On Appeal from the District Court of the Virgin Islands. (D.C. Criminal No. 90-00174)
Before: Sloviter, Chief Judge, Mansmann and Weis, Circuit Judges
At issue in this case is whether a second hearsay statement made by the victim of a homicide is admissible under the analysis of the Confrontation Clause set forth in Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990).
Procedural Posture and Factual History
On December 24, 1990, a five count information was filed charging Eurie Joseph with felony murder in violation of V.I. Code Ann. tit. 14, § 922(a)(2) (1964); premeditated murder in violation of V.I. Code Ann. tit. 14, § 922(a)(1) (1964); possession of an unlicensed firearm in a crime of violence in violation of V.I. Code Ann. tit. 14, § 2253 (1990 Supp.); assault with intent to commit murder, robbery and larceny in violation of V.I. Code Ann. tit. 14, § 295 (1964); and assault with a deadly weapon in violation of V.I. Code Ann. tit. 14, § 297 (1990 Supp.). Joseph entered a plea of not guilty.
Following a trial, the jury convicted him on count 1 of voluntary manslaughter (a lesser included offense of the felony murder and first degree murder charges), on count 3 of possession of an unlicensed firearm in a crime of violence, on count 4 of assault in the first degree, and on count 5 of assault in the third degree. The court sentenced Joseph to serve eight years on counts 1 and 4; five years on count 3 to run consecutive to the sentence imposed on counts 1 and 4; and five years probation on count 5 to commence upon release with credit for time served. Joseph appeals his conviction, claiming that the district court improperly admitted hearsay testimony which did not meet the requirements of either Fed. R. Evid. 804(b)(5) or the Confrontation Clause.
Following a conviction, we review the facts of record in the light most favorable to the government. United States v. Aguilar, 843 F.2d 155, 157 (3d Cir.), cert. denied, 488 U.S. 924 (1988). On November 20, 1990 during the mid-afternoon hours, two men entered the home of Ramon Castillo in Christiansted, St. Croix. Mr. Castillo's stepson, Francisco Mercado, was in the house at the time taking a shower. Mercado testified that when he went upstairs to bathe, he saw only his stepfather through a partially opened bedroom door, did not hear any voices, and did not see anyone else in the house. As he showered, Mercado heard his stepfather call his name "in a desperate way." Mercado ran out of the shower, opened the door to his stepfather's bedroom, and found his stepfather on the floor with a gunshot wound to his chest.
Mercado testified that when he reached the bedroom door, he encountered a young man coming out of the bedroom into the hallway where Mercado stood. That man, whom Mercado later identified as Jose Rivera from a photo lineup, held a gun which was pointed directly at him and then fired. Mercado pushed Rivera's hand as he dodged out of the line of fire and thus was not injured. A second man followed the first so closely that Mercado was barely able to see him. Mercado did not identify the second man at trial.
Castillo's wife heard gunshots from the bar-restaurant that she operated below the apartment. She saw the backs of the two strangers as they were leaving but never identified them. She also testified that one of the men was carrying a gun, although she could not identify which one. She ran upstairs where she found her husband lying on the floor of their bedroom with a gunshot wound to his chest. When she found her husband, the bedroom was in disarray, although $500 in rent money which was secreted in the bedroom closet had not been removed. When Mrs. Castillo went to her husband, Castillo told her to "lift my head, I'm dying." App. at 132.
As the two intruders left the house, they were seen by Jose Quinones, who had been fixing Castillo's car in the yard below at the time of the shooting. He saw the two men run from the apartment, down the front steps, and toward a gold-colored Sprint automobile parked directly behind the vehicle on which he was working. As the fleeing men approached after the shooting, Quinones tried to hide behind the Sprint, but one of the men approached him, pointed a .38 revolver at him, and told him to move out of the way. Thereafter the two men drove away. Quinones identified Joseph as the man who threatened him. Both Mercado and Quinones testified that both men they saw had guns with them.
Police were immediately summoned and arrived at the scene about seven minutes after the shooting. One of the first officers to respond was Sgt. Ramirez, who saw that Castillo was "in bad condition." App. at 183. Nevertheless, Ramirez was able to take a brief statement from Castillo before the ambulance took him to the hospital.
Joseph concedes the admissibility of Castillo's November 20 statement as testified to by Ramirez as a dying declaration, and we thus include that portion of Ramirez's testimony verbatim:
But I was looking more for him to tell me, describe the guys them that been there or whoever did the crime.
So he told me that he was upstairs and two guys came in and demanded money.
I ask him to describe the guys for me. He said that one of the guys of them were cleancut, and his hair was short, and he were clean, and he had a big pendant on a chain. That the other guy was short and had locks, and he had his locks in a knot. The two of them were short.
Q. Okay. Did he describe the relative complexions of the two individuals?
Q. Tell the jury about that, if you would, please.
A. He said that one of them was a little more clear, and the clear skin guy's hair was short. That that guy had a pendant, a big pendant on a chain. That the other guy was short and he was more dark, and he had his hair in locks, but had it tied up in a knot.
Because Castillo was "in bad shape", Ramirez did not ask Castillo additional questions at that time. Ramirez testified that in the past he had seen Joseph with a rope chain with a big pendant, that Joseph's complexion is clearer than Rivera's, and that Rivera is between 5'6" and 5'7", weighs about 120 to 125 pounds and is a "brown-skinned individual." Joseph testified that his height and weight are similar.
Virgin Islands police officer Hitesman testified that he photographed the crime scene and recovered physical evidence. He found a spent projectile on the hallway floor outside of Castillo's bedroom and a shell casing just inside the bedroom. He observed and photographed a bullet hole in the same hallway near the projectile and shell casing. Hitesman also inspected and photographed the doorway to Castillo's bedroom and found no bullet holes. There was testimony from an expert in the field of firearms examination that the bullet that caused Castillo's death was .38 caliber and had been fired from a revolver. He further testified that the shell casing found in the hallway was a 9 millimeter shot from a semiautomatic pistol, and that the bullet in the hallway was 9 millimeter. Both the expert and Hitesman testified that these two bullets could not have been fired from the same gun.
On November 29, 1990, Ramirez returned to the hospital to interview Castillo.*fn1 Castillo, while paralyzed, was no longer in critical condition and had recovered sufficiently for Ramirez to interview him. It is the admissibility of this November 29 statement that is the subject of this appeal. We describe Ramirez's testimony verbatim:
Q. The specific question, Sergeant Ramirez, is this: Did you talk with Mr. Castillo about what had happened to him on the 20th?
Q. Did he indicate to you what had ...