ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS.
Garth, Rosenn and A. Leon Higginbotham, Jr., Circuit Judges. Garth, Circuit Judge, concurring in part and concurring in the judgment.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
On August 27, 1981, a twelve-person jury sitting in the St. Croix Division of the District Court of the Virgin Islands found Shelly Joseph guilty of one count first degree assault, three counts first degree robbery and one count first degree rape. District Court Judge Raymond T. Finch, sitting by designation, sentenced Joseph on September 16, 1981, to fifteen years on the rape count and ten years to be served consecutively on each of the remaining counts. Joseph filed a timely notice of appeal to the district court's judgment and commitment.
Joseph raises four challenges to his conviction and sentence in this appeal. First, he argues that the trial court erred in permitting a witness to testify that she saw a gun in Joseph's car several months prior to the crime. Second, he asserts that it was error to allow counsel for a co-defendant to testify regarding a confession Joseph gave to the attorney. Third, he alleges that his motion for a new trial should have been granted since certain documents, not offered into evidence at trial, were inadvertently sent to the jury during their deliberation. Finally, he argues that his sentence was improper as he received consecutive sentences for assaulting and robbing the same person.
After considering the briefs and oral argument in this case, we have concluded that the appellant is entitled to a new trial. We do not find reversible error in the appellant's first two allegations. However, despite the substantial evidence against appellant, we are convinced that the submission to the jury of two critical documents, not admitted of record, was so highly prejudicial as to deprive the appellant of a fair trial. We also agree with the appellant that he was improperly sentenced to consecutive terms under Counts I and II of the information. In our view, appellant's assault and robbery of Michael Savage are merged and Joseph can only be sentenced once under Counts I and II.
On February 22, 1979, in a bloody night of terror, three armed assailants forcibly entered Villa Number Six at the Reef Condominium in St. Croix, Virgin Islands. The time was approximately 12:40 a.m. and a gang of rapists and thieves found a woman at home alone who had just showered in preparation for going to bed. Sneaking up behind the woman, they ordered her to lie face down on the floor, to keep her eyes shut and not look at her assailants or make any sound.
A gun was placed against the side of her head while she was gagged and bound hand-and-foot. Repeated threats and beatings were administered to her while her home was ransacked. Not being satisfied with the jewelry and small amount of cash found at Villa Number Six, two of the assailants lifted the bound victim to her bed where she was raped, tortured and threatened repeatedly. Finally, a knife was placed at her throat and she was covered by a sheet. She was told that if she moved she would be killed. Her assailants then slipped out of her home in further search of "the big money."
Upon leaving Villa Number Six, the three crossed the street and entered Villa Number Thirty-Six. They found there two men, two women and a seven-year-old boy. After beating the villa's owner and terrorizing all of the people present, the assailants bound the occupants. The intruders fled after the telephone rang and one of the victims heard one of the assailants called by a name like "Shaboo." Before departing, the intruders took about $1,000.00 in cash and a number of items such as cameras and jewelry.
The police were called and two officers on patrol, after hearing the radio broadcast, spotted a car speeding along a road usually devoid of late night traffic. In an effort to set up a roadblock, the police pulled their patrol car across the road. The speeding car struck the police car and careened off the road. The officers pursued the occupants of the car as they fled but failed to catch anyone. One officer believed that he recognized one of the fleeing individuals as Richard Motta.
The evidence introduced at trial against Shelly Joseph was overwhelming. The abandoned auto was a 1974 two-door Chevy Nova registered to Joseph. Property stolen from the two villas was found in the car as well as guns identified as being used in the crimes. A vehicle fitting the description of Joseph's car was observed in the area of the Reef Condominiums prior to the crimes. Seminal stains found on the rape victim's panties matched the blood type of Joseph and Joseph frequently went by the nickname Shabu. Finally, immediately after the crimes took place, Joseph left the Virgin Islands to stay with his grandmother in Antigua, British West Indies.
Charges were filed against Shelly Joseph and two other persons, one of whom was Richard Motta. Motta engaged attorney Edward Ocean to represent him and Ocean flew to Antigua to meet with Joseph. Before leaving St. Croix, Ocean was given a letter of introduction from Reverend Vera Woods. It was this letter and the subsequent confession, signed by Joseph, exculpating Motta which inadvertently were sent to the jury although neither was introduced as evidence at trial. Joseph was arrested by authorities in Antigua and extradited to St. Croix. The government eventually dismissed all charges against Motta and the other co-defendant. As previously noted, Joseph was tried and convicted on all five counts of the government's information filed on August 12, 1981.
Appellant's first ground for appeal relates to the testimony of Lisa Christiansen. Mrs. Christiansen was a friend of Joseph who was called as a government witness and testified that she saw a black gun under the seat of Joseph's car. Joseph's attorney objected to her testimony but was overruled. The district court relied on Rule 404 of the Federal Rules of Evidence and United States v. Robinson, 560 F.2d 507 (2d Cir. 1977), cert. denied, 435 U.S. 905, 55 L. Ed. 2d 496, 98 S. Ct. 1451 (1978),*fn1 For the proposition that evidence of Joseph's prior possession of a gun was relevant to show the defendant's opportunity to commit armed robbery. On cross-examination, Ms. Christiansen was not able conclusively to identify either of the two guns found in the abandoned Chevy Nova as being the same gun she saw under the car's seat earlier.
Rule 404(b) of the Rules of Evidence provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Fed. R. Evid. 404(b). The Notes of Advisory Committee on Proposed Rules indicate that Rule 404(b) is not intended as a mechanical solution. Rather, the Rule vests in the trial judge the determination whether the danger of unfair prejudice outweighs the probative value of the evidence. Here, we cannot say that the trial Judge's decision to let Ms. Christiansen testify for the purpose of showing opportunity was an abuse of discretion. In any event, on this record it was, at worst, harmless error.
Edward Ocean, an attorney representing a co-defendant named Richard Motta, learned that Joseph had left the Virgin Islands to stay with his grandmother in Antigua. He secured a letter of introduction from Reverend Vera Woods and went to the home of Joseph's grandmother. He arrived on the morning of June 14, 1980 and presented Joseph's grandmother with Reverend Wood's letter. Joseph was not at home so Ocean left the letter and his hotel address with Joseph's grandmother. Later that afternoon, Ocean was told that Joseph was looking for him. They met in the hotel's restaurant and then moved into a private room.
Ocean clearly advised Joseph that he was representing Motta and read him a copy of the extradition statute. Ocean told Joseph that if he were to be implicated in the Reef crimes he could be subject to extradition to and trial in the Virgin Islands. Joseph said he understood the consequences and proceeded to give Ocean a detailed oral statement admitting his role in the crimes and exonerating Motta. At the conclusion of the meeting, Joseph agreed to sign an alleged confession because he did not "want to see an innocent man pay for a crime he was not involved in."
Approximately a week after Ocean met with Joseph, Ocean filed an affidavit with the court detailing his interview with Joseph. Ocean also mailed a copy of the affidavit and of Joseph's statement to Joseph.
Prior to trial, Joseph's attorney filed a motion in limine to prevent Ocean and Reverend Woods from testifying. The basis of the motion was that Joseph's communication with Ocean was protected under the attorney-client privilege and Reverend Woods was excludable under the priest-penitent privilege. The trial judge found that the privilege did not extend to Joseph's communication with either Ocean or Woods.*fn2 We agree with the trial court that Ocean was not serving as Joseph's attorney when the statement was given and, therefore, it was not error to allow Ocean to testify against Joseph at the trial.
Joseph's counsel concedes that Ocean at no time represented Joseph. His argument is "that counsel for a co-defendant cannot testify as to information obtained from a co-defendant in preparation for trial, as that testimony violates the spirit and rationale behind the attorney-client privilege." Appellant's Brief at 10. As we understand the appellant's argument, he is advocating the adoption of what is commonly called the "common defense" rule.
In support of the common defense rule, Joseph relies on two cases, Hunydee v. United States, 355 F.2d 183 (9th Cir. 1965) and United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979). In Hunydee, a husband and wife were under indictment for income tax evasion. Separate counsel were employed to avoid any possible conflicts. At a pre-indictment meeting of the two defendants and their respective attorneys, Ms. Hunydee's attorney stated his belief that if Mr. Hunydee would plead guilty Ms. Hunydee would not be prosecuted. Mr. Hunydee conferred with his lawyer and decided to "plead guilty and take the blame." 355 F.2d at 184. At trial Ms. Hunydee and her attorney testified regarding ...