APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN.
Seitz, Chief Judge, Van Dusen and Rosenn, Circuit Judges.
Defendant, Glen Petersen, was tried to a jury and convicted of murder in the first degree, in violation of 14 V.I.C. § 922, and assault in the first degree, in violation of 14 V.I.C. § 295(1). He was sentenced to concurrent terms of life and fifteen years imprisonment respectively. He appeals, contending that the evidence was insufficient to convict, and that a pre-trial photographic identification by a witness who had failed to make an in-court identification was improperly admitted at trial. We affirm.
The following facts are undisputed. Dr. Alfredo Rothenberg and his wife Barbara, residents of Puerto Rico, came to visit the Virgin Islands, arriving in St. Thomas on January 12, 1974. At about 7:30 P.M. the next evening, the couple left their hotel to go out for dinner. While waiting for a taxi, they met Malvin Hendrickson, who, accompanied by his brother, was also looking for transportation. As they were attempting to flag a cab, two men came across the street and stood at some distance to the side and behind a pumphouse nearby. Suddenly one of the two men approached the waiting group, mumbled indistinctly, and then started firing a handgun, the bullets striking both Dr. and Mrs. Rothenberg. Dr. Rothenberg succumbed to his wounds the next day.
At dispute in this case is the identity of the man who did the shooting. The Government produced three eyewitnesses, each of whose testimony is attacked by the defendant.
Malvin Hendrickson, who was waiting with the Rothenbergs, testified that "two guys come across the street and one guy passes closer to me," whom Hendrickson knew, although not by name, having given the man rides on several occasions. Hendrickson then testified that the gunman ran toward the group, jumped between the Rothenbergs and himself, and fired the fatal shots. When asked to identify the assailant, Hendrickson chose Petersen from among a group of young men of similar general appearance sitting in the back of the courtroom, where, with the permission of the court, Petersen was allowed to sit.
On cross-examination, the witness denied having been a police informer, but admitted the fact upon examination by the court. Hendrickson also admitted that he had identified Petersen as the assailant only from a second photographic display after he had been unable to make an identification from an initial display. He revealed that, while driving around the area of the crime with the police in an attempt to find the gunman, he had identified another person who "look[ed] like him." That person turned out to be the defendant's brother, Willie Boe Petersen. Hendrickson was positive that the gunman wore a straw hat pulled down over the face, a dungaree jacket and pants, and construction boots.
The Government also presented testimony from Carl Petersen, no relation to the defendant, who was sitting on the railing of the porch of his home about twenty to thirty feet away when the shooting occurred. Carl testified that two boys came across the street, that they stopped about twenty feet from the porch, and that the assailant stared at him for about five minutes before walking over and shooting the Rothenbergs. Carl stated that he knew the defendant by sight prior to the shooting as the brother of Willie Boe Petersen, a former classmate. The witness then identified the defendant as the assailant from among those sitting in the back of the courtroom.
A vigorous effort was made on cross-examination to impugn Carl's ability to see the commission of the crime because trees and shrubbery through which he could not see separated him from where the two men were standing. The witness also acknowledged that it was dark at the time of the shooting, and that the nearest lights were on the side of the street opposite his vantage point. After first stating he saw the assailant holding a gun, he then admitted that he saw no gun although he did see the assailant shoot Dr. Rothenberg in the stomach. Carl described the gunman as wearing a yellow wool hat and sneakers.
In connection with Carl's testimony, the jury later viewed the scene of the murder. Although the view was taken in the daylight, the jury was able to see the railing upon which Carl was sitting, the shrubbery and trees in front of the porch, and the spot where the Rothenbergs were standing.
The Government also put Mrs. Rothenberg on the stand. She recalled having looked at, and thought she could remember, the face of the assailant. However, the person whom she identified in the back of the courtroom as her assailant was actually the defendant's brother. Mrs. Rothenberg was recalled the next day, and over objection of defense counsel, testified that two days earlier she had chosen a photograph of the defendant as her assailant. Due to her inability to continue because of emotional distress, counsel stipulated that she stated at the time, "I think this is the face but I'm not positive." The photograph was admitted into evidence.
The final witness to whose testimony we shall refer is Detective Noel Martin who investigated the crime. Martin testified that the defendant had left for Tortola, British Virgin Islands, on January 15, and overstayed the period of time for which he was admitted as a visitor. Cross-examination revealed that Detective Martin had obtained an eyewitness identification from one Otis Rieara, who in a statement given on January 24 did not implicate Petersen but who, upon ...