Government of Virgin Islands v. Commissiong, Crim. A. No. 88-79.

Decision Date16 February 1989
Docket NumberCrim. A. No. 88-79.
Citation706 F. Supp. 1172
PartiesGOVERNMENT OF the VIRGIN ISLANDS v. Keith COMMISSIONG, Defendant.
CourtU.S. District Court — Virgin Islands

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Terry M. Halpern, U.S. Atty., D. Virgin Islands by Azekah E. Jennings, Asst. U.S. Atty., Charlotte Amalie, St. Thomas, U.S. V.I., for the Government.

Grunert, Stout, Moore & Bruch by John E. Stout, Susan M. Bruch, Charlotte Amalie, St. Thomas, U.S.V.I., for defendant.

OPINION

BROTMAN, District Judge.*

Presently before the court are the defendant's post-trial motions to dismiss count II of the criminal information, for judgment of acquittal or in the alternative for a new trial on both counts of the information, and to set aside his sentence. For the reasons set forth below, the court will deny the motions.

I. FACTS AND PROCEDURE

The Government of the Virgin Islands ("the government" or "the prosecution") filed a criminal information on May 16, 1988, charging Keith Comissiong1 ("Comissiong" or "the defendant") with murder in the first degree and unlawfully possessing a firearm during the commission of a crime of violence. The charges stem from the death of Nancy Linnell, whose body was found by a passerby on a road near the Mandahl Inn in St. Thomas in the early evening of May 3, 1988. The details of how authorities came to charge Commissiong are set forth in this court's decision on the defendant's motion to suppress. Government of the Virgin Islands v. Commissiong, 698 F.Supp. 604 (D.V.I. 1988). After refusing to suppress certain evidence for the reasons set forth in that decision, the court held a jury trial from November 14 to 19, 1988.

In summary, during the six-day trial the government presented evidence that Keith Comissiong and Nancy Linnell were in or near Comissiong's car on the road near the Mandahl Inn when she was shot five times. The government produced physical evidence from the vehicle including Linnell's hair fibers and blood. It also introduced expert testimony describing the several bullet entry and exit wounds in the deceased's body. In addition, it produced the bullets removed from Linnell's body, and it produced Comissiong's .357 Dan Wesson magnum revolver, which Comissiong retrieved for them from his home the day after the shooting. The government had no single theory of its case, and it did not demonstrate any particular motive; however, it set forth circumstances from which it contended a jury could infer that the defendant committed murder with willfulness, deliberation, and premeditation. In addition, the government set forth proof that, although Comissiong had a license to carry his .357 magnum revolver, the license contained certain restrictions. The government produced evidence that Comissiong could carry his handgun only during certain hours while he was engaged in lottery business. The government also produced testimony that the defendant was no longer a lottery dealer at the time of the shooting. Moreover, the government contended that although Comissiong still sold lottery tickets on consignment, he did not set out on the afternoon of the shooting to sell tickets. At the close of the prosecution's case, the defendant moved for judgment of acquittal pursuant to Fed.R.Crim.P. 29(a). The court denied the motion.

The defense admitted that Comissiong was with Linnell when she was shot and all but conceded that he shot her. The defense maintained that although she was shot with the defendant's gun in the defendant's car, the jury had to determine why and under what circumstances the shooting occurred. The defense argued that Comissiong was suffering from short-lived cocaine delirium at the time of the shooting and that his actions were in self-defense. The defense put forth the testimony of two psychiatrists indicating that Comissiong suffered from cocaine delirium, a recognized mental illness, when driving Nancy Linnell home on May 3rd. Those witnesses explained, based on their conversations with the defendant, that he apparently missed her turn-off from the main road and stopped suddenly. When he stopped, the gun that he had earlier that day placed below the passenger seat of his car slipped forward and Linnell picked it up and brandished it menacingly. The doctors explained that, because he had ingested substantial quantities of cocaine by smoking crack, he went into delirium when he saw her pointing the gun at him. They testified that he remembers nothing further of the shooting except that he tried to wrestle the gun from her, he grasped the cylinder to prevent the gun from firing, and he heard two gunshots. Comissiong also testified, explaining how he had smoked crack that day and how he picked up Nancy Linnell as he was leaving Magens Bay. He testified that he had never seen Nancy Linnell before that day and, although she may have spoken with him briefly on the beach, he did not think he talked with her before she got into his car. He also explained that Linnell asked him for drugs and that he refused, fearing she might be an undercover government agent. But for some details about what transpired before he and Nancy Linnell reached the scene where her body was discovered, his story essentially repeated what the psychiatrists testified to.

After the defense rested, the government presented its rebuttal case, which consisted principally of expert testimony about cocaine delirium. The government's expert witness testified that the defendant's alleged episode was far too short in duration to be cocaine delirium. At the close of all evidence the defense renewed its earlier rule 29(a) motion for judgment of acquittal on both counts of the information. The court again denied the motion.

On November 19, 1988, the jury returned guilty verdicts on both counts of the information. In conformity with Virgin Islands law, the court sentenced the defendant on the first count to imprisonment for the remainder of his natural life without the possibility of parole. See V.I.Code Ann. tit. 14, § 923(a) (Supp.1987) ("Whoever commits murder in the first degree shall be imprisoned for the remainder of his natural life without parole."). On the second count the court sentenced him to a concurrent ten-year term of imprisonment. The defendant has now moved for dismissal of count II of the information, for judgment of acquittal on both counts pursuant to Fed.R. Crim.P. 29 or in the alternative for a new trial pursuant to Fed.R.Crim P. 33, and for the court to set aside his sentence.

II. DISCUSSION
A. Motion to Dismiss Count II of the Information

Defendant alleges that the information fails to set forth all of the essential elements of the offense charged and that it fails to set forth sufficient facts to apprise him of the offense charged and is therefore insufficient as a matter of law and must be dismissed. An information "is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); see Fed.R.Crim.P. 7(c)(1). As to Comissiong's claim that the information did not set forth the elements of the crime charged, the Hamling Court set forth the appropriate standard for this court's analysis: "It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as `those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'" Id. (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)). As to Comissiong's challenge to the absence of factual allegations in the charge, a general description of an offense "`must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.'" Id. 418 U.S. at 117-18, 94 S.Ct. at 2908 (quoting United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516 (1888)).

1. The Elements of the Crime Charged

The information sufficiently set forth the elements of the crime charged. Count II of the criminal information that the United States Attorney filed on May 16, 1988, charged as follows:

On or about the 3rd day of May, 1988 in the Virgin Islands of the United States, Judicial Division of St. Thomas and St. John, KEITH COMMISSIONG sic without being authorized by law, did possess a 357 Dan Wesson Magnum during the commission of a crime of violence, to wit: murder, in violation of Title 14, Virgin Islands Code, Section 2253(a).

Section 2253(a) states:

Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any firearm, as defined in Title 23, section 451(d) of this code, loaded or unloaded, may be arrested without a warrant, and shall be sentenced to imprisonment of not less than six months nor more than three years and shall be fined not more than $5,000, except that if such person shall have been convicted of a felony in any state, territory, or federal court of the United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be sentenced to imprisonment of not less than five years nor more than ten years and shall be fined not more than $10,000. The foregoing applicable penalties provided for violation of this section shall be in
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