Case Caption: Cuthbertson Thomas v. People of the Virgin IslandsCase Number: S. Ct. Crim. No. 2011-0073Date: 12/02/2013Author: Cabret, Maria M. Citation: Summary:

Defendant's convictions on nine felony counts arising from a shooting outside of an elementary school are affirmed, and the case is remanded for resentencing in conformity with 14 V.I.C. § 104. The argument that the evidence was insufficient because a key prosecution witness was incredible as a matter of law is rejected. The evidence in this case was well within the province of the jury to sort out and testimony of the challenged witness was not incredible as a matter of law. Testimony by a detective did not violate the Confrontation Clause of the Sixth Amendment since he appeared at trial and the contentious statements were those he made at trial, subject to cross-examination. Any Confrontation Clause violation would, beyond a reasonable doubt, have been harmless in this case since the detective's testimony was merely cumulative. Testimony about the defendant's association with another alleged perpetrator met the standard of relevancy under Rule 401 and the conditional relevancy requirements of Rule 104(b). Nor did the Superior Court abuse its discretion or commit plain error in permitting the jury to view the crime scene, and the defendant's substantial rights were not affected in that process. A photograph of the victim received in evidence was not unduly prejudicial under Federal Rule of Evidence 403 and was probative with regard to the location of the wound, the fact that wound did in fact occur, and the identification of the young man as the person who suffered that injury. The Superior Court's decision that the photograph's probative value was not substantially outweighed by any danger of unfair prejudice was neither irrational nor arbitrary and, therefore, was not an abuse of discretion. Addressing sua sponte whether the defendant's sentences violate 14 V.I.C. § 104, notwithstanding the fact that an individual can be charged and convicted of violating multiple provisions of the Virgin Islands Code, that individual may only be punished for one of the offenses arising out of a single act. Here, the defendant was convicted of assault in the third degree upon the victim as well as child abuse and aggravated child abuse in relation to that victim. Those offenses-while separate from the offenses involving another individual or the public in general-nonetheless arise out of the same course of conduct harming the same victim, namely a stray bullet that inflicted serious injury on the victim. As all three offenses arose from the same conduct towards the same victim, the Superior Court correctly followed § 104 when it concluded that the defendant could not be punished for both child abuse and aggravated child abuse. However, the court failed to follow § 104 when it did not stay punishment for the third-degree assault perpetrated against the victim in addition to aggravated child abuse. This was a plain error that requires reversal, and accordingly the case is remanded for the Superior Court to enter conviction and announce a sentence for each offense of which defendant was convicted, but then stay imposition of punishment where § 104 is implicated.

Attachment: Open Document or Opinion