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Government of Virgin Islands v. Francis

decided: January 10, 1975.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
ALFRED FRANCIS, APPELLANT



APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX, CHRISTIANSTED JURISDICTION (D.C. Criminal No. 74-29).

Seitz, Chief Judge, and Van Dusen and Rosenn, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

This appeal challenges a judgment and commitment entered after a jury returned a guilty verdict on both a count charging assault in the first degree (14 V.I.C. § 295(3)) and a count charging burglary in the first degree (14 V.I.C. § 442(1)). Two men had forced their way into the apartment of Mrs. Boreiszo (the victim). One of the men shot her in the neck and personal property was stolen from her apartment by her assailants.

Appellant's principal contention is that the conduct of the pre-trial identification was so unnecessarily suggestive as to be a denial of due process of law. At the trial, the victim*fn1 testified that she eliminated three (Nos. 4-6) of six men in a lineup "immediately" and "looked at the other three" (N.T. 101 at 26a). She then eliminated No. 2, leaving two men in the lineup (N.T. 102 at 27a). The victim's testimony continued at N.T. 102-03:

"And then there were two and I looked at them and I felt that I had heels on while I was looking at them and the night it happened I did not, so I took my shoes off, or one shoe so that I could be on the height that I was on on the ground and then I knew at this height that I was looking directly into Francis.

"Q Did you identify anyone at that time?

"A I identified No. 3.

"Q Who was No. 3?

"A Alfred Francis.

"Q Is that the defendant sitting here at the defense counsel table?

"A Yes.

"Q Was there anyone else in that lineup at this point?

"A No. I was still there and I did recognize his face from having seen him in some of the pictures that I had looked at and I made the remark that I remembered ...


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