ON APPEAL FROM THE JUDGMENT OF THE DISTRICT COURT OF THE VIRGIN ISLANDS
Before Adams, Weis and Garth, Circuit Judges.
The appellant, Kitson Jarvis and his co-defendant Darryl Reviere were charged with burglary, robbery, assault, unauthorized use of a vehicle, and with possession of a firearm during the commission of a crime of violence. Jarvis was tried separately because Reviere was not arrested until two days before Jarvis's trial was scheduled to commence. All of the charges related to an early morning supermarket robbery allegedly committed by both defendants on April 5, 1980.
In September 1980, Jarvis was tried before a jury which returned verdicts of guilty on each of the fourteen counts of the Information. On October 8, 1980, Jarvis was sentenced to a total term of imprisonment of 20 1/2 years based on consecutive sentences for five of the fourteen counts. The sentences on the other nine counts were concurrent to the various consecutive sentences. On Count IV, Jarvis was sentenced to five years imprisonment to be served concurrently with his five year sentence for Count II, which in turn was to run consecutively with his five year sentence on Count I.
On appeal, Jarvis raised three claims of error. First, he claimed that his arrest was not supported by probable cause. Second, that the verdict was not supported by sufficient evidence. Third, he maintained that there was not sufficient evidence to support his conviction for robbery as charged in Count IV of the Information.
We find no merit in Jarvis's first two contentions, but vacate his robbery conviction based on Count IV of the Information and remand the case for resentencing on Count IV.
Kitson Jarvis was convicted after a jury trial in the district court of fourteen counts arising out of an early morning supermarket robbery on April 5, 1980. On that day, at about 6:00 a. m., two masked men entered the Pueblo Supermarket located at the Villa La Reine Shopping Center in St. Croix. After entering, the men bound the two night janitors at gun point and then awaited the arrival of the store manager. The manager and two employees arrived at about 6:50 a. m. and were promptly forced into the manager's office. Two employees who arrived later were also held in the manager's office. The intruders struck the manager and threatened to kill the four employees if the manager did not promptly open the store safe.
The two men removed about $13,000 from the safe after it was opened and also took money and personal belongings from the store employees. One of the employees, Carlos Encarnacion, owned a red Plymouth Duster, which was parked in the supermarket parking lot, out of sight of the store employees. The intruders forced Encarnacion to give them the keys to the car and they then made their escape in Encarnacion's car.
About a half hour later, the car collided with a tree, 2 1/2 miles from the Peublo Market. Two individuals were seen leaving the car. While investigating the accident, a police officer who did not know of the supermarket hold-up detained two men who were walking near the accident scene. He recognized Darryl Reviere from a previous encounter. Jarvis later admitted that he, Jarvis, was the person accompanying Reviere during this encounter with the officer who was investigating the accident.
When a second police car arrived Jarvis and Reviere fled into the bush. One officer testified that after they were told to halt and a warning shot was fired, Reviere turned and fired on the pursuing policemen. Jarvis's fingerprints were found in Encarnacion's stolen car.
We find no merit in the first two contentions made by Jarvis on this appeal. As previously stated, Jarvis claims that he was arrested without probable cause. Our examination of the record reveals the contrary. The district court correctly ruled ...