On Appeal from the District Court of the Virgin Islands - Appellate Division (D. C. No. 3-03-cv-00024) District Judge: Honorable Daryl D. Donohue District Judge: Honorable Raymond L. Finch District Judge: Honorable Curtis V. Gomez
The opinion of the court was delivered by: Roth, Circuit Judge
Argued on December 8, 2011
Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges
Carl Simon appeals the August 6, 2009 order of the Appellate Division of the District Court of the Virgin Islands, affirming the July 18, 2002 judgment of the Territorial Court of the Virgin Islands, denying post-conviction relief. For the reasons that follow, we will vacate the order of the Appellate Division and remand the case for further proceedings.
In September 1993, Carl Simon, James Roach, and another individual burglarized a house on St. John. Elroy Connor and Daniel Ezekiel, one of whom was an occupant of the house, arrived during the burglary. During an ensuing altercation, Ezekiel was shot dead. The three assailants fled the scene with money and other valuables. Simon and Roach were later separately apprehended.
On May 25, 1994, a two-count Information was filed against Simon in the Territorial Court of the Virgin Islands that charged premeditated murder, in violation of 14 V.I.C. §§ 921 and 922(a)(1), and burglary, in violation of 14 V.I.C. § 444(1). The Information was subsequently amended, and the case proceeded to trial on three counts: felony murder, in violation of 14 V.I.C. § 922(a)(2) (Count I), robbery in the first degree, in violation of 14 V.I.C. § 1862(2) (Count II), and burglary in the third degree, in violation of 14 V.I.C. § 444(1) (Count III).
Augustin Ayala of the Territorial Public Defender's Office was appointed to represent Simon. Simon repeatedly moved to dismiss Ayala, complaining that Ayala would not return his calls or visit him. In turn, Ayala moved to withdraw as counsel, expressing difficulties in representing a "hostile client" and concern that Simon was "plotting some kind of strategy against me, in that he is going to, at some point or the other, claim ineffective assistance of counsel." The Territorial Court declined to relieve Ayala each time, and Simon proceeded to trial with Ayala as counsel.
The trial began on January 23, 1995. Roach, who had already been separately tried before the District Court of the Virgin Islands and convicted of first degree murder, testified at trial on behalf of the government. Roach admitted that he had committed perjury at his own trial, explained that he had requested to be placed in solitary confinement because of death threats by Simon's brother, and testified that the local government had promised him protection. Roach also stated that he had not received any promises from the government regarding a reduced sentence in exchange for his testimony against Simon.
Ayala did not give an opening statement, call any witnesses, or object to closure of the courtroom during closing arguments and jury instructions. Ayala's motion for dismissal pursuant to Fed. R. Crim. P. 29 was denied. In closing, the government emphasized Roach's fear of Simon and stated that Roach "had nothing to gain by being a snitch. He only had ...