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2011 Published Opinions
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December 28, 2011
S.Ct. Civ. 2010-0027
Medina Henry v. Cecelia Dennery
      In a landlord-tenant dispute prompting a forcible entry and detainer action under 28 V.I.C. § 781 et seq. that was initially considered by a magistrate, resulting in an order of eviction which was subsequently appealed to the Superior Court and upheld following a trial de novo, the only proof that the tenant-appellant received actual notice of that trial came from the unsworn representations of the landlord’s attorney. However, unsworn representations of an attorney are not evidence, and the record thus lacks any admissible evidence that the tenant-appellant received any notice of the Superior Court trial. Because the Superior Court’s conclusion that the tenant-appellant had actual notice was devoid of the minimum necessary evidentiary support, the Superior Court clearly erred by finding that the tenant-appellant had actual notice of the trial, and its decision upholding the order of eviction is reversed. The matter is remanded to the Superior Court for further proceedings.
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December 15, 2011
S. Ct. Crim. No. 2010-0064
Ottley Smith v. People of the Virgin Islands
      In a prosecution for unauthorized possession of a firearm in violation of 14 V.I.C. § 2253(a) the trial court did not err in admitting ammunition and "speed loaders" for that weapon into evidence as probative of defendant's possession of the gun. The trial court abused its discretion in admitting into evidence a knife found in defendant's belongings at the time of his arrest, since it was completely irrelevant to whether he unlawfully possessed the firearm on the date in question, but this was harmless error. The court's failure to conduct a hearing after being informed that one or more jurors may have fallen asleep at different points during the trial did not violate the defendant's right to a fair and impartial trial, since there was no evidence that any of the jurors were unable to consider the case fairly, and defendant failed to show, or even allege, that their sleep had a prejudicial effect on his defense. The Superior Court’s judgment of conviction is affirmed.
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December 15, 2011
S. Ct. Civ. No. 2011-0037
Diana Banks, et al. v. International Rental and Leasing Corp.
      In the disposition of a question of law certified to the Supreme Court of the Virgin Islands by the United States Court of Appeals for the Third Circuit, pursuant to Supreme Court Rule 38, it is held that the phrase “local law” in 1 V.I.C. § 4 encompasses judicial precedents from this Court and that § 4 does not preclude it, as the highest local court in the Virgin Islands, from declining to follow the latest approved Restatement on a subject. On the merits of the question as formulated, it is held that Virgin Islands local courts should apply §§ 1 and 20 of the Restatement (Third) of Torts, and that a plaintiff may pursue a strict liability claim against a lessor for injuries resulting from a defective product.
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December 15, 2011
S. Ct. Crim. No. 2010-0064
Ottley Smith v. People of the Virgin Islands
      In a prosecution for unauthorized possession of a firearm in violation of 14 V.I.C. § 2253(a) the trial court did not err in admitting ammunition and "speed loaders" for that weapon into evidence as probative of defendant's possession of the gun. The trial court abused its discretion in admitting into evidence a knife found in defendant's belongings at the time of his arrest, since it was completely irrelevant to whether he unlawfully possessed the firearm on the date in question, but this was harmless error. The court's failure to conduct a hearing after being informed that one or more jurors may have fallen asleep at different points during the trial did not violate the defendant's right to a fair and impartial trial, since there was no evidence that any of the jurors were unable to consider the case fairly, and defendant failed to show, or even allege, that their sleep had a prejudicial effect on his defense. The Superior Court’s judgment of conviction is affirmed.
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December 13, 2011
S. Ct.. Crim. No.: 2010-0063
Thomas Hightree v. People of the Virgin Islands
      In a prosecution under 14 V.I.C. § 2253(a) for unauthorized possession of two firearms, where the defendant's licenses to lawfully possess those weapons had expired three years before the charges were filed, the 90-day grace period for license renewal under 23 V.I.C. § 455(e) did not apply. Because he no longer had a valid license, he was no longer authorized by law to possess the firearms, as provided in 23 V.I.C. § 452. Therefore, conviction under § 2253(a) for unauthorized possession of the firearms was appropriate, even though § 455(e) does not prescribe criminal penalties of its own, and the Superior Court did not commit any error – much less a plain error – in allowing the convictions to stand. Defendant failed to object to his convictions in the trial court on the basis of the Second Amendment, and failed to show how the scope of that constitutional provision clearly invalidates statutes requiring a license to possess a handgun. For these reasons, the Superior Court did not commit plain error in failing to dismiss his convictions sua sponte. The judgment of conviction on both counts is affirmed.
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November 18, 2011
S. Ct. Crim. No. 2011-0049
People of the Virgin Islands in the Interest of J.S.I., a Minor
      In a criminal case, the Family Court transferred a minor to the Criminal Division of the Superior Court for trial as an adult pursuant to 5 V.I.C. § 2508(b)(4) on charges of allegedly shooting two individuals at a shopping mall, one of whom died. The People, however, failed to show that the minor had been served with a copy of the summons, complaint, and motion to transfer prior to the transfer hearing. This deprived the minor of due process of law. Accordingly, the order of the Family Court transferring the minor is reversed, and the matter is remanded back to the Family Court.
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November 18, 2011
S. Ct. Crim. No. 2010-0088
Marcella Browne v. People of the Virgin Islands
      In the prosecution of a defendant for crimes including acting an accessory after the fact in making a false statement to police to protect her husband and her brother, who were suspects in a multiple murder shooting, the People failed to offer sufficient evidence to prove that she knew at the time of making the false statement that the men were involved in the shooting. Mere knowledge that the underlying offense occurred is insufficient. Rather, under 14 V.I.C. § 12(a) the People must prove that the defendant had actual knowledge of the crime and of the principals' participation in it, and that she took some action to hinder or prevent their apprehension, trial, or punishment. Therefore, that portion of the Superior Court’s judgment finding this defendant guilty as an accessory after the fact is reversed and her sentence for that conviction is vacated.
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November 14, 2011
S.Ct. Crim. No. 2010-0008
Alford Shoy v. People of the Virgin Islands
      A defendant who pled guilty to the crime of obtaining money by false pretense under 14 V.I.C. § 834(1) challenged on appeal the refusal of the trial court to impose sentence pursuant to 5 V.I.C. § 3711(c), which allows for probation without conviction and for the possibility of expungement of the criminal record. The plain language of that provision, however, states that “the court may” impose the lenient treatment which the section contemplates, a discretionary rather than a mandatory action. The fact that a defendant satisfies all the prerequisites of § 3711(c) does not require that sentence be imposed pursuant to that provision. In this case there was reasonable support in the record for the trial court's findings concerning the magnitude of the criminal offense the defendant committed, and any alleged judicial error, any inaccuracies as to the exact number of victims of the crime and the number of persons in possession of the vehicle, would constitute harmless error, insufficient to warrant reversal of the trial court’s decision to reject the defendant's application for § 3711(c) sentencing treatment. The judgment of the Superior Court is affirmed.
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October 12, 2011
S. Ct. Misc. No. 2009-0025
In re: The Honorable Leon A. Kendall
      In proceedings pursuant to an order requiring a judge of the Superior Court to show cause why he should not be held in criminal contempt for obstructing the administration of justice, failing to comply with a prior opinion and order of the Supreme Court, and for misbehaving in official transactions as an officer of the court, the findings, conclusions and recommendations of the designated special master are accepted in part and rejected in part, in de novo review by the Supreme Court: (1)—While a judge does not surrender First Amendment rights upon becoming a member of the judiciary, in this case inflammatory remarks and other characterizations in a published opinion by the Superior Court judge rose far above the level of reasoned disagreement, and created more than substantial likelihood of obstruction. Criminal contempt of court which obstructs the administration of justice includes all willful misconduct which embarrasses, hinders, or obstructs a court in its administration of justice or derogates the court's authority or dignity, thereby bringing the administration of law into disrepute. In this case the Superior Court judge is guilty of indirect criminal contempt through obstruction of the administration of justice. (2)—A trial court must implement both the letter and the spirit of an appellate court's mandate, taking into account the appellate court’s opinion and the circumstances it embraces. Where the reviewing court's mandate prescribes proceedings in accordance with its opinion, the opinion is part of the mandate. The special master's finding that the People proved beyond a reasonable doubt that this judge refused to proceed to trial, refused to consider a change of venue, and refused to consider a continuance, as required under the Supreme Court's underlying opinion and order, warrants finding him guilty of indirect criminal contempt for failure to comply with that prior opinion and order. (3)—A Superior Court judge has an obligation under the Code of Judicial Conduct to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and has the ministerial duty to follow all the decisions of this Court—established as the Territory's court of last resort—as binding precedent regardless of his personal views of their correctness. Based on the findings of the special master, the Superior Court judge is found guilty of indirect criminal contempt for misbehaving in his official transactions. The People proved beyond a reasonable doubt that this judge is guilty of indirect criminal contempt, and this matter shall be set for a sentencing hearing.
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October 6, 2011
S. Ct. Civ. No. 2010-0007
Deniece M. Rainey v. Leola Hermon
      In an action by an attorney to collect legal fees for services rendered relating to a probate matter, the Superior Court erred in reducing certain of the amounts owed for fees and expenses. Its factual determinations that the attorney's work concerning a foreclosure action on the client's family home was outside the scope of the attorney-client contract, and that attorney billed the client for unnecessary work, lack evidentiary support and are clearly erroneous. The Superior Court also erred in disallowing certain administrative costs, without finding that those costs were unreasonable or outside the scope of the contract between the attorney and client. The judgment of the Superior Court is reversed and this action is remanded for proceedings consistent with this opinion.
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September 29, 2011
S.Ct.Crim. No.: 2010-0051
St. Clair DeSilvia v People of the Virgin Islands
      In a prosecution for procuring false instruments and making fraudulent claims upon the government, there was sufficient evidence presented at trial to allow a jury to find the defendant guilty beyond a reasonable doubt of knowingly procuring false instruments under 14 V.I.C. §795, by proof that the substantive crime was committed and that this defendant knew of the crime and attempted to facilitate it. A brief and isolated improper statement during closing argument by the prosecutor was harmless in light of the nature of the comment, the instructions given by the trial judge, and the strength of the evidence against this defendant as it pertained to the charge under 14 V.I.C. §795. However, there was insufficient evidence to sustain the defendant's conviction for making fraudulent claims upon the government pursuant to 14 V.I.C. § 843(3) by aiding and abetting another through the preparation of falsified vehicle registration and inspection lane checklist documents for filing at a window of the Bureau of Motor Vehicles. The People failed to prove that the substantive crime was committed, and thus the present defendant cannot be convicted as a principal for aiding and abetting in the commission of that crime. The trial court therefore erred in denying his motion for a judgment of acquittal with regard to his charge of violating 14 V.I.C. § 843(3). The judgment of the Superior Court is affirmed in part and reversed in part.
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September 27, 2011
S. Ct. Civ. No. 2010-0014
Gwendolyn Hall Brady v. Raymond Cintron, M.D., et al.
      In considering a complaint presenting claims against a physician and his unlicensed medical assistant under the Medical Malpractice Act, 27 V.I.C. § 166 et seq., and claims for deceptive trade practices under 12A V.I.C. § 101, the plaintiff’s failure to comply with the jurisdictional pre-filing requirements of the Medical Malpractice Act prior to the expiration of the two year statute of limitations imposed by 27 V.I.C. § 166d(a) created more than merely a technical deficiency in her complaint that could be cured through a supplemental pleading. Additionally, a deceptive trade practices action is a tort, here involving no entrepreneurial or commercial aspects of the medical practice, but averring a medical malpractice claim which falls under the provisions of the Medical Malpractice Act. The Superior Court thus properly dismissed plaintiff’s claims against the physician. While the Superior Court erred in holding that the physician’s unlicensed medical assistant, who was working within the scope of her employment at the time of plaintiff’s injury, is covered by the Act, plaintiff’s complaint nevertheless fails to state a claim against the assistant upon which relief can be granted, for lack of plausible allegations that the assistant's actions were a proximate cause of plaintiff's injuries. Therefore, the order of the Superior Court granting the motions to dismiss by the physician and the medical assistant is affirmed.
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September 27, 2011
S. Ct. Civ. No. 2011-0056
In Re: People of the Virgin Islands
      In a petition by the People of the Virgin Islands requesting issuance of a writ of mandamus – or the exercise of inherent supervisory authority over the Superior Court – to compel the Nominal Respondent, a Superior Court judge, to recuse herself from presiding in the underlying criminal matter, the petitioner has failed to establish that it lacks other adequate means to attain the desired relief, or that its right to a writ of mandamus is clear and indisputable. In addition, insufficient argument was presented in this petition for the exercise of inherent supervisory power. Therefore, the petition is denied.
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September 27, 2011
S. Ct. Crim. No. 2011-0041
People of the Virgin Islands v Jahlil J. Ward
      In an appeal from an opinion and order in a criminal case involving the disclosure doctrines established in Brady v. Maryland, 373 U.S. 83 (1963), and the barring of witnesses at retrial of the case against the defendant, since a prosecutor is only obligated to disclose material that is not already in the possession of the defense, or which the defense cannot obtain through reasonable investigation, the People did not violate the requirements of the Brady decision when it failed to disclose the information outlined in a prior opinion of the Superior Court in this case. Likewise, even if the People possessed a duty to disclose the materials discussed in the opinion and order which is the subject of the present appeal, the People’s non-disclosures did not violate obligations under Brady and Giglio v. United States, 405 U.S. 150 (1972), because the Superior Court failed to establish deadlines for disclosure of such materials and, in fact, had still not scheduled defendant’s third trial. Accordingly, the Superior Court’s May 26, 2011 opinion and order is reversed and the matter is remanded for further proceedings consistent with this opinion.
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September 21, 2011
S. Ct. Civ. No. 2010-0046
The Honorable Leon A. Kendall v. The Daily News Publishing Co.
      In a libel action brought by a Superior Court judge relating to articles and editorial content that were published by the defendant newspaper and written by the defendant authors, over a five year period, about the judge's opinions and his decision to retire, there was no error in the granting of a motion for judgment as a matter of law for the defendants pursuant to Federal Rule of Civil Procedure 50(b), because the plaintiff failed to present sufficient evidence to allow a rational jury to find actual malice by clear and convincing evidence with regard to any of the contested articles, as required for the recovery of damages for defamatory falsehoods relating to official conduct of a public official. The judgment of the Superior Court is affirmed.
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September 14, 2011
S.Ct.Crim. No.: 2007-0067
Joel B. Dowdye v. People of the Virgin Islands
      In an appeal from convictions for first degree murder and five related felonies, the case is remanded for a limited evidentiary hearing on the issue whether removal and replacement of a sitting juror during the trial was justified by his exchange with the defendant of gestures that might have been Masonic signs. No connection between defendant and the Freemasons was communicated to the jury during voir dire, and the defendant has not demonstrated actual prejudice resulting from extensive voir dire questioning of prospective jurors concerning involvement with Freemasons. However, the trial court committed plain error when it removed and replaced the juror during the trial without questioning or interviewing him, or conducting a hearing into possible links to Freemasonry, as well as the meaning of – and reason for – his hand gestures or signs made in open court. There was also no proceeding to determine the juror's truthfulness during voir dire, or his ability to render an impartial verdict. While a trial court’s decision to remove a juror is reviewed for abuse of discretion, when a non-frivolous suggestion of bias or a tainting incident is made the trial court must undertake an adequate inquiry to determine whether the alleged incident occurred and, if so, whether it was prejudicial. In this case, despite circumstances raising strong suspicions, without a hearing to determine whether there was actual bias, the trial court lacked a basis upon which it could remove the juror, and a basis upon which it could conclude that the defendant received a fair trial. At oral argument of this appeal, defendant agreed that remand for a post-trial hearing is a suitable remedy to address the trial court’s error. Accordingly, a record remand to the Superior Court is directed, for conduct of a hearing as specified in this opinion on whether the juror was untruthful during voir dire in failing to respond to any of the trial court’s questions about Freemasons, and whether the exchange of alleged Masonic gestures or signs between the juror and the defendant during the trial justified removal and replacement of the juror.
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September 12, 2011
S. Ct. Crim. No. 2007-0008
Ashley Williams v. People of the Virgin Islands
      In an appeal from convictions for rape and unlawful sexual contact, the contention that the trial court erred when it failed, sua sponte, to include an instruction on the affirmative defense of consent when instructing the jury, when no objection or request was made, is reviewed under the plain error standard and is rejected. The trial court gave jury instructions on the elements of the charges as listed in the statute, and the statutory language, “when the person’s resistance is prevented by fear of immediate and great bodily harm,” is synonymous with a “lack of consent.” Thus, the trial court’s failure to use the word “consent” in its final instructions did not result in prejudice or influence on the verdicts, nor did such failure constitute a violation of constitutional rights because the instructions that were given by the court intrinsically and adequately addressed the issue of consent. The failure of the trial court to grant defendant's Rule 29(a) motion for judgment of acquittal on two of the eight counts was not error because, based on the record, a rational juror could find that there was sufficient evidence to support the essential elements of the crime under 14 V.I.C. § 1701(3). The Superior Court’s judgment and the jury’s verdicts are affirmed.
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September 7, 2011
S. Ct. Civ. No.: 2010-0083
United Corporation v. Tutu Park Limited et al.
      In a suit seeking damages for breach of contract arising from lease of space in a shopping mall, in which it was alleged that the lessor-defendant had granted the plaintiff exclusive rights to operate a supermarket at the mall, the entry of summary judgment for the defendant and dismissal of the action with prejudice was erroneous because neither party disputed in summary judgment motions that a contract provision precluded a national retailer from operating another supermarket in the mall. To the extent it could reach the issue, the Superior Court's holding was based on a misinterpretation of the plain text of the contract provisions which, as established by the undisputed extrinsic evidence, imposed a duty on the defendant to enforce the terms of its agreement with the national retailer on plaintiff's behalf, by ensuring that the national retailer did not operate a supermarket. It was also error to find at the summary judgment stage that the national retailer does not operate a "supermarket" because, in the context of the agreement provisions, that term is ambiguous. The Opinion and Order are reversed, plaintiff's complaint is reinstated, and the matter is remanded to the Superior Court.
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September 2, 2011
S.Ct.Civ. No.; 2009-0050
Caribbean Healthways, Inc., et al. v. Gerro James, et al.
      In a challenge to the entry of a permanent injunction relating to the blocking of a shared right of way, heard as an appeal of an interlocutory order pursuant to 4 V.I.C. § 33(b)(1), it was not an abuse of discretion to enter an injunction, and because only an express easement was alleged in the complaint, it was not error for the Superior Court to summarily reject a claim for recognition of an implied easement before entering this relief. However, the injunction was overbroad as originally entered, since its language was not narrowly tailored to fit the circumstances. This case is remanded for reconsideration of the scope of the injunction in light of this opinion.
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August 29, 2011
S.Ct.Crim.No.: 2010-0016
Kenneth Augustine v. People of the Virgin Islands
      Convictions on multiple counts of assault, unauthorized use of an unlicensed firearm during the commission of assault, and reckless endangerment arising from an alleged shootout with three police officers are affirmed after consideration of challenges to the sufficiency of the evidence and the fairness of the trial. There was overwhelming evidence presented at trial upon which a rational jury could have found that defendant was the individual who produced a gun and started shooting at three police officers. One police officer's statement at trial that he had stopped defendant previously was not sufficiently prejudicial to have deprived him of his right to a fair trial, and the trial court's failure to grant a mistrial on its own initiative was not plain error. The fact that 14 V.I.C. § 2253(a) criminalizes the possession of firearms does not mean that the Legislature intended to exclude firearms from the definition of a deadly weapon or from statutes criminalizing the use of a deadly weapon. Thus, defendant could be charged with assaulting three police officers with a deadly weapon under 14 V.I.C. §297(2) when the deadly weapon is a firearm. There was also sufficient evidence for the jury to find that the shooting occurred in an area usually accessible to the public, and the conviction under 14 V.I.C. §625 for reckless endangerment is affirmed.
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August 25, 2011
S.Ct.Crim. No.: 2010-0060
Marco A. Mendoza v People of the Virgin Islands
      In an appeal from convictions for procuring false instruments and making fraudulent claims upon the government, 14 V.I.C. § 795 as applied in this case is not unconstitutionally vague because its language clearly instructs ordinary people as to what conduct is prohibited. It defines the criminal offense with sufficient definiteness and does not encourage arbitrary and discriminatory enforcement. Vehicle registration and inspection lane checklists are instruments under this statute, and in this case they were materially false. In the present case there was sufficient evidence presented at trial to allow a jury to find the defendant guilty beyond a reasonable doubt of knowingly procuring false instruments under §795. However, there was insufficient evidence to sustain the defendant's conviction for making fraudulent claims upon the government pursuant to 14 V.I.C. § 843(3) by offering the falsified vehicle registration and inspection lane checklist for filing at a window of the Bureau of Motor Vehicles. Thus the People failed to meet its burden with regards to §843(3), and the Superior Court erred in denying the defendant's Rule 29 motion with regard to this charge. The judgment of the Superior Court is affirmed in part and reversed in part.
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August 23, 2011
S.Ct.Crim. No.: 2010-0030
Anselmo Farrington v People of the Virgin Islands
      In a prosecution for robbery and grand larceny arising from the taking of a necklace, there was no error in the trial court's refusal to grant a new trial based upon comments made by the prosecuting attorney during closing arguments, which did not improperly express an opinion or comment upon the veracity of a witness – or the jury's function in assessing credibility – and thus did not deprive the defendant of fair trial. However, unsupported affidavits do not provide sufficient information to decide the claim that the defendant was deprived of his Sixth Amendment right to a fair trial when a friend and two family members were allegedly prohibited from entering the courtroom during the voir dire proceedings, and the case is remanded for an evidentiary hearing on that issue. Arguments regarding sufficiency of the evidence and identification of the defendant as the perpetrator of the crime were waived by failure to brief these issues on appeal as required by Virgin Islands Supreme Court Rule 22(a)(5). The judgment is affirmed in part and the case is remanded.
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August 10, 2011
S.Ct.Crim. No.: 2009-0005
Beaupierre v. People of the Virgin Islands
      Constitutional and related challenges to a ten year mandatory minimum sentence for conviction of the crime of rape in the first degree are rejected. There is no fundamental due process right to individualized sentencing, and the mandatory minimum sentence for rape in the first degree meets due process requirements because it satisfies the rational basis test: it is rationally related to the legitimate governmental interests in crime deterrence, the penological purpose of retribution to deal more severely with those who pose a substantial danger to society, and the goal of uniformity in sentencing. In light of the uniform nationwide practice of permitting legislatures to specify mandatory minimum sentences, such provisions are not unconstitutional as cruel and unusual punishments on their face. Considering the ten year mandatory minimum sentence for rape in the first degree pursuant to 14 V.I.C. § 1701 as applied in this case, it is not so grossly disproportionate as to be unconstitutional, comparing the gravity of the offense and the severity of the sentence. Mandatory minimum sentences do not violate the separation of powers doctrine, nor do they impermissibly endanger judicial independence. The appellate court has no authority to review and set aside mandatory minimum sentences for unreasonableness, and the judgment is affirmed.
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July 26, 2011
S.Ct.Civ.No.: 2009-0026
Virgin Islands Conservation Society, Inc. v. Golden Resorts, LLLP
      In a complex dispute involving a coastal zone permit related to development of a resort hotel, casino and convention center on parcels of wetlands, since the Coastal Zone Management Act does not vest an administrative agency with jurisdiction to review Virgin Islands Board of Land Use Appeals decisions, the Superior Court erred when it held that the plaintiff conservation group could not proceed under 12 V.I.C. § 913(b)(1) because it failed to exhaust administrative remedies. The conservation group is not—through this action—challenging the validity of the developer’s initial permit by default, but only seeking injunctive relief on the grounds that (1) it let that permit lapse by failing to timely obtain an extension, and (2) the Board of Land Use Appeals lacked jurisdiction to extend the permit. Thus, the plaintiff is not bringing its § 913(b)(1) action as a substitute for a petition for writ of review, and requiring the Superior Court to consider its request for injunctive relief on the merits would not undermine the regulatory framework set forth in the Coastal Zone Management Act or violate the doctrine of primary jurisdiction. Consequently, the order appealed from is reversed and the case is remanded for consideration of the plaintiff's application for injunctive relief on the merits.
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July 27, 2011
S. Ct. Civ. No. 2010-0084
First American Development Group/Carib, LLC v. WESTLB AG
      An appeal seeking review of opinions and orders appointing a receiver for properties owned by and mortgaged to the parties is dismissed for lack of jurisdiction. The 30-day limitation on time to appeal specified in 4 V.I.C. § 33(d)(5) for "all such cases" applies not only to the appeals taken pursuant to §§ 33(d)(1)-(4), but also to those taken under §§ 33(b)(1)-(2). The legislature intended this period to set a jurisdictional requirement for the hearing of appeals, and not simply a claims processing procedure, and thus this Court lacks jurisdiction over the present appeal. The appellant's motion to "stay" or "clarify" the challenged opinions and orders could not have tolled the time to appeal under Supreme Court Rule 5(a)(4), because § 33(d)(5) requires that an appeal be taken within 30 days of the date of the decision without providing for this Court to extend or toll this period. Accordingly the appeal is dismissed for lack of jurisdiction.
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July 20, 2011
S. Ct. Civ. No. 2010-0058
Terrell v Coral World
      In a civil action involving alleged injuries at a theme park, in which plaintiff recovered a verdict after trial before a jury, travel expenses for transporting witnesses to testify at trial are not recoverable expenses under 5 V.I.C. § 541, and the portion of the judgment denying recovery of such costs is affirmed. However, 5 V.I.C. § 541 and § 660 provide that witness fees are recoverable and do not require or authorize the Superior Court to consider non-statutory requirements for recovery of such fees; the denial of costs for expert witness fees is reversed and the case is remanded for a determination of the exact amount of such fees recoverable under those statutes. Because a significant portion of the award of costs made in this case is not in accord with the findings of the Superior Court's memorandum decision, the award was arbitrary and an abuse of discretion, and the case is remanded for a disposition on costs that is consistent with this opinion.
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July 19, 2011
S. Ct. Civ. No. 2007-0115
Harvey v Christopher
      In an appeal from rulings concerning marital property and alimony related to a divorce, because failure to record a deed to certain real property did not affect its validity under 28 V.I.C. § 241(a)(2), the Superior Court did not err in finding that the properly executed, witnessed and notarized deed conveyed the property to the son of the husband years earlier, even though it was not recorded as permitted under 28 V.I.C. § 41. The provisions of 28 V.I.C. § 124 are not applicable to these circumstances, and thus the real estate did not qualify as a marital homestead subject to equitable distribution during the divorce action. The defendant wife waived her right to assert a claim for alimony in gross by choosing to file an answer to the divorce petition that expressly waived any claim for alimony, and failing to withdraw or amend that answer, and the Superior Court did not abuse its discretion in barring assertion of such a claim. There was also no abuse of discretion in denying a motion for reconsideration involving a single conclusory sentence unsupported by any argument or authority. The orders appealed from are affirmed.
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June 22, 2011
S.Ct. Crim. No.: 2010-0001
Denzil I. Stevens vs. People of the Virgin Islands
      At a jury trial, Appellant was found guilty of a number of charges stemming from a shooting on St. John. Appellant’s convictions were affirmed on appeal, with the exception of his conviction for unauthorized possession of ammunition. Stevens v. People, 52 V.I. 294 (V.I. 2009). Following remand, Appellant filed a post-sentencing motion for a new trial, which the Superior Court denied. Appellant appeals that denial. Appellant argued that newly-discovered evidence demonstrated that the prosecution, in violation of Brady v. Maryland, 373 U.S. 83 (1963), deprived him of a fair trial by failing to disclose (1) an alleged agreement that the People's main witness was released early from prison in exchange for his testimony against Appellant at trial, (2) that the People placed this main witness in protective custody prior to Appellant's trial, and (3) certain police reports generated in an unrelated murder investigation which linked the People's main witness to the unrelated murder. Because (1) the newly discovered evidence does not establish the existence of an agreement between the People and its main witness whereby he would be released early from prison in exchange for his testimony, (2) the police reports generated from the unrelated murder investigation did not contain new information material to Appellant's prosecution, and (3) because the prosecution did not suppress the fact that its main witness had been placed in witness protection prior to trial, the Court holds that there was no Brady violation and Appellant was not denied a fair trial. Therefore, the Superior Court did not abuse its discretion in denying Appellant’s motion for a new trial.
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June 17, 2011
S.Ct.Crim. No.: 2007-0128
Albert Marcelle, Jr. v. People of the Virgin Islands
      Albert Marcelle, Jr. v. People of the Virgin Islands; In a prosecution for aggravated assault and battery, an act of domestic violence under 14 V.I.C. § 298(5) and 16 V.I.C. § 91(b)(1), the People of the Virgin Islands presented sufficient evidence to satisfy the elements of the charged offense and to disprove the defendant’s defense of resistance by a party to be injured in his person or property. The judgment of conviction is affirmed.
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May 27, 2011
S.Ct.Crim. No. 2009-0037
Ivan Chinnery v. People of the Virgin Islands
      In a prosecution for unlawful sexual contact with a young female in violation of 14 V.I.C. § 1708(1), the defendant properly preserved the issue of his attempt to exercise a peremptory challenge during jury selection against a prospective white juror, and neither waived that request nor manifested acceptance of the Superior Court’s ruling denying the strike. A prior request to strike the juror for cause was not a prerequisite to the peremptory challenge, and the burden to place necessary racial or demographic information in the record rested with the People, who made the argument against allowing exercise of this strike on discrimination grounds under Batson v. Kentucky, 476 U.S. 79 (1986). The Superior Court erred in barring defendant’s peremptory strike in this case by its failure to consider the applicable factors and all relevant circumstances, immediately shifting the burden of proof to the defendant, who was attempting to exercise the challenge, and by summarily rejecting his proffered race neutral explanation for striking the prospective juror. The Superior Court’s interference with defendant’s exercise of the peremptory challenge requires reversal as a matter of due process because the ruling was based on that court’s own personal preferences rather than a good-faith attempt to follow Batson, and was inherently arbitrary and irrational. However, the Superior Court did not err during the trial by admitting evidence of certain sexually-oriented prior statements of the defendant relating to the victim – made approximately one year prior to the events – not as “bad character” evidence but as “other acts” proof relevant to complete the narrative of the events of the crime and to explain the relationship of the parties in this case. The May 7, 2009 judgment of conviction is reversed and the case is remanded to the Superior Court for a new trial.
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May 25, 2011
S. Ct. Crim. No. 2007-0063
Clayton Brown, Jr., v. People of the Virgin Islands
      In a prosecution for attempted murder, assault, use of an unlicensed firearm during a crime of violence, and possession of ammunition, the People failed to introduce sufficient evidence to prove the ammunition offense beyond a reasonable doubt, because Virgin Islands law did not at that time provide a mechanism for authorizing possession of ammunition and thus it could not be proven that defendant was not authorized to possess it; that conviction is reversed. The defendant's convictions on the other offenses are affirmed. While the Superior Court failed to advise defendant of his rights at an early court appearance, defendant was represented by counsel and has not demonstrated any resulting prejudice. Evaluating defendant's speedy trial claim under governing factors, he has failed to identify any prejudice other than that stemming from pre-trial incarceration, some of which was attributable to turnover of attorneys representing defendant during this period. Thus the Superior Court did not err in finding that dismissal of the information was not justified. The alleged failure to "merge" defendant's conviction for first degree assault with his conviction for attempted murder could not have violated his substantial rights because the sentences imposed were concurrent. However, the sentence imposed in this case fails to comply with 5 V.I.C. § 3711(a) and this Court’s past precedents because a split sentence that imposes probation without suspending a portion of the sentence is illegal. The judgment is affirmed in part and reversed in part. The sentence is vacated, and the case is remanded to the Superior Court for resentencing.
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May 24, 2011
S. Ct. Crim. No. 2009-0059
Michael Stanislas v. People of the Virgin Islands
      In a prosecution for attempted murder, assault, robbery, and possession of an unlicensed firearm, there was sufficient evidence that defendant was the gunman in the robbery as charged, and the evidence was sufficient to support the jury's finding of his guilt on all of the charges. Defendant failed to demonstrate that he received ineffective assistance of counsel, by identifying any act or omission to show that his counsel's performance fell below an objective standard of reasonableness or that counsel's performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome in the proceeding. The judgment of the Superior Court entered upon the defendant's convictions is affirmed.
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April 12, 2011
S.Ct.Crim. No.: 2009-0104
People of the Virgin Islands vs. Charmaine Clarke
      This Court holds that based on the evidence presented at trial, viewed in the light most favorable to the People, there is insufficient evidence to allow a jury to reasonably infer that Clarke knew Austrie was in possession of a firearm or that Clarke participated in the shooting of Fritz. We therefore affirm the judgment of the trial court setting aside the jury’s verdict and granting Clarke’s motion for judgment of acquittal.
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March 22, 2011
S. Ct. Civ. No. 2010-0036
The Estate of Martin L. Ludington (Appellant/Plaintiff) v Yusef I. Jaber, et al (Appellees/Defendants)
      The Supreme Court holds that an interest in an ongoing lawsuit is a “thing in action,” which is a species of personal property that can be executed on and subjected to marshal’s sale in the Virgin Islands. Additionally, the Court holds that, on their face, the execution procedures for a “thing in action” in the Virgin Islands do not violate the Due Process Clause of the Fourteenth Amendment. Therefore, the Superior Court erred when it denied the appellant’s request for a writ of execution on appellee’s interest in an ongoing lawsuit. The Supreme Court reverses the Superior Court’s order denying the writ of execution.
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March 18, 2011
S.Ct.Civ.No. 2009-0087
Barry J. Bradford (Appellant/Defendant) vs. Gayle E. Cramer (Appellee/Plaintiff)
      The Court holds that based on the testimony of the parties at trial, there was sufficient evidence to support the Family Court’s decision to award Cramer $6,000 to help liquidate the parties’ credit card debts. Further, the Family Court’s Order requiring Bradford to pay alimony to Cramer in the amount of $1,500 is not void for failing to specify the frequency of these payments because 16 V.I.C. § 347 dictates that “[p]ayments for support shall be made monthly.” The Family Court’s failure to follow the Child Support Guidelines in calculating Bradford’s monthly child support obligation, however, requires that the child support award be vacated and the issue of child support be remanded to the Family Court for a determination under the Child Support Guidelines. Finally, the Court holds that the Family Court’s Order requiring Bradford to provide Cramer and C.B. with rent free housing at No. 85 Miss Bea Road must also be vacated because the Family Court exceeded its jurisdictional authority.
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March 8, 2011
S.Ct.Civ.No.: 2009-0054
Pierre Paul Joseph (Appellant/Plaintiff) v. Hess Oil Virgin Islands Corp. (Appellee/Defendant)
      The Supreme Court holds that an employer can be liable for its negligence to the employees of independent contractors it hires, so long as the employer retains sufficient control over the independent contractor to create a legal duty to exercise that control with reasonable care. Because the testimony presented by the parties to the Superior Court conflicted on the extent of control the employer retained over the independent contractor in question, a genuine issue of material fact existed as to whether the employer retained sufficient control to create a legal duty to the employee of the independent contractor and summary judgment was inappropriate. Therefore, the Supreme Court reversed the Superior Court’s grant of summary judgment.
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March 8, 2011
S.Ct. Civ. No. 2009-0055
Cecil S. Joseph (Appellant/Plaintiff) v. Bureau of Corrections, Officeof Collective Bargaining, Attorney General, Vincent Frazer, Warden, Rosaldo Horsford (Appellees/Defendants)
      The Supreme Court holds that, pursuant to the plain language of section 3711(a) of title 5 of the Virgin Islands Code, the terms of a criminal defendant’s probation cannot create a legally binding duty on the defendant’s employer to continue to provide the defendant with employment. Therefore, the Court affirmed the Superior Court’s dismissal of the appellant’s contempt claim against his employer. Furthermore, the Supreme Court affirmed the Superior Court’s holding that the appellant’s complaint failed to state a claim, because the appellant failed to set out any factual allegations in the complaint which would permit the trial court to determine if the appellant stated a plausible right to relief.
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March 4, 2011
S.Ct. Civ. No. 2008-0049
Hard Rock Cafe and Government of the Virgin Islands, (Appellants/Respondents) vs. Sandra Rosemary Lee, (Appellee/Petitioner)
      The Supreme Court holds that, pursuant to its decision in Government v. Crooke, it possesses jurisdiction, under the collateral order doctrine, with respect to the portion of a Superior Court order holding that the Department of Labor violated the appellee’s due process rights, but lacks jurisdiction over all other issues. With respect to the due process issue, the Supreme Court holds that the Superior Court did not err when it considered the issue for the first time in the appellee’s petition for writ of review because section 306 of title 24 of the Virgin Islands Code provides that, in unemployment benefits context, exceptions to rulings of an administrative law judge not necessary to obtain judicial review. Finally, the Supreme Court affirms the Superior Court’s holding that the DOL violated the appellee’s due process rights because the administrative law judge deprived the appellee of a fair hearing by allowing her former employer to submit evidence on an ex parte basis after the hearing had already concluded.
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March 3, 2011
S.Ct.Crim. No.: 2010-0041
Bruce K. Farrell vs. People of the Virgin Islands
      The Supreme Court holds that the insanity defense is available in both jury and bench trials. However, because the right to raise the insanity defense is personal to the defendant, the Superior Court may not sua sponte impose that defense unless it first finds that the evidence adduced in the proceedings raises a sufficient question as to the defendant’s mental responsibility at the time of the crime, and then conducts an inquiry into (1) whether the defendant is presently competent to stand trial; (2) if so, whether based on present mental capacity, the defendant could intelligently and voluntarily waive the insanity defense, and whether he actually has done so; and, if not, (3) whether the evidence of the defendant’s mental condition at the time of the alleged crime required imposition of the insanity defense. Additionally, the Supreme Court holds that the Superior Court may only take judicial notice of a fact if it represents general knowledge that cannot be reasonably questioned or disputed, and thus, while it can take judicial notice of the existence of a document, it cannot take judicial notice that the contents of that document are true. Thus, the Supreme Court concludes that the Superior Court committed plain error when it sua sponte imposed the insanity defense on a defendant after taking judicial notice of a psychiatrist’s report. The Supreme Court, however, holds that, because the defendant was tried in a bench trial, the proper remedy for the Superior Court’s error is not a new trial, but a new judgment based on the admissible evidence presented at the bench trial.
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February 28, 2011
S.Ct. Civ. No.: 2009-057
Wilbert Williams, M.D., Appellant/Petitioner vs. Government of the Virgin Islands, Appellee/Respondent.
      In addressing the applicability of Superior Court Rule 15(a)’s thirty-day requirement for filing a petition for writ of review, the Court holds that a party is not an “aggrieved party” under Rule 15(a) during the effective period of a temporary restraining order or a preliminary injunction, which enjoins a judicial or quasi-judicial body from enforcing that body’s decision against a party. The Court further holds that the time period during which the temporary restraining order or preliminary injunction is in effect will be excluded from the computation of time toward the thirty-day requirement, which limits the time for petitioning the court for a writ of review under Rule 15(a).
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February 22, 2011
SCt.Crim.No.: 2010-0082
People of the Virgin Islands in the Interest of : J.P., a Minor.
      The Court, applying the traditional rules of statutory construction, holds that the Superior Court may consider juvenile delinquency adjudications that occurred prior to a minor’s fourteenth birthday when determining whether to transfer the minor from the Family Division to the Criminal Division pursuant to sections 2508(b)(2) and (b)(3) of title 5 of the Virgin Islands Code. In addition, the Court holds that, because the offense of unlicensed possession of a firearm would be a felony if committed by an adult and the offense of assault in the third degree—for which the minor was previously adjudicated delinquent—is a “violent crime” as defined by section 2508(c), the Superior Court did not err when it found that the minor’s transfer to the Criminal Division was mandatory pursuant to section 2508(b)(3).
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February 14, 2011
SCt. Crim. No. 2008-0032
Jonathan Phipps vs. People of the Virgin Islands
      The Court holds that, because Virgin Islands law requires that the government disprove beyond a reasonable doubt a defendant’s claim that he acted in self-defense, the Superior Court committed plain error when it failed to expressly instruct the jury on the burden of proof. Moreover, the Court holds that, when a defendant charged with assault in the third degree concedes at trial that he possessed a machete, the Superior Court is not required to instruct the jury on the lesser included offense of simple assault because the possibility that a jury would find that a machete is not a deadly weapon is too remote to require such an instruction.
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