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Government of Virgin Islands v. Ruiz

decided: March 5, 1974.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
ANGEL RUIZ, APPELLANT IN NO. 73-1319. GOVERNMENT OF THE VIRGIN ISLANDS V. CARLOS CORCINO, APPELLANT IN NO. 73-1318



Author: Gibbons

GIBBONS, Circuit Judge.

Appellants Ruiz and Corcino appeal from a judgment of sentence imposed by the District Court of the Virgin Islands. Ruiz and Corcino are two of four defendants named in an information charging murder, 14 V.I.C. § 922(a) (2) and robbery 14 V.I.C. § 1861 of one Lawrence Angus. The other two defendants named are Rafael San Kitts and Angel Ventura. Prior to the trial Ventura apparently became a fugitive. San Kitts pleaded guilty to the robbery count and testified for the government at the trial of Ruiz and Corcino. He implicated both in the robbery and murder. The government also introduced the sworn written statement of Ruiz, from which references to his co-defendants were deleted. Ruiz' statement is substantially consistent with San Kitts' testimony. Both Ruiz and Corcino took the stand and denied participation. Ruiz repudiated his statement and Corcino offered alibi testimony. The jury found both guilty on both counts and each was sentenced to life imprisonment for murder and fifteen years for robbery.

On this appeal Corcino contends:

(1) that his trial should have been severed from that of Ruiz because he was prejudiced by the admission of Ruiz' statement. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

(2) that the trial court improperly limited the scope of cross-examination of San Kitts.

Both defendants contend:

(3) that they were prejudiced by the government's failure to make full disclosure of exculpatory materials pursuant to Rule 16, Fed. R. Crim. P. and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).

(4) that the trial court erred in refusing to admit into evidence a toxicological report on the blood and urine of the victim.

We will consider these contentions seriatim.

1. THE SEVERANCE MOTION

Each defendant relying on Bruton v. United States, supra, moved before trial for a severance on the ground that the confession of one or more of the co-defendants would tend to incriminate him. At that stage the trial court, weighing the competing considerations favoring joinder under Rule 8 over severance under Rule 14, Fed. R. Crim. P., tentatively denied the motions for severance on condition that any statements, before they are admitted, be edited so that they refer only to the activity of the confessor and do not mention the activities of any co-defendant, and so that the contents be admitted by testimony and with the writing itself excluded. See United States v. Rickey, 457 F.2d 1027, 1030 (3d Cir.), cert. denied, 409 U.S. 863, 93 S. Ct. 153, 34 L. Ed. 2d 110 (1972); United States v. Lipowitz, 407 F.2d 597, 602 (3d Cir.), cert. denied, 395 U.S. 946, 89 S. Ct. 2026, 23 L. Ed. 2d 466 (1969). The trial court also withheld final decision on Corcino's motion for severance to be sure that in light of the evidence received at the trial there would be no tacit reference to him. At the trial the government produced a court reporter who on May 19, 1972 took a sworn deposition from Ruiz, the transcript of which had been edited in accordance with the court's pre-trial ruling. Corcino's counsel renewed his Bruton objection. (Tr. at 93). However, the court ruled that having reviewed the statement for conformity with the pretrial ruling, he would permit it to be read as edited with the understanding that he would entertain specific objections during the course of the reading. (Tr. at 94). The questions and answers were then read to the jury. They implicate Ruiz and other unnamed assailants in the robbery-murder. There is nothing in the statement as read identifying Corcino as one of the perpetrators. Thereafter San Kitts testified. He identified the perpetrators, besides himself, as Ruiz, Corcino and Ventura. He was extensively cross-examined both by Ruiz' and by Corcino's attorneys. After the government rested, Ruiz took the stand. He categorically denied participation and repudiated the May 19, 1972 statement, claiming it was the result of suggestion and coercion by the police. Ruiz was cross-examined by the prosecutor about the fact that in his May 19, 1972 statement he had implicated San Kitts and Corcino. (Tr. at 236). Corcino's attorney at this point made a motion for a mistrial. The court ruled:

"It is on the basis of Bruton that I deny the motion for a mistrial and also at this time, since Ruiz has taken the stand, deny your motion for a severance. You will recall I had reserved it. I reserved it only until such time as I would know whether Ruiz would take the stand. Now that he has taken the stand I finalize my decision that there won't be a severance and I deny any mistrial because you have a right to have confrontation." (Tr. at 241).

Thereafter the prosecutor's cross-examination of Ruiz with respect to the May 19, 1972 statement continued until Ruiz' attorney stated that he had no objection to the whole transcript being admitted. Corcino's attorney stated:

"Defendant Corcino has no objection to its introduction, Your Honor." (Tr. at 246).

It was admitted as exhibit G-6. Corcino's attorney did not cross-examine Ruiz. He had the opportunity to do so. On this record we see no Bruton violation. See Wade v. Yeager, 415 F.2d 570 (3d Cir.), cert. denied, 396 U.S. 974, 90 S. Ct. 466, 24 ...


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