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2012 Published Opinions
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December 17, 2012
S. Ct. Crim. No. 2010-0059
Theodora Jackson-Flavius v. People of the Virgin Islands
      In a prosecution for third-degree assault, an act of domestic violence, in violation of 14 V.I.C. § 297(2) and 16 V.I.C. § 91(b)(1) and (2), the Superior Court properly instructed the jury on the charge of third-degree assault and its inclusion of references to use of the interchangeable terms “dangerous” or “deadly weapon” was not calculated to create any misunderstanding by the jury. The jury was also properly instructed on the People's burden of proof on the affirmative defense of self-defense, and the evidence presented supported their verdict on this issue. While a sentence is illegal when the term of imprisonment and the term of probation exceed the statutory maximum penalty for the crime, or when the judge imposes a period of probation without suspending a portion of the sentence, neither of these circumstances is present here and there was no abuse of sentencing discretion or imposition of any "split sentence" in this case. Finally, the Superior Court did not abuse its discretion in admitting lay opinion testimony about the "age" of a bruise that was apparent on the arm of defendant around the time of her arrest, since this was properly admissible under the standards of Federal Rule of Evidence 701 addressing admissibility of lay witness testimony. The judgment of conviction and defendant's sentence are affirmed.
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December 5, 2012
S. Ct. Crim. No. 2011-0114
Ira Galloway v. People of the Virgin Islands
      Convictions for driving under the influence of an intoxicating liquor, operating a motor vehicle in a reckless manner, and failure to stop at a red light, are all affirmed. Failure to stop at a red light is a valid crime in the Virgin Islands under 20 V.I.R.R. § 491-52(a) – a regulation promulgated by the Police Commissioner – and 20 V.I.C. §§ 491 and 544(f). The People introduced sufficient evidence to sustain the defendant's convictions on these charges, and he has identified no other error that would warrant setting them aside. However, since the convictions for failure to stop at a red light and reckless driving arose from an indivisible course of conduct, the corresponding sentences for those offenses are vacated and the matter is remanded to the Superior Court so that it may impose a sentence which complies with 14 V.I.C. § 104. Additionally, depending on which of those offenses is selected for imposition of punishment, the Superior Court is to directed to correct other ambiguities and errors that relate to the sentences for reckless driving and failure to stop at a red light, including references to “remaining conditions” imposed, and the concurrent nature of the sentences, and resolving any conflict between the written and oral sentences. The Superior Court must state, with specificity, exactly what sentence is being imposed for the offense it selects.
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November 29, 2012
S. Ct. Crim. No. 2008-0060
Nathan McIntosh v. People of the Virgin Islands
      Considering defendant's appeal of his convictions and the sentences imposed for possession of a controlled substance with intent to distribute in violation of 19 V.I.C. §604(a)(1) and introduction of a narcotic into prison in violation of 14 V.I.C. § 666, there was sufficient evidence to support the conviction for possession of a controlled substance with intent to distribute, and that conviction is affirmed. The conviction for introduction of a narcotic into a prison is also affirmed, because 14 V.I.C. § 666 is not vague, is not unconstitutional, and was not impliedly repealed by the Controlled Substances Law, 19 V.I.C. § 591 et seq. Defendant also lacked standing to challenge 14 V.I.C. § 666 for vagueness. In addition, the defendant's sentence of three years imprisonment for a violation of 14 V.I.C. § 666 does not constitute cruel and unusual punishment within the intendment of the Eighth Amendment. However, because the People conceded that the two offenses under which the defendant was convicted were based on one singular act, the matter is remanded for the Superior Court to decide which conviction to stay or dismiss.
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November 27, 2012
S. Ct. Crim. No. 2012-0076
Kahleem Rieara v. People of the Virgin Islands
      A Superior Court order denying a defendant's renewed motion for reduction of bail in a murder case is final for purposes of allowing appellate review under the collateral order doctrine, since it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. Supreme Court Rule 9 requires the Superior Court to state on the record its reasons for imposing conditions of release pending trial and – to facilitate appellate review – orders granting bail or refusing to reduce bail or establishing other release conditions must contain more than mere findings of ultimate fact or a recitation of the relevant criteria for release on bail; they should clearly articulate the basis for the court’s utilization of such criteria. When the court resolves a motion to modify bail and release conditions, it must make an individualized determination in order to ensure that the bail is not excessive. Any bail or conditions of release that are not tailored to achieve the purpose of bail are considered excessive and therefore unconstitutional. The mere fact that another judge, presented with another motion, had set those conditions is an insufficient basis on which to refuse to modify the conditions, particularly where the defendant’s new motion includes additional evidence or new and different proffers. Here the defendant's renewed motion included information about a new proposed substitute third-party custodian and additional documentation regarding the real property of his proposed sureties. The court should have provided reasons for retaining the bail conditions as initially set. Nor did the court adequately explain how this defendant's two previous convictions, and four total previous arrests, required a bail in the amount of $250,000. While an abuse-of-discretion standard is applied to trial court decisions concerning release on bail and the sufficiency of the sureties, and factual findings are reviewed only for clear error, meaningful review is not possible where the trial court fails to sufficiently explain its reasoning. For these reasons, the trial court’s order is reversed and the case is remanded for the trial court to more thoroughly explain its reasons for rejecting the renewed motion for reduction in bail.
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November 26, 2012
S. Ct. Civ. No. 2011-0115
Government of the Virgin Islands v. United Industrial, Service, Transportation, Professional and Governmental Workers, on Behalf of Ernest Bason
      On appeal by the Government of the Virgin Islands from an opinion and judgment entered by the Superior Court confirming an arbitration award in favor of a former Assistant Attorney General of the Virgin Islands under a collective bargaining agreement, and directing his immediate reinstatement to that post in the Virgin Islands Department of Justice, the reinstatement order constituted an appealable injunction providing jurisdiction for review under 4 V.I.C. § 33(b)(1). Assuming, without deciding, that Assistant Attorneys General may unionize pursuant to title 24, chapter 14 of the Virgin Islands Code, 3 V.I.C. § 113 precluded the arbitrator and the Superior Court from mandating that the Government reinstate an Assistant Attorney General. Accordingly, the portion of the December 13, 2011 opinion and judgment that authorized reinstatement as an Assistant Attorney General is reversed, and on remand the Superior Court is directed to issue a final judgment which is consistent with this Opinion.
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November 21, 2012
S. Ct. Civ. No. 2011-0068
Michelle Maso v. Yara Morales
      In plaintiff’s small claims action for damage to an automobile in an accident, in a case where the vehicle was destroyed by fire months after the accident in suit, the ruling of the magistrate – reviewed on appeal in light of its adoption by the Appellate Division – that a damages award is always unavailable under these circumstances is reversed. There is no authority for the proposition that a claimant must still possess the personal property for which she is asserting a claim of damages; plaintiffs may obtain damages even if they no longer possess the subject property as the result of some supervening act that destroys the property. A plaintiff need not establish her damages with exactitude, but is required to prove damages with as much certainty as the nature of the tort and circumstances permit. Here the plaintiff attempted to establish her damages by providing estimates from body shops – based not on any direct observation of the vehicle, but on the damages described in the police report and on her own descriptions of the vehicle. Because the Superior Court erroneously concluded that the plaintiff was barred from recovering any damages due to the subsequent, independent destruction of her vehicle, the Superior Court’s July 26, 2011 order is reversed, and the case is remanded for proceedings consistent with this Opinion.
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November 21, 2012
S. Ct. Crim. No. 2011-0087
Lee J. Rohn v. People of the Virgin Islands
      In an appeal by a defendant who pled guilty to a charge for simple possession of a controlled substance as a first offender, but objected to the Superior Court judge’s invocation of 20 V.I.C. § 378(a) to suspend her driver’s license for two years, the Superior Court clearly erred when it applied that provision in the absence of a judgment. Applying the plain meaning of the applicable statutes, the Legislature did not intend for §378(a) to apply to defendants who receive §607(b)(1) probationary treatment. Section 378(c) requires a judge who invokes § 378(a) to forward the defendant’s driver’s license together with a copy of the judgment to the Commissioner of Police. While the Superior Court’s order finding that the defendant had satisfactorily fulfilled the conditions of her probation constitutes a “judgment”—albeit one that dismisses all charges against her—§378 also states that the two-year period for suspending a license begins upon the date of “conviction.” Section 607(b)(1) makes clear that a discharge or dismissal from probation shall not be deemed a conviction for any purpose, and it expressly mandates that probation be imposed without entering a judgment of guilty, even if the defendant wishes to enter a plea of guilty. Section 378 establishes a general license revocation scheme for all individuals convicted under the controlled substances law, and there is no clear evidence that the Legislature intended that general provision to supersede the more specific statute, §607, which prescribes a special procedure governing first-time offenders. Thus the mandatory license revocation provisions found in 20 V.I.C. §378 do not apply to individuals who qualify for probation without conviction under 19 V.I.C. § 607(b)(1). Accordingly, the April 20, 2011 opinion of the Superior Court is reversed, along with that portion of the December 6, 2011 judgment and sentence that revokes the defendant’s driving privileges for two years
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November 7, 2012
S. Ct. Civ. No. 2012-0050
Island Tile and Marble, LLC v. Berle Bertrand, Administratrix
      In a review of four issues addressed by the Superior Court in interlocutory orders certified for immediate appellate review pursuant to 4 V.I.C. § 33(c), those rulings are affirmed as they relate to the questions certified to this Court. If the Superior Court possesses authority to grant or deny relief, it has authority to alter its decision prior to entry of judgment. In this case, a stipulation between the parties required court approval to become effective. A motion described as a motion to dismiss required consideration of matters outside the pleadings, transforming it into a motion for summary judgment, filed before the parties’ joint stipulation for discontinuance of the action, which therefore did not become binding upon filing pursuant to Federal Rule 41(a)(1)(A)(i). Federal Rule 54(b) governs whether the Superior Court should exercise its discretion to revise or alter a prior interlocutory order. But the “as justice requires” standard for granting relief under that rule is in addition to the legal standard that governs the underlying order. The Superior Court erred in applying Federal Rule 12(b)(6) in analyzing whether Rule 54(b) warranted revision of the order of discontinuance pursuant to Rule 41(a)(2), but that error was harmless in this case. The Superior Court has an active role in reviewing voluntary dismissal or settlement of wrongful death actions, as a guardian for the interests of absent relatives, and the present cases is one in which there is simply no way that the court could have denied the estate’s motion under the proper legal standard; it had no choice but to credit the factual materials filed with the motion, and it took the appropriate measures to minimize prejudice to the defendant as a result of its ruling. The uncontradicted evidence in the record established entitlement to Rule 54(b) relief, and the Superior Court did not abuse its discretion in setting aside its prior order and permitting the estate to re-file its causes of action. Finally, since the Legislature has decreed that a Certificate of Government Insurance Coverage only establishes “prima facie evidence”—as opposed to “conclusive evidence”—of status as an insured employer, the Superior Court correctly rejected the argument that the estate could not proceed in light of the exclusive remedy provisions of the Virgin Islands Worker’s Compensation Act, simply because the employer received such a certificate. Instead, under 24 V.I.C. § 272(c) every employer that has not filed the required reports and paid the premium due is considered an uninsured employer. The underlying opinions and orders of the Superior Court are affirmed as they relate to the questions certified for review in this appeal.
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October 25, 2012
S. Ct. Civ. No. 2009-0015
Ethlyn Joseph v. Daily News Publishing Co., Inc., et al.
      In a defamation action brought by a public official, the Superior Court’s Opinion and Order granting summary judgment for the defendants is treated as a final judgment because that Court intended to dismiss the underlying action in its entirety in ruling on summary judgment. After review of the elements of defamation claims in the Virgin Islands and the principles applicable where the plaintiff is a public official, including the constitutional requirement that the plaintiff prove "actual malice" on the part of the defendants by clear and convincing evidence, the judgment is affirmed. While the record contains some disputed facts, no genuine issue of material fact exists in this case because – even when the record is viewed in the light most favorable to the plaintiff (the non-moving party) – there is simply no evidence that any defendant acted with actual malice with respect to the most serious allegations. While it is possible – again viewing the evidence in the light most favorable to plaintiff – that a finder of fact could conclude that some statements in the articles sued upon were unsubstantiated, the absence of actual malice for their main “gist” precludes holding any of the defendants liable for minor or collateral inaccuracies. Accordingly, the Superior Court’s January 22, 2009 Opinion and Order is affirmed.
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October 26, 2012
S. Ct. Misc. No. 2012-0014
In re Kenth W. Rogers
      Upon a petition by the Unauthorized Practice of Law Committee of the Virgin Islands Bar Association contending that a member of the Virgin Islands Bar engaged in unauthorized practice of law while suspended for failure to complete continuing legal education hours required by Supreme Court Rule 208(b)(1), recusal of the Justices of this Court is not warranted. However, the petitioning Committee lacks authority to recommend suspension, disbarment or other sanction against an attorney who engages in or facilities the unauthorized practice of law. For this reason, whenever the Unauthorized Practice of Law Committee receives a complaint of unauthorized practice of law by a Virgin Islands attorney, it should refer the matter to the Office of Disciplinary Counsel for investigation and adjudication before the Ethics and Grievance Committee, which is the appropriate forum for consideration of these allegations as a body independent of the Bar Association, and which is not precluded from requesting that this Court issue an injunction, render a declaratory judgment, or assess a monetary fine in addition to whatever other discipline that Committee believes is warranted. The present petition is dismissed without prejudice, and the entire file shall be transferred to the Office of Disciplinary Counsel so that the Ethics and Grievance Committee may investigate and adjudicate all of the underlying unauthorized practice of law allegations. If that Committee concludes that the attorney engaged in the unauthorized practice of law, it may, in addition to any other sanction, petition this Court to impose any of the statutory remedies authorized by title 4, section 443 of the Virgin Islands Code.
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October 22, 2012
S. Ct. Crim. No. 2012-0078
Willis C. Todmann v. People of the Virgin Islands
      Upon an application under Supreme Court Rule 8(d) by a defendant seeking bail pending appeal and a stay of the imposition of sentence, after conviction on numerous charges relating to his activities while employed with the Government Employees Retirement System, neither the United States Constitution, the Revised Organic Act of 1954, nor any law yet enacted by Congress or the Virgin Islands Legislature, creates a right for convicted criminal defendants to receive bail pending appeal. Under Virgin Islands law, a court rule may not create or alter substantive rights, and thus Supreme Court Rule 8(d) cannot create a right to bail pending appeal or empower the Court to order the release of a convicted criminal defendant pending appeal. Absent extraordinary circumstances, the Supreme Court may only release a convicted defendant from incarceration after hearing the appeal, adjudicating it on the merits, and concluding that the defendant is entitled to an acquittal, a new trial, or a similar remedy. In the present case, the application for bail pending appeal and a stay of the imposition of sentence is denied.
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October 5, 2012
S. Ct. Civ. No. 2012-0051
In re: Kerry E. Drue
      The Superior Court abused its discretion when it denied an attorney's motion to withdraw as counsel without conducting a proper inquiry into the circumstances giving rise to an alleged conflict, any waiver thereof, and any effects on the attorney's ability to zealously represent the client, in light of applicable Model Rules of Professional Conduct. Accordingly, orders denying the motions to withdraw and two orders imposing monetary civil contempt sanctions are reversed. On remand, the Superior Court is directed to conduct the appropriate evidentiary and factual inquiry into the alleged conflict of interest.
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October 15, 2012
S. Ct. Civ. No. 2012-0093
Crucians In Focus, Inc., et al. v. VI 4D, LLLP
      This appeal from a repeatedly-extended temporary restraining order that functioned as an appealable preliminary injunction, and from the associated imposition of contempt penalties, is appropriate for summary disposition. Since the Superior Court violated binding precedent from the United States Supreme Court when it issued, and repeatedly extended, an ex parte restraining order precluding the appellant from publishing certain information on its website, without performing any First Amendment analysis, relating to either the prior restraint doctrine or the requirements for any injunction that restricts freedom of speech or the press, the July 13, 2012 temporary restraining order and all subsequent extensions are vacated, and – because the restraining order is invalid – the August 6, 2012 Opinion holding the appellant in civil contempt is reversed.
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September 28, 2012
S. Ct. Crim. No. 2010-0097
Antoniel Castor v. People of the Virgin Islands
      In a prosecution leading to convictions for unlawful sexual contact, aggravated rape, attempted aggravated rape, and child abuse stemming from a series of encounters between the defendant and the 11-year-old daughter of the adult girlfriend with whom he resided, the convictions are affirmed. There was sufficient evidence to support the convictions upon a showing that he was not married to the young victim, he used his position of authority to perpetrate the sexual contacts, and penetrated the victim within the charged timeframe for the crimes. Nor was it reversible as plain error for the Superior Court to fail, sua sponte, to declare a mistrial after the prosecutor to referred during opening statement and closing argument to the victim requesting that the jury return a guilty verdict, in light of the overwhelming evidence of guilt in this case and the instructions directing the jury not to treat any argument or statement from the attorneys as evidence and to convict only based on the evidence presented from the witnesses and exhibits. Under 14 V.I.C. § 104, while an individual can be charged and convicted of violating multiple provisions of the Virgin Islands Code, that individual may only be punished for one offense for each discrete act or indivisible course of conduct. Here, while the defendant was charged with several distinct acts over several months, he was nonetheless convicted and sentence was imposed for more than one crime based on specific individual acts. This was plain error even though the trial court provided for the sentences to run concurrently. Each of the defendant’s convictions is affirmed, and the matter is remanded for re-sentencing in accord with § 104.
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October 26, 2012
S. Ct. Crim. No. 2010-0037
Rudette Christopher v People of the Virgin Islands
      Rudette Christopher v People of the Virgin Islands
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September 28, 2012
S. Ct. Crim. No. 2010-0037
Rudette Christopher v. People of the Virgin Islands
      No reversible error is found upon review of a prosecution and guilty verdict on charges of third degree assault and unauthorized possession or use of a firearm in a crime of violence. The trial court did not err by sustaining objections to questions concerning the victim’s alleged violent past. Under then-applicable provisions of 5 V.I.C. §§ 886 and 887, the Superior Court correctly excluded testimony concerning a witness’s prior bad acts until the testimony was offered to show the reasonableness of the defendant's fear of imminent bodily injury for his claim of self-defense. Additionally, the Superior Court did not commit plain error by adding a single word, “dangerous,” to the jury instruction dealing with the deadly weapon element of the assault in the third degree charge, since the definitions are similar and the interchangeable use of the phrases “dangerous weapon” and “deadly weapon” does not confuse or mislead jurors. Finally, the People presented sufficient evidence to overcome defendant's self-defense claim and to support his conviction for assault in the third degree and possession of a dangerous weapon during a crime of violence. A rational jury could have accepted the testimony of either of two witnesses, finding that the right to self-defense never arose because the victim did not first assault defendant. Moreover, the jury had sufficient evidence to determine that by stabbing the victim the defendant used more force than was necessary to defend himself against being pushed. The trial court’s June 15, 2010 Judgment and Commitment is affirmed.
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September 21, 2012
S. Ct. Crim. No. 2010-0049
Deiby Billu v. People of the Virgin Islands
      In a prosecution for attempted murder, assault in the third degree, and two counts of unauthorized possession of a firearm during the commission or attempted commission of a crime of violence, no reversible error is found. Title 14 V.I.C. § 19, and not Federal Rule of Evidence 801(d)(1), controls the admissibility of prior inconsistent statements in the Superior Court, and in this case the two witnesses whose statements identified defendant as the shooter in this crime were given an opportunity to explain or deny their prior statements, making both statements admissible under § 19. Thus while application of Fed.R.Evid. 801 to the admission of these statements was error, that error was harmless because the court would have arrived at the same outcome had it applied the proper statute. Nor did the court plainly err by failing to suppress these prior statements sua sponte under Fed.R.Evid. 403 since their probative value was high, and the risk of unfair prejudice slight, if it exists at all, as this evidence is specific to the offense charged and lacks an inflammatory nature that would cause the factfinder to find guilt on an impermissible ground. Therefore, because the probative value of the statements was not substantially outweighed by the danger of unfair prejudice. The People presented sufficient evidence of the defendant's participation in these crimes since a rational trier of fact could have found the defendant guilty beyond a reasonable doubt and the convictions are supported by substantial evidence identifying defendant as the perpetrator. The conviction for assault in the third degree with a deadly weapon under 14 V.I.C. § 297 is not invalid because the People accused defendant of committing the assault with a firearm, since that section works in tandem with 14 V.I.C. § 2253 and the Legislature intended for assaults committed with a firearm to be prosecuted under both sections. The information and final instructions properly charged attempted first-degree murder in this case, since 14 V.I.C. § 922(a)(1) defines first-degree murder as, among other things, any kind of willful, deliberate, and premeditated killing, the Superior Court did not err by failing to require a finding that a killing accomplished with a firearm is similar to a killing accomplished by poison, lying in wait, torture, or a bomb. The judgment of conviction is affirmed.
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September 21, 2012
S. Ct. Crim. No. 2010-0042
Crystal Irons v. People of the Virgin Islands
      The Superior Court did not err in correcting and reducing a sentence it had previously imposed without requiring the defendant's presence in court at the time the sentence was corrected. After the defendant entered a plea agreement and pled guilty to second degree murder, at sentencing the trial court erroneously sentenced her for the additional crime of using a dangerous weapon during the commission of a crime of violence, a weapons count that was not included in the plea. The court shortly thereafter corrected this mistake, deleting the punishment for the weapons offense, but defendant had been transported by corrections officers by that time, and was not present in court at that time. Neither the rules of the Superior Court nor the United States Constitution, require a defendant’s presence when a sentence is reduced. This was not a “critical stage” of sentencing, as the sentence had already been imposed, and the defendant's absence from the subsequent hearing did not affect the fairness of the procedure and was not unconstitutional. Sentencing this defendant to 25 years' imprisonment for second degree murder was also not an abuse of discretion. Reading the sentencing transcript as a whole, it is clear that the Superior Court did not apply a uniform policy in sentencing this defendant but considered a number of factors, some in her favor and some against and, in the end, sentenced her to less than the People’s recommendation and to considerably less than the maximum penalty she could have received under Virgin Islands law. The judgment of the Superior Court is affirmed.
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September 19, 2012
S. Ct. Civ. No. 2011-0012
Allenton Browne v. Laura L.Y. Gore
      An order affirming a magistrate's judgment directing a tenant to vacate premises for failure to pay rent is reversed and the matter is remanded to the Superior Court for proper compliance with Superior Court Rule 322. In a forcible entry and detainer proceeding, after judgment was entered ordering eviction the tenant moved for reconsideration and a stay of execution on the grounds that the magistrate lacked jurisdiction over the complaint because the parties had allegedly entered into a mutual agreement for the purchase and sale of the property, and thus were no longer in a landlord/tenant relationship. While the reconsideration application was pending, the tenant filed a “notice of appeal,” which was construed as a petition for internal review of a magistrate decision. While that application was pending the Presiding Judge promulgated Superior Court Rule 322, which requires a scheduling notice by the Clerk, as well as the filing of briefs. In this case the Superior Court judge assigned to consider tenant's petition erred by issuing an opinion and order adjudicating the merits of the matter, even though the parties had not submitted briefs, the Clerk of the Superior Court had not issued a briefing schedule, and the judge never notified the parties that the matter would be considered on the record without briefs. Rule 322 unquestionably applied, since it expressly states that it was effective immediately, superseding prior rules, and it is well established that amendments to procedural rules apply to all cases pending at the time of the rule change. No exception is applicable under Rule 322 since the judge never issued an order advising the parties that he intended to decide the petition based on the existing record without further briefing. Additionally, Rule 322.1(i)(B) only authorizes a judge to waive briefing sua sponte if the issue presented for review is an issue of law which has previously been determined by controlling authority and for which there is no reasonable dispute, and it is not clear how this high standard could have been met with respect to all the potential issues the tenant could have reasonably raised on appeal. Accordingly, the opinion and order below are reversed and the Clerk of the Superior Court is directed to issue a briefing schedule on remand so that the tenant may provide the Superior Court judge with arguments and legal authority in support of his appeal.
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September 18, 2012
S. Ct. Civ. No. 2011-0096
Julio A. Brady v. Government of the Virgin Islands
      In an action by a sitting Superior Court judge seeking declaratory, injunctive and accounting relief relating to retirement benefits arising from former service as the elected Lieutenant Governor of the Virgin Islands, summary judgment denying recovery of such benefits under 33 V.I.C. § 3080 is affirmed. The statute prevents former Governors and Lieutenant Governors from receiving pension payments from the Elected Governors and Elected Lieutenant Governors Retirement Fund while serving as a judge of the Superior Court, and this provision does not conflict with 3 V.I.C. § 733(g), which simply clarifies that nothing in title 3, chapter 27 prevents a member of the Judiciary from receiving an annuity for non-judicial service, and does not create any ambiguity to be resolved in the judge's favor. The provisions of 33 V.I.C. § 3080 are not part of title 3 and express provisions in § 3080(f)(c) clearly prevent former Governors and Lieutenant Governors from receiving pension payments while sitting on courts in this Territory or serving in other specified salaried elected or appointed government positions. The Legislature's policy reflected in these provisions is neither absurd nor unreasonable, and the statute is clear. The Superior Court’s order granting summary judgment to the Government of the Virgin Islands is affirmed.
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September 17, 2012
S. Ct. Civ. No. 2010-0096
In re Estate of Earl L. Small, Jr.
      In an application by two personal injury plaintiffs to set aside final distribution of the estate of a decedent who allegedly had struck their vehicle while intoxicated, the Superior Court did not commit reversible error in affirming the decision of a magistrate who denied the requested relief. After appellants' personal injury suit was commenced, their counsel was notified by letter of the decedent's death in an unrelated accident. The widow filed a petition to admit his will to probate, and notices of the probate proceedings were published for the benefit of creditors in a local newspaper, satisfying the statutory requirements provided in 15 V.I.C. § 391. However, under constitutional case law, in the circumstances of this case the appellants were entitled to actual notice of the commencement of proceedings to settle the estate. Because their claims were known and not unduly conjectural, published notice alone would have been insufficient to protect their rights. In determining whether the required notice was provided, the affidavit of appellants' counsel, which was not submitted to the magistrate as finder of fact under 4 V.I.C. § 123, but only to the Superior Court on the appeal, will not be considered. On the facts presented here, the Superior Court did not err in holding that the magistrate’s determination that the appellants had actual notice of the commencement of probate proceedings was not clearly erroneous, in light of the written notice given to their counsel of the decedent's death and the fact that their attorney made direct contact with the counsel involved with the estate. The Superior Court's decision, upholding the magistrate's refusal to set aside the final distribution of the estate, is affirmed.
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September 13, 2012
S.Ct. Crim. No. 2010-0076
Harim Almando Prince v. People of the Virgin Islands
      On appeal from convictions in the Superior Court on charges of third degree assault and domestic violence in violation of 14 V.I.C. § 297(2) and (4) and 16 V.I.C. § 91(b)(1)(2), as well as use of a dangerous weapon during the commission of a crime of violence in violation of 14 V.I.C. § 2251(a)(2), the defendant has failed to demonstrate plain error in the trial court's jury instructions referring to a deadly or dangerous knife, or its interchangeable use of “deadly” and “dangerous” in the jury instructions. The terms used would not create any misunderstanding for a reasonable jury and, accordingly, any error would have been harmless in the circumstances of this case. A defendant is entitled to instructions on defenses only if the trial record contains evidence sufficient for a reasonable jury to find those defenses applicable, and if the defenses are not substantially covered by other instructions. Here an instruction was given on self-defense under 14 V.I.C. § 43 and the evidence failed to support the giving of instructions on separate defenses concerning use of force to resist attempted harm against one’s person, property or family, or to resist an attempt to kill or injure another. The instruction that was given on self-defense was sufficient to substantially cover the self-defense provisions of 14 V.I.C. §§ 41(2), 44(a)(1), and 293(a)(6). The convictions are affirmed.
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September 12, 2012
S. Ct. Civ. No. 2011-0003
Rena Brodhurst v. Jeffrey Frazier
      In a declaratory judgment action to establish the existence of an easement for access to and from a landlocked parcel of land, the Superior Court erred in entering summary judgment in favor of the plaintiff. Even if an implied easement had been created pursuant to section 2.13 of the Restatement (Third) of Property: Servitudes, 28 V.I.C. § 124 precludes plaintiff from enforcing the unrecorded encumbrance against the defendant if she lacked actual or constructive notice of the easement before she recorded her interest in the purportedly servient property. Here the "OLG Drawing" referenced by deed and relied upon to support the existence of an easement is not so clear and unambiguous as to warrant the trial court in concluding, as a matter of law, that there was no jury issue as to whether it was sufficient to have alerted the defendant that an easement may exist over the property. The drawing contains no text that explains the purpose of an arrow and dotted line shown, let alone anything that would unquestionably place someone on notice that these components of the drawing have any relevance to text relating to a “30’ Joint Use Driveway.” Given that the diagram is unclear, the Superior Court should not—at the summary judgment stage—have interpreted the meaning of the lines. Instead, it should have permitted the finder of fact, who would be able to weigh the evidence, to perform this task at trial. The grant of summary judgment is reversed and the case is and remanded to the Superior Court for further proceedings.
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August 10, 2012
S. Ct. Civ. No. 2010-0102
John Burd v. Antilles Yachting Services, Inc.
      In an action to recover on a promissory note and to foreclose upon certain property pledged as collateral, in which the debtor asserted the defense of duress in entering the underlying obligations, the trial court erred when it held that he had subsequently ratified the agreements giving rise to the debt and in granting summary judgment on that ground. Under the law governing ratification of voidable agreements, there is insufficient evidence in the present record to support a conclusion that the purported ratification was given after the circumstances that made the agreements voidable ceased to exist – here duress arising from an alleged threat of criminal prosecution for which the statute of limitation may or may not have expired when the alleged ratifying payments were made. The entry of summary judgment and relief granted thereon will be vacated, and this case is remanded to the Superior Court for proceedings consistent with this Opinion, However, the debtor has waived his right in this appeal to raise the issue of whether the pledged property – a 37-foot sloop – was lawfully subject to foreclosure because he failed to previously raise that issue in the trial court.
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August 6, 2012
S. Ct. Crim. No. 2011-0105
People of the Virgin Islands v. Shakieme S. Freeman
      The appeal sought by the People of the Virgin Islands pursuant to 4 V.I.C. § 33(d) from a Superior Court order setting aside a jury's guilty verdict, and dismissing a charge against this defendant for unauthorized use of a firearm during the commission of a crime of violence, is dismissed. Under 4 V.I.C. § 33(d)(5) any appeal in such cases by the People shall be taken “within thirty days after the decision, judgment or order has been rendered.” In this case, however, the People failed to timely file the notice of appeal. Accordingly, because the People failed to comply with this jurisdictional requirement, the appeal must be dismissed for lack of jurisdiction.
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August 6, 2012
S. Ct. Crim. No. 2011-0019
Jeremy Michael Chciuk-Davis v. People of the Virgin Islands
      In an appeal by a defendant after pleading guilty to voluntary manslaughter and being sentenced, the Superior Court’s acknowledgment that it considered the parties’ arguments prior to imposing a sentence of ten years imprisonment—the maximum sentence under 14 V.I.C. § 925(a)—is sufficient to demonstrate that it considered all of the aggravating and mitigating factors presented by both parties and tailored the sentence imposed to the circumstances surrounding this defendant's conviction. Thus the trial court did not violate his due process rights by failing to adequately individualize the sentence. Federal Rule of Criminal Procedure 32 is not applicable because Superior Court Rule 134 governs the procedure for sentencing defendants and entering judgments in Virgin Islands Superior Court proceedings, and thus the Superior Court was not obligated to consider the factors enumerated under 18 U.S.C. § 3553 in imposing its sentence. Therefore, the judgment and commitment of the Superior Court are affirmed.
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August 6, 2012
S. Ct. Crim. No. 2011-0101
People of the Virgin Islands v. Elroy A. Faulkner
      In an appeal by the People of the Virgin Islands pursuant to 4 V.I.C. § 33(d) from a Superior Court order setting aside the jury’s guilty verdict and dismissing a charge against this defendant for unauthorized use of a firearm during the commission of a crime of violence, because an inconsistent verdict is not a sufficient reason for setting aside a verdict, the order of the Superior Court is reversed. The defendant's conviction for unauthorized use of a firearm during the commission of a crime of violence is therefore reinstated.
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August 6, 2012
S. Ct. Crim. No. 2011-0103
People of the Virgin Islands v. Vincent N. Thompson, Jr.
      In an appeal under 4 V.I.C. § 33(d)(1) by the People of the Virgin Islands from the dismissal in the Superior Court of a criminal case after verdict, an inconsistent verdict was not a sufficient reason for setting aside a verdict, even in situations where the jury acquits a defendant of a predicate felony, but convicts on the compound felony. There was also sufficient evidence presented at trial to sustain the convictions of this defendant for reckless endangerment in the first degree, carrying or using a dangerous weapon, and unauthorized use of a firearm during the commission of a crime of violence. Therefore, the portion of the trial court’s order granting the defendant's post-trial motion for judgment of acquittal on charges of unauthorized use of a firearm during the commission of a crime of violence is reversed, and his conviction on that charge is reinstated. The trial court’s order denying the defendant’s post-trial motion for judgment of acquittal for reckless endangerment in the first degree and carrying or using a dangerous weapon is affirmed.
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August 1, 2012
S. Ct. Civ. No. 2011-0065
Michael Lehtonen v. David Payne, Jr.
      In proceedings before a magistrate and the Superior Court in a forcible entry and detainer action filed by a landlord when the tenant fell behind in paying the rent, dismissal of the case as moot when it was determined that the relief sought was accomplished by the time of the hearing because the tenant had vacated the premises, is affirmed. The argument that the magistrate should not have dismissed the case without first addressing the tenant's counterclaims for injunctive relief as well as compensatory damages for stolen goods and trespass, and punitive damages, is rejected. It would frustrate the purpose of forcible entry and detainer actions—to provide landlords with a swift mechanism (in lieu of self-help) for obtaining possession of leased property when the lease is violated—if a party were permitted to complicate the proceedings by incorporating additional issues and claims for damages that could require discovery and expense to investigate. 28 V.I.C. § 782 makes it clear that the only purpose of the action is the recovery of the premises, and therefore any other relief, including counterclaims for damages, is unavailable in such an action. Accordingly, the Superior Court did not frustrate the purpose of a forcible entry and detainer action by limiting, via Superior Court Rule 37, the issues that could be raised. Dismissal of the tenant's counterclaim without prejudice is affirmed. The tenant remains free to file his claim in either small claims court or as a normal civil action with the Superior Court. The tenant's claim that certain testimony provided by the landlord was perjurious does not change the outcome of the present case, because the magistrate’s findings were based on only one fact—the tenant concedes was true, that he had vacated the premises. The Superior Court’s July 1, 2011 order affirming the magistrate’s dismissal of the action with prejudice and the counterclaims without prejudice is affirmed.
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July 31, 2012
S. Ct. Civ. No. 2010-0010
Edna Santiago v. Virgin Islands Housing Authority
      In a suit by an apartment resident for injuries allegedly suffered after a caustic sewer solvent was used to clear pipes in her building, the Superior Court correctly determined that a product called "Red Hot Sewer Solvent" was a “hazardous substance” subject to the labeling requirements of the Federal Hazardous Substances Act, but erred in granting the product manufacturer's motion for summary judgment. Plaintiff's claims are not preempted by the federal act because two of them do not involve the imposition of labeling or packaging requirements, and it is not clear without remand whether three other claims would involve such requirements to trigger federal preemption. The Superior Court correctly determined that the running of the statute of limitations against plaintiff's claims against the seller of the product was not tolled by the discovery rule because plaintiff was aware of her injuries immediately, nor did the commencement of those claims for limitation purposes relate back under Federal Rule of Civil Procedure 15 to the filing date of the complaint against a distributor of the product. Accordingly, the Superior Court did not err in holding that plaintiff's claims against the seller were barred by the two-year statute of limitations. Therefore, the Superior Court’s order granting the manufacturer's motion for summary judgment is reversed and remanded, and its order granting seller's motion to dismiss is affirmed.
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July 31, 2012
S. Ct. Crim. No. 2009-0106
Craig G. Francis v. People of the Virgin Islands
      In a prosecution for aggravated rape in the first degree, assault. and using a dangerous weapon in the commission of a crime of violence, since the testimony of a single witness, if credited by the jury, is sufficient to sustain a conviction, the People introduced sufficient evidence at the trial because, if the jury believed the victim's testimony, all elements of the charged offenses were met. However, the Superior Court erred when it sua sponte invoked Rule 12.1 to exclude the defendant's alibi witnesses without applying any balancing test. That error was plain: the jury may have reached a different outcome had the two defense alibi witnesses permitted to testify, and the severity and nature of the error justifies correction. Accordingly, the October 29, 2009 Judgment and Commitment is reversed and the matter is remanded to the Superior Court so that the defendant may receive a new trial consistent with this Opinion
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July 20, 2012
S. Ct. Crim. No. 2009-0002
Akeel Codrington v. People of the Virgin Islands
      In considering an adult defendant's appeal from convictions for first degree murder in violation of 14 V.I.C. §§ 921 and 922(a), unauthorized use of a firearm during the commission of a first degree murder in violation of 14 V.I.C. § 2253(a), and possession of stolen property in violation of 14 V.I.C. § 2101(a), it is held that: (1) the information properly notified the defendant of the elements of first degree murder and the Superior Court properly instructed the jury on the elements of first degree murder; (2) 14 V.I.C. § 922 is not unconstitutionally vague; (3) the People presented sufficient evidence to convict the defendant of first degree murder; (4) the defendant did not establish the elements necessary for an ineffective assistance of counsel claim; (5) the Superior Court did not err by failing to give an involuntary manslaughter instruction; (6) the Superior Court did not err by allowing the defendant to be prosecuted by information, rather than by grand jury indictment; (7) the defendant's sentence of life imprisonment without the possibility of parole for committing first degree murder does not violate the Eighth Amendment prohibition against cruel and unusual punishment, either on its face or as applied; and (8) the People presented sufficient evidence to convict the defendant of possession of stolen property. Thus, none of the eight alleged errors presented by the defendant require reversal or any other remedy, and the judgment of the Superior Court is affirmed on all counts.
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July 13, 2012
S. Ct. Civ. No. 2008-0021
Michael J. Weary v. Long Reef Condominium Association
      In considering an appeal from an order granting summary judgment in favor of a condominium association granting the association a judgment of foreclosure on a lien recorded against appellant’s condominium unit and requiring the appellant to pay certain condominium assessments and fees, plus interest, there is no genuine issue of material fact based on the record presented regarding the issue whether the appellant was obligated to pay both the parking lot repairs assessment and the windstorm fire insurance assessment at issue. He had an absolute obligation to pay his portion of these common charges, and neither Virgin Islands law, e.g., 28 V.I.C. § 906, nor the association’s declaration and by-laws supports a unit owners’ independent decision to withhold payment of common charges. The Superior Court’s order granting the condominium association’s motion for summary judgment is affirmed.
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June 29, 2012
S. Ct. Crim. No. 2011-0048
Jermaine A. Williams v. People of the Virgin Islands
      In considering defendant’s appeal from convictions for second degree murder, first degree assault, and third degree assault, in which he argues that the Superior Court improperly admitted the prior inconsistent statements of two witnesses to prove that he shot and killed the victim, that there was insufficient evidence to prove that he shot and killed the victim, and that his convictions were multiplicitous, it is held that the Superior Court did not err in admitting the prior inconsistent statements under 14 V.I.C. § 19 because the defendant was given the opportunity to effectively cross-examine the witnesses in a manner satisfying the requirements of the Confrontation Clause, and it is further held that those statements provided sufficient evidence to allow a rational jury to conclude beyond a reasonable doubt that the defendant shot and killed the victim. However, convicting and punishing the defendant for three separate offenses which all arose from a single act violates the Double Jeopardy Clause and 14 V.I.C. § 104’s protection against multiple punishments for the same offense. Therefore, the case is remanded to the Superior Court so that it may impose punishment for either second degree murder, first degree assault, or third degree assault, as well as the corresponding 14 V.I.C. § 2253(a) offense, and stay the imposition of punishment for the remaining offenses.
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June 27, 2012
S. Ct. Civ. No. 2011-0093
Conrad L. Brooks v. Government of the Virgin Islands
      In considering petitioner's appeal from the Superior Court’s order denying his petition for a writ of habeas corpus, his argument that he was improperly sentenced to a minimum mandatory sentence of ten years imprisonment after pleading guilty to committing aggravated rape pursuant to 14 V.I.C. 1700(a)(2) is rejected. The statute clearly delineates four ways by which an individual can commit aggravated rape: 1) by perpetrating an act of sexual intercourse or sodomy with a person not the perpetrator's spouse who is under the age of thirteen, see 14 V.I.C. § 1700(a)(1); 2) by perpetrating an act of sexual intercourse or sodomy with a person not the perpetrator's spouse who is under sixteen years of age residing in the same household as the perpetrator, and force, intimidation, or the perpetrator's position of authority over the victim is used to accomplish the sexual act, see 14 V.I.C. § 1700(a)(2); 3) by causing personal injury to a victim as the result of an act of rape as set forth in section 1701 of title 14, see 14 V.I.C. § 1700(b); or 4) by using a deadly weapon during the commission of an act of rape as set forth in section 1701, see 14 V.I.C. § 1700(c). The statute further prescribes the punishment for a defendant convicted of aggravated rape, which includes a minimum mandatory sentence of ten years imprisonment. The language located immediately below subsection (c) of the statute, which imposes this mandatory minimum sentence, is not limited in its application to subsection (c). Rather, it is disjunctive and applies to each subsection of section 1700 that delineates how an individual can commit aggravated rape. Accordingly, a violation of 14 V.I.C. 1700(a)(2) carries a mandatory minimum sentence of ten years imprisonment, and the Superior Court imposed a sentence upon petitioner fully complying with that statutory mandate. Therefore, the Superior Court’s order denying the petition for a writ of habeas corpus is affirmed.
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June 18, 2012
S. Ct. Crim. No. 2011-0074
People of the Virgin Islands v. Roland G. Murrell, Jr.
      In an appeal by the Government of the Virgin Islands pursuant to 4 V.I.C. § 33(d)(2) from a decision of the Superior Court in a criminal case suppressing various items of physical evidence as well as statements obtained during a “stop and frisk,” the statutory term "the Attorney General conducting the prosecution” does not mean that the Attorney General must personally sign the certification for interlocutory appeal. On the merits of the suppression motion, applying Third Circuit precedent – which is based on the premise that local Virgin Islands law does not contain a presumption that an individual lacks a permit to carry a firearm – the Superior Court correctly granted the motion to suppress: there is absolutely no evidence in the record that the officer received any information that defendant possessed an unlicensed firearm or a firearm with an altered serial number, nor was there any evidence from which he could have inferred that defendant was engaging in criminal behavior. Because the People have failed to argue, either before the Superior Court or in their appellate brief, that the Third Circuit cases were wrongly decided and that this Court should hold under 23 V.I.C. § 488 that a presumption exists in Virgin Islands law that an individual lacks a permit to carry a firearm, the People cannot satisfy the burden of showing that the trial court's ruling in this case was plainly in error. Therefore, July 28, 2011 Order is affirmed. This appeal does not decide the broader issue of whether this Court should continue to follow the Third Circuit’s prior interpretation of local law concerning firearms possession and the presumption that an individual lacks a permit to carry a firearm.
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June 15, 2012
S. Ct. Crim. No. 2011-0034
Denalson W. Merrifield v. People of the Virgin Islands
      In considering an appeal of the defendant’s convictions for aiding and abetting first degree murder under 14 V.I.C. §§ 921, 922(a)(1) and 14 V.I.C.§ 11(a), first degree assault under 14 V.I.C. § 295(1) and 14 V.I.C. § 11(a), as well as unauthorized possession of a firearm during a crime of violence under 14 V.I.C.§ 2253(a) and 14 V.I.C. § 11(a), there is no evidence linking defendant to the scene at the time that the victim arrived at her residence early in the morning of her death, and there is also no evidence that the defendant aided, abetted, counseled, commanded, induced or procured her murder as required to support a conviction under 14 V.I.C. §11. While it could be speculated that the defendant acted in concert with his co-defendant, the alleged shooter, to murder the victim, detailed study of the record on appeal reveals that such evidence was not presented to the jury. Consequently, there was no evidentiary basis for a finding of this defendant’s guilt of the crimes charged beyond a reasonable doubt. Because the evidence was sparse and insufficient for a reasonable jury to return a verdict of guilty against this defendant for the crimes relating to the murder of the victim, the trial court erred in denying defendant’s Rule 29 motion for judgment of acquittal. The trial court’s June 28, 2011 Judgment and Commitment is vacated, defendant’s convictions on all charges are reversed, and the trial court is directed to enter a judgment of acquittal on all charges.
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June 15, 2012
S. Ct. Crim. No. 2011-0063
Neville Potter v. People of the Virgin Islands
      Convictions for murder, assault and unauthorized possession of a firearm during the commission of the predicate offenses are affirmed. The contention that the trial court abused its discretion by declining to strike the entire jury after jurors complained about their breakfast and rate of pay is rejected; there is no support provided for the conclusion that the jury in this case was biased or partial, and especially not against the defendant. A defendant's constitutional rights are not violated when his image is placed in a photo array as a result of an investigation, and the photographs used in this case were not unnecessarily or impermissibly suggestive. The relevant record was not provided concerning an argument that the trial court erred in failing to allow a jury view of the defendant's vehicle, and that contention is waived. Any alleged error of the trial court with regard to pointing out the color of defendant's shirt, and the distinction between blue and black, was harmless since the color issue was adequately raised. The declaration of a mistrial after the jury in the prior trial became deadlocked, followed by retrial, did not violate defendant's right against Double Jeopardy. The judgment and convictions are affirmed.
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June 12, 2012
S. Ct. Civ. No. 2009-0099
Omar Jamil Suarez v. Government of the Virgin Islands
      Petitioner was convicted of rape and aggravated rape based on allegations of sexual contact with a minor. After exhausting all appeals, he petitioned the Superior Court for a writ of habeas, claiming that his trial court counsel provided ineffective assistance to him in violation of the Sixth Amendment. Failure to call the victim's grandmother as a defense witness was not deficient performance by petitioner's trial counsel, since her testimony could have had only small value in the circumstances of this case, and did not provide a viable defense. However, the Superior Court correctly found that trial counsel’s performance fell below a reasonable standard of professional assistance in failing to object to testimony by the People's expert expressing the conclusion that the victim was sexually assaulted and suffered emotional trauma – testimony not based on any specialized knowledge as required, and which relied on methodology that did not adhere to the intellectual rigor demanded of doctors in diagnosing illness, with a significant gap between the data, second-hand information, and the conclusion offered. Counsel's performance was also deficient in failing to object to the People’s questions about events leading up to the police interview with a witness, which raised issues of obstruction of justice that had absolutely no tendency to prove or disprove any fact related to the charged sexual misconduct, and on appeal the People concede that trial counsel’s conduct fell below the reasonable standard of professional assistance on this point. However, based on a review of the totality of the evidence, petitioner has failed to carry the burden of showing that there was a reasonable probability that his trial counsel’s deficiencies undermined the reliability of the result of the proceeding. Therefore, the Superior Court’s October 1, 2009 Order denying the petition for a writ of habeas corpus is affirmed.
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June 6, 2012
S. Ct. Crim. No. 2009-0022
Mitchell Nicholas v. People of the Virgin Islands
      In a prosecution for several offenses related to a murder, the convictions are affirmed except with respect to the crime of unlawfully possessing ammunition, since 14 V.I.C. § 2256 as it existed at the time these offenses provided no means for the People to prove violation of that provision. With respect to the murder charge, there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that the defendant premeditated the victim's murder. The Superior Court did not clearly err in denying a motion to suppress with respect to the warrantless search of the defendant's person and his hotel room based on a showing of both probable cause and exigent circumstances. Erroneous evidentiary rulings involving hearsay, speculative testimony by law enforcement officers, testimony about defendant's behavior and personality, and lay opinion about his culpability for the murder, in the context of overwhelming evidence of guilt, did not render the trial unfair and do not warrant reversal. It cannot be concluded that erroneous admission of the challenged evidence affected the outcome of the trial or deprived defendant of a fair trial. A constitutional challenge to the statute criminalizing possession of a firearm, 14 V.I.C. § 2253(a), is rejected because the record contains no evidence that defendant would be entitled to a license even if the portions of 23 V.I.C. § 454(3) that he alleges are impermissibly discretionary were stricken. The convictions for first-degree murder, assault in the first degree, and use of an unlicensed firearm, are affirmed. The conviction for unlawful possession of ammunition is reversed and the sentence for that offense is vacated.
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May 24, 2012
S. Ct. Crim. No. 2011-0022
Kareem Jamal Brown v. People of the Virgin Islands
      A conviction and sentence for voluntary manslaughter following a guilty plea are affirmed. Reviewed for plain error, imposition by the Superior Court of a sentence substantially greater than that given to a co-perpetrator – without explaining on the record why – did not affect this defendant's substantial rights. On the present record, it cannot be concluded that there is a reasonable probability that the Superior Court, if ordered to explain the sentencing disparity, would ultimately impose a lower sentence. Although the better practice would have been to reject unambiguously the People’s argument that a prior reversal of this defendant's murder conviction justified imposition of the maximum sentence for voluntary manslaughter, the record contains absolutely no indication that the Superior Court imposed the ten-year sentence in this case to punish him for exercising his constitutional rights, or for any other impermissible reasons. The record is replete with evidence that the two perpetrators were not similarly situated. Nor did any error in this case affect the fairness, integrity, or public reputation of the proceedings to such an extent that it would warrant the exercise of discretion to remand for re-sentencing. Accordingly, the March 10, 2011 Judgment and Commitment is affirmed.
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May 16, 2012
S. Ct. Civ. No. 2010-0100
Chrystalia Etienne v. Ashley Etienne
      The Superior Court did not err in denying a former wife's motion to vacate the divorce decree that legally ended her marriage. After the husband filed a suit for divorce while the wife was incarcerated, lengthy proceedings ensued. After court-ordered mediation a settlement agreement was reached, but the wife then filed a motion for hearing on additional issues. The Superior Court entered judgment incorporating the agreement and granting a final divorce. The following month, the former wife moved by counsel for an order vacating the divorce decree because of the Superior Court's failure to consider the three unresolved property disputes. The motion to vacate was denied. On appeal the former wife argues that the Superior Court violated her due process rights by failing to afford her sufficient time to retain counsel, but this argument was not raised in the proceedings below, and all arguments made for the first time on appeal in civil cases are waived unless the party presents exceptional circumstances, which are not shown here. Even if the merits of the argument were reached, her due process rights under the Fourteenth Amendment for an opportunity to retain counsel before entry of a final order were not violated. In civil matters the trial court needs only to provide a reasonable opportunity to retain counsel to satisfy due process. This case was pending for two years prior to the mediation and thereafter appellant had over 10 months before the Superior Court entered the divorce decree. Since she had numerous opportunities to retain counsel and failed to take advantage of them, her due process rights were not violated. The Superior Court’s October 18, 2010 divorce decree is affirmed.
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May 15, 2012
S. Ct. Civ. No. 2009-0074
Matthias Matthew v. Dermont A. P. Herman
      In a common law tort suit for "alienation of affection" and "criminal conversation with a spouse" based on allegations that the defendant had an affair with the plaintiff's wife, the Superior Court erred by refusing to grant the defendant's motion to dismiss for failure to state a claim and entering judgment upon a jury verdict for $125,000. The defendant successfully preserved his argument that the Virgin Islands should not recognize these "amatory torts" through both an oral motion to dismiss the complaint and a motion for a judgment as a matter of law at the close of all evidence. While these causes of action are found in Restatement of Torts, this Court possesses inherent power to shape the common law in the Virgin Islands, including the discretion to decline to follow Restatement provisions. The torts of alienation of affection and criminal conversation with a spouse, the so-called “amatory torts,” have never been recognized in the Virgin Islands, and have been abolished in the vast majority of American jurisdictions, because they were originally founded on the idea that wives were property of their husbands, the torts have destructive effects on existing marriages, and it is not feasible adequately to value and address the harms caused by adulterous behavior. Former 5 V.I.C. § 856(2), an evidence rule that has since been repealed, concerned only the spousal testimonial privilege, and did not establish the elements of any tort or the damages available for the conduct addressed. That former legislative reference to these causes of action did not expressly establish the torts and did not affect the courts’ common law authority to set out the elements, or even abolish, these torts. Therefore, the amatory torts of criminal conversation and alienation of affection are not recognized in the Virgin Islands, and the Superior Court’s judgment is vacated and the case is remanded with instructions to dismiss the complaint.
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May 10, 2012
S. Ct. Crim. No. 2010-0028
Richie Fontaine v. People of the Virgin Islands
      In a prosecution for robbery, assault, and related charges of unauthorized possession or use of a firearm during commission of a crime of violence, the trial court did not err in denying the defendant's motion for acquittal based on the claimed insufficiency of the evidence to sustain the first degree robbery and related firearms conviction. Credibility determinations about the evidence were within the province of the jury, and eyewitness testimony of the victim placed defendant at the scene of the attack with a gun in his hand, participating in the robbery and shooting. Evidence was presented sufficient to prove that the defendant or another perpetrator of the crime took personal property in the victim's possession, from his person or immediate presence, against his will, by means of force or fear, while displaying, using, or threatening the use of a dangerous weapon, all as provided in 14 V.I.C. §§ 1861 and 1862(2). Nor did the Superior Court abuse its discretion in ordering the defendant to stand in front of the jury so that they could view in close proximity a scar under his left eye which figured in the identification testimony of the victim, a brief process that was not shown to have prejudiced the defendant. The trial court’s June 11, 2010 Judgment and Commitment are affirmed.
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May 2, 2012
S. Ct. Crim. No. 2010-0086
Anselmo R. Boston v. People of the Virgin Islands
      In a prosecution leading to convictions for assault and using a dangerous weapon during the commission of a crime of violence, reviewing the evidence in the light most favorable to the People, a rational jury could have found the essential elements of the crime of simple assault beyond a reasonable doubt, upon proof that this defendant assaulted or aided and abetted the assault of the victim, including testimony of a witness who drove by the scene and alerted authorities to the attack, as well as the existence of numerous contusions and abrasions on the victim's face, arms, neck, shoulder, and legs, which were consistent with being punched, kicked, or struck with a stick. There was evidence from which the jury could reasonably have inferred that one of the individuals attacking the victim in the narrow time-frame involved was this defendant, and the evidence was sufficient to sustain his conviction. Based on the allegations proffered by a co-defendant, however, this matter is remanded to the Superior Court for a hearing regarding possible juror misconduct. In Thomas v. People, S. Ct. Crim. No. 2010-0087 (V.I. 2012 ), it is held in a co-defendant's appeal that it was error for the trial court to deny a motion for a new trial without conducting an evidentiary hearing regarding allegations of possible juror misconduct. Because disparate treatment of identically-situated co-defendants constitutes manifest injustice in these circumstances, and there was opportunity to fully brief this exact issue in the co-defendant's appeal, the People have not been prejudiced and this Court has heard adequate argument on this issue to render an informed decision. Accordingly, it would be manifestly unjust to remand the co-defendant's case for a hearing on the issue of jury misconduct and not the case of the present defendant, when the allegations proffer that both suffered the same prejudice from the same fundamental error in the same trial. This matter will therefore be remanded to the Superior Court for an evidentiary hearing regarding juror misconduct.
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May 2, 2012
S. Ct. Crim. No. 2011-0033
Charles R. Azille, Jr. v. People of the Virgin Islands
      In a prosecution leading to convictions for aggravated assault and battery and disturbing the peace arising out of an altercation on the dance floor at a nightclub, the assault conviction is reversed and remanded for a new trial, but the conviction for disturbing the peace is affirmed. This case was transferred from the Magistrate Division to the Criminal Division of the Superior Court to continue the trial process, and sentencing by the Superior Court judge did not adversely affect defendant's substantial rights. However, the Superior Court committed plain error by invoking 14 V.I.C. § 4 to force the defendant to undergo a bench trial for aggravated assault since he was charged with a serious offense which guaranteed him a right to a jury trial. Therefore the conviction for aggravated assault is reversed and the case is remanded to the Superior Court for a new trial, and it is not necessary to address the argument that 14 V.I.C. § 298(5) is unconstitutional.
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May 2, 2012
S. Ct. Crim. No. 2010-0087
Kamal Thomas v. People of the Virgin Islands
      In a prosecution for assault, using a dangerous weapon during the commission of a crime of violence, and threatening a witness, the trial court committed reversible error by denying the defendant's motion for a new trial without first conducting a hearing to investigate possible juror misconduct. In this case the defendant alleged that one of the jurors informed the other members of jury panel that defendant and a co-defendant had killed an individual victim and gotten away with it. There was no evidence presented at trial, however, to suggest that either of the defendants was involved in that death, and thus the statements the juror allegedly communicated were extraneous information—matter considered by the jury but not admitted into evidence. Accordingly, Federal Rule of Evidence 606(b) did not prohibit the trial court from holding an evidentiary hearing to determine whether this extraneous information was improperly brought to the jury's attention, and, if so, whether it affected the verdict. The trial court also incorrectly concluded that defense counsel's affidavit was wholly insufficient to warrant an evidentiary hearing. In determining whether an evidentiary hearing is necessary, a trial court should consider numerous factors, including the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. While a signed affidavit from the juror personally would have been preferable, denying the motion for a new trial without conducting even a limited evidentiary hearing regarding jury misconduct was an abuse of discretion, given the specific allegations of jury misconduct, the fact that inquiry could have been limited as provided in Rule 606(b) to whether extraneous prejudicial information was improperly brought to the jury's attention, and the fact that the attorney's affidavit was given by an officer of the court under oath and penalty of perjury. Based on these factors, the trial court should have, at a minimum, held a limited evidentiary hearing to allow the juror to testify whether any extraneous prejudicial information was improperly brought to the jury's attention. This matter is therefore remanded to the Superior Court for an evidentiary hearing.
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April 23, 2012
S. Ct. Civ. No. 2012-0014
In re: Kenth W. Rogers
      After a grievance against a Virgin Islands attorney was brought before a panel of the Ethics and Grievance Committee of the Virgin Islands Bar Association by Disciplinary Counsel, and the attorney failed to identify in writing any contested relevant facts that warranted a hearing. The panel issued a final decision finding that the attorney violated Model Rule 1.5 by charging $1,500 for a one-half hour consultation and preparation of a document, which the panel considered an unreasonable and excessive fee, Model Rule 8.1(b) by knowingly failing to respond to lawful demands for information from the case investigator, and Model Rule 8.4 by engaging in conduct involving dishonesty, fraud, decent, or misrepresentation. The panel ordered a private reprimand sanction, as well as payment of $1,500 in restitution to the grievant. The attorney did not timely request reconsideration under V.I.S.CT.R. 207.4.12(a), and the disposition became final on November 14, 2011. The attorney therefore had 45 from that date in which to appeal the decision to the Supreme Court under V.I.S.CT.R. 207.4.11(a)-(b). The attorney states that he attempted unsuccessfully to file an appeal by conventional means on December 31, 2011, and ultimately filed an appeal styled as a "petition" on February 21, 2012. The 45-day appeal period is a mandatory claims-processing rule rather than a jurisdictional limit on this Court’s authority, and thus could be voluntarily waived or involuntarily forfeited by the parties. However, the Ethics and Grievance Committee performs an adjudicative, quasi-judicial function as an arm of this Court, and thus lacks the discretion to independently waive, without this Court’s permission, application of any rules established by this Court. To warrant an equitable waiver of a bar governance rule an individual must demonstrate that, as applied in the circumstances the rule is arbitrary and its application would be unrelated to the essential purpose of the rule, and that the granting of a waiver would not be detrimental to the public interest. Equitable waiver of the 45-day appeal period codified in Rule 207.4.11(b) will, absent exceptional or unusual circumstances, ordinarily only be justified if an attorney-respondent can demonstrate that the Committee intentionally or negligently failed to perform its ministerial duties to such an extent that the attorney-respondent could not have timely initiated an appeal. In this case, however, the Committee served its decision upon the attorney on the same day that the Chair affixed her countersignature on the disposition form. Since Supreme Court Rule 16(b) did not provide the attorney with an automatic three-day extension of the time in which to prosecute an appeal, the document electronically filed on February 21, 2012 is untimely even if it were accepted nunc pro tunc to December 31, 2011. Accordingly, the attorney's appeal is dismissed as untimely.
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April 23, 2012
S. Ct. Crim. No. 2011-0102
People of the Virgin Islands v. Ashana Powell
      In an prosecution for mayhem, assault and carrying or using a dangerous weapon under 14 V.I.C. § 2251(A)(2)(B), appeal by the People of the Virgin Islands from a judgment acquitting a defendant of three criminal charges upon which a jury had returned a verdict of guilty is authorized under 4 V.I.C. § 33(d)(1). Because the judgment of acquittal was rendered after a jury verdict convicting the defendant on these charges, the Double Jeopardy Clause does not bar reversal and remand for further proceedings. Upon a review of the record and the briefing filed, as well as supplemental materials in the record transmitted, the Court is of opinion that there is reversible error in the judgment appealed from, and this is one of the rare cases in which summary disposition is warranted. It was error to grant the judgment of acquittal on the ground that this relief was mandated by what the trial judge believed to be "inconsistent" verdicts of guilt under three charged counts while jury acquitted the defendant on the three separate charges in other counts. The present Order does not address whether a judge has discretion to grant an acquittal or a new trial as a remedy for an inconsistent verdict, whether the evidence was sufficient to sustain the jury’s guilty verdicts, or whether the defendant may be entitled to an acquittal or a new trial based on other grounds. Thus, the decision herein shall not preclude her from challenging the convictions, whether on remand in the Superior Court or as part of a subsequent appeal to this Court, on any other ground.
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April 13, 2012
S. Ct. Civ. No. 2011-0069
Andrew Simpson et al. v. Golden Resorts, L.L.L.P.
      In a declaratory judgment action seeking confirmation of the plaintiff's title to certain disputed property and a declaration that the defendants did not obtain title by adverse possession, the trial court erred in granting summary judgment to the plaintiff and entering an injunction based on that ruling. In review the intertwined issues pursuant to 4 V.I.C. § 33(b)(1), the plaintiff did not meet the burden on summary judgment of establishing the absence of any genuine issues of material fact with respect to the elements of an adverse possession claim. The Superior Court erred as a matter of law in requiring the construction of buildings or other improvements to establish the actual possession element of adverse possession with respect to agricultural lands whose primary purpose is cattle grazing, and erred when it held that appellants failed to establish a genuine issue of material fact with respect to actual, physical and hostile possession. The record contained sufficient evidence of the defendants' open and notorious possession of the property, through affidavits, photographs, newspaper articles, and tourist maps describing or depicting the area. Evidence and affidavits in the record also raise an issue of fact on the issue of continuous and exclusive possession of the disputed property by the defendants for at least 15 years. While there is some evidence that plaintiff or the prior owner may have at times simultaneously occupied the land, at the summary judgment stage all evidence must be viewed in the light most favorable to the appellants as the non-moving parties. The finder of fact could find plaintiff's witnesses on this issue not credible, and could infer that the control they exercised—if any—was minimal or only sporadic. Although appellants bear the burden of producing evidence of continuous and exclusive possession, plaintiff as the record owner has the burden of proving some intervening act that interrupted the 15-year period. At the summary judgment stage, plaintiff's proof including rezoning activities, surveyors entering the property, and removal of horses from the land, was not sufficient conclusively to rebut the affidavits and other record evidence filed by defendants on this issue . Therefore, the Superior Court erred when it held, at the summary judgment stage, that the defendants failed to establish continuous and exclusive use of the property. Under 28 V.I.C. § 11 and other statutes no limit is placed on the size of a parcel that can be adversely possessed, nor is adverse possession restricted only to land used for residential or agricultural purposes. The Superior Court's “balancing of the equities” conclusion, that defendants' would be unjustly enriched if adverse possession were found, was beyond its authority given the policy judgments of the Legislature in codifying the governing elements of adverse possession. Accordingly, the grant of partial summary judgment in this case is reversed, and—because the summary judgment represented the sole reason for its issuance—the injunction is also reversed.
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April 12, 2012
S. Ct. Civ. No. 2010-0025
Patricia Benjamin, As Guardian of the Estate of R.W., A Minor, v.AIG Insurance Company Of Puerto Rico, Esso Virgin Islands, Inc., As Successor to Esso Standard Oil S.A. Limited,
      Regarding the Superior Court's dismissal on federal ERISA preemption grounds of a complaint filed by the court-appointed guardian of a deceased employee, seeking life insurance proceeds and other damages from the deceased's former employer and its insurer, and alleging claims of breach of the insurance contract’s covenant of good faith and fair dealing and a conspiracy to defraud, the guardian's arguments (1) that the order granting the motion to dismiss based on the affirmative defense of preemption was improper, (2) that the decedent's employer is not the kind of entity that can raise an ERISA defense, and (3) that the claims in the complaint are not preempted by ERISA, were never presented to the Superior Court and are thus waived. The guardian's argument that the Superior Court impermissibly determined that the life insurance documents attached to the complaint made up an ERISA plan is also deemed waived because it was argued for the first time on appeal in the guardian's reply brief, instead of her opening brief, and her description of the plan in the opening brief constituted a concession that the documents at issue are governed by ERISA. The guardian's final argument on appeal—that the case be reassigned to a different judge in the event of a remand, based on wholly unsupported allegations of pervasive bias and deep-seated favoritism or antagonism of the judge who dismissed the complaint—is waived because she never made any motion to the trial judge seeking disqualification or recusal under 4 V.I.C. §286. The judgment of the Superior Court dismissing the complaint is affirmed.
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April 12, 2012
S. Ct. Crim. No. 2010-0029
Richie Fontaine v. People of the Virgin Islands
      In a prosecution stemming from a shooting death at a night club, although the information only charged the defendant as a principal actor, it also clearly invoked 14 V.I.C. §11, under which one charged as a principal may be convicted upon evidence that he aided and abetted a different individual in committing the crime. It is not disputed that the evidence was sufficient to establish the premeditation element of first degree murder, and review of the sufficiency of the evidence for the voluntary manslaughter conviction is denied in light of the invited error doctrine because defendant requested an instruction on this theory. The People introduced sufficient evidence that defendant personally committed the charged offenses, and the jury was free to credit other evidence that another individual fired the shot that killed the victim and that defendant was aware of, and wished to facilitate, that individual in accomplishing that goal. Thus the evidence was also sufficient to sustain the convictions under an aiding and abetting theory. However, the Superior Court erred in allowing a police officer who was not present at the night club at the time of the shooting to give extensive narration for a surveillance videotape as it played to the jury, commenting that it showed defendant with a firearm in his hand, identifying certain individuals as being “with” him, and commenting on the direction of ricocheting bullets, none of which was supported in the record. In this case, the video tape was of good quality, the jury visited the site of the shooting and personally observed defendant and key witnesses in the courtroom, and there is no suggestion that defendant altered his appearance between the day of the shooting and the trial. Thus, the jury had the same ability to identify the individuals in the videotape and surroundings as the police officer, and there is a likelihood that the judgment could have been swayed by the impermissible narration, warranting a new trial in this case. In addition, the trial judge failed to implement safeguards in the procedure for juror questioning of witnesses during this trial to protect defendant's constitutional right to a fair trial, by not permitting counsel for both parties to review and object to specific juror questions outside the presence of the jury before they were asked, and by permitting jurors to ask clarifying or follow-up questions of witnesses directly, with the trial judge not serving any gatekeeping function. The June 4, 2010 Judgment and Commitment upon convictions for voluntary manslaughter, first degree assault, unauthorized use of a firearm, and reckless endangerment are reversed, and this case is remanded for a new trial consistent with this Opinion.
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April 10, 2012
S. Ct. Civ. No. 2011-0083
Allison Petrus, et al. v. Queen Charlotte Hotel Corporation
      In an action by a hotel corporation seeking an injunction to bar the lessees of certain neighboring parcels of land from blocking access to the gates of plaintiff's property for construction and other purposes, the Superior Court's grant of a preliminary injunction is affirmed. In ruling on a motion for a preliminary injunction the court must consider (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. The defendants in this case challenge only the finding of reasonable probability of success on the merits of the plaintiff's claims, but the record demonstrates that the plaintiff is an intended beneficiary under provisions of the defendants' lease with the Government, in which defendant promised that it would not “restrict access” to “space adjacent” to its leased premises. Therefore, the Superior Court correctly found that the plaintiff had a reasonable likelihood of success in showing that it is entitled to relief as an intended beneficiary of the defendants' promise not to restrict the access to spaces adjacent to its leased premises and that defendants breached that promise. Thus the Superior Court did not abuse its discretion in issuing the preliminary injunction, and its September 2, 2011 order is affirmed.
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April 4, 2012
S. Ct. Crim. No. 2011-0027
Lennox M. LeBlanc v. People of the Virgin Islands
      In a prosecution for child abuse under 14 V.I.C. § 505 and unlawful sexual contact in the second degree pursuant § 14 V.I.C. § 1709, in which it was charged that the defendant touched the genital area of a minor through her clothing, the charging phrase of § 505 under which the defendant was prosecuted for child abuse, using the term "sexual conduct," is not defined and is not sufficiently precise to give a person of ordinary intelligence fair notice as to what is permitted and what is prohibited, and to prevent arbitrary and discriminatory enforcement. As a result, the portion of § 505 under which the defendant was charged is unconstitutionally vague, and the defendant's conviction on that charge violated Due Process. On the charge of unlawful sexual contact, the trial court did not err in admitting certain statements admitted into evidence. Some of the statements were party admissions by the defendant, admissible under Federal Rule of Evidence Rule 801(d)(2)(A), and the other statements were not offered for their truth but to put the defendant's response in context and to help make what he said intelligible to the trier of fact. Thus the statements received into evidence did not constitute hearsay and it was not error to admit them. Accordingly, the conviction under § 14 V.I.C. § 1709 for unlawful sexual contact in the second degree is affirmed.
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April 2, 2012
S. Ct. Civ. No. 2010-0002, S. Ct. Civ. No. 2010-0003
Patrick Anthony et al. v. Independent Insurance Advisors, et al.
      In a case involving alleged malfeasance relating to insurance coverage for the common areas of a condominium destroyed by Hurricane Marilyn in 1995, the Superior Court's refusal to allow a new party to intervene three years after the litigation commenced – after discovery had been completed, and after dispositive motions had become pending – when the party moving for intervention presented no justification for her delay in seeking to join the litigation, is affirmed. The court's grant of summary judgment against the other appellant is also affirmed because, under the covenants and restrictions of the condominium's declaration, the owners gave the condominium association authority to bind them in all matters affecting insurance, and 28 V.I.C. § 906 makes that covenant binding upon the appellant. Whatever right he had under 28 V.I.C. § 926 to sue separately was extinguished when the association exercised its right to bind all of the owners by settling the claims in this action against all of the insurance defendants. However, the Superior Court erred by failing to address this appellant's outstanding motion to amend the pleadings to assert crossclaims against other parties, and the case is remanded for determination of the motion to amend in accordance with this opinion.
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March 26, 2012
S. Ct. Civ. No. 2011-0010
Virgin Islands Public Services Commission v. Virgin Islands Water and Power Authority
      In an appeal by the Virgin Islands Public Services Commission from an order of the Superior Court vacating a Commission decision settling a billing dispute between the Virgin Islands Water and Power Authority and one of its customers for lack of subject matter jurisdiction, the matter is governed by the prior decision in Virgin Islands Public Service Commission v. Virgin Islands Water and Power Authority, 49 V.I. 478 (V.I. 2008), and no basis has been presented for overturning or altering that decision. The Authority's enabling statute, 30 V.I.C. § 121, continues to provide that no other government entity has jurisdiction over it, including with respect to rate-setting. Thus the Commission lacks the power to settle billing disputes between the Authority and its customers. The order of the Superior Court vacating the Commission's decision is affirmed.
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March 26, 2012
S. Ct. Civ. No. 2011-0099
In re Suspension of Michael A. Joseph, Esquire as a Member of the Virgin Islands Bar
      A petition by the St. Croix Subcommittee of the Ethics and Grievance Committee of the Virgin Islands Bar Association, alleging that an attorney violated several provisions of the Model Rules of Professional Conduct, and recommending several forms of discipline, including suspension from the practice of law, is granted as modified. Clear and convincing evidence exists that the attorney violated Rule 8.1(b) by failing to respond to a disciplinary investigator’s letter or to appear at a schedule hearing in the matter, and as a result all factual allegations against him are taken as true. The attorney also violated Rules 1.1, 1.3, and 1.4 relating to competence, thoroughness, diligence and promptness by failing to prepare for trial as required by court order, resulting in dismissal of a client matter for failure to prosecute—and failing to communicate with the clients for years, including not advising them that their case had been called for trial and subsequently dismissed. The disciplinary adjudicatory panel also concluded that the attorney violated Rule 1.16 by failing to protect the clients' interests upon termination of his representation, but the record contains absolutely no evidence that the attorney-client relationship between the them was terminated during any of the pertinent events. And the disciplinary panel finding that he made representations to clients about progress in their case when they visited his office, even if accepted as true, does not establish a violation of Rule 8.4 because it is possible that on the dates involved the attorney was in fact working on the case which was at that time still “going well.” The appropriate sanction for the attorney's violation of Model Rules 1.1, 1.3, 1.4, and 8.1, among the most important ethical duties owed by a lawyer and a serious ethical breach that resulted in actual injury, but only with respect to a single client matter, shall be a suspension of three months, and the attorney is ordered to complete extra continuing legal education credit hours in the field of legal ethics. The disciplinary Committee shall publicly reprimand the attorney in a manner consistent with Supreme Court Rule 207.4.3(d), and the attorney shall be ordered to make certain reimbursement to the clients, to be calculated by the Subcommittee Chair and reported to this Court.
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March 21, 2012
S. Ct. Civ. No. 2011-0089
Robin Wessinger v. Kent Wessinger
      In an appeal from an interlocutory order entered by the Family Division of the Superior Court denying a mother's request to modify a temporary custody arrangement for shared physical custody of a minor child during the pendency of a couple's divorce proceeding, but failing to provide any findings of fact or any reasoning in support of the decision, whether or not the order amounted to modification or grant of an injunction, because the trial court failed to provide any findings in support of its decision, or otherwise explain its reasoning, the order appealed from is vacated and the case is remanded for further proceedings consistent with this opinion.
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March 16, 2012
S. Ct. Civ. No. 2010-0040, S. Ct. Civ. No. 2010-0080, S. Ct. BA. No. 2011-0159
In re Kenth W. Rogers; Aubrey Walters v. Elvira Walters
      In proceedings relating to a member of the Virgin Islands Bar who was administratively suspended for non-compliance with continuing legal education requirements, the attorney failed to comply with multiple orders issued by this Court, including orders to show cause relating to actions and necessary payments in a civil client matter and a mandamus petition commenced by the attorney himself. The attorney also filed repeated motions for reinstatement to the Virgin Islands Bar, which contained numerous deficiencies, including a failure to pay the required $200 reinstatement fee, and he again failed to comply with an order to show cause requiring payment and submission of necessary information. The orders directed to the attorney in these proceedings were clear and unambiguous, proof of his noncompliance is clear and convincing, and he did not diligently attempt to comply in a reasonable manner. His actions in both the client matter and in his own mandamus proceeding warrant a civil contempt sanction. The attorney is held in civil contempt, and a fine of $300 is imposed as the sanction for his contempt with respect to all three of the matters before the Court, which shall be paid within 30 days of the date of this Opinion.
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March 15, 2012
S. Ct. Civ. No. 2011-0109
In re: Dale Fleming
      In a pro se petition for writ of mandamus seeking an order compelling a judge of the Superior Court to take action in a pending civil matter in which applications to proceed in forma pauperis and for entry of default have been pending for a lengthy period without action by the court, the petitioner has demonstrated a clear and indisputable right to mandamus relief. No other alternative adequate remedy exists for petitioner to obtain a ruling from the Superior Court judge. Considering whether a writ of mandamus is appropriate under the circumstances, in light of factors including, but not limited to, the public interest, the importance or unimportance of the question presented, and equity and justice, issuance of the writ is appropriate in this case. The refusal of a trial court to render any decision, on even the most routine motions, for such a long period of time, unquestionably reduces public confidence in the administration of justice and requires corrective action. Moreover, such a complete failure to rule may not only impair the petitioner’s constitutional right to due process, but also adversely affects the defendant in the pending civil case, who has had this action remain pending against her throughout this period. Respondent's motion to dismiss is denied, and the mandamus petition is granted, directing the Superior Court judge assigned to the petitioner's civil litigation to, take some meaningful action to move the litigation forward within 60 days.
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March 14 2012
S. Ct. Civ. No. 2008-0076
Ottice Bryan v. Government of the Virgin Islands
      In an appeal from denial of a petition for the writ of habeas corpus, the Superior Court's April 4, 2008 order is reversed and the case is remanded with instructions to issue the writ. Petitioner pled guilty to second degree murder after allocution by the Superior Court. Prior to sentencing, petitioner moved to withdraw his guilty plea, but the motion was denied and he was sentenced to a period of incarceration; he never appealed from the denial of his motion to withdraw his guilty plea, but later brought this habeas corpus petition, averring among other things that his guilty plea was not given knowingly as required under the Constitution. The Superior Court denied the habeas corpus petition. While the petitioner filed this appeal several months after the Superior Court entered its order denying the petition, timeliness under Rule 5 is a claims processing rule but not a jurisdictional requirement, and the Government waived its right to challenge the timeliness of this appeal by filing numerous motions to dismiss and failing to raise the timeliness issue in any of them – only raising the issue three years after the appeal was filed. Thus its objection to untimeliness of this appeal was waived. Even though the petitioner never raised his present argument in the Superior Court and it would usually be deemed waived for that reason, it is nevertheless addressed on appeal because the Government suffers no prejudice from reaching the merits of petitioner's argument – the petitioner could simply file a new petition alleging the same error and consume additional court and government resources only to achieve a determination of a legal question that is squarely presented in the instant appeal. On the merits, because the Superior Court failed to instruct the petitioner on the direct consequences of his plea, specifically the mandatory minimum sentence for second degree murder, his guilty plea to that charge was not knowingly made, and therefore acceptance of that plea violated due process. The Superior Court's denial of the writ of habeas corpus is reversed and the case is remanded with instructions to issue the writ and to permit petitioner to withdraw his guilty plea.
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March 13, 2012
S. Ct. Civ. No.: 2012-0006
In re Disbarment of Dean Plaskett, Esquire
      Upon consideration of a petition filed by the St. Croix Subcommittee of the Ethics and Grievance Committee of the Virgin Islands Bar Association alleging that the respondent attorney, a member of the Virgin Islands Bar Association, has violated several provisions of the Model Rules of Professional Conduct and recommending his disbarment as an appropriate sanction, in light of the very serious nature of his ethical violations, based on his convictions for bribery in violation of 18 U.S.C. § 666(a)(1)(B) and two counts of obstruction of justice in violation of 18 U.S.C. § 1512(c)(2), the Court concludes that the respondent attorney should be disbarred from the practice of law in the Virgin Islands in order to protect the public and the administration of justice from further professional wrongdoing. It is further held that the pendency of the respondent attorney's habeas corpus petition in the District Court of the Virgin Islands, which was filed shortly after the Supreme Court of the United States denied his petition for a writ of certiorari seeking review his criminal convictions, did not serve to automatically stay the disciplinary proceedings pursuant to Supreme Court Rule 203(b)(4) because it did not qualify as an "appeal" within the intendment of that Rule. The petition for disbarment is granted.
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March 5, 2012
S. Ct. Civ. No. 2010-0099
Public Employees Relation Board, et al. v. United Industrial Workers—Seafarers International Union
      A union's petition for writ of review by the Superior Court of the dismissal of unfair labor practices charges by the Public Employees Relation Board was filed after expiration of the 20-day period mandated by 24 V.I.C. § 380, and was therefore untimely. Whether the 20-day period established in § 380(a) represents a jurisdictional or claims-processing rule is irrelevant in this case since the timeliness of the petition was properly challenged. The Board's Rule 361.3(B) did not extend the time for the union to file its petition for writ of review, and the language “the date of the final order” in § 380(a) refers to the date of the order itself, and not the date the order was served on the parties. Hence the petition for a writ of review was untimely. The judgment of the Superior Court is reversed, and the case is remanded for entry of summary judgment enforcing the Board's April 28, 2010 Order.
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March 2, 2012
S. Ct. Crim. No. 2009-0078
Jude T. Ramirez v. People of the Virgin Islands
      In a prosecution for aggravated rape and unlawful sexual contact, no reversible error is found in the trial court's denial of motions to suppress and for judgment of acquittal. School personnel at a parent conference – in which defendant made admissions – were not operating as law enforcement officers or under the direction of law enforcement officers, and defendant was not in custody at the parent conference; thus his Miranda rights and privilege against self-incrimination under the Fifth Amendment were not compromised by use of statements made at the conference. He subsequently voluntarily confessed to law enforcement officials that he had unlawful sexual contact with the victim. Nor was there a violation of defendant's Sixth Amendment right to confront the witnesses against him, because the declarant of certain hearsay statements admitted against him (the victim) was present at the trial, testified in person, and was available to be cross-examined. An alleged error in the statement of the age of the victim in the information did not reflect an absence of sufficient evidence to sustain the conviction for unlawful sexual contact in the first degree. The Superior Court therefore did not err in denying defendant's motion for judgment of acquittal. The convictions and the Superior Court’s November 2, 2009 Amended Order of Judgment and Sentence are affirmed.
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March 1, 2012
S. Ct. Civ. No. 2010-0067
Jeffrey J. Prosser, et al. v. Public Services Commission of the Virgin Islands
      In considering an appeal from an order of the Superior Court affirming a decision of the Public Services Commission of the United States Virgin Islands that approved the the transfer of three utility companies, by operation of 30 V.I.C. § 33, the appellants foreclosed review of all but one of their host of arguments against the approved transfer by not raising them in the petition for reconsideration originally brought before the Commission. In addition, the only issue adequately before this Court on appeal, that the Commission issued arbitrary findings of fact by failing to consider certain letters written by one of the appellants, is based on a flawed premise, because the record indicates that the Commission did, explicitly, consider those letters. Therefore, the Superior Court’s September 14, 2010 order affirming the PSC’s May 5, 2010 order permitting the transfer of the companies is affirmed.
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February 28, 2012
S. Ct. Crim. No. 2008-0041
Sholome Francis v. People of the Virgin Islands
      In a prosecution that led to convictions for murder and related firearms offenses, defendant has not shown that the Superior Court's refusal to give a jury instruction – on the issue of an intervening or superseding cause sufficient to relieve him of responsibility for the death – caused defendant any prejudice, and that refusal was not an abuse of discretion. There was sufficient evidence, including proof of causation, to support the conviction of murder in the first degree, and the trial court did not abuse its discretion by admitting an allegedly prejudicial photograph of the victim's head and shoulders area, displaying the victim's wound, the seriousness of which was highly contested by the parties’ experts. While the People made two comments improperly vouching for the veracity of the testimony by the identification witness at trial, in light of the instructions given and the nature of the comments in the context of a multi-day trial, they did not affect the fairness of defendant's trial. The judgment of conviction on the charges is affirmed.
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February 28, 2012
S. Ct. Crim. No. 2009-0034
Chris Carty v. People of the Virgin Islands
      In trial of consolidated charges including murder, attempted murder, assault, and use of a dangerous weapon in these offenses, claims of error by the trial court in admitting certain prior bad act evidence under Rule 404(b) of the Federal Rules of Evidence became moot when the trial court consolidated the cases involving that conduct. The court's decision not to provide the jury with a written copy of the instructions was within its sound discretion. While the court permitted the People to introduce prejudicial testimony from one victim's sister, and a prejudicial photograph, the error was harmless because there was more than sufficient evidence independent of this material to sustain a conviction of this defendant, beyond a reasonable doubt. The assertion that his Sixth Amendment Right to a Speedy Trial was violated by the 25-month delay in holding the jury trial is rejected: the delay was attributable to numerous factors, including a plethora of pre-trial motions filed by both parties and there was no lengthy period of judicial inactivity in the case. Defendant failed to prove how the delay could have caused prejudice to him, or caused different results in the jury’s verdicts. The convictions, and the judgment of the Superior Court, are affirmed.
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February 27, 2012
S. Ct. Civ. No. 2011-0116
In Re: Jamal Morton
      A petition for mandamus and motion for appointment of counsel are denied. Appellant's defense attorney in a case charging multiple felonies submitted a motion for “Constitutionally Adequate Attorney Fees," purportedly filed on behalf of appellant, which was denied by the Superior Court as collateral to the prosecution. In the mandamus petition, it cannot be concluded that the Nominal Respondent’s decision to decline to reach the merits of the motion and advise defendant or counsel to file a separate civil action constituted a breach of the ministerial duty to render a legally correct decision, given the absence of binding precedent, the procedural posture of this case, and divergent authority from other jurisdictions. Secondly, a mandamus proceeding is not criminal or quasi-criminal, and no constitutional provision requires appointment of counsel—whether in a trial or appellate court—in a purely civil case. While this Court has inherent and statutory authority, in its discretion, to appoint counsel to represent indigent litigants, it cannot be concluded that compensating counsel in this case from public funds for services rendered in conjunction with this mandamus proceeding would in any way further the interests of justice. The petition for writ of mandamus and the motion for appointment of counsel are denied.
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February 27, 2012
S. Ct. Crim. No. 2010-0024
Delvin Delano Duggins v. People of the Virgin Islands
      In a prosecution for making fraudulent claims upon the government in violation of 14 V.I.C. § 843(3), the false token or writing requirement of 14 V.I.C. § 844 does not apply and the People were under no obligation to enter a token or writing into evidence to prove the defendant's false or fraudulent statement or representation to the government. Because the mens rea requirement for a violation of § 843(3) is the making of a false or fraudulent statement or representation knowingly, there was no abuse of discretion by the trial court in giving an instruction on that standard. Defendant waived any argument based on the mention of the word “conspiracy” by eliciting such testimony himself and thus inviting any alleged error. Because he was not charged with or convicted of conspiracy, case law doctrines relating to multiple conspiracies, large and small, are in any event inapplicable. Finally, the People did not commit prosecutorial misconduct involving the admission of certain testimony. The judgment of conviction is affirmed.
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February 27, 2012
S. Ct. Civ. No. 2010-0093
In Re: Kenth W. Rogers
      Orders of the Superior Court holding an attorney in contempt of court in two cases are affirmed. The attorney, counsel in two matters before the Family Division of the Superior Court, filed various motions including a mislabeled motion to disqualify the judge, did not attend scheduled conferences and did not appear pursuant to show cause orders. He was found in contempt of court pursuant to section 14 V.I.C. § 581(3), and daily fines were imposed. After additional hearings two fines of $500.00 were imposed and these appeals followed. An order finding contempt against an attorney who is not a party to the underlying litigation is immediately appealable. Two $25 retrospective sanctions were imposed for direct contempt, which may be punished summarily under 14 V.I.C. § 581 and Superior Court Rule 138 where an attorney fails to appear at a hearing and refuses to provide a legitimate explanation for that failure. Per diem sanctions in these cases were civil in nature and their imposition did not violate due process. The Superior Court had jurisdiction to impose the sanctions despite the filing of a notice of appeal after the commencement of hearings below in each case, and the attorney's failure to appear was not excused simply because there was a pending motion to disqualify the trial court judge. The Orders are affirmed.
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February 22, 2012
S. Ct. Crim. No. 2011-0024
Lenny D. Alfred v. People of the Virgin Islands
      In a prosecution for unauthorized possession of a firearm in violation of 14 V.I.C. § 2253, where the weapon was found in the middle console area near defendant's wallet, within arm's reach of the driver's seat in which defendant was sitting, in a vehicle he had used and occupied extensively for a period of days, the People of the Virgin Islands presented sufficient circumstantial evidence to prove that he knowingly possessed the firearm. The judgment of conviction is affirmed.
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February 9, 2012
S. Ct. Civ. 2010-0011
George R. Simpson v. Myrna Golden
      In an appeal from a judgment awarding the defendant attorney's fees following dismissal of plaintiff's breach of contract suit based on what the Superior Court characterized as plaintiff’s bad faith prosecution and the defendant’s status as a prevailing party, the only grounds for appeal argued before this Court, namely, whether the initial dismissal of plaintiff's suit was valid, is time-barred. While plaintiff’s motion to reconsider that dismissal tolled the 30-day period for filing a notice of appeal under Rule 5 of the Virgin Islands Supreme Court Rules, that motion was denied in 2005, and his right to appeal the dismissal lapsed 30 days later by operation of the Rule. Although the time limits in Rule 5 are claims processing provisions and not jurisdictional, because the timeliness issue was raised by the defendant in her brief before this Court, it has not been waived; thus, the notice of appeal from the 2005 ruling, filed in February of 2010, is time-barred and this Court will not exercise review of that ruling. In addition, because plaintiff has failed to present sufficient argument in his brief directly addressing the propriety or accuracy of the attorney's fees awarded, independent from his argument that the award is improper because the 2005 dismissal and all subsequent rulings of the Superior Court were purportedly invalid, he has waived and abandoned the attorney's fee award issue on appeal despite the fact that it was identified as an issue in his appellate brief. Accordingly, since plaintiff has waived the only issue on appeal that is not time-barred, the Superior Court’s award of attorney’s fees is affirmed.
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February 2, 2012
S. Ct. Crim. No. 2010-0069
Jeffrey Browne v. People of the Virgin Islands
      In a prosecution on two counts of first degree murder and charges of attempted murder, assault, reckless endangerment, unauthorized possession of a firearm, and interference with an officer discharging his duties, there was no reversible error in the trial court's admission of evidence seized pursuant to a valid search warrant obtained after defendant's vehicle was allegedly impounded illegally, or in the court's admission of statements by a co-defendant (his wife) which was redacted to remove any mention of him, and did not bear testimony against him. The trial court's receipt into evidence of death certificates of two of the victims, without testimony from the medical examiner who authored them, was in violation of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004) and Bruton v. United States, 391 U.S. 123 (1968), but this error was harmless beyond a reasonable doubt in the context of this case. The trial court also violated defendant’s constitutional right to present a complete defense by excluding the proffered testimony of an attorney in an effort to impeach a government witness, but this error was also harmless beyond a reasonable doubt in light of other evidence. There was no reversible error in the trial court's handling of claims of juror misconduct, a motion for a change of venue, or its rulings relating to other rebuttal witnesses. The convictions and the judgment of the Superior Court are affirmed.
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February 2, 2012
S. Ct. Crim. No. 2010-0071
Luis Melendez v. People of the Virgin Islands
      In a prosecution on two counts of first degree murder, along with charges of attempted murder, assault, reckless endangerment, unauthorized possession of a firearm, and interference with an officer discharging his duty, there was no reversible error in the trial court's admission of evidence seized pursuant to a search warrant after another individual's vehicle was allegedly seized illegally, or in the court's admission of statements by a co-defendant (his sister) which did not bear testimony against the defendant. The trial court's receipt into evidence of death certificates of two of the victims, without testimony from the medical examiner who authored them, was in violation of the Confrontation Clause but amounted to harmless error in the context of this case. Nor did the trial court's handling of claims of juror misconduct, its failure to transfer defendant's case to another venue sua sponte based on evidence presented by another co-defendant, or its rulings relating to rebuttal witnesses deny defendant a fair trial. The convictions and the judgment of the Superior Court are affirmed.
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January 18, 2012
S.Ct. Civ. No. 2009-0084
Raphael Mendez v. Government of the Virgin Islands
      A pro se appeal from denial of a petition for a writ of habeas corpus is dismissed. After assault and firearms charges under the Virgin Islands Code were brought against the petitioner in the United States District Court for the District of the Virgin Islands in 1990 arising from a shooting incident, he was transferred to a federal correctional institution in North Carolina for psychological examination. Six months later the warden of that facility initiated civil commitment proceedings against petitioner in the North Carolina federal district court, and two decades later he remains civilly committed by order of the North Carolina federal court pursuant to 18 U.S.C. § 4246. However, the charges against petitioner in the Virgin Islands were dismissed by the District Court of the Virgin Islands in 1992. Consequently, while statutory changes in 1991 and 1994 have vested jurisdiction over criminal and civil matters – including applications for the writ of habeas corpus – in the territorial courts of the Virgin Islands, they are without jurisdiction over this petitioner. Any due process defect inhering in the Superior Court's reliance on ex parte submission of court records in making its decision below was harmless because such records are properly subject to judicial notice and petitioner admits that all territorial criminal charges against him have been dismissed. The Superior Court’s order dismissing the pro se petition for writ of habeas corpus for lack of subject matter jurisdiction is affirmed.
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January 9, 2012
S. Ct. Civ. No. 2009-0102
Gary Molloy, et al. v. Independence Blue Cross, et al.
      In a suit on several tort and contract theories brought by parents of a newborn against insurers for failure to provide timely air evacuation services to obtain medical treatment after his premature birth, the Superior Court did not abuse its discretion in denying a motion to compel answers to certain interrogatories because they were not relevant to the issue of personal jurisdiction over a party, and therefore plaintiffs failed to show actual and substantial prejudice from the ruling. The Superior Court erred by dismissing one of the defendants for lack of personal jurisdiction as to one count. While jurisdiction over that party pursuant to the Virgin Islands Long Arm Statute was not proper under 5 V.I.C. § 4903(a)(1) for transacting business in this territory, it was error to find that plaintiffs failed to satisfy the requirements of the Long Arm Statute on their false advertising claim under 5 V.I.C. § 4903(a)(2), contracting to supply services or things in this territory, and under § 4903(a)(4), for causing injury inside the territory by an act outside the territory. The Superior Court also erred by finding that constitutional due process considerations did not permit exercise of specific personal jurisdiction over that party on that count. Where, as here, the plaintiffs establish that a defendant has the requisite minimum contacts and that the claim arises out of those contacts, the burden of proof shifts to the defendant to present a compelling case that other considerations would render jurisdiction unreasonable, and here the moving defendant failed to carry its burden to show that exercising jurisdiction over it based on the claim in this count does not to comport with fair play and substantial justice. The Superior Court also abused its discretion by dismissing plaintiffs' claims for failure to prosecute without first addressing all six factors set forth in Halliday v. Footlocker Specialty, Inc., 53 V.I. 505 (V.I. 2010), and the present case is remanded for full consideration of those factors. The judgment of the Superior Court is reversed in part and the case is remanded for further proceedings in accordance with this opinion.
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January 5, 2012
S.Ct.Crim.No. 2009-0107
James C. Tindell v People of the Virgin Islands
      In considering defendant's appeal following the acceptance of his plea of nolo contendere for failing to comply with Virgin Islands broker-dealer registration requirements, since he pled nolo contendere, he waived his challenge to the sufficiency of the information, and cannot raise the issue for the first time at this stage of the proceedings because the error, if any, is not jurisdictional, and Federal Rule of Criminal Procedure 12(b)(3)(B)—the only other possible authority to support raising the issue for the first time on appeal—is inapplicable to Superior Court proceedings. Moreover, defendant's factual basis argument is not considered because Superior Court Rule 126 does not require courts in the Virgin Islands to assess the adequacy of the factual basis for a nolo contendere plea before accepting the plea. In addition, based on the record, there is no indication that the plea was involuntary. Finally, to the extent defendant's sentencing challenge is not simply a vehicle to assert his waived challenge to the sufficiency of the information, the Superior Court committed no error because his nolo contendere plea served as an admission that sufficient evidence existed to satisfy all elements of the offense to which he so pled, and the Superior Court imposed a sentence that was not only within the range set out in 9 V.I.C. § 658(a), but the same sentence that he had agreed to pursuant to his plea agreement. The Superior Court’s judgment is affirmed.
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January 5, 2012
S.Ct.Civ. No. 2009-0007
Timothy Defoe v. Lenroy Phillip,
      In considering plaintiff's civil suit alleging gross negligence against a co-employee arising out of a workplace accident, the Superior Court properly applied the holding of the United States Court of Appeals for the Third Circuit in Tavarez v. Klingensmith, 372 F.3d 188 (3d Cir. 2004), which held that a co-employee performing a non-delegable duty on behalf of an employer covered by the Virgin Islands Workers' Compensation Act, 24 V.I.C. § 250 et seq., is entitled to the same statutory immunity as the employer. However, as that Court has acknowledged in Pichardo v. V.I. Comm’r of Labor, 53 V.I. 936, 939, 613 F.3d 87, 89 (3d Cir. 2010) and Gov’t of the V.I. v. Lewis, 620 F.3d 359, 364 n.5 (3d Cir. 2010), the Supreme Court of the Virgin Islands is not bound by prior federal interpretations of Virgin Islands local statutes, and an independent analysis of the Act’s statutory language and the Legislature’s intent indicates that the Legislature did not intend to include employees such as the defendant in its definition of “employer.” Because the plain language of the Act does not support extending an employer’s immunity from suit to a co-employee, the Legislature did not intend to prohibit lawsuits against co-employees when it enacted the Act, and thus the defendant is not entitled to claim the same immunity from suit that the Act affords to his employer. The Superior Court’s January 13, 2009, January 16, 2009, and February 12, 2009 Opinions and Orders granting summary judgment in the defendant's favor and dismissing plaintiff's complaint are reversed, and the matter is remanded to the Superior Court for further proceedings.
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January 3, 2012
S.Ct.Crim.No. 2007-0041
Stacey Ambrose v. People of the Virgin Islands
      In considering defendant's convictions for third degree assault in violation of title 14, section 297(2) and unlawful possession of a firearm in violation of title 14, section 2253(a) of the Virgin Islands Code, which were reversed in a December 18, 2008 Opinion ordering a new trial, it is held that since the defendant possessed advance notice of the fact that the People intended to obtain a conviction for third degree assault by proving that he had threatened the victim with a gun, the amendment to Count One of the information did not have the effect of charging the defendant with a new offense which he was not prepared to defend against at trial. Likewise, to the extent the Superior Court committed any constitutional error in its final jury instructions with respect to Count Two regarding unlawful possession of a firearm, the defendant would, at best, only be entitled to a sentence reduction as a remedy, rather than a judgment of acquittal, because the additional language only represented a sentence enhancement rather than an element of the underlying offense. In addition, defendant's admission that he did not possess a license to carry a firearm provided sufficient evidence for the jury to convict the defendant of that charge. Accordingly, the defendant is not entitled to an acquittal on either charge. The matter is remanded to the Superior Court for the new trial ordered in this Court’s December 18, 2008 Opinion.
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