APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN D.C. Criminal No. 80-00137
Before Hunter, Van Dusen and Sloviter, Circuit Judges.
Defendant Warren Bedford was convicted of attempted grand larceny, in violation of 14 V.I.C. § 1082 (Count One), attempted assault with a deadly weapon, in violation of 14 V.I.C. § 297(3) (Count Three), and unlawful possession of a firearm during the commission of a crime of violence, in violation of 14 V.I.C. § 2253(a) (Count Four).*fn1 He was sentenced to three and one-half years' imprisonment for attempted grand larceny, and two and one-half years' imprisonment on each of the other two counts. All sentences were to be served concurrently.
Defendant appeals on three grounds. First, he argues that the district court committed reversible error in allowing him to be impeached with evidence of a prior conviction without first determining that its probative value would outweigh its prejudicial effect. Second, defendant argues that the use of the term "dangerous weapon" instead of "firearm" in the verdict form, given to and signed by the jury, resulted in his conviction of a crime with which he was never charged. Third, defendant argues that the district court improperly allowed the information against him to be amended in violation of Fed.R.Crim. P. 7(e). We are not persuaded by defendant's arguments and will affirm the judgment of the district court.
Mr. and Mrs. Thomas Gurklis arrived in St. Thomas on September 14, 1980, on their honeymoon. After checking into the Pavilion and Pools Hotel at about 8:00 p.m., they went to the hotel bar for a drink. After having one drink each, they started back to their room with a bottle of wine, some soft drinks and snacks. As they entered a patio area adjacent to their room, a man wearing a nylon stocking mask and knit cap rushed towards Mrs. Gurklis and attempted to grab her purse. Mr. Gurklis testified that he saw the man run up to his wife and stick a gun in her back. Mr. Gurklis heard the man say he had a gun. Mrs. Gurklis held on to her purse, and her husband managed to push the assailant into the swimming pool.
Mrs. Gurklis then jumped into the pool after the assailant, trying to subdue him by stabbing him with her high-heeled shoes. The assailant swam to the edge of the pool, got out, and, holding a gun, threatened to kill Mr. Gurklis. A struggle ensued and as the two men wrestled, Mrs. Gurklis attempted to assist her husband. In the struggle, both Mr. and Mrs. Gurklis were struck by the assailant. Mr. Gurklis was struck in the face and hand and Mrs. Gurklis in the head. Finally, Mrs. Gurklis was able to get help from the hotel office. Two employees helped subdue the assailant until the police arrived and arrested him. The assailant was later identified as the defendant Warren Bedford.
Bedford testified in his own defense that he had been on the hotel grounds picking genips, and that he was suddenly attacked by an unknown man. He denied having made any attempt to steal Mrs. Gurklis' purse or to shoot Mr. Gurklis, and he denied knowledge of the gun or mask.
Evidence of Prior Conviction
Defendant claims that the district court committed reversible error by admitting evidence of his prior conviction for possession of a switchblade knife. He argues that the district court admitted this evidence without first determining that the probative value of the evidence outweighed its prejudicial effect, a determination required by Fed.R.Evid. 609(a)(1).*fn2
During the cross-examination of the defendant, the prosecutor asked, "Are you the same Warren Bedford who was convicted on his guilty plea of possession of a switchblade knife in March of 1978?" Transcript at 163-64. Defense counsel immediately objected to the question on the ground that it was not probative of the defendant's credibility. The court overruled the objection stating: "If it is a felony, they may ask." Transcript at 164. Defense counsel again objected on the basis of relevance, pointing out that the probative value of the prior conviction must be weighed against its prejudicial effect under Rule 609(a)(1). The court again overruled the objection and permitted the question to be answered (in the affirmative). The Government concedes that the court did not make any attempt to weigh the probative value of admitting this evidence against its prejudicial effect to the defendant. Government's Brief at 8.*fn3
Evidence of a prior conviction can be admitted under Rule 609(a)(1) solely for purposes of attacking credibility. Rule 609(a)(1) is absolutely clear and explicit in requiring the trial court, before admitting evidence of a prior conviction, to make a determination that the probative value of the evidence outweighs its prejudicial effect to the defendant.*fn4 See United States v. Provenzano, 620 F.2d 985, 1003 (3d Cir.), cert. denied, 449 U.S. 899, 101 S. Ct. 267, 66 L. Ed. 2d 129 (1980); United States v. Cook, 608 F.2d 1175, 1185 (9th Cir.) (en banc), cert. denied, 444 U.S. 1034, 100 S. Ct. 706, 62 L. Ed. 2d 670 (1979); United States v. Preston, 608 F.2d 626, 639 (5th Cir. 1979); United States v. Seamster, 568 F.2d 188, 190-91 (10th Cir. 1978); United States v. Hawley, 554 F.2d 50, 52 (2d Cir. 1977); United States v. Oakes, 565 F.2d 170, 173 (1st Cir. 1977); United States v. Mahone, 537 F.2d 922, 929 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S. Ct. 646, 50 L. Ed. 2d 627 (1976). The Government bears the burden of persuading the court that the evidence should be admitted, i.e., that ...