filed: August 25, 1992; As Corrected September 18, 1992.
Appeal from District Court of the Virgin Islands (Division of St. Thomas). Criminal No. 90-00129
Before: Sloviter, Chief Judge, Mansmann and Weis, Circuit Judges.
In this appeal we are faced with the question of whether the defendant's right to a fair trial was violated on retrial due to the publicity surrounding his first trial which had ended in a hung jury. Prior to retrial, Acting Chief Judge Brotman (who did not preside over the first trial) conducted voir dire of the venirepersons in his chambers and ascertained that each person who ultimately sat on the jury had an open mind and would determine the defendant's guilt or innocence based solely on the evidence introduced at trial. We concur with the district court that Riley has not demonstrated substantial prejudice arising from the publicity. Further, we conclude that the district court did not abuse its discretion by admitting into evidence the videotape deposition testimony of a minor child eyewitness. Consequently, we will affirm the judgment of the district court.
Patrick Riley's first trial made headlines because the district Judge, a senior visiting Judge from another circuit, chastised the jury after it became apparent that two hold-outs would not be able to reach a verdict.*fn1 The district Judge's comments produced a backlash of animosity from local officials and brought arguments from commentators, both pro and con. The facts underlying the trial were more simple, and yet more tragic.
On August 27, 1990, Samuel "Bing" Joseph was shot to death. The crime was witnessed by his three-year old son, Jamiel. Approximately two hours after Joseph's body was discovered, the Virgin Islands police apprehended Patrick Riley and brought him in for questioning. While Riley was waiting in an interrogation room in front of a one-way mirror, Jamiel Joseph was brought into the adjoining room by his mother and a detective where Jamiel could observe Riley without his presence being known. The detective asked Jamiel to tell him if he recognized the person in the room.*fn2 Jamiel looked at Riley, cried out and ran from his mother. He tried to hide under the mirror.
That afternoon the detective and his partner went to the boy's home where they showed him a photo array consisting of six photographs. The array included a photo of Riley and five other men who resembled Riley. The detectives requested that Jamiel pick out the man that "shot his Daddy." Jamiel identified Patrick Riley. The detectives rearranged the photos and asked him to pick out the man once again. Jamiel chose Patrick Riley's photo a second time. A second photo array identification by Jamiel was videotaped several months later. Although Riley waived his right to be present at the deposition, his counsel cross-examined Jamiel.
Riley, through his defense counsel, moved to suppress the evidence of the photo display, contending that it was tainted by the suggestive confrontation which took place earlier. The district court denied the motion after conducting a hearing where the police detective testified to the conduct of the identification procedure. A videotape of the identification was played to the jury at the trial.*fn3 Riley renewed his objection to the use of the evidence before the second trial and his motion was once again denied. The district court*fn4 determined that the denial of the motion was the law of the case and the evidence was admissible.
The second trial was scheduled to start approximately five months after the first ended in a mistrial. Eighty-seven people made up the venire for the second Riley trial. Of those, nineteen were dismissed due to familiarity with the parties or relationship to police officers or for personal reasons. Of the remaining sixty-eight, all but sixteen admitted to having heard or read about the previous trial. The district court Judge interviewed, in his chambers, all of the jurors admitting familiarity with the case.*fn5 He asked each venireperson individually what the source of publicity was, whether the person had already made a decision on the merits of the case and whether, if chosen to serve, the venireperson would keep an open mind and reach a decision based solely on the evidence introduced at trial.*fn6 During this process, counsel for Riley did not object to any of the venirepersons for cause.
Finally, twelve jurors and four alternates were chosen. After several days of trial the jury returned a guilty verdict. This appeal followed.
We analyze the defendant's claims of lack of an impartial jury by conducting an independent review of the voir dire of the empaneled jurors to determine whether Riley has demonstrated that "substantial prejudice" arose from the publicity. United States v. Gilsenan, 949 F.2d 90, 95 (3d Cir. 1991), cert. denied, 119 L. Ed. 2d 590, 112 S. Ct. 2971 (1992); United States v. Provenzano, 620 F.2d 985, 996 (3d Cir. 1980); United States v. D'Andrea, 495 F.2d 1170, 1172 (3d Cir.), cert. denied, 419 U.S. 855, 42 L. Ed. 2d 88, 95 ...