On Appeal from the District Court of the Virgin Islands Division of St. Thomas -- Appellate Division. (D.C. No. 02-cr-00085). District Judges: Honorable Raymond L. Finch and Honorable Curtis V. Gomez Superior Court Judge: Honorable Maria M. Cabret.
The opinion of the court was delivered by: Fisher, Circuit Judge
Before: FISHER, JORDAN and STAPLETON, Circuit Judges.
Jimmy Davis appeals from an order entered by the Appellate Division of the District Court of the Virgin Islands affirming his conviction for four counts of first-degree assault, one count of first-degree reckless endangerment, and one count of unauthorized possession of a firearm during a crime of violence. Davis argues on appeal that the prosecutor's references during trial to his post-arrest, post-Miranda*fn1 silence violated his right to due process and that, because this error cannot be considered harmless on this record, he is entitled to a new trial. We agree and therefore will reverse and remand.
On December 23, 2001, a drive-by shooting occurred at the intersection of Estate Whim Road and Queen Mary Highway on St. Croix in the United States Virgin Islands. Davis was arrested on January 3, 2002. The Government issued an information in which it alleged that Davis fired gun shots at Shawn Francis, Sean Petrus, Erica Parrilla, and the daughter of Francis and Parrilla, Shanadalis, with the intent to commit murder. A jury trial commenced in the Territorial Court of the Virgin Islands on April 15, 2002.*fn2
During trial, the Government introduced the testimony of Francis, Petrus, and Parrilla, each of whom had prior relationships with Davis. The three witnesses gave a similar account of the shooting. Specifically, they were traveling in Francis's pickup truck, with Francis driving, Parrilla and Shanadalis in the front seat, and Petrus in the back of the truck. While Francis's vehicle was idling at the intersection another pickup truck approached. Davis was riding in the back of the second truck and was the only passenger in the truck bed. Suddenly, multiple gunshots were fired from the passing truck at Francis's vehicle. Parrilla testified that she ducked and covered Shanadalis and heard three shots, but admitted that she did not see who fired the shots. Petrus and Francis both identified Davis as the shooter. Three bullets hit the driver's area of Francis's truck, one bullet striking the windshield and the other two bullets striking the door, though none of the four individuals in Francis's truck was injured. After the shooting, the witnesses returned to Francis's house and viewed the damage to the truck, but did not report the incident to the police until the next day.
Following the Government's case-in-chief, Davis took the witness stand and provided a different account of the shooting. On direct examination, Davis admitted that he was riding in the truck from which the shots were fired, but testified that an individual named "Goofy," whom he insisted was in the back of the truck with him, had pulled the trigger. According to Davis, "Bugsy" was driving the truck, Davis's brother Hector was in the passenger seat, and Davis and Goofy were in the back of the truck. When the truck approached Francis's vehicle, Goofy fired the first shot at Francis but Francis then pulled a gun and returned fire, at which point Davis ducked for cover. Davis stated that he saw only Francis and Petrus in the other truck, and that Petrus was riding in the passenger seat, not in the back.
During cross-examination, the prosecutor questioned Davis about whether he had told the police this version of the story after his arrest:
Q: You were arrested, sir, were you not approximately a week after this incident, December 23; is that correct?
Q: After you were arrested in this case, sir, you did not make any statements to the police. Did you concern yourself whether or not Goofy, and not you, fired the shots on December 23?
Defense counsel objected, but the Territorial Court overruled the objection. The prosecutor continued:
Q: Mr. Davis, do you understand the question?
Q: After you were arrested in this case you never made any statement to the police.
Did you concern yourself that it was Goofy, and not you, that fired the shots on December 23?
A: The police never asked me for no statement.
Q: You understand my question?
A: Yes. They say they don't have a warrant for my arrest.
Q: My question was, did you ever make any statements to the police that it was Goofy, and not you, that ...