Maris, Freedman and Coffin,*fn* Circuit Judges.
The defendants, Vidal Galdon Aquino and Ishmael Guillerma Reyes, were jointly tried on two separate informations charging them with rape in the first degree in violation of 14 V.I.Code § 1701 (1) and (4).*fn1 Reyes was found guilty of rape in the first degree and Aquino was found guilty as an accessory after the fact.
The complainant was a stewardess aboard a Norwegian freighter which arrived in St. Thomas at about noon on March 15, 1966. That evening she went for recreation to two night clubs or bars where she met a number of persons with whom she drank and danced. One of them was Reyes.
Sometime between three and four o'clock on the morning of March 16th, the complainant left the bar to seek a taxi on the main street. A number of witnesses testified that she was intoxicated at the time. While she was waiting a private car driven by Aquino in which Reyes was a passenger pulled up and Reyes offered to take her to her ship. According to her testimony, Reyes attempted to become familiar with her while they were in the car but she resisted him and warned that she would call the police. She remembered nothing thereafter and thought she must have fainted or become unconscious from alcohol. Later in the morning she awoke to the barking of a dog and found herself lying almost naked on the ground, her intimate undergarments ripped and out of place on her person. She was hysterical and strangers who came to her assistance called the police, who removed her to the hospital. A medical examination showed the presence of live male sperm in the vagina, although she herself had no recollection of having had sexual intercourse that night and the physician who examined her could not say when the sperm had been deposited.
Appellants complain of the refusal by the district judge to suppress the statement which Reyes is alleged to have made to Detective Lopez in which he admitted having had intercourse with the complainant, but claimed that it had been voluntary on her part. Since the complainant herself had no recollection of having had intercourse and there was no outside witness to the fact, the admission was the only evidence of his act which, of course, constituted an essential element in the charge of rape. It was damaging in the highest degree to Reyes and thus also to Aquino.
At the trial Reyes denied making the statement. In view of the verdict, however, we must disregard his denial and consider whether the circumstances in which the statement was given violated any fundamental right.
The complainant had identified a suspect at a police lineup, but shortly thereafter informed the police that she had been mistaken. A day or so later she stopped at an eating place and after a few words recognized the man who served her as Reyes. She promptly reported this to the police. Detective Lopez, in the company of Patrolman Heath and Chief of Police Freeman, called on Reyes after Detective Lopez, who knew him, had learned from a car rental agency that he had rented the car which the complainant had entered. It is not clear whether Detective Lopez already knew that the complainant had identified Reyes or made his visit solely because of the identification of Reyes at the car rental agency. We shall therefore put aside the possibility that the complainant's identification of Reyes had already been conveyed to the officers. While Heath and Freeman waited in the police car, Lopez called on Reyes. He first identified himself by showing him his badge and identification card. Since they already were acquainted, this act obviously must have been intended at least as a reminder of the official nature of Lopez's visit. The conversation began on the subject of the car. Lopez asked Reyes if he had rented the car and Reyes admitted that he had. Then Lopez repeated the original question, but now in a more ominous setting; he said that he was investigating a charge of rape and again asked Reyes if he had rented the car. Reyes again replied that he had. Having thus obtained Reyes' confirmation that it was he who had rented the car involved, Lopez then told him of the gravity of the charge and that he should have counsel. In this indirect way Lopez informed Reyes that he was accused of rape. Reyes replied that he would get a lawyer and said that he would try to communicate with the attorney for his employer. At this point Lopez asked Reyes where his "partner" was. Reyes pointed out Aquino, who was nearby, and Lopez called to him, giving him the same advice as to the seriousness of the charge and the need for counsel. Thus ended the portion of the discussion between Lopez and the appellants which was preliminary to bringing them to the police station.
When appellants entered the police car, further discussion ensued between Lopez and Reyes in Spanish, which the other two officers did not understand. Lopez explained to Reyes in Spanish what the complainant had reported to the police and it was evidently then that, according to Patrolman Heath, Chief of Police Freeman asked that they speak in English. At this point, when the conversation was in English, Reyes, without having been asked any question on the subject, responded to Lopez's statement of the complainant's claim by saying that the sexual intercourse between them was voluntary on her part. Lopez thereupon asked Reyes why he had thrown her out of the car if she had voluntarily consented to intercourse, and Reyes replied that she had not wanted to get out and the hour was late. According to Patrolman Heath, Lopez then asked the Chief of Police if he wanted to know any more and the Chief of Police replied that he did not and advised Reyes that when they got to the police station he should get in touch with an attorney, and that he was not required to make any further statements unless he wanted to do so on his own.
The police clearly exercised no coercion, physical or psychological, upon Reyes in order to obtain his statement, beyond that which was inherent in the notification that he was involved in the grave charge of rape and in the recital of the complainant's claim. Cases which view confessions in circumstances of physical or psychological coercion (see Davis v. State of North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966)) therefore are not here relevant. Also inapplicable is the doctrine of Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) that the failure to give adequate notice, inter alia, of the rights to remain silent and to have the services of counsel renders a harmful admission inadmissible against the declarant by a kind of conclusive presumption of involuntariness. The trial in this case began on May 17, 1966 and Miranda therefore does not apply. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). We are, however, within the intermediate zone governed by Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), since the trial here began after that decision. Johnson v. State of New Jersey, supra.
The limited reach of Escobedo is best stated in the words in which the Court summarized it: "We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. 335, at 342, 83 S. Ct. 792, at 795, 9 L. Ed. 2d 799, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." (490-91). See Johnson v. State of New Jersey, supra, 384 U.S. at 733-734, 86 S. Ct. 1772. See generally Developments in the Law -- Confessions, 79 Harv.L.Rev. 935, 999-1023 (1966).
The facts leave no room for doubt that the investigation here had begun to focus on Reyes at the time Lopez and the other officers came to take him to the police station. It is equally clear that Reyes had been taken into police custody, for the police were transporting him in a police car to the police station. It is also clear that he had indicated that he wished to consult with counsel and that he had been given no warning whatever of his constitutional right to remain silent before he had consulted with him. The only question ...