S. Ct. Crim. No. 2010-0049

In a prosecution for attempted murder, assault in the third degree, and two counts of unauthorized possession of a firearm during the commission or attempted commission of a crime of violence, no reversible error is found. Title 14 V.I.C. § 19, and not Federal Rule of Evidence 801(d)(1), controls the admissibility of prior inconsistent statements in the Superior Court, and in this case the two witnesses whose statements identified defendant as the shooter in this crime were given an opportunity to explain or deny their prior statements, making both statements admissible under § 19. Thus while application of Fed.R.Evid. 801 to the admission of these statements was error, that error was harmless because the court would have arrived at the same outcome had it applied the proper statute. Nor did the court plainly err by failing to suppress these prior statements sua sponte under Fed.R.Evid. 403 since their probative value was high, and the risk of unfair prejudice slight, if it exists at all, as this evidence is specific to the offense charged and lacks an inflammatory nature that would cause the factfinder to find guilt on an impermissible ground. Therefore, because the probative value of the statements was not substantially outweighed by the danger of unfair prejudice. The People presented sufficient evidence of the defendant's participation in these crimes since a rational trier of fact could have found the defendant guilty beyond a reasonable doubt and the convictions are supported by substantial evidence identifying defendant as the perpetrator. The conviction for assault in the third degree with a deadly weapon under 14 V.I.C. § 297 is not invalid because the People accused defendant of committing the assault with a firearm, since that section works in tandem with 14 V.I.C. § 2253 and the Legislature intended for assaults committed with a firearm to be prosecuted under both sections. The information and final instructions properly charged attempted first-degree murder in this case, since 14 V.I.C. § 922(a)(1) defines first-degree murder as, among other things, any kind of willful, deliberate, and premeditated killing, the Superior Court did not err by failing to require a finding that a killing accomplished with a firearm is similar to a killing accomplished by poison, lying in wait, torture, or a bomb. The judgment of conviction is affirmed.