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Opinions > Published Opinions

2012 Published Opinions

2012 Published Opinions 2011 Published Opinions 2010 Published Opinions 2009 Published Opinions 2008 Published Opinions 2007 Published Opinions


May 16, 2012

S. Ct. Civ. No. 2010-0100
Chrystalia Etienne v. Ashley Etienne

	The Superior Court did not err in denying a former wife's motion to vacate the divorce decree that legally ended her marriage. After the husband filed a suit for divorce while the wife was incarcerated, lengthy proceedings ensued. After court-ordered mediation a settlement agreement was reached, but the wife then filed a motion for hearing on additional issues. The Superior Court entered judgment incorporating the agreement and granting a final divorce. The following month, the former wife moved by counsel for an order vacating the divorce decree because of the Superior Court's failure to consider the three unresolved property disputes. The motion to vacate was denied. On appeal the former wife argues that the Superior Court violated her due process rights by failing to afford her sufficient time to retain counsel, but this argument was not raised in the proceedings below, and all arguments made for the first time on appeal in civil cases are waived unless the party presents exceptional circumstances, which are not shown here. Even if the merits of the argument were reached, her due process rights under the Fourteenth Amendment for an opportunity to retain counsel before entry of a final order were not violated. In civil matters the trial court needs only to provide a reasonable opportunity to retain counsel to satisfy due process. This case was pending for two years prior to the mediation and thereafter appellant had over 10 months before the Superior Court entered the divorce decree. Since she had numerous opportunities to retain counsel and failed to take advantage of them, her due process rights were not violated. The Superior Court’s October 18, 2010 divorce decree is affirmed.

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May 15, 2012

S. Ct. Civ. No. 2009-0074
Matthias Matthew v. Dermont A. P. Herman

	In a common law tort suit for "alienation of affection" and "criminal conversation with a spouse" based on allegations that the defendant had an affair with the plaintiff's wife, the Superior Court erred by refusing to grant the defendant's motion to dismiss for failure to state a claim and entering judgment upon a jury verdict for $125,000. The defendant successfully preserved his argument that the Virgin Islands should not recognize these "amatory torts" through both an oral motion to dismiss the complaint and a motion for a judgment as a matter of law at the close of all evidence. While these causes of action are found in Restatement of Torts, this Court possesses inherent power to shape the common law in the Virgin Islands, including the discretion to decline to follow Restatement provisions. The torts of alienation of affection and criminal conversation with a spouse, the so-called “amatory torts,” have never been recognized in the Virgin Islands, and have been abolished in the vast majority of American jurisdictions, because they were originally founded on the idea that wives were property of their husbands, the torts have destructive effects on existing marriages, and it is not feasible adequately to value and address the harms caused by adulterous behavior. Former 5 V.I.C. § 856(2), an evidence rule that has since been repealed, concerned only the spousal testimonial privilege, and did not establish the elements of any tort or the damages available for the conduct addressed. That former legislative reference to these causes of action did not expressly establish the torts and did not affect the courts’ common law authority to set out the elements, or even abolish, these torts. Therefore, the amatory torts of criminal conversation and alienation of affection are not recognized in the Virgin Islands, and the Superior Court’s judgment is vacated and the case is remanded with instructions to dismiss the complaint.

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May 10, 2012

S. Ct. Crim. No. 2010-0028
Richie Fontaine v. People of the Virgin Islands

	In a prosecution for robbery, assault, and related charges of unauthorized possession or use of a firearm during commission of a crime of violence, the trial court did not err in denying the defendant's motion for acquittal based on the claimed insufficiency of the evidence to sustain the first degree robbery and related firearms conviction. Credibility determinations about the evidence were within the province of the jury, and eyewitness testimony of the victim placed defendant at the scene of the attack with a gun in his hand, participating in the robbery and shooting. Evidence was presented sufficient to prove that the defendant or another perpetrator of the crime took personal property in the victim's possession, from his person or immediate presence, against his will, by means of force or fear, while displaying, using, or threatening the use of a dangerous weapon, all as provided in 14 V.I.C. §§ 1861 and 1862(2). Nor did the Superior Court abuse its discretion in ordering the defendant to stand in front of the jury so that they could view in close proximity a scar under his left eye which figured in the identification testimony of the victim, a brief process that was not shown to have prejudiced the defendant. The trial court’s June 11, 2010 Judgment and Commitment are affirmed.

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May 2, 2012

S. Ct. Crim. No. 2010-0086
Anselmo R. Boston v. People of the Virgin Islands

	In a prosecution leading to convictions for assault and using a dangerous weapon during the commission of a crime of violence, reviewing the evidence in the light most favorable to the People, a rational jury could have found the essential elements of the crime of simple assault beyond a reasonable doubt, upon proof that this defendant assaulted or aided and abetted the assault of the victim, including testimony of a witness who drove by the scene and alerted authorities to the attack, as well as the existence of numerous contusions and abrasions on the victim's face, arms, neck, shoulder, and legs, which were consistent with being punched, kicked, or struck with a stick. There was evidence from which the jury could reasonably have inferred that one of the individuals attacking the victim in the narrow time-frame involved was this defendant, and the evidence was sufficient to sustain his conviction. Based on the allegations proffered by a co-defendant, however, this matter is remanded to the Superior Court for a hearing regarding possible juror misconduct. In Thomas v. People, S. Ct. Crim. No. 2010-0087 (V.I. 2012 ), it is held in a co-defendant's appeal that it was error for the trial court to deny a motion for a new trial without conducting an evidentiary hearing regarding allegations of possible juror misconduct. Because disparate treatment of identically-situated co-defendants constitutes manifest injustice in these circumstances, and there was opportunity to fully brief this exact issue in the co-defendant's appeal, the People have not been prejudiced and this Court has heard adequate argument on this issue to render an informed decision. Accordingly, it would be manifestly unjust to remand the co-defendant's case for a hearing on the issue of jury misconduct and not the case of the present defendant, when the allegations proffer that both suffered the same prejudice from the same fundamental error in the same trial. This matter will therefore be remanded to the Superior Court for an evidentiary hearing regarding juror misconduct.

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May 2, 2012

S. Ct. Crim. No. 2010-0087
Kamal Thomas v. People of the Virgin Islands

	In a prosecution for assault, using a dangerous weapon during the commission of a crime of violence, and threatening a witness, the trial court committed reversible error by denying the defendant's motion for a new trial without first conducting a hearing to investigate possible juror misconduct. In this case the defendant alleged that one of the jurors informed the other members of jury panel that defendant and a co-defendant had killed an individual victim and gotten away with it. There was no evidence presented at trial, however, to suggest that either of the defendants was involved in that death, and thus the statements the juror allegedly communicated were extraneous information—matter considered by the jury but not admitted into evidence. Accordingly, Federal Rule of Evidence 606(b) did not prohibit the trial court from holding an evidentiary hearing to determine whether this extraneous information was improperly brought to the jury's attention, and, if so, whether it affected the verdict. The trial court also incorrectly concluded that defense counsel's affidavit was wholly insufficient to warrant an evidentiary hearing. In determining whether an evidentiary hearing is necessary, a trial court should consider numerous factors, including the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. While a signed affidavit from the juror personally would have been preferable, denying the motion for a new trial without conducting even a limited evidentiary hearing regarding jury misconduct was an abuse of discretion, given the specific allegations of jury misconduct, the fact that inquiry could have been limited as provided in Rule 606(b) to whether extraneous prejudicial information was improperly brought to the jury's attention, and the fact that the attorney's affidavit was given by an officer of the court under oath and penalty of perjury. Based on these factors, the trial court should have, at a minimum, held a limited evidentiary hearing to allow the juror to testify whether any extraneous prejudicial information was improperly brought to the jury's attention. This matter is therefore remanded to the Superior Court for an evidentiary hearing.

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April 23, 2012

S. Ct. Civ. No. 2012-0014
In re: Kenth W. Rogers

	After a grievance against a Virgin Islands attorney was brought before a panel of the Ethics and Grievance Committee of the Virgin Islands Bar Association by Disciplinary Counsel, and the attorney failed to identify in writing any contested relevant facts that warranted a hearing. The panel issued a final decision finding that the attorney violated Model Rule 1.5 by charging $1,500 for a one-half hour consultation and preparation of a document, which the panel considered an unreasonable and excessive fee, Model Rule 8.1(b) by knowingly failing to respond to lawful demands for information from the case investigator, and Model Rule 8.4 by engaging in conduct involving dishonesty, fraud, decent, or misrepresentation. The panel ordered a private reprimand sanction, as well as payment of $1,500 in restitution to the grievant. The attorney did not timely request reconsideration under V.I.S.CT.R. 207.4.12(a), and the disposition became final on November 14, 2011. The attorney therefore had 45 from that date in which to appeal the decision to the Supreme Court under V.I.S.CT.R. 207.4.11(a)-(b). The attorney states that he attempted unsuccessfully to file an appeal by conventional means on December 31, 2011, and ultimately filed an appeal styled as a "petition" on February 21, 2012. The 45-day appeal period is a mandatory claims-processing rule rather than a jurisdictional limit on this Court’s authority, and thus could be voluntarily waived or involuntarily forfeited by the parties. However, the Ethics and Grievance Committee performs an adjudicative, quasi-judicial function as an arm of this Court, and thus lacks the discretion to independently waive, without this Court’s permission, application of any rules established by this Court. To warrant an equitable waiver of a bar governance rule an individual must demonstrate that, as applied in the circumstances the rule is arbitrary and its application would be unrelated to the essential purpose of the rule, and that the granting of a waiver would not be detrimental to the public interest. Equitable waiver of the 45-day appeal period codified in Rule 207.4.11(b) will, absent exceptional or unusual circumstances, ordinarily only be justified if an attorney-respondent can demonstrate that the Committee intentionally or negligently failed to perform its ministerial duties to such an extent that the attorney-respondent could not have timely initiated an appeal. In this case, however, the Committee served its decision upon the attorney on the same day that the Chair affixed her countersignature on the disposition form. Since Supreme Court Rule 16(b) did not provide the attorney with an automatic three-day extension of the time in which to prosecute an appeal, the document electronically filed on February 21, 2012 is untimely even if it were accepted nunc pro tunc to December 31, 2011. Accordingly, the attorney's appeal is dismissed as untimely.

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April 23, 2012

S. Ct. Crim. No. 2011-0102
People of the Virgin Islands v. Ashana Powell

	In an prosecution for mayhem, assault and carrying or using a dangerous weapon under 14 V.I.C. § 2251(A)(2)(B), appeal by the People of the Virgin Islands from a judgment acquitting a defendant of three criminal charges upon which a jury had returned a verdict of guilty is authorized under 4 V.I.C. § 33(d)(1). Because the judgment of acquittal was rendered after a jury verdict convicting the defendant on these charges, the Double Jeopardy Clause does not bar reversal and remand for further proceedings. Upon a review of the record and the briefing filed, as well as supplemental materials in the record transmitted, the Court is of opinion that there is reversible error in the judgment appealed from, and this is one of the rare cases in which summary disposition is warranted. It was error to grant the judgment of acquittal on the ground that this relief was mandated by what the trial judge believed to be "inconsistent" verdicts of guilt under three charged counts while jury acquitted the defendant on the three separate charges in other counts. The present Order does not address whether a judge has discretion to grant an acquittal or a new trial as a remedy for an inconsistent verdict, whether the evidence was sufficient to sustain the jury’s guilty verdicts, or whether the defendant may be entitled to an acquittal or a new trial based on other grounds. Thus, the decision herein shall not preclude her from challenging the convictions, whether on remand in the Superior Court or as part of a subsequent appeal to this Court, on any other ground.

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April 13, 2012

S. Ct. Civ. No. 2011-0069
Andrew Simpson et al. v. Golden Resorts, L.L.L.P.

	In a declaratory judgment action seeking confirmation of the plaintiff's title to certain disputed property and a declaration that the defendants did not obtain title by adverse possession, the trial court erred in granting summary judgment to the plaintiff and entering an injunction based on that ruling. In review the intertwined issues pursuant to 4 V.I.C. § 33(b)(1), the plaintiff did not meet the burden on summary judgment of establishing the absence of any genuine issues of material fact with respect to the elements of an adverse possession claim. The Superior Court erred as a matter of law in requiring the construction of buildings or other improvements to establish the actual possession element of adverse possession with respect to agricultural lands whose primary purpose is cattle grazing, and erred when it held that appellants failed to establish a genuine issue of material fact with respect to actual, physical and hostile possession. The record contained sufficient evidence of the defendants' open and notorious possession of the property, through affidavits, photographs, newspaper articles, and tourist maps describing or depicting the area. Evidence and affidavits in the record also raise an issue of fact on the issue of continuous and exclusive possession of the disputed property by the defendants for at least 15 years. While there is some evidence that plaintiff or the prior owner may have at times simultaneously occupied the land, at the summary judgment stage all evidence must be viewed in the light most favorable to the appellants as the non-moving parties. The finder of fact could find plaintiff's witnesses on this issue not credible, and could infer that the control they exercised—if any—was minimal or only sporadic. Although appellants bear the burden of producing evidence of continuous and exclusive possession, plaintiff as the record owner has the burden of proving some intervening act that interrupted the 15-year period. At the summary judgment stage, plaintiff's proof including rezoning activities, surveyors entering the property, and removal of horses from the land, was not sufficient conclusively to rebut the affidavits and other record evidence filed by defendants on this issue . Therefore, the Superior Court erred when it held, at the summary judgment stage, that the defendants failed to establish continuous and exclusive use of the property. Under 28 V.I.C. § 11 and other statutes no limit is placed on the size of a parcel that can be adversely possessed, nor is adverse possession restricted only to land used for residential or agricultural purposes. The Superior Court's “balancing of the equities” conclusion, that defendants' would be unjustly enriched if adverse possession were found, was beyond its authority given the policy judgments of the Legislature in codifying the governing elements of adverse possession. Accordingly, the grant of partial summary judgment in this case is reversed, and—because the summary judgment represented the sole reason for its issuance—the injunction is also reversed.

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April 12, 2012

S. Ct. Civ. No. 2010-0025
Patricia Benjamin, As Guardian of the Estate of R.W., A Minor, v.AIG Insurance Company Of Puerto Rico, Esso Virgin Islands, Inc., As Successor to Esso Standard Oil S.A. Limited,

	Regarding the Superior Court's dismissal on federal ERISA preemption grounds of a complaint filed by the court-appointed guardian of a deceased employee, seeking life insurance proceeds and other damages from the deceased's former employer and its insurer, and alleging claims of breach of the insurance contract’s covenant of good faith and fair dealing and a conspiracy to defraud, the guardian's arguments (1) that the order granting the motion to dismiss based on the affirmative defense of preemption was improper, (2) that the decedent's employer is not the kind of entity that can raise an ERISA defense, and (3) that the claims in the complaint are not preempted by ERISA, were never presented to the Superior Court and are thus waived. The guardian's argument that the Superior Court impermissibly determined that the life insurance documents attached to the complaint made up an ERISA plan is also deemed waived because it was argued for the first time on appeal in the guardian's reply brief, instead of her opening brief, and her description of the plan in the opening brief constituted a concession that the documents at issue are governed by ERISA. The guardian's final argument on appeal—that the case be reassigned to a different judge in the event of a remand, based on wholly unsupported allegations of pervasive bias and deep-seated favoritism or antagonism of the judge who dismissed the complaint—is waived because she never made any motion to the trial judge seeking disqualification or recusal under 4 V.I.C. §286. The judgment of the Superior Court dismissing the complaint is affirmed.

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April 12, 2012

S. Ct. Crim. No. 2010-0029
Richie Fontaine v. People of the Virgin Islands

	In a prosecution stemming from a shooting death at a night club, although the information only charged the defendant as a principal actor, it also clearly invoked 14 V.I.C. §11, under which one charged as a principal may be convicted upon evidence that he aided and abetted a different individual in committing the crime. It is not disputed that the evidence was sufficient to establish the premeditation element of first degree murder, and review of the sufficiency of the evidence for the voluntary manslaughter conviction is denied in light of the invited error doctrine because defendant requested an instruction on this theory. The People introduced sufficient evidence that defendant personally committed the charged offenses, and the jury was free to credit other evidence that another individual fired the shot that killed the victim and that defendant was aware of, and wished to facilitate, that individual in accomplishing that goal. Thus the evidence was also sufficient to sustain the convictions under an aiding and abetting theory. However, the Superior Court erred in allowing a police officer who was not present at the night club at the time of the shooting to give extensive narration for a surveillance videotape as it played to the jury, commenting that it showed defendant with a firearm in his hand, identifying certain individuals as being “with” him, and commenting on the direction of ricocheting bullets, none of which was supported in the record. In this case, the video tape was of good quality, the jury visited the site of the shooting and personally observed defendant and key witnesses in the courtroom, and there is no suggestion that defendant altered his appearance between the day of the shooting and the trial. Thus, the jury had the same ability to identify the individuals in the videotape and surroundings as the police officer, and there is a likelihood that the judgment could have been swayed by the impermissible narration, warranting a new trial in this case. In addition, the trial judge failed to implement safeguards in the procedure for juror questioning of witnesses during this trial to protect defendant's constitutional right to a fair trial, by not permitting counsel for both parties to review and object to specific juror questions outside the presence of the jury before they were asked, and by permitting jurors to ask clarifying or follow-up questions of witnesses directly, with the trial judge not serving any gatekeeping function. The June 4, 2010 Judgment and Commitment upon convictions for voluntary manslaughter, first degree assault, unauthorized use of a firearm, and reckless endangerment are reversed, and this case is remanded for a new trial consistent with this Opinion.

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April 10, 2012

S. Ct. Civ. No. 2011-0083
Allison Petrus, et al. v. Queen Charlotte Hotel Corporation

	In an action by a hotel corporation seeking an injunction to bar the lessees of certain neighboring parcels of land from blocking access to the gates of plaintiff's property for construction and other purposes, the Superior Court's grant of a preliminary injunction is affirmed. In ruling on a motion for a preliminary injunction the court must consider (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. The defendants in this case challenge only the finding of reasonable probability of success on the merits of the plaintiff's claims, but the record demonstrates that the plaintiff is an intended beneficiary under provisions of the defendants' lease with the Government, in which defendant promised that it would not “restrict access” to “space adjacent” to its leased premises. Therefore, the Superior Court correctly found that the plaintiff had a reasonable likelihood of success in showing that it is entitled to relief as an intended beneficiary of the defendants' promise not to restrict the access to spaces adjacent to its leased premises and that defendants breached that promise. Thus the Superior Court did not abuse its discretion in issuing the preliminary injunction, and its September 2, 2011 order is affirmed.

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April 4, 2012

S. Ct. Crim. No. 2011-0027
Lennox M. LeBlanc v. People of the Virgin Islands

	In a prosecution for child abuse under 14 V.I.C. § 505 and unlawful sexual contact in the second degree pursuant § 14 V.I.C. § 1709, in which it was charged that the defendant touched the genital area of a minor through her clothing, the charging phrase of § 505 under which the defendant was prosecuted for child abuse, using the term "sexual conduct," is not defined and is not sufficiently precise to give a person of ordinary intelligence fair notice as to what is permitted and what is prohibited, and to prevent arbitrary and discriminatory enforcement. As a result, the portion of § 505 under which the defendant was charged is unconstitutionally vague, and the defendant's conviction on that charge violated Due Process. On the charge of unlawful sexual contact, the trial court did not err in admitting certain statements admitted into evidence. Some of the statements were party admissions by the defendant, admissible under Federal Rule of Evidence Rule 801(d)(2)(A), and the other statements were not offered for their truth but to put the defendant's response in context and to help make what he said intelligible to the trier of fact. Thus the statements received into evidence did not constitute hearsay and it was not error to admit them. Accordingly, the conviction under § 14 V.I.C. § 1709 for unlawful sexual contact in the second degree is affirmed.

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April 2, 2012

S. Ct. Civ. No. 2010-0002, S. Ct. Civ. No. 2010-0003
Patrick Anthony et al. v. Independent Insurance Advisors, et al.

	In a case involving alleged malfeasance relating to insurance coverage for the common areas of a condominium destroyed by Hurricane Marilyn in 1995, the Superior Court's refusal to allow a new party to intervene three years after the litigation commenced – after discovery had been completed, and after dispositive motions had become pending – when the party moving for intervention presented no justification for her delay in seeking to join the litigation, is affirmed. The court's grant of summary judgment against the other appellant is also affirmed because, under the covenants and restrictions of the condominium's declaration, the owners gave the condominium association authority to bind them in all matters affecting insurance, and 28 V.I.C. § 906 makes that covenant binding upon the appellant. Whatever right he had under 28 V.I.C. § 926 to sue separately was extinguished when the association exercised its right to bind all of the owners by settling the claims in this action against all of the insurance defendants. However, the Superior Court erred by failing to address this appellant's outstanding motion to amend the pleadings to assert crossclaims against other parties, and the case is remanded for determination of the motion to amend in accordance with this opinion.

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March 26, 2012

S. Ct. Civ. No. 2011-0010
Virgin Islands Public Services Commission v. Virgin Islands Water and Power Authority

	In an appeal by the Virgin Islands Public Services Commission from an order of the Superior Court vacating a Commission decision settling a billing dispute between the Virgin Islands Water and Power Authority and one of its customers for lack of subject matter jurisdiction, the matter is governed by the prior decision in Virgin Islands Public Service Commission v. Virgin Islands Water and Power Authority, 49 V.I. 478 (V.I. 2008), and no basis has been presented for overturning or altering that decision. The Authority's enabling statute, 30 V.I.C. § 121, continues to provide that no other government entity has jurisdiction over it, including with respect to rate-setting. Thus the Commission lacks the power to settle billing disputes between the Authority and its customers. The order of the Superior Court vacating the Commission's decision is affirmed.

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March 26, 2012

S. Ct. Civ. No. 2011-0099
In re Suspension of Michael A. Joseph, Esquire as a Member of the Virgin Islands Bar

	A petition by the St. Croix Subcommittee of the Ethics and Grievance Committee of the Virgin Islands Bar Association, alleging that an attorney violated several provisions of the Model Rules of Professional Conduct, and recommending several forms of discipline, including suspension from the practice of law, is granted as modified. Clear and convincing evidence exists that the attorney violated Rule 8.1(b) by failing to respond to a disciplinary investigator’s letter or to appear at a schedule hearing in the matter, and as a result all factual allegations against him are taken as true. The attorney also violated Rules 1.1, 1.3, and 1.4 relating to competence, thoroughness, diligence and promptness by failing to prepare for trial as required by court order, resulting in dismissal of a client matter for failure to prosecute—and failing to communicate with the clients for years, including not advising them that their case had been called for trial and subsequently dismissed. The disciplinary adjudicatory panel also concluded that the attorney violated Rule 1.16 by failing to protect the clients' interests upon termination of his representation, but the record contains absolutely no evidence that the attorney-client relationship between the them was terminated during any of the pertinent events. And the disciplinary panel finding that he made representations to clients about progress in their case when they visited his office, even if accepted as true, does not establish a violation of Rule 8.4 because it is possible that on the dates involved the attorney was in fact working on the case which was at that time still “going well.” The appropriate sanction for the attorney's violation of Model Rules 1.1, 1.3, 1.4, and 8.1, among the most important ethical duties owed by a lawyer and a serious ethical breach that resulted in actual injury, but only with respect to a single client matter, shall be a suspension of three months, and the attorney is ordered to complete extra continuing legal education credit hours in the field of legal ethics. The disciplinary Committee shall publicly reprimand the attorney in a manner consistent with Supreme Court Rule 207.4.3(d), and the attorney shall be ordered to make certain reimbursement to the clients, to be calculated by the Subcommittee Chair and reported to this Court.

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March 21, 2012

S. Ct. Civ. No. 2011-0089
Robin Wessinger v. Kent Wessinger

	In an appeal from an interlocutory order entered by the Family Division of the Superior Court denying a mother's request to modify a temporary custody arrangement for shared physical custody of a minor child during the pendency of a couple's divorce proceeding, but failing to provide any findings of fact or any reasoning in support of the decision, whether or not the order amounted to modification or grant of an injunction, because the trial court failed to provide any findings in support of its decision, or otherwise explain its reasoning, the order appealed from is vacated and the case is remanded for further proceedings consistent with this opinion.

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March 16, 2012

S. Ct. Civ. No. 2010-0040, S. Ct. Civ. No. 2010-0080, S. Ct. BA. No. 2011-0159
In re Kenth W. Rogers; Aubrey Walters v. Elvira Walters

	In proceedings relating to a member of the Virgin Islands Bar who was administratively suspended for non-compliance with continuing legal education requirements, the attorney failed to comply with multiple orders issued by this Court, including orders to show cause relating to actions and necessary payments in a civil client matter and a mandamus petition commenced by the attorney himself. The attorney also filed repeated motions for reinstatement to the Virgin Islands Bar, which contained numerous deficiencies, including a failure to pay the required $200 reinstatement fee, and he again failed to comply with an order to show cause requiring payment and submission of necessary information. The orders directed to the attorney in these proceedings were clear and unambiguous, proof of his noncompliance is clear and convincing, and he did not diligently attempt to comply in a reasonable manner. His actions in both the client matter and in his own mandamus proceeding warrant a civil contempt sanction. The attorney is held in civil contempt, and a fine of $300 is imposed as the sanction for his contempt with respect to all three of the matters before the Court, which shall be paid within 30 days of the date of this Opinion.

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March 15, 2012

S. Ct. Civ. No. 2011-0109
In re: Dale Fleming

	In a pro se petition for writ of mandamus seeking an order compelling a judge of the Superior Court to take action in a pending civil matter in which applications to proceed in forma pauperis and for entry of default have been pending for a lengthy period without action by the court, the petitioner has demonstrated a clear and indisputable right to mandamus relief. No other alternative adequate remedy exists for petitioner to obtain a ruling from the Superior Court judge. Considering whether a writ of mandamus is appropriate under the circumstances, in light of factors including, but not limited to, the public interest, the importance or unimportance of the question presented, and equity and justice, issuance of the writ is appropriate in this case. The refusal of a trial court to render any decision, on even the most routine motions, for such a long period of time, unquestionably reduces public confidence in the administration of justice and requires corrective action. Moreover, such a complete failure to rule may not only impair the petitioner’s constitutional right to due process, but also adversely affects the defendant in the pending civil case, who has had this action remain pending against her throughout this period. Respondent's motion to dismiss is denied, and the mandamus petition is granted, directing the Superior Court judge assigned to the petitioner's civil litigation to, take some meaningful action to move the litigation forward within 60 days.

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March 14 2012

S. Ct. Civ. No. 2008-0076
Ottice Bryan v. Government of the Virgin Islands

	In an appeal from denial of a petition for the writ of habeas corpus, the Superior Court's April 4, 2008 order is reversed and the case is remanded with instructions to issue the writ. Petitioner pled guilty to second degree murder after allocution by the Superior Court. Prior to sentencing, petitioner moved to withdraw his guilty plea, but the motion was denied and he was sentenced to a period of incarceration; he never appealed from the denial of his motion to withdraw his guilty plea, but later brought this habeas corpus petition, averring among other things that his guilty plea was not given knowingly as required under the Constitution. The Superior Court denied the habeas corpus petition. While the petitioner filed this appeal several months after the Superior Court entered its order denying the petition, timeliness under Rule 5 is a claims processing rule but not a jurisdictional requirement, and the Government waived its right to challenge the timeliness of this appeal by filing numerous motions to dismiss and failing to raise the timeliness issue in any of them – only raising the issue three years after the appeal was filed. Thus its objection to untimeliness of this appeal was waived. Even though the petitioner never raised his present argument in the Superior Court and it would usually be deemed waived for that reason, it is nevertheless addressed on appeal because the Government suffers no prejudice from reaching the merits of petitioner's argument – the petitioner could simply file a new petition alleging the same error and consume additional court and government resources only to achieve a determination of a legal question that is squarely presented in the instant appeal. On the merits, because the Superior Court failed to instruct the petitioner on the direct consequences of his plea, specifically the mandatory minimum sentence for second degree murder, his guilty plea to that charge was not knowingly made, and therefore acceptance of that plea violated due process. The Superior Court's denial of the writ of habeas corpus is reversed and the case is remanded with instructions to issue the writ and to permit petitioner to withdraw his guilty plea.

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March 13, 2012

S. Ct. Civ. No.: 2012-0006
In re Disbarment of Dean Plaskett, Esquire

	Upon consideration of a petition filed by the St. Croix Subcommittee of the Ethics and Grievance Committee of the Virgin Islands Bar Association alleging that the respondent attorney, a member of the Virgin Islands Bar Association, has violated several provisions of the Model Rules of Professional Conduct and recommending his disbarment as an appropriate sanction, in light of the very serious nature of his ethical violations, based on his convictions for bribery in violation of 18 U.S.C. § 666(a)(1)(B) and two counts of obstruction of justice in violation of 18 U.S.C. § 1512(c)(2), the Court concludes that the respondent attorney should be disbarred from the practice of law in the Virgin Islands in order to protect the public and the administration of justice from further professional wrongdoing. It is further held that the pendency of the respondent attorney's habeas corpus petition in the District Court of the Virgin Islands, which was filed shortly after the Supreme Court of the United States denied his petition for a writ of certiorari seeking review his criminal convictions, did not serve to automatically stay the disciplinary proceedings pursuant to Supreme Court Rule 203(b)(4) because it did not qualify as an "appeal" within the intendment of that Rule. The petition for disbarment is granted.

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March 5, 2012

S. Ct. Civ. No. 2010-0099
Public Employees Relation Board, et al. v. United Industrial Workers—Seafarers International Union

	A union's petition for writ of review by the Superior Court of the dismissal of unfair labor practices charges by the Public Employees Relation Board was filed after expiration of the 20-day period mandated by 24 V.I.C. § 380, and was therefore untimely. Whether the 20-day period established in § 380(a) represents a jurisdictional or claims-processing rule is irrelevant in this case since the timeliness of the petition was properly challenged. The Board's Rule 361.3(B) did not extend the time for the union to file its petition for writ of review, and the language “the date of the final order” in § 380(a) refers to the date of the order itself, and not the date the order was served on the parties. Hence the petition for a writ of review was untimely. The judgment of the Superior Court is reversed, and the case is remanded for entry of summary judgment enforcing the Board's April 28, 2010 Order.

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March 2, 2012

S. Ct. Crim. No. 2009-0078
Jude T. Ramirez v. People of the Virgin Islands

	In a prosecution for aggravated rape and unlawful sexual contact, no reversible error is found in the trial court's denial of motions to suppress and for judgment of acquittal. School personnel at a parent conference – in which defendant made admissions – were not operating as law enforcement officers or under the direction of law enforcement officers, and defendant was not in custody at the parent conference; thus his Miranda rights and privilege against self-incrimination under the Fifth Amendment were not compromised by use of statements made at the conference. He subsequently voluntarily confessed to law enforcement officials that he had unlawful sexual contact with the victim. Nor was there a violation of defendant's Sixth Amendment right to confront the witnesses against him, because the declarant of certain hearsay statements admitted against him (the victim) was present at the trial, testified in person, and was available to be cross-examined. An alleged error in the statement of the age of the victim in the information did not reflect an absence of sufficient evidence to sustain the conviction for unlawful sexual contact in the first degree. The Superior Court therefore did not err in denying defendant's motion for judgment of acquittal. The convictions and the Superior Court’s November 2, 2009 Amended Order of Judgment and Sentence are affirmed.

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March 1, 2012

S. Ct. Civ. No. 2010-0067
Jeffrey J. Prosser, et al. v. Public Services Commission of the Virgin Islands

	In considering an appeal from an order of the Superior Court affirming a decision of the Public Services Commission of the United States Virgin Islands that approved the the transfer of three utility companies, by operation of 30 V.I.C. § 33, the appellants foreclosed review of all but one of their host of arguments against the approved transfer by not raising them in the petition for reconsideration originally brought before the Commission. In addition, the only issue adequately before this Court on appeal, that the Commission issued arbitrary findings of fact by failing to consider certain letters written by one of the appellants, is based on a flawed premise, because the record indicates that the Commission did, explicitly, consider those letters. Therefore, the Superior Court’s September 14, 2010 order affirming the PSC’s May 5, 2010 order permitting the transfer of the companies is affirmed.

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February 28, 2012

S. Ct. Crim. No. 2008-0041
Sholome Francis v. People of the Virgin Islands

	In a prosecution that led to convictions for murder and related firearms offenses, defendant has not shown that the Superior Court's refusal to give a jury instruction – on the issue of an intervening or superseding cause sufficient to relieve him of responsibility for the death – caused defendant any prejudice, and that refusal was not an abuse of discretion. There was sufficient evidence, including proof of causation, to support the conviction of murder in the first degree, and the trial court did not abuse its discretion by admitting an allegedly prejudicial photograph of the victim's head and shoulders area, displaying the victim's wound, the seriousness of which was highly contested by the parties’ experts. While the People made two comments improperly vouching for the veracity of the testimony by the identification witness at trial, in light of the instructions given and the nature of the comments in the context of a multi-day trial, they did not affect the fairness of defendant's trial. The judgment of conviction on the charges is affirmed.

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February 28, 2012

S. Ct. Crim. No. 2009-0034
Chris Carty v. People of the Virgin Islands

	In trial of consolidated charges including murder, attempted murder, assault, and use of a dangerous weapon in these offenses, claims of error by the trial court in admitting certain prior bad act evidence under Rule 404(b) of the Federal Rules of Evidence became moot when the trial court consolidated the cases involving that conduct. The court's decision not to provide the jury with a written copy of the instructions was within its sound discretion. While the court permitted the People to introduce prejudicial testimony from one victim's sister, and a prejudicial photograph, the error was harmless because there was more than sufficient evidence independent of this material to sustain a conviction of this defendant, beyond a reasonable doubt. The assertion that his Sixth Amendment Right to a Speedy Trial was violated by the 25-month delay in holding the jury trial is rejected: the delay was attributable to numerous factors, including a plethora of pre-trial motions filed by both parties and there was no lengthy period of judicial inactivity in the case. Defendant failed to prove how the delay could have caused prejudice to him, or caused different results in the jury’s verdicts. The convictions, and the judgment of the Superior Court, are affirmed.

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February 27, 2012

S. Ct. Civ. No. 2011-0116
In Re: Jamal Morton

	A petition for mandamus and motion for appointment of counsel are denied. Appellant's defense attorney in a case charging multiple felonies submitted a motion for “Constitutionally Adequate Attorney Fees," purportedly filed on behalf of appellant, which was denied by the Superior Court as collateral to the prosecution. In the mandamus petition, it cannot be concluded that the Nominal Respondent’s decision to decline to reach the merits of the motion and advise defendant or counsel to file a separate civil action constituted a breach of the ministerial duty to render a legally correct decision, given the absence of binding precedent, the procedural posture of this case, and divergent authority from other jurisdictions. Secondly, a mandamus proceeding is not criminal or quasi-criminal, and no constitutional provision requires appointment of counsel—whether in a trial or appellate court—in a purely civil case. While this Court has inherent and statutory authority, in its discretion, to appoint counsel to represent indigent litigants, it cannot be concluded that compensating counsel in this case from public funds for services rendered in conjunction with this mandamus proceeding would in any way further the interests of justice. The petition for writ of mandamus and the motion for appointment of counsel are denied.

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February 27, 2012

S. Ct. Crim. No. 2010-0024
Delvin Delano Duggins v. People of the Virgin Islands

	In a prosecution for making fraudulent claims upon the government in violation of 14 V.I.C. § 843(3), the false token or writing requirement of 14 V.I.C. § 844 does not apply and the People were under no obligation to enter a token or writing into evidence to prove the defendant's false or fraudulent statement or representation to the government. Because the mens rea requirement for a violation of § 843(3) is the making of a false or fraudulent statement or representation knowingly, there was no abuse of discretion by the trial court in giving an instruction on that standard. Defendant waived any argument based on the mention of the word “conspiracy” by eliciting such testimony himself and thus inviting any alleged error. Because he was not charged with or convicted of conspiracy, case law doctrines relating to multiple conspiracies, large and small, are in any event inapplicable. Finally, the People did not commit prosecutorial misconduct involving the admission of certain testimony. The judgment of conviction is affirmed.

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February 27, 2012

S. Ct. Civ. No. 2010-0093
In Re: Kenth W. Rogers

	Orders of the Superior Court holding an attorney in contempt of court in two cases are affirmed. The attorney, counsel in two matters before the Family Division of the Superior Court, filed various motions including a mislabeled motion to disqualify the judge, did not attend scheduled conferences and did not appear pursuant to show cause orders. He was found in contempt of court pursuant to section 14 V.I.C. § 581(3), and daily fines were imposed. After additional hearings two fines of $500.00 were imposed and these appeals followed. An order finding contempt against an attorney who is not a party to the underlying litigation is immediately appealable. Two $25 retrospective sanctions were imposed for direct contempt, which may be punished summarily under 14 V.I.C. § 581 and Superior Court Rule 138 where an attorney fails to appear at a hearing and refuses to provide a legitimate explanation for that failure. Per diem sanctions in these cases were civil in nature and their imposition did not violate due process. The Superior Court had jurisdiction to impose the sanctions despite the filing of a notice of appeal after the commencement of hearings below in each case, and the attorney's failure to appear was not excused simply because there was a pending motion to disqualify the trial court judge. The Orders are affirmed.

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February 22, 2012

S. Ct. Crim. No. 2011-0024
Lenny D. Alfred v. People of the Virgin Islands

	In a prosecution for unauthorized possession of a firearm in violation of 14 V.I.C. § 2253, where the weapon was found in the middle console area near defendant's wallet, within arm's reach of the driver's seat in which defendant was sitting, in a vehicle he had used and occupied extensively for a period of days, the People of the Virgin Islands presented sufficient circumstantial evidence to prove that he knowingly possessed the firearm. The judgment of conviction is affirmed.

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February 9, 2012

S. Ct. Civ. 2010-0011
George R. Simpson v. Myrna Golden

	In an appeal from a judgment awarding the defendant attorney's fees following dismissal of plaintiff's breach of contract suit based on what the Superior Court characterized as plaintiff’s bad faith prosecution and the defendant’s status as a prevailing party, the only grounds for appeal argued before this Court, namely, whether the initial dismissal of plaintiff's suit was valid, is time-barred. While plaintiff’s motion to reconsider that dismissal tolled the 30-day period for filing a notice of appeal under Rule 5 of the Virgin Islands Supreme Court Rules, that motion was denied in 2005, and his right to appeal the dismissal lapsed 30 days later by operation of the Rule. Although the time limits in Rule 5 are claims processing provisions and not jurisdictional, because the timeliness issue was raised by the defendant in her brief before this Court, it has not been waived; thus, the notice of appeal from the 2005 ruling, filed in February of 2010, is time-barred and this Court will not exercise review of that ruling. In addition, because plaintiff has failed to present sufficient argument in his brief directly addressing the propriety or accuracy of the attorney's fees awarded, independent from his argument that the award is improper because the 2005 dismissal and all subsequent rulings of the Superior Court were purportedly invalid, he has waived and abandoned the attorney's fee award issue on appeal despite the fact that it was identified as an issue in his appellate brief. Accordingly, since plaintiff has waived the only issue on appeal that is not time-barred, the Superior Court’s award of attorney’s fees is affirmed.

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February 2, 2012

S. Ct. Crim. No. 2010-0069
Jeffrey Browne v. People of the Virgin Islands

	In a prosecution on two counts of first degree murder and charges of attempted murder, assault, reckless endangerment, unauthorized possession of a firearm, and interference with an officer discharging his duties, there was no reversible error in the trial court's admission of evidence seized pursuant to a valid search warrant obtained after defendant's vehicle was allegedly impounded illegally, or in the court's admission of statements by a co-defendant (his wife) which was redacted to remove any mention of him, and did not bear testimony against him. The trial court's receipt into evidence of death certificates of two of the victims, without testimony from the medical examiner who authored them, was in violation of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004) and Bruton v. United States, 391 U.S. 123 (1968), but this error was harmless beyond a reasonable doubt in the context of this case. The trial court also violated defendant’s constitutional right to present a complete defense by excluding the proffered testimony of an attorney in an effort to impeach a government witness, but this error was also harmless beyond a reasonable doubt in light of other evidence. There was no reversible error in the trial court's handling of claims of juror misconduct, a motion for a change of venue, or its rulings relating to other rebuttal witnesses. The convictions and the judgment of the Superior Court are affirmed.

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February 2, 2012

S. Ct. Crim. No. 2010-0071
Luis Melendez v. People of the Virgin Islands

	In a prosecution on two counts of first degree murder, along with charges of attempted murder, assault, reckless endangerment, unauthorized possession of a firearm, and interference with an officer discharging his duty, there was no reversible error in the trial court's admission of evidence seized pursuant to a search warrant after another individual's vehicle was allegedly seized illegally, or in the court's admission of statements by a co-defendant (his sister) which did not bear testimony against the defendant. The trial court's receipt into evidence of death certificates of two of the victims, without testimony from the medical examiner who authored them, was in violation of the Confrontation Clause but amounted to harmless error in the context of this case. Nor did the trial court's handling of claims of juror misconduct, its failure to transfer defendant's case to another venue sua sponte based on evidence presented by another co-defendant, or its rulings relating to rebuttal witnesses deny defendant a fair trial. The convictions and the judgment of the Superior Court are affirmed.

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January 18, 2012

S.Ct. Civ. No. 2009-0084
Raphael Mendez v. Government of the Virgin Islands

	A pro se appeal from denial of a petition for a writ of habeas corpus is dismissed. After assault and firearms charges under the Virgin Islands Code were brought against the petitioner in the United States District Court for the District of the Virgin Islands in 1990 arising from a shooting incident, he was transferred to a federal correctional institution in North Carolina for psychological examination. Six months later the warden of that facility initiated civil commitment proceedings against petitioner in the North Carolina federal district court, and two decades later he remains civilly committed by order of the North Carolina federal court pursuant to 18 U.S.C. § 4246. However, the charges against petitioner in the Virgin Islands were dismissed by the District Court of the Virgin Islands in 1992. Consequently, while statutory changes in 1991 and 1994 have vested jurisdiction over criminal and civil matters – including applications for the writ of habeas corpus – in the territorial courts of the Virgin Islands, they are without jurisdiction over this petitioner. Any due process defect inhering in the Superior Court's reliance on ex parte submission of court records in making its decision below was harmless because such records are properly subject to judicial notice and petitioner admits that all territorial criminal charges against him have been dismissed. The Superior Court’s order dismissing the pro se petition for writ of habeas corpus for lack of subject matter jurisdiction is affirmed.

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January 9, 2012

S. Ct. Civ. No. 2009-0102
Gary Molloy, et al. v. Independence Blue Cross, et al.

	In a suit on several tort and contract theories brought by parents of a newborn against insurers for failure to provide timely air evacuation services to obtain medical treatment after his premature birth, the Superior Court did not abuse its discretion in denying a motion to compel answers to certain interrogatories because they were not relevant to the issue of personal jurisdiction over a party, and therefore plaintiffs failed to show actual and substantial prejudice from the ruling. The Superior Court erred by dismissing one of the defendants for lack of personal jurisdiction as to one count. While jurisdiction over that party pursuant to the Virgin Islands Long Arm Statute was not proper under 5 V.I.C. § 4903(a)(1) for transacting business in this territory, it was error to find that plaintiffs failed to satisfy the requirements of the Long Arm Statute on their false advertising claim under 5 V.I.C. § 4903(a)(2), contracting to supply services or things in this territory, and under § 4903(a)(4), for causing injury inside the territory by an act outside the territory. The Superior Court also erred by finding that constitutional due process considerations did not permit exercise of specific personal jurisdiction over that party on that count. Where, as here, the plaintiffs establish that a defendant has the requisite minimum contacts and that the claim arises out of those contacts, the burden of proof shifts to the defendant to present a compelling case that other considerations would render jurisdiction unreasonable, and here the moving defendant failed to carry its burden to show that exercising jurisdiction over it based on the claim in this count does not to comport with fair play and substantial justice. The Superior Court also abused its discretion by dismissing plaintiffs' claims for failure to prosecute without first addressing all six factors set forth in Halliday v. Footlocker Specialty, Inc., 53 V.I. 505 (V.I. 2010), and the present case is remanded for full consideration of those factors. The judgment of the Superior Court is reversed in part and the case is remanded for further proceedings in accordance with this opinion.

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January 5, 2012

S.Ct.Crim.No. 2009-0107
James C. Tindell v People of the Virgin Islands

	In considering defendant's appeal following the acceptance of his plea of nolo contendere for failing to comply with Virgin Islands broker-dealer registration requirements, since he pled nolo contendere, he waived his challenge to the sufficiency of the information, and cannot raise the issue for the first time at this stage of the proceedings because the error, if any, is not jurisdictional, and Federal Rule of Criminal Procedure 12(b)(3)(B)—the only other possible authority to support raising the issue for the first time on appeal—is inapplicable to Superior Court proceedings. Moreover, defendant's factual basis argument is not considered because Superior Court Rule 126 does not require courts in the Virgin Islands to assess the adequacy of the factual basis for a nolo contendere plea before accepting the plea. In addition, based on the record, there is no indication that the plea was involuntary. Finally, to the extent defendant's sentencing challenge is not simply a vehicle to assert his waived challenge to the sufficiency of the information, the Superior Court committed no error because his nolo contendere plea served as an admission that sufficient evidence existed to satisfy all elements of the offense to which he so pled, and the Superior Court imposed a sentence that was not only within the range set out in 9 V.I.C. § 658(a), but the same sentence that he had agreed to pursuant to his plea agreement. The Superior Court’s judgment is affirmed.

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January 5, 2012

S.Ct.Civ. No. 2009-0007
Timothy Defoe v. Lenroy Phillip,

	In considering plaintiff's civil suit alleging gross negligence against a co-employee arising out of a workplace accident, the Superior Court properly applied the holding of the United States Court of Appeals for the Third Circuit in Tavarez v. Klingensmith, 372 F.3d 188 (3d Cir. 2004), which held that a co-employee performing a non-delegable duty on behalf of an employer covered by the Virgin Islands Workers' Compensation Act, 24 V.I.C. § 250 et seq., is entitled to the same statutory immunity as the employer. However, as that Court has acknowledged in Pichardo v. V.I. Comm’r of Labor, 53 V.I. 936, 939, 613 F.3d 87, 89 (3d Cir. 2010) and Gov’t of the V.I. v. Lewis, 620 F.3d 359, 364 n.5 (3d Cir. 2010), the Supreme Court of the Virgin Islands is not bound by prior federal interpretations of Virgin Islands local statutes, and an independent analysis of the Act’s statutory language and the Legislature’s intent indicates that the Legislature did not intend to include employees such as the defendant in its definition of “employer.” Because the plain language of the Act does not support extending an employer’s immunity from suit to a co-employee, the Legislature did not intend to prohibit lawsuits against co-employees when it enacted the Act, and thus the defendant is not entitled to claim the same immunity from suit that the Act affords to his employer. The Superior Court’s January 13, 2009, January 16, 2009, and February 12, 2009 Opinions and Orders granting summary judgment in the defendant's favor and dismissing plaintiff's complaint are reversed, and the matter is remanded to the Superior Court for further proceedings.

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January 3, 2012

S.Ct.Crim.No. 2007-0041
Stacey Ambrose v. People of the Virgin Islands

	In considering defendant's convictions for third degree assault in violation of title 14, section 297(2) and unlawful possession of a firearm in violation of title 14, section 2253(a) of the Virgin Islands Code, which were reversed in a December 18, 2008 Opinion ordering a new trial, it is held that since the defendant possessed advance notice of the fact that the People intended to obtain a conviction for third degree assault by proving that he had threatened the victim with a gun, the amendment to Count One of the information did not have the effect of charging the defendant with a new offense which he was not prepared to defend against at trial. Likewise, to the extent the Superior Court committed any constitutional error in its final jury instructions with respect to Count Two regarding unlawful possession of a firearm, the defendant would, at best, only be entitled to a sentence reduction as a remedy, rather than a judgment of acquittal, because the additional language only represented a sentence enhancement rather than an element of the underlying offense. In addition, defendant's admission that he did not possess a license to carry a firearm provided sufficient evidence for the jury to convict the defendant of that charge. Accordingly, the defendant is not entitled to an acquittal on either charge. The matter is remanded to the Superior Court for the new trial ordered in this Court’s December 18, 2008 Opinion.

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