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December 23, 2013
S. Ct. Crim. No. 2012-0132
Tristan K. Joseph v. People of the Virgin Islands
The defendant's convictions for unauthorized possession of a firearm and reckless endangerment are affirmed, while his convictions for third-degree assault and unauthorized use of a firearm during a third-degree assault are vacated and a new trial is ordered on those charges. Superior Court Rule 135 applies to the exclusion of Federal Rule 33, and therefore the Superior Court erred when it applied Federal Rule 33(a) to conclude that it lacked the authority to sua sponte order a new trial. On the facts presented below, a separate burden of proof instruction may have been warranted as to the assault charge and the related charge of using a firearm during commission of an assault, but such an instruction was not necessary to the other charges. Thus, even if the defendant accidentally shot the victim, it has absolutely no bearing on the charges for firearm possession charge and reckless endangerment. Therefore the Superior Court abused its discretion when it ordered a new trial as to those charges. The practice of permitting jury questions, while erroneous, will not warrant reversal unless the questions asked by the jurors directly prejudiced the defendant or violated a rule of evidence, and here the defendant did not suffer any prejudice as a result of the Superior Court’s use of jury questions at trial. The Superior Court unquestionably violated both the United States Constitution and Virgin Islands statutory law when it failed to even notify the parties of a note from the jury, and a fortiori when it issued its own response without allowing for any input. It compounded this error by failing to instruct the jurors personally, instead delegating the task to a marshal, a court employee who may not have necessarily conveyed the answer correctly, if at all. Nevertheless, the Superior Court’s errors in this regard do not constitute per se reversible error, but will only warrant reversal if the defendant suffered prejudice. In this case, the jury’s communication, and the Superior Court’s response, related solely to the first-degree assault charge on which defendant was acquitted and the third-degree assault charge for which the conviction is vacated in this opinion. Likewise, the response to the second note—which it crafted after consulting counsel for both parties—does not warrant reversal since it benefited the defendant. The Superior Court's October 12, 2012 ruling, and its October 23, 2012 Order embodying that ruling, are reversed in part, the oral August 7, 2012 Order is reinstated in part, and the November 29, 2012 Judgment and Commitment is vacated as they relate to the third-degree assault and use of a firearm during a third-degree assault charges, but affirmed in all other respects.
December 17, 2013
S. Ct. Civ. No. 2013-0031
In re Kristen Leigh Reynolds Change of Name
The Superior Court’s denial of a petition for a name change, in which the applicant sought to change her last name to match that of her same-sex partner, the order denying her petition is vacated and the petition is remanded for further proceedings. Under 16 V.I.C. §§ 181 and 182, a name change petition is not required to specifically outline the reasons for the requested change, but the language of § 181 makes it clear that the burden of showing sufficient reasons for the name change is upon on the petitioner. The statute necessarily contemplates an evidentiary hearing by the Superior Court before granting or denying a name change, in order to provide the petitioner with an opportunity to meet this burden. To the extent the Superior Court in the present case required more information before conducting a hearing—such as the petitioner’s partner’s full name—in order to ensure that this partner is aware of the proceedings and has the chance to appear as provided by § 182, the court could have given petitioner an opportunity to amend the petition. Consequently, the Superior Court abused its discretion in summarily denying the name-change petition without providing an opportunity for amendment or the holding of a hearing as required by 16 V.I.C. §§ 181 and 182. The Superior Court’s April 12, 2013 Order is vacated, the name-change petition is reinstated, and this matter is remanded for further proceedings.
December 12, 2013
S. Ct. Crim. No. 2011-0052
Nesta James v. People of the Virgin Islands
Defendant's convictions for attempted murder and a related firearms charge arising from a shooting are affirmed. Admission into evidence of videotape security surveillance footage with a card game superimposed in the middle segment was not an abuse of the trial court's discretion. Defense counsel was able to review, prior to the trial, the version of the videotape played at trial and no Rule 16 violation occurred. The videotape surveillance footage was properly authenticated prior to its admission in evidence by the testimony of two witnesses, and any questions concerning the chain of custody of the videotape would not render it inadmissible, but would be considered by the jury in terms of the videotape’s accuracy and weight. Even if the videotape were inadmissible, there was no showing that it was in any way prejudicial to the defendant, and there was more than sufficient evidence presented at trial independent of this recording, upon which the jury could convict this defendant. Thus there is no basis for finding that the trial court abused its discretion in admitting the videotape. The testimony of witnesses sufficiently established the elements of all the crimes charged when the testimony is viewed in a light most favorable to the People. Thus the evidence at trial was sufficient to uphold the convictions on all counts, and the convictions are affirmed.
December 11, 2013
S. Ct. Civ. No. 2013-0079
In re Disbarment of Kenth W. Rogers, Esquire
Upon a consolidated petition for disciplinary action filed by the Ethics & Grievance Committee requesting approval of a recommendations to, among other things, disbar Kenth W. Rogers—a suspended attorney—as a member of the Virgin Islands Bar Association, the petition is granted. The attorney clearly violated Model Rule 8.1(b) by failing to file an answer with the Committee with respect to certain matters involving a judge and unauthorized practice of law, which caused the panels to proceed on a default basis. The attorney's false statements about another judge in an affidavit accompanying a recusal motion violated Model Rules 3.1, 3.3(a), 3.5(d) and 8.2(d), and filing of the frivolous recusal motion disrupted the Superior Court proceedings so as to violate Model Rule 3.5(d) since it resulted in an unnecessary hearing and other collateral proceedings. In regard to the other judge the attorney's conduct violated Model Rule 8.1(b). He violated Model Rule 3.4(c) on four separate occasions, as well as committed violations of Model Rules 3.5(d), 8.1(b), and 8.4(d). He also engaged in the unauthorized practice of law, in violation of 4 V.I.C. § 443 and Model Rule 5.5, on numerous occasions. Considering  the duties violated;  the lawyer’s mental state;  the potential or actual injury caused by the lawyer's misconduct; and  the existence of aggravating or mitigating factors, an attorney who engages in the unauthorized practice of law in flagrant disregard of a suspension order has breached an exceptionally important duty to the legal system and caused actual injury to the administration of justice, so as to warrant the presumptive baseline sanction of disbarment when combined with a knowing mental state. The absence of any mitigation makes it unnecessary to analyze the aggravating factors. This attorney has an extensive history of formal discipline, and for the foregoing reasons, the petition to disbar him is granted. Since the attorney is presently suspended from the practice of law for prior ethical misconduct, his disbarment shall be effective immediately, and he is directed to reimburse the Ethics & Grievance Committee for the $1,536 in costs it incurred.
December 11, 2013
Arvin D. Joseph Jr. v. People of the Virgin Islands
S. Ct. Crim. No. 2013-0009
Considering an appeal from a conviction of grand larceny which arose from the same act underlying the defendant's robbery conviction, and the sentence imposed for the grand larceny conviction, which was stayed pursuant to 14 V.I.C. § 104, the Court has jurisdiction over the appeal because the stay of the execution of a sentence for a secondary crime arising from the same act does not deprive the Court of jurisdiction, and the Legislature’s intent in enacting 5 V.I.C. § 3673 was to permit stays while cases are on appeal, not to prevent them. In addition, while the trial court erred in drafting the jury verdict forms concerning the grand larceny conviction because no value was assigned to the stolen property upon which that conviction was based, the defendant failed to demonstrate how the jury’s failure to declare a value for that property prejudiced him. The January 13, 2013 Judgment and Commitment, which entered the defendant's convictions for robbery in the first degree and grand larceny, is affirmed.
December 10, 2013
S. Ct. Misc. No. 2013-0035
In re Petition to Amend Virgin Island Bar Association Bylaws
A petition filed by the President of the Virgin Islands Bar Association requesting adoption of various changes to the Bylaws of the Association, including altering its dues structure, is granted, as modified, pursuant to this Court’s exclusive jurisdiction to regulate the legal profession, 4 V.I.C. § 32(e). The Association failed to comply with Supreme Court Rule 205(e) and Article XII of its Bylaws in giving notice of a meeting to consider these changes, but the failure of even a single member of the Association to file a comment or oppose the petition waives application of these provisions and assents to the procedures employed by the Association. Proposed amendments grouped in the petition as “B” and “C” are approved, along with the first clause of Proposed Amendment A.1, raising dues for active members from $200 to $300. However, the remainder of the group “A” proposed amendments would double the dues for government members and triple the dues for inactive members, two groups that the existing Bylaws preclude from serving on the Board of Governors and from voting, including on the proposed amendments, and the second clause of Proposed Amendment A.1 would triple dues for future newly admitted attorneys, who, because they are not yet members of the Association, also had no say in the matter. For reasons set forth in this opinion, Proposed Amendment A.2 is rejected in its entirety, allowing dues for inactive members to remain at $150. Proposed Amendment A.3 is modified to increase dues for government members to $225, and the second clause of Proposed Amendment A.1 is modified to require newly admitted attorneys to pay $75 in bar dues. The Bylaws, as amended, shall go into effect on January 1, 2014, and shall be distributed to all members of the Virgin Islands Bar Association along with this Opinion.
December 6, 2013
S. Ct. Crim. No. 2013-0014
Randy Burke v. People of the Virgin Islands
Defendant's convictions for first degree murder and reckless endangerment are affirmed. The People presented sufficient evidence that a rational jury could find beyond a reasonable doubt that the defendant was the cause of the victim's death, considering the totality of the circumstances and all the direct and circumstantial evidence presented. As a whole, the trial court’s final jury instructions were more than sufficient to address each of the required elements and concepts applicable in this case, and its discretionary decision not to include the defendant's proposed instruction on the same principles was not error. Nor did the trial court abuse its discretion in admitting the testimony of an a physician who treated the victim, who had not been disclosed as planned expert testimony during discovery, since this witness' testimony was not that of an expert and never testified in the form of an opinion regarding a fact that was within the scope of her special knowledge, skill, experience, or training. There was also no error in the trial court’s decision not to inform the jury of its decision to grant the defendant's Rule 29 motion with respect to certain charges prior to the jury's deliberations. Finally, the trial court did not abuse its discretion in denying a defense motion to impeach a government witness by use of her previous conviction for importation of drugs, which did not involve false statements. The trial court's rulings on post-trial motions, and the defendant's convictions are affirmed.
December 5, 2013
S. Ct. Civ. No. 2013-0075
In re Suspension of B. Patricia Welcome, Esquire
In an attorney's appeal from an adverse disposition of the Ethics and Grievance Committee of the Virgin Islands Bar Association , the conduct involved does not warrant any sanction. The appeal is sustained and the Committee's request for disciplinary action is denied. The underlying grievance shall be dismissed. The panel's decision finding a violation of Rule 1.1 of the Model Rules of Professional Conduct is not supported by clear and convincing evidence, and its finding that the attorney violated Model Rules 1.4(a)(2), (3), and (4), which require a lawyer to reasonably consult with the client, keep the client reasonably informed about the status of the matter, and promptly comply with reasonable requests for information, is also rejected except that – based on her own admissions – the attorney failed to keep the client reasonably informed about the status of the matter as required by Rule 1.4(a)(3). Considering the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors, it is concluded that no restitution is warranted in this case, and the applicable standard for this case is ABA Standard 4.64, which provides that an admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in failing to provide a client with accurate or complete information, and causes little or no actual or potential injury to the client. There is no basis in the record for the panel’s implicit finding that the attorney committed a knowing violation or that the client suffered any actual or potential injury—let alone a serious injury—as a result of the attorney's conduct. Upon weighing the aggravating and mitigating factors, no reason is found to depart from the baseline sanction of a private reprimand. However, a private reprimand is inapplicable as a sanction after an appeal or petition for disciplinary action has been filed with the Court, and here the interests of justice warrant imposing no formal sanction.
December 5, 2013
S. Ct. Civ. No. 2013-0093
In re Disbarment of Monique D. McLaughlin, Esquire
In a petition for disciplinary action filed by the Ethics & Grievance Committee of the Virgin Islands Bar Association requesting approval of its recommendation, among other things, to disbar an attorney, the request for disbarment is denied and a 12 month suspension is imposed. This attorney violated Model Rule 8.1(b) through her failure to appear at a scheduled hearing, even after the Committee went beyond minimum requirements and made numerous attempts to provide notice, including service by fax and hand delivery. After review the Committee's analysis of the remaining charges solely to independently determine whether the panel correctly held that these facts constituted ethical violations, it is found that the attorney violated Model Rule 1.3—diligence—by failing to perform work she had been retained to do in a timely manner and violated Model Rule 1.4 through failure to respond to numerous requests for information as to the status of her work and its request for a refund. Likewise, a $3,000 fee charged for certain work was unreasonable in violation of Model Rule 1.5 in light of the allegation which must be accepted as true that she did not perform any work, yet retained the $3,000 in its entirety. The failure to return, or place in an escrow, any portion of the $3,000 retainer constitutes a violation of Model Rule 8.4(c). However the Committee's finding that the attorney violated Model Rule 8.1(a), which prohibits knowingly making a false statement of fact in connection with a disciplinary proceeding, is rejected. Considering the duties violated, the lawyer’s mental state, and the potential or actual injury caused by the lawyer's misconduct a six-month suspension from the practice of law is the appropriate baseline sanction, subject to an upward departure in this case due to the aggravating factor of the attorney's violation of Model Rule 8.1(b), in addition to constituting an independent ethical violation. The attorney is suspended from the practice of law for a 12-month period beginning to run 15 days from the date of this decision, and she is ordered pay $3,000 to the firm which retained her, along with accrued pre- and post-judgment interest. Upon expiration of this suspension, the attorney may petition for reinstatement in accordance with Supreme Court Rule 203(h).
December 3, 2013
S. Ct. Crim. No. 2012-0067
Hector Mercado v. People of the Virgin Islands
Defendant's convictions on charges of first degree robbery and grand larceny are affirmed. The Superior Court did not err in denying a Rule 29 motion for judgment of acquittal. A key witness' identification testimony based on personal observation, in the circumstances, was reliable and not inherently incredible. The evidence presented would allow any rational jury to find that this defendant was guilty of the crimes charged. The trial court erred in sentencing this defendant separately for the first degree robbery and grand larceny convictions because they both arose out of the same act. Thus this case is remanded for the limited purpose of resentencing on the grand larceny charge pursuant to 14 V.I.C. § 104.
December 2, 2013
S. Ct. Civ. No. 2012-0038
Virgin Islands Narcotics Strike Force v. Public Employees Relations Board
In an appeal from proceedings heard by the Virgin Islands Public Employees Relations Board (PERB) and then the Superior Court, an order directing the Virgin Islands Narcotics Strike Force to pay pre- and post-judgment interest a former agent is reversed. The Legislature, by conferring authority upon the PERB to review dismissals, demotions, and suspensions of regular employees—including the power to conduct hearings and order remedies such as reinstatement, back pay, and attorney’s fees—necessarily also vested it with the power to seek judicial enforcement of its decisions. Since 3 V.I.C. § 530a(a) provides a comprehensive framework for a party to appeal an adverse decision of the PERB to the Superior Court, it unquestionably supersedes the general grant of jurisdiction provided for in 4 V.I.C. §76. To allow the former agent to invoke § 76 to seek an interest award from the Superior Court, months after the time to appeal the PERB’s order to the Superior Court had expired, would result in judicial interference with the PERB’s oversight of the Personnel Merit System that is contrary to the clear intent of the Legislature. Since the former agent filed his motion well beyond the 30-day period set forth in 3 V.I.C. § 530a, and motions were made to dismiss this attempted appeal as untimely, the Superior Court was required to issue an order granting summary judgment enforcing the final order of the PERB, as set forth in § 530a(a). The Superior Court’s March 23, 2012 Opinion and Order is reversed and the case is remanded for entry of an order enforcing the PERB’s September 11, 2009 Order.
December 2, 2013
S. Ct. Crim. No. 2011-0073
Cuthbertson Thomas v. People of the Virgin Islands
Defendant’s convictions on nine felony counts arising from a shooting outside of an elementary school are affirmed, and the case is remanded for resentencing in conformity with 14 V.I.C. § 104. The argument that the evidence was insufficient because a key prosecution witness was incredible as a matter of law is rejected. The evidence in this case was well within the province of the jury to sort out and testimony of the challenged witness was not incredible as a matter of law. Testimony by a detective did not violate the Confrontation Clause of the Sixth Amendment since he appeared at trial and the contentious statements were those he made at trial, subject to cross-examination. Any Confrontation Clause violation would, beyond a reasonable doubt, have been harmless in this case since the detective’s testimony was merely cumulative. Testimony about the defendant’s association with another alleged perpetrator met the standard of relevancy under Rule 401 and the conditional relevancy requirements of Rule 104(b). Nor did the Superior Court abuse its discretion or commit plain error in permitting the jury to view the crime scene, and the defendant’s substantial rights were not affected in that process. A photograph of the victim received in evidence was not unduly prejudicial under Federal Rule of Evidence 403 and was probative with regard to the location of the wound, the fact that wound did in fact occur, and the identification of the young man as the person who suffered that injury. The Superior Court’s decision that the photograph’s probative value was not substantially outweighed by any danger of unfair prejudice was neither irrational nor arbitrary and, therefore, was not an abuse of discretion. Addressing sua sponte whether the defendant’s sentences violate 14 V.I.C. § 104, notwithstanding the fact that an individual can be charged and convicted of violating multiple provisions of the Virgin Islands Code, that individual may only be punished for one of the offenses arising out of a single act. Here, the defendant was convicted of assault in the third degree upon the victim as well as child abuse and aggravated child abuse in relation to that victim. Those offenses—while separate from the offenses involving another individual or the public in general—nonetheless arise out of the same course of conduct harming the same victim, namely a stray bullet that inflicted serious injury on the victim. As all three offenses arose from the same conduct towards the same victim, the Superior Court correctly followed § 104 when it concluded that the defendant could not be punished for both child abuse and aggravated child abuse. However, the court failed to follow § 104 when it did not stay punishment for the third-degree assault perpetrated against the victim in addition to aggravated child abuse. This was a plain error that requires reversal, and accordingly the case is remanded for the Superior Court to enter conviction and announce a sentence for each offense of which defendant was convicted, but then stay imposition of punishment where § 104 is implicated.
November 27, 2013
S. Ct. Crim. No. 2012-0072
Keith Francis v. People of the Virgin Islands
No reversible error is found upon review of convictions on two counts of unlawful sexual contact in the second degree based upon testimony given by the minor victim about two incidents at a high school gymnasium some 30 minutes apart, corroborated in part by another minor who heard the victim’s shouts for the defendant to stop his conduct. Under 14 V.I.C. § 1709 the offense of unlawful sexual contact in the second degree occurs when a person over 18 years of age engages in sexual contact with a person not the perpetrator’s spouse who is over 13 but under 16 years of age. There is no merit to the argument that the people failed to prove that the defendant was over 18 years old when the incidents occurred because no birth certificate or similar documentation was offered, since age – like any other element of an offense – may be established entirely by circumstantial evidence, and here testimony by defendant and co-workers concerning his long professional association with them was sufficient. While the prosecutor made improper remarks during closing arguments, vouching for the victim by suggesting that a teenage boy would not lie about being sexually molested by another male, improper remarks by the prosecution during closing arguments are not per se grounds for a new trial and here the Superior Court sustained a defense objection immediately and promptly issued a curative instruction. Considering the brief and isolated statement – a single sentence – which the Superior Court immediately struck from the record in its entirety and remedied by providing both an immediate curative instruction, followed by a general instruction regarding counsel’s arguments immediately prior to deliberations, the prosecutor’s comments were not so egregious as to constitute a denial of due process. The evidence against this defendant, while not necessarily overwhelming, was sufficiently strong to dispel the notion that the jury convicted him simply because of the prosecutor’s fleeting comment. The Superior Court’s curative actions, when combined with the strength of the People’s case, render the error harmless. The July 16, 2012 Judgment and Commitment is affirmed.
November 26, 2013
S. Ct. Crim. No. 2013-0026
Jerome Rawlins v. People of the Virgin Islands
In a renewed appeal from convictions for driving under the influence of an intoxicating liquor in violation of 20 V.I.C. § 493(a)(1), and operating a motor vehicle while having 0.08 percent or more by weight of alcohol in his blood, in violation of § 493(a)(2), after remand for resentencing in accordance with 14 V.I.C. §104, the appellant’s brief raises the same constitutional argument – in many sections word-for-word – as his prior petition for rehearing. As explained in the March 15, 2013 Order denying that rehearing, the arguments could have been raised in the appellate brief on the original appeal, but—for whatever reason—were not raised. A defendant does not receive a second chance to support an argument he failed to support in a first appeal simply because he is resentenced, a rule establishing consistency between civil and criminal appeals in the Virgin Islands, promoting predictability and finality by notifying parties of the matters that remain open on remand and committing the rest to final resolution. Prohibiting a criminal defendant from raising a waived issue on remand for re-sentencing or as part of a second direct appeal would not forever foreclose relief, since the defendant may still seek post-conviction relief, such as through a local or federal petition for writ of habeas corpus. Since the defendant could have, but did not, raise his constitutional challenge to § 493(b)(1) as part of his original appeal, he cannot use the limited remand as a vehicle to reopen that waived issue. Accordingly, the Superior Court correctly declined to consider his argument on remand, and its April 15, 2013 Amended Judgment and Commitment is affirmed.
November 19, 2013
S. Ct. Civ. No. 2012-0142
Todd P. Jung v. Maria Ruiz
In considering an appeal from a decision of the Family Division of the Superior Court in a child custody case granting a mother’s motion to amend a settlement agreement, permitting her daughter to relocate with mother from St. Croix to Sarasota, Florida, while it might have been helpful and even desirable for the Superior Court to have issued additional findings specifying why it determined that it was in the child's best interests to be with her mother over her father, particularly in light of the amount and substance of evidence concerning the child’s relationship with her father and life on St. Croix, as compared to the lack of definitive statements regarding her proposed life in Florida or information pertaining to the relationship between the child and her mother, it still cannot be said that the court arbitrarily placed the child with her mother. Rather, it appears that the court considered the child’s age, her gender, the fact that she enjoyed Florida and that both parents appeared to have done well raising her, coupled with the mother’s changed employment circumstances and the father’s high position of employment, and came to the conclusion that it would be best to allow the child to relocate with her mother. This Court is not in the position to determine, in the first instance, which factors should have been considered by the Superior Court. Instead, on appeal, that court’s conclusion—and whatever considerations were involved—is reviewed to determine whether it constitutes an abuse of discretion. In this case, the record does not indicate that the Superior Court abused its discretion in allowing the child to relocate with her mother, nor does the court’s reasoning appear to be based on clearly erroneous findings of fact. The Superior Court's order modifying the custody arrangement and granting mother physical custody of the child and granting father visitation is affirmed.
November 5, 2013
S. Ct. Crim. No. 2012-0035
Joh Williams v. People of the Virgin Islands
Defendant's convictions for first-degree murder and various other offenses are reversed, and this case is remanded for a new trial. Title 14, § 19 of the Virgin Islands Code, which the Superior Court relied upon to admit three inculpatory prior inconsistent statements, was implicitly repealed when the Legislature passed Act No. 7161 adopting the Federal Rules of Evidence. Under Rule 801(d)(1)(A) prior statemetns may be admitted as substantive evidence to establish the truth of the matter asserted in certain circumstances, but a prior inconsistent statement that does not meet one of the criteria of that Rule 801 may be used only for the purpose of impeaching the witness. In the present case, three witness' initial statements were made at the police station or at a witness' home. Thus the alleged statements made by each witness should not have been admitted as substantive evidence because they were not given under oath at a trial, hearing, other proceeding, or deposition. However, the statements could be properly admitted for impeachment purposes under Federal Rule of Evidence 613. The Superior Court's error was not harmless in this case. The People presented no other witnesses claiming to have seen this defendant fire shots or to have seen him with a weapon. Therefore, there is a reasonable possibility that the improperly admitted statements contributed to the conviction. Accordingly, this defendant entitled to a new trial on all counts. The convictions for first-degree murder, first-degree assault, reckless endangerment in the first degree, and unauthorized possession of a firearm during the commission of a crime of violence are reversed, and this matter is remanded for a new trial.
November 5, 2013
S. Ct. Crim. No. 2012-0028
Jalani Williams v. People of the Virgin Islands
Defendant's convictions on charges of first-degree murder and various other offenses are affirmed, and the case is remanded for resentencing. While Act No. 7161 implicitly repealed 14 V.I.C. § 19, and thus Federal Rule of Evidence 801(d)(1)(A) governed admission of certain prior statements made by trial witnesses, these convictions will not be disturbed on this basis because this defendant – unlike his co-defendant – invited the error, and therefore waived, rather than forfeited, appellate review of that evidentiary decision. When a defendant, through his counsel, induces or encourages the Superior Court to commit an error, the invited error doctrine precludes that error from forming the basis for reversal on direct appeal. In this case this defendant unquestionably invited the admission of the prior inconsistent statements as substantive evidence, as demonstrated by counsel's statements in the record. This defendant not only endorsed application of § 19, but conceded that the People could introduce the prior inconsistent statement as substantive evidence. Accordingly, in light of this defendant's statements and stipulation, the Superior Court’s evidentiary decision will not be reviewed on this appeal, for plain error or otherwise. The contention that the People failed to timely disclose various materials in violation of both Federal Rule of Criminal Procedure 16(d) and the rule announced in Brady v. Maryland, 373 U.S. 83 (1963) is also rejected. While the People were required to provide him with a color copy of the photo array under FED. R. CRIM. P. 16(a)(1)(E), and although the People failed to produce a color copy of the photo until a suppression hearing that occurred shortly before trial, the record reflects that the late disclosure in no way prejudiced the defendant's ability to cross-examine at either trial or the suppression hearing. Under these circumstances, the Superior Court did not abuse its considerable discretion pursuant to Rule 16(d). A Brady violation only occurs if exculpatory information is not disclosed until after trial. and in this case each piece of purportedly “suppressed” evidence was—at the absolute latest—disclosed during trial. Since the defendant was 16 years of age at the time these crimes occurred, the People concede that this matter should be remanded for resentencing in light of the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), holding that a sentence of “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” On remand, the Superior Court must conduct a sentencing hearing in order to consider factors identified in this opinion and in the decision of the Supreme Court of the United States in Miller. The mandatory sentence of life imprisonment without the possibility of parole is vacated and this case is remanded for resentencing. The May 17, 2012 Judgment and Commitment is affirmed in all other respects.
October 31, 2013
S. Ct. Crim. No. 2012-0030
Khareem Hughes v. People of the Virgin Islands
Defendant's convictions for voluntary manslaughter as a lesser included offense of first-degree murder, and for reckless endangerment, are reversed because the evidence was insufficient to permit the jury reasonably to find his guilt of the offenses charged beyond a reasonable doubt. The People failed to introduce any evidence that this defendants fired any shots or even possessed a firearm in this crime. The manslaughter conviction could be sustained if the People presented sufficient evidence that defendant aided and abetted someone else in the commission of a murder, showing that defendant knew of the crime and attempted to facilitate it. Here, however, the People failed to prove that he participated in or had the specific intent to facilitate the murder. There was simply no evidence linking him to planning, facilitating, encouraging, or attempting to participate in the murder. The conviction for reckless endangerment also fails for insufficient evidence since it was based on a theory of firing a gun in a public place but there was no evidence indicating that the defendant possessed a firearm or fired any shots The defendant's convictions of the lesser included offense of voluntary manslaughter and reckless endangerment are reversed.
October 31, 2013
S. Ct. Crim. No. 2013-0062
Richie Fontaine v. People of the Virgin Islands
Considering a "Motion for Reconsideration" filed by an attorney in response to an order issued by the Chief Justice of this Court denying a motion filed by the Office of the Territorial Public Defender seeking to set aside a prior order appointing that Office to represent a criminal defendant in his appeal of multiple convictions including voluntary manslaughter, which is construed as a motion for review by the entire Court pursuant to Supreme Court Rule 21(c), the request for such review is granted, but the motion to set aside the appointment is denied. Applying the rule of the last antecedent in construing the language of 5 V.I.C. § 3524, good reason exists to limit the Office of the Territorial Public Defender’s authority to decline representation solely to those “other remedies before or after conviction.” Therefore, under this statute, the Office lacks the discretion to simply decline to represent a defendant at trial or on direct appeal. The arguments concerning excessive public defender caseloads, which the moving attorney contends prevent him from adequately handling representation of the defendant in the instant case, are not appropriate for the Court's consideration, because the Legislature—not the Court—controls and administers the Office of the Territorial Public Defender through the Public Defender Administration Board, which specifically possesses the authority to, inter alia, promulgate rules and regulations governing employees' rights and relations under 5 V.I.C. § 3520(b). No evidence indicates that requiring the Office of the Territorial Public Defender to undertake this representation would result in the defendant receiving ineffective assistance of counsel on appeal, and no valid basis is found to allow the Office to withdraw. Accordingly, the Office of the Territorial Public Defender is directed to continue its representation of the defendant on appeal.
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October 30, 2013
S. Ct. BA. No. 2013-0148
In re Application of Ryan A. Shores and William Wehrum
In petitions for the pro hac vice admission of two attorneys employed by a large law firm, as well as an opposition filed by the Committee of Bar Examiners, the petitions are denied. While these two attorneys have not previously been granted pro hac vice admission in the Virgin Islands, other attorneys from the same large firm have previously been admitted pro hac vice 29 times in proceedings before the Superior Court and the District Court. Under Rule 201(a)(4) no attorney or law firm may appear pro hac vice in more than a total of three causes, and that extended practice on a pro hac vice basis is expressly prohibited. This rule requires that prior pro hac vice admissions of individual attorneys from this firm be imputed to the two applicants here. An attorney may not appear pro hac vice if other attorneys from the law firm that employs the attorney have been granted such admission on three or more prior occasions. Consequently, the petitioning attorneys in this instance do not qualify for pro hac vice admission. The heavy burden of showing grounds for waiver of Rule restrictions for valid and extraordinary reasons has not been met, and requiring the two applicants to comply with the three admission rule does not deny admission arbitrarily and for a reason unrelated to the essential purpose of the rule. The petitions are denied.
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October 28, 2013
S. Ct. Civ. No. 2011-0026
Eliston George v. Julius Wilson, Director of the Bureau of Corrections
The Superior Court's order denying a petition for writ of habeas corpus is affirmed. This application follows a protracted filing history multiple motions and duplicate petitions for the writ after petitioner's conviction in 1978 for first degree murder and weapons offenses. This seventh petition recycles issues and arguments already reviewed. Under the abuse of the writ doctrine, a court is not required to consider a subsequent habeas corpus petition if the claim could have been raised earlier unless the petitioner can show “cause and prejudice,” that a fundamental miscarriage of justice would result from a failure to entertain the claim a successive petition would be considered. Here the People have met their the burden of pleading abuse of the writ. The prior appeals and writ history demonstrate that claims based on improper jury instructions are precluded from being re-litigated here. Petitioner's claim that the Superior Court erred in declining to address the proffered statement of an alleged eyewitness, was raised in a 2006 petition, and he did not appeal the denial of that petition. The Superior Court did err when it construed the petitioner's new evidence claim in this habeas corpus petition as a motion for a new trial and dismissed it as untimely under its Rule 135. A local rule may not be used to deny a litigant’s due process or substantive rights, and there is no time limit under the habeas statute or case law restricting a petitioner from raising a claim of new evidence. However, this claim will not be reviewed because petitioner has not provided this Court with the affidavits necessary to evaluate this claim of new evidence, as was his burden. The Superior Court’s March 25, 2011 Order denying the petitioner's seventh petition for writ of habeas corpus is affirmed.
October 25, 2013
S. Ct. Civ. No. 2010-0045
Paul Pichierri v. Denns Crowley
In a suit alleging breach of contract, breach of the duty of good faith and fair dealing, and tortious interference with a contract, all relating to a terminated employment relationship, the Superior Court did not abuse its discretion in concluding that the statute of limitations should not be subject to equitable tolling on the facts of this case, which involved a prior litigation between the parties. An exhaustive review of the evidence submitted discloses that the plaintiff's actions were not reasonable or in good faith, supporting the decision of the Superior Court to refrain from equitably tolling the statute of limitations. The Superior Court's grant of the defendant's motion for dismissal of this case with prejudice, is affirmed.
October 25, 2013
S. Ct. Civ. Nos. 2013-0051; 2013-0076
In re Suspension of Sharon Eichenaur-Schoenleben
In matters before the Court pursuant to a petition for disciplinary action filed by the Ethics & Grievance Committee of the Virgin Islands Bar Association, requesting suspension of a member of the bar of the Virgin Islands, and transfer of the attorney to disability inactive status by consent, the petition for transfer is rejected, and the petition for disciplinary action is granted, as modified. Pursuant to Supreme Court Rule 207.6.24, a lawyer who possesses a physical or mental condition that adversely affects the ability to practice law may be transferred to disability inactive status. In this case, however, the petition to transfer to disability inactive status and to indefinitely defer a ruling on the petition for disciplinary action is not properly before this Court. Rule 207.6.24, by its own terms, does not entitle a respondent to an automatic stay of indefinite duration merely because the respondent alleges an inability to defend. Rather, the Committee must hear evidence and determine whether that claim is valid or invalid. In this case neither petition nor the accompanying “Offer to Consent” even identifies the disability that purportedly renders the attorney unable to defend herself in these proceedings or to practice law. The Committee found that the attorney violated Model Rules of Professional Conduct 1.1, 1.3, and 1.4. In addition, because the attorney has not filed any documents with this Court she has violated Model Rule 8.1(b) as well. All of the factual allegations are accepted as true and, upon review, those facts rise to the level of ethical violations. Considering the duties violated, the lawyer's mental state; the potential and actual injury caused by the lawyer's misconduct, and the multiple aggravating factors which heavily outweigh the single mitigating factor, the attorney shall be suspended from the practice of law for 12 months, required to make restitution, and to reimburse the Committee for the costs it has, and will, incur in conjunction with this matter
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October 24, 2013
S. Ct. Civ. No. 2013-0034
Scott Fuller v. John A. Brown
In an attempted appeal of a default judgment entered by the Magistrate Division in a tradesman's suit for payment relating to a construction project, the Appellate Division's orders dismissing the appeal for failure to prosecute are vacated and reversed. When a Superior Court rule governs the same subject matter, a federal rule cannot apply to proceedings pursuant to Superior Court Rule 7 because that would render the Superior Court rule wholly superfluous. In this case the motion arose under Superior Court Rule 322.5(b)(2), which modifies Rule 322.1(h)(2)(B), and authorizes the Appellate Division to consider a motion to set aside a dismissal order and to reopen a matter that is dismissed upon a showing of good cause or excusable neglect. Here, however, rather than analyzing the factors on the record, the court essentially applied a per se rule that failure to timely to file a transcript request form requires dismissal, and rejected the appellant's claim that he timely filed this form on the grounds that it lacked a Superior Court date stamp. The overwhelming, uncontradicted evidence in the record indicates that the appellant met his burden of demonstrating good cause or excusable neglect for setting aside orders dismissing this appeal. Therefore, the Superior Court's orders confirming dismissal of the appeal for failure to prosecute are reversed and vacated, and the case is remanded to the Appellate Division so that it may consider the appeal of this default judgment on the merits.
October 15, 2013
S. Ct. Crim. No. 2012-0078
Willis Todmann v. People of the Virgin Islands
Several convictions arising from the defendant’s obtaining unauthorized additional salary payments while serving as an official of the Virgin Islands Government Employees’ Retirement System are affirmed. Jury questions allowed by the trial court in the examination of witnesses in the absence of Superior Court rules regulating this practice, while subject to some procedural safeguards, were error in this case, but that error was harmless since the questions were limited, controlled, submitted in writing, and scrutinized by the trial judge. They did not prejudice the defendant or violate any rule of evidence. It was not error to refuse to excuse a juror who tendered a question to be asked of a witness concerning a forged or fraudulent document since juror partiality is not presumed, and there is no indication that – even if this juror made a premature conclusion of guilt – it was based upon anything other than what was presented at trial. Accordingly, there could not have been any prejudice, and the defendant’s constitutional right to an impartial jury could not have been violated. Interpreted in a light most favorable to the People, there was sufficient evidence for a reasonable jury to find defendant guilty beyond a reasonable doubt on charges of knowingly submitting a memorandum to payroll for processing, knowing its authorization to be false, with intent to defraud the Retirement System of a salary not authorized by the proper officials, and to find him guilty of submitting a forged assurance or obligation of money in violation of 14 V.I.C. § 791(2), falsifying a proposed budget in an attempt to defraud, and fraudulently concealing that he was receiving two salaries in violation of 3 V.I.C. § 724(a). In this case it is immaterial whether the defendant believed he was taking rightful compensation for extra services performed, since he knowingly and unlawfully gave himself additional compensation couched as a “salary” without any lawful authorization from the Retirement System’s board. However, the evidence was insufficient for a reasonable juror to convict the defendant on a count charging him with obtaining money by false pretenses involving use of a corporate credit card issued on the credit of the Retirement System without authorization violation of 14 V.I.C. § 834(2). While the evidence supported a finding that defendant surreptitiously obtained the credit card, it did not show that any damages occurred as a result of this fraud in the form of losses suffered by another party or receipt of any benefit by the defendant. Thus the conviction on the count related to this credit card is reversed, and defendant’s convictions on all other counts are affirmed.
October 11, 2013
S. Ct. Civ. No. 2012-0085
In re Estate of Ralph A. George
In proceedings after a decedent died intestate, the Appellate Division of the Superior Court had authority to review orders and opinions of the Family Division elating to its award of extended spousal maintenance and support to the widow, matters that were later subject to a final adjudication by the Magistrate Division. However, the Family Division and the Appellate Division erred under 5 V.I.C. § 353 in requiring the estate to provide spousal support for more than one year after the filing of the inventory. Chapter 21 of title 15 as a whole does not authorize support payments of unlimited duration. The Appellate Division’s July 27, 2012 Order as well as the Family Division’s October 25, 2007 Order and February 20, 2009 Opinion are reversed, and the Magistrate Division’s February 17, 2010 Final Adjudication is vacated. The case is remanded to the Magistrate Division so that it may issue a new adjudication in light of the fact that the widow was only entitled to collect spousal support payments for one year from the filing of the inventory.
October 11, 2013
S. Ct. Civ. No. 2011-0085
Caroley Brunn, et al. v. Joel Dowdye et al.
The Superior Court’s order dismissing a plaintiff's complaint against the Government under the Virgin Islands Tort Claims Act, 33 V.I.C. §§ 3401-17, is affirmed. In this suit for wrongful death and other claims against a police detective and the Government arising out of a shooting death, the Superior Court correctly questioned whether the statute’s requirements were satisfied. Since it raised and adjudicated this issue sua sponte, it committed error by depriving plaintiff of her right to be heard, but such error was harmless here. Plaintiff received an opportunity to respond to the Government’s motions for summary judgment and for reconsideration, both of which asserted the same argument the Superior Court ultimately relied on in dismissing her complaint: that committing premeditated murder is outside the scope of a police officer’s employment. Given admissions in plaintiffs' complaint as to the nature of the detective's conduct, and taking judicial notice of his first-degree murder conviction, as a matter of law the detective could not have acted within the scope of his employment when he killed the victim. Accordingly, it was not error to hold that this intentional murder was outside of the scope of the detective's employment as a matter of law, with dismissal of plaintiffs' claim against the Government based on respondeat superior. Given the absence of an intentional tort exclusion limiting the extent of the Virgin Islands Government’s waiver of immunity in § 3408(a), the Superior Court also committed legal error in holding that plaintiffs' claim notice was insufficient in failing to allege independent negligence on the part of the employee’s supervisor irrespective of their employment relationship, but its dismissal of the negligence claims on this basis was also harmless error since plaintiff's notice to the Government failed to comply with basic requirements of the VITCA in 33 V.I.C. § 3409(b). While it was not necessary to allege each of the elements necessary to survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or to provide a precise legal theory upon which recovery is sought, her notice was required to set forth more than mere conclusory allegations of the Government’s liability. Here the notice stated plaintiff's intention to bring a claim for negligent hiring, retention, supervision, and training, but it did not state a single action or omission by the detective's supervisors that gave rise to this claim. At the very least, the notice must provide a description of the particular manner in which the Government was allegedly negligent. Therefore, the Superior Court’s dismissal under this theory of liability was also not reversible error. The Superior Court’s October 20, 2009 Order dismissing this complaint against the Government with prejudice is affirmed.
October 7, 2013
S. Ct. Civ. No. 2013-0030
Hani Khalil v. Guardian Insurance Company
An appellant, who failed to pursue an appeal that was previously commenced after a July 2012 summary judgment entered against him in an insurance dispute, cannot challenge that judgment in an appeal from April 2013 orders awarding attorney’s fees and prejudgment interest against him. The present notice of appeal, and an amended notice, only identified the 2013 orders as the rulings being appealed, but the appellant devotes the entirety of his brief to challenging the 2012 judgment. Post-judgment proceedings do not change the date of the original final judgment unless a statute or court rule tolls the time to file a notice of appeal. The appellant cannot not use appeal of the attorney’s fee judgment as a means to challenge the underlying judgment on the merits. Under V.I.S.CT.R. 5(a)(4), which identifies the motions filed in a civil case that extend the time for filing a notice of appeal, motions for recovery of attorney’s fees and prejudgment interest do not toll the time to appeal an otherwise final judgment. By failing to prosecute his prior appeal, the appellant waived his right to have direct review the summary judgment award. To allow appeal of the April 2013 fee and interest orders as a mechanism, in effect, to disregard the earlier dismissal would be contrary to long-established appellate practices. And since the appellant failed to brief the only issues that he could properly raise as part of the present appeal, the April 2013 orders are summarily affirmed.
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October 4, 2013
S. Ct. Crim. No. 2011-0032
Nesta James v. People of the Virgin Islands
The defendant’s convictions for several crimes, including aiding and abetting first degree murder, are affirmed. The trial court did not err in denying his Rule 29 motion for judgment of acquittal because the evidence was sufficient to support conviction. Under 14 V.I.C. § 11(a) the People were only required to present evidence that defendant committed the elements of murder and the other crimes for which he was charged, and proof that he was “aided and abetted by another” is not a required element for his conviction under the first degree murder charge. The defendant’s Sixth Amendment right to compulsory process was not violated when the trial court prohibited him from calling certain individuals to testify, in light of the circumstances under which they refused to testify pursuant to the Fifth Amendment. No request was made before trial to grant any of the witnesses immunity, and no showing has been made as to why immunity should have been granted to any of them. The trial court did not unreasonably deny the defendant’s constitutional right to present evidence in his defense. Defendant’s rights under the Equal Protection Clause of the Fourteenth Amendment were not violated by the People’s exercise of peremptory challenges during jury selection, since almost all prospective jurors in this case were black and the claim that the striking of the jurors was racially motivated under these circumstances is baseless, and the people gave adequate race-neutral reasons for its strikes. The trial court did not err in failing to grant defendant a new trial or declare a mistrial because the prosecutor elicited certain allegedly prejudicial evidence and made certain statements during closing arguments, and curative jury instructions were given. Statements made in closing by the prosecutor about defendant possibly stepping over the dead body of the victim were prejudicial and no curative instruction was given, but such error was did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings and did not affect the defendant’s substantial rights in light of the evidence presented in this case. Hence that error was harmless. The convictions are affirmed.
September 30, 2013
S. Ct. Civ. No. 2013-0040
Fathi Yusuf, et al. v. Mohammad Hamed, et al.
In a dispute relating to the alleged partnership of two families operating supermarkets in the Virgin Islands, in which a receiver was appointed and substantial funds are held under order of the United States District Court after tax evasion charges were brought, the Superior Court did not err in granting a preliminary injunction to prevent interference with operation of the supermarkets, ordering the families to maintain joint management of the stores, and requiring that any distribution of funds be approved by a representative for both sides. The evidence was sufficient to support the Superior Court’s conclusions that the movant has shown a reasonable probability of success on the merits on partnership theories, and would be irreparably injured by denial of injunctive relief due to steps taken in the management of the businesses presently being co-managed, and that granting this preliminary relief will not result in even greater harm to the nonmoving party or harm the public interest. Thus the Superior Court’s April 25, 2013 Order granting a preliminary injunction is affirmed. However, Federal Rule of Civil Procedure 65(c) provides that a court may issue a preliminary injunction only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party later found to have been wrongfully enjoined or restrained. The Superior Court abused its discretion in ordering the posting of a $25,000 injunction bond in this case, treating the moving party’s interest in some $43 million of profits held at a financial institution as additional security. The amount of those funds that may be available is uncertain and they are outside of the control of both the moving party and the Superior Court, since access requires an order of the United States District Court available only under limited circumstances. The case is remanded for the Superior Court to reconsider the sufficiency of the injunction bond to be required in this case.
September 30, 2013
S. Ct. BA. No. 2013-0036 and S. Ct. Civ. No. 2013-0065
In re Rafael Gonzalez, Timothy Ernest v. Kenneth Morris, et al.
In relation to an application to admit an attorney pro hac vice, the prior order granting such admission is revoked, and the matter is referred to the appropriate authorities. After the entry of the order granting pro hac vice admission, explicitly conditioned “upon execution of the Oath with the Clerk of the Court,” the attorney filed a notice of appearance, and appeared as counsel in the matter at status conferences and in motion practice, but never executed the Oath. His pro hac vice admission therefore has never become effective. While this Court may, in appropriate cases, refer such matters to the Ethics and Grievance Committee, the Committee of Bar Examiners, or the Unauthorized Practice of Law Committee, issues relating to whether pro hac vice admission should be granted, denied, or revoked are ordinarily resolved by this Court in the first instance when the underlying facts are undisputed and this Court need only consider a pure question of law. On the present facts, more than sufficient reason exists to vacate the July 15, 2013 Order in S. Ct. BA. No. 2013-0036, and deny the petition to admit this attorney pro hac vice. However, since the underlying conduct may potentially warrant action other than the denial of his pro hac vice admission, this matter is referred to the Virgin Islands Attorney General, the Unauthorized Practice of Law Committee, and the Office of Disciplinary Counsel for the purpose of taking any additional action which they may deem appropriate.
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September 25, 2013
S. Ct. Civ. No. 2011-0111
Camira Joseph v. Inter-Ocean Insurance Agency, Inc.
In an insurance dispute, the Compulsory Automobile Liability Insurance Act—20 V.I.C. § 701 et seq.—is a statutory omnibus clause that supersedes and invalidates any conflicting policy provision, including the named driver exclusion in the automobile liability insurance policy at issue in the present case, which excluded liability coverage for anyone under the age of 25 operating the vehicle. That exclusion is invalid, and coverage must be extended for the compulsory policy limits, regardless of whether that driver may be excluded by the terms of the insurance policy. The insurer – which initially paid damage claims relating to an accident caused by a permissive user of the vehicle under age 25 – had no right to seek reimbursement from the named insured under equitable subrogation principles because subrogation can arise only with respect to the rights of an insured against third persons to whom the insurer owes no duty, and an insurer cannot recover by means of subrogation against its own insured. Nor can the insurer receive indemnification from the insured on a breach of contract theory. Accordingly, the Superior Court erred in granting the insurer's motion for summary judgment to the insurer.
September 25, 2013
S. Ct. Civ. No. 2012-0018
Caribbean Healthways, Inc., et al. v. Gerro James, et al.
In a dispute over use of a right of way on commercial property involving four adjacent parcels of land, previously reviewed by this Court in Caribbean Healthways, Inc. v. James, 55 V.I. 691 (V.I. 2011), the injunction entered by the Superior Court on remand from that decision is internally inconsistent and remains broader than necessary to restrain any impermissible conduct with regard to use of trailers longer than 20 feet. Thus the permanent injunction granted is overly broad, and the February 2, 2012 Order is reversed. This case is again remanded to the Superior Court so that it may narrow the scope of the permanent injunction.
September 25, 2013
S. Ct. Civ. No. 2010-0098
David Gould v. Mohammed S. Salem and Zaina Z. Salem
In property foreclosure litigation, after clarification on remand of the Superior Court’s order for the return of certain escrowed moneys to the purchasers/debtors pursuant to Federal Rule of Civil Procedure 60(b)(5), which provides that a court “may relieve a party . . . from a final judgment” if “the judgment has been satisfied, released or discharged,” the Superior Court did not misinterpret this provision. While this Rule does not vest the trial court with plenary power to reduce a monetary judgment by re-litigating issues previously decided. the uncontradicted evidence in the present record establishes that $13,784.73 of the $74,681.69 monetary judgment was earmarked for payment of unbilled property taxes, and that the seller/creditor has not paid—and never will have to pay—any of those taxes as a result of the purchasers’ successful redemption of the properties. Thus the Superior Court properly granted relief under Rule 60(b)(5). The December 7, 2010 Order, as clarified by the December 13, 2012 Opinion, is affirmed.
September 20, 2013
S. Ct. Civ. No. 2012-0075
Felipe Garcia v. Edna M.T. Garcia
In a divorce and equitable distribution proceeding in which the wife seeking divorce asked the court to divide five parcels of real property equally, and the Superior Court ultimately concluded that it lacked jurisdiction to divide all but one of the properties as a marital homestead, the portion of the Amended Decree relating to equitable distribution of that parcel is vacated. The Family Division of the Superior Court has subject matter jurisdiction over the marital homestead and the personal property of the couple, but not over any other real property. In this case the Superior Court failed to issue sufficient factual findings or conclusions of law to justify its conclusion that it has jurisdiction over one of the parcels as a marital homestead. It cannot be determined without additional findings of fact whether a marital homestead exists that the Superior Court may equitably distribute as part of the divorce action. The possible abandonment of parcel and a four year gap between the wife’s moving out and filing for divorce was not explained. Nor did the Superior Court make any factual findings on the claims of abuse offered to explain the departure of the wife. This matter is remanded to the Superior Court so that it may resolve the jurisdictional question concerning the existence of a marital homestead, including making the factual findings necessary to enable meaningful appellate review. While the Superior Court faced the issue of whether the argued marital homestead encompassed all of the particular parcel, or only a single apartment within the larger structure, its ultimate holding (without citing to any relevant legal authority or even acknowledging the issue) that the parcel qualified for equitable distribution in its entirety was error. Consequently, on remand the Superior Court should in addition address whether it only has subject matter jurisdiction to equitably distribute the portion of the property that was actually occupied by the parties. Further, to guide the proceedings, and considering the history of case law and legislative amendment of the Code, it is concluded that the phrase “equity of the case” in section 33 V.I.C. § 2305(d) does not encompass marital fault, especially in light of the 1973 amendments. Therefore, in the event the Superior Court determines that it possesses jurisdiction to equitably distribute all or part of the contested parcel, it is directed to do so without any regard to marital fault. That portion of the July 20, 2012 Amended Divorce Decree vesting the former wife with a 20 percent equitable interest in a particular parcel is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this Opinion.
September 20, 2013
S. Ct. Crim. No. 2010-0034
John J. Gumbs v. People of the Virgin Islands
The defendant’s convictions for violating the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 600 et seq. (“CICO”) and obtaining money by false pretenses, are affirmed. To sustain a conviction under CICO, the People must prove beyond a reasonable doubt that a defendant committed at least one felony, and the People met their burden in this case with proof of embezzlement or obtaining money by false pretenses constituting a pattern of criminal activity. There was overwhelming evidence that, on multiple occasions, he collected monies greatly in excess of $100 and never transmitted the funds to the insurance companies involved, more than sufficient evidence to establish a pattern of criminal activity under CICO. While the requirement of 5 V.I.C. § 3636 that in cases charging larceny, embezzlement, or obtaining by false pretenses, the jury, on conviction, shall ascertain and declare in the verdict the value of the property was not met in this case, this does not affect a defendant’s substantial rights if the evidence at trial establishes that the value of the stolen property exceeds the amount set forth in the pertinent statute and the judge properly instructs the jury on the elements of the charged offenses. Here, the overwhelming, uncontradicted evidence in the record—none of which the defendant even attempted to dispute—established that the amount of funds he falsely obtained greatly exceeded $100, and the Superior Court correctly instructed the jury that, to convict him of obtaining money by false pretenses, it must find beyond a reasonable doubt that the value of the funds exceeded $100. Accordingly, the jury’s failure to declare the value of the money falsely obtained did not affect the defendant’s substantial rights, and therefore does not warrant reversal. The June 15, 2010 Judgment and Commitment is affirmed.
September 19, 2013
S. Ct. Crim. No. 2011-0104
Kaseem Bruno v. People of the Virgin Islands
In the case of a defendant who pled guilty to aggravated child abuse in the death of his two-month-old daughter but later sought to withdraw that plea, the Superior Court erred in ruling on the motion to withdraw the guilty plea by failing to consider whether the defendant met his burden in asserting innocence, whether he had given sufficient reasons to withdraw the guilty plea, and what prejudice the People would face if the defendant were allowed to withdraw his guilty plea. But in this case that error was harmless because the defendant failed to meet his burden of establishing a fair and just reason for withdrawal of the plea applying these factors. Accordingly, the Superior Court’s November 8, 2011 Judgment and Commitment is affirmed.
September 17, 2013
S. Ct. Civ. No. 2013-0012
William Kelley v. Government of the Virgin Islands, Office of the Tax Assessor
In an appeal from the grant of summary judgment by the Superior Court in favor of the Virgin Islands Government, on the ground that the six year statute of limitations in 5 V.I.C. § 31 applicable to civil actions does not apply to the Government’s collection of delinquent property taxes, the judgment is affirmed. As the Government does not collect delinquent property taxes through “civil action”—as the Virgin Islands Code defines that term—the statute of limitations does not run against the Government’s collection of property taxes. Title 33 imposes no limitations period on the Government’s collection of delinquent property taxes, which in this case went back 13 years, and thus the Superior Court did not err in granting the Government’s cross-motion for summary judgment. The plain language of title 5, subtitle 1 prevents 5 V.I.C. § 31 from applying to administrative actions taken outside of court, and where a statute is unambiguous it is not the function of this Court to substitute its judgment for that of the Legislature. Consequently, the Superior Court did not err in granting summary judgment to the Government. Accordingly, the Superior Court’s January 31, 2013 Order granting summary judgment to the Government is affirmed.
September 16, 2013
S. Ct. Crim. No. 2012-0122
Anselmo Farrington v. People of the Virgin Islands
After an evidentiary proceeding on remand from this Court, the defendant’s challenges to the Superior Court’s finding that his Sixth Amendment right to a public trial was not violated in the prior trial on robbery and grand larceny charges is affirmed. The evidence presented does not illustrate that the public, namely defendant’s family, was unable to insure by their presence that he was treated fairly. Testimony showed that the public was able to witness the examinations of each witness by both parties. Although defendant’s friends and family were not allowed to enter the courtroom for approximately 15-20 minutes when the courtroom was full, his rights were not violated. The Superior Court’s denial of a hearing on the defendant’s separate claim of ineffective assistance of counsel was not inconsistent with this Court’s decision in Codrington v. People, 57 V.I. 176 (V.I. 2012), which is limited to claims presented pre-trial and hence is simply inapplicable to this case where the claims were first raised months after the trial. Nor does defendant identify any specific omissions or acts of his counsel that would suggest performance below the professionally acceptable level. The purported lack of adequate compensation is insufficient on the facts and circumstances of this case to support a claim of ineffective assistance, and therefore cannot be the basis of a reversal. The judgment is affirmed.
September 16, 2013
S. Ct. Misc. No. 2012-0016
In re Wilson J. Campbell
A petition filed by the Unauthorized Practice of Law Committee of the Virgin Islands Bar Association (UPLC) alleging that a New Jersey attorney engaged in unauthorized practice of law while employed with the Virgin Islands Department of Justice is granted as modified. Title 4, § 443 of the Virgin Islands Code prohibits the unauthorized practice of law and provides that this Court may, through court rule, modify the statutory definition of unauthorized practice of law, Rule 203 expressly states that the Model Rules of Professional Conduct only supersede previously-promulgated court rules pertaining to disciplinary enforcement, and does not purport to modify the statutory definition of unauthorized practice of law. Thus, the UPLC committed no error when it identified § 443 as the applicable legal authority. Authorization to practice law is a prerequisite to performing the duties of an Assistant Attorney General. Constitutional challenge to § 443, both on its face and as applied here, are rejected because the law is not impermissibly vague in all of its applications, and virtually all of the charges against this attorney stem from conduct that is explicitly prohibited. The clear and convincing evidence standard applies in an unauthorized practice of law proceeding, and de novo review is accorded to factual findings and conclusions of law of the UPLC. The record here establishes, by clear and convincing evidence, that the attorney exercised complete and apparently unfettered control over plea negotiations in felony and gun cases, and other significant prosecutorial decisions. He violated the prohibition on unauthorized practice law in making several court appearances, presenting legal arguments and other statements to the Superior Court calculated to persuade the judge, assuming the role of advocate, and by giving legal advice to law enforcement personnel. The attorney also made both written and oral representations holding himself out as rendering service as an attorney who may practice law in the Virgin Islands, issuing letters on Department of Justice letterhead threatening arrest and criminal prosecution, and using the “Esq.” honorific and the “Chief of the Criminal Division” job title. His general use of “Esquire,” “Esq.,” and “Attorney” in emails and other correspondence, even when not in conjunction with specific legal matters, held himself out as rendering legal services, which constitutes unauthorized practice of law. The fact that the attorney is licensed to practice law in New Jersey is irrelevant since these communications occurred in, and were clearly targeted to, residents of the Virgin Islands. Considering the totality of the circumstances, leniency is warranted since the relationship between Model Rule 5.5, § 443, and the Supreme Court Rules was not always clear. However, the attorney was on notice that his conduct violated Virgin Islands law, and the request for a declaratory judgment that he engaged in the unauthorized practice of law in the Virgin Islands, and an order permanently enjoining him from engaging in further unauthorized practice, is granted. In addition, the attorney shall pay a $1500 fine to the Government of the Virgin Islands and reimburse the Virgin Islands Bar Association for the costs of the UPLC investigation.
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September 13, 2013
S. Ct. Crim. No. 2011-0030
Jamal D. Todman v. People of the Virgin Islands
The conviction of a defendant who was charged with aiding and abetting in the unlawful possession of a firearm in violation of 14 V.I.C. § 2253(a) and 14 V.I.C. § 11(a) is reversed. The evidence was insufficient to demonstrate that he aided and abetted anyone in the crime charged. The inartful charging of this defendant as an aider and abettor – when the People’s case-in-chief demonstrated that he was possibly the sole and primary actor in the crime – imposed upon the People a specific burden of proof which the judge embodied in the jury instructions, to which the People did not object, thus making the obligation the law of this case. Although an aider and abettor may ordinarily be charged and convicted as a principal, the jury in this case was instructed that it must specifically find that the defendant aided and abetted another person as an element of the crime charged in order to convict him. Because the evidence was insufficient for a reasonable jury to find that this defendant aided and abetted anyone in the unauthorized possession of a firearm, his conviction is reversed.
September 13, 2013
S. Ct. Crim. No. 2011-0071
Richie Fontaine v. People of the Virgin Islands
The defendant’s convictions on nine felony counts arising from a shooting outside of an elementary school are affirmed. The jury could rationally have accepted the testimony of one of the victim eyewitnesses, whose testimony conflicted somewhat with that of another eyewitness. The evidence presented was not incredible as a matter of law and the jury’s determination that it was credible is accepted. A reasonable jury could infer, based on the evidence, that this defendant intended to commit assault and murder, and that he did so while lacking authorization to possess a firearm; thus there was sufficient evidence to convict. The Superior Court did not commit reversible error in denying the defendant’s motion to strike the testimony of a detective. Although the People’s actions are disturbing—putting on testimony that it knew could only be impeached by opening the door to inadmissible testimony, and doing so without first apprising the Superior Court or the defendant—the issue whether defendant’s Sixth Amendment rights were violated is not reached because any such violation would have been harmless beyond a reasonable doubt since the detective’s testimony was cumulative did not implicate the main issue—whether the shooters were correctly identified. In this case, security measures at a site view were reasonable and the trial court took steps to minimize any prejudice in an instruction to the jury as soon as they returned to the courtroom, explaining the purpose of the presence of marshals and their weapons, and the fact that no inference adverse to the defendant was permitted. Thus the Superior Court committed no error in this regard, much less a plain one. Defendant’s convictions are affirmed. Although the legality of the sentences was not raised on this appeal, 14 V.I.C. § 104 provides that an individual may only be punished for one of the offenses arising out of a single act. The multiple-victim exception applies here because the defendant’s act of violence—opening fire on a vehicle in the vicinity of an elementary school—was a singular course of conduct that resulted in harm to two individuals and also risked harming the public in general, but § 104 nonetheless precludes imposing multiple punishments for multiple offenses that arise out of the same conduct and harm the same victim. Here the Superior Court failed to follow § 104 in imposing punishment for certain of the offenses and – even though the court provided for the sentences to run concurrently – the plain error that requires reversal of the sentencing. The case is remanded for the Superior Court to enter conviction and announce a sentence for each offense of which the defendant was convicted, but then stay imposition of punishment where § 104 is implicated. Additionally, on remand the court should impose a separate conviction and punishment for each count of unauthorized possession of a firearm during a crime of violence pursuant to 14 V.I.C. § 2253(a) but then stay the imposition of punishment as to two of those counts.
September 13, 2013
S. Ct. Crim. No. 2012-0044
Jamal Allister Morton v. People of the Virgin Islands
Defendant’s convictions on several felony charges, including first degree murder and unauthorized use of an unlicensed firearm, are affirmed. The trial court did not abuse its discretion under Federal Rules of Evidence 403 and 404(b) in allowing evidence of a separate crime two weeks after the present murder, which linked defendant with the murder weapon. The later incident and evidence obtained at that scene were highly probative of the defendant’s guilt or innocence in the crime charged in the present case, and prejudicial aspects of the other incident were excluded. Accordingly, the probative value of the later incident was not substantially outweighed by any danger of unfair prejudice to defendant and the trial court did not abuse its discretion in allowing this proof. On this appeal the defendant has failed to establish a claim for ineffective assistance of counsel. He does not allege any specific errors or omissions in his counsel’s representation that would render her representation ineffective, and lack of experience alone is insufficient to make the required showing. Further, an experienced former public defender was designated as co-counsel and participated fully in the trial. The evidence showed that defendant was seen fleeing the crime scene around the time of the murder, and expert testimony confirmed that the weapon found with defendant two weeks later was the same weapon used to commit the charged murder. From all the evidence produced at trial, reasonable jurors could find beyond a reasonable doubt that defendant committed the murder as charged. The claim that defendant’s confrontation rights were violated because the trial judge upheld certain of the prosecutor’s objections is rejected since defendant does not identify where in the record the perceived infringement upon his rights occurred, as required by V.I.S.CT. R. 22(a)(5) and (d). Defendant has also failed to articulate how the objections made against the defense’s cross-examination (and any rulings on those issues) were erroneous, and how they prejudiced him. Thus he has not identified any fact, topic or ruling that might constitute reversible error, and the confrontation clause claim fails. The convictions are affirmed.
September 12, 2013
S. Ct. Crim. No. 2012-0069
Steven Allen v. People of the Virgin Islands
Convictions for interfering with an officer discharging his duty and operating an unregistered vehicle are affirmed. Title 14 §1508 is not unconstitutionally vague as applied to this defendant’s case, which involved a lawful vehicular stop because the required registration sticker was visibly absent from its windshield. Failure to register the vehicle and display the registration sticker on the car’s front windshield is a violation of 20 V.I. §§ 331 and 334 and the authority of an officer to have a vehicle towed for failure to register it is well established. On this record, the Superior Court correctly found that the officer was discharging his duties when he ticketed the defendant for failing to have his car registered and was executing a community caretaking function by having the car towed after it was found to be in violation of Virgin Islands law. The defendant’s argument that §1508 is in violation of §3 of the Revised Organic Act is not supported by any argument, nor did this defendant assert below that he was engaging in “lawful protest” against police misconduct when he ignored the officer’s lawful order. Examining the totality of the evidence, both direct and circumstantial, and interpreting the evidence in the light most favorable to the government as the verdict winner, the evidence was sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. The convictions are affirmed.
September 11, 2013
S. Ct. Civ. No. 2012-0011
Carl Simon v. Michael A. Joseph
In a legal malpractice action by a prisoner suing pro se against his former court-appointed attorney, the Superior Court committed error when, despite knowing that plaintiff's criminal convictions had never been set aside, it proceeded to adjudicate his claim for legal malpractice and dismiss his lawsuit with prejudice. The requirement that a criminal defendant successfully obtain post-conviction relief is not merely an element of a legal malpractice action—the requirement is an extension of the ripeness doctrine, calling upon a court to defer from ruling on a claim when ongoing or potential future litigation precludes an informed determination of the issues. By not sua sponte invoking the ripeness doctrine to dismiss this complaint and instead proceeding to consider the matter on the merits, the Superior Court disrupted comity amongst federal and local courts by creating inconsistent adjudications of essentially the same factual and legal issues between itself, the Third Circuit, the Ethics and Grievance Committee, and the judge who issued the plaintiff a certificate of probable cause. The possibility that plaintiff might, at some future date, prosecute another local or federal habeas corpus petition also cautioned against resolving these issues on the merits. To avoid potentially inconsistent adjudications, the Superior Court should simply have dismissed the present malpractice complaint on the ground that it was not ripe, without prejudice to its re-filing in the event that plaintiff ever successfully obtains post-conviction relief on some future date. Since it did not do so, it committed a fundamental error that warrants vacating the underlying judgment. Accordingly, the January 11, 2012 Opinion and Order is vacated and the matter is remanded to the Superior Court so that it may dismiss the complaint without prejudice.
September 9, 2013
S. Ct. Crim. No. 2009-0109
Justin Sonson v. People of the Virgin Islands
Defendant’s convictions for aiding and abetting the unauthorized possession of a firearm under 14 V.I.C. § 11(a) and § 2253, and aiding and abetting the failure to report ammunition purchased outside or brought into the Virgin Islands under 23 V.I.C. § 11(a) and § 470, are affirmed. A person found in possession of a firearm or ammunition can be found in violation of 23 V.I.C. § 470 if the firearm or ammunition is not reported to the Commissioner. The words “obtained” and “possessed” under the statute are indistinguishable and “possessed” is the functional equivalent of “obtained.” Under our law, it is not necessary for a jury to determine ownership of the firearm and ammunition. Because the evidence was more than sufficient to warrant the jury in concluding that defendant and another individual had actual knowledge of the firearm and ammunition and had the ability to exercise dominion and control over the firearm and ammunition found in a vehicle of which they both were occupants, there was no error in a conviction under 23 V.I.C. § 470 of both parties for aiding and abetting each other in the failure to report the firearm and ammunition. The trial record is devoid of any facts suggesting that defendant sought to immediately report the ammunition to the Commissioner as required by statute. The Superior Court did not plainly err in convicting the defendant under 14 V.I.C. § 2253. His argument that this statute is unconstitutional has previously been rejected by this Court in Hightree v. Virgin Islands, 55 V.I. 947 (V.I. 2011). Given the defendant’s failure to raise the constitutional issue at trial, and any asserted error being neither clear nor plain under the current law, the Second Amendment claim will not be considered. The convictions are affirmed.
September 6, 2013
S. Ct. Crim. No. 2012-0026
Adrian Benjamin v. People of the Virgin Islands
In the specific circumstances of this case, the Superior Court did not err in recalling a jury. Before being declared discharged, the jury reached a verdict on seven of the counts against this defendant, acquitting him of first-degree murder and attempted murder charges, finding him guilty of reckless endangerment and unauthorized possession of a firearm, and failing to reach a verdict on second-degree murder and third-degree assault. Because of a miscommunication with the jury foreperson, the court was under the mistaken impression that the jurors were deadlocked on all charges, prompting a mistrial. However, immediately thereafter inspection of the jury form, clarifying statements by the foreperson and a poll of the jury showed that the jury had reached a decision seven of the counts. The discharge declaration had not yet taken effect because the jurors remained within the protective shield of the court—leaving their legal duties intact—and had not dispersed. The defendant was not prejudiced, as the jurors had no opportunity to interact with members of the public before being recalled. During the brief period between the discharge declaration and the recall, the jurors either remained in the courtroom or had begun to enter the deliberation room, and nothing in the record supports the conjecture that they were exposed to prejudicial outside influences. Defendant’s convictions for second-degree murder, four counts of third-degree assault, reckless endangerment, and unauthorized possession of a firearm, embodied in the Superior Court’s March 13, 2012 Judgment and Commitment, are affirmed.
September 6, 2013
S. Ct. Civ. No. 2013-0020
Boyd B. Brown, Jr. v. Emily Brown
The purported appeal of a decision of a judge acting as a Superior Court magistrate when ruling on a restraining order application is dismissed for lack of appellate jurisdiction. A decision rendered by the Magistrate Division of the Superior Court does not constitute a final appealable order under 4 V.I.C. § 32(a) until and unless it has been first appealed to, and considered by, the Appellate Division of the Superior Court. All appeals from the Magistrate Division must be filed in the Superior Court as provided in 4 V.I.C. § 125. In this case, despite her elevation to the position of Superior Court judge, the judge unquestionably served in a magistrate capacity when she issued the ruling from which the present appeal purports to be taken. Since the judge, by assignment or otherwise, continued to exercise the jurisdiction of a magistrate despite her elevation, the traditional appellate procedure applicable to appeals of Magistrate Division decisions continues to apply. Because that procedure has not been followed in this case, this Court lacks jurisdiction to review the February 20, 2013 Order and the appeal is dismissed for lack of appellate jurisdiction.
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September 5, 2013
S. Ct. Civ. No. 2013-0049
Mohammad Mustafa, et al. v. Manuel Camacho, et al.
Upon a “Motion to Dismiss,” construed as a motion under V.I.S.CT. I.O.P. 9.4, this appeal qualifies for summary action because it rests on a narrow and clear-cut issue of law. With respect to review by the Superior Court’s Appellate Division of decisions by the Magistrate Division of that court, the plain, unambiguous language of Superior Court Rule 322.1 provides that no review may be submitted to a judge for consideration, or decided, unless within five days after an appeal is docketed the filing fee is paid or a motion to proceed in forma pauperis is filed. The Rule provides that the appeal be dismissed without further notice if this does not occur. In this case the Appellate Division acknowledged that the appellants, seeking review of decisions of the Magistrate Division, failed to timely pay the docketing fee or move to proceed in forma pauperis, and that the matter should have been dismissed for failure to prosecute. It committed error by nevertheless reviewing the Magistrate Division’s decisions on the merits. Accordingly, the June 14, 2013 Order affirming Default Judgments and the April 22, 2013 Order is vacated, and the Appellate Division is directed, on remand, to simply dismiss the appellants’ appeal pursuant to Rule 322.1(b)(4)(A) for failure to pay the docketing fee.
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August 30, 2013
S. Ct. BA. No. 2011-0115
In the matter of the application of Dennis Joseph Shea for admission to the Virgin Islands Bar
The application of an attorney admitted to the practice of law in California, Rhode Island, and Massachusetts, and formerly a member of the New Hampshire Bar, for admission to the Virgin Islands Bar is denied. The applicant has not met his burden of proving that he is a person of good moral character sufficient to warrant admission. Character and fitness review focuses upon the bar applicant’s present moral character, and considers past misconduct because it gives insight into the applicant’s current character. This applicant admitted engaging in a sexual relationship with a client, which establishes poor judgment and reflects adversely on his fitness to practice law in the Virgin Islands. His admitted intention not to pay approximately $226,000 in unpaid federal and state income taxes for prior years makes clear his lack of respect for and obedience to the laws of the nation. The sudden, unannounced closure of his California law practice also reflects adversely on his moral character. These factors, taken in the aggregate, provide more than sufficient grounds to deny this application on character and fitness grounds. In addition, the administrative suspension of this attorney from the New Hampshire bar for non-payment of dues, and his failure to remedy his suspension for 16 years, represents further proof of a pattern of simply ignoring his financial and legal obligations to the government. The applicant has failed to meet his burden of showing, by clear and convincing evidence, that he is a person of good moral character. Thus, he is unfit to practice law in the Virgin Islands and his application for membership to the Virgin Islands Bar is denied.
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August 27, 2013
Steve Tyson v. People of the Virgin Islands
S. Ct. Crim. No. 2011-0009
In a prosecution arising from the discharge of a firearm at a distance from the victim, convictions for assault in the third degree under 14 V.I.C. § 297(2) and unauthorized possession of a firearm during commission or attempted commission of a crime of violence, 14 V.I.C. § 2253(a), are reversed. The alleged victim testified to a verbal altercation earlier in the day, but at the time of the alleged crime the defendant had parked 50 feet away behind trees, and the victim did not see the defendant shoot at him and did not hear bullets anywhere nearby. The evidence did not support a finding that the defendant had an immediate intention coupled with an ability to commit a battery upon him, and the People presented insufficient evidence to prove the elements of third degree assault. Defendant’s Sixth Amendment rights were not violated by the admission of a laboratory report and testimony by the scientist who prepared and signed the report, since the witness was presented in court and subject to cross-examination. The People failed to prove that defendant was not licensed to carry a firearm in the Virgin Islands since it was not proven that he was not licensed to carry a firearm in the St. Croix district. The evidence, which included gunshot residue test results and recovered bullet casings, was sufficient to support the conviction on the count for discharging a firearm in violation of 23 V.I.C. § 479(a), which is affirmed. Since no separate sentence was imposed on that count, the matter is remanded to the trial court for sentencing on that conviction.
August 14, 2013
S. Ct. Civ. No. 2011-0050
Cenobia Perez, et al. v. The Ritz-Carlton (Virgin Islands), Inc., et al.
In a slip-and-fall case, the Superior Court erred in granting summary on the plaintiffs’ negligence claims on the grounds that evidence was not submitted to show that either defendant had notice of debris or moss on the stairway where the victim fell was absent, or that the stairs themselves were defective or unreasonably dangerous. A possessor of land is subject to liability for physical harm to business invitees from a condition on the land only if it knows or exercising reasonable care would discover the condition, and should realize it involves an unreasonable risk of harm to invitees who will not discover or realize the danger, or will fail to protect themselves against it, but fails to exercise reasonable care to protect invitees against the danger. In this case, based on depositions of defendants’ employees submitted in opposition to the motion for summary judgment the plaintiffs identified sufficient evidence to show that the defendants knew that it was raining on the day of the fall, knew that whenever it rained leaves and debris would accumulate on the pathway and stairs of the hotel complex where the accident took place, and knew that this created a dangerous condition. Therefore, there is a genuine issue of material fact regarding the defendants’ constructive notice of the condition that caused the injuries involved in this lawsuit through evidence that they had actual knowledge of a recurring dangerous condition on the property. The Superior Court’s June 1, 2011 Order granting summary judgment to the defendants on the plaintiffs’ negligence claims is reversed, and the case is and remand for further proceedings.
August 15, 2013
S. Ct. Crim. No. 2011-0004
Clifton A. Fahie, Jr. v. People of the Virgin Islands
Defendant's convictions for simple assault and battery, burglary in the second degree, and false imprisonment are affirmed. In this case, defendant never claimed self-defense at trial. To warrant an instruction on self-defense there must be some evidence that the defendant acted “in self defense . . . against unlawful violence offered to his person ” as provided in 14 V.I.C. § 293(a)(6). In this case, defendant’s own testimony established that he entered the victim's residence without permission, which is unlawful under 14 V.I.C. § 1741, and provided no basis for the Superior Court to give an instruction on self-defense. Viewing all of the evidence, it cannot be said that defendant met his burden of showing that the Superior Court erred by failing to instruct the jury sua sponte on self-defense and no plain error has been shown in that regard. The Superior Court did err in instructing the jury on the elements of false imprisonment, by failing to incorporate four factors: (1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense, but this record establishes beyond a reasonable doubt that this error was not prejudicial to the defendant. In this case, by acquitting him of first degree assault, attempted rape, and unlawful sexual contact, the jury clearly found that defendant intentionally confined the victim against her will, but not while committing these separate offenses. Thus it is clear beyond a reasonable doubt that the erroneous jury instructions did not contribute to the false imprisonment verdict, and the defendant has not shown that the Superior Court's plain error prejudiced him. Accordingly, the convictions are affirmed.
August 13, 2013
S. Ct. Crim. No. 2012-0074
Christopher Simmonds v. People of the Virgin Islands
Convictions for first-degree murder and related offenses are affirmed. Proof that the defendant acted willfully, deliberately, or with premeditation was supplied by witness testimony that he shot the victim, and then moved closer and shot at him again in the head, an area of the body where a gunshot wound would be far more likely to result in death. Thus the evidence was more than sufficient to sustain the first-degree murder conviction. On the charge of first-degree assault, the evidence introduced at trial, when viewed in the light most favorable to the People, established that defendant shot the victim two separate times, and the jury could reasonably find that he committed first-degree assault firing his first shots from a distance—resulting in wounds only to the victim’s arms and buttocks—and then initiated a second first-degree assault when he moved closer and shot the victim in the head, which became a first-degree murder once the victim died from those injuries. Therefore, since the evidence established that defendant committed a first-degree assault separate and apart from the one that resulted in the victim’s death, the question whether 14 V.I.C. § 295(1) implicitly requires that the victim survive his injuries is not decided in this appeal. Under Virgin Islands law, firearms licenses are issued to individuals and are “not transferable” under 23 V.I.C. §§ 454, 457(1). Thus, even if some other individual had a license to carry or possess the weapon used to shoot the victim, defendant was nevertheless prohibited from possessing and using that firearm without obtaining his own license, and the People introduced sufficient evidence of the 14 V.I.C. § 2253 violation. The argument that a defendant’s convictions should be vacated where the People charge him by filing an information rather than obtaining an indictment from a grand jury has been rejected previously, and the grand jury clause does not apply. Denial of the defense motion for a jury visit to the crime scene was not shown to be an abuse of discretion given the cursory motion and the failure to explain how or why a site visit would have benefitted the jury’s consideration of this case. Act No. 7161 implicitly repealed 14 V.I.C. § 19, and thus the Superior Court committed error when it permitted the People to introduce a witness’s prior unsworn inconsistent statement even though the requirements of Rule 801(d)(1)(A) had not been met. However, that statement was wholly cumulative to another witness’s admissible—and uncontradicted—testimony that he saw defendant shoot the victim, and admission of the prior inconsistent statement did not affect the jury’s verdict. Denial of defendant’s pro se motion for a new trial was not error since he remained represented by counsel at that time. The Superior Court stayed execution of defendant’s convictions for first-degree assault and unauthorized use of a firearm during commission of a first-degree assault, and his argument that the requirement of 14 V.I.C. § 2253 that the penalty imposed for the weapons offense be in addition to that provided for commission of the felony or crime of violence violates the Double Jeopardy Clause of the Fifth Amendment, and is inconsistent with 14 V.I.C. § 104, has been rejected previously. Thus, the Superior Court committed no error with respect to the defendant’s sentence. The August 15, 2012 Judgment is affirmed
August 8, 2013
S. Ct. Civ. No. 2011-0082
Carole Chestnut v. Elsa Goodman
A plaintiff’s judgment for the tort of negligent misrepresentation in connection with transfer of an interest in a property in exchange for a promise to care for the plaintiff in her advancing age is reversed. The Superior Court correctly determined that there were genuine issues of material fact concerning the element of donative intent for the jury to determine, and thus correctly denied summary judgment on that issue and set the case for trial. To support her claim of negligent misrepresentation, plaintiff was required to introduce sufficient evidence for a reasonable trier of fact to find that defendant supplied false information in the course of her business, or in a transaction in which the defendant had a pecuniary interest, that plaintiff suffered pecuniary loss as a result of justifiable reliance on that information, and that defendant failed to exercise reasonable care or competence in obtaining or communicating the information. In this case the representations relied upon by the plaintiff were promises based on the defendant’s then-present intent to perform a future action. Defendant could not negligently misrepresent her present intent to perform an action in the future—she either made the promise intending to follow through with it, or she made the promise knowing then that she did not intend to follow through with it – but she could not have negligently misrepresented her present intent to follow through on a promise. The tort of negligent misrepresentation only applies to cases of misrepresentation of factual, commercial information, not to statements of future intent. Negligent misrepresentation also must involve false information for the guidance of others in their business transactions, and there was nothing to indicate that defendant’s representation that she was married was made in a business context. Since the defendant’s promise to care for plaintiff in the future cannot give rise to a claim of negligent misrepresentation—nor can defendant’s statements regarding her marital status—the judgment is reversed and the case is remanded to the Superior Court with the direction to grant the defendant’s motion for judgment as a matter of law.
August 6, 2013
S. Ct. Crim. No. 2012-0057
Ashana Powell v. People of the Virgin Islands
The defendant’s conviction on three counts of carrying or using a dangerous weapon in violation 14 V.I.C. § 2251(a)(2)(A) is affirmed. Previously, the trial court’s acquittal of the defendant on the grounds of inconsistent jury verdicts was reversed in People v. Powell, 56 V.I. 630, 631-33 (V.I. 2012). The defendant was sentenced on remand and, on this appeal, taking into account the totality of the evidence, defendant’s contention that her trial counsel’s failure to object to admission of certain proof and a stipulation for admission of several photographs amounted to ineffective assistance of counsel is rejected since she has not demonstrated a degree of prejudice that would render the proceedings unreliable. The evidence was sufficient to support convictions under 14 V.I.C. § 2251(a) for using or possessing a dangerous weapon during commission of a crime of violence – mayhem, first-degree assault, and third-degree assault – and a rational jury could have concluded that the force she used was excessive and therefore unlawful even if intended as self-defense. Counts are evaluated independently, as though they are separate indictments, and inconsistency of the verdicts cannot be the basis for finding insufficiency. Carrying or using a dangerous weapon during commission or attempted commission of a crime of violence is not an element of the crime, but rather is an element the jury needed to find in order to warrant an enhanced sentence. The record does not show that any balancing test was conducted prior to use of a prior assault conviction for impeachment, and where a prior conviction is for a crime similar to the one for which the defendant is presently on trial the need for careful balancing increases but here, considering the totality of the evidence and the outcome of the case, substantial rights were not affected as she does not appear to have suffered prejudice and the jury did not use the prior conviction evidence improperly against her as propensity evidence. Considering the other testimony in the record, it cannot be presumed that the probative value of several challenged items was substantially outweighed by the danger of unfair prejudice or presentation of cumulative evidence, nor was the trial court required to exclude the evidence on the basis that there was other testimony or alternative methods of proving the facts. It was also not reversible error to admit contested portions of the testimony of two officers since there is no indication that it was particularly prejudicial, and it may have shifted blame for the extent of the injury away from defendant. Although the court correctly entered judgment, this matter is remanded for resentencing because, although defendant used the bottle against two victims, §2251(a) is not an assault provision – rather, the statute punishes the act of possession with unlawful intent. Absent crimes of violence distinguishing separate counts of possession (and separate victims), the conviction for multiple counts of possession pertaining to the same weapon during the same event violates 14 V.I.C. § 104. The judgment of conviction is affirmed, and this case is remanded for resentencing in accordance with that statute.
July 31, 2013
S. Ct. Civ. No. 2010-0053
Kwame Allen v. HOVENSA, L.L.C.
Orders of the Superior Court which stayed a negligence personal injury suit by a worker against a refinery, compelled arbitration of the claim pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §1 et. seq., and then later confirmed the arbitral decision denying recovery, are affirmed. Whether or not the three month period specified in 9 U.S.C. § 12 applies to proceedings in the Superior Court, that provision does not establish a jurisdictional requirement, but operates as a statute of limitations that may be waived by a party’s failure to timely assert it, and here the refinery has waived protections of that section by waiting until appellate oral argument to assert it. While the refinery delayed approximately two years before filing its motion to compel arbitration, delay alone does not constitute sufficient prejudice to support waiver of an arbitration right. The party opposing arbitration has the burden to show how the delay resulted in prejudice and here the refinery did not participate in the Superior Court matter to such an extent as to have required plaintiff to spend substantial amounts of time, effort, and money litigating the matter in that forum before filing its motion to compel arbitration. Plaintiff has failed to show prejudice from the delay. Virtually identical dispute resolution contract terms identifying this refinery as a third-party beneficiary have been found to cover tort disputes in this context, and the mere fact that a contract is adhesive does not—without more—render it unconscionable. In this case unconscionable expense to plaintiff was not shown, nor was the application of a six month limitations period for brining such claims unreasonable. The agreement in this case is not inconsistent with the Virgin Islands Workers’ Compensation Act and it does not confer upon the refinery any greater rights than those available to the plaintiff’s direct employer. Thus no basis is found to disturb the Superior Court’s July 30, 2007 and July 20, 2010 Orders, which are affirmed.
July 18, 2013
S. Ct. Crim. No. 2011-0055
Steve Tyson v. People of the Virgin Islands
In a prosecution that led to conviction on seven counts, including first-degree murder and first-degree assault the shooting death of one victim, first-degree murder in the death of a second victim struck by a stray bullet, three counts of unauthorized use of an unlicensed firearm in a crime of violence, and reckless endangerment in the first degree, appellate challenges to the sufficiency of the evidence and use of a prejudicial prior conviction are rejected, except with respect to a count predicated on felony murder. The required premeditation on the underlying murder count was shown in proof of the defendant parking for 30 minutes and waiting in traffic for two to three minutes prior to the murder, and by the nature of the wound inflicted on this victim. However, with respect to the felony murder conviction for the death of a second victim accidentally shot by another perpetrator, 14 V.I.C. § 922 is limited by the agency theory of the felony murder rule, and on the facts of this case it was legal error to find that the second victim was killed in the perpetration of defendant's first-degree assault against on the first victim. Thus it is necessary to reverse the conviction for felony murder. Reckless endangerment may be established by conduct of the defendant in a place where the public has the right to be—it does not hinge on naming a finite number of endangered persons. In this case, the evidence was sufficient to sustain that conviction. When defendant took the stand and testified, he placed his credibility at issue. Although the similarity between the crimes charged and his prior conviction then introduced by the prosecution no doubt enhanced its potential prejudicial effect, Rule 609(a)(1) does not limit admission to those crimes involving dishonesty or false statements but includes felonies as probative of credibility. Also, under Rule 404(b) evidence of other crimes, wrongs, or acts is admissible for non-propensity purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Here the Superior Court properly weighed the relevant factors in admitting evidence of the prior conviction to prove identity of the perpetrator of this crime. Since 14 V.I.C. § 2253(a) does not require that the People prove a firearm was operable, the Superior Court did not err in instructing the jury on the firearms offenses. Under the facts of this case, the unauthorized use of a firearm involved a single weapon and a single act. Accordingly, the matter is remanded to the Superior Court with instructions to sentence the defendant for only one firearm conviction, and to stay execution of sentence for the remaining firearm conviction in accord with 14 V.I.C. § 104.
July 15, 2013
S. Ct. Crim. No. 2012-0114
Gregoire George, Jr., v. People of the Virgin Islands
Convictions for first-degree robbery, grand larceny, first-degree assault, and use of a dangerous weapon during commission of these crimes are affirmed. There is no merit to the defendant's argument that the Superior Court erred in denying a mistrial because the People violated his due process rights by failing to provide a legible, executed copy of a testifying accomplice’s plea agreement before trial, The People did not commit a Brady violation in providing a copy of the plea agreement that was unexecuted and difficult to read, as this document was as public record that defendant could have obtained from the Superior Court. The accomplice’s testimony identifying the present defendant as a co-perpetrator was not incredible as a matter of law, as the witness did not testify to anything that was physically impossible for him to have witnessed, and any inconsistencies in his testimony were properly left to the jury to resolve. A surveillance video recording was properly authenticated, and therefore its admission was not an abuse of discretion. However, the Superior Court committed plain error in imposing sentence on multiple offenses arising out of the same act and, therefore, the convictions are affirmed but the case is remanded for sentencing in compliance with 14 V.I.C. § 104.
July 5, 2013
S. Ct. Crim. No. 2013-0025
In re J.G., a Minor
In an appeal by a minor from an order issued by the Family Division of Superior Court which directed that he be transferred to the Criminal Division to be tried as an adult pursuant to 5 V.I.C. § 2508(b), the People presented sufficient evidence that the defendant was transferable based on his age and the existence of probable cause that he committed the charged offenses. The argument that the Superior Court lacked jurisdiction because the Amended Complaint filed by the People was not “verified” under 5 V.I.C. § 2510(a) is rejected as there is no evidence that the Legislature intended to make the verification requirement jurisdictional. The challenge to the minor's custody has been mooted by his release on an unsecured bond with home confinement and electronic monitoring. The minor was not forced to incriminate himself in violation of the Fifth Amendment when he responded to the police’s request for biographical information, such as his age, and when he provided his birthdate in response to the judge’s question at the probable cause hearing, because the disclosure of his age is not a statement that could reasonably incriminate him. The Fourth Amendment argument that production of identification or travel documents violates the Fourth Amendment was not briefed and is waived. Under 5 V.I.C. 2508(b) once the People present prima facie evidence at a transfer hearing that a defendant was 14 years or older but less than 18 at the time of the alleged offense, the burden of production then shifts to the minor to disprove the People’s evidence. Even if it were error under Federal Rule of Evidence 201 to take judicial notice of the age of the minor based on a court record, any error was harmless in this instance. Here the evidence presented by the People regarding the minor's age was uncontested, and the minor never even argued that he was anything other than 17 at the time of the attack. The evidence supports the trial court’s finding that there was probable cause to believe that this minor, along with other minors, committed the charged crimes. There was sufficient evidence for a reasonable person to believe that he committed murder in the first or second degree, assault in the third degree, possession of a dangerous weapon during the commission of those crimes of violence, grand larceny, possession of stolen property, false imprisonment and unauthorized use of a vehicle—either as a principal or as an aider and abettor—and that he is therefore amenable to transfer to the Criminal Division. For these reasons, the March 9, 2013 Transfer Order is affirmed and the case is remanded for further proceedings.
July 5, 2013
S. Ct. Crim. No. 2013-0024
In re K.J.F., a Minor
In a minor's appeal from an order issued by the Family Division of Superior Court directing that he be transferred to the Criminal Division, an Eighth Amendment challenge to imposition of a punishment of life imprisonment without parole for a minor defendant is not reached because it is not yet ripe since this minor has not yet been convicted of first-degree murder—indeed, he may never be convicted of it. Under 14 V.I.C. § 81 and § 83 punishment of the penal laws applies to anyone who commits, in whole or in part, any offense within the Virgin Islands . Because this offense was committed in part in the Virgin Islands, the trial court has jurisdiction over the offense. In this case proof that the minor was age 14 years or older, but less than 18, at the time of the offense was presented by his mother who testified to his birth date, and the challenge to the sufficiency of the evidence regarding the proof of his age is rejected. The trial court’s transfer order committing this minor to the custody of the Commissioner of Department of Human Services, to be held at the Youth Rehabilitation Center was error because 5 V.I.C. § 2509(g) applies to mandatory transfers under 2508(b), just as it applies to permissive transfers under 2508(d). Thus the trial court was mandated to place the minors in the custody of the Bureau of Corrections. Nevertheless, the plain language of the statute requires that transferred minors be remanded to the custody of the Bureau of Corrections upon transfer, and not the Department of Human Services’ Youth Rehabilitation Center. However, the minor has shown no prejudice from the fact that he was within the custody of the Department of Human Services rather the Bureau of Corrections, and thus the error was harmless. The March 9, 2013 Transfer Order is affirmed.
July 5, 2013
S. Ct. Crim. No. 2013-0022
In re J.J.J., a Minor
In an appeal by a minor from an order issued by the Family Division of Superior Court which directed that he be transferred to the Criminal Division to be tried as an adult pursuant to 5 V.I.C. § 2508(b), the People presented sufficient evidence that the defendant was transferable based on his age and the existence of probable cause that he committed the charged offenses. Even if it were error under Federal Rule of Evidence 201 to take judicial notice of the age of the minor based on a court record, any error was harmless in this instance. Once the People present prima facie evidence at a transfer hearing that a defendant was 14 years or older, but less than 18, at the time of the alleged offense, the burden of production then shifts to the minor to disprove the People’s evidence. Here the evidence presented by the People regarding the minor's age was uncontested, and the minor never even argued that he was anything other than 17 at the time of the attack. The government has established probable cause pursuant to section 2508(b) when the court finds that the facts and circumstances would warrant a prudent person in believing that the crime has been committed and that the minor committed the charged crime. . Here, the evidence supports the trial court’s finding that there was probable cause to believe that this minor, along with the other minors, committed the charged crimes. There was sufficient evidence for a reasonable person to believe that the minor committed the offenses of murder in the first or second degree, assault in the third degree, possession of a dangerous weapon during the commission of those crimes of violence, grand larceny, possession of stolen property, false imprisonment and unauthorized use of a vehicle—either as a principal or as an aider and abettor—and was consequently amenable to transfer. Consequently the order of transfer is affirmed.
July 2, 2013
S. Ct. Crim. No. 2011-0021
Jean Clifton Connor Jr. v. People of the Virgin Islands
In a prosecution that led to conviction on charges of first degree robbery and grand larceny, as well as two related firearms offenses, there was sufficient evidence for a jury to find that defendant committed the offenses of which he was convicted. Because the Legislature clearly intended to punish multiple offenses when it enacted the statute prohibiting use or possession of dangerous or deadly weapons during the commission of crimes of violence, the defendant suffered no Double Jeopardy violation. A firearm, which is a deadly weapon, is also by definition a dangerous one, and thus the trial court’s firearms instructions were not in error. Although the Superior Court erred by permitting the jury to submit verdict forms that did not state the value of the stolen property, this error did not affect the defendant's substantial rights because the trial court merged the grand larceny conviction with the first-degree robbery conviction, and did not impose a separate sentence for it. The defendant's substantial rights were also unaffected by the prosecutor’s improper questions of the defendant on cross-examination about a purported offer to make restitution. The March 14, 2011 Judgment and Conviction is affirmed.
July 2, 2013
S. Ct. Crim. No. 2008-0072
Daniel Carlo Castillo v. People of the Virgin Islands
A conviction for voluntary manslaughter is affirmed after consideration of claims that defendant's constitutional rights were violated, and a challenge to the sufficiency of the evidence, among other issues. Admission of certain statements made to law enforcement officers did not violate the defendant's constitutional rights since his second arrest, and information regarding the location of the victim's body, involved a source of information independent from his prior arrest and questioning. In addition, defendant knowingly and voluntarily waived certain rights, and voluntarily and spontaneously made statements to the officers, without coercion or threats, and without custodial interrogation. He also waived his right to a lawyer and instead asserted that he wanted to confess to this murder. The habitual criminals provision in 14 V.I.C. § 61 is constitutional. Defendant failed to show that the prosecutor acted vindictively in filing the habitual criminal information, and the trial court properly exercised its discretion under that statute in this case. Defendant waived on the record his right to appeal the failure to give an intoxication instruction. The confession along with the corroborating proof afforded sufficient evidence for the jury reasonably to have found defendant guilty beyond a reasonable doubt of the crimes charged. Admission of evidence relating to the victim's underwear, while not having probative value, was not prejudicial in the context of this case. The record is currently inadequate to make a determination on defendant's claim of ineffective assistance of counsel, which may be raised in seeking relief in a collateral proceeding. The defendant was subject to multiple punishments for the same crime since his conviction for the crime of manslaughter and the crime of aggravated child abuse or neglect under 14 V.I.C. § 506 were based on a single indivisible course of conduct, and he was sentenced on both charges, with the imprisonment to run concurrently. The case is remanded for resentencing in accordance with 14 V.I.C. § 104, since the proper procedure is for the Superior Court to announce a sentence for each offense and subsequently to stay execution of the sentence in which §104 is implicated.
July 1, 2013
S. Ct. Civ. No. 2011-0076
Theresa Davis v. Varlack Ventures, Inc.
In an action to recover for personal injuries allegedly sustained while disembarking from one of the defendant’s ferries, the trial court’s judgment implementing a jury verdict for the defense is affirmed. Federal Rules of Civil Procedure are made applicable to discovery in the Superior Court under SUPER. CT. R. 39(a), and Rule 26(e) requires timely supplementation of discovery responses. Defendant’s failure to timely disclose certain hospital records that were usable both for impeachment and as substantive evidence to support the affirmative defense that any neck pain plaintiff suffered was caused by pre-existing conditions, was sanctionable under federal Rule 37. Where a party can use evidence for both impeachment and substantive purposes, it does not fall within an exception under Rule 26(a), exempting from required disclosure evidence that is solely for impeachment. Nor did passing reference to the records in an expert report give plaintiff notice that defendant would introduce these records into evidence. The excuse that failure to disclose the medical records at an earlier time resulted from confusion caused by a change in responsibilities among the law firms representing defendant does not meet the test of substantial justification under Rule 37, as it does not constitute a genuine dispute concerning compliance. However, in this case the records were only eight pages long, and plaintiff was not prejudiced because she was provided with notice of the existence of the records five days before trial and a copy of the medical records three days before trial. Thus even though defendant violated Rule 26 in failing to disclose the hospital records or supplement its discovery responses, the Superior Court did not abuse its discretion in allowing it to introduce these records at trial, as plaintiff was not prejudiced and did not show that defendant acted in bad faith. Because plaintiff completely fails to cite any legal authority to support her additional contention that the Superior Court erred in denying her request for an “adverse inference” instruction concerning defendant’s failure to produce an incident report relating to the events, this argument is waived under the provisions of V.I. S. CT. R. 22(a)(5) and 22(m). The Superior Court’s August 12, 2011 judgment is affirmed.
June 28, 2013
S. Ct. Civ. No. 2012-0097
Norman Martin v. Alvina Martin
In a former husband’s appeal from a final order entered by the Family Division of the Superior Court granting his ex-wife exclusive right and title to their marital home and denying his request for alimony, the judgment is affirmed. The divorce court has authority under 33 V.I.C. § 2305(d) to dispose of the marital homestead in a divorce case, and upon review of the facts it did not abuse its discretion in awarding the property to the former wife. Courts are authorized to award alimony by 16 V.I.C. §§ 109 and 345, and these sections make clear that the trial court is not to consider marital fault in granting alimony but must instead consider only the resources of the person giving such support and the party receiving it. In this case, it is not clear whether the trial court considered martial fault in its alimony determination, but if it did such error was harmless since there are sufficient findings in the court’s ruling, supported by the record, to affirm a denial of alimony to the husband, considering the evidence as to the wife’s limited resources and the lack of proof of need on the part of the former husband. The trial court did not abuse its discretion when it denied him alimony, but should his condition deteriorate, the former husband free to move the trial court to amend the alimony determination under 16 V.I.C. § 110. No demonstration has been made of (1) an intervening change in controlling law, (2) newly available evidence, or (3) a need to correct clear error of law or prevent manifest injustice, and thus reconsideration of the lower court’s decisions was not warranted. The July 11, 2012 Findings of Fact, Conclusions of Law and Order, and the September 4, 2012 Order denying the Motion for Reconsideration, are affirmed.
June 28, 2013
S. Ct. Civ. No. 2012-0094
In re Suspension of B. Patricia Welcome, Esquire
In a review after remand of the sanction recommended by the Ethics and Grievance Committee of the Virgin Islands Bar Association relating to numerous ethical violations committed by an attorney, see In re Suspension of Welcome, S. Ct. Civ. No. 2012-0094 (February 26, 2013), the Committee’s petition is granted, as modified. The factors considered are  the duty violated;  the lawyer's mental state;  the potential or actual injury caused by the lawyer's misconduct; and  the existence of aggravating or mitigating factors. In considering the appropriate sanction for the attorney’s violation of Model Rules of Professional Conduct 1.1, 1.3, 1.4(a)(1), 1.4(a)(3), and 1.4(a)(4), the Committee’s supplemental decision of March 13, 2013 properly identified the applicable baseline sanction of a six month suspension, but erred in its consideration of the aggravating and mitigation factors in this case, including the substantial delay in adjudicating one client’s grievance as an additional mitigating factor, along with the attorney’s cooperation with disciplinary authorities, as well as her absence of a dishonest or selfish motive, and timely good faith effort to make restitution or to rectify consequences of misconduct. This case presents five mitigating factors that greatly outweigh the single aggravating factor, and warrant a substantial downward departure from the baseline sanction. Under the totality of the circumstances, the proper sanction is a public reprimand, payment of $982.50 in costs to the Virgin Islands Bar Association, restitution of $280 plus interest to the client, and a direction to obtain a passing score on the Multistate Professional Responsibility Examination. If these requirements are not satisfied before December 31, 2013, this Court may, sua sponte or upon motion by Disciplinary Counsel, suspend the attorney from the practice of law for no less than three months.
June 26, 2013
S. Ct. Crim. No. 2012-0086
Jevern Phillip v. People of the Virgin Islands
In a prosecution and conviction of the defendant of a number of crimes, including assault, reckless endangerment, various firearms offenses, and first-degree murder, leading to a sentence of life imprisonment without the possibility of parole, challenges to the sufficiency of the evidence, and allegations of errors made at trial, are rejected. While there was no direct evidence identifying this defendant at the scene of the shooting, there was other evidence from which the jury could infer that he participated in it, and acted with the requisite intent and premeditation. The Legislature requires all persons who wish to possess firearms to be authorized to do so, whether by virtue of their position or occupation, or because they have obtained a license. Because defendant does not fall into either category, the trial court did not commit any error in the firearms instructions. The reckless endangerment information charged unlawful conduct “in a public place,” and the trial court properly so instructed the jury, which had sufficient evidence on which to conclude that the shooting happened in a public place. Defendant could be guilty of first-degree assault regardless of whether he missed or actually succeeded in killing the target of his assault. Although the reckless endangerment conviction was based on the same act as the first-degree murder conviction —the shooting of a firearm at the vehicle in a public place—defendant's sentences for convictions of the two offenses may nonetheless be sustained under the “multiple victim” exception applicable under 14 V.I.C. § 104 where there is an act of violence that harms or risks harming more than one person. Reckless endangerment in the first degree necessarily requires an act that “creates a risk of death to another person” under 14 V.I.C. § 625 and is an act of violence for these purposes. When defendant fired at the vehicle he committed a single act of violence that harmed or risked harming more than one person, as one of the bullets fired by him and his companions killed one victim, and the act of firing created a risk of death to others in the vehicle or to anyone who might have been in the area, thus the multiple-victim exception permits affirmance of the sentences for both first-degree murder and first-degree reckless endangerment. No conflict is found between 14 V.I.C. § 2253 and § 104, and no violation of the Revised Organic Act provisions on multiple punishments. Section 2253 provides that the “penalties provided for violation of this section shall be in addition to the penalty provided for the commission, or attempt to commit, the crime of violence.” The trial court did not abuse its discretion in admitting a camcorder video recording at trial. There is sufficient evidence to sustain the convictions and irrationality will not be inferred from the mere fact of inconsistent verdicts, thus the first-degree murder conviction will not be set aside on this ground. There is no showing of bad faith by the prosecution in the initial dismissal of the prior case, and the subsequent refusal to dismiss the new case was not contrary to the public interest or to the interest of justice. For these reasons, the trial court did not abuse its discretion when it refused to dismiss the Information re-filed against the defendants.
June 26, 2013
S. Ct. Crim. No. 2012-0071
Maliek Ostalaza v. People of the Virgin Islands
In a prosecution that led to judgments of the defendant's guilt of a number of crimes, including assault, reckless endangerment, various firearms offenses, and first-degree murder, leading to a sentence of life imprisonment without the possibility of parole, challenges to the sufficiency of the evidence, and allegations of errors made at trial, are rejected. The testimony of two key witnesses was impeached, but was not inherently unbelievable, and the jury's credibility assessments will not be overturned. Although there was no direct evidence of the defendant's intent, there was sufficient evidence from which a jury could conclude that he participated in the shooting with the requisite intent. A photo array from which defendant was identified was not shown to be impermissibly suggestive. While the trial court acted improperly when it responded to a note from the jury without first sharing it with counsel and defendant, the error here was harmless beyond a reasonable doubt. Its instruction regarding credibility of witnesses was substantially similar to the one requested by defendant, and its instruction on motive should have made it clear to the jury that they could consider the lack of evidence of motive as a relevant factor in evaluating the defendants’ guilt, but the error was harmless. When a cautionary instruction on the possible infirmities of eyewitness testimony is requested and not given, appeal will focus on the facts of each case to determine whether the instruction was required to fairly present the case to the jury. Here, the court’s instructions drew attention to the care with which the jury should evaluate the eyewitness testimony, highlighting certain critical factors to consider. The defense had adequate opportunity—of which it took certain advantage—to challenge the identification testimony and to argue to the jury its unreliability, and no harmful, reversible error was shown. A camcorder video recording of a computer video file played on a monitor was admissible because if an original is lost or destroyed—through no bad faith on the part of the proponent—the proponent is not required to present either the original or a duplicate, and here technological limitations of the system prevented the police from preserving the original recording, which was also not unduly prejudicial under Federal Rule of Evidence 403. The convictions are affirmed.
June 24, 2013
S. Ct. Crim. No. 2011-0061
Daniel Pichierri v. People of the Virgin Islands
In prosecution leading to findings of guilt in the Superior Court on charges of assault in the third degree, disturbance of the peace, and simple assault, along with intimidation on the basis of the victim’s race, there was sufficient evidence to sustain defendant’s conviction for committing unlawful acts constituting simple assault under 14 V.I.C. § 299(2). However, under the limited, detrimental reliance exception to the general rule that the government may unilaterally withdraw a plea offer at any time, the defendant is entitled to specific performance of the plea agreement that was offered in this case because he took the substantial step of standing in open court and entering a guilty plea under oath, thereby performing under that agreement in detrimental reliance upon the People’s offer. Thus it is not necessary on this appeal to address the sufficiency of the evidence as to the defendant’s other convictions for assault in the third degree, intimidation and disturbance of the peace. The Judgment and Commitment is vacated and the case is remanded for specific enforcement of the plea agreement.
June 20, 2013
S. Ct. Crim. No. 2011-0053
Auriel Devon Frett v. People of the Virgin Islands
In a prosecution for first degree murder and other offenses, the Superior Court committed reversible error when it permitted the People to use a statement obtained in violation of the defendant’s constitutional right to counsel, and which was suppressed before trial, as substantive evidence against him at trial. It is black letter law that a statement obtained in violation of a defendant’s right to counsel, and subsequently suppressed, may not be used as substantive evidence and instead can only be used, if at all, to challenge the credibility of the witness. The People have not shown that the error was harmless in this case, which involved conflicting evidence. The convictions are reversed and the case is remanded for a new trial. In giving instructions on weighing the credibility of witnesses, unless there is a compelling reason to omit it, the better practice to give an instruction advising the jury that they should consider “with great care and caution” the testimony of accomplices, immunized witnesses and witnesses cooperating with the government in return for some benefit. Upon retrial, the court should reconsider its decision not to give the “great care and caution” instruction if such instruction is requested. The present record is not sufficiently developed to allow a determination whether the trial judge should have recused himself pursuant to 4 V.I.C. § 284, and consequently it cannot be found that the trial judge’s failure to recuse himself sua sponte constituted “plain error.”
June 18, 2013
S. Ct. Civ. No. 2012-0090
Epifanio Berrios-Rodriguez v. Maria Berrios
Orders of the Superior Court requiring a former husband to pay alimony to his ex-wife and setting an amount, in light of a multi-factor test stated in prior case law, are reversed. The Superior Court is authorized under 16 V.I.C. § 109 to award alimony in a divorce case without regard to any determination that the breakdown of the marriage was the fault of one party or the other, and to determine the amount necessary for support and maintenance of a party, shifting the law governing alimony from a fault-based system to a more contemporary need-of-the-spouse scheme. In addition, 16 V.I.C. § 341 provides that an alimony award shall include all that is indispensable for maintenance, housing, clothing and medical attention according to the social and economic position of the family which, under 16 V.I.C. § 345(a), is to be proportioned to the resources of the person giving such support and to the necessities of the party receiving it. Thus the Superior Court should consider all factors to determine if the parties will be similarly situated after their divorce. If this general comparability of resources and capacity is shown, then that should be the end of the matter. But if the divorce causes a disparity between the former spouses, the court should fix a gross or installment alimony award that strikes the appropriate balance between the party in need of support, as defined by section 341(g), and the other party’s ability to pay. It should not simply look at the parties’ current finances, but may consider their potential for future earnings based on educational background, employment history, and other relevant factors as well as the social and economic position of the family. The Superior Court is afforded a great deal of discretion in its ultimate determination, but in this case it erred in failing to make findings as to the former husband’s potential future earnings, and in relying on its own independent recollection of media accounts of the opportunities provided to refinery workers as a basis for rejecting the husband’s testimony. Since the uncontradicted evidence in the record established an expiration date for the husband’s contract, the Superior Court should have determined his ability to pay based the severance sum, and other known assets, and—if and only if supported by competent, admissible evidence—any imputed income resulting from a finding of willful unemployment or a bad faith or neglectful job search. Accordingly, the alimony award is reversed and the case is remanded for further proceedings.
June 14, 2013
S. Ct. Civ. No. 2010-0026
Frank C. Pollara, et al. v. Chateau St. Croix, et al.
In a suit and counterclaim arising out of an unconsummated transaction involving sale of a hotel, the Superior Court abused its discretion in dismissing the buyer’s action based upon his failure diligently to prosecute the case without first considering the factors governing this drastic form of relief, as set forth in Halliday v. Footlocker Specialty, Inc., 53 V.I. 505 (V.I. 2010), deciding the case on the merits rather than focusing on the sufficiency of the complaint under Rule 12(b)(6). The Superior Court also erred in granting summary judgment in favor of the defendant seller for recovery of the $100,000 earnest money deposit contemplated in the transaction. While there was no opposition on file against the seller’s summary judgment motion seeking this relief, and hence those material facts set forth by the movant with record support are accepted as true, defendant nonetheless failed to show that plaintiff’s failure to tender the earnest money deposit was a material breach under the contract for sale of the hotel, as amended by various addenda agreed to by the parties. There were material issues of fact on several issues, precluding entry of summary judgment. The orders dismissing the complaint and entering summary judgment on the seller’s counterclaim are reversed, the Superior Court’s refusal to reconsider these rulings is vacated, and the case is remanded for further proceedings consistent with this opinion.
May 23, 2013
S. Ct. Civ. No. 2012-0120
In re Guardianship of Lillian R. Smith
In considering an attorney's appeal from an order of the Superior Court denying her request for attorney's fees and costs arising out of her representation of a client, now deceased, in contested guardianship proceedings, the Superior Court erred in categorically denying the attorney's request on the ground that the client had been declared incompetent prior to the date that the attorney was hired to represent the client in the guardianship proceedings. Former Title 15, Section 844 of the Virgin Islands Code governs the attorney's request, and this statute established an exception to the common law of contracts rendering the client's competency to enter into a contract to hire the attorney. This statute also authorized attorney’s fee awards (1) on appeal from an order establishing a guardianship, and (2) in proceedings to revoke a guardianship, without regard to whether the proceeding results in the guardianship being terminated. The Superior Court's interpretation of this statute was inconsistent with the Legislature’s clear intent to encourage putative wards to obtain retained counsel to defend against petitions seeking to declare them incompetent, in that imposing an additional requirement that the ward possess the legal capacity to enter into a contract with retained counsel would make it exceedingly difficult for individuals served with guardianship petitions, or those attempting to terminate an existing guardianship, to obtain retained counsel. However, the statute required expenses charged to the ward’s estate to be reasonable, and a court should not merely "rubber stamp" a request for fees and costs, but must play an active role in determining if claimed expenditures were reasonably necessary to safeguard the ward’s legal right to defend against an initial guardianship petition and to attempt to terminate the guardianship, whether before the Superior Court or on appeal to this Court. Therefore, although the attorney in this case is entitled to collect reasonable fees and costs from the client's estate, the Superior Court is directed, on remand, to conduct a reasonableness analysis in the first instance. The Superior Court's October 10, 2012 Order is reversed and the matter is remanded for further proceedings.
May 15, 2013
S. Ct. Civ. No. 2012-0032
Warrington Chapman v. Mary Adams Cornwall, et al.
In an action for breach of contract, wrongful discharge, and defamation brought by an employee terminated from a position as a territorial landfill operations manager with the Virgin Islands Waste Management Authority for falsifying his academic record, summary judgment for the defendants is affirmed. While the Superior Court erred in finding that no contract existed solely by virtue of plaintiff's status as a full-time government employee, since 29 V.I.C. § 500 authorizes contractual hiring for certain positions or categories of positions, dismissal of this claim is affirmed because he failed to produce sufficient evidence to create a genuine dispute as to possible contract terms or duties derived from the authority's human resources manual. In addition, plaintiff failed to exhaust administrative remedies before bringing suit in the Superior Court and would be unable to maintain a breach of contract action based on civil service protection, even if he had been a classified employee. Even if the duty of good faith and fair dealing is applicable to plaintiff’s employment relationship, summary judgment on this theory is appropriate because he failed to identify acts amounting to fraud or deceit by the employer. The Superior Court correctly granted summary judgment on plaintiff's claim under the Wrongful Discharge Act, 24 V.I.C. §§ 76–79, because VIWMA is a public employer expressly exempt from application of the Act, and its director is entitled to qualified immunity from tort liability under 29 V.I.C. § 496 and § 497. Plaintiff's defamation cause of action was properly dismissed for failure to specify who communicated false information about him and who is the responsible party. Plaintiff has conceded that he does not know who gave out the information and further agrees that his defamation claim was insufficiently pled. Thus plaintiff failed demonstrate a genuine dispute of material fact that would have allowed this case to proceed to trial, and the Superior Court’s grant of summary judgment in favor of the defendants on all counts is affirmed.
May 2, 2013
S. Ct. Civ. No. 2012-0110
Horace Brooks v. Government of the Virgin Islands, et al.
In proceedings after a union filed a grievance on behalf of a terminated government employee, and the Government refused to participate in arbitration, in which the Public Employees Relation Board concluded that the employee was not a member of the union because his position was exempt and not included within the union’s supervisory bargaining unit, the Superior Court erred in dismissing a Petition for Writ of Review of this action. While, as filed, the employee was denominated as the petitioner requesting review, the court erred in denying a request to substitute the union, a party to the Board proceedings, as petitioner and erred in dismissing the petition for lack of jurisdiction for failure to name an aggrieved party in the caption of the petition. There is nothing in 24 V.I.C. § 380 to suggest that a mistake in naming the petitioner in the caption of the petition for review should constitute a jurisdictional defect, and no clear indications that the Legislature intended such a result. Thus, while the requirement that an aggrieved party file the petition is mandatory, it is not jurisdictional. Further, in the present case no prejudice would have inured to the Government or the Board if the court allowed the amendment. Consequently, the trial court erred when it dismissed the a petition for review without considering whether Rule 17 of the Federal Rules of Civil Procedure would permit the nunc pro tunc substitution of the union as the petitioner in this case. The Superior Court's October 2, 2012 order is reversed and the case is remanded for further proceedings consistent with this Opinion.
April 30, 2013
S.Ct. Civ. No. 2009-0049
Melvin Walters, Sr., et al. v. Loretta A. Parrott
In litigation between two parties who never married but maintained a long relationship, involving two parcels of real property and claims for partition and sale, a counterclaim for recovery of rent received from tenants, and disputes over access to the property as well as maintenance expenses among other issues, with additional questions relating to jurisdiction over the properties at issue, contempt sanctions, recusal of the judge, and a motion for a new trial, the trial court properly exercised jurisdiction over the real properties. One of the parties had an equitable interest in the property, and the Superior Court has jurisdiction in matters of unjust enrichment, equitable lien, and all other equitable theories. The trial court also did not err in denying a motion for contempt and sanctions, a matter wholly within its discretion, and in this case there is no argument that the trial court erroneously applied the law or committed clear error in its application of the facts. Neither party provided appendices with any order one of the parties allegedly refused to obey, obviating review the trial court’s reasoning concerning any motion for contempt and sanctions that allegedly was denied. The trial court also did not err in denying a motion for recusal since none of the grounds identified in 4 V.I.C. § 284 is alleged, and no cognizable legal reason is advanced for the trial judge to have recused herself from this case. The trial court did not err in denying a motion for reconsideration or new trial. No evidence was identified demonstrating that the trial court’s findings are clearly erroneous, and there is no argument that a party was denied an opportunity to present evidence. The record reflects that the trial judge entered her findings of fact and conclusions of law after hearing the testimony of both parties, and they appear to be reasonable based on testimony elicited at trial. It has not been demonstrated that certain expense reimbursement claims involve newly discovered evidence that was not available to be presented at trial. Therefore the judgment and orders of the Superior Court are affirmed.
April 29, 2013
S.Ct. Civ. No. 2008-0028
Angel Rodriguez v. Bureau of Corrections, et al.
In the review of appeals from Superior Court orders denying a new trial and refusing reconsideration of the denial of a petition for writ of habeas corpus, filed two decades after petitioner was convicted of first degree murder and sentenced to life in prison, no error is found in the rulings below and the orders appealed from are affirmed. The petitioner's new trial motion, filed approximately 20 years after the trial and direct appeal in his case, was untimely under both Rule 33 of the Federal Rules and Rule 135 of the Superior Court Rules. The sufficiency of the evidence at trial to support a conviction may not be challenged in a petition for writ of habeas corpus. The petitioner's claim that he was deprived of due process because the prosecutor solicited false testimony from witnesses during the course of the trial was not supported by proof of either the falsity and materiality of testimony, or the prosecutor’s knowledge of such alleged falsity. Habeas corpus review is an extraordinary remedy and will not be allowed to do service for an appeal. Criminal defendants are barred from using habeas applications to re-litigate issues decided on direct appeal. Accordingly, the Superior Court was correct in rejecting the petitioner's motion for reconsideration of the denial of his petition for writ of habeas corpus, and the orders of that court are affirmed.
April 11, 2013
S. Ct. Civ. No. 2013-0013
In re Elmo A. Adams, Esquire
Upon a petition filed by the Ethics & Grievance Committee of the Virgin Islands Bar Association requesting suspension of an attorney from the practice of law in the Virgin Islands, the attorney's attempted resignation was not submitted to the Court as an offer to consent, admitting violations of the Model Rules of Professional Conduct, and thus it is a nullity having no effect on the proceeding. On the charged ethical violations, the Committee correctly found that the attorney violated Model Rule 8.1(b) in failing to respond properly to the charges. His conduct violated the requirement of Model Rule 1.3 that an attorney represent the client with reasonable diligence and promptness, as well as Model Rule 1.4(a)(3), which mandates that a lawyer keep the client reasonably informed about the status of the matter. In reviewing the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors, the Committee' recommendation that this Court indefinitely suspend the attorney until and unless he pays a certain judgment in a Superior Court action, is inconsistent with the purpose of the attorney discipline system. Under the circumstances here, a serious, intentional ethical breach that resulted in injury, but only with respect to a single client matter, a six month suspension and a public reprimand represents the appropriate sanction.
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April 5, 2013
S. Ct. Crim. No. 2012-0095
Jermaine Williams v. People of the Virgin Islands
After the decision in a prior appeal affirmed convictions for second-degree murder, assault, and unauthorized use of a firearm during the commission of a crime of violence, remanding the matter for resentencing, Williams v. People, 56 V.I. 821 (V.I. 2012), the Superior Court issued an amended judgment that is an appealable final order adjudicating guilt on all charges, with a corresponding sentence for each offense. Stay of execution of sentence does not affect the finality of the judgment, and this Court has jurisdiction over the present appeal. The argument that the Superior Court erred in resentencing defendant without his physical presence in these circumstances has previously been rejected in governing case law. Nor did the amended judgment violate defendant's right to a speedy trial pursuant to the Sixth Amendment. However, the Superior Court acted precipitously in issuing the amended judgment without providing the parties with prior notice that it would do so – and it failed to comply with this Court's prior opinion, requiring it to impose punishment for one of the crimes of which defendant was found guilty (second degree murder, first degree assault, or third degree assault) and stay the imposition of punishment for the remaining two crimes, and also to impose punishment for one of the firearms violations for which he was found guilty and stay the imposition of punishment for the remaining two. The amended judgment fails to stay any of the unauthorized use of a firearm convictions. This was plain error, affecting the defendant's substantial rights and the public reputation of judicial proceedings. Therefore, the amended judgment is vacated and, for a second time, the Superior Court is directed to stay execution of punishment for two of the three firearms convictions in accordance with 14 V.I.C. § 104.
March 15, 2013
S. Ct. Crim. No. 2012-0109
Peter R. Najawicz v. People of the Virgin Islands
In a criminal trial where the defendant contended that the jury was hopelessly deadlocked after five and one-half days of deliberation, and that further instruction would be reversible error since a supplemental instruction in the nature of an Allen charge had already been given, the Superior Court did not abuse its discretion in declaring a mistrial. The test of manifest necessity in this context requires that a trial court make a sound decision, and close cases regarding the propriety of a mistrial are resolved in favor of the liberty of a citizen. Here the Superior Court was confronted with extraordinary and striking circumstances demonstrating a high degree of necessity that the trial come to a premature end, including sidebar conferences, non-unanimous verdict forms, a note from the jury foreman, the complexity of the charges, as well as the length of both the trial and deliberations. The Superior Court’s action appears reasonable, and it cannot be concluded that it acted irrationally or irresponsibly, or upon reasons completely unrelated to trial problems, in finding that additional time for deliberations would not make a difference and that declaration of a mistrial was necessary due to the jury's inability to reach a unanimous verdict. The ultimate result reached by the Superior Court is affirmed based on this Court's consideration of the entire record and the totality of the circumstances, even if the Superior Court itself failed to do so. Thus there was no error in the later decision which denied the defendant's motion to dismiss the information on grounds that continued prosecution would violate the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.
March 7, 2013
S. Ct. Civ. No. 2010-0089
Diane Ross and Ike Bracy vs. Harold Hodge
In an action arising from a professional services agreement involving multiple businesses in the construction industry – with claims and counterclaims sounding in contract, fraud, breach of fiduciary duty, conversion and unjust enrichment – the Superior Court did not err by finding that a party was unjustly enriched because she exerted undue influence over the plaintiff in acquiring a parcel of property, but erred in granting an equitable lien in property owned by her. The Superior Court erred by denying a motion for a directed verdict on plaintiff’s conversion claim, and abused its discretion by dismissing a counterclaim without considering whether good cause existed to grant the defendant an extension to serve the counterclaim or whether such an extension was otherwise warranted. The Superior Court did not err by prevented the jury from considering claims relating to certain projects under the services agreement because defendant testified that plaintiff recovered no money on these contracts, and hence the defendant's percentage of those contracts was zero and plaintiff owed him no money relating to those contracts. The judgment appealed from is affirmed in part and reversed in part. The portion of the judgment finding unjust enrichment at plaintiff's expense is affirmed. Other portions of the decrees and orders are reversed, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion, including the entry of a new judgment affording a remedy on the unjust enrichment claim upheld in this appeal.
March 6, 2013
S. Ct. Crim. No. 2012-0077
Desron Ward v. People of the Virgin Islands
Considering an appeal from the Superior Court’s February 3, 2012 Judgment and Commitment adjudicating the defendant guilty of third degree assault in violation of 14 V.I.C. § 297(2) and use of a deadly weapon during the commission of a crime of violence in violation of 14 V.I.C. § 2251(a)(2)(B) and imposing separate sentences for these offenses to be served consecutively, the defendant’s argument that the Revised Organic Act of 1954, the Fifth Amendment of the United States Constitution, and 14 V.I.C. § 104 precluded the Superior Court from imposing separate punishments is rejected. Congress did not intend to confer greater double jeopardy protections upon the Virgin Islands than are provided under the Fifth Amendment to the Constitution of the United States, and in enacting 14 V.I.C. § 2251, the Virgin Islands Legislature intended to establish an exception to the general rule set forth in 14 V.I.C. § 104 and allow individuals to be punished for both violating 14 V.I.C. § 2251 and for committing the underlying crime of violence. In addition, because 14 V.I.C. § 104 and 14 V.I.C. § 2251 are not ambiguous, the rule of lenity does not apply so as to render the latter statute void. However, because restitution, when ordered as part of a criminal case, is part of the defendant’s sentence, and because fixing the specific amount of restitution is a judicial act under Virgin Islands law as provided in 34 V.I.C. § 203(d)(3), the Superior Court erred when it delegated to the victim the authority to set the restitution amount. Thus, the matter is remanded to the Superior Court with respect to the restitution award. In addition, since 14 V.I.C. § 2251 allows either consecutive or concurrent sentences to be imposed, and it cannot be determined from the record whether the Superior Court imposed a consecutive sentence because it fully adopted the prosecution’s position that it lacked the discretion to order a concurrent sentence, or if it was aware of applicable case law permitting it to impose either a concurrent or a consecutive sentence and simply exercised its discretion to impose the latter, on remand the Superior Court is authorized to correct the defendant’s sentence in the event it imposed the consecutive sentences out of a mistaken belief that 14 V.I.C. § 2251 created a mandatory duty to impose consecutive sentences. The defendant’s convictions are affirmed, but the February 3, 2012 Judgment and Commitment is vacated and the matter is remanded for re-sentencing.
March 1, 2013
S. Ct. Crim. No. 2011-0062
Jerome Rawlins v. People of the Virgin Islands
The defendant's convictions under 20 V.I.C. § 493(a)(1) for driving while intoxicated, and 20 V.I.C. § 493(a)(2) for operating a motor vehicle while having 0.08 percent or more by weight of alcohol in his blood, are affirmed. The first count of the criminal complaint was not duplicitous in purportedly charging defendant with violating two distinct sections of the Virgin Islands Code, because § 493(b)(1) does not establish a separate offense, but only codifies the punishment for a violation of § 493(a)(1). Application of § 493(b)(1) did not violate the requirement set forth in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, since this is precisely what the Superior Court did in this case, when it required the jury to issue a special verdict as to whether the defendant was involved in a traffic accident at the time he violated § 493(a)(1). Nor was the special verdict itself invalid. The constitutional challenge to the portion of § 493(b)(1) prescribing an enhanced penalty for defendants involved in an accident is rejected: this section does not, in any way, criminalize “inherently innocent activity,” since it only applies if the person was involved in an accident violating subsection (a), and no authority exists for holding § 493(b)(1) unconstitutional. Defendant's challenge to the sufficiency of the evidence on a second count is also without merit, since the People clearly introduced evidence sufficient for conviction on the charge of operating a motor vehicle while having 0.08 percent or more by weight of alcohol in his blood. The breathalyzer device was explained and the witness testified to its administration in this case. However, the People agree that imposition of separate sentences for the convictions under both § 493(a)(1) and § 493(a)(2) violates the “one crime, one punishment” rule of 14 V.I.C. § 104. This establishes plain error, since the acts of driving under the influence and operating a motor vehicle with a blood alcohol content of 0.08 percent or greater clearly arose from “an indivisible course of conduct” and were part of an indivisible state of mind or coincident error of judgment, given that both offenses arose from the single act of operating an automobile after having consumed an excessive amount of alcohol. Therefore, this matter is remanded to the Superior Court with instructions to sentence the defendant for only one offense, refund any excess fine that has been paid, and dismiss the remaining count.
February 26, 2013
S. Ct. Civ. No. 2012-0094
In re Suspension of B. Patricia Welcome, Esq.
In an appeal from the disposition of the Ethics and Grievance Committee of the Virgin Islands Bar Association, which found that the attorney violated several ethical rules, the Committee's recommendations are adopted in part and rejected in part and the case is remanded. The attorney's level of cooperation with the disciplinary process was sufficient to warrant a finding that she did not violate Model Rule 8.1(b) by failing to respond. Consequently, the attorney is not in default and an independent review and weighing of the evidence has been undertaken. The facts, as found by this Court, constitute clear and convincing evidence that the attorney violated Model Rules 1.1, 1.3, 1.4(a)(1), 1.4(a)(3), and 1.4(a)(4), and the attorney's arguments against such findings are rejected. However, since the Committee in this case simply stated the ultimate sanction recommended, without identifying the baseline sanction or explaining how any aggravating or mitigating factors justify an upward or downward departure from that baseline, it cannot be determined whether it followed the correct procedure or impermissibly weighed all required factors simultaneously. The Committee has not sufficiently explained the reasons for its recommended sanction, nor made certain needed findings concerning the injury caused in this case, and comparison with the sanctions imposed upon other Virgin Islands attorneys for violation of these same Rules. Accordingly, the matter is remanded for a new sanction recommendation, which must (1) take into account that the attorney did not violate Model Rule 8.1(b), and (2) address the issues identified in the present opinion. Remand is for the limited purpose of the Committee issuing, on an expedited basis, a new proposed sanction that is accompanied by an explanation sufficiently clear as to enable meaningful review by this Court.
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June 21, 2013
S. Ct. Civ. No. 2010-0054
Patrick Anthony v. FirstBank Virgin Islands .
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January 17, 2013
S. Ct. Civ. No. 2010-0054
Patrick Anthony v. FirstBank Virgin Islands
In a foreclosure action by a bank against the purchaser of a condominium destroyed by a hurricane, in which insurance recovery became unavailable, the Superior Court erred in granting the bank's summary judgment motion by failing to view the evidence presented in the light most favorable to the non-movant, in this case the debtor. On the issue whether the debtor was in default under the terms of the note, his answers to interrogatories state that he suspended payments because he believed the debt was already paid in full due to a settlement the bank received from a previous lawsuit involving the insurance underwriter. The answers cannot be read as an admission by the debtor that he actually owed any remaining amount on the debt, and other information submitted showed at least one report to the IRS by the bank indicating that the loan had been repaid in full. Thus the Superior Court engaged in impermissible weighing of contested evidence on the material fact question of whether the debtor was in default under the note, and erred in granting the drastic remedy of summary judgment rather than permitting the case to go to trial on this material issue. However, the debtor's tort and contract counterclaims, filed against the bank 12 years after the alleged misrepresentations or breach of contract occurred, were barred by the statute of limitations, and the “continuing violations” doctrine deferring the running of the statutory period until the date of the last injury or when the wrongful conduct ceased, was correctly rejected by the Superior Court because he failed to set out a course of conduct which would be actionable and did not point to any particular wrongful act that occurred during the statute of limitations as required under the doctrine. The trial court’s grant of summary judgment in favor of the bank on all of the counterclaims is affirmed, but its grant of summary judgment on the bank's claim on the note is reversed and the order of foreclosure is vacated.
January 10, 2013
S. Ct. Civ. No. 2012-0134
In re: Attorney Doe
Concerning a petition for a writ of prohibition filed by an attorney under a fictitious name, requesting that the Supreme Court enjoin a panel of the Virgin Islands Bar Association Ethics and Grievance Committee from conducting further proceedings with respect to two pending grievances, the petitioner has not established that he or she is entitled to the writ. The language of Supreme Court Rule 207.1.3(a) providing that “[t]he Committee shall investigate all charges of professional misconduct that may be brought to its attention in writing, or it may initiate such investigation on its own," authorizes the Committee to investigate alleged misconduct even if the matter was not brought to its attention by a “grievant,” and this interpretation of the rule's language does not render the definition of “grievant” in Supreme Court Rule 207.1.2(a) meaningless. Thus, in this case, where Disciplinary Counsel initiated the first investigation sua sponte, and the second grievance came before the Committee as a result of a referral from a Superior Court magistrate, the Committee has not exceeded its authority by permitting both matters to proceed. In addition, the petitioner possesses an adequate alternate means of attaining the relief he or she desires, in that he or she may simply allow both pending proceedings to run their natural course, and if the Committee ultimately disagrees with his or her interpretation of the standing requirements of Rule 207, the petitioner could appeal the adverse decision to this Court, pursuant to Supreme Court Rule 207.4.11(a)-(b). Accordingly, the petitioner failed to establish that he or she has no adequate means to attain the desired relief other than the desired writ of prohibition, and failed to establish that his or her right to the writ is clear and indisputable; thus, the petition is denied.
January 7, 2013
S. Ct. Civ. No. 2012-0047
In re Suspension of Edward Parson, Esquire, as a Member of the Virgin Islands Bar
Under the Court's exclusive jurisdiction to discipline members of the Virgin Islands Bar pursuant to 4 V.I.C. § 32, a petition by the Ethics and Grievance Committee of the Virgin Islands Bar Association for approval of its recommendation to suspend an attorney from the practice of law for a period of 12 months and requesting entry of an order requiring him to pay a specified monetary amount as restitution to the client is granted. A client who did not receive proceeds from settlement of a personal injury action for over one year, filed a grievance, and unsuccessful efforts to contact the attorney rendered the matter dormant for several years. Model Rule 8.1 is violated when an attorney who has been provided with numerous opportunities to respond to a grievance, inexplicably fails to do so. In addition, here the attorney violated Model Rule 1.15(d) by failing to provide the client with any of the proceeds from settlement of a civil action, and failing to respond to any of his inquiries. The Committee correctly classified the attorney's failure to participate in the disciplinary proceedings as an aggravating factor, and its recommendation for a 12-month suspension combined with $2,500 in restitution, plus interest, is approved. Given that a suspension for non-payment of dues is purely administrative, while the suspension ordered in this case is a sanction for serious professional misconduct, the suspension imposed as a sanction for the ethical violations shall run consecutive to administrative suspensions. The attorney shall be suspended from the practice of law for 12 months, which shall be consecutive to his present suspension for non-payment of dues, with the 12 month period beginning to run on the date the attorney pays all delinquent dues and late fees to the Virgin Islands Bar Association and would otherwise qualify for reinstatement under Supreme Court Rule 205(d). In addition, after receiving the Committee’s calculation of prejudgment interest on the $2,500 restitution award, this Court shall issue an order requiring the attorney to pay restitution to the client. If he did not already do so after his prior suspension for non-payment of dues, the attorney shall also comply with Supreme Court Rule 207.5.5. Upon expiration of the 12-month period, the attorney may petition for reinstatement in accordance with Supreme Court Rule 203(h).
January 2, 2013
S. Ct. Civ. No. 2012-0022
Walter Gardiner, M.D. v. Jewel Diaz
In a small claims proceeding by a former employee seeking to enforce a Department of Labor order for recovery of $915 in unpaid overtime compensation, the former employer's challenge to the order of the Appellate Division of the Superior Court affirming a magistrate’s ruling is rejected. While the notice of appeal in this case was not filed within the required 30 days after the date of entry of judgment as required by V.I.S.CT. R. 5(a)(1), this provision is a case-processing rule and may, therefore, be waived by an opposing party’s failure to object. Because it is apparent from the record that the employer's claim lacks merit, the interests of judicial economy are best served by direct review of the proceedings before the magistrate. In response to the Small Claims Division proceeding the former employer could have filed a written answer with a counterclaim, and had a number of opportunities to argue his counterclaim to the court in three separate appearances before a judge and the magistrate, but never mentioned any such counterclaim. Nor was there anything to prevent the employer from filing a separate small claims action for the amount he claimed that the former employee owed him. Because the employer had an adequate opportunity to raise his counterclaim before the magistrate—but failed to do so— the matter is deemed waived, as provided in V.I.S.CT. R. 4(h). Thus the Appellate Division did not err when it declined to address the arguments the employer raised in his brief on review, and its February 1, 2012 decision upholding a magistrate's ruling in favor of the former employee is affirmed.
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