People v. Montañez Ramos

100 P.R. 910

Opinions

Mr. Justice Ramírez Bages

delivered the opinion of the Court.

After having been accused and convicted of the above-mentioned offenses,

[1] appellant was sentenced on February 10, 1970, to life imprisonment to be served concurrently with the sentences of 6 months in jail, from 2 to 5 years in the penitentiary, and from 3 to 8 years for the commission of the other offenses. The jury’s verdict was by a vote of 9 to 3.

Appellant assigns that the trial court erred (1) in convicting appellant by an inadequate, insufficient, unjust, unlawful, and suggestive identification; (2) in giving instructions to the jury different to the one which the jury had requested upon returning to the court; (3) in charging as to the defense of alibi and good reputation; (4) in finding appellant guilty on all counts, without that evidence being sufficient inasmuch as it showed reasonable doubt as to defendant’s guilt.

(1) Let us examine first the circumstances of the case regarding to the identification of appellant accused of shooting David Trujillo Diaz to death in the bar of witness Sierra Crespo around midnight of June 6 to 7,1969.

Upon completing the presentation of the prosecution evidence which consisted of two eyewitnesses of the events, only one of which identified appellant as the author of the offenses (the rest of the evidence for the prosecution was techno-medical and of photographs of the place, bullet caps, and a copy of El Impartial with a written note on the back), the defense raised the lack of appellant’s identification. The trial judge ruled that:

“. . . The court understands that the case of the doctrine of Gómez Incera is, naturally, applicable in Puerto Rico and it is applicable to the facts of these cases. The facts of this case precisely fall within the scope of the doctrine established by the court in which the Supreme Court refuses to reverse the judgment, on the contrary, it affirms the judgment of conviction because it understands that despite the fact that the procedure which should be followed is to show a number of persons to the witness, a lineup, of persons more or less similar in order for him to pick the one from that group who according to the witness’ judgment was the one who committed the acts. Nevertheless, in the Gómez Incera case the Court said that it was not an identification suggested by the Police because the identification which was made was the result of an observation made by two witnesses for the prosecution for about twenty minutes while the acts were being committed. Of course, in this case the witness has not been observing the accused for twenty minutes, according to his testimony, but the element of time, the period of time is not the only factor to be considered and a person may sometimes observe and identify another person better in a shorter period of time, it depends on the attendant circumstances.

“For example, in the Gómez Incera case both witnesses are under a nervous strain at the time when a holdup, a robbery, is being committed, they have to be nervous, their capacity to observe must be upset, to a certain extent it is limited and perhaps under those circumstances the Supreme Court understands that a period of twenty minutes is reasonable time for a person, even though terrified, nervous, to observe the defendant sufficiently well to identify him afterwards.

“In this case we understand that the principal witness for the prosecution, witness by the name of Félix Sierra Crespo, having observed the defendant, according to him, for seconds during that night, but that he also saw him in the afternoon, at four in the afternoon when the witness was calm, he had no reason to be nervous, nothing was happening at the time, he talked with the defendant although very shortly, a short conversation, but it was during the daytime, he saw him close to him when he asked the question, observed him while calm, he ivas not terrified. That circumstance that he was observing him at close range, talking to him while close to him, during daytime, calm, together with the fact that he was wearing flashy clothes, an orange garb with the shirt and pants in combination, and then that night during the turmoil at the time of the shooting he saw him again, he observed his clothes which are very-flashy, all those circumstances lead the court to determine that a reliable identification is involved. Taking into consideration besides that it is not a question of a person who is being kept at the police station, or that the accused is being taken out of a cell but that he arrives in an automobile with a group of persons. Of course, it is true that they only bring the accused down, but they bring the accused down from the automobile and the witness points at him there when he is alighting from the automobile.” (Italics ours. )

Sierra Crespo identified appellant as the author of the offenses in this case on June 8, 1969. To said effects he testified that he saw appellant on Sunday, June 8, 1969 “In a group that the C.I.C. was bringing. The agent by the name of Alejo Maldonado told me ‘you know this one’ and I told him that that was the young man”; that Maldonado ordered appellant to stand in front of the car and then the witness saw him; that “the only one standing in front of the car was this [referring to appellant] the one who Alejo Maldonado took out.”

We must consider if this identification is valid, and does not violate the due process of law, in the light of the doctrine enounced by this Court in People v. Gómez Incera, 97 P.R.R. 243 (1969),¹ which is applicable to this case inasmuch as the aforesaid identification was carried out subsequent to the date on which we decided the Gómez Incera case, supra.

We said in Gómez Incera that:

“. . . Until the corresponding rules are adopted it seems to us that substantially following, insofar as feasible, in conformance with our procedure, the provisions of § 369 of the Law of Criminal Procedure for Cuba and Puerto Rico, copied above, is sufficient guarantee. Thus the recognition or identification shall take place by placing before the person who is to make it, the suspect or accused, producing said person together with other persons of similar external circumstances. In the presence of all of them or from a point where he cannot be seen, according to the determination of the person who is conducting the investigation, the person to make the identification shall state if the person to whom he may have referred in his statements is in the group, and if he is, he shall designate him in a clear and specific manner.”

In Stovall v. Denno, 388 U.S. 293 (1967), the identification of the accused by a lady who had been seriously wounded by him upon penetrating her home and after having killed that lady’s husband was sustained, because the confrontation of the accused in the hospital with the injured lady was imperative, immediately necessary inasmuch as nobody knew for how long the lady would remain alive, so that the only feasible procedure was to take the accused to the lady’s room in the hospital. It is in this case, and with reference to the foregoing circumstances, that the Supreme Court of the United States said that “a violation of the due process of law in the conduct of a confrontation depends on the totality of the surrounding circumstances....”

In Simmons v. United States, 390 U.S. 377 (1968), the identification of an accused by five witnesses separately in a series of photographs where the accused appeared accompanied by other persons was sustained. In this case the court said that the photographic identification was necessary.

Of course this problem of the confrontation cannot come forth when the accused is a person known to the identifying witness prior to the commission of the offense or when said witness testifies that he observed the accused during a reasonably long time while he committed the offense charged,, so that he could identify him with such certainty and precision that it could not result in an irreparable error of identification, as in Gómez Incera, supra, in Boyd v. State, 472 S.W. (Texas 1971), and in Edmisten v. People, 490 P.2d 58 (Colo. 1971).²

Let us examine next the circumstances which culminated in the challenged identification in order to determine if the same justify the conclusion that the lineup identification provided by Gómez Incera, supra, was not necessary.

The evidence shows that:

1. — The witness who identified appellant as the author of the offenses was Sierra Crespo who said that the relation which existed between himself and the deceased, David Trujillo, consisted in that of “client and a friend of mine, a very good person . . . good worker and reliable ... he helped me when I needed him ... I left my business . . . for him [Trujillo] to reside there on occasions.”

2. — At the time of the shooting, in the bar there were eight clients sitting on the stools in front of the bar, there were three others in other places of the establishment plus two employees. Only two of these, friends of the deceased, were brought to testify by the prosecuting attorney and of these only one testified that he saw appellant firing at the deceased.

3. — The bar had colored lights somewhat soft, “dim,” according to one of the witnesses. Sierra used eyeglasses (dark, according to what the prosecuting attorney said during the course of his argument) at the time that the shooting occurred. The distance from where Sierra was preparing the drink to where the person shooting was, was estimated to be 16 feet.

4. — Sierra testified that he was with his back towards the bar preparing some drinks when he heard the shots; that “As soon as I heard the noise I bent dozen, first I dropped the drink and as soon as the boy went away running I turned around . . . that he did not know or had seen appellant before that day”; that he did not see appellant when he entered the establishment. (Italics ours.) He continued testifying that “When I heard the shots I immediately looked towards the place from where they were coming . . . because the place is small .... All was very rapid, a matter of seconds”; that the person who fired the shots “After he finished ... he went away running, opened the door”; he said that “It was pra, pra, pra, pra, .... And then he immediately went away running”; that he did not object to the estimated time of this as about two seconds; that he had seen appellant, in his establishment at four in the afternoon when the latter asked him who was Trujillo and the witness pointed him out to him. When confronted with his statement which he had previously signed, in which he said that “I had never seen him” (previously) referring to appellant, he said that that was a mistake; that in said statement two errors were committed. Yet, nevertheless, one appears specifically corrected in it while this one of never having seen appellant before the events does not appear corrected so that the statement would agree with his testimony that he had seen appellant in the afternoon. The witness was asked why he had not told the prosecuting attorney to include in the statement the fact that he had seen appellant in the afternoon of the day of the events. He answered: “I cannot understand how . . . .” He testified that appellant was wearing the same clothes during the night that he was wearing in the afternoon, that is, orange or brown shirt in combination with the pants “More or less of the same color or maybe a little darker.” He did not include in his previous statement this detail about the clothes. He testified that the description of the author of the offenses was “A young man, just as I have just said, I told you that he was 20 years old more or less ... a tall man, thin, olive-skinned . . . .” In his testimony he did not make reference, as he did in his statement, to the fact that appellant had curly hair.

The prosecuting attorney who took the statement was asked if he left out from that statement any fact that Sierra may have told him during the investigation. He answered “There is everything the witness said.” He did not remember that Sierra had told him that appellant had been at Sierra’s establishment at four in the afternoon of the day of the events.

The second witness of the events, Ramón Rivera Arocho, testified that he arrived at the bar moments before the shooting. He stood up next to the deceased “. . . at the place through which people come into the business, I was standing close to the wall. I took out my billfold because I was about to leave, to pay to the owner of the business, when I was looking at the money which I was going to give him, upon hearing the shots as I was there looking I bent down, when I stood up that I looked at me, my chest was wounded. Then, in the turmoil everybody started running and upon seeing that nobody took care of me, nor took me to the hospital, I went out and my car was parked in front, I took it and I went to my mother.” Upon being asked if he could see from where those shots were coming, he answered “No, sir, because I was looking at the money that I was going to pay to the bartender.” He testified that the lighting in the bar was in colors and that there are dim places in the establishment.

It is apparent from what has been stated that the determination of the trial judge to the effect that the identification was reliable and that the question raised by the defense did not lie is based principally on Sierra’s testimony that during the afternoon of the events he saw appellant when Sierra was calm and talked with him.

We cannot agree with the trial court that the identification in question is reliable. These are the two grounds that justify our conclusion.

In the first place, we do not believe that, in the light of what has been stated, it was credible that Sierra had seen appellant during the afternoon of the day of the events. We believe that witness Sierra, encouraged by his fondness towards the deceased and, in view of the possibility that the identification based merely on the two seconds that the events lasted would not be considered reliable, he tried to reenforce it with the testimony that he had seen him in the afternoon, fact which resulted at variance with his own testimony that he “did not know or had seen, appellant before that day” as well as with his previous statement that “he had never seen him,” statement that he signed and did not correct as to this particular as he did to the other fact which he found that had been erroneously set forth. The prosecuting attorney that took that statement corroborated that .Sierra did not tell him that he had seen appellant before or that- he asked him to correct the statement in that sense.

In the second place, even assuming that he had seen him in the afternoon, can it be said with reasonable certainty that Sierra saw appellant firing the shots? The following circumstances rather indicate that he could not see him.

The place was semidark. Sierra was using dark glasses. He was about some 16 feet from where the author of the events fired. The shooting and appellant’s departure from the place took two or three seconds. Sierra was with his back turned when the first shot was heard. The other three followed within less than two seconds. Upon hearing the shot Sierra first bent down, then he dropped the drink which he was preparing “and as soon as the boy went away running I turned around.” (Italics ours.) Therefore he did not see him shooting but perhaps when he was already running out, which means that he did not see him face to face, but at most, from the side, if in fact it was not from the back. Add to this the natural ingredient of the confusion and cloud of smoke of the shots and the reaction of fear and of insecurity that they produce even in the mind of those more accustomed and the alarm that immediately spread between those present there for, as Sierra testified, “everybody got up . . . everybody became wild and I started shouting ‘call an ambulance please.’ ”

Under the foregoing circumstances, we are constrained to conclude that Sierra could not identify the author of the offenses when he committed them nor was in physical or mental condition to do it and that the identification which he has sought to sustain during his examination is the result of his desire to fix the responsibility for the events occurred on some person in particular.

In view of the foregoing, we need not consider the remaining assignments. Since it does not appear that appellant has been legally identified as the author of the offenses charged against him in this case, the judgments rendered by the Superior Court, San Juan Part, in this case must be reversed and appellant acquitted.

Mr. Justice Dávila delivered a concurring opinion in which Mr. Justice Hernández Matos, Mr. Justice Ramirez Bages, and Mr. Justice Torres Rigual, join. Mr. Justice Martin, with whom Mr. Justice Pérez Pimentel and Mr. Justice Martínez Muñoz join, delivered a dissenting opinion.

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COMPILER’S Note: The offenses are Murder in the First Degree, violations of §§ 6 and 8 pf. the Weapons Law, and Assault with Intent To Commit Murder.

1 On the indicated date the police should have been properly instructed about its obligation of putting in practice the rule of Gómez Incera, su-pra. We assume that the due instructions to that effect have already been given and that the same is being complied with.

2 See, besides, United States ex rel. Davis v. Follette, 410 F.2d 1135 (2d Cir. 1969); State v. Dessureault, 453 P.2d 951 (Ariz. 1969) ; 6-3 Columbia Journal of Law and Social Problems 345, 348-350.