Davis v. Gov't of the Virgin Islands

• Citation: 48 V.I. 860
• Decision Date: 03 April 2007
• Docket Number: DC Crim App No. 2002/085.
• Parties: Jimmy DAVIS, Appellant, v. GOVERNMENT OF the VIRGIN ISLANDS, Appellee.
• Court: U.S. District Court — Virgin Islands

48 V.I. 860

Jimmy DAVIS, Appellant,

v.GOVERNMENT OF the VIRGIN ISLANDS, Appellee.

DC Crim App No. 2002/085.

District Court of the Virgin Islands, Division of St. Croix, Appellate Division.

Considered Aug. 19,2005.

Filed April 3, 2007.

On Appeal from the Superior Court of the Virgin Islands.

Stephen Brusch, Esq., St. Croix, U.S.V.I., for Appellant.

Gabriella Haley, AAG, St. Thomas, U.S.V.I., for Appellee.

Before CURTIS V. GÓMEZ, Chief Judge, District Court of the Virgin Islands; RAYMOND L. FINCH, Judge of the District Court of the Virgin Islands; and BRENDA J. HOLLAR, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.

MEMORANDUM OPINION

PER CURIAM.

In this appeal, we are asked to decide:

1) Whether the prosecutor violated the appellant's rights to due process guaranteed under the Fifth Amendment to the United States Constitution “by denigrating Appellant's credibility because of Appellant's post- Miranda failure to tell the police that “Goofy” had fired the shots,” requiring reversal of the appellant's conviction.

2) Whether the appellant was denied his right to a fair and impartial jury when the court sua sponte excused a potential juror “Simply Because the Juror's Brother Was a Former Police Officer, Who, According to the Court, ‘Was in a Lot of Trouble for Writing Bad Checks,’ and When the Court Excused Another Juror Without Making a Proper Inquiry of the Juror,” requiring a new trial.

3) Whether the doctrine of transferred intent is inapplicable to the offense of assault with intent to commit murder, requiring reversal of the appellant's conviction on Counts I through 4.

[See Br. of Appellant at 2].

Although the prosecutor's cross-examination of the appellant seriously impinged on rights guaranteed under the Fifth and Fourteenth Amendments to the U.S. Constitution, such error was harmless and does not warrant reversal. Having fully considered the appellant's remaining arguments, we further determine they also present no grounds for reversal. Accordingly, for the reasons herein stated, we will affirm the appellant's conviction.

I. STATEMENT OF FACTS AND PROCEDURAL POSTUREFacts of Crime

On the afternoon of December 23, 2001, Shan Francis (“Francis”) was driving a small truck and approached the intersection of Estate Whim Road and the Queen Mary Highway (Centerline Road) on St. Croix, preparing to turn eastward onto the Queen Mary Highway. Francis' female companion, Erica Parilla (“Parilla”) and their infant daughter, Shanadalis Francis (“Shanadalis”), rode in the cabin with Francis. Sean Petrus (“Petrus”) rode alone in the bed of the truck. [Appendix (“App.”) Vol. I at 145; 187–88]. The traffic was heavy in the area at the time. [ Id. at 194].

As Francis' truck came to a stop and prepared to turn right onto the highway, multiple gunshots were fired from the back of another truck traveling past Francis, from east to west on the Queen Mary Highway. Francis, Petrus, and Parilla, who all previously knew the appellant, identified Davis as the only individual in the back of that truck. [App. Vol I. at 99–100, 190, 146–47, 278]. Francis and Parilla both knew Davis from childhood—Parilla knew him from the time she was a young child, as her aunt was married to Davis' father, and Francis attended elementary school with Davis. [Id. at 98–99; Vol. II at 422–23]. Davis' brother, Hector Davis, rode in the front cabin, along with the driver, Luis Rivera or “Bugsy”.

Both Francis and Petrus said they saw Davis holding a gun; Francis saw Davis take aim and fire those shots. [See App. Vol. I. at 190–92;144–47]. Although Parilla testified that Davis was the only person in the truckbed, she took cover as the shots rang out and did not see who fired the shots. [Id. at 100–01].

Multiple shots were fired, at least three of which struck Francis' vehicle in the windshield and door on the driver's side. [Id. at 103–05]. However, none of the four individuals were struck. The jury was permitted to view the truck at trial.

Several days after the shooting, Davis was arrested and charged with four counts of assault with intent to kill each of the occupants of Francis' truck: Francis, Parilla, Shanadalis, and Petrus. See14 V.I.C. § 295(1)(assault first degree). He was additionally charged with reckless endangerment and unauthorized possession of a firearm during a crime of violence, in violation of 14 V.I.C. §§ 625 and 2253(a).

Exculpatory Testimony

At trial, Davis took the stand and admitted he was riding in the back of the truck from which shots were fired, but said another man, whom he knew only as “Goofy,” had fired those shots. [App. Vol. II at 420–21]. He also testified that Francis had engaged in a “shootout” with Goofy and that Davis had simply taken cover. [Id. at 421–22]. Neither the Government nor the defense called to the stand any of the occupants of the truck carrying Davis.

Davis admitted knowing Francis and Parilla but testified he had no ill-feelings toward them. [Id. at 432–34]. He also testified he saw only Petrus in the truck with Francis at the time of the shooting and was unaware of Shanadalis or Parilla. [ Id. at 423].

On cross-examination, the Government attempted to impeach Davis with the fact that he had never told police about Goofy, despite the fact that the information would tend to exculpate him of the crimes. [Id. at 449–55]. The trial court overruled the defense's objections to such cross-examination and permitted the questioning, as well as several additional references to the appellant's silence by the prosecutor in closing arguments.

Assault with Intent to Kill

Davis was charged with having assaulted all four victims with the specific intent to kill each one. The jury was instructed on the elements of intent and specific intent. The trial court, at the government's behest and over the appellant's objections, also instructed the jury on the alternative theory of transferred intent for the charge of assault with intent to kill the occupants of Francis' vehicle. [App. Vol. II at 374–79; Supplemental App. at 674–76].

The jury returned guilty verdicts on all counts. Davis received concurrent sentences for his assault convictions under Counts I through IV. He was sentenced to a total of 15 years on the two remaining counts. This timely appeal followed.

II. DISCUSSIONA. Jurisdiction and Standards of Review

This Court has jurisdiction to review final judgments and orders of the Superior Court. See The Omnibus Justice Act of 2005, Act No. 6730, § 54 (amending Act No. 6687 (2004) which repealed 4 V.I.C. §§ 33–40, and reinstating appellate jurisdiction in this Court); ¹Revised Organic Act of 1954 § 23A; 48 U.S.C. § 1613a.² We afford plenary review to constitutional claims and generally review the court's factual determinations for clear error. See Quetel v. Gov't of V.I., 178 F.Supp.2d 482, 484–85 (D.V.I.App.Div.2001) (citations omitted); Gov't of V.I. v. Albert, 89 F.Supp.2d 658, 663 (D.V.I.App.Div.200l).

B. Whether the Prosecutor's References to Appellant's Post–Arrest Silence Violated the Appellant's Right to Due Process.1. References to Appellant's Post–Arrest Silence Was Constitutional Error.

The most concerning and, indeed, most meritorious, issue raised by the appellant surrounds the prosecutor's cross-examination regarding Davis' post-arrest silence. Such cross-examination to impeach his exculpatory testimony that another person nicknamed “Goofy” was the actual shooter, Davis contends, trampled on his constitutional due process right to a fair trial. In light of the well-established precedent on this issue, we determine that it did.

Impeachment through use of a defendant's post-arrest and post- Miranda silence has been held to violate the defendant's constitutional right against self-incrimination and right to due process, for it is the antithesis of the implicit assurances of Miranda v. Arizona³ and the protections against self-incrimination. See United States v. Hale, 422 U.S. 171,177–80 (1975)(determining such questioning improper in federal prosecutions under Fifth Amendment); Doyle v. Ohio, 426 U.S. 610, 617–19, 96 S.Ct. 2240, 49 L.Ed.2d 91(1976)(holding questioning impermissible in state prosecutions under Fourteenth Amendment); see also, Wainwright v. Greenfield, 474 U.S. 284,291(1986). The impermissible boundaries of this questioning go to the defendant's failure at the time of arrest to discuss the facts of the crime, after having been given Miranda warnings.⁴See Doyle, 426 U.S. at 619 (noting, however, that post-arrest statements may be used for impeachment if inconsistent with trial testimony); see also, United States v. Agee, 597 F.2d 350,353–55(3d Cir.1979)(no violation where defendant does not invoke his Fifth Amendment privilege to remain silent after arrest and then offers inconsistent testimony at trial).

This type of questioning to refute a defendant's exculpatory version of events, courts have repeatedly held, goes to the very heart of the defendant's defense and is, additionally, inconsistent with the spirit of the Miranda warnings, which caution arrestees of their right to remain silent. See Hale, 422 U.S. at 177;United States v. Harp, 536 F.2d 601, 602–03 (5th Cir.1976)(noting that such errors rarely harmless); United States v. Cummiskey, 728 F.2d 200,204(3d Cir.1984) (due process violated where references to silence strikes at heart of defense). This is particularly the case when the questioning is prolonged, and where the focus of the questions directly attack the defendant's exculpatory testimony at trial, suggesting that his prior silence supports an inference of a belated fabrication. See Hale, 422 U.S. at 180;see also, Harp, 536 F.2d at 602–03(noting repetitive remarks and emphasis on silence); Williams v. Zahradnick, 632 F.2d 353, 361–62 and n. 13 (4th Cir.1980)(noting that, “One reference is less damaging than four; a lengthy colloquy is more prejudicial than a brief one.”) (citations omitted); compare, Phelps v. Duckworth, 772 F.2d 1410 (...