ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX (D.C. Crim. No. 79-0038)
Before Adams, Maris and Sloviter, Circuit Judges.
Luis Carino appeals from his conviction for assault with intent to commit mayhem and possession of an unlicensed firearm.*fn1 At his jury trial, Carino claimed that he acted in self-defense. On appeal he argues that it was error for the district court to have excluded evidence of the victim's prior conviction for manslaughter which he wanted to use in order to show that the victim was the aggressor, to impeach her credibility and to show his state of mind at the time of the crime. For the reasons that follow, we will affirm the judgment of conviction.
Luis Carino and Norilys Richardson, the complaining witness, lived together in St. Croix for about eighteen months. The relationship, for at least some period, was characterized by violence between them. They separated approximately two weeks before the incident in question. On that day, Richardson was talking to a neighbor, Moises Carmona, outside of the housing project where Richardson lived. Carino and his cousin Nelson Carino arrived and joined Carmona and Richardson. After a brief conversation, Carino and Richardson began to argue. According to Richardson, Carino took a stick and hit Richardson on the face and body. She tried to defend herself by looking for something behind a tree and by holding on to the stick which Carino was using to hit her. Carino then pulled a gun out of his jacket and fired at Richardson, shooting her with three bullets which caused extensive hemorrhaging and multiple internal injuries. Richardson was required to have emergency surgery which included the removal of her ruptured spleen.
Although several people observed the shooting, no one came to Richardson's aid. Richardson begged Carino to take her to a hospital. After she assured him that she would not "rat" on him, he agreed to help her. He carried her to a road where he attempted to flag a car down. Eventually, a police car stopped for them.
During the ride to the hospital, Carino told a police officer that they had been attacked by someone in a green army jacket. However, once Richardson was alone with a police officer in the hospital, she indicated that in fact Carino had shot her. Richardson's version of the facts as set forth above was substantiated by eye-witnesses.
Carino's testimony presented an entirely different version of the facts. According to Carino, Richardson came up to him when he was sitting on a bench and hit him with a stick. He then took the stick and hit Richardson on the head. She then reached into her jacket, and he rushed her, grabbed her hands and took a gun from her pocket. Richardson threatened him saying she was going to kill him, that he was "going to be the second man she kill(ed), because she killed a man." She then ran back, picked up and broke a bottle, and ran towards him with the sharp glass saying " "I am going to kill you.'-I be the second one to kill (sic)." At this point in the testimony, there was a sidebar conference at the request of the prosecuting attorney who objected to the references to the prior killing by Richardson. The court instructed Carino not to refer in any way to the prior crime or Richardson's conviction for voluntary manslaughter.
Shortly before the trial, the Government had moved in limine to prevent the defense from using Richardson's past conviction for voluntary manslaughter for any purpose other than to impeach her credibility, which the Government conceded was permissible under Rule 609 of the Federal Rules of Evidence. The defense argued that it had a "right to ask this question under (609(a))" because it would show defendant was fearful of Richardson, since he claimed she had wounded him on previous occasions, and therefore defendant's "state of mind (was) important, knowing her (Richardson's) propensity for violence." The court granted the Government's motion, concluding:
I would say that (the Government) is right, that the prejudicial effect of (admitting the conviction) far outweighs any probative value. You are getting into the area of a character trait and you are trying then to show that character trait of the witness, the victim, by going into a conviction that has nothing to do with this man. He may have known about it but that doesn't mean she has a potentiality for violence.
After the presentation of the Government's case, Carino, out of the jury's presence, requested the court to reconsider its "determination . . . to exclude the testimony under Rule (609(a))." The Government again argued that while the conviction could properly be admitted for impeachment purposes, it could not be used to demonstrate the victim's propensity to commit a particular crime. The court ruled:
So far there has been no reason to use (the conviction) for impeachment so the only reason you could use it would be to show a propensity or trait of ...