S. Ct. Crim. No. 2014-0004

The testimony of a minor victim, if credited, was sufficient for a reasonable jury to find that the elements of first-degree aggravated rape under 14 V.I.C. § 1700(a)(1) and child abuse under 14 V.I.C. § 505 were proven beyond a reasonable doubt. Thus the evidence was sufficient to support the defendant's convictions on these charges. However, under the Confrontation Clause of the Sixth Amendment a testimonial statement cannot be admitted against the accused at trial when the declarant does not testify, unless she is unavailable to testify, and the defendant has had a prior opportunity for cross-examination. The constitutional requirement that a witness be “unavailable” before her prior testimony is admissible stands is independent of, and in addition to, the requirement of a prior opportunity for cross-examination. In this case the People moved to certify a summons under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 5 V.I.C §§ 3861-65, directed to the victim and her mother, who now reside in Florida. But the Superior Court erred in denying this motion, apparently concluding that the witnesses were unavailable for purposes of the Confrontation Clause simply because they now live in Florida and because the mother had stated that they would not return for a second trial. Nor was the mere filing with the court of a motion to certify an extra-territorial summons, without more, reasonable steps warranting a finding of unavailability. Against the relatively slight burden on the People to actually utilize the provisions of the Uniform Act, stands the clear and definite harm to the defendant in being denied his constitutional right to confront these two witnesses at his second trial. Accordingly, before an out-of-Territory witness whose location is known is declared unavailable, the prosecution's good-faith effort in procuring the presence of that witness must include a reasonable, timely attempt to utilize the provisions of the Uniform Act. In this case, while the People initiated a good-faith effort to procure the attendance of these two witnesses by filing the motion to certify, the Superior Court erred when it denied the People's request to utilize the Uniform Act and subsequently determined that they were unavailable for the defendant's second trial. Accordingly, the Superior Court erred when it permitted the People to read the transcripts of testimony by the victim and her mother into the record at the defendant's second trial because this violated his right to confront the witnesses against him. The People failed to satisfy its burden on this appeal of showing that the erroneous admission was harmless beyond a reasonable doubt and, indeed, the entire prosecution rested on the victim's testimony. Because of the unique psychological elements inherent in a charge of sexual abuse, special caution must be exercised in finding the erroneous admission of highly prejudicial evidence harmless, especially where the victim does not testify at trial. In this case much evidence was admitted improperly at the trial retelling the victim's story, along with a video-recorded interview of the victim admission of which was unquestionably error, both under the rules against hearsay and under the Confrontation Clause. The Superior Court's January 16, 2014 judgment is vacated and the case is remanded for a new trial.