Lead Opinion
OPINION OF THE COURT
(July 2, 2013)
Jean Clifton Connor appeals from a March 16, 2011 Judgment and Commitment of the Superior Court of the Virgin Islands, adjudging him guilty of four counts, including robbery in the first degree, using a dangerous weapon during the commission of robbery in the first degree, grand larceny, and using a dangerous weapon during the commission of a grand larceny.
I. RELEVANT FACTS AND PROCEDURAL POSTURE
On September 28, 2010, Danton Choute was in his residence in the Hospital Ground area of St. Thomas. (J.A. 47.) At about noon, he heard
Connor denied being on Choute’s property on September 28,2010, and presented an alibi defense that he was working at his father’s bar at.Coki Point on that day. (J.A. 94.) However, the People had admitted as evidence a statement Connor apparently gave to the police after he was arrested, which indicated that he was at or near Choute’s property on September 28, 2010. (J.A. 103.) At trial, Choute testified that the computer cost him $486.00, and with its case, the total cost was $500. (J.A. 54.)
After a one-day trial, which was conducted on February 9, 2011, the jury found Connor guilty of robbery in the first degree, using a dangerous weapon during the commission of robbery in the first degree, using a dangerous weapon during the commission of assault in the first degree, grand larceny, and using a dangerous weapon during the commission of grand larceny. The jury acquitted Connor of assault in the first degree, and when the trial court entered a judgment of conviction on March 16, 2011, it dismissed with prejudice the corresponding charge of using a dangerous weapon during the commission of assault in the first degree. (J.A. 12,14.) Furthermore, the court deemed the grand larceny charge as merged with the robbery in the first degree conviction, and did not impose a separate sentence thereon. (J.A. 13.) Connor filed a timely notice of appeal on March 11, 2011.
A. Jurisdiction and Standard of Review
This court has jurisdiction of this appeal from the final judgment of the Superior Court entered on March 16, 2011. V.I. Code Ann. tit. 4, § 32(a). Because the Superior Court’s March 16,2011 Judgment and Commitment is a final judgment, this Court has jurisdiction to consider Connor’s appeal. See, e.g., Browne v. People,
The standard of review for this Court’s examination of the Superior Court’s application of law is plenary, while the trial court’s findings of fact are reviewed for clear error. St. Thomas-St. John Bd. of Elections v. Daniel,
B. Sufficiency of the Evidence
Connor argues that there was insufficient evidence to prove that he was the person who stole Choute’s laptop, particularly because the People had only one eyewitness. We find this argument meritless. Here, the eyewitness knew Connor for years and was able to identify him in a photo array and during trial as the man who entered his apartment and stole his laptop. (J.A. 76, 53-54.) Connor urges us to disregard this evidence because, he argues, eyewitness identifications are unreliable. (Appellant’s Br. 25.) But “[i]f trustworthy, a single positive eyewitness identification may be sufficient proof of guilt, even if it is contradicted by the accused or by alibi testimony____” 29A Am. Jur. 2D Evidence § 1402 (2012); see also United States v. Bamberger,
As a related issue, Connor argues that there was no evidence he ever “used” a firearm during the larceny, because (1) it was alleged only that he displayed the firearm in his waistband, but did not use it, and (2) even if that display constituted “use”, the display of the gun took place only after “the crime of larceny was complete.” (Appellant’s Br. 24-25.) However, nothing in section 2251 requires that a defendant actually use a weapon. Instead, section 2251(a)(1) punishes the mere possession of a certain class of weapons, while section 2251(a)(2) prohibits the possession of another class of weapons, including dangerous or deadly weapons, if they are possessed “with the intent to use the same unlawfully against another.”
C. Double Jeopardy
As his first and third issues on appeal, Connor argues that the People violated his right against Double Jeopardy
However, the United States Court of Appeals for the Third Circuit has previously rejected the very argument Connor presents. In its 1983 decision in Government of the Virgin Islands v. Soto,
In his Reply Brief, Connor argues that Soto was wrongly decided. The Third Circuit stated in Soto that the Legislature was “clearly aware that certain of the ‘crimes of violence’ to which section 2251(a)(2)(B) applies ... were themselves defined or categorized by use of a dangerous weapon.” As an example, the court in Soto referenced the crime of assault in the first degree. 14 V.I.C. § 297(2). It noted that assault committed “with a deadly weapon” constitutes the offense of assault in the first degree, and because it is a crime of violence, it is also one of the crimes for which a possessor of a firearm may be convicted under 2251(a)(2)(B). Soto,
Connor argues that the Third Circuit erred, and thus he suggests that Soto was wrongly decided, because it quoted the first-degree assault statute as referencing “a deadly or dangerous weapon,” while the statute actually only mentions a “deadly weapon.” 14 V.I.C. § 297(2). This argument is unavailing. First, Soto’s reasoning is not limited to its first-degree assault analogy;
Connor argues in his Reply Brief that the language in section 2251(a)(2)(B) is not the relevant expression of legislative intent. (Reply Br. 5.) Instead, he urges this Court to consider section 104 of title 14. Section 104 states that
[a]n act or omission which is made punishable in different ways by different provisions of this Code may be punished under any of such provisions, but in no case may it be punished under more than one. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
14 V.I.C. § 104.
This Court recently addressed the interaction between section 104 and section 2251 of Title 14. Ward v. People,
D. A Firearm is a Dangerous Weapon
Connor argues that a firearm is not a dangerous weapon and that his conviction for possessing a firearm during the commission of a robbery should be overturned. (Appellant’s Br. 13 (“Obviously, a gun is not a dangerous weapon under” section 2251).) Section 2251 prohibits the use or possession of a “dangerous or deadly weapon” during the commission of crimes of violence, including robbery. 14 V.I.C. § 2251(a)(2). In this case, the trial court instructed the jury regarding deadly weapons (but not dangerous weapons), stating that “[a] deadly weapon is an object that is
Connor notes that the Information charges him with using a “dangerous weapon,” while the trial court instructed the jury on the definition of a “deadly weapon” but not a “dangerous weapon.” He argues that this variance violated his rights. Furthermore, he argues that a firearm is not a dangerous weapon within the meaning of section 2251, because it is unlike the other kinds of weapons described in that provision.
Both of these arguments fail. First, it does not appear that Connor ever challenged either the Information or the jury instructions below, so this Court would review only for “plain error.” Here, there was no error. The Court need not decide whether all dangerous weapons are also deadly weapons; but surely deadly weapons are also dangerous. As the Third Circuit defined it, a deadly weapon
is one which, from the manner used, is calculated or likely to produce death or serious bodily injury. Thus whether a weapon is deadly depends on two factors: (1) what it intrinsically is and (2) how it is used. If almost anyone can kill with it, it is a deadly weapon when used in a manner calculated to kill.
Gov’t of the V.I. v. Robinson,
A firearm is a weapon that is calculated to produce death and serious bodily injury. See United States v. Glover,
Furthermore, because a firearm is “calculated or likely to produce death or serious bodily injury,” it is not only deadly, but it is also, by definition, dangerous.
E. Verdict Forms
The People charged Connor with grand larceny by taking away the personal property of another valued in excess of one hundred dollars with the intent to permanently deprive Choute of it, in violation of sections 1081 and 1083(1) of title 14. (J.A. 15-17.)
Under section 3636, “[w]hen an information charges an offense against property by larceny, embezzlement, or obtaining by false pretenses, the jury, on conviction, shall ascertain and declare in the verdict the value of the property stolen, embezzled, or falsely obtained.” 5 V.I.C. § 3636. Thus, the plain language of section 3636 requires the jury to declare in its verdict the value of the stolen property. This interpretation of section 3636 is consistent with that of other jurisdictions considering statutes with identical language. See Hogoboom v. State,
Accordingly, the jury was required to declare the value of Choute’s stolen property in its verdict, and its failure to do so constitutes error. However, Connor failed to object to this omission at trial. Thus, before this Court reverses the trial court, we must find that the complained-of error is plain and affects substantial rights.
As noted above, it is clear from the record that the jury failed to determine the value of the stolen property. This failure violates the plain language of section 3636. The jury’s failure to declare the value of the stolen property, however, did not affect any substantial right. In Ohio, which had a very similar statute, courts faced with a similar question determined that the defendant must show that he is prejudiced by the failure of the jury to articulate a value of the property. See, e.g., State v. Park,
Indeed, Connor makes no attempt to show how his substantial rights were violated by the failure to specify a value, nor does he contest below or on appeal that the computer was worth more than $100. There is no question that the jury was properly instructed that it must find beyond a reasonable doubt that the value of the property exceeded $100 in order to return a conviction on the grand larceny charge, and, subsequent to that instruction, the jury did find that the element was proven beyond a reasonable doubt. (J.A. 159.) Accordingly, the jury’s failure to declare the value of the property did not affect Connor’s substantial rights.
F. Prosecutorial Misconduct
Connor urges this Court to reverse his conviction because, he argues, the trial court improperly denied his motion for a mistrial after the prosecutor asked an improper question during the trial. Connor testified in his own defense, and on cross-examination, the prosecutor asked him, “Isn’t it true that your mother made a promise to Mr. Choute to pay for
Because Connor lodged a contemporaneous objection, we review for abuse of discretion. Francis v. People,
Here, the question was arguably improper. Rule 408 of the Federal Rules of Evidence
III. CONCLUSION
There was sufficient evidence for a rational
Notes
Respectively, V.I. Code Ann. tit. 14, §§ 1861,1862(2), 2251(a)(2)(B), 1081,1083(1), and 2251(a)(2)(B).
Connor, in the briefest and most perfunctory manner, makes mention of the sufficiency of the evidence on the “intent” requirement. His opening brief states that, “[E]ven if [Connor] had [the firearm], it was hidden under his waist[band] and was not intended to be used for the larceny which occurred in the home.” (Appellant’s Br. 25.) However, assuming that this statement was sufficient to raise the issue on appeal, despite its lack of substantial argument or citation to authority, there was sufficient evidence for a reasonable jury to find that Connor intended to use the firearm unlawfully against another. Choute testified that Connor displayed the weapon in a threatening manner in order to facilitate his escape, and in fact told Choute he would kill him if he did not let him go, and the jury could have determined that Connor used the gun by displaying it to facilitate his escape with the property and intended to use it against Choute if Choute continued to block his egress. Consequently, even if this argument had been properly raised, it would not afford Connor any relief.
The Double Jeopardy prohibition found in the Fifth Amendment to the U.S. Constitution applies to the Virgin Islands by virtue of Section 3 of the Revised Organic Act. 48 U.S.C. § 1561 (2006). The complete Revised Organic Act of 1954 is found at 48 U.S.C. §§ 1541-1645, reprinted in V.I. Code Ann., Historical Documents, Organic Acts, and U.S. Constitution at 73-177 (1995 & Supp. 1997) (preceding V.I. Code Ann. tit. 1).
Connor couches his first argument as one of multiplicity of charges, rather than explicitly referencing Double Jeopardy. “Amultiplicitous indictment charges the same offense in two or more counts and may lead to multiple sentences for a single violation, a result prohibited by the Double Jeopardy Clause.” United States v. Pollen,
Even if Soto relied only on its reference to assault in the first degree, and not also on the specific language in section 2251(a)(2)(B), its conclusion would still not be erroneous. Although the Third Circuit quoted the statute incorrectly, it was correct that the Legislature had no difficulty punishing both the crime of violence of assault in the first degree — which requires possession of a deadly weapon — and the possession of the deadly weapon itself during the assault. Because it clearly intended to punish the primary crime and the corresponding possession charge, the Legislature expressed its intent to impose multiple punishments when the crime involves a violation of 2251. The fact that the Third Circuit said “deadly or dangerous weapon,” rather than “deadly weapon” alone does not alter this analysis. We decline, therefore, to accept Connor’s invitation to “ignore” Soto. (Reply Br. 6.)
The statute provides examples of weapons that would violate section 2251, including “blackjack, billy, sandclub, metal knuckles, bludgeon, switchblade knife or gravity knife or electric weapon or device,” or “a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deadly weapon.” 14 V.I.C. § 2251(a)(1), (a)(2).
We need not and do not reach the question of whether a firearm that is inoperable may be a deadly or dangerous weapon.
There is no definition in the Code of a dangerous weapon. But the Legislature has instructed us that in the absence of a statutory definition, “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language.” V.I. Code Ann. tit. 1, § 42; see also THOMAS JEFFERSON, THE JEFFERSONIAN Cyclopedia 482 (John P. Foley ed., Funk & Wagnalls Co. 1900) (“Laws are made for [people] of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.”) The Merriam-Webster dictionary defines “dangerous” as “able or likely to inflict injury or harm,” and Black’s Law Dictionary defines it as “likely to cause serious bodily harm.” Black’s Law Dictionary 451 (9th ed. 2009). Any instrumentality that is deadly — that is, “calculated or likely to produce death or serious bodily injury” — is also dangerous — that is, “able or likely to inflict injury or harm” or “likely to cause serious bodily harm.” By definition, then, a deadly weapon is also a dangerous one. Moreover, we do not accept Connor’s contention that section 2251 “defines dangerous weapons,” (Appellant’s Br. 26); rather, it simply provides a non-exhaustive list of some weapons that violate 2251, which includes any deadly or dangerous weapon.
Title 14, section 1083 defines the offense of grand larceny:
Whoever takes property-
(1) which is of $100 or more in value; or
(2) from the person of another commits grand larceny and shall be imprisoned for not more than 10 years.
Indeed, in other contexts we have held appellants to the “plain error” standard, even where the trial court allegedly failed to comply with a statute, so long as the appellant failed to object below. See, e.g., Ramirez v. People,
While the dissent — in Section IV.E. — agrees that there was an error that was plain, it appears to disagree with the Court’s conclusion that the error did not affect Connor’s substantial rights. It would certainly affect substantial rights if some element of an offense was not submitted to a jury or was not proven, as the dissent suggests; however, in this case, the jury was instructed that they could not find Connor guilty of grand larceny unless they found the value was worth more than $100, and, after this instruction, they did find him guilty beyond a reasonable doubt. Furthermore, we have never held that the mere fact that a statute was violated means that a party’s substantial rights were violated. Where a statute is violated — indeed, even where the Constitution itself is violated — an appellant must ordinarily establish each factor of the plain error test if he failed to raise his objection below. See, e.g., Malone v. People,
Blyden v. People,
The error relied upon here was not constitutional, as the evidentiary rule it violated was established to encourage, as a matter of policy, compromises and settlements, rather than to protect any constitutional rights. Davis,
See supra Section II.B.
See Christopher v. People,
Because Connor failed to raise it on appeal, we will not address at length the question of whether the trial court erred by permitting Elfreda Robinson, the supervisor of the Police Department’s Firearms Licensing Division, to testify regarding a Certificate of Contents of Official Record that had been prepared not by Robinson, but by her colleague on St. Croix. Connor objected below on Confrontation Clause grounds pursuant to Crawford v. Washington,
Concurrence in Part
concurring in part and dissenting in part.
The Appellant, Jean Clifton Connor (“Connor”), was convicted of four counts in an information, which included first degree robbery and grand larceny. Because I believe the trial court committed plain error by ignoring a statutory requirement for a conviction of grand larceny, Appellant’s grand larceny conviction should be reversed.
I. FACTS AND PROCEDURAL HISTORY
At approximately noon on September 28, 2010, Danton Choute (“Choute”) was at his residence in the Hospital Ground area of St. Thomas preparing for a flight to Puerto Rico the same day, when he heard a knock at his door. At the door was Connor, whom Choute recognized as
As Choute attempted to locate his mobile phone, Connor entered the residence. (Id.) Choute vexingly demanded of Connor, “what you doing into my room [sic], who give you authorization to come in?” (.) Connor did not respond, but instead looked intently around Choute’s apartment. (Id. at 49.) Choute ordered Connor to immediately leave his apartment. When Connor failed to leave, Choute attempted to retrieve his mobile phone to call 911. (Id at 48.) At that moment, Connor observed an unopened box purportedly containing a new laptop computer on a nearby table that Choute had recently bought as a high-school graduation gift for his daughter in New York. (Id at 49.) Connor seized the computer and hastily exited Choute’s apartment (Id at 49.) Choute bellowed “man, where [are] you going,” and began to pursue Connor. (Id.) When Choute attempted to prevent Connor from removing his property, Conner brandished a handgun at Choute that was secreted inside the waist of Connor’s trouser. Choute describes the handgun as having a brown and black handle and small in size with a capacity to hold approximately six bullets. (Id at 50.) Upon seeing the handgun, Choute shouted for help while hoping that his neighbor, who was a police officer, would hear him. (Id.) Immediately after Connor left the premises, Choute dialed 911 for emergency police assistance. (Id at 51.)
Connor was subsequently arrested and charged in a six count Information with the following: Count One, First Degree Robbery, in violation of 14 V.I.C. §§ 1861 and 1862(2); Count Two, Using a Dangerous Weapon During the Commission of a First [Degree] Robbery in violation of 14 V.I.C. § 2251(a)(2)(B); Count Three, First Degree Assault-Larceny in violation of 14 V.I.C. § 295(3); Count Four, Using a Dangerous Weapon during the Commission of a First Degree Assault-Larceny in violation of 14 V.I.C. § 2251(a)(2)(B); Count Five, Grand
At trial, Choute testified extensively about the incident with Connor that led to the appropriation of his laptop. However, contrary to Choute’s testimony, Connor testified that he was working at his father’s restaurant, Jasha Bar and Grill, at Coki Point Beach in Estate Smith Bay on the date and at the time of the robbery. In contrast, the Prosecution introduced Connor’s statement to police in which Connor stated on September 28, 2010 that he was at Choute’s home with permission from the landlord to do some maintenance work on the premises, but that he had not stolen the computer.
The jury convicted Connor of Counts One, Two, Five, and Six of the Information. At sentencing, the trial court opined that Counts Five and Six merged with Counts One and Two, and did not impose separate sentences for Counts Five and Six. (J.A. at 190-91.) Connor was sentenced to seven and one-half years on both Counts I and II with both sentences to be served concurrently. (Id.) The trial court further ordered Connor to pay a fine of $10,000 which was suspended, and to pay restitution to Choute in the amount of $486.98. (Id at 191.) This timely appeal ensued.
II. ISSUES
Connor propounds the following issues on appeal:
A. The evidence presented at trial was insufficient to convict him of the offenses for which he was charged,
B. The final jury instructions were prejudicial to him for several reasons;
C. The charges were multiplicitous and, therefore, violated Connor’s Constitutional rights against double jeopardy;
D. Connor should have been granted a mistrial because of improper and prejudicial statements made by the prosecutor.
E. The jury verdict on grand larceny was defective
We exercise plenary review over sufficiency of the evidence claims. Prince v. People,
Jury instructions that were not objected to at trial are reviewed for plain error. See Elizee v. People,
A reversal is justified under the plain error standard of review only after an appellant establishes: 1) that there is error, 2) that is plain, and 3) that affects substantial rights. Jackson-Flavius v. People,
IV. DISCUSSION
A. The Evidence Adduced at Trial was Sufficient to Convict
Because it may affect the outcome of other issues raised in determining whether the other errors alleged on appeal had a prejudicial effect on the outcome of the case, I will first address whether, as Connor alleges, the evidence obtained at trial was insufficient to convict him. The
Choute testified extensively concerning having witnessed Connor entering his residence and removing a new, unused laptop computer. Choute further testified that although he and Connor are not well acquainted, he is very familiar with Connor having seen him in the neighborhood for at least five years prior to the incident and having seen Connor on several occasions working on the same property on which Choute resides. Nonetheless, Connor challenges the reliability of Choute’s identification. Connor cites two cases in support of his contention that eyewitness testimony is inherently unreliable and should not be accorded much weight: Virgin Islands v. Petersen,
At trial, Connor testified that at the time that Choute was robbed of his laptop computer he was working at his father’s restaurant at Coki Point Beach, which is located several miles from Choute’s residence in Hospital Ground. However, the trial court admitted in evidence a statement Connor made to police the day he was arrested. In this statement, Connor declared that on the date and time of the crimes he was at the building where Choute resides to do some cleaning at the landlord’s request. (J.A. at 103-05.) In the same statement, Connor identified the building by its address, size, and color. (Id) Connor was unable to give a reason for these inconsistent statements that placed him at Coki Point Beach in Estate Smith Bay and that simultaneously placed him several miles away in the Hospital Ground area. Moreover, Connor failed to answer many of the prosecutor’s questions concerning the discrepancies in his statements. (Id) Connor’s inconsistent statements would obviously raise questions in the minds of reasonable jurors about Connor’s credibility prompting the jurors, in all likelihood, to reject Connor’s alibi as spurious.
In this case, the pivotal issue was whether the jury believed Connor or Choute. Based on the testimony and cross-examinations of both parties, it is very plausible for a reasonable trier of fact to find Choute a more credible witness than Connor. We have previously noted that “[t]he weight of the evidence is not determined by the number of witnesses who testify for either side, but by the quality of their testimony.” Dunlop v. People, S.Ct.Crim. No. 2008-0037,
B. The Appellant was not Prejudiced by the Jury Instruction on Dangerous Weapon
Connor next asserts that the final instructions imparted to the jury were erroneous because the trial court instructed on deadly weapon as opposed to dangerous weapon. Importantly, Connor did not make any objections at trial to the jury instructions. After instructing the jury, the trial court asked counsel for both parties whether there were any objections to the instructions as given, to which both counsel replied “no”. (J.A. at 149.) Thus, our review of the jury instruction is limited to plain error. See Elizee,
Connor’s main contention with the jury instructions is that when instructing on the elements of 14 V.I.C. § 2251 the trial court defined a “deadly weapon” as opposed to a “dangerous” weapon. 14 V.I.C. § 2251 states in pertinent part that:
(a) Whoever —
(1) has, possesses, bears, transports, carries or has under his proximate control any instrument or weapon of the kind commonly known as ablackjack, billy, sand club, metal knuckles, bludgeon, switchblade knife or gravity knife or electric weapon or device; or
(2) with intent to use the same unlawfully against another, has, possesses, bears, transports, carries or has under his proximate control, a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deadly weapon shall
(B) if he has previously been convicted of a felony, or has, possesses, bears, transports, carries or has under his proximate control, any such weapon during the commission or attempted commission of a crime of*309 violence (as defined in section 2253(d)(1) hereof) shall be fined $10,000 and imprisoned not more than fifteen (15) years, which penalty shall be in addition to the penalty provided for the commission of, or attempt to commit, the crime of violence.
(Emphasis added.) The trial court gave the following instruction:
A deadly weapon is an object that is used or may be used in such a manner that it is calculated to or likely to produce death or serious bodily harm. Whether an object is a deadly weapon depends on the essential character of the object and the manner in which it is used.
14 Virgin Islands Code 2251(a)(2) defines this term to include, but not be limited to, any dangerous or deadly weapon if possessed, bor[n]e, transported, or carried by, or had under the proximate control of, one who does so with intent to use the item unlawfully against another.
(J.A. at 159.) Connor further argues that the interchange of the word “deadly” for “dangerous” caused the jury to instead consider “deadly weapon” under 14 V.I.C. § 297, a statute which carries a higher penalty than § 2251. Connor argues that the interchange of the words deadly and dangerous caused Conner to be convicted using a lower standard. “To determine whether the Superior Court erred in its jury instructions, we must view the instructions as a whole to determine whether they were misleading or inadequate to guide the jury’s deliberations.” Christopher v. People,
C. The Charges were not Multiplicitous and did not Violate Connor’s Rights against Double Jeopardy
Connor contends that the prosecution impermissibly charged him with multiple crimes requiring the same set of elements emanating from the same offense. Essentially, Connor makes the argument that his Fifth Amendment right protecting him from double jeopardy was violated. The Fifth Amendment to the Constitution proscribes that no individual shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. CONST, amend. V. Inherently, the Double Jeopardy clause encompasses several protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Schiro v. Farley,
In addressing the multiplicitous charging for the same offense, the standard test of propriety is embodied in Blockburger v. United States,
Connor’s contention on appeal is that first degree robbery under 14 V.I.C. § 1862(2) and possession of a dangerous weapon during the commission of a crime of violence under 14 V.I.C. § 2251(a)(2)(B) are charges that emanate from the same criminal conduct, and require proof of the same elements in violation of Blockburger. 14 V.I.C. § 1862(2) states in pertinent part that:
*311 A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another perpetrator of the crime:
(2) 'Displays, uses or threatens the use of a dangerous weapon.
(Emphasis added). Similarly, 14 V.I.C. § 2251(a)(2)(B), as set forth above in this opinion establishes guilty for anyone who:
with intent to use the same unlawfully against another, has, possesses, bears, transports, carries or has under his proximate control, a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deadly weapon . . .
if he has previously been convicted of a felony, or has, possesses, bears, transports, carries or has under his proximate control, any such weapon during the commission or attempted commission of a crime of violence.
(Emphasis added). The crime of violence alleged under the latter statute is robbery. Accordingly, under both statutes the essential elements that the People are required to prove are that Connor committed a robbery in which he used or possessed a dangerous weapon, to wit a gun, in furtherance of the commission of the robbery. Importantly, the charges under the above statutes emanated from the same incident. Both sections are charged to criminalize Connor’s conduct in robbing Choute while using a gun. Although § 2251 goes into greater detail concerning what constitutes a dangerous weapon, it does not include any additional facts that must be proven to obtain a conviction than what is required for a conviction under § 1862, which is possession or use of a dangerous weapon in the furtherance of a robbery. Convicting Connor under both statutes for the same offense is contrary to the Blockburger test. Accordingly Connor’s conviction under these two statutes is violative of his constitutional rights, unless the Virgin Islands Legislature intended for the one occurrence to be punishable by both statutes.
Blockburger serves to protect an individual from receiving a greater punishment for an offense than what the legislature intended. Whalen v. United States,
Hunter is analogous to this case in that the defendant appealed his convictions for first degree robbery and armed criminal activity which the defendant contended placed him in double jeopardy. Although both crimes contained some similar elements and punished the defendant for a single act, the United States Supreme Court found that there was no double jeopardy violation. The United States Supreme Court concluded that the Missouri legislature intended for an individual to be punished under both statutory provisions Id. In ruling that legislative intent precluded violation of double jeopardy, the Supreme Court held that:
The question of what punishments are constitutionally permissible is no different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.
Id. (internal citations omitted) (emphasis added).
Whether the Virgin Islands legislature intended for the robbery statutes and § 2251 to provide multiple punishments for a single act is an issue that has already been addressed by the Third Circuit. In Government of the Virgin Islands v. Soto,
*313 prior to 1977, clearly all robberies were “crimes of violence” for purposes of applying the weapons statute. Since the legislature did not strike “robbery” from the list of “crimes of violence” following the enactment of the present robbery provisions in 1977, there is no basis to assume the legislature modified its prior determination that section 2251 (a)(2)(B) applied to all robberies. Indeed, robbery was then, as it is now, defined in 14 V.I.C. § 1861, without reference to degrees.... In order to give effect to the continued presence of “robbery” in the list of “crimes of violence”, we conclude that section 2251(a)(2)(B) continues to authorize cumulative punishments when robbery, whatever the degree, is committed with a dangerous weapon.
Accordingly, I need not conduct an extensive analysis to determine the legislative intent in the punishment under sections 2251 and 1863. “[Statutory interpretation begins with the language of the statute itself... and if the statutory language is unambiguous the plain meaning of the words is ordinarily regarded as conclusive.” Gov’t of the V.I. v. Knight,
D. The Court did not abuse its discretion in denying a mistrial for the Prosecutor’s Comments
Connor’s next assertion on appeal is prompted by the trial court’s denial of his oral motion for a mistrial because of alleged improper
In determining whether a prosecutor’s comment is cause for a mistrial, we engage in a two-step analysis. “First, we must evaluate whether the statement was improper.” DeSilvia v. People of the Virgin Islands,
Connor asserts that the prosecutor’s question concerning an alleged agreement made with Connor’s mother and Choute was improper because it relies on evidence not introduced at trial. Generally such comments are improper because:
(1) such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and
(2) the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.
Francis v. People,
Although improper, the comments made by the prosecutor did not likely influence the outcome of the trial, because of the overwhelming evidence presented at trial to convict Connor. As aforementioned, Connor robbed Choute during daytime hours and within the confines of a room in his apartment. Choute had prior familiarity with Connor after seeing him in Choute’s neighborhood for the past five years, and from work Connor had previously performed for Choute’s landlord on the same premises on which the crimes occurred. The possibility that Choute misidentified Connor as the perpetrator of the offense is highly remote or nil. Choute’s testimony was not impeached and remained consistent. On the contrary, the testimony given by Connor was highly suspect and inconsistent. Connor claimed that he was working at his father’s business on Coki Point Beach, which is miles away from where the incident occurred in the Hospital Ground area of St. Thomas. However, in statements he gave to the police when he was arrested, Connor claims to have been at Choute’s residence during the date and time of the incident by invitation of Choute’s landlord. In consideration of such condemning evidence offered at trial, it is a remote possibility that Connor would not have been convicted but for the prosecutor’s comment. “If our review of the record convinces us that the jury would have convicted the defendant even had it not been exposed to the allegedly improper prosecutorial comments, we must conclude that no actual prejudice accrued.” Gov’t of the V.I. v. Joseph,
Connor next argues that his conviction for grand larceny should be reversed because the jury failed to ascertain and declare the value of the property stolen in the jury verdict. Connor asserts that the jury verdict is defective because it fails to conclusively convict him of taking property valued at $100 or more as required for a finding of grand larceny under 14 V.I.C. § 1083. Importantly, a determination of the value of the property stolen in jury verdicts for larceny convictions is mandated by 5 V.I.C. § 3636 which provides that:
When an information charges an offense against property by larceny, embezzlement, or obtaining by false pretenses, the jury, on conviction, shall ascertain and declare in the verdict the value of the property stolen, embezzled, or falsely obtained.
This Court has previously found plain error based on the failure of a trial court to apply “well-established” legal precedent in sentencing a defendant. See Brown v. People,
Additionally, this error is one of constitutional magnitude because the value of the property is directly correlated to the severity of the sentence. Further, it would not be unreasonable to assert that the wanton and callous disregard of a statute, which has been in effect in the Virgin Islands for over eighty years, is an error that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Johnson,
Jury statements of the value of property stolen in their verdicts of theft related offenses are especially important when the degree of the sentence or crime is dependent upon the value of the property stolen. See Henson v. People,
Under the Virgin Islands Code, larceny is divided into petit and grand larceny. Petit larceny does not require a specific value for the property illegally taken and carries a sentence of not more than 1 year imprisonment or a fine of not more than $200. See 14 V.I.C. § 1084. On the other hand, grand larceny requires that the value of the property taken be $100 or more and carries a sentence of not more than 10 years. 14 V.I.C. § 1083. Fundamentally, the value of the property unlawfully appropriated means the difference between a one year sentence and a ten year sentence. The United States Supreme Court has held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for
Accordingly, since the jury verdict for grand larceny does not include the value of the property stolen, I would remand this case to the trial court with instructions to vacate the verdict of grand larceny.
V. CONCLUSION
For the reasons elucidated above, the defendant’s convictions on Counts One, Two, and Six of the Information should be affirmed. However, his conviction Count Five, grand larceny, should be vacated because, in violation of Connor’s substantial rights, the trial court failed to follow a legislative mandate and ensure that the jury verdict included the value of the property stolen.
During trial, Count Four of the Information was dismissed by the trial court because the evidence failed to demonstrate that Connor “pointed a gun at Danton Choute” as Count Four alleges. (See J.A. at 189.)
I do not address whether the lesser included offenses were violative of the Double Jeopardy Clause. Failure to raise this issue on appeal resulted in a waiver of any Double Jeopardy Clause violation. See Beazer East, Inc. v. Mead Corp.,