in reviewing civil matters, and explicitly utilized by Mr. Justice Brennan in reviewing the trial court's finding in Campbell v. United States, supra. We are persuaded that where the evidence consists largely of oral testimony contradictory in nature, "due regard should be given to the opportunity of the trial court to judge the credibility of the witnesses." F.R.Civ.P. 52(a).

We are not unmindful that appeals in criminal cases, except those authorized by 18 U.S.C. § 3731, are limited...