Percival v. People

62 V.I. 477, 2015 V.I. Supreme LEXIS 2
Supreme Court of The Virgin Islands·Decided January 7, 2015·No. S. Ct. Criminal No. 2013-0083·Published·Cited by 30 cases

Opinion

OPINION OF THE COURT

(January 7, 2015)

Cabret, Associate Justice.

Shevron Percival appeals his convictions in the Superior Court for first-degree robbery and unauthorized possession of a firearm during a crime of violence. Percival argues that the evidence was insufficient to support his convictions and that the Superior Court abused its discretion in denying his motion for a new trial and his motion to suppress the victim’s out-of-court identification. We reject each argument and affirm Percival’s convictions.

[481]*4811. FACTUAL AND PROCEDURAL BACKGROUND

Willis Hodge was robbed at gunpoint while sitting in his car in a parking lot at the Lorraine Village Housing Community on St. Croix at around 12:50 a.m. on May 10, 2011. A month later, Hodge gave a statement and selected Percival’s photo out of a photo array, identifying him as the person who robbed him that night. The People of the Virgin Islands then charged Percival with first-degree robbery, the use of a dangerous weapon during the commission of a crime of violence, unauthorized possession of a firearm during a crime of violence, failure to report a firearm brought into the Virgin Islands, and third-degree assault. Before trial, Percival moved to suppress the identification Hodge gave to police, asserting that the photo array used to obtain the identification was unconstitutionally suggestive. After holding an evidentiary hearing on June 11, 2013, the Superior Court denied the motion, finding that the photo array was not impermissibly suggestive.

The Superior Court held a two-day jury trial beginning on July 1,2013. During trial, the People first called Hodge, who testified that after he fell asleep in the driver seat of his car, someone began shaking the car after midnight. He then saw a man — whom he later identified as Percival — standing outside the passenger-side window with a gun. Once Hodge saw the weapon, he moved “as far back as [he] could into the vehicle,” hoping that it would be more difficult for Percival to see him because of the tint over the back windows. Hodge testified that even though Percival had a shirt covering his mouth, his cheeks, nose, and forehead were visible and Hodge recognized Percival’s voice because he spoke with a “West Indian” accent and had a lisp. Percival then placed the gun against the window and ordered Hodge to open the car door, threatening to shoot him unless he handed over his money. Hodge complied by throwing a few dollars and change out of the window, but Percival demanded more.

This went on for about 25 minutes, much of which Hodge spent in the backseat of the car on the phone with 911, which Percival apparently never realized. Percival again ordered Hodge to get out of the car, but Hodge told him that he wouldn’t come out because “the gun [was] scaring [him],” and that he would come out of the car only if Percival went “over to the garbage can” that Hodge testified was under a streetlight nearly 40 feet away from the car. According to Hodge, Percival did so, and as he was standing under the streetlight a car approached, causing Percival to [482]*482pull the shirt covering the lower part of his face down for a moment, revealing his entire face, until the car changed direction. When Hodge still refused to leave the car, Percival returned to the car window, again ordering Hodge out of the car and threatening to kill him if he didn’t hand over more money. This finally ended when the police arrived and Percival “took off running” west into “the main area” of the housing community. Hodge told the responding officers that he didn’t know the assailant’s name, but recognized him and would be able to identify him. Hodge also recounted selecting Percival’s photo out of the photo array and testified that he was “[a] thousand percent sure of’ the identification, stating that he recognized Percival from an incident that occurred two months before the robbery and then identified Percival in court. The photo array was also introduced into evidence over Percival’s objections.

Following Hodge’s testimony, Officer Egbert Thomas testified that he and Officer Ellery Quailey responded to Hodge’s 911 call and that Thomas saw the assailant holding a gun against the car window when he arrived, but could not identify the assailant. Quailey then testified that when they arrived at the scene of the robbery, he recognized the assailant as someone he knew as “Gasso” by his eyes and the shape of his head despite the fact that part of his face was covered. Quailey stated that Gasso was Percival’s nickname and identified Percival in court. Quailey also stated that he saw Percival holding a gun against the car window when he and Thomas arrived, but the officers were unable to arrest Percival because he ran “towards ... the fields of Lorraine Village, and he ran towards a bush,” where the officers “lost contact with [him].” Quailey testified that he told Thomas and the dispatching officer that he recognized Percival, and could not explain Thomas’s failure to include this identification in the police report.

After Quailey’s testimony, Percival stipulated to the admission of absence-of-entry forms created by Detective Karen Stout showing that he did not have a license to possess a firearm in the Virgin Islands at the time of the robbery. Detective Leon Cruz then testified that he was the investigating officer and that he gave Percival’s photo to the Virgin Islands Police Department’s forensic unit to create a photo array including five other photos of individuals with similar characteristics. Cruz showed Hodge the photo array one month after the robbery, and Hodge immediately selected Percival’s photo, identifying him as the person who committed the robbery. Officer Cureene Smith also testified [483]*483to being present when the photo array was shown to Hodge, corroborating Cruz’s testimony that Hodge selected Percival’s photo without hesitation.

The People then rested and Percival moved for a judgment of acquittal, arguing that the evidence was insufficient to support a conviction for the firearm charges because the People did not prove that Percival was in possession of an operable firearm. The Superior Court reserved judgment on this motion and the People later filed an amended superseding information dropping the failure to report charge. Percival then called his mother as a defense witness, who testified that Percival came home around 9:00 or 9:30 p.m. the night of the robbery and was still there at midnight when she woke up and checked on him. After this testimony, Percival rested and renewed his motion for a judgment of acquittal without providing any additional argument. The jury later returned a guilty verdict on all counts.

Percival then filed a written motion for a judgment of acquittal, or in the alternative a new trial on July 16, 2013, which the Superior Court denied in an order entered on August 30, 2013. After a sentencing hearing on September 20, 2013, the Superior Court entered a September 26, 2013 judgment and commitment sentencing Percival to 10 years’ imprisonment for first-degree robbery and a concurrent 15-year sentence and $25,000 fine for unauthorized possession of a firearm during a crime of violence. The court dismissed the convictions for use of a dangerous weapon during a crime of violence and third-degree assault without explanation. Percival filed a timely notice of appeal on October 2, 2013.

II. JURISDICTION

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Percival v. People, 62 V.I. 477, 2015 V.I. Supreme LEXIS 2 (virginislands 2015).

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