IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN *************
PEOPLE OF THE VIRGIN ISLANDS )CASE NO ST 2015 CR 00331 ) Plaintiff ) 14 V I C § l700a(a) & 16 V I C §§9l(b)(6) vs )14VIC §l700a(a) & 16 VIC §9l(b)(6) )14VIC § 1701(3) & 16 VIC §9l(b)(6) LEROY E HODGE, ) ) Defendant )
Cite as 2020 VI Super 95U
MEMORANDUM OPINION AND ORDER
I INTRODUCTION
fill THIS MATTER is before the Court on the People’s Motion 1n lezne to Admit Testimony of Defendant’s Prior Crime (“Motion ), which was filed on March 5, 20l9 No response to this Motion was filed by the Defendant The People of the Virgin Islands request this Court to enter an order allowing the People to admit evidence of Defendant Leroy Hodge 5 prior criminal conviction In 1995, the Defendant was convicted of several offenses, including Second Degree Murder in violation of V I CODE ANN tit 14 § 922 in Gov I of the V] v Hodge filed in the Superior Court of the Virgin Islands, District of St Thomas and St John and docketed as Case No ST 1994 CR 00047 The People contend that it is necessary to admit this evidence to satisfy the threatening and fear elements of the crimes charged and to support the victim s credibility as a witness
1|2 A review of the transcript of an earlier trial in this matter and statements to the police do not support the assertion by the People that the victim was indeed aware of the Defendant’s past criminal history or that this history was the basis of the victim 5 fear Further, it does not appear that the credibility of the victim’s fear was ever in question The Virgin Islands Rules of Evidence require that prior crimes may be admitted only for issues actually in contention The Court recognizes that the People may readily prove the victim 5 knowledge of this fact through proper testimony, and that the victim s credibility on this issue may arise during trial Thus, the Court reserves judgement on this issue until trial
[I FACTUAL AND PROCEDURAL BACKGROUND
113 Defendant was arrested August 30, 2015, after the teenage daughter of his girlfriend, whom he lived with, accused him of raping her on or about August 30 2015 On the morning of the assault, the victim had in her possession an incriminating note supposedly written by the Defendant After a lengthy pre trial and discovery period, the Defendant a jury trial was conducted People ofthe Vll'glll Islands v Leroy Hodge 2020 VI Super 95U CASE NO ST 2015 CR 0033! Memorandum Opinion and Order Page 2 of 13
beginning on April 4 2017 on three counts (1) Aggravated Rape in the Second Degree Sodomy Domestic Violence in violation of 14 V I C § 1700(3) 16 V I C § 91(b)(6) (2) Aggravated Rape in the Second Degree Domestic Violence in violation of 14 V I C 1700a(a), 16 V I C § 91(b)(6) and (3) Rape in the First Degree Domestic Violence in violation of 14 V I C § 1701(3) 16 V IC § 91(b)(6) 114 During the trial, the People presented multiple witnesses, including the victim, her mother, police officers, forensic experts, and doctors The People elicited testimony from several witnesses as to the Defendant s violent or aggressive nature To wit, the victim testified that she was afraid of Mr Hodge, ' that he was ‘aggressive,”2 that she heard her mother being hurt by him,3 that he threatened to shoot up the place 4 and that he hurt her brother and beat her with [her] majorette stick, with a broom stick ”5 She also testified that he would tell [her] stuff so [she] would comply, 6 that he ‘ threatened [her boyfriend], 7 and that she don t really remember what he said he would do, but [she knew] he said he would harm [her boyfriend] in some fashion 3
1|S The mother testified that the relationship became ‘violent”9 and that she was scared ”'0 The People introduced into evidence the note allegedly written by the Defendant, which was read by the victim, including the line “I going go for everybody today and I ain leaving no one alive ”” The People highlighted these points in their closing arguments that the mother and victim were “afraid,” they knew who they ‘were dealing with knew the violent nature of the defendant '2 The mother also testified that she tried to seclude herself in the bathroom, pretended to be talking to a taxi when she called the 91 l operator, and conducted much of the call in text form in an effort to mask the call from the Defendant '3 116 The Defendant has a criminal record, including a Second Degree Murder conviction in violation of 14 V I C §922 in Gov to] the I I v Hodge Case No ST 1994 CR 00047 for which he was sentenced to 20 years in prison During the first trial in this matter, the People did not seek to introduce Defendant’s prior criminal record The Defendant put on one witness, a DNA forensic expert The trial lasted six days and concluded April 10, 2017 without a unanimous decision by the jury, and a mistrial was declared on April 18, 2017
' Trial Tr vol 3 150 Id 3 Id at 152 4 Id at 153 5 Id at 153 6 Id at 162 7 Id 8 Id " Trial Tr vol 1 111 '0 Id at 141 " Id at 167 68 '7 Trial Tr vol 4, 34 '3 Trial Tr vol 1 128 139 42 People ofthe Virgin Islands v Leroy Hodge 2020 V1 Super 95U CASE NO ST 2015 CR 0033] Memorandum Opinion and Order Page 3 of 13
{[7 On March 5, 2019, the People filed with this Court a Motion In Lzmzne To Admit Testimony of Defendant 5 Prior Crime (hereinafter Motion ’) In this Motion, the People state that the Defendant had informed the victim that he had murdered someone before and served time in jail for murder,”'4and that the knowledge that the Defendant had previously murdered someone '5 caused the victim to comply That the evidence of the Defendant’s prior crime is a part of the minor victim’s testimony regarding how she was raped”'6 and that “it is necessary to satisfy the threatening element of the crimes charged and to support the minor victim s credibility as a witness ”'7
III ANALYSIS
1|8 The admission of prior criminal history is governed by the Virgin Islands Rules of Evidence 404(b) which states that “evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character ”'8 While the People in their Motion state that 404(b) is a rule of “inclusion rather than exclusion,”'9 the Court and the Third Circuit have subsequently made clear that there is no presumption of admissibility, and “inclusionary” language in prior cases merely indicates that admissibility of prior crimes is not limited by the list of acceptable issues in subsection 2 of 404(b) 20 119 Subsection 2 of the rule states that evidence of a crime may be admissible for other purposes, such as addressing issues, if actually contested m the case, concerning motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident provided that the probative value of such proof supported by specific facts and circumstances, substantially outweighs its prejudicial effect ”2' 110 When evaluating whether prior bad acts may be admitted under 404(b) the Court looks at four factors (1) the evidence must be offered for a proper purpose, (2) the evidence must be relevant under the standards of Rule 402, (3) its probative value must not be substantially outweighed by its potential for unfair prejudice pursuant to Rule 403, and (4) where requested the court must instruct the jury to consider the evidence only for its limited admissible purpose 22
'4 Mot 2 15 Id '6 Mot 3 '7 Id l“V I R Ev") 404(b) '9 Mot 3 (citing Gov I ofVI v Edwards 903 F 2d 267 (3d Cir 1990)) 0 United States v Caldwell 760 F 3d 267 275 76 (3d Cir 2014) see also L mted States v Scatfo 850 F 2d 1015 1019 (quoting l nitea’SIaIes v Simmons 679 F 2d 1042 1050 (3d Cir 1982)) People v Stephens V1 Super 36U 119 (citing United States v Caldwell 760 F 3d 267 276 (3d Cir 2014)) (noting that this is a rule of general exclusion with the permitted uses treated as exceptions) 1V I R EVID 404(b)(2) (emphasis added) 2 Tyson v People 59 V1 391 423 (VI 2013) Huddleston v LnIIedStates 485 U S 681 691 92 (1988) People ofthe Virgin Islands v Leroy Hodge 2020 VI Super 95U CASE NO ST 2015 CR 0033] Memorandum Opinion and Order Page 4 of 13
1 Proper Purpose
1111 The Court must first evaluate whether the prior bad act or crime is being offered for the proper purpose 23 The People in their Motion state that the prior criminal history of the Defendant is to be used, among other reasons, to demonstrate fear and state of mind of the victim as well as to complete a story ”24 This purpose is well supported by the Virgin Islands Supreme Court and other Virgin Islands courts
1]]2 In regards to explaining the circumstances or ‘completing the story,’ Chmnery v Virgin Islands” allowed evidence that the defendant in that case had made prior sexual remarks and advances towards the victim in order to complete the story of the crime as well as to explain the relationship of the parties or the circumstances surrounding a particular event ”26 The District Court ofthe Virgin Islands in Ledesma v Gov t of Virgin Islands2 allowed evidence to be admitted of the defendant’s prior sexual contact with the victim in order to help ‘ explain the evidence and testimony regarding the victim 5 reaction to the acts and failure to resist appellant s advances or to alert anyone 28 In the Superior Court of the Virgin Islands’ case People v Pickering,29 evidence of the defendant 3 prior sexual remarks about the victim was allowed to show that the defendant had a “particular interest’ in the victim in other words to explain the relationship between the parties 30 The Third Circuit in Gov I of Virgin Islands v Harris“ allowed testimony of a defendant 3 prior attempts to stab and strangle his wife as evidence that her death was not accidental or suicidal and that she did not simply disappear voluntarily a way of ‘completing the story 32 1H3 Regarding using prior criminal acts to show a fearfiil state of mind the Virgin Islands Supreme Court allowed such evidence in Christopher v People of the Virgin Islands 33 where a defendant used the prior bad acts of an assailant as part of a self defense claim to try and show he feared for his life ‘4 1114 In the case at hand, the victim testified she was afraid,”5 that the Defendant had threatened to shoot up the place,”36 that the Defendant would harm [her boyfn'end] in some
’3 Id ’4 Mot 4 555VI 508(VI 2011) 6 Id at 526 27 (citing UnitedSlates v Rock 282 F 3d 548 551 (8th Cir 2002)) 7159 F Supp 2d 863 869 (D V1 2001) 3 Id at 871 9Super Ct Crim No ST 12 CR 421 (STT) VI 2013 WL 4522079 at*l (VI Super Ct Aug 9 2013) 3° Id at *3 see also People v Fenter: 59 V 1 163 (Super Ct 2013) (prior instances of domestic abuse were allowed to complete the story since they showed the systematic isolation abuse and control by the Defendant over a female partner ) 3‘ 938 F 2d 401 420 (3d Cir 1991) 3 Id at 420 33 57 V I 500 (V I 2012) 3“ Id at 510 ll ”TrialTr vol 3 150 3" Id at 153 People of the Virgin Islands v Leroy Hodge 2020 VI Super 95U CASE NO ST 2015 CR 0033] Memorandum Opinion and Order Page 5 of 13
fashion,”37 and that he would ‘ tell [her] stuff so [she] would comply ”33 The note allegedly from the Defendant stated that he ‘ain leaving no one alive 39 Finally, the mother testified that upon learning of the rape she entered the bathroom, pretended to call a taxi, and texted with the 911 operator ‘0 Admission of evidence that Defendant had previously murdered people would go to the victim’s fearful state of mind, as well as would help complete the story’ about the kind of ‘ stuff Defendant may have told the victim, explain why the mother acted the way she did upon learning of the rape, and lend credence to the threat in the note If admitted for these reasons, such purposes would be proper
1[15 Additionally, the People cite t0 Colon v Gov t ofthe Virgin Islands”in support of the uses mentioned above 42 It should be noted that in that case, the government was offering evidence of a prior act in order to prove intent and the absence of mistake, which is explicitly allowed in 404(b) and not to ‘complete a story’ or ‘demonstrate fear 43
2 Relevance
a Prior Acts May Be Relevant to Show Fear 1116 Next the Court must consider whether the prior criminal act is relevant 44 Relevance of evidence is assessed under V I R EVID 401 “Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action 45 fill7 The People in their Motion argue that the prior crime of murder is relevant to several facts of consequence that the victim was intimidated, that the victim’s resistance was prevented by fear of immediate and great bodily harm, and that the victim had reasonable cause to believe harm would be inflicted upon her ‘6 These elements are required to prove Aggravated Rape in the Second Degree Sodomy Domestic Violence47 and Rape in the First Degree Domestic Violence 48 While the People cite no case law in their Motion, persuasive authority and logical inference show that the prior murder charge is relevant to the elements of intimidation and fear in this situation
37 Id at 162 38 Id
3" TrialTr vol 1 167 68 4° Id at 128 139 42 4' 30 v1 119 124 (D v1 App 1994) 4’ Mot 4 ‘3 Colon 30 V I at 124( On appeal the Government concentrated on the value of Exhibit No 5 in showing Colon s intent to create an unauthorized withdrawal slip to deprive Ms Todman of money deposited in her savings account Exhibit No 5 is highly probative in determining appellant's intent by demonstrating a cumulative or continuing action and the ‘absence of mistake or accident pursuant to Fed R Evid 404(b) ) 4“ Tyson v People 59 VI 39] 423 (VI 2013) Huddlestonv UnitedStates 485 U S 681 691 92 (1988) “VIR EVID 401 ‘6 Mot 6 7 47 V I CODE ANN tit 14 § l700a(a) V I CODE ANN tit 16 § 9l(b)(6) ‘3 V I Com ANN tit l4§ 1701(3) [6 V I C §9I(b)(6) People ofthe Virgin Islands v Leroy Hodge 2020 VI Super 95U CASE NO ST 2015 CR 0033] Memorandum Opinion and Order Page 6 of 13
1118 A variety of opinions from outside this jurisdiction have indicated that prior bad acts or crimes may be relevant in considering whether or not a victim was reasonably afraid In the New Hampshire Supreme Court case ofState v Richardson,49 the prior acts of a defendant threatening himself and the victim with a knife, among other things, was considered relevant to the charge of criminal threatening 5° In the Massachusetts Appeals Court case of Commonwealth v Johnsonfl a defendant 3 prior acts of abuse against his partner was considered probative of her reasonable fear that he would harm her in a case involving the violation of a protective order 52 Lastly, that a person not only says that they have killed, but has been found guilty in a court of law of murder, would instill in a reasonable person apprehension of the murderer the statement is more than idle chatter or a baseless assertion, it is grounded in fact
1119 As stated above, the People in this case bear the burden of proving reasonable fear and/or threat and intimidation The victim offered testimony of her fear of the Defendant at trial and the grounds upon which it was based beatings and other domestic violence against her and her family She also vaguely alluded to threats against her and her boyfriend That the victim knew of her assailants violent past or that he threatened her with that information, would be relevant to show fear because she could reasonably be afraid that, being capable of killing another human, he may do it again to her, her boyfriend, or her family and that the societal punishment of incarceration is not adequate enough to prevent him
b V I R Evid 404(b)’s “1f Actually Contested” Requirement
{[20 However, the cases outlined above involve prior bad acts or crimes perpetrated against the victim The People seek to admit evidence of a crime perpetrated before the victim in this case was even born The People assert in their Motion that the Defendant “[told] the victim that he had killed someone before "3 Neither the trial transcript or any other statements made by the victim or the victim’s mother indicate that they were aware of his prior conviction for murder In fact, the victim testified that she [didn t] really remember what he said he would do”54 and her testimony as to why she was afraid of the Defendant rested on him being ‘ aggressive ’ and beating her with sticks, fighting with her mother, and beating her brother not because he was a convicted killer 55 This
‘9 635 A 2d 1361 (N H I995) 5° Id at 1363 64 ( Such evidence made it more probable than not that the defendant on the later occasion acted with an intent to terrorize her and that those actions placed her in fear for her physical safety ") “ 45 Mass App Ct 473 (Mass Ct App 1998) 5’ Id at 478 ( Here, Thibeault s testimony was probative of the defendant 3 hostility toward her and his pattern of acting on that hostility It was offered to show that as a result of the defendant 5 prior conduct, she reasonably feared that he would harm her ’) However, some courts have refused to extend the 404(b) exceptions to include fear See, State v Sanders 716 A 2d 1 l 13 (Vt [998) ( Here, we need not decide whether the prior bad acts may be admissible solely to show fear or intent because the evidence was relevant also to portray the history surrounding the abusive relationship, providing the needed context for the behavior in issue ) 53 Mot 7 5“ Trial Tr vol 3, I62 55 Id at 150 S3 People ofthe Vtrgin Islands v Leroy Hodge 2020 V1 Super 95U CASE NO ST 2015 CR 0033] Memorandum Opinion and Order Page 7 of 13
suggests the victim was not aware of the Defendant’s past, and her reasonable fear was based on other prior bad acts
1121 404(b) of the Virgin Islands Rules of Evidence differs from 404(b) of the Federal Rules of Evidence in that it requires that the issue be “actually contested in the case ’56 The addition of the phrase to V I R EVID 404(b) whereas the rest of the rule mirrors F R EVID 404(b)57 suggests that the V I rule is more limited than the federal one Even without this inference, pre adoption authority suggests a skepticism towards admission for just any issue other than propensity 1122 In a pre V I R EVID case, Gov I of the Virgin Islands v Archtbaldf8 the prosecution sought to admit evidence of the defendant 3 prior sexual contact with the victim s sister to show how a witness (the sister) knew the defendant 59 The Third Circuit noted that [t]he accuracy of the identifications by Williams and Latoya, however, was neither an actual nor even a probable material issue in the case”,60 that ‘[t]here was no question that he had known the victim and her mother for years as neighbors and friends”,6' and noted that the government was engaged “[i]n a vain attempt to fashion a material issue ”62 Further, there was no implication that the defendant would contradict testimony on the grounds of identity 63 1123 In contrast, in Gov t of the Vtrgm Islands v Pmney,“ the prosecution at trial introduced evidence that the defendant had previously raped the victim’s sister some six years prior 65 The prosecution sought to introduce it as evidence that the defendant in that case had acted ‘ knowingly or, alternatively, as a part of a common plan or scheme ’66 While tenuously accepting the first rational,67 the Third Circuit rejected the second argument 68 The Third Circuit, however, did note that the prior bad act could theoretically be admissible for rehabilitative
56V I R EVID 404(b)(2) cf. FR EVID 404(b) 57 Id
5“ 987 F 2d 180 (3d Cir 1993) 59 Id at 183 (‘ [T]he government asserts that the evidence was admissible under Rule 404(b) because it was introduced to support the in court identification of Archibald by Williams and Latoya not to show Archibald's propensity to engage in illicit sex with children ) 6° Id at 185 61 Id 62 Id
6’ Id at 185 86 ( Nothing in the notice suggested that Archibald would deny having known Latoya and her mother for several years Furthermore, nothing implied that Archibald would contradict those portions of Latoya‘s testimony indicating that she was raped in a manner that would have made the identity of her perpetrator apparent ) 6" 967 F 2d 912 (3d Cir 1992) 65 Id at 915 66 Id
‘7 Id at 916 ( If Pinney had intercourse with Tamisha it is to say the least highly unlikely on the facts of this case that he did so by accident or mistake Nevertheless as a matter of logic, it is at least marginally more likely that he did so intentionally if he had previous experience with intercourse ”) ‘3 Id at 916 17 (“There are similarities between the two alleged incidents each involved a minor of about the same age each allegedly occurred in the defendant's apartment each involved sexual intercourse and each time the defendant allegedly warned the victim not to tell anyone But these shared characteristics are not sufficiently unique to warrant the inference that Pinney was the perpetrator in each incident ) People ofthe Virgin Islands v Leroy Hodge 2020 VI Super 95U CASE NO ST 2015 CR 0033] Memorandum Opinion and Order Page 8 of 13
purposes if defense counsel were to attack the witnesses credibility on cross examination that is, to put the issue of credibility in contention 69 In both cases, the Third Circuit suspected the true purpose behind some of the govemment’s arguments was to improperly suggest that the defendant had a propensity to commit the crime 70 1124 While these cases were decided before the adoption of the Virgin Islands Rules of Evidence, they suggest a suspicion that the prosecution may argue it is introducing prior bad acts for a reason that, though logically sound and facially relevant or probative, is not truly at issue in the case and may in fact be an attempt to sway the jury 7' In the case at hand, Defendant has plead not guilty, which in a sense means he contests the whole case This would include the elements of 14 V I C l700a(a) and 14 V I C 1701(3) discussed above which require that that the Defendant had threatened or intimidated the victim, and that the victim had a reasonable fear for her safety It is certainly reasonable to fear someone who has murdered and threatens to murder again Yet, such a reading of the rule, that a mere plea of not guilty is a contestation of every single element of a crime, is overly broad and perhaps unconstitutional It imputes to the Defendant, who has a constitutional right to not testify,72 a slew of assertions namely that the Defendant denies doing anyone, or all of the elements of a crime Further, reading into 404(b) such an allowance would render the exclusionary rule functionally useless It also is at odds with what appears to be the drafter s intent of making V I R EVID 404(b)(2) stricter than F R EVID 404(b)(2)
1125 Moreover, this is not the only reason the People seek to introduce this evidence They also seek to introduce the Defendant 3 prior crime as evidence of the threat” itself,73 and to ‘ support the credibility of the victim s testimony that [the Defendant] did in fact threaten her because the Defendant was in fact convicted of murder and served time in jail for it "7" While the People asserted in closing argument that the mother and victim knew who they “were dealing with knew the violent nature of the defendant’ 75 which suggests that perhaps they were in fact aware of the Defendant s conviction this assertion came from the People, not any witness
6" Id at 917 (“With respect to the government's contention that Jamila s testimony was admissible for rehabilitative purposes we agree that the need to diSpel an exculpatory implication implanted by the defense anomey during cross examination of the prosecution s witnesses can fulfill the proper purpose requirement of Rule 404(b) ) ’0 Gov I of the V I v Archibald 987 F 2d [80 (3d 1993)( Williams testimony revealing the prior sexual encounter between Tasha and Archibald was not probative of any material issue except Archibald s propensity to commit the charged crime ); Pinney, 967 F 2d at 916 ( ‘In this case, however there is no chain of logical inferences between a rape of Jamila by Pinney and Tamisha s credibility which does not involve an inference that if Pinney raped Jamila he is likely to have raped Tamisha as well While the government 3 contention is stated in tenns of credibility impeachment and rehabilitation it is in effect asking that Tamisha be believed when she says she was raped by Pinney because Pinney raped Jamila six years earlier This type of inference is precisely the kind prohibited by Rule 404(b) ) ‘ See generally ( nIIedSlates v Sampson 980 F 2d 883 886 (3d l992)( Although the government will hardly admit it, the reasons proffered to admit prior bad act evidence may often be [Plotemkin village, because the motive, we suspect, is often mixed between an urge to show some other consequential fact as well as to impugn the defendant scharacter ) 7’ U S Constit amend V 7’ Mot 7 7" Mot 8 7’ Trial Tr vol 4, 34 People ofthe Virgin Islands v Leroy Hodge 2020 VI Super 9SU CASE NO ST 2015 CR 0033! Memorandum Opinion and Order Page 9 of 13
1126 The argument that Defendant was aware of the murder charge now appears for the first time in a Motion filed by the People after an unsuccessful trial Not only is this not evidence, but it is also suspect The Court is mindfiil that having failed to convince a jury the first time, the People may now seek to introduce this evidence to bias the jury Further, the mere fact that Defendant had a prior conviction is not in and of itself evidence of a threat, the Court must be satisfied this was in fact communicated to the victim Lastly, a review of the Trial Transcript shows that at no point on cross examination did the defense ever attack the victim s testimony that she feared or was afraid of the Defendant 76 Her credibility on this issue did not appear in contention Thus, until evidence is proffered that the victim was aware of the Defendant’s prior conviction and that this knowledge played a role in the alleged events, or until her testimony as to her reasonable fear of the Defendant is attacked, prematurely granting admission would violate the requirement of 404(b) that the issue be actually contested
3 The Prejudicial Balancing Test
1|27 Assuming that the People are able to overcome this hurdle, and, through testimony, offer a proper foundation that the victim knew of the Defendant s conviction and that this played a role in her acquiescence, or assuming that the victim s credibility as to her reasonable fear of the Defendant is attacked, the People still must satisfy the balancing test outlined in 404(b) the probative value of such proof, supported by specific facts and circumstances, substantially outweighs its prejudicial effect 77 This test reiterates and incorporates V I R EVID 403 73 {[28 The Virgin Islands Supreme Court explained in Morton v People ofthe Virgin Islands’9 that ‘ the probative value of proposed evidence should meet at least two distinct requirements ‘( l) [t]he evidence must be probative of the proposition it is offered to prove, and (2) the proposition to be proved must be one that is of consequence to the determination of the action ” 3° The Virgin Islands Supreme Court further elaborated in Mulley v People of the Virgin Islands“ that ‘[t]he term unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged 32 and that [b]ecause all probative evidence is prejudicial to a criminal defendant to warrant exclusion its probative value must be slight in comparison to its inflammatory nature ”’33 1129 While the People assert in their Motion that when a prior conviction supports an element of the crime charged, the value of the evidence to the fact finding duty substantially outweighs
7" Trial Tr 174 228 77 V I R EVID 404(b)(2) 7“ V I R EVID 403 ( The court may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice[ ]") 7" 59 V I 660 (V I 2013) 3° Id at 667 (quoting United States v Hall 653 F 2d 1002 1005 (Sth Cir 1981)) (citations omitted) 8‘ 51 VI 404 (VI 2009) 3 Id at 411 12 (citing 01d Chtefv UnitedStates 519 U S 172 180) 3’ Id at 412 (citing UnitedStates v Garner 281 Fed Appx 57] 575 (7th Cir 2008)) (citing another source) People ofthe Virgin Islands v Leroy Hodge 2020 V1 Super 95U CASE NO ST 2015 CR 00331 Memorandum Opinion and Order Page 10 of 13
any danger of unfair prejudice” they cite merely persuasive authority 34 Indeed, the Virgin Islands Supreme Court has recognized in Morton that the 403 balancing test is very fact specific, does not lend itself ‘ to broad per se rules,’ and must be determined by the context of the facts and arguments presented 85 1130 In a recent case from the Virgin Islands Supreme Court, Celestine v People,86 the Virgin Islands Supreme Court ruled that the Court erred in admitting testimony from an officer that a teardrop tattoo indicates that the defendant had killed somebody in an unrelated case The Virgin Islands Supreme Court stated that Nevertheless, we note that an allegation that the defendant previously committed an unrelated murder inherently appeals to the jury s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case, which would make it unfairly prejudicial under Rule 403 ”37 131 In Colon,88 the District Appellate Court for the Virgin Islands distinguished the prejudicial nature of the relatively tame prior bad act in that case stealing money using forged withdrawal slips with more serious crimes Colon was charged with white collar crimes, which, although illegal, do not tend to inflame juror s emotions to the same extent as violent crimes such as the rape of a child or the continuous abuse and eventual murder of a spouse 3" These two cases illustrate that admitting a prior murder conviction against a criminal defendant is a high bar, and is perhaps too unfairly prejudicial when the murder is unrelated to the crime at hand
1132 Finally, in United States v Scarfo,9° the Third Circuit found evidence of prior murders committed by the defendant, a boss of the Philadelphia La Cosa Nostra crime family, to be acceptable in a single extortion case 9' The Third Circuit admitted such evidence so that the jury could better understand the testimony of two witnesses, mobsters who feared retaliation and had extensive criminal backgrounds 92 The Third Circuit also highlighted that [t]he district judge here commented that evidence of the defendant s participation in various murders would normally be excluded as irrelevant and unduly prejudicial in a trial for a single extortion scheme However, in
8‘ Mot 9 (citing United States v Battle 774 F 3d 504 51 1 (8th Cir 2014)) ‘5 Morton 59V] at 667 (citing Sprml UnitedMgmt Co v Mendelsohn 552 U S 379 387 (2008)) ”6 S Ct Crim No 2017 0066 VI 2020 WL 3270737 at *1 (VI June 17 2020) 37 Id at? 14 82*3OVI 119(DVI App 1994) 39 Id at 123 90 850 F 2d 1015 (3d Cir 1988) 9' Id at 1020 92 Id ( The witnesses unsavory mores were hardly likely to inspire confidence in their truthfulness and, therefore, it was important for the jury to realize that Caramandi and DelGiomo had been granted immunity for the very murders that they asserted Scarfo had ordered Moreover Caramandi s belief that he had been threatened by Scarfo and his fear that his daughter‘s life was in jeopardy were probative of his motives to testify Similarly, DelGiomo inferred from the conduct of other organization members that he, too, had been marked for death, a realization that prompted him to approach the authorities and arrange for cooperation ) People ofthe Virgin Islands v Leroy Hodge 2020 VI Super 95U CASE NO ST 2015 CR 0033] Memorandum Opinion and Order Page I] of 13
view of the unusual circumstances in this case, the judge concluded that such exclusion would be prejudicial to the government ”93 133 It is worth noting that, besides the non binding Eighth Circuit decision Battle referenced above in footnote 90, Scarfo is the sole case the People rely on The People in their Motion argue that the reasons presented in the Scarfo case are the same reasons they seek admittance of the Defendant 3 prior murder 94 The People state that admitting evidence of prior murders so that the jury may better understand[ ] the witnesses testimony and for the jury to understand why the witnesses acted the way they acted in fear of death to themselves and family members are ‘ the same reasons presented in the instant matter ”95 {[34 However, this reading of Scary?) oversimplifies and misconstrues the facts in that case The prosecution in Scarfo needed to explain why such unsavory characters could be relied on to show why they had turned government witness, and why acts of extortion they had committed could be attributed to Scarfo as they were done in subservience of and under the direction of him 9" Additionally, the Third Circuit stated “That Scarfo had such tight control over an organization capable of executing those who incurred his displeasure was obviously an essential fact the jury needed to evaluate in considering the extent to which fear swayed the two witnesses That the witnesses themselves had participated in the slaying of compatriots accused of disloyalty to the crime family tended to give credence to their dread that they were slated for the same fate ’ 97 1135 The situation of the witnesses in Scarfo is clearly not the same to the case at hand It is not the People 5 contention that the witnesses are fearfiJl to take the stand, that the victim and her mother are unsavory characters whose credibility is inherently damaged by their past actions, or that there are past crimes committed by them and the Defendant which are necessary to prove a criminal racketeering scheme In contrast here, the Defendant’s murder charge would be probative of explaining why the victim acquiesced and did not fight back why the victim did not tell anyone except for finally her boyfriend, why the victim was terrified of the Defendant, and how specifically the Defendant accomplished the elements of intimidation Thus, it is probative of facts of consequence the victim s fear and the way the Defendant accomplished the crime While it
93 Id
9‘ Mot 9 951d 961d
(“Caramandi and DelGiomo had extensive criminal backgrounds The revelation of these histories would necessarily undermine the jury‘s willingness to believe the witnesses, particularly if the government were barred from full disclosure In instructing on the proper use of other crimes evidence, the Judge explained that the testimony could be used to assess the nature ofthe relationship among Caramandi, DelGiomo, and defendant
“It is a position of the Government that Caramandi and DelGiomo were subordinates within this carefully organized and structured organization that they did Mr Scarfo s bidding [that] they never would dream of doing anything this large without his approval and that the tapes and other evidence in the case corroborate their testimony to the effect that he was involved and did approve ) 071‘! People ofthe Virgin Islands v Leroy Hodge 2020 VI Super 9SU CASE NO ST 2015 CR 0033] Memorandum Opinion and Order Page 12 of 13
does not help explain why the victim is testifying, it does lend credence to both the victim and her mother s testimony as to why they acted as they did
{[36 A prior unrelated murder may be likely to inflame the passions ofthe jury That in the prior trial, the People were able to convince jury members that the victim was credibly afraid of the Defendant based on her testimony of beatings and domestic violence suggests such evidence is not truly “necessary” to prove reasonable fear, as the Pe0ple assert 93 1137 Yet, if the prior crime was in fact wielded as a threat by the Defendant against the victim and was known by the victim’s mother, it would go a long way in explaining the victim’s accession on the night of the crime, her years of silence, the mother’s actions in hiding in the bathroom and pretending to call a taxi, and the note allegedly written by the Defendant The statement in the note that the Defendant will go for everyone and leave no one alive becomes more than an idle threat, and helps to explain why the victim finally acknowledged to her mother what was happening to her 99 Rule 404(b) is meant to prevent unfair prejudice but in the instant case it would be unfair to allow the Defendant to use his prior crime as a bludgeon against the victim and then hide behind the rule as a shield 1138 Finally, any prejudice that may arise can be addressed with a jury instruction that the Defendant has paid his debt to society by his incarceration, and that the prior murder should only be considered for the purpose which the People actually use it for in trial to bolster the victim 5 damaged credibility or to help establish the elements of intimidation or reasonable fear
IV CONCLUSION 1139 The Court is generally skeptical that prior crimes are not truly being offered by the People to impermissiny sway the jury, particularly when the prior crime was wholly unrelated to the victim and is of a highly inflammatory nature The Court also notes that the Virgin Islands Rules of Evidence require that the issue for which the crime is being proffered be actually in contention in the case A review of the transcript and witness statements casts some doubt as to whether the People’s assertion, that the Defendant’s prior crime was the reason for the victim’s fearfulness, is in fact true Finally, the Court notes that this case has already gone to trial, and some members of the jury were swayed by the People without this evidence being necessary
{[40 However, the Court also recognizes that proof of the People’s claim may be readily rendered through appropriate testimony, and that the issue of the victim‘s credibility or the reasonableness of her fear may easily arise during trial The Court also recognizes that in the instant case, assuming the Defendant did indeed communicate his prior criminal history to the victim, such history would be highly relevant and probative of key elements of the People 5 case The Court is also mindful that such evidence may be limited to the proper purpose by jury instruction
9“ Mot 10 99TrialTr vol 1 [67 68 People ofthe Virgin Islands v Leroy Hodge 2020 VI Super 95U CASE NO ST 2015 CR 00331 Memorandum Opinion and Order Page 13 of 13
141 Accordingly, it is hereby
ORDERED that the Court RESERVES ruling on the People 3 Motion In Ltmme to Admit Testimony of Defendant 3 Prior Crime pending testimony at trial in this matter, and it is further
ORDERED that a copy of this Memorandum Opinion and Order shall be directed to Attorney Clive Rivers, Assistant Attorney General Natasha L Baker and Assistant Attorney General Nadja Harrigan
DATED ll‘lfi‘ZOLO WW £70.09“ Y0 DENISE M F NCOIS Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES Clerk of the Court
BY A “LORI BOYNES Chief Deputy Clerk II / {fl #:1on