For Publication



IN THE SUPREME COURT OF THE VIRGIN ISLANDS



ENRIQUE SALDANA,

Appellant/Plaintiff,



S. Ct. Crim. No. 2017-0055

Re: Super. Ct. Crim. No. F187/2014 (STT)



v.



PEOPLE OF THE VIRGIN ISLANDS,



)

)

)

)

)

)

Appellee/Defendant. )

)

)



On Appeal from the Superior Court of the Virgin Islands

Division of St. Thomas & St. John

Superior Court Judge: Hon. Michael C. Dunston



Considered: March 12, 2019

Filed: November 20, 2020



Cite as: 2020 VI 21



BEFORE: RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice; and IVE

ARLINGTON SWAN, Associate Justice.



APPEARANCES:

Kele C. Onyejekwe, Esq.

Appellate Public Defender

St. Thomas, U.S.V.I.



Attorney for Appellant,

Su-Layne U. Walker, Esq.

Assistant Attorney General



St. Thomas, U.S.V.I.

Attorney for Appellee.



OPINION OF THE COURT

SWAN, Associate Justice.

ql Appellant, Enrique Saldana, appeals the Superior Court’s June 14, 2017 judgment and



commitment which adjudicated him guilty of several crimes, including murder in the second

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degree, in the death of his wife, Jeanette Magras Saldana.' For the reasons explicated below, we

affirm the convictions.



I. BACKGROUND AND PROCEDURAL POSTURE

2 On May 2, 2014 at approximately 7:43 a.m., the Virgin Islands 911 Emergency Call Center

received an emergency call from a male at Food Center grocery store in Estate Frydenhoj on St.

Thomas. In the 911 emergency call, a man informed the dispatcher that his girlfriend was

unconscious, and that he was transporting her to the Roy Lester Schneider Hospital (“RLSH”) on

St. Thomas. In response, the emergency call dispatcher broadcast the emergency to the Virgin

Islands Police Department (“VIPD”) and sought police assistance accompanying them safely to

the RLSH.

q3 Corporal Berard Burke (“Corporal Burke’’) of the VIPD, who was off duty, heard the 911

emergency dispatch and requested a description of the vehicle. Corporal Burke learned from the

911 Emergency Call Center that the vehicle was a brown Ford Explorer SUV. Corporal Burke

observed the vehicle at the Fort Mylner intersection and proceeded to escort it to the RLSH.

q4 When the brown Ford Explorer arrived at RLSH, the driver was identified as former VIPD

Captain Enrique Saldana (“Saldana”). Saldana, who was dressed in only a pair of shorts, exited

the driver’s door and opened the driver’s side rear door. Inside the vehicle, Jeanette Saldana

(“Jeanette”) was observed lying wet, sandy and unresponsive on the floor between the front and

back seats of the vehicle.

45 Several RLSH nurses and medical personnel hurried to Jeanette’s assistance with a



wheelchair. Corporal Burke and Saldana lifted Jeanette from the floor of the vehicle and placed



' The jury also convicted Saldana of first degree assault in violation of 14 V.I.C. § 295.

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her in the wheelchair. Jeanette was wearing a black robe, which revealed extensive bruises over

her entire body including her forehead, chin, throat, arms, breast, back and leg. Additionally,

RLSH medical personnel also observed fluids emanating from her mouth. The team of RLSH

medical personnel at the emergency room desperately attempted to resuscitate Jeanette. When

several attempts to intubate her failed, Jeanette was pronounced dead in the RLSH emergency

room.



46 The People charged Saldana in a third amended information with seven counts, including

second degree murder—domestic violence in violation of 14 V.LC. § 921, 922(b), 16 V.LC. §

91(b)(1)(2) (count two); second degree assault—domestic violence in violation of 14 V.LC. §

296(1), 16 V.L.C. § 91(b)(1)(2) (count four); third degree assault—domestic violence in violation

of 14 V.ILC. § 297(a)(3), 16 V.LC. § 91(b)(1)(2) (count six); and third degree assault—domestic

violence in violation of 14 V.I.C. § 297; 16 V.I.C. § 91(b)(1)(2) (count seven).?



47 The Superior Court empaneled the jury, and trial commenced on March 20, 2017. The

People’s witnesses included Alana and Antonio Urena, Jeanette’s friends and family members,

forensic personnel and personnel employed by or otherwise associated with VIPD, including

Carolyn Wattley, Gideon Garfield, Corporal Burke, Robin McGonigle, Makeda Simmonds and

Maha Hamden.



98 Dr. Francisco Landron, the Virgin Islands medical examiner, conducted Jeanette’s autopsy



and at the trial he testified that the cause of death was acute diphenhydramine intoxication and



? Saldana was also charged with first degree murder—domestic violence in violation of 14 V.I.C.

§ 921, 922 (a)(1), 16 V.LC. § 91(b)(1)(2)(count one); first degree assault—domestic violence in

violation of 14 V.ILC. § 295(1) (4), 16 V.LC. § 91(b)(1)(2) (count three); and third degree assault—

domestic violence in violation of 14 V.LC. § 297 (a)(3), 16 V.LC. § 91(b)(1)(2) (count five) but

the jury ultimately returned a not guilty verdict on these charges.

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concluded that the manner of death was homicide.

q9 At the end of the People’s case, Saldana submitted a Rule 29 motion, pursuant to the

Federal Rules of Criminal Procedure, to dismiss all the counts charged in the third amended



information.’



The People opposed Saldana’s Rule 29 motion, which the court subsequently

denied. Saldana then presented his defense, which included testimony from Dr. Andrew Baker

and Josephina Perez. At the conclusion of all the evidence, Saldana renewed his Rule 29 motion

to have the charges dismissed; however, the Superior Court denied his motion.



"10 = The trial ended on March 24, 2017. The jury unanimously convicted Saldana of counts

two, four, six and seven. During sentencing on May 30, 2017, the Superior Court declined to

impose a sentence on count 4 but concluded that it would impose a 10 year concurrent sentence

with the sentence it would impose on count two. Lastly, the court sentenced Saldana to 40 years

of incarceration on his conviction for count two, with credit for 326 days served. Saldana timely

filed his notice of appeal on June 6, 2017.



Il. JURISDICTION AND STANDARD OF REVIEW

"11 Pursuant to the Revised Organic Act of 1954, this Court has appellate jurisdiction over “all



appeals from the decisions of the courts of the Virgin Islands established by local law[.]” 48 U.S.C.



§ 1613a(d). Title 4, section 32(a) of the Virgin Islands Code vests this Court with jurisdiction over



* The Federal Rules of Criminal Procedure applied to proceedings in the Superior Court of the

Virgin Islands to the extent that they were not inconsistent with either the procedural rules

promulgated under the Virgin Islands Code or the Rules of the Superior Court. See Phillips v.

People, S. Ct. Crim. No.2007-037, 2009 WL 707182, at *8 (V.I. Mar.12, 2009); Former Super.

Ct. R. 7. Effective December |, 2017, the Virgin Islands Rules of Criminal Procedure became

operative and were subsequently amended on December 19, 2017. S. Ct. Prom. Orders 2017-0010

(Dec. | & 19, 2017). Further, Promulgation Order 2017-0006 amended Superior Court Rules |

and 7.

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“all appeals arising from final judgments, final decrees, [and] final orders of the Superior Court.”

Because the Superior Court’s June 14, 2017 judgment and commitment resolved all of the claims

in the People’s third amended information, it is a final judgment under section 32(a). Joseph v.

Daily News Publishing Co., Inc., 57 V.1. 566, 578 (V.I. 2012); see also 48 U.S.C. § 1613a(d).

qi2 In reviewing Saldana's challenge to the sufficiency of the evidence, we apply a

“particularly deferential standard of review.” Ponce v. People, 2020 VI 2, 412; James v. People,

60 V.I. 311, 317 (V.I. 2013). Also, we determine whether any rational trier of fact could fairly

find the defendant not guilty beyond a reasonable doubt, viewing the evidence in the light most

favorable to the people. Ponce, 12; Fahie v. People, 62 V.I. 625, 630 (V.I. 2015); Coleman v.

Johnson, 566 U.S. 650, 651 (2012). See also Viera v. People, 2019 VI 22, 4 26; McIntosh y.

People, 57 V.1. 669, 678 (V.I. 2012).

413 Secondly, we review the Superior Court's evidentiary rulings for abuse of discretion, unless

its decision involves application of a legal! precept, in which case this Court would exercise plenary

review. Corriette v. Morales, 50 V.I. 202, 205 (V.I. 2008).

414 ~~ Lastly, we review a trial court's refusal to give specific jury instructions for an abuse of

discretion. Gilbert v. People, 52 V.1. 350, 354 (V.I. 2009). Where no objection to the jury

instructions is made at trial, the Court will review the trial record for plain error. Monelle v. People,

63 V.I. 757, 771 (V.I. 2015).

Ill. DISCUSSION

A. The plain reading of the Virgin Islands murder statutes makes clear that second



degree murder is a lesser included offense of first degree murder and, accordingly,



Saldana could be properly charged and convicted under 14 V.LC. §§ 921 and



922(b), even though he was found not guilty of first degree murder under 14 V.I.C.



§§ 921, 922(a)(1).



415 On appeal Saldana argues, infer alia, that the plain and unambiguous meaning of 14 V.LC.

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§ 922 is that “a killing by poison is always first-degree murder.” (Appellant’s Br. 18-22.) Saldana

contends that because first degree murder, as codified in 14 V.I.C. § 922, was enacted to punish

killing by poison, there is absolutely no legal or factual support for his conviction of second degree

murder and therefore his conviction of second degree murder must be overturned. Because

Saldana failed to raise this issue before the Superior Court, we review only for plain error. See

Billu v. People, 57 V.1. 455, 464 (V.I. 2012) (citing Hightree v. People, 55 V.1. 947, 954 (V.L.

2011)).



416 Saldana’s argument is simply spurious and meritless. The People charged Saldana in a

third amended information with first degree murder pursuant to 14 V.LC. §§ 921, 922(a)(1) and

second degree murder pursuant to 14 V.I-C. §§ 921, 922(b). The Superior Court properly

instructed the jury on first degree murder and second murder and correctly defined applicable legal



terms within the statutes such as “knowingly or willfully,” “intentionally or deliberately,”



99 66 99 66



“voluntary,” “unlawfully,” “premeditation,” and “malice aforethought.”



4\7 Title 14, section 921 of the Virgin Islands Code provides that “murder is the unlawful

killing of a human being with malice aforethought.” In the Virgin Islands, malice aforethought



does not simply mean hatred or particular ill will, but extends to and

embraces generally the state of mind with which one commits a

wrongful act. It may be inferred from circumstances which show a

wanton and depraved spirit, a mind bent on evil mischief without

regard to its consequences. And where the killing is proved to have

been accomplished with a deadly weapon, malice can be inferred

from that fact alone.



Nicholas v. People, 56 V.1. 718, 731-32 (V.I. 2012) (quoting Gov 't of the V.I. v. Sampson, 42 V.1.



247, 253 94 F. Supp.2d 639 (D.V.I. App. Div. 2000)).* Importantly, such malice may be expressed



* The Superior Court gave the following jury instruction on malice aforethought in the case, “[t]o

say that the defendant acted with malice aforethought means that the defendant either intended to













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to qualification”). This leaves only the Confrontation Clause objections.

§38 The Confrontation Clause of the Sixth Amendment of the United States Constitution

provides in pertinent part that, “[i]n all criminal prosecutions, the accused shall enjoy the right . .

. to be confronted with the witnesses against him[.]” U.S. CONST. amend. VI. The Supreme Court

of the United States held in Crawford v. Washington, 541 U.S. 36, 53-54 (2004), that

the Confrontation Clause specifically applies to the “admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and the defendant had had

a prior opportunity for cross-examination.”



ii. Confrontation Issues in the Present Case.

939 Dr. Landron testified at trial that he came to his conclusion that Janette died due to a high

level in her system of the chemical diphenhydramine (commonly known as Benadryl). Saldana

waived any confrontation objection based upon the generalized laboratory findings that Jeanette’s

body had a high concentration of diphenhydramine. His counsel stated “no objection” (J.A. 781)

when Exhibit 196 was offered into evidence, the Certificate of Death reciting that the cause of

Jeanette’s death was “Acute Diphenhydramine Intoxication.” Thus — while Saldana contends on

this appeal that admission of a laboratory report underlying this Death Certificate somehow

violated the Confrontation Clause — the primary evidentiary impact of the fact that the victim had

been overdosed with diphenhydramine was received into evidence without objection, and thus any

use of a laboratory report stating a specific number of nanograms per milliliter of that chemical in

Jeanette’s blood would be at most harmless error, beyond a reasonable doubt.

"40 The sequence of proof in this case was that the Autopsy Report by Dr. Landron admitted

in evidence in this case as Exhibit 125 states “TOXICOLOGY, See attached report” and lists a



“Finding[]” of “Acute diphenhydramine intoxication by toxicology report,” but — in fact — no

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toxicological lab report was actually attached as Exhibit 125 was offered or received into evidence

in this case. Instead, the prosecution later called Dr. Kacinko, who personally reviewed the

underlying testing results and generated her own report shortly before trial in 2017, repeating the

original findings from 2014 in every detail. Dr. Kacinko testified live, subject to cross-

examination, and only this 2017 version of the laboratory report — received as Exhibit 128 — was

offered by the prosecution.



941 The confrontation argument concerning Dr. Kacinko’s testimony and her version of the

report is utterly without merit. We will assume, without deciding, that a laboratory report is a

“testimonial” item if it is prepared on the eve of trial by a laboratory supervisor who knows that

she will be asked to testify for the prosecution in a murder trial based on that report. In this case,

however, the preparer appeared live at trial to present her report, and was subject to detailed

questioning by defense counsel concerning all aspects of the report, eliciting several items of

information helpful to the defense from this witness in the process. Hence the witness was

produced for effective cross-examination, and the Confrontation Clause was satisfied.



942 Dr. Kacinko was not acting in this case as a conduit for the work of the absent Dr.

Isenschmid. Dr. Kacinko’s testimony was that she regularly reviews testing conducted by others

in her lab and that no corrections were needed for the data in this case. In this case, she herself

prepared the only laboratory report that was actually offered and received into evidence in this

case, Exhibit 128, the toxicology report from NMS Laboratories that also carries Dr. Isenschmid’s

name. Dr. Kacinko personally prepared this report, based on the analytical work of staff in her

laboratory some years before, which she reviewed and determined did not need any correction. It

is a regular practice for this witness to prepare such reports based upon data collected and analyzed



in her office. As is the practice in the laboratory, Dr. Kacinko reviews the results of analytical

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testing performed by others in the lab, by reviewing the actual data produced by the instruments

that analyze a given sample. The laboratory operates with a “paperless” procedure, and all the

data is preserved electronically. Dr. Kacinko was personally able to review the underlying data

before preparing her report (Exhibit 128) approximately one week prior to trial. /d. Data is

routinely kept in the laboratory for at least five years for such purposes, and is kept in a “PDF”

format that prevents alteration of the information over time. The data she used related to a

particular “patient” identified as Jeanette A. Saldana and Exhibit 128 reports Dr. Kacinko’s

personal “findings” on the various chemical test results. In her live testimony Dr. Kacinko was

able to explain, in detail, the ranges for the various chemicals detected, and to explain the nature

and consequences of such chemical concentrations. The witness herself “listed” certain “fatal

range[s]” for the chemicals. (J.-A. 1079.) During her testimony she was asked about whether she

made various findings, and what her findings reflected on Exhibit 128 meant. She was able to

explain to the jury several factors that bear on the meaning of the test results, such as a phenomenon

known as “postmortem redistribution” of a chemical in the human body, about which both the

prosecutor and defense counsel questioned her. (J.A. 1081-83; 1087-89.) Defense counsel was

also able to question Dr. Kacinko about diphenhydramine, alcohol, Xanax, and other substances

reported in the data on which she reported. Defense counsel adopted Dr. Kacinko as his own

witness to inquire about the cumulative effect of the chemicals on which Exhibit 128 reports.

Defendant was able to test the accuracy of the report by eliciting information from Dr. Kacinko

about the body location where the blood samples analyzed had been collected, the time delay in

obtaining the blood samples for testing, and other factors, such as the temperature. The possibility

of unexpected results from the drugs found in this testing (described as potentially “paradoxical”



effects) was explored by defense counsel with this witness on re-cross-examination. In sum, the

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witness prepared the report herself, from the original — unaltered — data and was fully available for

cross-examination about the meaning and limitations of the findings. Hence the constitutional

imperatives of the Confrontation Clause were more than satisfied. See, e.g., United States v.

Summers, 666 F.3d 192 (4th Cir. 2011) (finding the Confrontation Clause satisfied through the

testimony of a supervisor who had prepared and signed a DNA test report based on data generated

by another analyst but conclusions drawn by the supervisor); Jenkins v. State, 102, So 3d. 1063

(Miss. 2012) (finding no confrontation violation when a supervisor did not perform the actual test

but review the data generated, reached his own conclusion, and sign the report as a supervisor);

Commonwealth v. Yohe, 39 A.3d 381 (Pa. Super. Ct. 2012) (allowing a lab supervisor to introduce

a blood alcohol test when he did not perform the test but reviewed the results, certified the

accuracy, and signed the report); State v. Lopez, 45 A.3d 1(R.1. 2012) (allowing a lab supervisor

to introduce DNA results when he did not perform the test but evaluated all the results, drew

conclusions based on those results, and prepared the report). These cases establish the precedent

that when a lab supervisor such as Dr. Kacinko, independently reviews scientific data, draws the

conclusion from the data and prepares and issues a report to that effect that is admitted at trial, the

Confrontation Clause is not violated if she testifies and is available to the opposing party for cross-

examination."



443 =The third expert mentioned by Saldana on this appeal, Dr. Arden, used Exhibit 196 (the



© Including the arguments Saldana raised above that this Court addressed, he summarily stated

that the Superior Court “eviscerated his Fifth, Sixth, and Fourteenth Amendment rights to a fair

jury trial.” (Appellant’s Br. 2, 10 and 14.) We have addressed these issues where applicable and

those “[i]ssues that were . . . only adverted to in a perfunctory manner or unsupported by argument

and citation to legal authority, are deemed waived for purposes of appeal.” V.I. R. App. P. 22(m).

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death certificate to which the defendant had no objection) in presenting his opinion that the death

was not accidental and the only version of the underlying laboratory report presented to Dr. Arden

in soliciting his opinion was Exhibit 128, properly authenticated by Dr. Kacinko, who was subject

to cross-examination about it, as discussed above. Accordingly, the presentation of evidence from

Dr. Arden also did not violate the Confrontation Clause.



IV. CONCLUSION

{44 Accordingly, we affirm the Superior Court’s June 14, 2017 judgment and commitment.



DATED this 20th day of November 2020.



/s/ Ive Arlington Swan

IVE ARLINGTON SWAN

Associate Justice



ATTEST



VERONICA J. HANDY, ESQ.

Clerk of the Court