Government of Virgin Islands v. Benjamin

• Decision Date: 14 May 1990
• Docket Number: Civ. A. No. 81/79.
• Citation: 736 F. Supp. 1337
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Keith BENJAMIN, et al., Defendants.
• Court: U.S. District Court — Virgin Islands

736 F. Supp. 1337

GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Keith BENJAMIN, et al., Defendants.

Civ. A. No. 81/79.

District Court, Virgin Islands, D. St. Croix.

May 14, 1990.

COPYRIGHT MATERIAL OMITTED

Keith Benjamin, Lompoc, Cal., pro se.

Michael Joseph, St. Croix, U.S. Virgin Islands, for Keith Benjamin.

Office of the U.S. Atty., by James S. Carroll III, Asst. U.S. Atty., St. Thomas, U.S. Virgin Islands, for plaintiff.

OPINION

BROTMAN, Acting Chief Judge, District Court of the Virgin Islands, Sitting by Designation.

Presently before the court is Keith Benjamin's application pursuant to 28 U.S.C. § 2255 to vacate or set aside his sentence. Benjamin initially raised 18 separate grounds for relief through counsel and pro se. After an evidentiary hearing, this court found the vast majority of Benjamin's assertions of constitutional violations to be without merit. With respect to the claim that newly discovered evidence required a new trial, the court rejected Benjamin's application after holding an evidentiary hearing. On appeal, the Third Circuit affirmed as to the refusal to grant a new trial on the basis of the newly discovered evidence. The Third Circuit remanded for "appropriate findings of fact and conclusions of law with respect to the grounds of relief numbered as 2 through 10." Government of the Virgin Islands v. Blyden, Civ. Nos. 86-3346, 86-3372, 86-3409 slip op. at 15 (3d Cir. Jan. 5, 1988) 838 F.2d 1206 (Table).

Grounds 2 through 10 are as follows:

2. Ineffective assistance of trial counsel evidenced by the facts that (a) counsel was new in Islands and could not understand over 30 percent of testimony of government witnesses, (b) there was failure to object to empanelling of jury, which precluded appellate review, and (c) failure to follow rules in seeking a continuance so counsel could prepare for trial.

3. Exclusion of defense counsel from (or perhaps counsel's failure to attend) the pretrial lineup.

4. Failure of the government to provide Jencks Act statements until the morning of trial.

5. Denial of a continuance to permit adequate preparation by counsel constituted a denial of due process.

6. Prejudicial closing remarks by the prosecutor.

7. Government concealed whereabouts of witnesses in violation of the Brady doctrine.

8. Admission of hearsay during testimony of Deon Williams violated the confrontation clause.

9. Government failed to obey court order regarding Benjamin's picture in violation of due process.

10. Two government witnesses misidentified Benjamin at trial in violation of due process.

Id. slip op. at 13. The parties briefed these issues in the Spring of 1988. For reasons not apparent from the record, the matter was not addressed by the district court, and in February, 1990, Benjamin filed a pro se petition for a writ of mandamus.¹ On March 27, 1990, the Third Circuit ordered that the nominal respondent, myself, "file a response to the petition within 60 days of the date of this order." Government of the Virgin Islands, C.A. No. 90-8026 (3d Cir. March 27, 1990).

The court now considers these issues.

I. FACTS AND PROCEDURE

On direct appeal, the Third Circuit aptly summarized the facts that gave rise to the convictions as follows:

Antonio "Tampo" Malone was shot to death at approximately 7:00 a.m. on June 4, 1981 as he repaired a tire on his automobile parked near his apartment in the Tutu Highrise Apartment Project in St. Thomas, Virgin Islands. A witness testified that shortly before the shooting, she heard someone say to Malone, "I came to kill you because you are a rat." She looked out of her apartment and saw a masked man outside a beige car parked nearby.

After emptying his weapon at Malone, the gunman went to the beige car, got a second gun from one of the occupants, and returned to fire several more shots into the victim. The gunman then ran back to the car which sped away.

A number of persons supplied details of the crime. The prosecution's principal witness was Miguel Delamos. He testified that on the evening before the shooting, he had seen defendants Antonio Rosado and Keith Benjamin in a beige car parked near Malone's apartment building. The witness had known both defendants for a number of years.

The next day, about a half-hour before the murder, Delamos was walking near Malone's apartment building and saw the same beige car parked nearby. Rosado was in the driver's seat, Benjamin was next to him in the front, and defendant Dennis Blyden was in the back seat. The witness also observed defendant Samuel George seated on the ground not far away.

Delamos went to his apartment but upon hearing shots several minutes later, ran outside and up the street. He saw Blyden and Benjamin, both masked, get back into the beige car car already occupied by Rosado. The car then drove away. Delamos also saw defendant George run up the street to his own Kharman Ghia and drive into the same direction as the beige car.

Other witnesses testified to hearing gun-shots and then seeing one or two individuals get into a beige car that drove away. Two other witnesses testified that sometime after 6 a.m. on the morning of the shooting they saw three individuals in a beige car parked near Malone's apartment building.

One of these witnesses, Dion Williams, recognized two of the occupants as George and Benjamin. Williams, however, could only identify George at trial and that was when he was recalled to the stand.

Government of the Virgin Islands v. Rosado, 699 F.2d 121, 123 (3d Cir.), cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983). On the day of the shooting, a police officer obtained a swab sample for a neutron activation test from Benjamin's hands. At trial, an expert testified that the test indicated that Benjamin had either fired a gun or had been very close to a gun that had been discharged. Id. at 123, cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983). Benjamin presented an alibi defense.

A jury convicted Benjamin of first degree murder, V.I.Code Ann. tit. 14, § 922(a)(1) (1964), and possession of a firearm during the commission of a crime of violence. V.I.Code Ann. tit. 14, § 2253 (Supp.1981). The defendants, including Benjamin, raised several issues on direct appeal through counsel and pro sese. The Third Circuit declined to address Benjamin's contentions that his trial counsel was ineffective and noted that such claims must be resolved in a collateral proceeding under 28 U.S.C. § 2255 (1988). Rosado, 699 F.2d at 123 n. 1, cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983).

The Third Circuit further rejected defendants' challenge to the jury selection procedure. Anticipating difficulties from the highly publicized nature of the case, the trial judge had ordered that an unusually large venire panel be summoned. Despite this foresight, a petit jury panel had not been selected after three days of voir dire, and the venire, which had included in excess of one hundred and ninety persons, had been exhausted. In an unusual procedure, the district judge had directed the marshal to summon additional talesmen from the street. On direct appeal, the Third Circuit noted that none of the defendants had objected to this practice as required by the Jury Selection and Service Act, 28 U.S.C. § 1867(a), and therefore dismissed this aspect of the appeal. Rosado, 699 F.2d at 124-25, cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983).

The Third Circuit addressed other issues, including the sufficiency of the evidence, and affirmed the judgment entered by the district court. The court of appeals also found numerous other contentions raised by defendants to be without merit. Id. at 122 ("After considering numerous other allegations of error, we conclude that they also have no merit."), cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983); id. at 123 n. 1 (noting that defendants had raised arguments not considered in body of opinion, and stating that they were without merit although the court of appeals had followed usual practice in not considering claims of ineffective assistance of counsel), cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983); id. at 127-128 (appendix listing contentions raised by Benjamin through counsel and pro se), cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983).

Benjamin thereafter filed an application pro se to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255 (1988). Chief Judge Christian denied the application in part, Government of the Virgin Islands v. Blyden, Crim. No. 81-79 (D.V.I. April 3, 1985), and held an evidentiary hearing concerning new evidence, the recantation by Delamos. Chief Judge Christian, who was the trial judge, then found that the remaining grounds raised did not warrant relief. Government of the Virgin Islands v. Blyden, Crim. No. 81-79 (D.V.I. May 7, 1986). The Third Circuit affirmed as to the denial of a new trial because of newly discovered evidence. The Third Circuit found, however, that the district court had not adequately explained its reasons for denying relief on the other grounds asserted, and therefore remanded to the district court to make appropriate findings of fact and conclusions of law. When the district court failed to act on the remand, a writ of mandamus was issued.

The court now proceeds to reconsider these issues.

II. DISCUSSION

Defendant's claims can be categorized as ineffectiveness of counsel claims, assertions of due process violations, and miscellaneous other claims. These allegations of error will be considered seriatim.

1. Ineffectiveness Claims:

The Sixth Amendment right to counsel is the the right to effective assistance of counsel. A conviction must be overturned if counsel's conduct "so undermined the proper functioning of the adversarial system that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d...