Smith v. Gov't of the Virgin Islands
| Decision Date | 23 July 2008 |
| Docket Number | D.C.Crim.App. No. 2004–90.,re: Super. Ct.Crim. No. F276/2003. |
| Citation | 50 V.I. 411 |
| Parties | Wilbert SMITH, Appellant, v. GOVERNMENT OF the VIRGIN ISLANDS, Appellee. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
On appeal from the Superior Court of the Virgin Islands.
Debra Smith–Watlington, Esq., St. Thomas, U.S.V.I., the appellant.
Matthew Phelan, AAG, St. Thomas, U.S.V.I., the appellee.
Before CURTIS V. GÓMEZ, Chief Judge of the District Court of the Virgin Islands; RAYMOND L. FINCH, Judge of the District Court of the Virgin Islands; and JULIO A. BRADY, Judge of the Superior Court of the Virgin Islands, Division of St. Croix, sitting by designation.
After a jury trial in the Superior Court of the Virgin Islands 1 (“the Superior Court”) on January 12–13, 2004, Wilbert Smith (“Smith”) was convicted for robbery in the first degree, assault in the third degree, three counts of possession of a firearm during the commission of a crime of violence, and possession of ammunition. Smith timely filed this appeal from his conviction arguing:
1. The evidence produced was insufficient to sustain his conviction for robbery in the first degree, unauthorized possession of a firearm during the commission of a crime of violence, assault in the first degree, assault in the third degree, or possession of ammunition;
2. The Prosecutor engaged in reversible misconduct and violated his due process rights in eliciting testimony from a police officer regarding his post-arrest, post- Miranda silence;
3. The trial court erred in permitting the government to bolster the complaining witness's allegations through the use of inadmissible hearsay recitations of the witness's allegations; and
4. The trial Court erred in failing to instruct the jury on the affirmative defense available to the appellant under title 23, section 470 of the Virgin Islands Code; or, in the alternative, defense counsel was ineffective for failing to request such an instruction.
On July 22, 2003, Wilbert Smith, a member of the Virgin Islands Weapons of Mass Destruction Task Force (“Task Force”), drove Irvin Mason (“Mason”), a fellow Task Force member, to the airport. Upon their arrival at the airport, Smith agreed to safeguard Mason's firearm, a Glock nine millimeter, until Mason returned from his trip. Mason then placed the gun and magazine under the front passenger seat of Smith's black Ford Escape. Smith, who was not licensed to carry a firearm, left the gun in the vehicle and returned to work.
Early the next morning, July 23, 2003, Smith was driving near the Nadir Gas Station, where Belony Hyppolite (“Hyppolite”) had been waiting for a ride to Redhook. At this point, either Smith approached Hyppolite or Hyppolite approached Smith. As the men exchanged words, Smith remained in the driver's seat of his vehicle with the windows down and Hyppolite was standing outside the vehicle wearing a backpack. During this exchange, Smith reached toward the underside of the front passenger seat, where Mason had placed his gun the day before. The gun was then removed from under the front passenger seat by either Smith or Hyppolite. Thereafter, Hyppolite fled on foot away from Smith's vehicle. Smith began to drive after Hyppolite in his vehicle.
Hyppolite was wearing his backpack when he began running, but he threw it onto the ground during the chase. While in pursuit of Hyppolite, Smith came upon the backpack in the road. Smith stopped his vehicle, retrieved the backpack, and placed it in his vehicle. Smith then got back into his vehicle and continued to chase Hyppolite. Hyppolite, however, had run to a nearby establishment that he called “Charles Place,” where he allegedly hid under some stairs. During this time, Smith arrived in the general vicinity where Hyppolite was allegedly hiding. Smith got out of his vehicle to look for Hyppolite at an establishment called “Sanchez Town Bar,” but could not find him.
Meanwhile, Officers Adora John and Alphonso Boyce were patrolling the Nadir Gas Station area when a man ran toward their vehicle waving his arms. Both officers testified at trial that the man who had waved them down was Jose Morales (“Morales”). Officer John testified that Morales said he had seen a man with a gun chasing another man into Sanchez Town Bar. Officer Boyce testified that Morales said that a man with a gun had asked Morales if he had seen another man run into the bar. Morales responded that he had. The officers then called for assistance before proceeding to Sanchez Town Bar.
Smith was walking out of Sanchez Town Bar as the police arrived on the scene. The officers observed some rounds of ammunition and Hyppolite's backpack in the car. They also found the gun pressed beneath a bench at Sanchez Town Bar. The officers thereafter arrested Smith.
The trial began on January 12, 2004. Both Smith and Hyppolite testified on their own behalf at trial. According to Hyppolite, Smith had approached his vehicle outside Nadir Gas Station and asked him if he needed a taxi. Hyppolite allegedly responded that he had no money for a taxi, but Smith persisted with comments such as (Trial Tr. 81, January 12, 2004.) Smith allegedly commented on Hyppolite's bag and told him to “hold on” before he grabbed the gun from under the seat and pulled it on Hyppolite (Id. at 82.) Smith, however, testified that it was Hyppolite who approached him and asked him for a ride. Smith allegedly refused to give Hyppolite a ride. Hyppolite then purportedly reached into Smith's vehicle and, after a brief struggle, grabbed the gun and ran away.
During direct examination, the prosecutor asked Hyppolite whether he had given a statement to an investigator about the events that occurred on July 23, 2003. Hyppolite responded in the affirmative. The prosecutor thereafter asked whether Hyppolite had given the same statement as he did in court and Hyppolite said yes. Defense counsel objected to the prosecutor's second question on the ground that it was a leading question. The Court overruled his objection.
( Id. at 169.) Defense counsel did not object to this line of questioning.
The trial continued for two days, after which the jury found Smith guilty of all seven counts in the information.
This Court has jurisdiction to review final judgments and orders of the Superior Court. See The Omnibus Justice Act of 2005, Act No. 6730, § 54 (); 2Revised Organic Act of 1954 § 23A; 48 U.S.C. § 1613a. The trial court's conclusions of law are subject to plenary review. Saludes v. Ramos, 744 F.2d 992 (3d Cir.1984). Findings of fact are reviewed for whether they are clearly erroneous. Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). If no contemporaneous objections were made to an issue raised on appeal, then the challenged issue is reviewed for plain error. United States v. Olano, 507 U.S. 725, 732 (1993); Fed.R.Crim.P. 52(b).
Smith argues that the government failed to produce sufficient evidence at trial to sustain his first degree robbery, first degree assault, or third degree assault charges, possession of an unlicensed firearm during a crime of violence, or possession of ammunition.
In determining the sufficiency of the evidence for a conviction, courts look at the evidence in the light most favorable to the Government. The jury verdict is sustained “if any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.” United States v. Wolf, 245 F .3d 257, 261 (3d Cir.2001) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). An appellant that attempts to challenge the sufficiency of the evidence bears a heavy burden. United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir.1990) (citing United States v. Losada, 674 F.2d 167, 173 (2d Cir.1982)). “We must ... presume that the jury properly evaluated credibility of the witnesses, found the facts, and drew rational inferences.” United States v. Iafelice, 978 F.2d 92, 94 (3d Cir.1992). Finally, “we examine the totality of the evidence, both direct and circumstantial.” United States v. Gambone, 314 F.3d 163, 170 (3d Cir.2003).
Smith was convicted of robbery in the first degree in violation of sections 1861 and 1862 of title 14 of the Virgin Islands Code (“Sections 1861 & 1862,” respectively). Robbery is defined as “the unlawful taking of personal property in the possession of another, from his person or immediate presence and against his will, by means of force or fear,” with the specific intent to deprive permanently a rightful owner of his property. V.I. CODE ANN. tit. 14, § 1861 (1921); Government of Virgin Islands v. Carmona, 422 F.2d 95, 98 (3d Cir.1970). Robbery in the first degree occurs when, in the course of the commission of the crime or of immediate flight therefrom, the defendant “[d]isplays, uses or threatens the use of a dangerous weapon.” 14 V.I.C. § 1862(2)(2000).
Smith argues that the evidence adduced at trial is insufficient to prove that he was in close proximity to Hyppolite when Hyppolite dropped the backpack in the street. Accordingly, he contends, the government cannot satisfy immediate presence requirement of Section 1861.
While the phrase “immediate presence” is not expressly defined by Virgin Islands law,3 it has clearly been...
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