S. Ct. Crim. No. 2017-0043

Multiple convictions stemming from a homicide and firearms prosecution are affirmed in part and reversed in part. The defendant's concurrent sentences for second-degree murder, unauthorized use of an unlicensed firearm during that crime, and destruction of evidence do not violate the prohibition against double jeopardy, as the charging statutes underlying these counts contain separate and distinct elements, and no offense for which the defendant was convicted and sentenced is a lesser included offense of another. However, in this case three of the other counts are lesser-included offenses to Count Three, in that the People were not required to prove any additional elements to obtain convictions not required to obtain a conviction under Count Three. Two additional counts did not require the People to prove any elements beyond those required to obtain a conviction for Count Four. Consequently, the Blockburger test is satisfied, and all seven of these convictions come within the purview of the Double Jeopardy Clause of the Fifth Amendment. The Superior Court was required to announce a sentence for only a single conviction of each group of offenses, and then to vacate—rather than merge or stay—the remaining offenses within that group. The Double Jeopardy Clause is not violated by the conviction for reckless endangerment in the first degree since that charged required the People to prove that the conduct occurred in a public place, which was not an element of any other count, but that conviction nonetheless violates 14 V.I.C. § 104 because the act that gave rise to the reckless endangerment conviction occurred as part of an indivisible course of conduct. Upon reexamination of the holdings of Williams v. People, 56 V.I. 821 (V.I. 2012), that portion of such decision mandating merger-and-stay as the remedy for a violation of § 104 is overruled. Vacatur shall be the remedy in cases in which § 104 is implicated, just as is the case with violations of the Double Jeopardy Clause. Because the convictions for Counts Five through Nine violate either the Double Jeopardy Clause or 4 V.I.C. § 104, the case is remanded with instructions for the Superior Court to vacate those convictions. Reviewing the jury instructions in this case as a whole for plain error, the jury was properly instructed on the definition of malice aforethought and could freely apply that definition to both counts challenged on this appeal, and the instructions were neither misleading nor inadequate to guide the jury's deliberations. The Superior Court's judgment and commitment with respect to Counts Three, Four, and Ten is affirmed.