S. Ct. Crim. No. 2013-0010

Convictions in the Superior Court for murder, assault, reckless endangerment, and unauthorized possession of a firearm during the commission of a crime of violence, are affirmed. The evidence was sufficient to support the required elements of each of these convictions, and the argument that the procedures used to obtain identifications from two witnesses were impermissibly suggestive was waived because it was not adequately briefed due to lack of legal authority or argument, and absence of references to the appendix record to show preservation of objections at the trial level, as required by V.I.S.CT.R. 22. While the defendant is correct that the Superior Court erred in relying on former 14 V.I.C. § 19 - which the Legislature implicitly repealed when it adopted the Federal Rules of Evidence to govern the admission of evidence in the Superior Court through § 15(b) of Act No. 7161 on April 7, 2010 - in admitting certain prior statements to police as substantive evidence at trial, this error was harmless with regard to the witness's identification of the defendant, since that statement was admissible as a prior identification under Federal Rule of Evidence 801(d)(1)(C). This error was also harmless with regard to the other statements this witness gave to police because, even though they were not otherwise admissible, they did not affect the verdict. The cautionary instruction given in this case regarding the jury's use and interpretation of eyewitness testimony was extensive and detailed, and tracked the instruction mandated in prior case law, hence it was not error-let alone plain error-even if it did not use the exact language used in the prior decision. Finally, precedent forecloses the defendant's arguments challenging his sentence under 14 V.I.C. § 2253(a) which requires that the penalty imposed for the unauthorized possession of a firearm during the commission of a crime of violence be "in addition to the penalty provided for the commission of . . . the felony or crime of violence." This argument is entirely frivolous. Nor is there is any double jeopardy violation since the statutory language constitutes an express authorization by the Virgin Islands Legislature for multiple penalties, and the sentence does not violate 14 V.I.C. § 104 by imposing a sentence for both first-degree murder and reckless endangerment, since the multiple-victim exception permits the sentence for commission of a single act of violence that harmed or risked harming more than one person. The convictions are therefore affirmed.