Appeal From The District Court Of The Virgin Islands (Division Of St. Thomas).
Seitz, Chief Judge, Adams and Weis, Circuit Judges.
The defendants in this direct criminal appeal from the Virgin Islands District Court contend that the trial judge erred in pressing passers-by into jury service after the regularly selected list of prospective jurors was exhausted. We reject the challenge because it was not properly presented in the district court. Moreover, we do not accept defendants' argument that the trial court's sua sponte admission of an exhibit used to refresh a witness' recollection was erroneous. After considering numerous other allegations of error, we conclude that they also have no merit. We therefore affirm the convictions.
After a jury trial, the defendants were each convicted on one count of first degree murder, V.I. CODE ANN. tit. 14, § 922(a) (1) (1964), and one count of possessing a firearm during the commission of a crime of violence, V.I. CODE ANN. tit. 14, § 2253 (Supp. 1981). Each was sentenced to life imprisonment without parole on the murder count and a concurrent five year term on the firearms count.
Antonio "Tampo" Malone was shot to death at approximately 7:00 a.m. on June 4, 1981 as he repaired a tire on his automobile parked near his apartment in the Tutu Highrise Apartment Project in St. Thomas, Virgin Islands. A witness testified that shortly before the shooting, she heard someone say to Malone, "I came to kill you because you are a rat." She looked out of her apartment and saw a masked man outside a beige car parked nearby.
After emptying his weapon at Malone, the gunman went to the beige car, got a second gun from one of the occupants, and returned to fire several more shots into the victim. The gunman then ran back to the car which sped away.
A number of persons supplied details of the crime. The prosecution's principal witness was Miguel Delamos. He testified that on the evening before the shooting, he had seen defendants Antonio Rosado and Keith Benjamin in a beige car parked near Malone's apartment building. The witness had known both defendants for a number of years.
The next day, about a half-hour before the murder, Delamos was walking near Malone's apartment building and saw the same beige car parked nearby. Rosado was in the driver's seat, Benjamin was next to him in the front, and defendant Dennis Blyden was in the back seat. The witness also observed defendant Samuel George seated on the ground not far away.
Delamos went to his apartment but upon hearing shots several minutes later, ran outside and up the street. He saw Blyden and Benjamin, both masked, get back into the beige car already occupied by Rosado. The car then drove away. Delamos also saw defendant George run up the street to his own Kharman Ghia and drive in the same direction as the beige car.
Other witnesses testified to hearing gunshots and then seeing one or two individuals get into a beige car that drove away. Two other witnesses testified that sometime after 6 a.m. on the morning of the shooting they saw three individuals in a beige car parked near Malone's apartment building.
One of these witnesses, Dion Williams, recognized two of the occupants as George and Benjamin. Williams, however, could only identify George at trial and that was when he was recalled to the stand.
Marvin Fahie secured the license plate number of the car he observed the gunman enter immediately after the shooting. The number was that of a beige car rented by a man named Swift on the preceding day. Swift testified that he rented the car at defendant George's request and with George's money because "George said he did not want anyone to know his business." Swift parked the car near Blyden's house and turned the keys over to George.
About five hours after the murder, George took Swift to an area near Blyden's house, and asked him to return the beige car parked there to the rental agency. In response to police questioning the next day, Swift disclosed George's part in the rental arrangements. Two days following the murder, Swift told George about the police inquiry, and George said, "Well, be cool" and "them guys just fishing in."
At noon on the day of the crime, a police officer confronted Benjamin at his place of employment and swabbed his hands to procure a sample for a neutron activation test. Later in the afternoon, another officer saw Blyden and Rosado on the street and swabbed Rosado's hands. Having used his one kit, the policeman asked Blyden to remain there until another kit could be secured. Blyden testified that he waited for 15 minutes and then left. He later went to the police station and offered to submit to the test, but it was never performed.
The samples taken from the defendants' hands were analyzed by the F.B.I. At trial, an expert testified that the neutron activation test revealed traces of antimony and barium on Benjamin's hands in levels indicating that he had either fired a weapon or was very close to one that was discharged. Rosado's test was negative.
All of the defendants presented alibi evidence. Blyden, Rosado and Benjamin testified on their own behalf.
On appeal, the defendants raise a multitude of issues, including contentions that the selection of the jury violated the Virgin Islands' jury selection rules, that the trial judge's sua sponte admission of government exhibit No. 21 was erroneous, that the evidence was insufficient to support the convictions, and that the court should have instructed the jury on second degree, in addition to its charge on first degree, murder. The defendants also contend that the prosecution acted improperly in referring to another pending murder case in which two of the defendants were indicted.*fn1
We consider first the challenges to the jury selection procedures used in this case.
The murder trial was widely publicized and the district judge anticipated that more than the usual number of prospective jurors would have to be called. Ninety-four persons were originally summoned, but sixteen were excused. The court then ordered that another one hundred names be drawn from the qualified jury wheel.
By the third day of voir dire, however, there were still not enough prospective jurors to complete the selection process. The court then directed that the marshal summon additional talesmen from the street. There was no objection to this procedure by the defendants, although on the preceding day counsel for one of the defendants said, "Judge, for the record, I wish to object to the entire jury selection procedure." This statement was made before plans for a "street sweep" were disclosed to counsel.
As the court explained to those jurors who had already been selected, "we still have some more to select, and we've exhausted our panel. So, we had to resort to the procedure of just serving persons with summons to appear in court forthwith. We don't often do that. It's rare that it happens. * * * In our final sweep to get in enough persons, I told the marshal service to make no inquiry, just stop anybody, serve them and bring them in. We normally take our panels from the voting list." However, the court did not require those who were summoned from the street to be registered voters. The defendants contend that the district court's action was both a statutory and a constitutional violation.
Neither the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-74 (1976 & Supp. V 1981), nor the Plan for Random Selection of Jurors of the District Court of the Virgin Islands, V.I. CODE ANN. tit. 5, App. V Rules 61-77 (1982), provide for the historically approved practice of resorting to highways and byways in order to secure additional jury panel members. In case of an unanticipated shortage of jurors drawn from a qualified jury wheel, the Act and the Plan provide that the district court may require the marshal to summon additional jurors drawn at random from the general register of voters.*fn2 28 U.S.C. § 1866(f); V.I. CODE ANN. tit. 5, App. V Rule 76. Because the defendants failed to follow the mandated procedure for presenting their objections to the jury selection process, however, we need not decide if the emergency conditions confronting the trial judge justified his use of the sweep.
Title 28 U.S.C. § 1867(a) provides that before the voir dire in criminal cases begins, the defendant may move to stay the proceedings against him on the ground of substantial failure to comply with the Act.*fn3 Subsection (d) requires that the motion contain a sworn statement of facts which, if true, would constitute a "substantial failure to comply" with the Act. Subsection (e) states that the prescribed procedures, ...