APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN Crim. No. 78-00162
Before Adams, Maris and Sloviter, Circuit Judges.
In this appeal from a conviction for forcible rape,*fn1 the defendant Louis Scuito asserts two errors: (1) The trial judge erred in not barring a new trial on double jeopardy grounds after a mistrial was declared on Scuito's motion because of certain prejudicial questions asked by the prosecutor. (2) The trial judge abused or failed to exercise his discretion in denying the defendant's motion for a psychiatric examination of the complainant. Finding neither ground persuasive, we will affirm the conviction.
The complainant worked as a waitress at the Drunken Shrimp restaurant, where the defendant was a frequent patron. When the complainant worked late on the night of July 9, 1978, the owner of the restaurant arranged for Scuito to give the complainant a ride to her apartment. It is undisputed that Scuito took a detour down a beach road, where the two had sexual intercourse, after which he took the complainant home. The crucial issue at trial was solely whether she consented.
According to the complainant, Scuito turned down the beach road to relieve himself, and then continued to a turnaround, stopped the jeep, and began kissing her. She expressed lack of interest, but the defendant then told her he had a knife and would throw her into the ocean if she did not cooperate. She testified that she did not actually see the knife in the dark, but felt "something metal" cut into her neck, after which she ceased resistance and attempted to calm him and avoid harm by cooperating. At trial there was medical and other testimony of a cut on the side of the complainant's neck where she said the knife was held. After taking off her clothes, the defendant raped and sodomized her. During the course of the assault she prayed and recited her "mantra."*fn2 Upon being dropped off at home, she kissed the defendant on the forehead because, she testified, "I was praying for him" and "it was just kind of like an end to the prayer."
Scuito testified that he casually knew the complainant and her sister and had previously driven them home from the restaurant. He said that on the night of July 9, when he gave the complainant a ride to her apartment, she seemed "a little spaced, not all there." While riding home, she offered him marijuana and he drove off the main road to smoke it with her. He later "came on to her," he said. Although initially she protested, he eventually changed her mind without using or threatening any physical force.
Prior to the first trial there had been a discussion between counsel and the court regarding the admissibility of evidence that Scuito previously had raped another young woman after threatening to shoot her with a flare gun. Defense counsel contended that such evidence would be relevant only if the defendant put his character in issue, which he did not at that time intend to do. The prosecutor agreed not to mention the other alleged rape in the opening statement to the jury, but reserved the right to seek admission of the evidence under Fed.R.Evid. 404(b),*fn3 if the testimony that was adduced created the opportunity. The trial judge asserted that the evidence could be admissible only if he became satisfied that it was relevant and met the Fed.R.Evid. 403 standard of probative value outweighing prejudice to the defendant. "For that purpose," he said, "I will hear testimony to be offered outside of the presence of the jury and make that determination."
The defense called two witnesses at the first trial: the defendant himself and a next-door neighbor who was defendant's former roommate. The latter answered "no" to defense counsel's question whether he knew anything about the defendant that would indicate any abnormal sexual behavior on his part. Prior to cross-examining the former roommate, the prosecutor asked for "a ruling with respect to my specific question," to which the court replied, "Well, ask the question, I don't give any rulings in advance." The prosecutor thereafter asked the witness whether he would consider rape to be abnormal sexual behavior. The next question, "Would your consider a man that took a flare gun ," was interrupted by defense counsel's objection that the prosecutor "was getting into the same line we were discussing previously."
Asked if the question was a hypothetical one, "not related to the facts," the prosecutor replied: "It is not related to the facts of this case." The objection was overruled and the prosecutor asked: "Would you consider a man taking a flare gun, holding it at a woman and telling her he will disfigure her if she didn't allow him to have intercourse with her, would you consider that to be abnormal, aberrant sexual behavior?" After an affirmative reply, the prosecutor asked, "If you had heard ," only to be cut off by the court disallowing the question and indicating that it "goes to something that has not been put in issue." Shortly thereafter, when the defense rested and the jury was excused, defense counsel moved for a mistrial on the basis of the question about the flare gun.
The trial judge granted a mistrial, and said he based his decision on three incidents in the trial. First, when the owner of the Drunken Shrimp testified, she made two spontaneous outbursts indicating her belief that Scuito was guilty.*fn4 Second, the complainant had put the defendant's character in issue by suggesting he had had homosexual relationships. Third was the reference to the flare gun.
In motions preceding the second trial, the defendant asked that the indictment be dismissed on double jeopardy grounds, or, if it were not, for an order requiring a psychiatric examination of the complainant "and further providing that the results of (the) examination be made available to the defense for possible use at trial." Both motions were denied and, after a trial with essentially the same ...