On Appeal from the Appellate Division of the District Court of the Virgin Islands (D.C. Crim. App. No. 2001/0068) Honorable Raymond L. Finch, Chief Judge Honorable Thomas K. Moore, District Judge Honorable Rhys S. Hodge, Territorial Judge (sitting by designation)
Before: Sloviter, Fuentes, and
Greenberg, Circuit Judges.
The opinion of the court was delivered by: Greenberg, Circuit Judge
Argued: December 14, 2004
I. FACTUAL AND PROCEDURAL HISTORY
This matter comes on before this court on an appeal by the Government of the Virgin Islands from an order of the District Court of the Virgin Islands entered March 11, 2004, reversing Jose Alberto Rosa's conviction for first-degree murder at a jury trial in the territorial court. Rosa and Victor Ramos were tried jointly in the territorial court after being charged in a criminal information with committing murder in the first degree and with carrying or using a dangerous weapon during a crime of violence. 14 V.I. Code Ann. §§ 922(a)(1) & 2251(a)(2) (1996 & Supp 2004).
The following is a summary of the evidence supporting the charges at the defendants' joint trial largely drawn from the testimony of two seemingly disinterested eye witnesses.*fn1 Rosa's car and a truck belonging to George Glasgow, the victim, were parked on a street in Estate Profit, St. Croix, and Rosa and Glasgow were in a field beside the vehicles. In addition, Ramos, who had been in Rosa's car, was at the scene. Rosa had a 2 x 2 stick in his hands, taped at the end to form a grip, with which he was hitting Glasgow. Upon being struck, Glasgow ran to his car, pulled out a machete, and swung errantly at Rosa. Ramos quickly jarred the machete out of Glasgow's hand and forced him to the ground. Ramos then picked up the machete and struck Glasgow with its blunt edge, while Rosa hit him with the stick. Even after Ramos ceased hitting Glasgow, Rosa continued to strike him with the stick. According to the eyewitnesses, the beating continued as Rosa hit Glasgow with the club while Ramos kicked him. Glasgow was unable to regain his footing as Rosa continued beating him. The witnesses testified that after Glasgow stopped moving, Rosa hit him several times in the head with the modified 2 x 2. Once Glasgow was unconscious, Rosa and Ramos pilfered through his pockets, found his wallet, and took his money. Glasgow died at the scene. Rosa and Ramos were apprehended and charged with first-degree murder and carrying a dangerous weapon during a crime of violence.
There were discussions regarding the jury instructions beginning midway through the trial. The court first sifted through jury instructions Ramos proposed.*fn2 These instructions erroneously indicated that to prove first-degree murder the government had to prove that the defendants "had an intent to kill or inflict serious bodily harm against a human being."*fn3 Appellant's br. at 16. This proposed instruction was erroneous to the extent that it allowed the jury to convict the defendants of first-degree murder even if their intent only was to inflict serious bodily harm. Nevertheless when the court asked Rosa's attorney, Mr. James, if he had any objections to these instructions the following ensued:
THE COURT: Attorney James, you have looked at Defendant Ramos [sic] proposed instructions?
MR. JAMES: Yes, your Honor, I have.
THE COURT: Do you have any objections to –
MR. JAMES: I have no objections, your Honor.
THE COURT: Any additions, modifications or corrections?
THE COURT: So they can apply equally to your client.
MR. JAMES: That's correct, sir.
The court then walked through Ramos's proposed jury instructions, one by one, allowing the parties to raise any objections or offer any additions. See app. at 66-73. Rosa did not raise objections to the language Ramos proposed erroneously setting forth the government's burden to prove intent, and ultimately stated, "I am satisfied, your Honor." App. at 73.
The court then analyzed the government's proposed instructions:
THE COURT: The Government has proposed in its initial instructions, element instructions — murder in the first degree, possession and a flight instruction. Is there any ...