S. Ct. Crim. No. 2012-0132

The defendant's convictions for unauthorized possession of a firearm and reckless endangerment are affirmed, while his convictions for third-degree assault and unauthorized use of a firearm during a third-degree assault are vacated and a new trial is ordered on those charges. Superior Court Rule 135 applies to the exclusion of Federal Rule 33, and therefore the Superior Court erred when it applied Federal Rule 33(a) to conclude that it lacked the authority to sua sponte order a new trial. On the facts presented below, a separate burden of proof instruction may have been warranted as to the assault charge and the related charge of using a firearm during commission of an assault, but such an instruction was not necessary to the other charges. Thus, even if the defendant accidentally shot the victim, it has absolutely no bearing on the charges for firearm possession charge and reckless endangerment. Therefore the Superior Court abused its discretion when it ordered a new trial as to those charges. The practice of permitting jury questions, while erroneous, will not warrant reversal unless the questions asked by the jurors directly prejudiced the defendant or violated a rule of evidence, and here the defendant did not suffer any prejudice as a result of the Superior Court's use of jury questions at trial. The Superior Court unquestionably violated both the United States Constitution and Virgin Islands statutory law when it failed to even notify the parties of a note from the jury, and a fortiori when it issued its own response without allowing for any input. It compounded this error by failing to instruct the jurors personally, instead delegating the task to a marshal, a court employee who may not have necessarily conveyed the answer correctly, if at all. Nevertheless, the Superior Court's errors in this regard do not constitute per se reversible error, but will only warrant reversal if the defendant suffered prejudice. In this case, the jury's communication, and the Superior Court's response, related solely to the first-degree assault charge on which defendant was acquitted and the third-degree assault charge for which the conviction is vacated in this opinion. Likewise, the response to the second note-which it crafted after consulting counsel for both parties-does not warrant reversal since it benefited the defendant. The Superior Court's October 12, 2012 ruling, and its October 23, 2012 Order embodying that ruling, are reversed in part, the oral August 7, 2012 Order is reinstated in part, and the November 29, 2012 Judgment and Commitment is vacated as they relate to the third-degree assault and use of a firearm during a third-degree assault charges, but affirmed in all other respects.