                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2007

Govt of VI v. Garcia
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4422




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"Govt of VI v. Garcia" (2007). 2007 Decisions. Paper 1110.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1110


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                                                  NOT PRECEDENTIAL


  IN THE UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                      NO. 06-4422


     GOVERNMENT OF THE VIRGIN ISLANDS

                            v.

                JULIO ORTIZ GARCIA
                      Appellant


        On Appeal From the District Court of the
Virgin Islands, Division of St. Croix, Appellate Division
           (D.C. Crim. Action No. 05-cr-00018)
      Hon. Raymond L. Finch, Chief District Judge
          Hon. Curtis V. Gomez, District Judge
             Rhys S. Hodge, Territorial Judge


    Submitted Pursuant to Third Circuit LAR 34.1(a)
                     May 8, 2007

       BEFORE: SLOVITER, STAPLETON and
         VAN ANTWERPEN, Circuit Judges

             (Opinion Filed May 11, 2007)




              OPINION OF THE COURT
STAPLETON, Circuit Judge:

                                              I.

       Appellant Julio Ortiz Garcia was convicted of attempted rape in the first degree

(Count 1), two counts of rape in the first degree (Counts 2 and 3), unlawful sexual

conduct in the first degree (Count 4), kidnapping for rape (Count 5), and two counts of

child abuse (Counts 6 and 7). These convictions arose from a series of events on the

same day involving a 15- year-old female victim. Garcia also had a prior conviction for

rape of a three-year-old victim. The Superior Court imposed a 25-year sentence on Count

1, a 99-year sentence on Counts 2 and 3, a 25-year sentence on Count 4, a 99-year

sentence on Count 5, and a 20-year sentence on Counts 6 and 7. The sentences on Counts

1 through 4 are to run concurrently, as are the sentences on Counts 5 through 7. Garcia

can thus be required to serve two consecutive sentences of 99 years each for rape in the

first degree and kidnapping with the intent to rape.

       Garcia argues before us that the Appellate Division erred in affirming the Superior

Court’s (1) denial of his motion to suppress the victim’s out-of-court and in-court

identifications of him, and (2) rejection of his contentions that the sentences imposed

violated both the Eighth Amendment’s prohibition against cruel and unusual punishment

and the Fifth Amendment’s protection against multiple punishments for the same offense.

In his informal pro se brief, Garcia also insists that there was insufficient evidence to

support the rape convictions. We will affirm the judgment of the Appellate Division



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essentially for the reasons given in its thorough opinion.1

                                              II.

       As the Appellate Division noted, while the “show up” of Garcia was “suggestive,”

it is not at all clear that it was “unnecessarily suggestive” as those terms are used in Neil

v. Biggers, 409 U.S. 188 (1972). Courts have consistently acknowledged the necessity of

utilizing “show ups” under certain circumstances, despite their inherent suggestibility.

See Gov’t of Virgin Islands v. Callwood, 440 F.2d 1206, 1209 (3d Cir. 1971). We agree

with the Appellate Division, however, that one need not resolve that issue in order to

sustain the Superior Court’s denial of Garcia’s suppression motion. A pre-trial

identification is suppressible only if it is both produced through an unnecessarily

suggestive procedure and unreliable. See Biggers, 409 U.S. at 196-99.

       The “show up” identification of Garcia bore many and strong indicia of reliability.

Garcia lived next door to the victim and she had seen him on numerous occasions. She

had an ample opportunity to observe him during the perpetration of the crimes and

provided police with a detailed and accurate description of him and his clothing prior to

the “show up.” The “show up” identification occurred just minutes after the crimes and

was instantaneous and unequivocal.




   1
    We do not agree, however, with the Appellate Division’s apparent suggestion that
concurrent sentences for the same offense do not violate the Double Jeopardy Clause, see
Ball v. United States, 470 U.S. 856 (1985). But that suggestion is not essential to its
holding that Garcia’s rights under the Double Jeopardy Clause have not been violated.

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         Under these circumstances, the Superior Court did not err in denying suppression

of both in- and out-of-court identifications. See, e.g., United States ex rel. Gomes v. State

of New Jersey, 464 F.2d 686, 687-88 (3d Cir. 1972).

                                              III.

         As we recently observed in United States v. MacEwan, 445 F.3d 237 (3d Cir.

2006):

         When evaluating proportionality challenges to sentences under the Eighth
         Amendment, courts must examine three factors: (1) “the gravity of the
         offense and the harshness of the penalty”; (2) “the sentences imposed on
         other criminals in the same jurisdiction”; and (3) “the sentences imposed for
         commission of the same crime in other jurisdictions.” Solem, 463 U.S. at
         290-292, 103 S. Ct. 3001. When conducting this analysis, this Court has
         recognized that we “‘should grant substantial deference to the broad
         authority that legislatures necessarily possess in determining the types and
         limits of punishments for crimes.’” Rosenberg, 806 F.2d at 1175 (quoting
         Solem, 463 U.S. at 290, 103 S. Ct. 3001).

                This principle of substantial deference therefore “restrains us from
         an extended analysis of proportionality save in rare cases.” Id. (quoting
         Solem, 463 U.S. at 290 n.16, 103 S. Ct. 3001). Consequently, in assessing
         such a challenge, the first proportionality factor acts as a gateway or
         threshold. If the defendant fails to show a gross imbalance between the
         crime and the sentence, our analysis is at an end. We, therefore, must focus
         upon whether MacEwan’s is “the rare case in which a threshold comparison
         of the crime committed and the sentence imposed leads to an inference of
         gross disproportionality.” Ewing, 538 U.S. at 30, 123 S. Ct. 1179 (quoting
         Hamelin, 501 U.S. at 1005, 111 S. Ct. 2680 (Kennedy, J.))

Id. at 247-48.

         All of the sentences imposed on Garcia were within the range authorized by the

Virgin Islands legislature. Virgin Islands law, for example, authorizes a sentence of life



                                               4
imprisonment or imprisonment for any term of years for the crime of rape in the first

degree when the defendant, like Garcia, has an earlier rape conviction. 14 V.I.C. § 1701.

Moreover, given the character of the offense, the age of the victim, and the fact that these

crimes occurred less than seven months after his release from the prison sentence

imposed for his prior rape, we, too, conclude that there is no “gross disproportionalty”

between the gravity of Garcia’s offenses and the harshness of the penalty.

                                            IV.

       Whether two statutes constitute the same offense for double jeopardy purposes is

based not on whether the charges result from the same conduct but, rather, whether each

requires proof of the same elements under the test articulated in Blockburger v. United

States, 284 U.S. 299 (1932). As the Appellate Division persuasively explains, each of the

crimes alleged here requires proof of at least one element not required to prove another of

the alleged crimes.

                                             V.

       Corroboration of the victim’s testimony is no longer required in rape cases under

Virgin Islands law, and the evidence at trial provides ample support for the rape

convictions.

                                            VI.

       We will affirm the judgment of the Appellate Division and will grant the motion of

appellant’s counsel to withdraw. See Anders v. California, 386 U.S. 738 (1967).



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