Richardson v. Gov't of the Virgin Islands

• Decision Date: 16 September 2011
• Docket Number: Super. Ct.Crim. No. F1/1996.
• Citation: 55 V.I. 1193
• Parties: Maurice RICHARDSON, Appellant, v. GOV'T OF the VIRGIN ISLANDS, Appellee.
• Court: U.S. District Court — Virgin Islands

55 V.I. 1193

Maurice RICHARDSON, Appellant,
v.
GOV'T OF the VIRGIN ISLANDS, Appellee.

Super. Ct.Crim. No. F1/1996.

District Court of the Virgin Islands, Division of St. Thomas and St. John, Appellate Division.

Considered: Jan. 22, 2010.
Filed: Sept. 16, 2011.

On Appeal from the Superior Court of the Virgin Islands, The Honorable Ishmael A. Meyers, Judge Presiding; D.C.App.Crim.App.No.1997–0015–2.
Paula D. Norkaitis, Esq., Treston E. Moore, Esq., St. Thomas, U.S .V.I., for the Appellant.

Maureen Phelan, Esq. AAG, Pamela R. Tepper, AAG, St. Thomas, U.S.V.I., for the Appellee.

BEFORE: RAYMOND L. FINCH, Senior Sitting Judge of the District Court of the Virgin Islands; LEGROME D. DAVIS, Judge of the District Court, Eastern District of Pennsylvania, sitting by designation; and PATRICIA D. STEELE, Judge of the Superior Court, Division of St. Croix, sitting by designation.

Memorandum Opinion
PER CURIAM.

Maurice Richardson (“Richardson”) appeals his conviction in the Superior Court of the Virgin Islands for conspiracy to commit murder, murder, and unlawful possession of a firearm.

I. FACTUAL AND PROCEDUAL BACKGROUND

“After a jury has returned a guilty verdict we are bound to interpret the evidence in the light most favorable to the [G]overnment.” United States v. Wood, 486 F.3d 781,783 (3d Cir .2007). With this standard in mind, we offer the following factual background. On March 26, 1994, between 11:00 p.m. and shortly after midnight, Officer Stephen Hodge of the Virgin Islands Police Department (“VIPD”) was shot and killed in the front yard of his home in Lindbergh Bay, St. Thomas. (Trial.Tr.vol.2, 206:12–22, 217:22–23, Aug. 7, 1996.)

Earlier that day, at approximately 5:00 p.m., Gwentin Sellwood (“Sellwood”) visited Mosby's clothing store, New York's Latest Fashions, where he saw Mosby with William Vanterpool (“Vanterpool”) and Carlos Fleming (“Fleming”). (Trial Tr. vol. 4, 65:1–66:4, Aug. 9, 1996.) Sellwood noticed a long gun near Mosby with its handle sawed-off, and a towel on the back of Mosby's chair. ( Id. at 84:1–14, 86:6–13.)

Several witnesses testified at trial to the facets of the murder that each saw or heard. Bernice Celestine (“Celestine”), looking out of her window just before 11:00 p.m. on March 26, 1994, testified that she saw three men in a pick-up truck outside Hodge's home. (Trial Tr. vol. 1, at 172:15–24, 174:22–23, Aug. 6, 1996.) One of the men got out of the truck and put an object in the grass near Hodge's home. ( Id. at 175:22–176:13, 181:14–16.) Shorn Pennyfeather (“Pennyfeather”) testified that he was exiting his home in Lindbergh Bay around midnight when he heard gunshots. ( Id. at 199:6–8.) Seconds later, he saw four men running down the street. ( Id. at 199:8–10, 200:4–19.) The men were dressed in all black with hoods covering their heads, and two of them were carrying long guns. ( Id. at 208:6–12, 208:24.)

An investigation began immediately following the murder. VIPD officers and a forensic team arrived at the scene, removed Hodge's body and gathered evidence, including shell casings and a towel. (Trial Tr. vol. 2, 142:6–24, 145:2–46:13, 239:12–21.) The towel tested positive for both gun powder and gunshot residue. (Trial Tr. vol. 3, 251:10–15, Aug. 8, 1996.) Hodge was shot fourteen times by four different guns, including a shotgun. ( Id. at 61:17, Aug. 8, 1996.) At some point, Hodge was shot by a shotgun from a distance of four or five feet away. ( Id. at 135.)

The police also obtained information from Athnell Coker (“Coker”). Four or five days after the murder, Coker spoke with Appellant Maurice Richardson. (Trial Tr. vol. 5, 43:10–16, Aug. 12, 1996.) Richardson told Coker that that the murder was an ambush attack where he and others waited in the bushes for Hodge to come out of his home when they shot him. ( Id. at 44:17–18, 45:10–12.) Richardson told Coker that when Hodge had fallen to the ground, he went over the body and shot Hodge with a shotgun. ( Id. at 64:3–12.)

During this conversation, Richardson asked Coker to hold the shotgun for him,. ( Id. at 45:20–45:24, 49:6–7.) Coker testified that the shotgun was sawed-off with tape on the handle and was approximately 20 to 24 inches in length. ( Id. at 49–4–20.) Coker buried the gun behind his house, and it was later removed by men sent on Richardson's behalf. ( Id. at 46:1–5, 54:22–54:24).) The shotgun has never been recovered. ( Id. at 54:24.)

On June 17, 1995, Richardson was arrested and charged with the murder of Steven Hodge. On August 6, 1996, a joint five-defendant jury trial commenced in the Superior Court of the Virgin Islands.¹ On August 8, 1996, the Government filed a seven-count superseding information against the defendants. Richardson was charged with: conspiracy to commit murder (Count I), in violation of Title 14 V.I.C § 551(1); first degree murder (Count II), in violation of Title 14 V.I.C §§ 922(a)(1) and 11; and four counts of unauthorized possession of four separate firearms (Counts III–VI), in violation of Title 14 V.I.C §§ 2253(a) and 11.

On August 19, 1996, the jury returned a guilty verdict on Counts I, II and IV ² against Richardson and he was later sentenced to life in prison.

Richardson filed timely motions for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or in the alternative for a new trial pursuant to Federal Rule of Criminal Procedure 33 and Superior Court Rule 135. On November 12, 1996, the Superior court denied all post-trial motions.

That same day, Richardson filed a timely notice of appeal challenging the denial of his post-trial motions. On appeal, Richardson challenges his conviction on the following grounds: (1) error in admitting the testimony of Athnell Coker (2) insufficiency of the evidence to convict him; and (3) violation of his Sixth Amendment right to compulsory due process.³

II. JURISDICTION

This Court has jurisdiction over appeals of final judgments or orders that were entered before January 29, 2007. SeeRevised Organic Act of 1954 23A, 48 U.S.C. § 1613(a); Act of Oct. 29, 2004, No. 6687, sec. 6, § 2, 2004 V.I. Legis. 6687 (2004); see also Joseph v. People of V.I., No.2005–13, 2008 WL 5663569, at *5 (D.V .I.App. Div. Dec. 9, 2008).⁴

III. ANALYSISA. The Sixth Amendment Right to Compulsory Process

Richardson argues that the trial court violated his Sixth Amendment right to compulsory process when it (1) ruled that Vargas Paniagua was an unavailable witness and (2) excluded the tape-recorded conversations allegedly between Paniagua and SKS as inadmissible hearsay.⁵ The Government responds that Richardson's right to compulsory due process was not violated because the Government was not responsible for Paniagua's failure to appear at trial; Paniagua was not a favorable witness; and the tape-recorded statements were inadmissible hearsay. Our review as to whether the trial court violated Richardson's Sixth Amendment right is plenary. United States v. Sanford, 173 F. App'x 943, 946 (3d Cir.2006) (citing United States v. Tyler, 164 F.3d 150, 156 (3d Cir.1998)). After reviewing Richardson's constitutional challenges, we find that both of his claims fail.

The Sixth Amendment guarantees the accused in a criminal prosecution the right “to have compulsory process for obtaining witnesses in his favor.” U.S. Const. amend. VI. The Supreme Court “has extended the Compulsory Process clause to cover a criminal defendant's right to present witnesses or evidence in his defense, ‘even though [such a right] is not expressly described in so many words.’ “ Gov't of V.I. v. Mills, 956 F.2d 443, 445 (3d Cir.1992) (quoting Taylor v. Illinois, 484 U.S. 400, 409 (1988)). However, this right is not absolute. For a criminal defendant to establish that he was convicted in violation of his right to compulsory process, he must satisfy the three-part Mills test: “[f]irst, that he was deprived of the opportunity to present evidence in his favor; second, that the excluded testimony would have been material and favorable to his defense; and third, that the deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural purpose.” Id. at 446 (citing Rock v.. Arkansas, 483 U.S. 44, 56 (1987)). We now consider each of Richardson's challenges.

1. Paniagua's In–Court Testimony

Richardson argues that the trial court violated his Sixth Amendment right to compulsory process by failing to compel Paniagua to testify at trial. For the reasons below, we find no constitutional violation.

During the course of an unrelated DEA investigation, Paniagua allegedly admitted to his involvement in the murder of Officer Hodge. Immediately before trial, Mosby filed, and the trial court executed, a writ of habeas corpus ad testificandum to secure the attendance of Vargas Paniagua to testify at trial. (Writ of Habeas Corpus Ad Testificandum, July 30, 1996 (available at Mosby v. Gov't of V.I., D.C.App.Crim.App. No.1997–0015–01, Appellant's App. II (hereinafter “Appellant Mosby's App. II”), 33–34.)) At the time, Paniagua was incarcerated for an unrelated conviction in a facility outside of the Virgin Islands. After complications arose with transporting Paniagua to court, the trial court ruled that Paniagua was an unavailable witness.⁶ (Trial Tr. vol. 2, 7:2–23; Trial Tr. vol. 3, 9:17–15:17; Trial. Tr. vol. 8, 233:21–24, Aug. 15, 1996.) Richardson asserts that he satisfied his obligation to procure Paniagua as a witness through the writ and the trial court or the Government should have incurred the additional costs of securing Paniagua's attendance. Richardson also claims that Paniagua's in-court testimony would have been favorable and material to his defense, and that failing to compel him to testify deprived Richardson of his Sixth Amendment right to compulsory process. The Government responds that Richardson and his co-defendants were responsible for Paniagua's failure to appear at trial because the writ was prepared improperly, and also that, in any event, Paniagua's testimony would...