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2019 Published Opinions
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March 1, 2019
S. Ct. Civ. No. 2017-0063
Miron E. Reynolds v. Lee Rohn, Esq. and Lee J. Rohn and Associates, LLC
      The judgment of the Superior Court granting a defense motion for judgment on the pleadings in a legal malpractice action, and denying leave to amend the complaint is affirmed. After analysis it is concluded that the majority rule specifying the elements for a claim of legal malpractice based in tort—requiring (1) an attorney-client relationship giving rise to a duty; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) damages—is the soundest rule for the Virgin Islands. In this case the plaintiff failed to allege facts that would prove two elements of a claim for legal malpractice based in tort: (1) a causal connection between the negligent conduct and the resulting injury, and (2) damages. Thus the motion for judgment on the pleadings was properly granted. The Superior Court’s denial of a consolidated motion for reconsideration and for leave to amend the complaint is also affirmed. Plaintiff has essentially reargued the same points he already made in previous filings with the court (which is insufficient under the standards for granting a motion to reconsider), and the Superior Court properly denied the motion to amend the complaint in this action as futile. The Superior Court’s judgment dismissing this case based on its orders dated July 2, 2014 and August 22, 2014 is affirmed.
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February 27, 2019
S. Ct. Civ. No. 2017-0059
Cristia Allenbaugh v. Shane I.M. Hodge
      Orders entered by the Superior Court of the Virgin Islands pertaining to a child custody case are vacated and the Superior Court’s jurisdiction over the child custody matter is terminated. A request for imposition of monetary sanctions is refused. Although the custody action commenced within six months of the child leaving the Virgin Islands as permitted by 16 V.I.C. § 127 (a)(1), the Virgin Islands was never the home state of the child, who had never lived in the territory for six months. Moreover, the record lacks evidence that the child has a substantial nexus to the territory or that another state has declined to exercise jurisdiction. On the date the action was filed in Superior Court, another state had already become the child’s home state and had jurisdiction to make an initial custody determination. Because the Superior Court lacked jurisdiction to enter its 2014 custody order, that order and all orders emanating from it are vacated, and all notices of appeal relating to those orders are moot. The parties are encouraged to initiate custody proceedings in a state that has jurisdiction. This matter is remanded for proceedings consistent with this opinion.
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February 13, 2019
S. Ct. Civ. No. 2018-0031
Randy Burke v. Diane Prosper, Acting Warden of the Bureau of Corrections, et al.
      On appeal from a judgment of the Superior Court denying a petition for a writ of habeas corpus that alleged ineffective assistance of counsel, the judgment is affirmed. Issues previously raised on direct appeal are unsuitable to be re-litigated with a petition for a writ of habeas corpus, and thus certain of the claims in this petition are barred. The claim that petitioner was denied effective assistance of counsel by his trial attorney’s failure to cross-examine a government witness requires a showing that counsel’s performance was deficient and that petitioner suffered prejudice as a result. Regarding the alleged prejudice from failure to cross-examine, any mitigation of the offense such examination could have produced was already in the record for the jury to consider. Even if petitioner was prejudiced by failure to cross-examine the witness, petitioner failed to demonstrate that counsel’s decision was not part of a sound trial strategy, and thus has failed to meet the high burden to satisfy either prong for a successful ineffective assistance claim. The claim based on failure to call the medical examiner as a witness is similarly without merit. The judgment dismissing the petition for writ of habeas corpus is affirmed.
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February 8, 2019
S. Ct. BA. No. 2018-0031
In re Anne Elder Kershaw
      In response to an order to show cause as to whether pro hac vice admission should be denied in light of an allegation that the applicant has engaged in the unauthorized practice of law in the Virgin Islands, the motion for pro hac vice admission is denied. The New York attorney seeking pro hac vice admission was directed by prior order of this Court to execute the required oath of office before the Clerk of the Court. However, she appeared as counsel for the defendants in a pending litigation at a mediation that occurred on prior to taking the oath. Reliance by the attorney and her sponsor on American Bar Association Model Rule of Professional Conduct 5.5(c) is misplaced, since that provision was never applicable in the Virgin Islands, and its adoption was expressly declined in the order promulgating the Virgin Islands Rules of Professional Conduct, which also invoke 4 V.I.C. § 443. Applying Rule of Professional Conduct 211.5.5 and § 443—the correct legal authorities—it is clear that the applicant engaged in the unauthorized practice of law when she appeared as counsel at the mediation. Accordingly the petition to admit this attorney pro hac vice is denied, and this matter is referred to the Office of Disciplinary Counsel, the Board on Professional Responsibility, the Board on Unauthorized Practice of Law, and the Virgin Islands Attorney General, for the purpose of taking any additional action which they may find appropriate with respect to the conduct of the applicant and her sponsor in this matter.
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February 7, 2019
S. Ct. Crim. No. 2016-0058
Charlesworth Gonsalves v. People of the Virgin Islands
      There was sufficient evidence to support a defendant’s convictions for the crimes of second degree aggravated rape of his minor daughter under 14 V.I.C. § 1700a(a) as an act of domestic violence pursuant to 16 V.I.C. § 91(b)(6), and child abuse pursuant to 14 V.I.C. §§ 503 and 505. At any time prior to verdict the information in a criminal case can be amended unless it adds a new or different offense, or would prejudice a substantial right of the defendant. Here the essential elements of second degree aggravated rape were alleged in the original information, which specifically stated that defendant and the victim have a familial relationship of father and daughter, indicating that his position of authority over the victim would be the aggravating factor the People intended to pursue. Defendant had adequate notice of the charges and no prejudice to his case is found in the amendment of the information to specify that factor. Under the totality of the circumstances, the trial court did not abuse its discretion in allowing the prosecution to amend the information after it rested its case. Testimony elicited by the prosecution that defendant and the victim’s mother began an intimate relationship when she was only 14 years old was improper. However, because this was an isolated question in response to which immediate curative actions were taken, and the evidence of guilt was overwhelming, it is highly unlikely that such error affected the trial outcome. Therefore, the trial court did not abuse its discretion in denying a motion for a mistrial. The convictions are upheld and the judgment is affirmed.
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January 24, 2019
S. Ct. Crim. No. 2017-0043
Ralph Titre, Jr. v. People of the Virgin Islands
      Multiple convictions stemming from a homicide and firearms prosecution are affirmed in part and reversed in part. The defendant’s concurrent sentences for second-degree murder, unauthorized use of an unlicensed firearm during that crime, and destruction of evidence do not violate the prohibition against double jeopardy, as the charging statutes underlying these counts contain separate and distinct elements, and no offense for which the defendant was convicted and sentenced is a lesser included offense of another. However, in this case three of the other counts are lesser-included offenses to Count Three, in that the People were not required to prove any additional elements to obtain convictions not required to obtain a conviction under Count Three. Two additional counts did not require the People to prove any elements beyond those required to obtain a conviction for Count Four. Consequently, the Blockburger test is satisfied, and all seven of these convictions come within the purview of the Double Jeopardy Clause of the Fifth Amendment. The Superior Court was required to announce a sentence for only a single conviction of each group of offenses, and then to vacate—rather than merge or stay—the remaining offenses within that group. The Double Jeopardy Clause is not violated by the conviction for reckless endangerment in the first degree since that charged required the People to prove that the conduct occurred in a public place, which was not an element of any other count, but that conviction nonetheless violates 14 V.I.C. § 104 because the act that gave rise to the reckless endangerment conviction occurred as part of an indivisible course of conduct. Upon reexamination of the holdings of Williams v. People, 56 V.I. 821 (V.I. 2012), that portion of such decision mandating merger-and-stay as the remedy for a violation of § 104 is overruled. Vacatur shall be the remedy in cases in which § 104 is implicated, just as is the case with violations of the Double Jeopardy Clause. Because the convictions for Counts Five through Nine violate either the Double Jeopardy Clause or 4 V.I.C. § 104, the case is remanded with instructions for the Superior Court to vacate those convictions. Reviewing the jury instructions in this case as a whole for plain error, the jury was properly instructed on the definition of malice aforethought and could freely apply that definition to both counts challenged on this appeal, and the instructions were neither misleading nor inadequate to guide the jury’s deliberations. The Superior Court’s judgment and commitment with respect to Counts Three, Four, and Ten is affirmed.
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January 17, 2019
S. Ct. Crim. No. 2015-0008
Shandos Powell v. People of the Virgin Islands
      Convictions for second-degree murder and other offenses are affirmed. Defendant was charged with numerous offenses stemming from a shooting death at the St. Thomas office of the Bureau of Motor Vehicles. The conviction for second-degree murder required proof beyond a reasonable doubt that defendant killed the victim with malice aforethought. The use of deadly force cannot be justified if the killing is unnecessary to repel an immediate and real threat, or is unnecessarily disproportionate to the threat posed, and in this case the People introduced sufficient evidence for the jury to conclude that the killing was not justified. The jury could reasonably reject defendant’s testimony and credit other evidence that indicated that he was the initial aggressor or used disproportionate force against the victim. There was also sufficient evidence that the events occurred in a “public place” sufficient to support a conviction for first-degree reckless endangerment. The People proved that the shooting occurred in a place where a discharged gun could easily result in injury to innocent people who regularly pass close by. The Superior Court’s February 4, 2015 judgment and commitment is affirmed.
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January 11, 2019
S. Ct. Civ. No. 2017-0046
Chavez Ali v. Thishelle Hay
      Attempted appeal from the Superior Court’s denial of an emergency motion for return of children, treated by the parties and the Superior Court as an application for a temporary restraining order, and appeal from the imposition of a $150 sanction against counsel for tardiness on the second day of the hearing below, are both dismissed for lack of jurisdiction. Generally, temporary restraining orders are not appealable interlocutory orders, and in this case the order denying the TRO motion and continuing the custody petition in this case lacked the necessary indicia of finality for two reasons: (1) the subsequent visitation and custody orders were subject to change; and, (2) the opposing party was never served, nor did she appear at the TRO hearing. With respect to the Superior Court’s order sanctioning counsel $150 for tardiness, the notice of appeal in this case specifies one party (the client) as the party taking the appeal, and only references a single order. Thus, counsel never separately appealed the Superior Court order imposing a sanction against her. Instead, she merely included her argument in the appellate brief she submitted for her client. Raising arguments for a separate appeal of a nonparty for the first time in a party’s appellate brief is impermissible under Rule 4(b) of the Virgin Islands Rules of Appellate Procedure. In light of counsel’s failure to either file a separate appeal or join her appeal with the client’s appeal pursuant to Rule 4(c), she has not presented a proper appeal to consider and – because counsel failed to file a notice of appeal within 30 days of the date that the Superior Court entered the order issuing her sanction – she waived her right to appeal that ruling. V.I. R. APP. P. 5(a)(1). The appeal is therefore dismissed in its entirety.
      Download Opinion  (88 kb)
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