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2018 Published Opinions
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June 14, 2018
S. Ct. Crim. No. 2016-0043
People of the Virgin Islands v. Jah’var Looby
      Because the Superior Court properly exercised its authority to reconsider its ruling on a motion to suppress evidence seized in a pat-down frisk of the defendant, the People’s notice of appeal from the ruling on reconsideration was timely and comports with Virgin Islands Rule of Appellate Procedure 5(b)(2). A review of the totality of the circumstances supports a finding of reasonable suspicion for the search in this case, because marijuana remains contraband in this Territory under 19 V.I.C. § 595 and possession of it is punishable as either a crime or civil infraction under 19 V.I.C. §§ 607(a) or 607a. When suspicious conduct is noticed, leading a law enforcement officer reasonably to conclude in light of his experience that criminal activity may be afoot, the officer may stop the individual to identify himself and make reasonable inquiries. The validity of a pat-down frisk search is considered independently under the totality of the circumstances. Because possession of marijuana remains unlawful in this Territory, reasonable suspicion to conduct a stop may be established if an officer relied upon his or her experience and training to detect the presence of that contraband. In this case, the defendant told an officer – after the stop but before a pat-down frisk – that he possessed a marijuana cigarette. Admissions of crime carry their own indicia of credibility sufficient to support a finding of probable cause to search, thus the officer had probable cause to believe that this defendant possessed contraband subject to seizure, especially considering that the officers, in fact, smelled marijuana coming from his person. That the officers exercised their discretion not to issue a citation for possession of marijuana does not render the search of the defendant’s person unlawful. Accordingly, the Superior Court erred in excluding the firearm discovered as a result of the lawful search, and it erred in denying the People’s motion to reconsider its ruling granting the defendant’s motion to suppress. The July 27, 2016 opinion and order granting suppression is reversed, and this action is remanded to the Superior Court for further proceedings in accordance with this opinion.
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June 13, 2018
S. Ct. Crim. No. 2017-0035
Mario Gevon Emanuel v. People of the Virgin Islands
      The Superior Court did not err in denying a defendant’s motion to suppress an unlicensed firearm with obliterated serial numbers found on his person. Under the Fourth Amendment an officer may briefly detain a person to determine whether a crime has been committed or is about to be committed – if there is reasonable suspicion existed to justify the stop given the totality of the circumstances in light of the individual officer’s training and experience. In determining whether the detaining officer had a particularized and objective basis for suspecting legal wrongdoing, courts must evaluate the collective information of all officers involved. In this case, the officer relied on information from a taskforce briefing and believed that the defendant resembled the suspect described in a notice to “be on the lookout” for a perpetrator, providing a reasonable suspicion under a totality of the circumstances. In this case the suspected criminal activity for which the defendant was stopped was the future act of executing a threat and committing violence against an officer. Once a suspect has been stopped an officer may – for his own safety – perform a cursory inspection of the detainee’s outer clothing if the officer has reasonable suspicion that the detainee is both armed and dangerous. In this case the defendant told the officer, before a pat-down search began, that he had a gun in his pants pocket, giving legitimate cause for the officer to believe he was armed and dangerous. The Superior Court did not err in denying the motion to suppress, and its judgment entered upon convictions for unauthorized possession of a firearm, 14 V.I.C. § 2253(a), and unauthorized possession of a firearm with altered identification marks, 23 V.I.C. § 481(b), is affirmed.
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June 8, 2018
S. Ct. Civ. No. 2015-0019
In re Suspension of Desmond L. Maynard, Esquire as a Member of the Virgin Islands Bar
      Considering a petition for disciplinary action filed by the Board on Professional Responsibility arising from grievances filed against an attorney for his handling of certain probate proceedings and requesting that the attorney be suspended from the practice of law in the Virgin Islands and be ordered to pay restitution, the petition is granted and the recommended sanction is imposed in part. The attorney violated his duties under Supreme Court Rules 211.1.1, 211.1.3, 211.1.4, 211.1.15, and 211.8.1 by, among other things, permitting the probate of an estate to languish for over a decade, failing to communicate with an estate beneficiary with respect to the liquidation of certain securities, and failing to keep safe certain property of that estate. The attorney’s lethargic attitude toward the administration of the estate not only significantly delayed the beneficiaries’ receipt of certain assets, it also wholly precluded them from receiving other assets, which were lost due to the passage of time and the attorney’s generally negligent handling of the estate. This case presents a picture of a highly experienced, reputable attorney who nevertheless engaged in a pattern of egregious neglect that ultimately resulted in losses to his client—not just of cash, but of personal property that should have passed to the beneficiaries of her estate. Based on the record, the attorney’s violation of the Rules of Professional Responsibility has deprived his clients of $20,769.85, and caused his clients to expend an additional $8,500.00 in damages. Accordingly, the attorney is ordered to pay restitution to the beneficiaries of the estate in the amount of $29,269.85, representing the value of the assets lost due to his negligence, and the attorney is suspended from the practice of law in this jurisdiction for a period of 18 months.
      Download Per Curiam Opinion  (165 kb)

June 8, 2018
S. Ct. Civ. No. 2018-0040
Lilliana Bellardo de O’Neal, et al. v. Government of the Virgin Islands
      The Superior Court did not err in finding the appellants, previously elected members of either the St. Croix Board of Elections or the St. Thomas-St. John Board of Elections, to be in violation of Act No. 7892 as amended by Act No. 7982, which directed that the St. Croix Board of Elections and St. Thomas-St. John Board of Elections be merged into a single board of elections. These two Acts are not inconsistent with section 6(c) of the Revised Organic Act, since Congress has directed that plural words in federal statutes also include the singular unless context requires otherwise. Moreover, Act No. 7982 cannot be reasonably interpreted to allow the St. Croix Board of Elections and St. Thomas-St. John Board of Elections to continue to co-exist along with the new single board of elections. Because the Government requested the Superior Court to determine the status of the district boards and the validity of the actions taken by them after August 1, 2017, the question was a proper one for a declaratory judgment. Accordingly, the Superior Court’s May 10, 2018 judgment is affirmed.
      Download Opinion  (57 kb)

April 20, 2018
S. Ct. Civ. No. 2017-0050
Alicia “Chucky” Hansen and Carolina F. Fawkes v. Adelbert M. Bryan
      In considering a motion pursuant to Virgin Islands Rule of Appellate Procedure 30 for recovery of costs and attorney’s fees incurred in a prior appeal – issues remanded by prior order of this Court for consideration by the Superior Court – the law of the case doctrine precluded the appellants in the prior appeal from challenging the timeliness of that motion, and their untimeliness argument in any event lacks merit since the prior appeal was not final for these purposes while a motion for reconsideration was pending. The fact that 18 V.I.C. § 412 is silent with respect to awards of costs and fees when a petition is not dismissed is not indicative that the Legislature intended to preclude the application of 5 V.I.C. § 541 to such proceedings. Because the movant in the present litigation could have recovered attorney’s fees and costs pursuant to § 541, it was not error to award him recovery of fees and costs pursuant to Rule 30. The Superior Court also committed no error when it declined to recognize an exception to the provisions for award of costs and fees for issues of “first impression,” and it properly found one of the former appellants jointly liable to the movant/former appellee for costs and fees given her decision to intervene in the litigation and then to become an appellant. No abuse of discretion is found with respect to the amount of the costs and fees award. Accordingly, the Superior Court’s April 21, 2017 decision awarding $17,625 in attorney’s fees and $363.70 in costs is affirmed.
      Download Opinion  (178 kb)

March 27, 2018
S. Ct. Civ. No. 2015-0123
Gourmet Gallery Crown Bay, Inc. v. Crown Bay Marina, L.P.
      In a suit by a grocery store and its principal relating to leasing of premises by the defendant marina, allegedly in violation of certain covenants in the plaintiffs’ lease, an order by the Superior Court denying a motion for the escrow of rent payments pending the outcome of the litigation is not a matter over which the Supreme Court may exercise jurisdiction in the present posture of the litigation, and review is denied as to that order. The escrow order is neither a final order nor one of the categories of interlocutory orders for which a right of appeal is specified in 4 V.I.C. Sections 33(b) and (c), and V.I. R. APP. P. 5(a)(2). Nor does that order satisfy all of the requirements for review as a collaterally appealable order. The Superior Court’s order denying a preliminary injunction is properly reviewable on appeal under 4 V.I.C. § 33(b)(1), and it is concluded that the Superior Court did not abuse its discretion when it denied the motion. A preliminary injunction requires a clear showing that (1) the movant has a reasonable probability of success on the merits, (2) the movant will be irreparably injured by denial of the relief, (3) granting preliminary injunction relief will not result in even greater harm to the nonmoving party, and (4) granting the preliminary relief will be in the public interest. Here the required proof regarding irreparable harm such as undeterminable or un-rectifiable monetary loss was insufficient, and the Superior Court did not err when it concluded that plaintiff did not demonstrate that the balance of hardships favored the issuance of an injunction. In addition, the evidence supported the Superior Court’s conclusion that granting the preliminary injunction would not be in the public interest. The portion of the judgment denying the preliminary judgment motion is affirmed, and this matter is remanded for further proceedings in accordance with this opinion.
      Download Opinion  (126 kb)

January 18, 2018
S. Ct. Civ. No. 2017-0010
Shirley Rymer v. Kmart Corporation
      The Superior Court erred in dismissing a slip-and-fall personal injury action against the defendant retailer on summary judgment, a drastic remedy that should only be granted where there is no genuine issue as to any material fact. In a premises liability suit, a retailer’s actual notice of a hazardous condition can be shown if an employee created or was aware of the hazard before plaintiff fell. Here, the Superior Court improperly weighed the evidence against the plaintiff—the non-moving party—and resolved the conflicting evidence in favor of the retailer when it determined that an employee’s deposition testimony was a clarification of his loss prevention statement given on the day of the injury, rather than a contradiction of it. Where there is conflicting evidence in the record, a court cannot independently weigh the proof to resolve the conflict and must accept as true the evidence most favorable to the non-moving party, so long as it is supported by proper proofs. The Superior Court also erred in granting summary judgment on the basis that the record did not show a factual dispute as to whether the defendant had constructive notice of the hazardous condition. While a non-recurring hazardous condition lasting only a matter of minutes, without more, does not create the presumption of constructive notice, assessment of the opportunity for the proprietor of the premises to discover the dangerous condition involves contextual factors like the hazard’s color, size, location, and proximity to employees. Plaintiff in this case identified mitigating factors that, taken in the light most favorable to her, establish a genuine issue of material fact regarding whether the retailer could or should have become aware of the hazardous condition before she fell. The explosive nature of the soda spill, its bright purple color, location near the store’s entrance, its proximity to employees, and the fact that another customer stayed by the spill and eagerly solicited help, are factors distinguishing this case from others where the only constructive notice factor is the hazard’s duration. Whether these circumstances are sufficient to overcome the spill’s short duration and establish that the defendant retailer had constructive notice of the dangerous condition is a balancing of the evidence that belongs with the jury, not the Superior Court at summary judgment. The judgment dismissing the case with prejudice on summary judgment is reversed.
      Download Opinion  (39 kb)
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