APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX; CHRISTANSTED JURISDICTION, Criminal Nos. 78-00039-01 and 78-00039-02
Before Rosenn, Maris and Hunter, Circuit Judges.
In these consolidated cases, Warren Berry and Guillermo Brignoni appeal from judgments of conviction for (1) kidnapping for ransom, extortion, or robbery, V.I. Code Ann. tit. 14, § 1052 (1978), and (2) robbery in the third degree, Id. § 1864. We affirm the robbery conviction and reverse the kidnapping convictions.
The facts of this case are unique. The evidence, viewed in the light most favorable to the government, is as follows. On March 8, 1978, Luis Raul Morales, who had just quit his job, was walking home after having picked up his last paycheck. Defendant-appellant Berry, whom Morales had known since childhood, drove by and offered Morales a ride. Hearing that Morales was no longer employed, Berry offered to give him $375 credit for a pound of marijuana. Morales was to sell the marijuana and repay Berry the next day. After Morales accepted the offer, Berry drove him to Berry's house, where the marijuana was kept, gave the marijuana to him, and then dropped him off near town. Morales rolled the marijuana into joints and sold about $400 worth. However, he promptly spent the entire amount on personal items and old debts.
The next day, Berry and his co-defendant-appellant, Brignoni, began to look for Morales to get him to repay his debt, and eventually found him at the Black & White bar.*fn1 Berry asked Morales for the money which he believed Morales owed him, and Morales told him that he did not have it. According to Morales:
(Berry) told me to come with him and see if I could get the money.
Then, I asked him to take me over to my brother's place and I would ask him for the money and pay him, you know, and then I would pay back my brother after that.
On the way to Morales' brother's house, Morales saw a man known to him as "Freston"*fn2 coming out of a McDonald's restaurant. The driver (the testimony is unclear as to whether it was Berry or Brignoni) stopped the car next to the McDonald's and Morales got out. By this time, Freston had crossed the road on foot and was in his car. Morales, unaccompanied by either defendant, crossed the road and spoke to Freston. Morales testified that "I asked him if he had any money that he could lend me because I needed it, I owed it to (defendants)." Freston loaned Morales $35 which Morales gave to Berry when he returned to the car.
The trio then drove to a bar owned by Morales' brother. They parked the car next to the bar and Morales emerged from the car alone. He saw a friend, Christian, standing outside the bar, called to him and asked him for a loan. Christian had no money and Morales told him: "Okay, I will go into the bar and ask my brother for the money." Next, according to Morales:
I went into the bar and I explained to my brother I owe these men some money, if he could loan me some money and then when I get it back I will pay him back.
He said all that he had that he could have given me then was a hundred dollars.
So, I took the hundred dollars and went back outside to give it to Warren Berry and told him I would pay him the rest of the money the next day, you know, or later that night, and he said "Okay."
Morales then got into the car and Brignoni told him that they would drop him off at the Black & White bar. However, as they drove toward the bar, they turned off in a different direction. Morales testified that he then told the defendants:
(I)f (you) are going someplace else, drop me there and I get a ride into town.
They said that they were just going to see a friend in that area and they would give me a ride back when they come back out, ...