NICOLE SIOBHON NANTON, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff; VIRGIL LEON NANTON, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
Nanton v. People
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. HODGE, Chief Justice, concurring in part, dissenting in part. CABRET, Justice, concurring in part, dissenting in part.
NICOLE SIOBHON NANTON, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff VIRGIL LEON NANTON, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
NICOLE SIOBHON NANTON, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff VIRGIL LEON NANTON, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
S. Ct. Crim. Nos. 2007-033, 2007-034
Supreme Court of the Virgin Islands
December 23, 2009
Thomas Ajlkon, Esq., Christiansted, St. Croix, USVI, Attorney for Appellant, Nicole Siobhon Nanton.
ERIC S. Chancellor, Esq., Christiansted, St. Croix, USVI, Attorney for Appellant, Virgil Leon Nanton.
Matthew Phelan, Esq., Assistant Attorney General, Department of Justice, St. Thomas, USVI, Attorney for Appellee.
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. HODGE, Chief Justice, concurring in part, dissenting in part. CABRET, Justice, concurring in part, dissenting in part.
OPINION OF THE COURT
(December 23, 2009)
Swan, J.
The issues in this case present unique disagreements among the Justices of this Court. Two Justices will reverse the convictions of Nicole Siobhon Nanton ("Nicole" or "Appellants") and Virgil Leon Nanton ("Virgil" or "Appellants") on Count Two of the Third Amended Information, charging aiding and abetting in "Carrying or using dangerous weapons," pursuant to title 14, sections 2251(a)(2) and 11(a) of the Virgin Islands Code, whereas the third Justice will affirm the convictions on the same count. Similarly, on the issue of the sufficiency of the evidence on Count Three of the Third Amended Information, charging aiding and abetting in "Assault in the third degree," pursuant to title 14, sections 297(2) and 11(a) of the Virgin Islands Code, two Justices will affirm Virgil's conviction on Count Three, whereas the third Justice will reverse the conviction on this count. Only Virgil appealed his conviction on Count Three.
I. FACTS AND PROCEDURAL HISTORY
On March 12, 2005, Dwayne Harvey ("Harvey") entered the Playaz Night Club ("the Club") on St. Croix with a group of friends. While at the Club, Harvey was informed by his friend that Nicole was watching him. Nicole proceeded to walk in proximity to Harvey. During their encounter, Nicole and Harvey verbally abused each other.
Subsequently, when Harvey exited the Club, he observed Nicole standing at the passenger door of a silver Honda vehicle, cursing at him. Harvey walked towards Nicole; he stopped and looked at her. Nicole said, "yeah you, I am talking to you." As Harvey continued to walk towards his vehicle, he instantly noticed someone rapidly approaching him from his left side. As Harvey turned around, he immediately started evading punches from Nicole's brother, Virgil, as both men became embroiled in fisticuffs. During the altercation, Harvey observed Nicole next to him, with her hand elevated, holding an object in it. Suddenly, Harvey felt a painful blow to his head. Nevertheless, he continued to defend himself in the altercation with both Virgil and Nicole. Thereafter, an unidentified individual joined with Appellants, and all three acted collaboratively in attacking Harvey. During the altercation, Harvey was severely injured.
Harvey recounted that as the fight continued: "I felt a blow on top my head and on the back side of my head. So I took that. And right after that I felt a blow on the side of my body. I remember whining like that from pain. But I didn't stop." (Trial Tr. 53, Sept. 13, 2006.) Harvey confirmed that as Appellants continued their assault upon him, a third, unidentified male joined in the attack: "So it's now two guys and Ms. Nanton. So I am fighting these two guys and I am still feeling blows hitting me on my body. Felt like a piece of pick or something hitting you. I did not know what it was at the time and I still was doing okay . . . but then I started to get weak and I couldn't defend myself as good . . . ." (Id.)
Despite feeling enervated and experiencing excruciating pain, Harvey returned to the Club and called to his friend, Kennedy Fiest ("Fiest"), for assistance. Harvey recalled that as he approached Fiest, Fiest looked at him and asked, " 'what happened to you? What happened to you?' " (Id. at 54.) Harvey responded to Fiest's inquiry stating, "Kennedy, come now brother[,]" (Id.) and the two men returned to the parking lot outside the Club.
When Harvey exited the Club a second time, he observed the same silver Honda he had seen earlier, with Nicole standing next to it. Also, Harvey saw his assailants sitting together inside the same vehicle. He proceeded towards the silver Honda. Harvey kicked the rear window of the silver Honda and immediately collapsed, because of the potentially, life-threatening injuries he sustained during his altercation with Appellants and the unidentified individual. Fiest hurriedly transported Harvey to the hospital for medical treatment. Fiest testified that at the hospital, he observed the same silver Honda he had earlier seen at the Club driving through the hospital's parking lot, but was unsuccessful in obtaining the license plate number.
The emergency room physician who treated Harvey testified that Harvey sustained life threatening injuries as a result of being stabbed multiple times with a knife. The physician estimated that based on the depths and dimensions of the stab wounds, the knife had a blade "at least four to six inches" in length and one inch in width (Id. at 143.) According to the physician at the hospital's emergency room, Harvey was stabbed four times: A four inch laceration under his arm, two chest stab wounds on his left side, and one stab wound over his left upper abdomen. The physician further testified that Harvey lost one-third to one-half of his blood and would have bled to death within ten to thirty minutes, if he had not been immediately transported to the hospital and treated for his injuries.
While Harvey was being treated in the emergency room, Virgin Islands Police Officer Juan Bermudez ("Officer Bermudez") questioned him about the attack. During the questioning, Harvey did not identify his assailants, and he told Officer Bermudez that the assault occurred when unknown assailants attempted to rob him of his gold necklace. However, Officer Bermudez testified that Harvey was in pretty bad condition at the time of the questioning and that he had to obtain Harvey's personal information from Harvey's wife. Harvey testified that he did not recall the interview with Officer Bermudez and that he may have been delusional at the time of the interview. Consistent with Harvey's testimony that he may have been delusional, the emergency room physician stated that when persons have lost the amount of blood that Harvey lost, "they don't really make a whole lot of sense." (Id. at 146.)
Two days after the attack, Harvey was questioned again by Virgin Islands Police Detective Anthony Hector ("Detective Hector"). Harvey testified at trial that during his interview with Detective Hector, he told the detective he thought Virgil had stabbed him. During direct examination, the prosecutor asked Harvey the following questions about the stabbing:
Q. Is there anything today, sir, that causes you... to change your testimony or change what you said about who it was that stabbed you that night... ?
A. No, sir.
Q. Is there any question in your mind that Nicole Nanton and Virgil Nanton were involved in the stabbing:
A. No, sir.
{Id. at 72.)
During the police investigation into the assault, Harvey identified Nicole in a photo array as the female involved in the assault upon him. Therefore, a warrant was issued for her arrest. Harvey also identified Virgil in a photo array as one of his two male assailants in the assault upon him. Accordingly, Virgil was also arrested.
Prior to the Playaz Night Club incident, Harvey had become acquainted with Nicole and had on one occasion given her a ride home from the East End Bar on St. Croix. On that occasion when Harvey and Nicole arrived at Nicole's apartment and upon a request from Nicole for Harvey to examine her computer, Harvey entered Nicole's apartment. While in Nicole's bedroom where the computer was located, Harvey was approached by Virgil, who began cursing at Harvey. An'altercation ensued between Virgil and Harvey. The fracas continued until Harvey exited Nicole's apartment, while Appellants continued to yell and curse at Harvey. The pandemonium ceased when Nicole threw a conch shell at Harvey, as he departed the property in his truck. Therefore, when Harvey encountered Nicole on March 12, 2005 at the Club, and considering their prior altercation at Nicole's apartment, there were already existing between them animosity, acrimony, and ill-will, which simultaneously fueled their violent encounter at the Club. Importantly, their encounter at Virgil and Nicole's apartment would certainly enable Harvey to identify Appellants as his assailants at the Club and to identify them in the police's photo arrays.
Subsequently, Appellants were charged in the Third Amended Information with the following:
Count One . . . while aiding and abetting each other, with unlawful violence, did assault, with intent to commit murder, Dwayne Harvey, by stabbing him several times about the body with a knife causing serious bodily injuries, in violation of [tjitle 14 V.I.C. § 295(1) and 11(a), (ASSAULT FIRST DEGREE/PRINCIPALS).
Count Two... while aiding and abetting each other, with intent to use same unlawfully against another, did possess a deadly weapon, to wit, a knife, and used said knife during the commission of a crime of violence, namely Assault in the Third Degree, perpetrated upon Dwayne Harvey, in violation of [tjitle 14V.I.C. § 2251(a)(2) and 11(a), (POSSESSION OF A DANGEROUS OR DEADLY WEAPON).
Count Three . . . while aiding and abetting each other, did with unlawful violence and with intent to injure, assault Dwayne Harvey, with a deadly weapon, to wit, a knife, in violation of [tjitle 14 V.I.C. § 297(2) and 11(a), (ASSAULTTHIRD DEGREE/PRINCIPALS).
(Third Am. Info., J.A. at 16a-b.)
It is noteworthy that the language in the Third Amended Information erroneously refers to "specific intent" in all three counts, even though the statutory language for the crime in Count Three, title 14, section 297(2), makes no reference to "intent to injure." The statutory definition of assault in title 14 section 291 of the Virgin Islands Code is devoid of the language "intent to injure." The language "with intent to injure" is an integral part of the definition for assault and battery under title 14 section 292 of the Virgin Islands Code, but it is not a part of the definition for assault in section 291.
Appellants were convicted of the crimes in Counts Two and Three. The trial court sentenced Appellants to ten years incarceration and a fine of ten thousand dollars on the charge of "Carrying or using dangerous weapons," under title 14, section 2251(a)(2), and four years, to be served concurrently, on the charge of "Assault in the third degree," under title 14, section 297(2). The trial court also ordered Appellants to each pay restitution to Harvey for the medical expenses he incurred as a result of Appellants' villainous assault upon Harvey. On February 21, 2007, Appellants perfected appeals of their convictions to this Court.
II. JURISDICTION & STANDARD OF REVIEW
Title 4, section 32(a) of the Virgin Islands Code vests in this Court "jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court...." On March 15, 2007, the trial court entered a final judgment against Appellants. Prior to this date, Appellants filed appeals with this Court on February 21, 2007. Nonetheless, "A notice of appeal filed after the announcement of a decision, sentence, or order — but before entry of the judgment or order — is treated as filed on the date of and after the entry of judgment." V.I. S. Ct. R. 5(b)(1). Therefore, Appellants' appeals are timely filed.
We review the omission of an element of a crime from the jury instructions for plain error when an appellant fails, during trial, to preserve the issue for appeal. United States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005). To correct an error which was not raised at trial, this Court must find: "(1) an error; (2) that is plain; . (3) that affected substantial rights," Id. (citing United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)); United States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005); United States v. Syme, 276 F.3d 131, 143 n.4 (3d Cir. 2002), and (4) the error seriously affects the "fairness, integrity, or public reputation of the judicial proceedings." Dobson, 419 F.3d at 236 (citing United States v. Haywood, 45 V.I. 800, 363 F.3d 200, 206-7 (3d Cir. 2004); Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997) (internal quotations omitted).
Furthermore, we exercise plenary review over all issues involving a question of law, and a clearly erroneous standard over a trial court's finding of fact. Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 524 (3d Cir. 2009). In a review for clear error, our power to review a trial court's decision is limited, because the trial court's finding must only be "sufficient to indicate the factual basis for the ultimate conclusion." Giles v. Kearney, 571 F.3d 318, 329 (3d Cir. 2009) (internal citations omitted.).
III. ISSUES
1. Whether the omission of an essential element of a crime from the final jury instructions addressing the elements of the same crime merits reversal of a conviction on that crime.
2. Whether there was sufficient evidence to convict Appellants of aiding and abetting in assault with a deadly weapon, to wit, a knife, in violation of title 14 V.I.C. § 297(2) and 11(a).
Although Appellants appealed the provision in the trial court's judgment that mandates Appellants to pay the victim's medical expenses, (Appellant's Br., Virgil Nanton at 1); (Appellant's Br., Nicole Nanton at i.), Appellants withdrew this part of their appeals at oral argument. At oral argument, the following dialogue transpired between Appellants' counsel and Justice Swan:
JUSTICE SWAN: Before your time expire[s], are you the one that raised the issue as to the compensation?
MR. CHANCELLOR: Yes, we both raised that, but Your Honor —
JUSTICE SWAN: And you saw Marsham. 1[s] Marsham applicable here? What about the statute?
MR. CHANCELLOR: Your Honor, I would withdraw that argument. I think the Government was correct on that.
JUSTICE SWAN: Let me get this straight from you. The issue as to compensation you are withdrawing that?
MR. CHANCELLOR: Correct.
JUSTICE SWAN: On the record. Attorney Alkon are —
MR. ALKON: I am withdrawing.
(Oral Argument, Tr., 27, Mar. 14, 2008.)
IV. DISCUSSION
1. Whether the omission of an essential element of a crime from the final jury instructions addressing the elements of the same crime merits reversal of a conviction on that crime.
There is a crucial omission in the jury instructions, pertaining to the elements of the crime in Count Two. In that count of the Third Amended Information, Appellants were charged with violating title 14, section 2251(a)(2) of the Virgin Islands Code. The specific count charges that "while aiding and abetting each other with intent to use the same unlawfully against another, did possess a deadly weapon, to wit, a knife, and used said knife during the commission of a crime of violence, namely Assault in the Third Degree perpetrated upon Dwayne Harvey . . . ." (Third Amended Information, App. at A-16b.)
However, the trial court gave incomplete final jury instructions on the elements of the crime, because the instructions required the jury to find that Appellants possessed a dangerous weapon, to wit, a knife, during the commission or attempted commission of a crime of violence, (Trial Tr. 89, Sept. 14, 2006.), while omitting another element of the same crime. The jury instructions on the elements of the same crime made no mention of the statutory language of the crime, "with intent to use the same unlawfully against another." Furthermore, the omission from the jury instructions of the specific words, "with intent to use the same unlawfully against another," created a fatal deficiency in the jury instructions, which adversely impacted the legitimacy of the jury's guilty verdicts on Count Two. See V.I. v. Smith, 27 V.I. 332, 949 F.2d 677, 681-82 (3d Cir. 1991). Consequently, when the trial court instructed the jury on the elements of the crime that Appellee must prove to convict Appellants, and simultaneously omitted from the instructions the essential element of "with intent to use the same unlawfully against another," which is expressly enumerated in the language of § 2251(a)(2) and in the Third Amended Information, the trial court committed an incorrectible error, meriting reversal of the convictions on Count Two. Therefore, for innumerable reasons which follow, we reverse Appellants' convictions on Count Two and remand the cases for a new trial on this count.
It is well settled within the scope of the Fourteenth Amendment of the United States Constitution that "[t]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Apprendi v. N.J., 530 U.S. 466, 477, 120 S. Ct. 2348,147 L. Ed. 2d 435 (2000) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)) (internal quotations omitted); see also United States v. Dobson, 419 F.3d 231, 240 (3d Cir. 2005); United States v. Alferahin, 433 F.3d 1148, 1157 (9th Cir. 2006). Additionally, the Sixth Amendment right to a speedy and public trial by an impartial jury "indisputably entitle[s] a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Apprendi, 530 U.S. at 477. "A defendant's due process rights are unquestionably implicated when his purported conviction rests on anything less than a finding of guilt as to all the elements of the crime." Alferahin, 433 F.3d at 1157. Moreover, with the exclusion of the element, "with intent to use the same unlawfully against another," from the jury instructions on the elements of the crime, Appellee's burden for securing a conviction against Appellants became less arduous, while simultaneously compromising Appellants' fundamental rights to a fair trial.
Furthermore, "jury instructions that relieve the Government of this burden violate[s] a defendant's due process right." United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007) (citing Carella v. Cal., 491 U.S. 263, 265, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989)). Importantly, jury instructions that relieve the prosecution of its burden of proving every element of an offense beyond a reasonable doubt "subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases." Id. (citing Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985)). Therefore, whether requested or not, the jury is to be instructed on each and every essential element of the offense charged, Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945), and failure to do so constitutes error. Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35(1999); United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000).
Crucially, courts have informed that the omission of an essential element of a crime from jury instructions constituted error that affected a defendant's substantial rights. Foremost, in United States v. Stansfield, 101 F.3d 909, 922 (3d Cir. 1996), the United States Court of Appeals for the Third Circuit ("Third Circuit") concluded that the omission of the element "intent to kill" from the jury instructions "seriously affected the fairness, integrity or public reputation of judicial proceedings" and remanded the case for a new trial. Nearly two decades earlier, in United States v. King, 521 F.2d 61 (10th Cir. 1975), the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") reversed the trial court's decision, because the Tenth Circuit found that the trial court omitted an element of the crime of conspiracy from the jury instructions. Similarly, in United States v. Bryant, 461 F.2d 912, 921 (6th Cir. 1972), the United States Court of Appeals for the Sixth Circuit reversed the trial court's decision, because specific intent, which was an element of the crime charged, was excluded from the jury instructions. Undoubtedly, the circumstances in those cases are no different from these two cases. Moreover, when the element of "with intent to use the same unlawfully against another" was excluded from the jury instructions on the elements of the crime in Count Two, an unrectifiable deficiency was created in the jury instructions.
Nonetheless, the validity of a challenge to jury instructions must be considered against the complete jury instructions and the whole trial record. See Byrd v. Lewis, 510 F.3d 1045, 1050 (9th Cir. 2007). After an exhaustive review of the whole trial record, we conclude that Appellants were not afforded a fair trial, because the deficiency in the jury instruction was never cured. The unfairness of the trial resulted from the following. The trial record is replete with misdescription and mischaracterization of Count Two, the § 2251(a)(2) crime. To support this conclusion, the following is offered.
The primary example is the Count Two instructions that the trial court imparted to the jury during the trial. In its final instructions to the jury, the trial court stated the following:
Before you find each defendant guilty of possession of a dangerous weapon during the commission of a crime of violence, you must find that the People have proven each of the following essential elements beyond a reasonable doubt. First, the defendants, Virgil Leon Nanton, Nicole Siobhon Nanton, an[d] another unknown individual, each aiding and abetting the other, did possess a dangerous weapon, to wit, a knife. Second, that defendant Virgil Leon Nanton and Nicole Siobhon Nanton, and another unknown individual, each aiding and abetting the other, did possess a dangerous weapon during the commission of, or the attempt to commit a crime of violence, to wit, assault in the third degree. And three, that the act occurred on or about March the 12th of the year 2005, on the island of St. Croix.
(Trial Tr. at 89, Sept. 14,2006) (emphasis added.) The above instruction is consistent with the enhancement provision under title 14, sections 2251(a)(1) and (a)(2)(B) combined, but incongruous with section 2251(a)(2), the actual crime with which Appellants are charged. In Count Two of the Third Amended Information, Appellants are charged with aiding and abetting in violation of section 2251(a)(2) ("Carrying or using dangerous weapons"). (Third Amended Information, J.A. at A-16b.) Under § 2251(a)(2), the salient language in Count Two, absent the enhancement provision, is:
[w]hoever, with intent to use the same unlawfully against another... possesses... any... deadly weapon shall [be fined and/or imprisoned].
14 V.I.C. § 2251(a)(2).
After scrutinizing the language of the statute, the unavoidable conclusion is that the words "with intent to use the same unlawfully against another," are a pivotal element of the crime. While the trial court's instructions to the jury included some of the elements in Count Two, the element of the crime, "with intent to use the same unlawfully against another," is conspicuously omitted from the final jury instruction on the elements of the crime. Therefore, the trial court erred when it instructed the jury on the specific elements of the crime codified in section 2251(a)(2) or in Count Two.
We summarily reject the argument that because the words, "with intent to use the same unlawfully against another," are mentioned in other parts of the trial record in a different context or in the overall final general instructions that such mention satisfies the elements requirement of the crime. For the following reasons, references to "with intent to use the same unlawfully against another" in other parts of the trial record other than in the final jury instructions on the elements of Count Two do not constitute "instructions on the elements of Count Two." First, when the trial court delivered the jury instructions on the elements of the crime in Count Two, the trial court specifically directed the jurors' attention to what the trial court contended are the elements of that crime; therefore, the jurors paid particular attention to the trial court's rendition of the final instructions concerning the specific elements of that crime. Second, the specific elements of the crime, as articulated by the trial court in the final instructions, are the only elements the jurors must consider in their deliberation, when they compared the evidence in the case with the trial court's specific instructions on the elements of the crime. Unfortunately, in the specific instructions on the elements of the crime in Count Two, the trial court neglected to include "with intent to use the same unlawfully against another," which is an underpinning element of the crime.
At the beginning of the trial, and after describing the charges, the trial court explicitly stated: "the final part of the trial occurs when I instruct you on the law which you are to use in reaching your verdict." (Trial Tr. 14, Sept. 13, 2006.) Consequently, the jurors were duty bound to await the recitation of the final instructions from which they could discern the elements of the crime. Therefore, when the jury was provided with specific instructions on the elements of Count Two which failed to correctly state the elements of the same crime, it logically follows that the jury did not consider all elements of the crime in reaching its verdict. Therefore, we conclude that when a jury considers the elements of the crime, the jury is required to be guided by the specific final jury instructions on the elements of the crime, and not guided by reference to or reliance upon the elements of the crime being mentioned in a different context elsewhere in the trial record.
In giving the final instructions to the jurors and informing them as to what the Third Amended Information states is the crime, the trial court stated that Appellant "with intent to use same unlawfully against another, did possess a deadly weapon, to wit, a knife, and used said knife during the commission of a crime of violence .(Trial Tr. 79, Sept. 14, 2006) Although the trial court makes reference to the words, "with intent to use the same unlawfully against another" in that instant, the trial court thereafter, in reiterating the charges against Appellants, stated that Appellants were on trial for possession of a dangerous weapon and omitted the language "with intent to use the same unlawfully against another." (See id. at 80.) In that instance, the trial court failed to reference all the elements of the crime. Therefore, the omission of an element of the crime from the specific instructions created an inconsistent characterization of the section 2251(a)(2) crime against Appellants, and the jury received two irreconcilable versions of the elements of the same crime.
In cases where courts have found that the omission of an element of the crime from jury instructions did not affect the defendant's substantial rights, the courts also found that there was a functional equivalent of the elements of that crime in other charges against the defendant in the same trial. See Alferahin, 433 F.3d at 1157 (citing Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) and United States v. Baldwin, 987 F.2d 1432, 1439 (9th Cir. 1993)). In Baldwin, the Ninth Circuit found that the defendant's guilt on another count of his indictment, which was similar to the charge in question, was the functional equivalent of a finding on the missing element of the crime charged. Id. at 1439. There, the Baldwin court found that the omission did not affect the defendant's substantial rights. In contrast, however, the factual circumstances are different in this case; therefore, Baldwin is distinguishable from this case.
Importantly, no element in the crimes charged in either Counts One or Three is remotely synonymous with or tantamount to the element of "with intent to use the same unlawfully against another" in Count Two. Therefore, no functional equivalent of the missing element in the jury instructions on Count Two exists in either Counts One or Three.
The following is instructive. Appellants were charged with two other crimes that cannot be construed as a functional equivalent of section 2251(a)(2). In Count One of the Third Amended Information, the "intent" element requires a finding that the Appellants intended to murder, and in Count Three, according to the language of that count in the Third Amended Information, the "intent" element requires a finding that the Appellants intended to injure. (See Third Amended Information, J.A. at A16a-b.) Separate and distinct, Count Two explicitly and succinctly requires that the jury find that Appellants intended to use a deadly weapon unlawfully against another. Obviously, the element of specific intent is used in two different capacities or contexts in the Third Amended Information. The jury's verdicts that acquitted Appellants of Count One, but convicted Appellants on Count Two further buttress the conclusion that there was no functional equivalent of the omitted elements of the crime in Count Two to be found in the elements of the crime in Count One.
Further, we vehemently disagree with the dissent's contention on Count Two that the reasoning enunciated in Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973), of "[a] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge," is applicable to this case. Cupp addresses a challenge of whether an instruction which was accurately provided by a trial court violated the defendant's rights. Id. However, Cupp never addresses the issue in this case, which is jury instructions in which there is an omitted element of the crime charged. Therefore, Cupp is distinguishable from the instant case.
Undeniably, the jury instructions were unclear, ambiguous, and omitted an element of the crime in Count Two; therefore, the jury failed to consider all the elements of the crime in support of a finding of guilt beyond a reasonable doubt on Count Two. The United States Court of Appeals for the Eleventh Circuit has expressed that, "if the instructions will mislead the jury or leave the jury to speculate as to an essential point of law, the error is sufficiently fundamental to warrant a new trial, despite [a] party's failure to state a proper objection." Montgomery v. Noga, 168 F.3d 1282, 1294 (11th Cir. 1999) (citing Pate v. Seaboard R.R., Inc., 819 F.2d 1074, 1083, quoting Cruthirds v. RCI, Inc., 624 F.2d 632, 636 (5th Cir. 1980)) (internal quotations omitted). Lastly, this case is not a case in which a part of an instruction had been erroneously given, which may be rectified by the totality of the jury instructions. This case involves an omission from the jury instruction of a pivotal element of the crime charged. Therefore, the circumstances in this case support reversal of Appellants' convictions on Count Two.
2. Whether there was sufficient evidence to convict Appellants of aiding and abetting in assault with a deadly weapon, to wit, a knife, in violation of title 14 V.I.C. § 297(2) and 11(a).
During the police investigation into the assault, Harvey subsequently identified Nicole in a photo array as the female involved in the assault upon him; therefore, a warrant was issued for her arrest. Harvey also identified Virgil in a photo array as one of the two male assailants; therefore, he too was arrested.
The jury convicted Appellants of Count Three, which charges aiding and abetting in "Assault in the third degree" in violation of title 14, sections 297(2) and 11(a). The following Third Circuit commentary is instructive on the issue of aiding and abetting under title 14, section 11(a):
Under Virgin Islands law, third-degree assault includes causing or attempting to cause bodily harm with a weapon. 14 V.I.C. § 297(2). Criminal liability also extends to anyone who 'aids, abets, counsels, commands, induces or procures' the assault or attempted assault. 14 V.I.C. § 11(a). Liability as an aider and abettor requires proof that defendant associated himself with the venture, that he participated in it as something he wished to bring about, and that he sought by his words or action to make it succeed. United States v. American Investors of Pittsburgh, Inc. 879 F.2d 1087, 1103 (3d Cir. [1989]), cert. denied, 493 U.S. 955, 110 S. Ct. 368,107 L. Ed. 2d 354 (1989); United States v. Bey, 736 F.2d 891, 895 (3d Cir. 1984). The government can show the requisite intent with evidence defendant encouraged or helped the perpetrator. See e.g., Government of the Virgin Islands v. Navarro, 513 F.2d 11, 11 V.I. 542 (3d Cir. [1975]), cert. denied 422 U.S. 1045, 95 S. Ct. 2662, 45 L. Ed. 2d 698 (1975).
United States v. Xavier, 29 V.I. 279, 2 F.3d 1281, 1288 (3d Cir. 1993)
There is ample evidence that Virgil zealously participated in the assault in which Harvey was stabbed multiple times. Further buttressing the issue on aiding and abetting is the following: "[U]nder the theory of aiding and abetting, guilt of an accused in a criminal case may be established without proof that he or she personally did every act constituting the offense alleged." Gov't of the V.I. v. Davis, 35 V.I. 72, 79-80 (Terr. Ct. 1997) (citing United States v. Walker, 621 F.2d 163, 165 (5th Cir. 1980) (internal quotations omitted). Additionally, "[t]he law recognizes that ordinarily, anything a person can do for himself or herself may also be accomplished through the direction of another person, as his or her agent, or by acting in concert with, or under the direction of another person or persons in a joint effort or enterprise." Davis, 35 V.I. at 80.
Harvey positively identified Virgil as one of his three assailants, and he testified that he had no doubt that "they[, including Virgil,] were involved in the stabbing." (Trial Tr. 72, September 13, 2006). Importantly, the trial record before us does not disclose that Virgil was unknown to Harvey or that he wore a mask or comparable attire to conceal his identity. Similarly, because of the previous violent encounter between Harvey and Appellants at Nicole and Virgil's apartment, Harvey would have no difficulty recognizing Virgil in a future encounter with him. Additionally, Harvey testified that he told the police that Virgil stabbed him and that Nicole struck him on the top of his head with an object that Harvey thought was a knife. At trial, Harvey was questioned about whether there is anything that caused him to change his statements concerning who it was that stabbed him that night. Harvey was further questioned about the conflict between his prior statements to police and his direct examination testimony concerning the account he earlier gave to police; this conflict merely reflected on his credibility. See United States v. Smith, 459 F.2d 12, 13 (4th Cir. 1972).
It is inconsequential for purposes of appellate review, whether Harvey's testimony reaffirming what he had told the police conflicted with his testimony on cross-examination. United States v. Boone, 279 F.3d 163, 189 (3d Cir. 2002) (citations omitted); United States v. Stirone, 311 F.2d 277, 284 (3d Cir. 1962) ("The circumstances that a witness' testimony may to some extent be self-contradictory does not prevent its constituting substantial evidence." (citations omitted)). American Jurisprudence is instructive and notes the following:
The fact that a witness makes inconsistent statements with regard to the subject matter under investigation does not render the testimony nugatory or unworthy of belief; it is the province of the trier of fact to pass upon inconsistent statements and give or withhold assent to the truthfulness of the particular statement. Although there is some authority to the contrary, it has been said that inconsistencies in a witness's testimony go to credibility and do not affect the sufficiency of the evidence or destroy the probative force of the testimony as a matter of law.
29A Am. Jur. 2d Evidence § 137 (West Supp. 2008) (footnotes omitted). Indeed, "we are not at liberty to substitute our own credibility determinations for those of... the jury." United States v. Dillon, 532 F.3d 379 n.9 (5th Cir. 2008). "The reasonable doubt which will prevent conviction must be the jury's doubt and not that of this [C]ourt." Stirone, 311 F.2d at 284 (citations omitted).
Mindful that it is for to the jury and not this Court to decide which part of Harvey's testimony to believe, we conclude that the evidence, viewed in a light most favorable to Appellee, was sufficient for a jury to find that Virgil aided and abetted in an assault with a deadly weapon.
In addition to the evidence that the assailants used a knife in their attack upon Harvey, the jury also could have found Virgil guilty as an aider and abettor. To emphasize, Harvey positively identified Virgil as a participant in the vicious assault upon him, and the jury could have reasonably inferred from Virgil's conduct, as illustrated in the trial record, that he acted collaboratively as an ally in stabbing Harvey. Indeed, viewed in a light most favorable to Appellee, the evidence confirmed that the attack on Harvey commenced when Nicole distracted Harvey by cursing loudly at him while Virgil attacked Harvey from the opposite direction.
Even if the onslaught began as fisticuffs, it instantaneously escalated into a stabbing with at least one of Harvey's three assailants stabbing him. As Harvey was being stabbed, all three assailants continued their invidious and unrelenting assault upon him.
The jurors were informed by the emergency room physician that the knife used in the assault upon Harvey was large, with a blade that measured at least four to six inches in length and one inch wide, and that the stab wounds caused Harvey to bleed profusely.
The jurors could have reasonably concluded that this large knife was wielded and utilized in lacerating and stabbing Harvey throughout his upper body, causing severe and life-threatening injuries. Because Virgil actively participated in the onslaught upon Harvey, he must have known the knife was being used in the assault when he continued to assist the knife wielder, or was the knife wielder, while repeatedly assaulting Harvey. It would be incredulous that with Harvey bleeding profusely, and with his assailants in extreme proximity to each other as they assaulted Harvey, that the assailants would not have known a knife was being used by one of them.
Harvey's testimony instructs that he had difficulty defending himself because his three assailants were acting in concert with each other. The jury could have reasonably determined that the three assailants acted collaboratively to seriously injure Harvey by assaulting him with their fists and stabbing him with a knife. The assailants continued assault upon Harvey, during which he was stabbed, graphically demonstrates that Virgil acquiesced in the knife wielder's conduct and irrefutably demonstrates that Virgil willingly participated in the knife wielder's criminal purpose of using the knife in the assault. See Navarro, 513 F.2d at 15. Importantly, after scrutinizing the trial record before us, we have failed to uncover any evidence that Virgil made an overt attempt to abort his participation in the assault, or to disassociate himself from the assault upon Harvey.
Finally, although evidence that the three assailants fled the crime scene together is not itself presumptive of guilt, it is among the circumstances that the jury could have considered in determining whether Appellants acted in concert with the knife wielder. See id. ("Although generally proof showing one to be an aider and abettor relates to events occurring before the charged crime of the perpetrator, evidence of acts subsequent to the commission of the crime is competent to prove a common design, and is significant in evaluating the conduct prior to the commission of the offense of one charged as an aider and abettor."); see also United States v. Barber, 429 F.2d 1394, 1397 n.4 (3d Cir. 1970) (citing Corbin v. United States, 237 A.2d 466 (D.C. App. 1968) for proposition that flight from the scene of a crime with the actual perpetrators is a circumstance that the jury may consider in judging his conduct as an aider and abettor). "The jury had a right and an obligation to consider all the facts and circumstances respecting the defendants in determining the question of their criminal liability as aiders and abettors." Navarro, 513 F.2d at 15. Our review of that evidence, viewed in a light most favorable to Appellee, convinces us that there was sufficient evidence to support the jury's verdicts that Appellants were guilty as principals in the crime of assault in the third degree (assault with a deadly weapon).
Based on our review of the trial record, we find no merit in Virgil's assertion that there was insufficient evidence to find him guilty as a principal to or as an aider and abettor in the underlying crime of assault in the third degree. Title 14, section 297(2) provides, in pertinent part, that "[wjhoever . . . assaults another with a deadly weapon . . . shall be fined not less than $500 and not more than $3,000 or imprisoned nor more than 5 years or both." In order to prove that Appellants aided and abetted in the crime of assault in third degree, Appellee had to prove that Virgil assaulted Harvey with a deadly weapon or that Virgil aided, abetted, counseled, commanded or otherwise assisted the perpetrator in committing the assault with a deadly weapon upon Harvey. Again, considering the evidence discussed above in the light most favorable to the Government, we conclude, without compunction, that the evidence is sufficient to support a jury determination that Virgil either stabbed Harvey, or encouraged, aided, abetted, counseled, commanded, or assisted Nicole or the unknown assailant in perpetrating the stabbing. Although Virgil points to conflicting evidence and challenges the credibility of some of the testimony, those were factual issues for the jury, and not for this Court to resolve. See Schramm, 75 F.3d at 159.
V. CONCLUSION
The trial court's failure to include the element of "with intent to use the same unlawfully against another" in the jury instructions on Count Two created an error that violated Appellants' substantial rights. Consequently, the jury's verdicts that Appellants were guilty of the crime in Count Two are erroneous. For the above-mentioned reasons, we reverse the jury's guilty verdicts on Count Two and remand the cases for a new trial on Count Two, the crime of aiding and abetting in carrying or using dangerous weapons. Additionally, we affirm the jury's verdicts on Count Three of the Third Amended Information, the crime of aiding and abetting in assault in the third degree.
Although the Third Amended Information refers to title 14, section 2251(a)(2) as "Possession of a Dangerous or Deadly Weapon," the crime in the Virgin Islands Code is specifically titled, "Carrying or using dangerous weapons."
Title 14, section 11(a) states that "[w]hoever commits a crime or offense or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
The Third Amended Information inaccurately states in Count Three that Appellants were charged with "unlawful violence and with intent to injure, assault Dwayne Harvey with a deadly weapon, to wit, a knife in violation of [tjitle 14, section 297(2)____" However, title 14, section 297(2) expressly states that "[wjhoever, under circumstances not amounting to an assault in the first or second degree... (2) assaults another with a deadly weapon... shall be fined not less than $500 and not more than $3,000 or imprisoned no more than 5 years or both." Section 297(2) makes no mention of "unlawful violence" or "intent to injure." However, see 14 V.I.C. § 292, which defines assault and battery and the crime of "unlawful violence" and "intent to injure."
Based on the jury verdict forms, Appellants were actually convicted on the charges of Count Three, which states, "while aiding and abetting each other, did with unlawful violence and intent to injure, assault Dwayne Harvey with a deadly weapon, to wit, a knife, in violation of [tjitle 14 of the Virgin Islands Code, [sjection 297(2) and [sjection (11) (a), assault in the third degree." (Trial Tr. 80, Sept. 14, 2006.)
Gov't of V.I. v. Marsham, 293 F.3d 114 (3d Cir. 2002).
Title 14, section 2251 (a) (2) of the Virgin Islands Code reads in pertinent part:
Whoever . . . 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 [be fined and/or imprisoned],
U.S. CONST, amend. XIV, § 1 states that "nor shall any State deprive any person of life, liberty, or property, without due process of law."
In relevant parts, U.S. CONST, amend. VI states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State____"
See Footnotes 2 and 5.
The dissent concludes that based on Harvey's testimony that he felt a "piece of pick or something hitting" him after the third person entered the fight, it must be assumed that it was the third person who stabbed Harvey. However, the evidence does not require such a finding. The quoted testimony is part of Harvey ' s description of what occurred when the third person entered the fracas. Harvey testified, "Then a next individual came and started fighting me as well. So it's now two guys and Ms. Nanton. So I am fighting these two guys and I am still feeling blows hitting me on my body. Felt like apiece of pick or something hitting you." (Trial Tr. 53, Sept. 13, 2006.) (Emphasis supplied.) It can be reasonably inferred from Harvey's statement that he is "still feeling" the blows that felt like a pick, and that he was feeling them before the third person entered the fracas. Moreover, when determining the sufficiency of the evidence, we "credit all reasonable inferences that support the verdictf]." United States v. Perez, 280 F.3d 318, 342 (3d Cir. 2002). The dissent's interpretation of this testimony does not pay such deference to the jury's verdict.
The dissent stated that "even given the close proximity of the knife wielder, it does not necessarily follow that Appellant knew Harvey had been stabbed." In support of this proposition, the dissent adds that Fiest's "testimony indicates that he did not notice any blood or anything untoward until after Harvey kicked the vehicle and collapsed." While we agree with the dissent that it does not necessarily follow that Virgil and Nicole knew Harvey had been stabbed, such is not our standard of review. We view the evidence in a light most favorable to the Government and "credit all reasonable inferences that support the verdictf]." Perez 280 F.3d at 342. Thus, on appeal, we must accept the possibility that the jurors found that Appellants knew Harvey had been stabbed if such an inference was reasonable. Considering the size of the knife, the nature of the stab wounds, the amount of blood lost and the proximity of the assailant, the jury could have reasonably inferred that Appellants knew Harvey had been stabbed. Furthermore, even though Fiest's testimony may have indicated that he did not notice any blood on Harvey, Harvey testified when Fiest first saw him, Fiest stated "Dwayne, what happened to you? What happened to you?" (Trial Tr. 54, September 13,2006.) Harvey's testimony seems to indicate that Fiest did notice something untoward about Harvey when he first saw him. The jurors had a unique opportunity to observe Harvey's demeanor when he provided testimony and it is not this Court's role on appeal to second guess the jury's interpretation of the testimony based on the cold record of the proceedings. See Marra v. Philadelphia Hous Auth., 497 F.3d 286, 302 (3d Cir. 2007).
Nicole does not appeal her conviction on the charge of assault in the third degree.