On Appeal from the District Court of the Virgin Islands (Criminal Action No. 00-CR-00654) District Judge: Hon. Thomas K. Moore
Before: Roth, McKEE and Cowen, Circuit Judges.
The opinion of the court was delivered by: McKEE, Circuit Judge.
Dion Lawrence challenges his conviction for first degree murder and related charges arising out of a fatal shooting on the island of St. Thomas, U.S. Virgin Islands. Lawrence argues that photographic arrays shown to government witnesses were unduly suggestive, that the trial court erred in granting the government's motion in limine to exclude evidence that the victim identified someone else as his assailant, and that the evidence was insufficient to prove the premeditation required for first degree murder. In addition, in a matter of first impression in this circuit, Lawrence argues that the government failed to establish that the weapon involved was not an antique and therefore not a "firearm" within the meaning of 18 U.S.C. §§ 922(g) and 924(c)(1), (j)(1). For the reasons set forth below, we reject each of Lawrence's arguments, and we will affirm his convictions on the charges set forth in the indictment.
Lawrence was convicted of murder in the first degree in violation of 14 Virgin Islands Code (V.I.C.) § 922(a)(1); possession of a firearm as an illegal alien in violation of 18 U.S.C. § 922(g); and use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and (j)(1). The convictions stemmed from the April 22, 2000 shooting of George "Josh" Hodge, Jr.
On the day of the shooting, Hodge was in the Boat Bar on Coki Point Beach, St. Thomas, sitting a few feet away from Kenneth Harrigan. Hodge was wearing several gold necklaces that day, as was his custom. Harrigan later testified that a man known to him as "Trini" approached and asked for some marijuana. Harrigan told Trini he had none, and a few minutes later Trini walked away. However, he returned about 15 minutes later and asked Harrigan for some rolling paper, which Harrigan gave him. Trini then "rolled" a "cigarette" of tobacco and marijuana and smoked it. When he finished, Trini told Harrigan: "This is nothing personal. Don't take this personal." Trini then grabbed Hodge by the belt saying: "It's you I come for." Trini then pulled out a gun and shot Hodge. As Harrigan ran from the scene, he saw Trini fire a second shot, and then heard a third shot before leaving the scene and seeing Trini run away.
Karl Frederiksen and Tynisha Martin were on the beach about 50 feet from Harrigan and Hodge, facing away from them when the shooting occurred. Frederiksen saw a man he knew as "Tall Boy" talking and smoking near Hodge. Frederiksen was looking in the direction of the Boat Bar at the time of the shooting because he heard Hodge yelling, and saw Tall Boy with at least one of Hodge's gold necklaces in his hand and a gun in his other hand. Frederiksen heard three shots, and saw Hodge hold on to his gold chains before falling to the ground. He then saw Tall Boy run away through some bushes with a stocking cap pulled over his face. Fredericksen then went to see if she could help Hodge.
Hodge spoke only briefly to a police officer who arrived on the scene. He told the officer that the shooter grabbed his gold Gucci chain and shot him. However, he gave no description, and said nothing else that was helpful to the ensuing investigation. When Hodge arrived at the hospital, doctors learned that he was paralyzed from the neck down and unable to speak due to his injuries and a subsequent tracheotomy.
Berenice Hodge, the victim's sister, arrived at the hospital the following day — April 23, 2000. Hodge tried to communicate with his sister, but communication was exceedingly difficult because of Hodge's injuries, resulting paralysis and tracheotomy. He did, however, manage to say "Ogami," and when she repeated "Ogami" back to Hodge, he would nod his head "yes." Hodge also said "T." Berenice Hodge later informed two members of the Virgin Islands Police Department, including Sergeant Curtis Griffin, what her brother had said.
Hodge began to withdraw and become non-responsive after his first week of hospitalization. On May 20, 2000, he began bleeding through his nasogastric tube. That same day Police Officer Cordell Rhymer showed Hodge a photographic array assisted by a nurse. The nurses had developed a method of non-verbal communication with Hodge whereby he would blink and/or nod in response to questions. When Rhymer showed Hodge the photograph array, the nurse recorded on Hodge's chart that he blinked and nodded as if to select the fourth photograph. That was a picture of Dale "Ogami" Benjamin. Ogami was apparently on the beach when the shooting occurred. The defendant's photograph was not in the array.
On May 24, 2000, doctors had to operate on Hodge to control massive bleeding in his stomach. During the operation, the doctors determined that Hodge had an abscess in his abdomen and pockets of infection in other areas of his body. However, the peritonitis they had previously diagnosed appeared contained, and his condition improved enough for the hospital to make plans to apply for Medicare coverage for him on May 25. That day, several other police officers had Hodge again view a photo array. This time, Lawrence's picture was included as the fifth of the six pictures in the array. The officers asked Hodge if his assailant was pictured in the array, and they relied upon his non-verbal interactions to interpret his response.
The government subsequently argued that Hodge's blinks and nods in response to that inquiry were unresponsive to the officers' questions. However, the defendant would subsequently argue that Hodge's blinks and nods amounted to an identification of the person depicted in photograph number two as the assailant.
Hodge finally lost his battle to stay alive on May 30, 2000 after showing early signs of pneumonia and failing to respond to treatment for multiple organ failure. Thereafter, on May 31, 2000, Harrigan and Martin were separately shown the same array of photographs that Hodge viewed on May 25. Both identified Lawrence's picture as being a photograph of the person who shot Hodge. On a subsequent day, Frederiksen also identified the defendant as the shooter from the same array.*fn1
As noted above, the photo array consisted of six pictures, and the pictures were all on the same page. The characteristics of those depicted in the array were based on information the police had previously gathered from Harrigan about the shooter. The picture of the defendant differed slightly from the other pictures in the array because (1) it was an informal picture taken by a friend, not a "mug shot," so that the angle was different; (2) the defendant wore a gold chain while the others pictured did not; (3) the defendant was the only person not wearing a shirt; and (4) the defendant was pictured with a more pronounced smile than anyone else.*fn2
The defendant was arrested around June 13, 2000. One of the men arrested at the same time had a gold Gucci chain. Lawrence claimed the chain was his and asked police to give it to his wife. Berenice Hodge later testified that this chain was similar to chains worn by the victim.
Prior to trial, Lawrence filed a motion to suppress the photographic identifications by Harrigan, Frederiksen and Martin. He also asked the court to bar any in-court identification by any of those witnesses. Lawrence argued that the array was impermissibly suggestive and that any subsequent in-court identification would therefore be tainted by the substantial likelihood of misidentification. Following a hearing in which the district court viewed the photo array and heard testimony regarding the circumstances surrounding the photographic identifications, the court denied the suppression motion.
The court ruled that the array was not impermissibly suggestive because the individuals depicted in it had reasonably similar facial features and characteristics. The court also concluded that since each of the identifying witnesses had an unobstructed opportunity to observe the shooter before the incident without distraction, and since Frederiksen and Harrigan both knew Lawrence before the shooting, the likelihood of a misidentification from any undue suggestion of the photo array was very remote.
The government also filed a motion in limine to preclude the defendant from admitting testimony regarding Hodge's reference to "Ogami" when Hodge was shown the photographic array on May 20, and Hodge's identification of another person as the shooter in an array including Lawrence on May 25.*fn3 The government argued that the "identifications" constituted hearsay, and that they were also so ambiguous as to be meaningless. Lawrence responded by insisting that the identifications constituted dying declarations that were an exception to the hearsay rule. He also argued that the identifications met the standard of materiality under the residual hearsay exception.
The court granted the government's motion and ruled that Lawrence could not elicit evidence of Hodge's reference to "Ogami." The court held that neither identification constituted a dying declaration because the evidence did not establish that Hodge believed he was dying at the time of the declarations.*fn4 The court also ruled that the videotape recording of police presenting the photo array to Hodge on May 25 was too unreliable to be received into evidence. After viewing the recording during the hearing, the court reasoned that Hodge was uncommunicative and confused, and that any response he may have made to the photo array was too ambiguous to suggest that he was attempting to identify the shooter. The court also concluded that the May 20 identification in the presence of Officer Rhymer was not probative either because it was not clear whether Hodge was asked to identify his shooter or just identify persons who may have been on the scene ...