Rivera v. Gov't of the Virgin Islands

• Decision Date: 22 October 1997
• Docket Number: No. CRIM.1995/081.,CRIM.1995/081.
• Citation: 37 V.I. 68
• Parties: Norberto RIVERA, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee.
• Court: U.S. District Court — Virgin Islands

37 V.I. 68

Norberto RIVERA, Appellant,

v.GOVERNMENT OF THE VIRGIN ISLANDS, Appellee.

No. CRIM.1995/081.

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

Oct. 22, 1997.

Defendant was convicted in the Territorial Court of the Virgin Islands of burglary in the third degree, burglary in the second degree, and grand larceny. Defendant appealed. A three-judge panel of the District Court held that: (1) three-year delay between arrest and trial did not violate defendant's constitutional right to speedy trial, and (2) trial defense counsels' failure to move for speedy trial did not constitute ineffective assistance of counsel.

Affirmed. Gregory E. Miller, St. Croix, U.S.V.I., for Appellant.

Elliot McIver Davis, V.I. Department of Justice, St. Thomas, U.S.V.I., for Appellee.

Before: THOMAS K. MOORE, Chief Judge, District Court of the Virgin Islands; STANLEY S. BROTMAN, Senior Judge of the United States District Court for the District of New Jersey, Sitting by Designation; and SORAYA DIASE, Territorial Court Judge, Division of St. Thomas and St. John, Sitting by Designation.

PER CURIAM

This appeal arose out of a guilty verdict on single counts of Burglary in the Third Degree, Burglary in the Second Degree, and Grand Larceny. The issues presented are whether appellant's rights to a speedy trial and to effective assistance of counsel were violated. For the reasons which follow, we affirm the conviction.

I. FACTS

Norberto Rivera [“appellant”] was arrested on August 13, 1992 and advised of his rights at the Territorial Court on August 14, 1992. Unable to post $50,000.00 bail, with no 10% provision, and having been denied release to a third-party custodian, appellant was detained pre-trial. Appellant's motion on August 24, 1992, for release was apparently never ruled on by the court. ¹ A six (6) count Information was filed on August 27, 1992.² Appellant was arraigned the next day and requested a jury trial. On October 7, 1992, appellant filed a second motion for release which was not opposed by the Government. Although the Territorial Court entered an order on October 13, 1993, reducing appellant's bail to $15,000.00 and releasing him to a third-party custodian, he apparently was never able to satisfy the conditions, for he filed his third motion for release on January 11, 1993, without any reference to the October 13th order.

On April 5, 1993, jury selection and trial were scheduled for May 24, 1993. Appellant was apparently released on bail at some point because on the day of trial his counsel requested that he be detained until a psychiatric and/or psychological evaluation could be completed. Counsel represented that appellant was not cooperating with him and did not seem to understand the seriousness of the charges against him. The Territorial Court granted the motion for evaluation on May 25, 1993. Appellant was later arrested and imprisoned for failure to keep in contact with his attorney. On June 14, 1993, he made his fourth motion for release, and on June 17, 1993, appellant's bail was further reduced to $5,000.00 and he was released pending trial. However, by letter dated June 22, 1993, appellant's custodian (his mother) stated that she no longer wanted to have him under her custody, citing as reasons his drug abuse and lack of respect for her. After a hearing held on July 21, 1993, the court ordered appellant to report to Treatment Alternative to Street Crime [“TASC”] for a psychological evaluation.

The court next set the case for review on February 23, 1994, at which time counsel for both the Government and the appellant agreed to continue the case to a date in April. When appellant failed to appear on time for a hearing to review the case on April 20, 1994, a warrant was issued for his arrest. Upon learning that appellant had in fact appeared, although late, the court vacated the warrant and the case was continued to June 1, 1994.

At a case review hearing on June 1, 1994, the presiding judge informed counsel that appellant had eight pending cases.³ The judge ordered the Government to assign one specific attorney to handle all eight cases and the Territorial Public Defender to assign one attorney to handle all plea agreements, if any. At a pre-trial conference on November 9, 1994, the case was assigned to be tried before a particular judge, although no specific date for trial was set.

At some point, although there is no reason provided in the record, appellant was again taken into custody. In a motion dated May 10, 1995, appellant filed his fifth, and this time expedited, motion for release, or in the alternative, to set a date for trial.

By Order dated July 25, 1995, the trial court informed the parties that trial of the seven other cases on the same date was “impracticable.” The Government was ordered to notify the court of its preference for the order of trial of the cases. On July 27, 1995, the parties appeared before the court for a pre-trial conference at which time appellant moved for a bench trial which the court took under advisement. Appellant filed a formal waiver of trial by jury, and on July 28, 1995, the court found that appellant's waiver of a jury trial was not a knowing and voluntary one, and the motion for bench trial was denied. On July 31, the defense motion to suppress any in-court identification of the appellant was denied, and the Government's motion to dismiss counts IV, V and VI was granted. On that same date appellant withdrew his waiver of a jury trial. At this time, counsel for appellant informed the court that a psychiatric or psychological evaluation had never been conducted despite the court's May 25, 1993 Order,⁴ and orally renewed his motion for such evaluation. The motion for psychological testing was denied, and the jury was selected.⁵

At the jury trial which commenced on August 1, 1995, appellant was found guilty as charged. Then, on August 28, 1995, the Government filed a habitual criminal information requesting that appellant be sentenced as a habitual offender pursuant to V.I. CODE ANN. tit. 14, §§ 61(a) & (b) and 62. On November 29, 1995, pursuant to 14 V.I.C. § 61(a), appellant was sentenced as a habitual offender to ten years imprisonment without parole or any other form of release and was given credit for time served. Appellant's notice of appeal was timely filed on December 8, 1995.⁶

II. DISCUSSIONA. Jurisdiction and Standard of Review

This Court has appellate jurisdiction pursuant to 4 V.I.C. § 33 and section 23A of the Revised Organic Act of 1954,⁷ to review judgments and orders of the Territorial Court in all criminal cases in which the defendant has been convicted, other than a plea of guilty.

Whether appellant's Sixth Amendment ⁸ constitutional right to a speedy trial was violated is a question of law over which we exercise plenary review. E.g., Warner v. Government of Virgin Islands, 33 V.I. 93 (D.V.I.1995). This Court is also called upon to make an independent judgment on whether the facts thus found constitute ineffective assistance of counsel. Government of Virgin Islands v. Weatherwax, 33 V.I. 399, 408, 77 F.3d 1425, 1430–31 (3d Cir.1996). Our review of the effectiveness of counsel's assistance is denovo. Weatherwax, 33 V.I. at 409, 77 F.3d at 1431.

B. Speedy Trial

Appellant avers that he was denied his constitutionally protected right to a speedy trial. A defendant asserting a speedy trial violation in the Territorial Court of the Virgin Islands is limited to the relatively narrow protection of the Sixth Amendment to the Constitution,⁹ which provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....” U.S. CONST. amend. VI.

To determine whether appellant's Sixth Amendment right to a speedy trial has been violated, this Court must examine the facts using the four-pronged test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, § 30 (1972), namely: (1) length of the delay; (2) reason for the delay; (3) defendant's assertion of his right to a speedy trial; and 4) prejudice to the defense resulting from the delay. This Court must keep in mind as it evaluates these factors that they do not have “talismanic qualities,” but must be considered in a sensitive balancing process. See U.S. v. Benjamin, 816 F.Supp. 373, 28 V.I. 133 (D.Vi.1993). Thus, “[e]ach delay is to be analyzed independently and in the context of the particular case. Barker, 407 U.S. at 521–22, 92 S.Ct. at 2187–88.

The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.

. . . . .

A second difference between the right to speedy trial and the accused's other constitutional rights is that deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and the trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.

Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied.

Barker, 407 U.S. at 519–21, 92 S.Ct. at 2187–88. Nevertheless, the delay which can be tolerated for an ordinary street crime is considerably less than...