S. Ct. Crim. No. 2012-0140 and S. Ct. Crim. No. 2012-0145

After convictions of two defendants on charges of third-degree assault, using a dangerous weapon, and simple assault, along with two counts for attempts by one defendant to intimidate witnesses, the cases were reviewed in a prior appeal in decisions reported as Thomas v. People, 56 V.I. 647, 649-51 (V.I. 2012) and Boston v. People, 56 V.I. 634, 636 & n.7, 646 (V.I. 2012), and then remanded for a Superior Court hearing to ascertain whether juror misconduct occurred in the trial and, if it did, whether it was prejudicial. A determination regarding juror misconduct is a factual determination reviewed only for abuse of discretion. In this case the Superior Court emphasized that none of the other jurors corroborated the misconduct allegations. Considering the entire record, it cannot be said that in deciding whether to believe a witness or other jurors, all of whom uniformly denied the allegations, the trial court clearly erred when it concluded that no misconduct had occurred. Although the Superior Court's premise that an intra-jury statement by definition could not be extraneous within the meaning of Federal Rule of Evidence Rule 606(b) was in error, these defendants nevertheless failed to meet their burden of demonstrating that any misconduct occurred during deliberations. Evidence was introduced without objection at trial making the jurors aware that the victim had died and that his death had been investigated as a homicide. Jurors could not have engaged in misconduct simply by discussing, during deliberations, evidence that was properly introduced as substantive evidence without challenge from these defendants. Accordingly, the Superior Court's error in restricting the scope of the hearing is harmless since any discussion of who killed the murder victim that may have occurred during deliberations would not constitute juror misconduct. The trial court's finding that no misconduct occurred was not clearly erroneous, and the judgments are affirmed.