S. Ct. Crim. No. 2011-0055

In a prosecution that led to conviction on seven counts, including first-degree murder and first-degree assault the shooting death of one victim, first-degree murder in the death of a second victim struck by a stray bullet, three counts of unauthorized use of an unlicensed firearm in a crime of violence, and reckless endangerment in the first degree, appellate challenges to the sufficiency of the evidence and use of a prejudicial prior conviction are rejected, except with respect to a count predicated on felony murder. The required premeditation on the underlying murder count was shown in proof of the defendant parking for 30 minutes and waiting in traffic for two to three minutes prior to the murder, and by the nature of the wound inflicted on this victim. However, with respect to the felony murder conviction for the death of a second victim accidentally shot by another perpetrator, 14 V.I.C. § 922 is limited by the agency theory of the felony murder rule, and on the facts of this case it was legal error to find that the second victim was killed in the perpetration of defendant's first-degree assault against on the first victim. Thus it is necessary to reverse the conviction for felony murder. Reckless endangerment may be established by conduct of the defendant in a place where the public has the right to be-it does not hinge on naming a finite number of endangered persons. In this case, the evidence was sufficient to sustain that conviction. When defendant took the stand and testified, he placed his credibility at issue. Although the similarity between the crimes charged and his prior conviction then introduced by the prosecution no doubt enhanced its potential prejudicial effect, Rule 609(a)(1) does not limit admission to those crimes involving dishonesty or false statements but includes felonies as probative of credibility. Also, under Rule 404(b) evidence of other crimes, wrongs, or acts is admissible for non-propensity purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Here the Superior Court properly weighed the relevant factors in admitting evidence of the prior conviction to prove identity of the perpetrator of this crime. Since 14 V.I.C. § 2253(a) does not require that the People prove a firearm was operable, the Superior Court did not err in instructing the jury on the firearms offenses. Under the facts of this case, the unauthorized use of a firearm involved a single weapon and a single act. Accordingly, the matter is remanded to the Superior Court with instructions to sentence the defendant for only one firearm conviction, and to stay execution of sentence for the remaining firearm conviction in accord with 14 V.I.C. § 104.