Kalodner, Freedman*fn* and Adams, Circuit Judges.
The instant appeals are from judgments of conviction of the District Court of the Virgin Islands pursuant to a jury's verdicts finding the defendants guilty of first degree rape in violation of 14 V.I.C. § 1701(2).*fn1
Defendants contend (1) the evidence was insufficient to sustain the jury's guilty verdicts; (2) prejudicial errors marked the conduct of the trial; (3) prejudicial errors were committed by the trial judge in his instructions to the jury and his failure to properly instruct the jury; (4) defendants were denied effective assistance of counsel; and (5) defendants were denied an impartial jury.
The thrust of the Government's evidence was that the defendants forcibly had sexual intercourse with one Violet Carr, then 17 years old, on November 8, 1967, and that they had each aided and abetted in the commission of the girl's alleged ravishments.
The three defendants took the witness stand and made point-blank denial of the Government's testimony. Defendants Mark Christian and Evans Daniel testified they had not had sexual relations with Violet Carr on November 8, 1967; defendant Reinhold John testified that he did have sexual intercourse with the girl on that day but that it was consensual, and that he had previously and subsequently had such intercourse with her. The defense adduced testimony corroborating John's prior and subsequent sexual relationship with Violet Carr, and of her prior frequent sexual relationships with other men. Two defense witnesses, girl friends of Violet, testified that she had a bad reputation as to chastity and credibility. Additionally, the defense placed in evidence Violet's pre-trial statement, under oath, that the defendants had not raped her.
It would serve no useful purpose to recite in detail the Government's evidence adduced at the three-day trial of this case in April, 1969, insofar as defendants' challenge to its sufficiency to sustain the jury's guilty verdicts is concerned. Viewing the evidence in the light most favorable to the government, as we must,*fn2 we cannot say that the evidence adduced at the trial did not sustain the jury's verdicts, although we cannot refrain from the observation that were we the triers of fact, we might well have arrived at a contrary result.*fn3 On this score we point out that the rape-complainant's equivocal testimony and that of a corroborating witness, abstracted in the margin,*fn4 sharply conflicted.
Defendants' contentions that prejudicial errors marked the conduct of their trial and the court's charge to the jury, require, however, that we advert, seriatim, to certain aspects of defense testimony critical to these contentions.
Defendant John testified, on direct examination, that, upon Violet's invitation, he had sexual intercourse with her on November 8, 1967, as he had done both prior and subsequent to that day and that neither Daniel or Christian had sexual intercourse with Violet on November 8, 1967. The prosecutor, on cross-examination, confronted John with a signed statement which he had given to police on the afternoon of November 8, 1967 in which he said that he heard Christian call Violet into Daniel's home; shortly thereafter he saw the girl sitting on the bed "and Mark [Christian] was holding both her hands upward; then Evans Daniel came in wearing his brief and closed the windows and the door * * * Minnie [Violet] started to scream out and she said 'Loose me' * * * I saw Daniel lay down on Minnie in a position to have sexual intercourse with her * * * Mark was on the bed, holding one hand * * * I stood * * * until Evans got up, then I * * * got on her and had sexual intercourse with her * * *"
John denied, during his cross-examination, that he had made the inculpatory charges against his co-defendants attributed to him in his statement to the police.
When the prosecutor confronted John with his statement, and had him read it to the jury, over defense objection, he did not say to the court or the jury that he was doing so for the sole purpose of impeaching John's oral testimony, on direct examination, exculpating all the defendants from any wrongdoing.
The trial judge, at that time, did not caution the jury that John's statement could only serve to impeach his credibility and that it was not to be considered as evidence of his guilt or the guilt of his co-defendants. Nor did he give such cautionary instruction to the jury when John's statement was offered and admitted into evidence just before he commenced ...