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Government of Virgin Islands v. Torres

decided: April 4, 1973.



Van Dusen, Rosenn, and Hunter, Circuit Judges.

Author: Rosenn


ROSENN, Circuit Judge.

Emerito Torres appeals to this court from his judgment of conviction on March 16, 1972, for premeditated murder. He was tried to a jury in the District of the Virgin Islands and was sentenced to life imprisonment. His appeal raises a number of alleged trial errors, the most important of which is the failure of the trial judge to decide as a matter of law that the Government's key witness was an accomplice to the crime. We find no error and affirm.

The body of Nelson DeFoe, the victim, bearing stab wounds in the head, neck, and chest, and multiple fractures of the scalp and face, was found on December 6, 1970, in a ravine close to his house. The Government's case depended primarily on the testimony of Basilio Felix. Felix testified that on the day of the murder, Saturday, December 5, 1970, he and a friend, Enrique Valasquez, met Torres and Marcial Santana. Torres offered them a ride into town in his black Volkswagen, and, on the way, at Torres' behest, the group decided to find a house to burglarize. They drove to DeFoe's, where Felix walked into the garage and took a radio. After carrying it to Torres' car, he and Torres went to the house. They approached an open glass door and saw DeFoe reclining inside. DeFoe asked what they wanted, and Torres replied that they were looking for some man. DeFoe then accompanied them to their car, where he saw his radio and demanded its return.

According to Felix, Torres said that he was going to kill DeFoe because the latter had seen their faces and the license number of the car. Felix testified that both he and Valasquez objected and refused to have any part in the murder. They retreated down the road about twenty feet from which point they observed Torres stab DeFoe several times in the neck and chest with an ice pick that had been in the car. DeFoe fell to the ground, and Santana took the jack out of Torres' car and hit the victim in the face and head.

Felix further testified that Torres and Santana pushed the body into the ravine at the side of the road. Although Felix suggested that they leave, Torres refused; and all four reentered the home and removed some jewelry, a television set, a gun, and a safe. They placed the goods in DeFoe's car, and then drove both cars to a densely grown area where Torres opened the safe. They abandoned DeFoe's car and departed together in Torres' black Volkswagen. In driving the Volkswagen from the DeFoe residence, Valasquez had hit a tree and dislodged a fender. Because the wheel was bent in this accident, the car eventually failed them at a point near Centerline Road. There they encountered Juan Santos who at their request pushed them up to Estate Profit.

Felix testified that the group arrived at DeFoe's residence between 12:00 P.M. and 1:00 P.M. and that, although he did not remember the exact time, they parted company when it was getting dark, approximately at some time between 4:00 P.M. and 6:00 P.M. He also testified that they absconded with two watches from DeFoe's home. One of them was a round hook-on watch with a "painted gold" band which he described as follows:

Well, the band, has, you know, from where the part of the watch joined, it had like two lines of iron made out of gold and then both sides, that is what you hook onto your wrist.

Another Government witness, Jose Felix, testified that he saw Torres with Santana in the black Volkswagen on the morning of December 5, 1970. He also saw Torres later that day driving with Santana in the Volkswagen, minus a fender. On December 10, 1970, Torres had shown him two watches that he said were stolen. One of the watches was gold with two wires, the type that slips over the wrist and has no clasp. Gilberta Cruz Rivera, who was present at the time of the meeting between Torres and Jose Felix, also saw the watches; he corroborated the latter's account of the event and the description of the watches.

Doreen Jerz, Mrs. DeFoe's employer and a Government witness, testified that she knew the DeFoes personally, that DeFoe's body was found the day after the murder at the side of the road in front of the house, and that Mr. DeFoe owned a thin, round watch with an unusual gold band. The band was a bracelet type that did not come together in the back. Two thin strips of gold, with a piece of scroll work between them, comprised the band.

Torres took the stand and testified that he was not acquainted with any of the Government witnesses and that on the day of the murder he was at home in Estate Profit. He said he worked from early in the morning until approximately 4:00 P.M., when he accompanied his father, Elias Torres, his mother-in-law, Juanito Acosto, a friend, Saulo Saldana, and Santana to the hospital, where Santana was treated for an overdose of drugs. Each of these persons corroborated Torres' story as to the hospital trip and placed the time of arrival at the hospital at some time between 4:00 P.M. and 5:00 P.M. and the time of departure at 9:00 P.M. to 10:00 P.M. They testified that Santana was unconscious when he arrived and that the attending physician immediately began to treat him. They said he was kept in the emergency room four to five hours and then admitted to the hospital. Elias Torres, Juanito Acosto, and two other witnesses, Nathaniel Carmona, who allegedly worked with Emerito Torres on the car, and Jose Olivo, a neighbor, verified the appellant's testimony about having been home all day.

Appellant then called Judith Margras, the medical librarian from the hospital where Santana was treated. She testified that Santana was treated for a drug overdose on December 5. On cross-examination she said the time of treatment noted by the attending physician was 10:00 P.M. and the time he was actually admitted to the hospital was 10:30 P.M. She testified that the records did not, however, show the actual time when the patient was brought into the emergency room. Appellant's attorney endeavored to examine her further to prove that Santana was treated prior to 10:00 P.M. Specifically, he asked her to count the number of patients the emergency room doctor treated on his shift after seeing Santana and prior to going off duty. The court refused to allow this. Although he did not explain specifically his purpose to the trial court, defense counsel now argues that he wanted to prove that doctors work eight-hour shifts and that the attending doctor began his shift at ...

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