Rivera v. Gov't of the Virgin Islands, 1997–100.

• Decision Date: 04 February 2000
• Docket Number: No. 1997–100.,1997–100.
• Citation: 42 V.I. 203
• Parties: Jamel R. RIVERA, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee.
• Court: U.S. District Court — Virgin Islands

42 V.I. 203

Jamel R. RIVERA, Appellant,

v.GOVERNMENT OF THE VIRGIN ISLANDS, Appellee.

No. 1997–100.

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

Feb. 4, 2000.

On Appeal from the Territorial Court of the Virgin Islands.

Stephen A. Brusch, Esq., St. Thomas, for Appellant.

Maureen Phelan Cormier, Esq., Assistant Attorney General, St. Thomas, for Appellee.

Before: RAYMOND L. FINCH, Chief Judge, District Court of the Virgin Islands; THOMAS K. MOORE, Judge of the District Court of the Virgin Islands; and EDGAR D. ROSS, Territorial Court Judge, Division of St. Croix, Sitting by Designation.

ORDER OF THE COURT

PER CURIAM.

AND NOW, this 4th day of February, 2000, having considered the parties' submissions, and for the reasons set forth in the Court's accompanying Opinion of even date, it is hereby

ORDERED that the Territorial Court's judgment of conviction is AFFIRMED. It is further

ORDERED that the sentence imposed upon the appellant by the Territorial Court is VACATED, and this case REMANDED for resentencing in accordance with Virgin Islands law and this opinion.

OPINION OF THE COURT

Appellant Jamel R. Rivera [“Rivera”] appeals his Territorial Court jury conviction of assault in the first degree, V.I. CODE ANN. tit. 14, § 295(1), on three grounds. First, Rivera argues that his trial attorney provided ineffective assistance of counsel. Second, he asserts that the trial court committed plain error or violated his right to present witnesses and a defense by excluding testimony concerning the lighting conditions at the crime scene as cumulative under Federal Rule of Evidence 403.¹ Lastly, Rivera contends that the trial court failed to instruct the jury on an essential element of the charged offense by failing to define the term “murder” or the phrase “intent to commit murder.” The Appellate Division has jurisdiction to consider this appeal from a jury conviction. See4 V.I.C. § 33. Considering each of these contentions in turn, we find no error on the trial record and affirm the judgment of conviction.

Rivera also challenges his sentence on the grounds that it violated Virgin Islands law. Exercising our authority to review sentences imposed after jury convictions, see id., we agree and remand this matter to Territorial Court for resentencing.

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Rivera claims that the performance of his trial attorney, Stylish Willis, Esquire [“Willis”], violated his right to effective assistance of counsel under the Sixth Amendment.² The Appellate Division recently noted that, “[o]rdinarily, a claim of ineffective assistance of counsel is not appropriately reviewed for the first time on direct appeal, but must be raised by a collateral proceeding because the necessary facts about counsel's representation of the defendant have not been developed.” Rivera v. Government of the Virgin Islands, 37 V.I. 68, 79, 981 F.Supp. 893, 900 (D.V.I.App.Div.1997). After exhaustive review of the four-hundred page appendix submitted by the appellant, we find that this appeal falls into the “ordinary” group of cases. The appellant cannot establish on the basis of the trial record alone that the assistance rendered by his attorney was constitutionally defective.

Rivera maintains that attorney Willis violated his right to effective assistance of counsel in five respects:

(1) When Willis left St. Thomas before trial due to a family medical emergency, he had another attorney select the jury. ( See Appellant's Br. at 14; see also App. at 24.)

(2) When the government moved to preclude cross-examination about the victim's prior felony conviction, Willis did not oppose its motion. ( See Appellant's Br. at 15; App. at 33.) ³

(3) When the government elicited testimony from the treating physician about the serious injuries sustained by the victim, Willis did not object. ( See Appellant's Br. at 18; App. at 76.)

(4) When the trial judge prepared to instruct the jury, Willis did not ask the trial judge to define “murder” or the phrase “intent to commit murder.” ( See Appellant's Br. at 19.) ⁴

(5) Finally, the government told the jury during closing arguments that “[t]he evidence gives you an opportunity to say no to our guns in the street ... Jamel is an unemployed 22–year old, based on the evidence, who would stand in your streets and fire on another person. Because he plays by his own rules, ladies and gentlemen.... Say no to Jamel's rules.... We have other rules. You know what they are. And it doesn't include firing on a man and leaving him to die.” (App. at 345.) Willis did not object to this argument. ( See Appellant's Br. at 20; App. at 346.)

The record before us does not establish that Willis' assistance was so deficient that it deprived Rivera of a fair trial, “a trial whose result is reliable.” See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rivera submitted only seven pages of the fifty-page jury selection transcript for our review, and this limited record does not show that the attorney who appeared on his behalf failed to safeguard his interests. ( See App. at 23–29.) We cannot discern from the record, however, whether the remaining instances of inaction by the appellant's counsel were reasonable trial stratagem, or errors of omission. Rivera presented an alibi defense. It is quite possible that his attorney deliberately chose not to object to elements of the government's case or the jury instructions in order to focus the jury's attention on this defense.

The record suggests that Willis provided Rivera with unspectacular but competent representation. Willis not only elicited testimony from the victim that cast doubt on his recollection and his ability to see his assailant under poor lighting conditions, (see id. at 112, 115, 119–20), but also presented witness testimony in support of Rivera's alibi and peaceful nature, (see id. at 170, 221, 239–40), effectively summarized this testimony at closing arguments, (see id. at 329–34), and objected to remarks that the government made at closing. ( See id. at 342, 346–47.) Since Rivera cannot rely on the trial record alone to “overcome the presumption that, under the circumstances, the challenged [conduct] ‘might be considered sound trial strategy,” ’ see Strickland, 466 U.S. at 689, we follow our usual course in holding that this Sixth Amendment claim must be resolved in a collateral proceeding. See Rivera, 37 V.I. at 79, 981 F.Supp. at 900;Smalls v. Government of the Virgin Islands, 35 V.I. 173, 175, 950 F.Supp. 698, 699 (D.V.I.App.Div.1996).

II. EXCLUSION OF TESTIMONY OFFERED BY DEFENDANT

Rivera avers that the trial court committed plain error or violated his Constitutional right to present witnesses and a defense ⁵ by excluding testimony concerning the lighting conditions at the crime scene as cumulative under Federal Rule of Evidence 403. We do not concur.

During its case-in-chief, the government asked the victim about the lighting conditions at the crime scene when the assault occurred. He testified that, “[i]t had porch light. It had a yard light. It had other street lights.... [I]t was night.” (App. at 93.) On cross-examination, the victim admitted that he had not seen the assailant's gun because it was dark that evening, see id. at 125, and conceded that he had never mentioned any lights in his statement to the police.⁶

Rivera later presented two witnesses who arrived at the crime scene moments after the assault. They both emphasized that there were no lights near the crime scene. ( See id. at 223–24, 243, 245.) After the second witness spoke, Rivera's attorney announced that he would call another witness to testify “whether or not there was light lit in the area or not.” ( See id. at 253.) After the government objected to this additional witness, the trial judge said, “[w]e don't need cumulative testimony on the lights. We already have two witnesses that have already said there [were] no lights.... You don't have to call a hundred witnesses. You have two already.” ( See id. at 254.) Rivera's counsel then decided to call his client as his next witness.⁷

Federal Rule of Evidence 403 provides that trial judges may exclude relevant evidence whose probative value “is substantially outweighed ... by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” FED. R. EVID. 403. Trial court rulings under Rule 403 must not be reversed on appeal unless the appellant demonstrates that the trial judge clearly abused her discretion. See Hamling v. United States, 418 U.S. 87, 127, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); Government of the Virgin Islands v. Grant, 21 V.I. 20, 25–26 (D.V.I.1984). Applying this standard, we do not agree that the trial judge clearly abused her discretion in concluding that more defense testimony concerning the lighting conditions at the crime scene would be needlessly repetitive or cumulative. Rivera already had impeached the victim's initial description of the lighting conditions on cross-examination and presented two witnesses who testified that there were no lights adjacent to the crime scene before he sought to examine the additional witness. This Court finds no error in the trial judge's ruling, Constitutional or otherwise. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (observing that, in exercising the right to present witnesses and a defense, the accused “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence”).

III. FAILURE TO DEFINE “MURDER” OR “INTENT TO COMMIT MURDER”

Rivera contends that the trial court failed to instruct the jury on an essential element of assault in the first degree, 14 V.I.C. § 295(1), by failing to define the word “murder” or the phrase “intent to commit murder.” The truncated record before us does not show that Willis objected to the instructions delivered by the...