APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS - DIVISION OF ST. CROIX (D.C. Crim. No. 76-10).
Seitz, Chief Judge, Gibbons and Hunter, Circuit Judges.
Defendant, Allan Petersen, appeals from a final judgment of conviction and sentence upon a jury verdict finding guilt on two counts of second degree murder. Defendant urges five bases for reversal,*fn1 only two of which require discussion: the district court's refusal to suppress eyewitness testimony, and its refusal to admit opinion testimony concerning defendant's religious beliefs bearing upon his character trait for nonviolence.
Uncontradicted testimony at trial established the events surrounding the homicides. Just before midnight on January 15, 1976, two young men entered a small bar; shortly thereafter, one of the young men engaged in a heated argument with two older men who had been seated at the bar. The young man was physically ejected by the proprietor, Mr. Carrasco, whereupon the man's companion left voluntarily. Fifteen minutes later the young man who had been ejected was seen looking through the partially open door of the bar while two of his companions entered, ordered several beers and then left. The three were heard talking outside at the corner of the building.
Shortly thereafter, at about 12:45 a.m. on January 16, as the two older men prepared to leave, Carrasco warned them that the boys were waiting outside. Carrasco heard the men start their car, heard two shots, rushed to the door and witnessed a young man firing a third shot into the back of the car. The two older men were found dead in the front seat.
The only question at trial was whether defendant was the assailant. Defendant produced the testimony of a number of alibi witnesses that he had been home asleep during the entire evening and night in question and had not been anywhere near the murder scene. The government produced three identification witnesses. The barmaid, de Colon, gave in-court testimony of her out-of-court photographic identification of defendant as the young man who had argued and been ejected, and the photographs were received in evidence. de Colon also gave a verbal description of the young man and made an in-court identification of defendant.
Carrasco gave a verbal description of the young man he had ejected and testified that the same man was the one he saw firing the third shot into the car. He made an in court identification of defendant as the assailant. The third witness, Santos, a patron of the bar, testified that he saw a young man engaged in an argument with the two older men and that he had seen the young man before and knew him by the name "Petersen."
Defendant made a pretrial motion to suppress all pretrial and courtroom identification, which motion was denied in all respects. On appeal, defendant argues that the pretrial identification of him by de Colon and Carrasco was impermissibly suggestive, that it tainted their in-court identification, and that denial of the pretrial motion therefore violated due process.
de Colon was shown two photographs of defendant by a police officer on the evening of January 17 and positively identified the defendant as the young man who argued in the bar. The government concedes, as it must, that it was suggestive to have shown the witness only photographs of defendant. Simmons v. United States, 390 U.S. 377, 383, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). But a ". . . conviction based upon eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 384. Moreover, testimony of the out-of-court identification is admissible so long as the identification procedure, although suggestive, does not create a very substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972).*fn2
In Simmons, the Court looked to two factors: the necessity for photographic identification as a method of zeroing in on a suspect of a serious crime still at large, and circumstances indicating that the witness had a substantial independent basis for making the identification such that misidentification was not a substantial likelihood. The first factor is clearly present here. de Colon was shown the photographs shortly after defendant had been picked up for questioning. As in Simmons, the inconclusive clues which led to Petersen, here justified an attempt to secure a rapid and concrete identification both ". . . from the standpoint of apprehending offenders and of sparing suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs." 390 U.S. at 384.
The second factor was adumbrated in Biggers as requiring an inquiry into five aspects of reliability: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at confrontation, and the length of time between the crime and the confrontation."
de Colon stood within a few feet of the young man in the bar for about 30 minutes. During this time her attention was drawn to him by his engagement in a heated argument with two patrons and his physical ejectment by Carrasco. The photographic identification was made within 48 hours and her identification both in and out of court was positive. The previous day she had reviewed numerous photos but failed to identify any suspects. The description made to police immediately after the shooting paralleled that of defendant with one exception. She described the young man as about 5 feet 6 inches in height, while defendant testified, ...