ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS - DIVISION OF ST. CROIX - CHRISTIANSTED (D.C. Criminal No. 74-42).
Seitz, Chief Judge, Van Dusen and Rosenn, Circuit Judges.
These appeals are from defendants-appellants' conviction of first degree murder and assault in the first degree after a jury trial in the District Court of the Virgin Islands and from denial of their motions for judgments of acquittal or for new trials. Defendant Julio Colon, Jr., was charged and convicted as the perpetrator of the offenses;*fn1 defendants Israel Miranda, Alberto Navarro and Sixto Pinero, Jr., were convicted on the basis of their having aided and abetted Colon in the commission of the crimes.*fn2
Because all defendants convicted as aiders and abettors challenge the sufficiency of the evidence to sustain their conviction, it will be necessary to set forth the facts in some detail.
April 1, 1974, was a holiday in the Virgin Islands, and the day's activities included a performance by a local band at Cramer Park, St. Croix. A large crowd gathered at the park, including all defendants and Leroy Ford, an off duty policeman whose brother, Joseph Ford, was a member of the performing band. In mid-afternoon, a stabbing occurred at the east end of the park. Under Patrolman Ford's supervision the injured man was placed in an automobile for transportation to a hospital. Instead of immediately leaving the park, however, the car proceeded northward towards the beach from whence shots were then heard. Patrolman Ford, accompanied by his brother, walked in the direction of the shooting to investigate.
According to the policeman's testimony, as he and his brother Joseph neared a large genip tree on their return to the bandstand, "two Puerto Ricans was coming toward my direction." These men were later identified by Patrolman Ford as defendant Colon and Marcial Santana.*fn3 At trial, Ford testified that when he identified himself as a policeman, Colon responded with an obscenity and came forward to scuffle with Joseph Ford. During this fight, a crowd estimated by one witness to include as many as 25 people gathered near the fight scene. Three government witnesses, however, testified to the existence of a group of five or six young men who, according to one witness, came "close together" around the struggle. Evaristo Rios, a spectator, identified defendants Miranda, Pinero and Navarro as part of this group whose members in unison yelled "kill him" in Spanish while Joseph Ford and Colon fought. With the help of Rios, Patrolman Ford broke up the fight.
As he was disengaged from the struggle, Joseph Ford warned his brother that Santana, Colon's companion, had a gun. Patrolman Ford walked toward Santana to search him, but was spun around from behind and distracted. One witness at trial, Rudy Williams, indicated that the policeman was pulled around by members of the group of men of "Spanish birth" who had come "close together" around the fight scene. Williams and another witness, Joseph Gumbs, testified that at this time a gun was passed "from one to the next" among members of this group.
When Patrolman Ford searched Santana he found no gun. He testified that while he looked elsewhere for the gun, defendant Colon circled around the group and shot Joseph Ford in the chest from a distance of approximately eight feet. Joseph Ford fell to the ground near the base of the genip tree behind which Patrolman Ford and Rios immediately took refuge. Both Ford and a park employee, Ben Hur Brady, testified that Colon fired a second shot, which lodged in a branch some two feet above the policeman's head.
Thereafter, the guns of both Colon and Ford misfired when the two attempted to exchange further shots. The policeman was rushed from behind by a group which Rios testified included Miranda, Navarro and Pinero and was hit in the head with a shell wielded by Pinero, according to the testimony of Brady. Although Brady did not specifically see Miranda or Navarro engaged in this assault, he did, however, testify that Miranda, Navarro and Pinero all kicked the body of Joseph Ford before leaving and that Pinero hit the body with a rock. Medical evidence at trial established that the body of Joseph Ford had lacerations over the right temple and a deep wound above the left eye.
Brady testified that after the attack, all four defendants left the scene in a yellow Volkswagen. The driver of the car, Jose Gonzalez, testified, however, that he drove only Miranda, Navarro and Santana from the park.
All defendants testified at trial. Their testimony revealed that the four were from the same neighborhood and had known each other for some time. Julio Colon recalled that on April 1 he had heard two shots fired while he was at the bar in the band pavilion, but stated that he left with a stranger in a yellow Volkswagen without seeing or hearing anything else. Sixto Pinero denied having heard any shots at the park that day or seeing anyone with a gun. Alberto Navarro claimed that he heard shots but left shortly thereafter with Gonzalez, Santana and Miranda in a yellow Volkswagen. Israel Miranda admitted seeing the incident as described by other witnesses, but testified that he walked away from the scene and left with Gonzalez, Navarro and Santana.
Sufficiency of the Evidence
Defendants Miranda, Navarro and Pinero assert on appeal that there was insufficient evidence in the record on which the jury could find beyond a reasonable doubt that they aided and abetted Colon in the offenses charged: the murder of Joseph Ford and the assault of Leroy Ford "by firing at [him] with a revolver." In examining the evidence to determine whether it is in fact sufficient to support the jury verdict of guilty, this Court must view the evidence in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Cades, 495 F.2d 1166, 1169 (3rd Cir. 1974). Furthermore, we are bound by the jury's determination of credibility and its decision to accept the testimony of witnesses who contradicted the defendants. Government of the Virgin Islands v. Gereau, 502 F.2d 914, 921 (3rd Cir. 1974), cert. denied, 420 U.S. 909, 42 L. Ed. 2d 839, 95 S. Ct. 829 (1975).
Viewed in this light, the testimony at trial establishes the following sequence of events with ...