Rouse v. People of the Virgin Islands

Opinions

Opinion

For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS

CECIL N ROUSE ) S Ct Crim No 2017 0051 Appellant/Defendant ) Re Super Ct Crim No F28] 2012(STT)

)

V )

)

PEOPLE OF THE VIRGIN ISLANDS )

Appellee/Plaintiff )

)

On Appeal from the Supen'or Court of the Virgin Islands Division of St Thomas and St John Superior Court Judge Hon Adam G Christian

Argued July l0 2018 Filed January 17 2024

Cite as 2024 VI 4

BEFORE RHYS S HODGE, ChiefJustice; MARIA M CABRET, Associate Justice; and IVE ARLINGTON SWAN Associate Justice

APPEARANCES

Robert L King, Esq The King Law Firm P C St Croix U S VI A (Iorneyfor Appellant

[an S A Clement, Esq Assistant Attorney General Department of Justice St Thomas U S V I Attorneyfor Appellee OPINION OF THE COURT

SWAN, Associate Justice

1|] Appellant, Cecil N Rouse, was convicted on October 6, 2017 following a three day jury

trial on charges that he shot his wife with a semi automatic handgun in the couple’s bedroom, on

the morning of a court hearing on the wife’s petition for a divorce Rouse seeks reversal of his

Opinion of the Court

Page 2 of 45

convictions in the Superior Court of the Virgin Islands (“Superior Court”) for Attempted First

Degree Murder V I CODE ANN tit 14 §§ 921(b) 922(a)(l) First Degree Assault as an act of

“Domestic Violence 14 V I C § 295(1) (4) 16 V I C § 91(b); Unauthorized Possession of a

Firearm During a Crime of Violence, 14 V I C §§ 2253(a), (c); ‘ Third Degree Assault” as an act

of Domestic Violence ” 14 V I C § 297(2), 16 V I C § 91(b)(l) and ‘ Possession of a Firearm

Without a License 23 V I C §§ 452 454

‘r2 Rouse advances a plethora of legal issues on appeal First, he argues that there was

insufficient evidence to sustain his convictions as to all counts because the prosecution failed to

prove beyond a reasonable doubt that his actions were not a consequence of mental illness Rouse

next argues that the trial court abused its discretion when it allowed the prosecution’s expert

witness to testify, in its rebuttal case, regarding deficiencies in Rouse’s expert’s opinion He then

asserts that the cumulative effect of the numerous improper statements and arguments by the

prosecutor in opening and closing arguments constituted a violation of Rouse’s due process rights

warranting a finding that the trial court abused its discretion when it failed to declare a mistrial

Finally, Rouse argues that the trial court abused its discretion when it instructed the jury that Rouse

had the burden to present ‘ some evidence” of his insanity, which, he argues, unconstitutionally

shifted the burden of proof to Rouse, thus requiring reversal For the reasons elucidated below, all

Rouse s convictions are affirmed

I BACKGROU‘JD

$3 Prior to the beginning of trial Rouse challenged the admission of evidence from the

People 3 expert, Dr Laurie McCormick McPearce, because, as defense counsel argued, the law

mandated that, once a criminal defendant gives notice of an insanity defense prior to trial, the

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burden ofboth production and proof is upon the prosecution to prove the defendant 3 sanity beyond

a reasonable doubt (J A at 194 ) The court did not rule on this objection and allowed Rouse to

assert the objection at the appropriate time during the trial (J A at 198 )

114 Following preliminary instruction to the jury, counsel made their opening statements (J A

at 221 ) During opening statements, the prosecution made statements that were arguably improper,

for example ‘ All because of the defendant shooting her on May 10, 2012 Now, as far as the

defendant Since that time, the defendant still had a plan He went out and retained one of the

best, if not the best defense attorneys on island ” (J A at 224 ) Counsel for Rouse objected, and

the objection was sustained (J A at 224 25 ) Similarly, during opening statements, the

prosecution said the following, And the defendant was referred to Dr [Leighman] Lu, a

psychiatrist Dr Lu evaluated the defendant nearly six months after this shooting occurred and he

evaluated him twice in December of 2012, and after seeing him two times, Dr Lu concluded [that]

the defendant on May 10, 2012 suffered from something called a Dissociative Reaction The

defendant who has never really stated his side of the case ” (J A at 225 ) Again, defense counsel

objected and also moved for a mistrial (J A at 225 ) The court denied the motion for mistrial and

reminded the jury that the opening statement was not evidence and that the People bore the burden

of proving Rouse’s guilt beyond a reasonable doubt (J A at 227 ) The court further informed the

jury that the defendant had no burden of proof and had no responsibility to testify (J A at 227

28 ) Following this instruction, the prosecutor stated Because insanity has been raised the burden

shifts to the People to prove beyond a reasonable doubt ’ (J A at 228) Defense counsel

immediately objected to this statement and argued that this statement was the prosecution shifting

the burden to the defendant stating, “he’s talking about when the government shifts the burden

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There’s never been a burden on the defendant It s not a matter of shifting the burden ” (J A at

228 29 ) Defense counsel again moved for a mistrial (J A at 229 ) Both motions were denied

115 Rouse took the stand in his defense (J A at 549 ) Prior to his arrest on the day of the

shooting, Rouse had never been in trouble with the law or been arrested (J A at 550 ) Rouse had

lived in the Virgin Islands for more than 40 years and had served in the Virgin Islands National

Guard for 12 (J A at 550 ) Rouse explained that he had obtained the firearm with which he had

shot Vida when it was [cit at his home after he had hired a business to conduct repairs on his

generator (J A at 553 ) Upon finding the firearm, Rouse had hidden it in the master bedroom,

but he had never loaded ammunition in the firearm and did not know to whom the firearm

belonged (J A at 554 ) Rouse admitted he never obtained a license to possess the firearm (J A

at 554) During cross examination, he explained that he kept the firearm because he planned to

return it to the owner, but the owner never returned to claim it (J A at 563 ) Rouse had possessed

the firearm “for a while,” so long, in fact, he “actually forget about it ” (J A at 564 ) When further

questioned, Rouse estimated he had possessed the firearm for a year (J A at 564 )

116 Rouse then testified that he had no memory of shooting his wife or pointing the loaded

firearm at his daughter on May 10, 2012 (J A at 555 ) Similarly, Rouse did not remember firing

the weapon into his chest (J A at 555 ) He then recounted the events of the morning leading to

shooting his wife, Vida (J A at 55 ) Rouse testified that Vida woke him that morning pulling the

sheets and saying Get up Get up Your old island a*s Get up out of the bed and come move

your car ” (J A at 555 56) After he responded to “take it easy, he asserted Vida responded,

You re saying you don’t have no money I don’t want your F***ing money anyhow I got peopIe

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to give me money ” (J A at 556 ) Rouse again told Vida to “take it easy ” To this, Vida again

said, ‘ I don’t want your F***ing money anyhow I got people to give me money ” (J A at 556 )

1|7 Rouse then questioned why Vida was acting as she was, and Rouse asserted that her

response was, ‘ 1 going to divorce you anyhow Today is your last day and you ain t going get

nothing When your mothers***t was in Nevis, you ain’t had nothing, and I ain’t going give you

nothing ” She went on, according to Rouse, “I going to divorce you today and you ain t going get

nothing When you done you going walk out of here with nothing ” (J A at 556 ) He then

asserted that Vida said, “Furthermore, Shenovia is not your daughter ’ (J A at 557 ) He further

claimed that Vida declared Shenovia’s father to be a man called “Chop Chop Rouse explained,

when she told me that, I just everything change My body change I start shaking My head

hunting me I didn t know what to do When I catch myself, I woke in the hospital That s all I

remember ” (J A at 557 ) Rouse specifically remembered Vida calling him lazy and worthless

(J A at 557 ) Rouse further asserted that he had no memory of speaking with the police once he

awoke in the hospital (J A at 557 )

1|8 Upon cross examination, Rouse readily admitted his memory of the morning leading up to

the shooting was very detailed and maintained that he remembered nothing after Vida had told him

Shenovia was not his daughter (I A at 558 ) Rouse further denied that he had ever questioned

Vida if she was really going through with the divorce (J A at 559 ) Rouse further denied that

Vida told him she was going to divorce him that morning and denied that, in response, he told her

he was going to kill her and then shot her (J A at 559 ) Rouse further testified that he felt bad ’

when, that morning, Vida had said he was lazy and worthless, but he qualified that Vida is a

Rouse v People 2024 VI 4 S Ct Crim No 2017 0051 Opinion ofthe Court Page 6 of45

control person She always trying to control everything around—everybody around her ” (J A at

559 ) However, Rouse denied that Vida’s comments had made him angry (J A at 560 )

119 Rouse further maintained that, though the divorce had been in progress for two years, he

was not upset by the prospect and ‘ had no feelings on it one way or another ” (J A at 560 ) Indeed,

he testified that he wanted the divorce (J A at 560 61 ) (J A at 561 62 ) Rouse admitted that he

remembered Vida telling him that Shenovia was not his daughter but denied remembering pointing

the loaded firearm at her (J A at 562 63 ) During further questioning, Rouse asserted that Vida

had claimed she would get the marital home, but Rouse denied being upset, explaining that no one

knew who would get the home before going to court (J A at 565 ) Rouse admitted that he was

ultimately denied any ownership interest in the home and that he was upset about this “Just a

little (J A at 565 ) When asked directly if he had shot Vida because she told him on the morning

of May 10, 2012, that she intended to go through with the divorce, Rouse responded, ‘ No ” (J A

at 566 ) Upon re direct examination, Rouse asserted that he would not have intentionally shot his

wife or pointed the loaded firearm at his daughter (J A at 566 )

1110 Dr Leighman Lu, a medical doctor specializing in neuropsychiatry and employed at the

Virgin Islands Department of Health, testified next (J A at 568 ) Dr Lu testified to his

qualifications and was duly qualified as an expert in psychiatry (J A at 580) The doctor had

taken a medical and psychological history of Rouse, taking into account family history of mental

illness, upbringing, education, personal history, general family history, and other relevant

factors this history was obtained solely from Rouse (J A at 582 83 ) Rouse had been raised by

his paternal grandmother and knew little of his mother’s family except that his mother had spent

much of her life in and out of the hospital with a mental disorder (J A at 583 ) Additionally,

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different psychological evaluations were provided in which Rouse provided answers to written

questions (J A at 584 ) These evaluations were administered over the course of two meetings on

two different days approximately 4 days apart (J A at 585 ) Rouse 3 responses indicated a high

score ’ with regard to his “manic” and psychotic” thinking processes (J A at 586 ) An average

person would generally score a one or two, while a score of five or higher tends to indicate that a

person has some form of abnomial thinking process (J A at 586) Manic thinking refers to a

person’s thought processes that race ’ or change rapidly, and psychotic thinking is thinking that

tends to not reflect reality (J A at 587 ) Rouse had subclinical level psychotic processes (J A

at 589 )

1|] 1 Dr Lu’s ultimate conclusion was that Rouse had a tendency to become mentally ill under

the great deal of stress,” but that the signs and symptoms were not detectable during “normal”

conversation (J A at 589 ) Dr Lu more fully explained as follows

[I]t seems to me from what he give me his story and reviewing the police report and reviewing the family member’s report and put together at the time of the alleged offense, he was in a state of mental confiision, that confusion because of stress, because of heightened anxiety, because of heightened anxiety Because of heightened frustration and anger putting that together led into state of mental confusion and during that time, he didn t know what he was doing Memory is disturbed

(J A at 589 90 ) Dr Lu expounded that Rouse was under a great deal of stress, I think he’s under

a great deal of stress because of the wife, spouse pressuring him That’s what he said She was

repeatedly telling him this child the last child is not his (J A at 590 )

1|12 Rouse had explained that Vida had filed for divorce in 2010, and on the day of the shooting,

as Dr Lu recounted, Rouse explained that Vida

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was pressuring him and cursing He said cursing Remembers she was cursing and pressuring him in getting divorce In fact, two years before that, the first time I saw him was 2012

Two years before that So 2010 she did file divorce After that, he said they frequently ran into argument and that particular day that he was so shocked He was so upset He was so angry because she repeatedly said I m going to divorce you

I am going to divorce you He got so angry In his mind in his irrational thinking that he felt He said he had no way to talk to her and retract that divorce filed So, in his way of thinking the only way to solve this problem is kill him or kill her and kill myself and this way we don’t have to go to divorce hearing and we are still together in a different world

(J A at 590 9| ) Ultimately, Dr Lu concluded, “the shooting appears to be a consequence of his

frustration, anger and his pent up feeling and he slipped into that kind of dissociative state of mind

and as a result of that he decided to kill himself and kill her to avoid from the divorce proceedings ’

(J A at 592)

1|13 The People pursued typical topics of cross examination For example, it was elicited that

the doctor was paid for his diagnoses and testimony and had not ever seen Rouse until six months

after he shot Vida (J A at 593, 599 ) Dr Lu was further asked to explain the basic criteria he

used to diagnose Rouse, and he explained that the criteria included (1) a cloudy memory, (2)

irrational thinking, (3) memory disturbance, and (4) a background of emotional instability (J A

at 594 ) Dr Lu further explained that Rouse had informed him that since he was 30, Rouse would

drink under stress and had been drinking every day from approximately 6 00 p m until 9 00 p m

in the months leading up to the shooting (J A at 595 ) The night before the shooting, Rouse had

been drinking and when he got home had fought with Vida until the next morning, with the

argument only ceasing while Rouse slept (J A at 596 ) Therefore, in the morning when he awoke

Rouse v People 2024 V1 4 S Ct Crim No 2017 0051 Opinion ofthe Conn Page 9 of45

Rouse ‘ was so frustrated and angry and in his mind the only solution is killing himself, kill her ”

(J A at 596) When asked about Rouse’s drinking habits, Dr Lu believed that, since the shooting

Rouse had stopped drinking due to the restrictions placed on him during pre trial release (J A at

599 )

1114 The People called Dr Laurie McCormick McPearce as their first witness in their rebuttal

case (J A at 623 ) Dr McCormick McPearce was licensed to practice medicine in the Virgin

Islands as a psychiatrist and explained her education and work experience (J A at 624 ) Dr

McCormick McPearce obtained her bachelor’s degree in biology and a medical doctorate (J A

at 624 ) She spent five years studying for her bachelor’s degree and three years studying for her

M D , after which she completed a fellowship in psychiatry and family medicine and a fellowship

in neuropsychology and neuroimaging and neuroscience with an emphasis on phrenology (J A

at 624 ) She then worked as a university professor teaching medicine, after which she moved to

St Thomas and began her practice in the Territory (J A at 624 25 ) She has published 29

academic articles and three chapters in books regarding her areas of practice (J A at 625 )

1115 Defense counsel took the opportunity to voir dire Dr McConnick McPearce, and during

this questioning it was established that Dr McCormick McPearce had been qualified as an expert

in over 100 cases 10 to 15 of which were in the Virgin Islands (J A at 630 ) Dr McCormick

McPearce had training in the area oftemporary insanity but had not served as an expert in any case

in which temporary insanity was an issue (J A at 631 ) In follow up, the People questioned Dr

McCormick McPearce, and she testified that, in her practice, she had dealt with patients with

dissociative disorders, particularly people with post traumatic stress disorder, and had taught

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dissociative disorders as part of her teaching career (J A at 632 ) The defense ultimately accepted

Dr McCormick McPearce as an expert in psychiatry (J A at 633 ( I’ll accept her as an expert ”))

1116 Dr McCormick McPearce then explained that the People had retained her, with

compensation, to offer an opinion in this case regarding Rouse (J A at 633 34 ) When asked if

these facts in any way clouded her professional judgment, Dr McCormick McPearce explained

that she was objective and only stated her medical opinion (J A at 634 ) At this juncture, defense

counsel objected to the admission of Dr McCormick McPearce’s expert report, stating “Your

Honor, she 8 been recognized as an expert and, of course, she’s able to testify as to what she

reviewed and what her findings are Her report, however, is not something that would be

admissible under any circumstances ” (J A at 635 ) The trial judge agreed, stating, “She can

testify about it, but the actual document Unless there’s some hearsay exception, it falls under or

its going to be introduced for a purpose other than the truth of the matter in which case it wouldn’t

be hearsay I think Attomey King has a point Just ask her about her opinions, ok If she can’t

recall you could use it to refresh (J A at 636 ) Later, during this testimony, the court precluded

Dr McCormick McPearce from testifying to facts in the police reports, stating “She can’t recite

from what she read That’s hearsay ” (J A at 647 )

1117 Dr McCormick McPearce then explained that, having reviewed the report of Dr Lu as

well as the reports of two officers who had responded to the scene of the shooting, but not having

ever met Rouse, Dr Lu’s conclusion was not a valid medical diagnosis but was, instead, a

description of a person s ‘personality basis ” (J A at 642) Additionally, Dr McCormick

McPearce explained that Rouse’s experiences as described by Dr Lu were not dissociative

experiences, either before or after the shooting (J A at 642 ) Typically, a person who has a

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dissociative reaction has a history of childhood trauma relating to severe physical or sexual abuse

(J A at 643 ) These events in childhood then lead to stressful events triggering a dissociative

reaction during adulthood (J A at 643 ) Rather, what Rouse described was simply an inability to

remember the event (J A at 642 ) People who experience dissociative states generally have an

ongoing course of dissociative episodes when stress is high (J A at 645 ) Ultimately, Dr

McCormick McPearce concluded that “dissociative disorders themselves are pretty rare, and

people that do have them aimost always have a history of previous problems and ongoing problems

with disassociation ” (J A at 645 )

1H8 Dr McCormick McPearce explained further that Dr Lu’s report made no mention of

anything that could be described as a dissociative reaction (J A at 647 ) Finally, Dr Lu’s report

included examples of cognition by Rouse that were directly contrary to experiencing a dissociative

state (J A at 647 ) Examples that were provided include Rouse shooting his wife and pointing

the gun at his daughter and then deciding not to shoot his daughter showing that Rouse was not

angry at the daughter and chose to point the gun again at Vida (J A at 648 ) She explained that,

during a dissociative state, the dissociation lasts for an extended period, and the affected person

would not be able to distinguish between someone they wanted to shoot and someone they did not

want to shoot (J A at 648 ) Therefore, the fact that Rouse was able to point the firearm, hesitate,

and then decide to point the firearm back at Vida precluded the conclusion that Rouse had entered

a dissociative state at the time of the shooting (J A at 648 ) Similarly Rouse 3 choice to shoot

himself was indicative of remorse, which is not an emotion someone in a dissociative state would

experience (J A at 648 ) Dr McCormick McPearce further explained that the 7 5 months

between the shooting and Dr Lu’s first ever meeting with Rouse is problematic because memories

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fade and people discuss events and blur what they remember with what they were told (J A at

649 ) Ultimately, Dr McCormick McPearce concluded that Dr Lu’s diagnosis was neither valid

nor reliable (J A at 661 )

1H9 The defense again moved for acquittal on the very same basis that we stated before except

there’s one additional basis ” (J A at 669 ) That additional basis was that there was no “evidence

from the Government that establishes, that presented evidence from which the jury can find beyond

a reasonable doubt that Mr Rouse was not insane on the date of this event (J A at 669 ) In

reviewing the jury instructions relating to the insanity defense, Rouse’s counsel stated the

following

[The] definition of what [“]some evidence[”] is what is precisely in issue It’s my view and I’ve expressed it several times that the mere filing of the notice of intent of insanity defense is enough

(J A at 672)

1120 Following argument on this issue, closing statements began The People made several

statements during closing arguments to which Rouse objected For example, the People stated ‘I

further want to point out that it was Attorney King’s Office that referred him to Dr Lu, and there’s

a reason he was referred to Dr Lu by Attorney King 5 Office”; ‘ So he’s referred by Attorney

King’s office because he would have no other defense to this case other than insanity He had no

option on this case I also want to address the point about his allegation that Mrs Rouse had told

him that morning that he shot her that Shenovia was not his daughter And I had brought that

up with her months ago, I asked her she denied it and that defendant never sought to have this

paternity issue resolved ’; and He 8 only charged with attempted murder The only reason is that

she didn’t die But even though he didn’t kill her that day, he has ruined her life He has ruined

Rouse v People 2024 V14 S Ct Crim No 2017 0051 Opinion ofthe Court Page 13 of45

the life of his daughter This will be with them forever (J A at 708 ) When Rouse objected,

curative instructions were given The morning of the last day of trial, the jury was instructed (J A

at 722 )

11 DISCUSSION

A Issues and Standard of Review

1121 Rouse first challenges the sufficiency of the evidence to sustain his convictions When

conducting a review of the sufficiency of the evidence, this Court is required to consider all

evidence presented, including any evidence that is ultimately determined to be inadmissible

Fontame v People, 56 V I 571, 585 n 9 (V I 2012) Because Rouse challenged the sufficiency

of the evidence of his sanity by making a motion for judgment of acquittal, this Court exercises

plenary review over the denial of such motion and applies the same standard as the trial court

Stanislas v People 55 VI 485 491 (VI 2011) Prince v People 57 VI 399 405 (VI 2012)

1122 When an appellant seeks to have his conviction overturned for lack of evidence, he bears

a heavy burden Rmer v People, 51 VI 354, 359 (VI 2009) This standard of review is

formidable and ‘defendants challenging convictions for insufficiency of evidence face an uphill

battle on appeal szles v People 66 V l 572 582 (V I 2017) (citations omitted) There must

be a logical and convincing nexus between the evidence, both direct and circumstantial, and the

guilty verdict Greer v People 74 V I 556, 576 (2021) This Court will affirm such a verdict so

long as the evidence, when viewed in the light most favorable to the People including the benefit

of all reasonable inferences would allow a rational jury to find all elements of each offense

proven beyond a reasonable doubt Fahze 1 People 62 V I 625 630 (V I 2015)

Rouse v People 2024 VI 4 S Ct Crim No 2017 0051 Opinion ofthe Court Page 14 of 45

1123 In order to sustain the jury s verdict, the credibility of witnesses and the weighing of

evidence is not for this Court to second guess on appeal Wzllzams v People, 55 V I 721, 734

(V I 2011) Specifically, there is no requirement that the evidence be consistent with only the

conclusion of guilt, and the evidence is not insufficient because testimony from witnesses may be

in conflict or contradictory, which, in reality, means that the finder of fact made a credibility

determination Marcelle v People 55 VI 536 547 (VI 2011) Smtlhv People 51VI 396 401

(VI 2009)

1|24 For his second issue, Rouse challenges the trial court 5 admission of the testimony of the

People 5 rebuttal expert, Dr McCormick McPearce T0 the extent that Rouse seeks to argue that

Dr McCormick McPearce was not qualified as an expert in the subject matter to which she

testified, this argument is waived by an explicit concession of her qualifications at the trial (J A

at 633 (“I 11 accept her as an expert ’)) The Court will address the reliability of Dr McCormick

McPearce’s testimony and the fit, as these issues, as to admissibility of this testimony, have not

been waived The trial court 8 evidentiary determinations, including the admission of expert

testimony, are reviewed for abuse of discretion People v Todmann, 53 V I 431, 436 (V I 2010),

Mulley v People, 51 V I 404, 413 (V I 2009) Generally, a court abuses its discretion if it acts

arbitrarily or irrationally Alexander v People, 60 VI 486, 494 (V I 2014) (citing Francis v

People, 56 V I 370, 379 (V I 2012)) The trial court acts arbitrarily 0r irrationally if its ruling is

founded upon ‘ a clearly erroneous finding of fact, an errant conclusion of law[,] or an improper

application of law to fact’” or if “its actions were ‘clearly contrary to reason and not justified by

the evidence Appleton v Harrzgan, 61 V I 262 268 (V I 2014) (quoting Stevens v People 55

Page 15 of 45

V I 550, 556 (V I 201 1)) ' Furthermore, a court cannot exercise its discretion by choosing to

ignore a claim or issue that was properly before it Bryan v Fawkes, 61 V I 416, 476 (V I 2014)

(citing Garcza v Garcxa, 59 V I 758, 771 (V I 2013)) “It is axiomatic that, when a court with

discretion fails to balance the pertinent factors required for it to properly exercise that discretion,

such failure constitutes an abuse of discretion Rivera Mercado v Gen Motors Corp , 51 V I

307, 330 (V I 2009) (Swan, J , concurring) see Beachszde Assocs LLC v FIshman, 53 V I 700,

719 (V I 2010)

1|25 For his next issue, Rouse argues that the trial court abused its discretion when it refused to

grant a mistrial due to the prosecution’s improper remarks during opening and closing statements

and at other times during the trial The denial of such a motion is likewise reviewed for abuse of

discretion John v People 63 V I 629 644 45 (V I 2015)

1126 As his last issue, Rouse challenges the jury instruction stating that, once he introduced

some evidence suggesting his actions were a consequence of a mental defect, the People bore the

burden of proving Rouse’s sanity beyond a reasonable doubt An asserted error in jury instructions

is reviewed for abuse of discretion, if fairly presented at the trial level Ostalaza v People, 58 V I

531 556 (V I 2013) Jackson Flavius v People 57 V I 716 721 (V I 2012) Jury instructions

must fairly and adequately inform the jury of the legal standard by which guilt is to be determined

and must contain accurate statements and explanations of any applicable legal principles A

Wllllams, 55 V I at 729 Jury instructions must also conform to the charges in the information

and be consistent with the evidence presented Id (citing United States v Martin, 528 F 3d 746,

'See also Smithv Gov (0fthe V1 67 V1 797 803 04 (VI 2017) 3111sz People 57 VI 455 461 62 (V1 2012) (quoting Perms v Queen Charlotte Hotel Com 56 V I 548 554 (VI 2012)) Pelle v CeIIam Underwritels a! LloydsofLondon 66 VI 315 318 (VI 2017)’ Gorev TIIden 50 VI 233 236 (V1 2008)

Page 16 of 45

752 (10th Cir 2008)) Importantly, even when a defendant requests Specific language for a given

jury instruction, the trial court still retains the discretion to determine the language to be used The

trial court’s obligation is to correctly state the law and assure that the instruction conveys the

required meaning, not to use specific language requested by either side Williams, 55 V I at 732

1127 Jury instructions must be viewed in their entirety, and the inquiry is whether the

instructions on the whole were misleading or inadequate to guide the jury Prince, 57 V I at 409

Jury instructions are not to be invalidated unless the instruction substantially and adversely

impacted the constitutional rights of the defendant and affected the outcome of the trial Id at 405

Even when there is a contemporaneous objection to a jury instruction and even if it omits a required

element of an offense or defense, it will not justify reversal where the error has not impacted the

defendant’s rights and is harmless beyond a reasonable doubt 1d An error in jury instructions

will only result in reversal of a conviction where (1) the error was fundamental and highly

prejudicial due to its failure to provide the jury with adequate guidance, and (2) this Court’s refusal

to consider the error would result in a miscarriage of justice Williams, 55 VI at 727 (citing

Farrell v People 54 VI 600 618 19 (2011)) Even though a defendant is entitled to an

instruction where the factual record contains evidence that is sufficient for a reasonable jury to

find in the defendant’s favor on an issue, element, or defense, Prince, 57 V I at 412, and this Court

typically reviews a decision to include or exclude a jury instruction for abuse of discretion,

Williams 55 V I at 727 (citing Phillips v People 51 V I 258 269 (V I 2009)) when a defendant

fails to object to or fails to request a jury instruction, the issue is subject to Plain Error Review 2

2 See Comelms v Bank of N S , 67 V1 806, 816 n 2 (V1 2017) (explaining what Plain Error and “Plain Error Review ’ are)

Rouse v People 2024 V14 8 Ct Crim No 2017 0051 Opinion ofthe Court Page 17 of45

Id (citing Franczs v People 52 V I 381 390 (V I 2009) UnitedStarem Petersen 622 F 3d 195

202 (3d Cir 2010))

B Jurisdiction

1|28 ‘ Before this Court can decide the merits of [this] appeal, we must determine if we have

jurisdiction Brown v People, 49 V 1 378, 379 (V I 2008), First Am Dev Group Carib LLC,

55 V I 594, 601 (V I 2011) (‘ Prior to considering the merits of an appeal, this Court must first

determine if it has appellate [subject matter] jurisdiction over the matter ” (citing V I Gov I Hosp

& Health Faczlzlles Corp 1 Gov t of the V I 50 V 1 276 279 (V I 2008)) We have appellate

subject matter jurisdiction over “all appeals from the decisions of the courts of the Virgin Islands

established by local law[] ACT T0 REVISE THE ORGANIC ACT OF THE VIRGIN ISLANDS OF THE

UNITED STATES Pub L 517 68 Stat 497 497 (1954) (as amended) (48 U S C § 16l3a(d))

$29 Pursuant to this grant of authority from Congress the Legislature of the Virgin Islands has

established this Court and granted it jurisdiction over all appeals arising from a “Final Order of

the Superior Court 4 V I C § 32(a) see 4 V I C {5 33(a) ( Appealable judgments and orders

shall be available only upon entry of final judgment in the Superior Court ”), Enrzetto v Rogers

T014 nsend & Thomas PC 49 V I 311 315 (V I 2007) (quoting 4 V I C § 32(a))‘ Toussamr v

Stewart, 67 V I 931, 939 40 (V I 2017) (discussing what constitutes a ‘ Final Order ) 3 ‘A [Final

Order] is a judgment from a court which ends the litigation on the merits, leaving nothing else for

the court to do except execute the judgment Toussamt 67 VI at 939 (quoting Ramirez v

People, 56 V I 409, 416 (V I 2012) (citations omitted» In a criminal matter, the writtenjudgment

3 See genelally Penn v Mosley, 67 v1 879 391 n 4 (VI 2017) (discussing the distinctions between a judgment, order, and decree), MIIIeI v Salenson 67 V I 861 871 72 (V I 2017) (discussing the distinctions between ajudgment 33(113dSeree)‘ Clam? v Chapu! 68 VI 682 688 (VI 2016) (quoting 1n 1e Estate of GeOIge 59 V1 913 919 (VI

Rouse v People 2024 v14 S Ct Crim No 2017 0051 Opinion ofthe Court Page 18 of 45

embodying the adjudication of guilt and sentence imposed constitutes the Final Order Perczval v

People 62 V I 477 483 (V I 2015) (citing Cascen v People 60 V I 392 400 (V I 2014)‘

Williams v People 58 VI 341 345 (VI 2013))

1|30 Rouse filed his notice of appeal with this Court on May 23, 20] 7 and on June 2, 2017 the

appeal was held in abeyance pending entry of the Final Order in this matter (1 A at 28 ) The

judgment and commitment was entered on October 6, 2017, following a sentencing hearing on

August 25, 2017 (J A at 3 ) In Rouse 5 notice of appeal, he states that he is challenging the May

16, 2017 judgment and order and the conviction dated November 6, 2015 ” Rouse having

prematurely filed his notice ofappeal months prior to the Superior Court’s entry of the Final Order,

V I R APP P 5(a)(9), and this Court having held the appeal in abeyance, appellate jurisdiction

vested in this Court upon entry of the Final Order on October 6 20l7 VI R App P 5(a)(l)

Alleni HOVENSA L L C 59 V I 430 434 (V I 2013) see V I R APP P 5(a)(4)

C Sufficiency of the Evidence

‘13] Because ( l) the notice of intent to present an insanity defense filed with the trial court prior

to trial was not “evidence” of insanity under the facts of this case and Rouse’s sanity did not

become an element of the crime until Rouse’s expert testified as to Rouse s “temporary insanity,

and (2) there was testimony that Rouse demonstrated cognition and awareness of his actions and

that Rouse’s expert’s diagnosis was invalid indicating that Rouse was sane at the time of the

criminal acts for which he was convicted there was sufficient evidence to support a rational

finder of fact concluding that Rouse was sane when he shot Vida “ As Rouse frames the issue, we

4 Rouse does not argue that there was insufficient evidence to prove beyond a reasonable doubt any of the non mens rea elements of Attempted First Degree Murder, 14 V I C §§ 921, 922(a)(l) Unauthorized Possession of a Firearm During a Crime of Violence, 14 V I C § 2253(a), or Third Degree Assault as an act of Domestic Violence, 14 V l C §297(2) 16 V I C §91(b)(l) therefore he has waived these arguments V I R APP P 24(m)( Issues that were (1)

Page 19 of 45

must decide whether there was sufficient evidence of Rouse 3 mental competence sanity to

have allowed a rational fact finder, upon consideration of everyday experiences and taking the

evidence in the light most favorable to the jury verdict, to have found, beyond a reasonable doubt,

that Rouse was not acting in consequence of a mental illness when he committed the criminal acts

for which he was convicted Rouse presents two attacks on the prosecution 5 case in chief in this

regard

1132 First, he asserts that the filing of a notice of intent to present an insanity defense prior to

trial was adequate to rebut the presumption of sanity and to require the prosecution to prove

Rouse s sanity in its case in chief This Court’s precedent holds that any procedural notice of

intent to assert an insanity defense filed prior to trial is designed to give the prosecution “time to

prepare to meet the issue, NIbbS v People, 52 V I 276, 286 (V I 2009), and nothing in the rule

or its history indicates that its purpose is to achieve anything other than orderly trial management

and “maximum ‘truth gathering ’” Id at 288 We have never announced that the mere filing of a

notice of intent to assert an insanity defense constitutes evidence that rebuts the presumption of

sanity and places the burden on the prosecution to prove the defendant’s sanity in its case in chief 5

not raised or objected to before the Superior Court, (2) raised or objected to but not briefed, on (3) are only adverted to in a perfunctory manner or unsupported by argument and citation to legal authority, are deemed waived ") However, cognizant that insufficient evidence is always Plain Error, the Court, in our analysis of the issues properly presented, has not identified any obvious deficiency as to any individual element of the crimes of which Rouse was convicted, and we see no justification for sua sponte invoking Plain Error Review See Camellia, 67 V I at 816 17, cf Gov (ofthe V I v Fledencks 578 F 2d 927 930 (3d Cir 1978) ( Both parties to this appeal seem to have accepted the trial judge 3 use of szens[, 290 F 2d 75], 774 (3d Cir 1961),] language no objection was raised at trial, and neither party has briefed or argued this issue on appeal In light of these circumstances, we do not believe that the charge given to the jury contained a fundamental error which this court should raise sua sponte ’ (citing FED R CRIM P 30' Gov Ioflhe V] v NavaI/o 513 F 2d 11 16(3d Cir 1975)) 5 See genetally BLACK 5 L DlCT at 594 (‘Evidence is any matter of fact which is furnished to a legal tribunal, otherwise than by reasoning or a reference to what is noticed without proof, as the basis of inference in ascertaining some other matter of fact ‘ (quoting James B Thayer, Plesumpnons and the Law ofEwdence, 3 HARV L REV 14], 142 (1889)), Id ( Evidence, broadly defined, is the means from which an inference may logically be drawn as to the existence of a fact; that which makes evident or plain Evidence is the demonstration of a fact, it signifies that which demonstrates, makes clear, or ascenains the truth of the very fact or point in issue, either on the one side or on the

Page 20 of 45

Indeed, the notice is not evidence, something (including testimony, documents, and tangible

objects) that tends to prove or disprove the existence of an alleged fact ’ or the collective mass of

things, esp testimony and exhibits, presented before a tribunal in a given dispute ” BLACK’S LAW

DICTIONARY 595 (8th ed 2004) cf V I R EVID 401 (declaring evidence to be relevant if it has

any tendency to make a fact more or less probable” and that fact is of consequence in detennining

the action’) Furthermore, the instructions to the jury made clear what in the trial was, and was

not, evidence, clearly indicating that statements and filings by a party’s attorney are not evidence

Even more to the point, this Court has rejected the rule that an attomey’s unswom representations

to the court constitute evidence See Hemy v Dennery, 55 V I 986, 994 (V 1 201 l) ( [I]n court

statements by attorneys acting as advocates are not evidence ’ (citations omitted» Therefore,

Rouse’s argument that the evidence of his sanity was insufficient because the Government failed

to prove this fact beyond a reasonable doubt in its case in chief is facetious the notice of insanity

defense was not evidence It could not, and did not, affect the burdens of production and persuasion

borne by the litigants

T33 Rouse’s second argument as to the asserted insufficiency of the evidence in the

prosecution’s case in chief is that, even if the pre trial filing of the notice of intent to assert an

insanity defense was not adequate to rebut the presumption of sanity codified in section 14 of title

14 of the Virgin Islands Code, cross examination of the witnesses called in the prosecution’s case

in chief presented “some evidence” of Rouse s insanity, thus rebutting the presumption of sanity

and requiring the prosecution to establish Rouse’s sanity beyond a reasonable doubt in its case in

other In the legal acceptation, the term ‘evidence includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved Evidence’ has also been defined to mean any species of proof legally presented at the trial of an issue by the act of the parties and through the medium of witnesses, records, documents concrete object, and the like (quoting 31A C J S Ewdence § 3 at 67 68 (1996))

Page 21 of 45

chief 6 (App Br at 1 1 ( Despite the lay witness testimony proximate to the time of the shooting

and the medical records that supported Defendant s theory of mental illness, the People rested its

case, without presenting any evidence of sanity ”))

I Sufficiency of the Evidence Rouse’s Sanity as Supported by the Evidence in the Prosecution’s Case in Chief

1134 The Legislature of the Virgin Islands has declared that all persons are capable of

committing crimes or offenses ” 14 V I C § 14 “Crime and “offense” are defined to be the

same thing, “an act committed or omitted in violation of a law of the Virgin Islands and punishable

by (1) imprisonment, or (2) fine; or (3) removal from office, or (4) disqualification to h01d and

enjoy any office of honor, trust, or profit ” 14 V l C § 1 ’ A “person,” as used in this provision

of the Virgin Islands Code means a human being szles 66 V I at 592 (citing COMPACT AM

DICTIONARY A CONCISE DICTIONARY OF AM ENGLISH 920 (1998))

1|35 Taking the plain language of section 14 of title 14, it is clear that the Legislature has

codified the common law presumption that all natura1 persons are presumed to be in control of

6 See Dowuey 396 F Supp at 355 ( [t is well recognized that either a jury or a court sitting without a jury need not determine the issue of sanity in a criminal case from the opinion of experts alone, but rather should decide the case on all the evidence adduced at trial (citing United States v Ross 468 F 2d 1213 1215 (9th Cir 1972)) of Davis v UnitedSIaIes, 160 U S 469, 377 (1895)( Whenever, by the testimony the question of insanity is raised, then the fact of sanity, as any other essential fact in the case, must be established to the satisfaction of the july beyond a reasonable doubt )

This provision was based on section 3 of chapter 1 of Title IV of the 1921 Codes which provided as follows

Section 3 A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it and to which is annexed, upon conviction, any of the following punishments First Imprisonment, Second Finc; Third Removal from office; or, Fourth Disqualification to hold and enjoy any office of honor, trust or profit

Code1921 Title IV Ch 1 §3

Page 22 of 45

their actions and have the mental ability to understand what is right and wrong they are presumed

to be sane 14 V I C § 14; NIbbS, 52 V I at 284 (‘ Although a defendant is ordinarily presumed

sane, once some evidence of insanity is introduced, the prosecution has the burden of proving

sanity beyond a reasonable doubt (quoting Gov I ofthe V I v Webbe 821 F 2d 187 189 (3d Cir

1987) and citing G01 I offhe V] v Knight 989 F 2d 619 626 (3d Cir 1993) Gov I ofthe V] i

Bella” 495 F 2d 1393 1397 (3d Cir 1974)) 8

1B6 In a criminal prosecution, under the reasonable doubt standard, a criminal defendant “is

entitled to an acquittal of the specific crime charged if, upon all the evidence, there is a reasonable

doubt whether he was capable in law of committing the crime ’ Dams v United States, 160 U S

469 484 (1895) 9 Gov tofthe V] v Fredertcks 578 F 2d 927 929 (3d Cir 1978) ( Under Virgin

’3 See also Webbe 821 F 2d at 189 (citing Dams 160 U S 469‘ United Slates v Lu! 420 F 2d 414 (3d Cir 1970)) Gov I of the V I v Rodugue 423 F 2d 9 12 (3d Cir 1970) ( A statute is simply a fresh particle of legal matter dropped into the previously existing ocean of law It is subject to all the old attractions and the old winds and lunar influences, piecisely as were the several particles ofthe ocean before Or, to speak without metaphor, the new statutory rule is to be limited, extended, and governed by the same common law principles, and to the same extent, as were common law rules themselves before the statute was passed ” (citation omitted); see generally Commonwealth v Koslka 350 N E 2d 444 452 (Mass 1976) ( That the prosecution may rely on the presumption [of sanity] in the absence of any evidence tending to show insanity is the rule in all jurisdictions [A]ll jurisdictions consider insanity to be a defense and apply the ‘presumption of sanity in a manner that makes it conclusive on the issue of sanity until some evidence tending to show insanity is adduced " (citations omitted»

9 The holding of Dams was explained by the Supreme Court, stating, After Dams, if a federal defendant introduced sufficient evidence to raise a reasonable doubt as to his sanity, it was sufficient to create a question for the jury on which the Government bore the ultimate burden of persuasion beyond a reasonable doubt Dixon v United States, 548 U S 1 1 l 12 (2006) (oiling Hall v Umted States 295 F 2d 26 28 (4th Cir 1961)' Holloway v United States 148 F 2d 665 666 (DC Cir 1945) Postv UnitedSlales 135 F I 10 (5th Cir 1905)) This is reflective of

the humane principle, existing at common law and recognized in all the cases tending to support the charge below, that to make a complete crime cognizable by human laws, there must be both a will and an act’; as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no cnime at all So that, to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act, consequent upon such vicious will

Davis, 160 U S at 484 (citations omitted), see also Monsselte, 342 U S at 250 ( The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal

Rouse v People 2024 VI 4 S Ct Crim No 2017 0051 Opinion of the Count Page 23 of 45

Islands law, ‘persons who are mentally ill and who committed the act charged against them in

consequence of such mental illness’ are not considered capable of committing a crime (quoting

14 V I C § l4(4))) However, in deciding if there is a reasonable doubt as to a defendant 5 capacity

to fomt the requisite criminal intent, i e , mens tea, there is a “presumption which the law, justified

by the general experience of mankind, as well as by considerations of public safety, that indulges

in favor of sanity Davis, 160 U S at 486

1|37 The sanity presumption relieves the prosecution of the burden “to include as an element of

every criminal charge an allegation that the defendant had such a capacity ” Clark v Arizona, 548

U S 735, 766 67 (2006) Therefore, in practical operation, the “Some Evidence Rule” allows the

prosecution to avoid proving the defendant’s sanity beyond a reasonable doubt until there is

admitted in the record “evidence to the extent necessary to raise a doubt, which upon consideration

of the entire evidence was a reasonable one, as to the defendant 3 sanity Gov t of the VI v

Smith 278 F 2d 169 219 (3d Cir 1960) ( The defendant [need] only produce sufficient

evidence to raise a reasonable doubt in the minds of the jury ” (quoting People v Hardy, 198 P 2d

individual to choose between good and evil ) Rodugue2, 423 F 2d at [1 (“It early became established at common law that an essential ingredient of a crime was the existence of a guilty mind, a mens rea, as well as the act itself, actus tea (citing sources in footnote 4)) While Davis was subsequently overruled by statute, Id at 12 (and replaced with a statute requiring the defendant to prove insanity by clear and convincing evidence), the rule articulated therein is the rule adopted in this Territory See NlbbS, 52 V I at 291 (“[U]nder Virgin Islands law, once some evidence of insanity is introduced, the People have the burden of proving beyond a reasonable doubt that the offense was not the consequence of a mental illness (quoting Webbe 82] F 2d at 189) see also Malheson v United States, 227 U S 540 543 (1912) (noting that a jury could not convict a defendant if they had a reasonable doubt as to [the defendant 3] sanity (citing DaVIS 160 U S 469)) Bella”, 495 F 2d at 1395 96 ( Strictly speaking the burden of proof as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime [or punishment thereof] Giving to the prosecution, where the defense is insanity, the benefit in the way of proof of the presumption in favor of sanity, the vital question from the time a plea of not guilty is entered until the return ofthe verdict, is whether upon all the evidence, by whatever side adduced guilt is established beyond a reasonable doubt If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond a reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offense charged (quoting Davis 160 U S at 486 88))

Page 24 of 45

865, 872 (Cal 1948)) Whether that doubt, in light of the evidence, was a reasonable one [is]

for the trier of facts to determine ’ Smith, 278 F 2d at 219

1|38 The general rule is that properly qualified lay witnesses may testify as to the sanity of

an accused and that such testimony is sufficient to satisfy the burden of the prosecution even

though there is contrary expert opinion Bella", 495 F 2d at 1397 (emphasis added) (citing Dusky

1 United States 295 F 2d 743 (8th Cir 1961) (Blackmun J )) Fredencks 578 F 2d at 932 ( The

decision of whether a defendant is affected by a mental disease or defect rests with the jury 5

evaluation of all lay and medical evidence in the case ” (citations omitted» In order to be properly

qualified, the lay witness opinion must “be rationally based on the witness’ perception [supported

by] firsthand knowledge of the factual predicates that form the basis for the opinion ’ Knight, 989

F 2d at 629 (citing FED R EVID 701(a) (for a lay witness, testimony in the form of an opinion is

limited to one that is (a) rationally based on witness’ perception”)) '0

1|39 Further, “[i]nsanity ‘ assumes as many and various forms as there are shades of

difference in the human character It is, as has been well said, ‘a condition which impresses itself

as an aggregate on the observer,’ and the opinion of one, personally cognizant of the minute

circumstances making up that aggregate, and which are detailed in connection with such opinion,

is, in its essence, only fact ‘at short hand ”’ Connecticut Mu! Life Ins Co v Lathrop, 111 U S

612, 620 (1884) ” Therefore, “if circumstances can be presented with greater clarity by stating an

'0 Cf V 1 R EVID 701(a)' see genelally To! 319 U S at 467 ( The jury is permitted to infer from one fact the existence of another essential to guilt, if reason and experience suppon the inference (citing Wilson v United States, 162 U S 613 6190896)) '1 See also Lathrop 111 U S at 620 n 1 (citing Clary v Clary 24 N C 78 83 (N C 1841) Dunham s Appeal 27 Conn 193 (Conn 1858) Glanlv Thompson 4Conn 203 (Conn 1822) Hardyv Men!!! 56N H 227 (N H 1875) Boardman v Boaldman 47 N H 120 (N H 1875) State v Pike 49 N H 399 (N H 1870) Slate v Archer 54 N H 468 (N H 1874)‘ Hathaway 3 Adm I v Nat Life Ins Co 48 Vt 350 (Vt 1875)‘ MOIse v Crawfwd l7 Vt 499 (VI 1845) Clark v State 12 Ohio 483 (Ohio 1843)‘ Gibson v Gibson 17 Tenn 329 (Tenn 1836) Potts v House 6 Ga 324 (Ga 1849) Vanauken sCase 2 Stockt Ch 190 Brookev Townshend 7 Gill 10(Md Ct App 1848) DeWm

Page 25 of 45

opinion, then that opinion is helpful to the trier of fact ” Knight, 989 F 2d at 630 (citing Untied

States v Skeet 665 F 2d 983 985 (9th Cir 1982)) '2 1|40 Reviewing the testimony, the following facts appear to support Rouse s argument Vida

testified that, after he had shot her, Rouse was acting erratically or hysterically and ‘cranked” the

gun in an attempt to shoot Vida a second time Officer Woodley Blyden testified that, upon her

arrival at the scene of the shooting, she observed Rouse ‘ racking the gun and alternating between

pointing the gun in his mouth and pointing it to the side of his head; as the officer described it, ‘ he

just had to shoot her and then he was going to kill himself She also stated that Rouse didn t

seem to be all there,” but her distinct impression was that Rouse was depressed Officer Serrano

confirmed these actions by Rouse Sergeant Krigger also continued these actions by Rouse and

likewise believed Rouse intended to kill himself Sergeant Krigger also testified that, at times,

Rouse spoke in partial sentences and repeated himself, but the sergeant maintained that Rouse was

“calm He was clear He was fluid ’ The sergeant continued a second time that Rouse appeared

to be thinking clearly However, when pressed, Krigger testified that Rouse appeared to be

somebody who had a lot on his mind” and was not thinking clearly”; therefore, Krigger did his

job to keep [Rouse] focused

v Bally 17 N Y 342 (1858)) Hewlett v Wood 55 N Y 634 (N Y 1873)’ Clapp v Fullelton 34 N Y 190 (N Y 1866) Rutheifordv MOHIS 77 III 397 (111 1875) Duffieldv Morlls Exr 2 Del 384 (Del 1838) Wilkinson v Pearson 23 Pa 119 (Penn 1854) Ptdock v Potter 68 Pa 342 (Penn 1871) Doe v Reagan 5 Blackf 218 (Ind 1839) Dove v State 50 Tenn 348 (Tenn 1871) Butlet v St Lows Life Ins Co 45 Iowa 93 (Iowa 1876) People v Sanfmd 43 Cal 29 (Cal 1872) Statev KImgeI 46 M0 229 (Mo 1870) Holcombv State 41 Tex 125 (Tex 1874) McClackeyv State 5 Tex App 320 (TX Ct App 1878). Nononv Mame 40 Tenn 480 482 (Tenn 1859) Powell v State 25 Ala 28 (Ala 1854) Mayv Bladlee, 127 Mass 414 (Mass 1879) Commomvealthv Smillvant 117 Mass 111 (Mass 1875)

'2 Cf V I R EVID 701(b) (For a lay witness, testimony in the form of an opinion is limited to one that is (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue ’)

Page 26 of 45

1141 In contrast to this evidence, Officer Woodley Blyden testified that Rouse ‘ just seemed

upset or depressed ” Sergeant Krigger, in addition to maintaining that Rouse appeared to be

thinking clearly, testified that Rouse was upset because Rouse believed Vida was going to tell him

one of their children was not his, after 24 years, and that he had just returned to the island and was

shocked Vida still intended to divorce him

1142 The evidence was in equilibrium as to Rouse s sanity at this juncture, and when the

evidence presents two possible versions of the facts, a finding as to one is not irrational or clearly

erroneous See Nicholas v People 56 V I 718 741 42 (V I 2012) '3 It is possible that the jury

could have concluded, based on the testimony of Officer Woodley Blyden and Sergeant Krigger,

that Rouse was suicidal and depressed and not thinking clearly, and this could have raised a

question as to a defendant’s sanity However, the testimony also justified a finding of fact based

on testimony that Rouse engaged in cognitive processes in deciding not to shoot his daughter and

that Rouse expressed anger that Vida was going to leave him after such a long marriage that

Rouse’s actions were motivated by anger and jealousy that his wife was utterly unhappy in their

marriage and was, in fact, going to end the marriage that day '4 On this record, the government

had, without any resort to expert testimony, sustained its burden with considerable lay witness

testimony, at least sufficient to withstand a Rule 29(a) motion for judgment of acquittal ” Downey,

396 F Supp at 353

'3 See also Penn, 67 V I at 893 ( ‘[T]he Appellate Division considered Penn’s alternative testimony and recognized that the magistrate chose one of two versions of the competing testimonies ”), State v Bay, 722 P 2d 280, 284 (Ariz 1986) (“This is so because a jury need not believe or accept as true the testimony of experts over lay counterparts ’) '4 E g , Webbe, 821 F 2d at 190 91 ( ‘The district court s conclusion that [the defendant] was not acting in consequence of his mental illness is buttressed by its further findings that his purposeful behavior after the killing suggests that he was not delusional at this time The court further supported its conclusions by noting that there was an adequate explanation for [the defendant 5] conduct separate and apart from his mental illness he might have killed his wife because of feelings ofjealousy and rejection ’), Gov I ofthe V I v mee 391 F Supp 987, 990 (D V I 1975)

Page 27 of 45

2 Sufficiency of the Evidence Rouse’s Sanity as Supported by the Totality of the Evidence Presented at Trial

1143 The Court next considers whether the People presented adequate evidence that either Rouse

was not suffering from a mental illness or that Rouse’s actions were not a product of that mental

illness ng v People 67 V I 903 909 (V I 2017) ( [T]he People must prove beyond a

reasonable doubt that the defendant either did not suffer from a mental illness, or was not acting

as a result of his mental illness when he committed the charged offense, i e , the People must prove

beyond a reasonable doubt that the defendant was sane when he or she committed the offense ”

(citations omitted)) '5 Rouse vociferously asserts that the failure of the prosecution’s expert to

evaluate Rouse undermines the probative value of that expert testimony such that there was

insufficient evidence establishing Rouse s sanity beyond a reasonable doubt

1144 To reiterate, section 14 of title 14 is the Legislature’s statutory codification of the common

law presumption of sanity and dictates that, in a criminal case, the presumption of the defendant’s

sanity remains unrebutted until there is record evidence indicating that the alleged actions were

taken as a consequence of mental illness 14 V I C § 14(4); NIbbS, 52, V I at 291 n 9 '6 However,

in addition to establishing sanity through the testimony of lay witnesses whose observations of

the defendant are proximate to the homicide, the Government may rebut the opinion evidence

introduced by the defense ” Downey, 396 F Supp at 355 (citing Mzms v United States, 375 F 2d

135 (5th Cir 1967))

'5 See NlbbS, 52 V I at 292 (“Under Virgin Islands law, once some evidence of insanity is introduced, the People have ‘the burden of proving beyond a reasonable doubt that the offense was not the consequence of a mental illness ’ (quoting Webbe 821 F 2d at 189)) '6 See also Cr owe, 391 F Supp at 990 ( The Virgin Islands Code requires not only that the defendant be mentally ill, but additionally that there be a sufficient nexus, or causative link, between the mental disease and the act in question )

Page 28 of 45

1|45 Of Rouse’s five character witnesses who had all known him for twenty years or longer,

none testified that Rouse had a history of mental illness, and St Claire David specifically testified

that he had never known Rouse to have any mental illness Similarly, Vida testified that, in their

34 years of marriage, she had never known Rouse to suffer from a mental illness '7 Additionally,

the shooting occurred on the day on which Vida and Rouse were scheduled to attend court and

finalize their divorce Vida further testified that, though she and Rouse had conflicting viewpoints

on the various topics they had discussed the morning of the shooting, the argument was not a real

argument” and would not have provoked Rouse into anger '8 As to Rouse s testimony, he admitted

to having a detailed memory of the events leading to the shooting

1|46 Sergeant Krigger s testimony confirmed that Rouse had shot himself after Vida and her

daughters fled the bedroom for safety The police arrived while Rouse was sitting on the bed

attempting to load ammunition in the chamber of the fireann Throughout the 30 minute ordeal,

Rouse was calm, clear, and fluid He maintained a conversation with the officer, who in turn,

when specifically questioned whether Rouse in any way appeared incoherent, responded that

Rouse’s mental condition was clear ” Indeed, in response to defense counsel’s question “Isn’t it

true that he did not seem to be a person who was all there,” the officer responded that Rouse

appeared to be somebody who had a lot on his mind ” During this interaction, the officer observed

'7 Cf Downey, 396 F Supp at 355 56 (‘Other than a history of alcoholism, there is no indication in the record that the defendant had ever suffer any mental illness or disease prior to the incident for which he stands charged )

‘3 Cf. Downey, 396 F Supp at 356 (“An important factor in my unwillingness to accept the expert opinions is that [his wife’s] infidelity and the concomitant affront to defendant’s masculinity (already damaged by business failings), to which [defendant 5 expert] attribute the actual triggering of the insanity also supply a motive for the killing )

Page 29 of 45

Rouse point the firearm at himself twice and at Sergeant Krigger twice, but he did not pull the

trigger, indicating four separate instances of cognition '9

1147 It is true that Dr Lu linked the shooting and stated that the shooting appears to be a

consequence of his frustration, anger and his pent up feeling and he slipped into that kind of

dissociative state of mind and as a result of that he decided to kill himself and kill her to avoid

from the divorce proceeding ’ However, Dr McCormick McPearce testified that Dr Lu 5

diagnosis of a dissociative state” was not a valid medical diagnosis Additionally, she testified

that the experiences upon which Dr Lu based his conclusion were not dissociative experiences

Furthermore, Rouse lacked any of the historical indicators of suffering from dissociative states

triggered by stress She explained that people who experience dissociative states will typically

have an ongoing course of these episodes in their past during high stress times Likewise, people

who experience dissociative states generally have a history of severe childhood trauma, sexual or

otherwise

1148 Additionally, at the time of the shooting, Rouse displayed moments of cognition that would

not have occurred when a person is in a dissociative state Dr McCormick McPearce gave as an

example the fact that Rouse pointed the gun at this daughter but decided not to shoot Similarly,

Rouse pointed the gun at the officer twice and chose not to shoot Rouse 5 choice to shoot himself

was also indicative of cognition and experiencing remorse, which would not occur in a person who

'9 Webbe, 82] F 2d at 190 91 ( The district court s conclusion that [the defendant] was not acting in consequence of his mental illness is buttressed by its further findings that his purposeful behavior after the killing suggests that he was not delusional at this time The court further supported its conclusions by noting that there was an adequate explanation fo: [the defendant s] conduct separate and apart from his mental illness he might have killed his wife because of feelings of jealousy and [ejection ) C/owe, 391 F Supp at 990 ( [T]he cognitive process and conduct involved in defendant s decisions first to avenge the death of Dr King by slaying a white man, then discerning that the Spanish individual he confronted was not a suitable victim, and ultimately finding a victim who did conform to his retaliatory plan, all suggested ’ that the defendant 5 actions were not a result of psychosis )

Page 30 of 45

was in a dissociative state The People’s expert further explained that Dr Lu 3 diagnosis was

problematic because he had obtained Rouse 5 version of events months after the shooting Her

ultimate conclusion was that Dr Lu 3 diagnosis was neither valid nor reliable 20

1149 Certainly the testimony of Vida, Shenovia, and Krigger paints a picture of a man who was

angry and upset and shot his wife, who intended to divorce him that day after decades of marriage

Furthermore, as much as defense counsel emphasized Rouse 3 lack of coherence at the time of

arrest, the officers who witnessed Rouse at that time testified that Rouse was clear and coherent

and specifically answered in the negative to defense counsel 3 leading questions that were

calculated to elicit their perceptions of Rouse’s mental state as being clouded Beyond the lay

testimony showing that Rouse was coherent and logical, even if upset, at the time of shooting, Dr

Lu 3 own testimony presented grounds for doubt While Rouse maintained that he did not have

any feelings about the divorce, Dr Lu emphasized that Rouse was upset by this Further, Dr Lu

stated that he believed 50% of Rouse 3 problems were a result of long term alcohol abuse

Considering the foregoing, the jury had a factual basis from which it could readily have rationally

7" See Kostka, 350 N E 2d at 457 ( The jury are the sole judges of the credibility and weight of all the evidence on the issue of sanity The jury are not compelled to believe any such testimony or opinions and the court cannot order them to do so by directing them to return verdicts of not guilty by reason of insanity The law should not and does not, give the opinions of experts on either side of the issue the benefit of conclusiveness, even if there are no contrary opinions introduced at trial (quoting Smuh 258 N E 2d at 19)) cf Dowmy 396 F Supp at 355 ( ‘ Expert opinion evidence may be rebutted by showing the incorrectness or inadequacy of the factual assumptions on which the opinion is based the reasoning by which he progresses from his material to his conclusion, the interest or bias of the expert, inconsistencies or contradictions in his testimony as to the material matters, material variations between the experts themselves, and the defendant 3 lack of cooperation with the expert Also in cases involving opinions of medical experts, the probative force of that charactei of testimony is lessened when it is predicated on subjective symptoms, or where it is based on narrative statements to the expert as to past events not in evidence at the trial In some cases, the cross examination of the expert may be such as to justify the trier of facts not being convinced by him (quoting MIms 375 F 2d at 143 44 and citing McCracken 488 F 2d at 410))

Page 3] of 45

and logically concluded, in light of common sense and everyday experience, that Rouse was sane

when he shot Vida 2' Accordingly, the conviction is affirmed

D Alleged Late Disclosure of the Prosecution’s Expert Witness

1150 Because the Superior Court’s reasons justifying the allowance of the late disclosure of the

People 5 expert report were adequate and no showing of prejudice was made, the trial court’s

denial of Rouse’s motion to exclude the testimony of the People’s rebuttal expert was not an abuse

of discretion Similarly, because the testimony of the People 5 rebuttal expert was based upon

reliable methodology and facts and the testimony “fit,” 1 e , was relevant, to the facts and issues to

be decided in this matter, the trial court did not abuse its discretion when it allowed Dr

McCormick McPearce’s testimony as the People 3 rebuttal expert The rule announced in Dauber!

v Merrell Dow Pharms Inc , 509 U S 579 (1993),22 states that Rule 702 embodies a trilogy of

restrictions on expert testimony qualification, reliability, and fit[, also termed relevance], and

the trial judge, upon proper objection, must evaluate these factors prior to expert testimony being

presented to the jury Hodge v Bluebeard 5 Castle Inc 62 VI 671 693 (VI 2015) (quoting

2' Cf Bella" 495 F 2d at 1397 98 ( Since the experts conceded that if the factual premises were incorrect their opinions would be different[,] there is ample evidence from which reasonable men could have rejected their opinions entirely ) 22 In Antilles School Inc v Lembach, this Court held that, following the adoption of the Federal Rules of Evidence in the Virgin Islands when Act 7161 went into effect, the standard amiculated in Daubelt 509 U S 579, was the standard by which the rules governing the admissibility of expert testimony were to be applied and judged 64 V I 400, 415 (VI 2016) (citing Act No 7161 § 15(b) (Apr 7 2010)) In Edwaldv GEC LLC this Court further acknowledged that both Federal Rule 702 and Virgin Islands Rule 702 enunciate the same standard 67 V 1 at 762 n 6 ( By its own terms, then, Rule 702 and by extension, the Daubelt standard, which was expressly implemented in the current language of Rule 702 is concerned with qualifications, knowledge, methodology, and so forth of the witness who will actually testify at trial ) see S Ct Prom Order 2017 0002 (Apr 3 2017) (adopting Virgin Islands Rules of Evidence) Therefore the Dauberl standard is currently the rule applied in the court of the Virgin Islands when determining whether to admit or exclude expert opinions See generally Todmann, 53 V I at 439 40 (Under former 5 V I C § 771(2) and 777(0, requiring that ‘ all televant evidence is admissible ’ and defining relevant evidence to be “evidence having any tendency in reason to piove any material fact, and Federal Rule of Evidence 702 s “assist the trier of fact” requirement, the standards ale equivalent with the focus of the inquiry being relevance of the proposed testimony )

Page 32 of 45

Bluebeard 3 Castle Inc v Hodge 51 V I 672 693 94 (D V I App Div 2009)) 23 While these

requirements are mandatory, a party waives any objection to any of the three factors if he fails to

timely assert the objection “because ‘the truth seeking function of litigation is best served by

orderly progression, and because Daubert generally contemplates a ‘gatekeeping’ function, not a

gotcha function Edu arc! v GEC LLC 67 V I 745 760 (V I 2017) (quoting Alfred v

Caterpillar Inc 262 F 3d 1083 1087 (10th Cir 2001)) As such this standard is not to be applied

or interpreted in a manner that rewards or encourages “trial by ambush ’ 1d at 761 (citing Alfred,

262 F 3d at 1087))

1|Sl Stating his objection, Rouse’s counsel explained as follows, ‘ Your Honor, the issue is not

whether it’s relevant or critical The issue is whether or not the government complied with this

court 5 orders and complied with the rules, and it is clear that it has not (J A at 187 ) The trial

court rejected Rouse’s objection to the timing of the production of Dr McCormick McPearce 3

curriculum vitae on October 2, 2015, and her report on October 7, 2015, when jury selection was

scheduled to commence on November 3, 2015 Having reviewed the transcript of the pre trial

conference, the court found that the People had provided sufficient explanation for the late

disclosure of the expert report and supporting documents Furthermore, the People had represented

that the documents would be provided within a week of the pre trial conference, and the People

’3 See gene; ally Lembach, 64 V I at 416 ( A trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific knowledge [“Qualification”] that (2) will assist the trier of fact to understand or determine a fact in issue [“Fit/Relevance”] This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid [“Reliability”] and of Whether that reasoning or methodology properly can be applied to the facts in issue [“Fit/Relevance”] (quoting Daubelt, 509 U S at 592 93 (emphasis added») Samuel v United Co; p , 64 V I 512, 523 (V I 2016) ( The superior Court must assess the qualification of the expert the reliability of her methods, and whether her proposed testimony fits the facts of the case in such a way that her testimony will assist the jury in determining an issue of fact " (citing Bluebeald 3 Castle, 62 V I at 693)), Todmarm, 53 V I at 440 ( [T]he assist the trier of fact requirement embodied in FRE 702 but excluded from 5 V I C § 911(2), is equivalent to a requirement of relevance ’)

Page 33 of 45

complied with that deadline Additionally, Rouse failed to object to the disclosure at that time and

did not request a Daubert hearing Considering these facts and the similar subject matter contained

in the report of Rouse s own expert, the court found that there was no undue prejudice and denied

the motion to exclude, stating that Dr McCormick McPearce will be able to testify in whatever

fashion the People decide to use her (J A at 198 )

1|52 On appeal, while dedicating more than three pages of his brief to stating the standard by

which the admissibility of expert testimony is determined, Rouse presented his argument as to the

late disclosure in one short paragraph, the main point of which was that the People retained the

services of Dr Laurie McCormick McPearce, on the eve of trial to critique the expert report of Dr

Lu ” As at the trial level, Rouse failed to articulate how his defense was prejudiced by the timing

of this disclosure Rouse had three weeks during which his expert had the opportunity to review

Dr McCormick McPearce’s report and identify any prejudice as to the timing creating an inability

to evaluate and respond to the opposing report Having failed to file a motion demanding a

Daubert hearing and having failed to establish how his trial strategy would have been different or

how the outcome of the trial was affected Rouse has failed to demonstrate that the trial court acted

arbitrarily or irrationally and abused its discretion when it denied Rouse’s motion to exclude Dr

McCormick McPearce’s testimony on the basis of the timing of its disclosure Rouse has also

presented further arguments as to the Dauberr factors. which we now address 24

1:53 Expert testimony must be based on the expert’s own specialized knowledge Suarez v

Gov t ofthe VI 56 VI 754 761 (VI 2012) cf Jackson Flavms 57 VI at 731 ( [T]estimony

cannot be regarded as lay opinion if it is based on scientific technical, or other specialized

2“ Rouse also presented a conclusory argument that the trial court improperly admitted in evidence Dr McConnick McPearce’s report However, this was excluded and, as such, cannot be a basis for a claim or error (.1 A at 636 )

Page 34 of 45

knowledge (quoting FED R EVID 701 United States v DeMuro 677 F 3d 550 561 (3d Cir

2012))) The requirement that an expert possess ‘ qualifications” mandates that the witness

possess specialized expertise on the subject to which the expert is expected to testify, and this rule

is construed liberally, “relaxing the traditional barriers to ‘opinion testimony ” VJ Waste Mgmt

Auth v Bovom Investments LLC 61 VI 355, 369 n 14 (V I 2014) (citations omitted) When a

witness testifies, if that testimony is an opinion based on matters “within the scope of [the expert’s]

special knowledge, skill, experience, or training,” the witness is testifying as an expert Rater, 51

V I at 366 (holding that former 5 V I C § 91 1(1) (2) incorporated the same standard of Federal

Rule of Evidence 701 precluding a witness being presented as a lay witness when the testimony

will be “within the scope of the special knowledge, skill, experience or training possessed by the

witness ) see also Charlem People 60 V I 823 840 4] (V I 2014) Mulley 51 V I at 418

1|54 For example, a doctor 3 testimony regarding the life threatening nature of an injury is

expert testimony Ritter, 51 V I at 365 (collecting cases) In contrast, the consideration of the age

of a mark or bruise on a person 5 body, whether the bruise or mark is fresh ’—does not require

scientific, technical, or specialized knowledge; “such injuries are common to the average adult,

who during a lifetime will become familiar with bruises and cuts upon the human body ” Jackson

Flavzous 57 VI at 732 (citing J ( 1 State 892 S W 2d 87 88 89 (Tex App 1995) Slate \

Thacker No 04CA18 2005 WL 635044 at *4 (Ohio Ct App Mar 16 2005) (unpublished))

1|55 The purpose for considering reliability,” “whether the reasoning or methodology

underlying the testimony is scientifically valid and whether that reasoning or methodology can

be applied to the facts in issue ’ is to ensure that when experts testify in court they adhere to the

same standards of intellectual rigor that are demanded in their professional work ” Suarez, 56 V I

Page 35 of 45

at (quoting Daubert 509 U S at 592 93' Rosen 1 CIba Gezgy Corp 78 F 3d 316 319 (7th Cir

1996)) An expert’s opinion is reliable if it is based on the ‘methods and procedures of science

rather than on ‘subjective belief or unsupported speculation Samuel v United Corp , 64 V I

512 526 (VI 2016) (quoting Walker v Gordon 46 Fed Appx 69] 694 (3d Cir 2002))

1|56 Assessing reliability requires consideration of factors such as whether the opinion can be

(and has been) tested, whether the theory or technique has been subjected to peer review and

publication, the known or potential rate of error, the existence and maintenance of standards

controlling the operation of the technique, and other similar factors relevant to the particular

subjectmatter Antilles School Inc v Lembach 64VI 400 416m 6 (VI 2016) (citing Daubert

509 U S at 593 94' Kumho Tire Co 1 Carmichael 526 U S 137 147 51 (1999)) Indeed Rule

703 permits an expert to testify to opinions based on facts or data in the case that need not be

admissible for the opinion to be admitted but prohibits any mention of the unadmitted or

inadmissible facts or data, unless the trial judge expressly finds that the ‘probative value in helping

the jury evaluate the opinion substantially outweighs the prejudicial effect ’ Alexander, 60 V I at

506 Stated more succinctly, an expert witness is prohibited from serving as a conduit for the

recitation of inadmissible evidence Id Likewise, an expert witness is precluded from intruding

“into an area consigned exclusively to the jury,” such as a credibility determination Id (citations

omitted)

1|57 Ultimately, in the analysis for relevance, or fit, the trial judge is entitled, when the

circumstances justify it, to conclude that ‘ there is simply too great an analytical gap between the

data and the opinion offered ”’ Suarez, 56 V I at 761 (quoting General Elec Co v Jomer, 522

U S 136, 146 (1997)) Despite Rouse s arguments to the contrary, Dr McCormick McPearce’s

Page 36 of 45

methods were neither unreliable nor irrelevant Based on her expert qualifications, Dr

McCormick McPearce reviewed the report of Rouse’s own expert and considered those facts that

were reported therein in light of her training, experience, etc Dr McCormick McPearce worked

from Dr Lu’s summary of facts that formed the basis for Rouse s own expert report opining that

Rouse acted while under the influence and as a consequence of a mental illness

1158 Accordingly, while Rouse argues that these facts form an unreliable basis for Dr

McCormick McPearce s opinion, this is simply ludicrous Dr McCormick McPearce fully

explained why she felt the facts, as reported by Rouse’s expert, did not constitute a basis for

concluding that Rouse was in a dissociative state at the time of the shooting and further explained

facts in Dr Lu 8 report that directly undermined any such conclusion, and she did so based on

valid medical criteria as articulated in the diagnostic and statistical manual, an accepted medical

text utilized for diagnosis Dr McCormick McPearee’s method of fact finding that of using the

facts as reported by the defendant’s own expert and her analysis were not unreliable

1159 Finally, as to fit, Rouse argues that Dr McCormick McPearce s testimony did nothing to

support the People ’ Fit requires the expert testimony to be logically and rationally linked to one

or more material issues to be decided in the case and must assist the trier of fact to logically and

rationally decide the case in light of common sense and everyday experience Dr McCormick

McPearce s testimony unquestionably enabled the jury to assess the expert testimony of Dr Lu

and determine whether it should be credited or not In other words, the testimony “fit” the case,

and the trial court did not abuse its discretion when it allowed Dr McCormick McPearce to testify

Page 37 of 45

E Mistrial

T60 Because Rouse only disputes the mens rea elements of the crimes for which he was

convicted and because there was ample record evidence from which a jury could have logically

and rationally concluded that Rouse’s actions were not a consequence of any asserted mental

illness, certain challenged statements by the prosecutor had no effect on the outcome of the trial,

and the convictions are affirmed

‘161 As a starting point and especially considering the grossly inappropriate nature of the

comments involved in this matter this Court emphasizes that

Prosecutor[s] ha[ve] an obligation to seek justice, not merely a conviction, and must refrain from using improper methods to obtain a conviction We emphasize that the responsibilities of a prosecutor go beyond the duty to convict defendants Pursuant to its role of “minister of justice, the prosecution has a duty to see that defendants receive a fair trial

State 1 Hughes, 969 P 2d 1 184, 1192 (Ariz 1998) (citations and some internal quotation marks

omitted) Acting in light of and with this command in the forefront of his consciousness, the

prosecutor in a criminal case may argue the facts in evidence and any reasonable, logical inferences

that follow therefrom Castor v People 57 VI 482 494 (VI 2012)’ James v People 59 VI

866, 888 (V I 2013) K A prosecutor s remarks are improper if they appeal to a jury s emotions,

passions, or prejudices, thus diverting the focus of the trial from the evidence presented and leading

the jury to convict for reasons other than those supported by the properly presented evidence

DeStlea v People 55 VI 859 872 (VI 2011)‘ Castor 57 VI at 495 Brathn an‘e v People 60

V1419 426 (VI 2014)

25 Indeed the purpose of closing summation and arguments is to allow the parties to mold the facts as brought out through the trial process in the light most favorable to their respective positions James, 59 V l at 888

Rouse v People 2024 VI 4 S Ct Crim No 2017 0051 Opinion of the Conn Page 38 of 45

1]62 In considering whether prosecutorial misconduct amounted to reversible error, we consider

whether the statement or conduct at issue was improper and whether the improper statement or

conduct made the trial so unfair as to render the trial a c0nviction without due process of law

Brathwazte, 60 VI at 426 Determining whether a prosecutor’s statements or actions warrant

reversal because they made the trial so fundamentally unfair that the defendant was denied due

process requires that we consider the statements or conduct within the context of the entire trial,

giving consideration to the severity of the conduct or statements, the likely effect of any curative

instruction, other preliminary instructions and final charges to the jury, and the quantum of

evidence properly presented against the defendant Monelle v People, 63 VI 757, 770 (VI

2015) 26

1163 As we have explained, when challenging the denial of a motion for mistrial, the defendant

bears the burden to show that “(1) the prosecutor's conduct or remarks were improper, and (2) the

conduct or remarks affected the trial in a manner that made the trial unfair and affected the

defendant's substantial rights ” James, 59 V I at 883, Farrmgton, 55 V I at 656 Rouse identifies

six statements made by the People during trial that were improper as follows

(1) Since May 10, 2012 the Defendant still had a plan He went out and retained one of the best, if not the best defense attorneys on the island (J A at 224 25)

(2) Dr Lu concluded the Defendant on May 10, 2012 suffered from something called a dissociative reaction The Defendant who has never really stated his side of the case (J A at 225 28)

(3) Dr Lu concluded he suffered from dissociative reaction and then a notice of insanity defense was filed Because insanity has been raised the burden shifts to the People to prove beyond a reasonable doubt (J A at 228 229 30)

7" See FlanCIS 56 VI at 389' see also Planets v People 59 VI 1075 1080 (VI 2013) James 59 VI at 883 DeSIlea 55 VI at 873 Casio: 57 VI at 495

Page 39 of 45

(4) I further want to point out that it was Attorney King’s Office that referred him to Dr Lu, and there’s a reason he was referred to Dr Lu by Attorney King 8 office (.1 A at 708)

(5) So he’s referred by Attorney King 3 office because he would have no other defense to this case other than insanity He had no option on this case I also want to address the point about this allegation that Mrs Rouse had told him that morning that he shot her that Shenovia was not his daughter And I had brought that up with her months ago, I asked her she denied it and that defendant never sought to have this paternity issue resolved (JA at 708 09 710)

(6) He’s only charged with attempted murder The only reason is that she didn t die But even though he didn t kill her that day he has ruined her life He has ruined the life of his daughter This will be with them forever (J A at 710 1 1)

It is apparent that several of these statements were improper, some for multiple reasons In making

the second statement, the prosecutor implied that Rouse’s exercise of his Fifth Amendment right

against self incrimination was a problem In the fifth statement, the prosecutor was vouching for

Vida More specifically, the prosecution impermissiny vouched for a witness’s credibility, as he

suggested that there exist reasons, which have not been presented to the jury in court, that warrant

believing the witness Mulley, 51 V I at 414; Franc1s, 56 V I at 386, see also United States v

Klemix 859 F 3d 436 (7th Cir 2017)

1164 We have held that vouching is the prosecution’s assurance of the credibility of a witness

based on either the prosecutor’s personal knowledge of the testimony, or the witness’s ability to

testify truthfully, or some other information beyond the scope of the evidence presented to the

jury Farrmgton v People 55 V I 644 656 57 (V I 2011) Franczs 56 V I at 388 Such

assurances may be either explicit or implicit in the attorney 3 statements or conduct Francis, 56

V I at 388 Prosecutorial vouching is improper because these comments give the impression that

Page 40 of 45

other evidence has not been presented to the jury, that is known to the prosecution, that would

support the charges, jeopardizing a defendant 3 right to be tried solely on the evidence properly

presented to the jury, and such prosecutorial vouching carries with it the imprimatur of the

Government, likely inducing the jury to trust the prosecutor’s judgment rather than objectively

evaluating the evidence among themselves, as required by law Id at 387 (quoting Farrmgton, 55

V I at 657)

1|65 Statements one, four, and five imply that being represented by counsel was somehow

problematic and made the expert testimony less credible Finally, statements one, two, four, five,

and six all are designed to appeal to emotion For example, the only reason for emphasizing

retaining counsel is to imply that a guilty person is somehow getting one over” on the justice

system This same implication is present in the statements regarding Rouse being referred to Dr

Lu by his attorney The sixth statement is the most obvious appeal to emotions and nothing more,

as the only reason to point out that the victim’s lives are ruined is to appeal to the emotions of the

jurors The question remains whether the cumulative effect of the several statements so prejudiced

the trial as to deny Rouse due process

1|66 While the statements are exceedingly disconcerting, and the prosecution is admonished to

refrain from such actions in the future,2 Rouse was not denied due process First, at each instance,

Rouse objected to the statements, and the trial judge chided the prosecution and provided a curative

instruction that the jury should wholly disregard any statement precluded by a sustained objection

It is well established that we presume that the jury understood and faithfully followed such

instructions See eg Saldanav People 73 VI 649 660 (VI 2020) Monelle v People 63 VI

’7 Holland v United States, 348 U S 121, 136 (1954) (The Government 5 duty is not to convict but to see that justice is done ’)

Page 41 of 45

757 770 (V I 2015) (citing Frettt People 58 V I 492 508 (V I 2013) and Gallon ay v People

57 V I 693, 71 l (V I 2012)) Additionally, Rouse’s counsel, during opening statements, admitted

to all of the elements of the crimes charged Therefore the entire case hinged on whether the jury

believed Rouse and Dr Lu as to the facts surrounding the shooting and the opinions drawn

therefrom As discussed above, there was overwhelming evidence from which the jury could have

concluded beyond a reasonable doubt that Rouse was either not suffering from a dissociative

reaction when he shot Vida or that Rouse did not shoot Vida as a consequence of his asserted

mental illness In light of the immediate curative instructions given in each instance, the

preliminary and final jury instructions defining what does and does not constitute evidence and

directing the jury to disregard statements by attorneys because they are not evidence, as well as

the presumption that the jurors understood and followed these instructions, and the overwhelming

nature of the evidence of Rouse’s sanity, we conclude that the cumulative effect of these purported

errors did not affect the outcome of the trial and, therefore, did not deprive Rouse of due process,

and the convictions are affirmed ‘8

F Jury Instructions

‘|67 Because it is constitutional to place upon a defendant the obligation of rebutting the

presumption of sanity by requiring there be some evidence in the record that the actions charged

were taken as a consequence of the defendant’s mental illness before the prosecution is required

to affirmatively prove a defendant’s sanity, szbs 52 V I at 284, the challenged jury instruction

2“ If any doubt remained in this court's collective mind as to whether the cumulative effect of all the asserted misconduct affected the outcome of the trial a reading of Hughes, 969 P 2d 1184, removes any doubt A comparison of the repeated and egregious statements by the prosecutor in that case demonstrates that any prejudice from the statements complained of here was tempered and cured by the remedial actions of the trial court and the overall handling of the trial and instructions to the jury

Rouse v People 2024 VI 4 S Ct Crim No 2017 0051 Opinion of the Count Page 42 of 45

on these issues was not in error and was certainly not an abuse of discretion Rouse challenges the

jury instruction, which stated that

Once the defendant introduces some evidence of mental illness, the defendant can hem] at the time of the offense becomes an element of the crime, which like all other elements of the crime must be proven by the People beyond a reasonable doubt

(J A at 747 ) Rouse argues that this instruction, though articulating the standard set forth by this

Court in Petrtc, 61 V I at 410, violated his due process rights under Clause 23 of Section 3 of the

Revised Organic Act making the Due Process Clauses of the United States Constitution applicable

to the Virgin Islands30 by placing a burden of proof upon the defendant and relieving the People

of their burden of proving to the jury every element of the crime beyond a reasonable doubt There

is no basis for this claim

Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr Justice Cardozo twice wrote for the Court, are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ Snyder v Massachusetts, 291 U S 97, 105 (1934), or are ‘implicit in the concept of ordered liberty Palko v Connecticut, 302 U S 319, 325 (1937)

2" This is as written in the trial transcript It appears that this is errata and a mis transcription by the reporter of the words “defendant's insanity” rather than “defendant can be ’ Because Rouse has not argued that these words prejudiced him instead arguing that the language stating “once the defendant introduces some evidence” is an unconstitutional shifting of the burden of proof in violation of Rouse's Fifth, Sixth, and Fourteenth amendment rights, as codified in section 3 of the Revised Organic Act of 1954 ’ (App Br At 22), Rouse has waived any claim of error in this regard V I R App P 24(m)

3° This opinion does not address whether the Due Process guaranty in Clause 1 of Section 3 of the ROA provides greater protection than the federal due process guaranty See gener ally Balbom v Ranger Am ofthe V I Inc , 70 V I 1048 (V I 2019) (holding that clauses l 22 of section 3 of the RCA constitute a Territorial Bill of Rights equivalent to such provisions in a state constitution) Indeed, given the origins of Virgin Islands law in both the codes of laws of what weie then the territories of Oregon and Alaska and in the various Danish Colonial Laws, there are arguments to be made that proof of sanity must be affirmatively produced in the prosecution's case in chief so long as there is some evidence warranting an insanity instruction See gene; ally Greer v People, 74 V I 556, 580 n 24 (V I 2021) (noting that many of the provisions of the Virgin islands Code were based on the codes of laws of Oregon and Alaska)

Page 43 of 45

Rochm v California, 342 U S 165 168 (1952) Therefore, due process provides boundaries

beyond which legislatures may not go in placing limits on evidence and allocating burdens of

proof See Daniels v Williams, 474 U S 327, 331 (1986) Insanity rules, like the one established

by the Legislature in subsection 14(4) of title 14, “are attempts to define, or at least to indicate, the

kinds of mental differences that overcome the presumption of sanity or capacity and therefore

excuse a defendant from customary criminal responsibility ” Clark, 548 U S at 768 (citations

omitted)

1168 As the Supreme Court of the United States has concluded, a jurisdiction may provide, for

example, that whenever the defendant raises a claim of insanity by some quantum of credible

evidence, the presumption disappears and the government must prove sanity [beyond a reasonable

doubt] ’ Clark, 548 U S at 769 Such a presumption does not shift the burden of proof to the

defendant as to the ultimate burden of persuasion regarding the sanity or insanity of a defendant

the burden of proof beyond a reasonable doubt of a defendant’s sanity always and forever remains

on the prosecution Ferric, 61 V I at 410 (“[T]0 raise the insanity defense a defendant need only

introduce ‘some evidence’ tending to show that he was mentally ill and committed the act

charged against [him] in consequence of such mental illness ’ Once the defendant introduces

some evidence of mental illness, the defendant’s sanity at the time of the offense become an

element of the crime, which, like all other elements of the crime, must be proven by the People

beyond a reasonable doubt (citing Mbbs, 52 V I at 284; Dams, 160 U S at 488, Wright v United

States 250 F 2d 4, 7 (D C Cir 1957)) 3' The jury instruction challenged by Rouse accurately

3' See also Davis, 160 U S at 487 ( ‘Strictly speaking, the burden ofproof, as those words are understood in criminal law is never upon the accused to establish his innocence, or to disprove the facts necessary to establish the crime for which he is indicted It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime ’), cf Clwk 548 U S at 771 ( No one certainly not [the defendant] here, denies that

Page 44 of 45

stated the law as articulated by this Court in its interpretation and application of section 14 of title

14 of the Virgin Islands Code and as articulated in constitutional terms by the United States

Supreme Court Where a jury instruction correctly states the law, there is no error 32

III CONCLUSION

1169 Because section 14 of title [4 of the Virgin Islands Code is a codification of the common

law presumption of sanity, there was no error when the trial court held that the mere filing of a

notice of intent to assert an insanity defense, in compliance with the rules of criminal procedure,

does not rebut the presumption of sanity Additionally, because the evidence in the prosecution 3

case in chief, in light of common sense and everyday experience, logically and rationally allowed

for the conclusion that Rouse s actions were not a result of mental illness, there was no error when

the motion for judgment of acquittal was denied at the close of the prosecution 5 case in chief

Further, Dr McCormick McPearce was qualified to offer expert testimony in this matter and

offered an opinion validly criticizing and undermining the opinion of Rouse 8 expert This was a

a State may place a burden of persuasion on a defendant claiming insanity (citing Leland, 343 U S at 798)) see generally Pom]! v Texas, 392 U S 514, 536 (I968) (plurality opinion) ( The doctrines of actus tens, mens tea, insanity mistake justification and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing moral, philosophical and medical views of the nature of man ) Mullamy v Wilbur, 421 U S 684, 694 96 (1975) (discussing the historic common law evolution of mens tea in homicide prosecutions) Spence; v Randall, 357 U S 513, 525 26 (1958) ( [W]here one party has at stake an interest of transcending value as a criminal defendant his liberty th[e] margin of error is reduced as to him by the process ofplacing on the [prosecution] the burden of persuading the fact finder at the conclusion of the trial )‘ e g Clark 548 U S at 765 (holding as constitutional a rule limiting the consideration of mental disease and capacity evidence only in relation to the affirmative defense of insanity, but not allowing its consideration as to mental intenb mens rea) " See Leland, 343 U S at 800 ( ‘It is contended that the instructions may have confused the jury as to the distinction between the State 5 burden of proving premeditation and the other elements of the charge and appellant s burden of proving insanity We think the charge to the jury was as clear as instmctions to juries ordinarily are or reasonably can be and, with respect to the State s burden of proof upon all the elements of the crime, the charge was particularly emphatic Juries have for centuries made the basic decisions between guilt and innocence and between criminal responsibility and legal insanity upon the basis of the facts, as revealed by all the evidence, and the law, as explained by instructions detailing the legal distinctions, the place and weight of the burden of proof, the effect of presumptions, the meaning ofintent, etc We think that to condemn the operation of this system here would be to abandon the system generally We are not prepared to do so )

Page 45 of 45

valid method of discrediting the defense s evidence of insanity and creating an issue of fact for the

jury to decide The admission of the testimony of Dr McCormick McPearce was not an abuse of

discretion

1170 Furthermore, while the prosecution made inappropriate statements, the evidence in this

matter was corroborated by multiple witnesses and items of evidence and was simply

overwhelming We conclude beyond a reasonable doubt that these statements, though improper,

did not affect the outcome of the trial Therefore, the denial of the defense motion for mistrial was

not an abuse of discretion Finally, the jury instruction stating ‘ Once the defendant introduces

some evidence of mental illness” accurately stated the law in the Virgin Islands and the trial court’s

refusal to give the instructions requested by Rouse was not an error, much less an abuse of

discretion Accordingly, the October 6, 2017 judgment and commitment of the Superior Court is

affirmed

Dated this 17th day of January 2024 BY HE COU?T : Z

/ IVE ARLING N SWAN Associate Justice

ATTEST VERONICA J HANDY ESQ

ByW Clerk of the Court

Deputy Clerk 1 Dated mung ‘. ll 22 214