IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN



PEOPLE OF THE VIRGIN ISLANDS, _ )

) CRIMINAL NO. ST-09-CR-549

Plaintiff, )

vs. ) V.I. Code Ann. tit. 14, §§ 924(1), 11(a); 2253(a),

) 11(a) (2 Counts); 295(1), 11(a); 625(a), 11(a)

RICHIE FONTAINE, )

(D.O.B.: 11-15-87) )

)

Defendant. )

)

MEMORANDUM OPINION



THIS MATTER IS BEFORE THE COURT on the Defendant’s Motion for Judgment

of Acquittal.' Having considered the Motion and the Opposition of the People, the Court will

grant the Motion for Judgment of Acquittal as to Counts | and 2 of the Amended Information

and will deny the Motion for Judgment of Acquittal as to Counts 3 through 5 of the Amended

Information.



I. Facts of the Case



Defendant Richie Fontaine is charged with the unlawful killing of Phillip George at the

Club Lexus in Smith Bay in the early morning hours of March 7, 2009. Originally, Fontaine was

charged in a nine-count Information in which the most serious offense charged was murder first

degree. In the initial trial of the matter, Fontaine was found guilty of voluntary manslaughter,

assault first degree, using a dangerous weapon during the commission of an assault first degree

and reckless endangerment first degree. In an Opinion dated April 12, 2012, the Supreme Court

of the Virgin Islands reversed Fontaine’s conviction and remanded the case for a new trial.”



On remand, Fontaine was charged in a five-count Fourth Amended Information with

voluntary manslaughter, Count 1; unauthorized use of a firearm during the commission of a

voluntary manslaughter, Count 2; assault first degree, Count 3; unauthorized use of a firearm

during the commission of assault first degree, Count 4; and reckless endangerment first degree,

Count 5; all committed “while aiding and abetting another.”



' The People are represented by Assistant Attorneys General Edward Veronda, Esq., and Quincy McRae, Esq. The

Defendant, Richie Fontaine, is represented by James Bernier, Jr., Esq., and Tracy Myers, Esq.

? Fontaine v. People, 56 V.I. 571 (2012).

People of the Virgin Islands v. Richie Fontaine

Criminal No. ST-09-CR-549



Memorandum Opinion



Page 2 of 6



Ruben George, the brother of Phillip George, testified that he and his brother saw

Fontaine earlier in the evening, and that there was a discussion about Fontaine paying back a

debt that he owed Phillip. However, there were no harsh words that were exchanged at that time,

and later when Phillip and Ruben George saw Fontaine at the Club Lexus, Phillip and Fontaine

did not argue. At around 2:00 a.m., Ruben saw Fontaine on the ramp outside of the Club Lexus

with a gun in his hand. When Ruben and Phillip exited from the Club, Fontaine was shooting at

them, and he was accompanied by another individual, that Ruben knew as “Alpha,” who was

also shooting at them. Phillip took a gun from another individual who was on the ramp who had

a firearm, and started firing back at Fontaine, but in the process, he was shot. He later died from

gunshot wounds.



Also introduced into evidence was the surveillance video from the Club. This video

contained a still frame of Fontaine with an apparent firearm in his hand, thereby corroborating

the testimony of Ruben. The video also showed Fontaine pacing up and down on the ramp and

then finally going to the right side of the Club, and it showed two other individuals jumping over

the side of the balcony on the left side of the Club. There was testimony showing that bullets

and casings were found across the street from the Club both on the left and right sides of the

Club.



Il. Discussion of the Law concerning the Motion for Judgment of Acquittal

under Rule 29



A. Legal Standards for a Motion for Judgment of Acquittal Pursuant to Fed.

R. Crim. P. 29



Federal Rule of Criminal Procedure 29(c)(2)° provides that the court may set aside a

guilty verdict and enter a judgment of acquittal if appropriate. In considering this motion, the

standard is whether, viewing the evidence adduced at trial in the light most favorable to the

government, there was substantial evidence upon which a reasonable jury could have based its

guilty verdict.’ A finding of insufficiency should “be confined to cases where the prosecution’s

failure is clear.”° Stated differently, the Court must determine whether a reasonable jury, on the

evidence presented, could find beyond a reasonable doubt that the government has proved all the

elements of the offenses.° When deciding a motion for judgment of acquittal, the Court should

not engage in weighing and evaluating the testimony presented, and a jury verdict should not be

disturbed unless “the record contains no evidence, regardless of how it is weighed, from which



* The Federal Rules of Criminal Procedure apply to the Superior Court of the Virgin Islands when not inconsistent

with the Rules of the Superior Court. Super. Ct. R. 7.



* United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991); see also Maynard v. Gov’t of the V.I., 49 V.1. 718,

721 (D.V.1. App. Div. 2008); People v. Clarke, Crim. No. ST-08-CR-371, 2009 WL 8391643, at *2 (V.I. Super.

Sept. 21, 2009), aff'd, 55 V.I. 473 (2011).



° United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002).



6 Salmon, 944 F.2d at 1113; see also United States v. Fredericks, 38 F. Supp. 2d 396, 398 (D.V.L. 1999).

People of the Virgin Islands v. Richie Fontaine

Criminal No. ST-09-CR-549



Memorandum Opinion



Page 3 of 6



the jury could find guilt beyond a reasonable doubt.”” The Court should not usurp the role of the

jury by assigning weight to the evidence or by substituting its judgment for that of the jury.®

Using these standards, the Court will consider the evidence submitted during the trial to

determine whether there was substantial evidence upon which the jury could have found

Fontaine guilty of the charges in the Fourth Amended Information beyond a reasonable doubt.



B. There was insufficient evidence presented to the jury to find Fontaine

guilty of Voluntary Manslaughter and Using a Firearm During the

Commission of Voluntary Manslaughter.



Upon reviewing the evidence presented to the jury concerning the charge of voluntary

manslaughter and unauthorized use of a firearm during the commission of voluntary

manslaughter, the Court concludes that there was insufficient evidence presented to the jury to

support the conviction for these offenses. The Court will, therefore, set aside the conviction of

Fontaine under Counts 1 and 2 of the Fourth Amended Information.



The charge of voluntary manslaughter is defined as the unlawful killing of a human being

without malice aforethought as a result of a sudden quarrel or heat of passion.” To convict a

Defendant of this charge, the People have to prove that Fontaine unlawfully killed a human

being, that it was without malice aforethought, that the killing was the result of a sudden quarrel

or heat of passion and that it was either with an intent to kill or an intention to inflict serious or

grievous bodily injury that would likely cause or result in the death of another.’? The essential

element of manslaughter that distinguishes it from murder is “whether the killing was committed

in a state of passion produced by adequate provocation sufficient to lead a reasonable person to

act in an irrational manner.”!' Where there is no evidence of a quarrel or fit of passion, the jury

cannot find the Defendant guilty of voluntary manslaughter. '”



No evidence was presented by the People supporting a conviction for an unlawful killing

as a result of a sudden quarrel or heat of passion. Indeed, the only testimony concerning the

mood of Fontaine came from Ruben, and he testified that everything was peaceful before the

shooting occurred, and that there was no argument between Fontaine and Phillip. Additionally,

the surveillance video does not show any quarrel and does not support the theory that the shots

were fired in the heat of passion. The surveillance video which did not have an audio component,

showed people dancing and playing the slot machines at the Club, but did not show any other

activities of the patrons of the nightclub that would support the theory that the shots were fired as



” United States v. Anderson, 108 F.3d 478, 480 (3d Cir. 1997).



* United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006) (quoting United States v. Brodie, 403 F.3d 123, 133 (3d.

Cir. 2005)).



° VI. Code Ann. Tit. 14, §924(1).



'° Gov't of the VI. v. Knight, 26 V.I. 280 (D.V.I. 1991).



'' Nicholas v. People, 56 V.I. 718, 733 (2012) (quoting 40 CJS Homicide § 35).



Gov't of the V.I. v. Carmona, 422 F.2d 95 (3d Cir. 1970).

People of the Virgin Islands v. Richie Fontaine

Criminal No. ST-09-CR-549



Memorandum Opinion



Page 4 of 6



a result of a quarrel or in the heat of passion. Also, there is no evidence of any provocation that



would have resulted in the shots being fired in the heat of passion as required by the statute and

13



case law.



The People argue that Fontaine is precluded from arguing that there was insufficient

evidence before the jury because of the invited error doctrine. The invited error doctrine

precludes errors stemming from erroneous jury instructions proposed by a defendant's counsel

from forming the basis for reversal of a conviction.'* This doctrine prevented Fontaine from

arguing on appeal that the evidence was insufficient to sustain a conviction on the lesser included

offense of voluntary manslaughter (not charged in the Information) when the party requested the

instruction at the trial level, and the evidence was sufficient to convict the defendant of the

greater offenses charged.'> This doctrine prevents a defendant from benefitting twice from an

erroneous lesser included offense instruction, first from being acquitted of the greater offense as

an act of grace by the jury, and then benefitting a second time by a reversal of the conviction for

the lesser offense by the appellate court.'®



Although this Court understands the asserted unfairness of Fontaine benefitting from

misleading the Court on an erroneous lesser included offense instruction on the appellate level,

this Court does not see any inherent unfairness in requiring the People to prove the charges

against the defendant at trial, on the remand from the Appellate Court. The jury may have

acquitted Fontaine of murder in the first trial as an act of grace. The jury may have also

acquitted him because they did not find the necessary elements for a conviction for the greater

offenses of murder first degree or second degree, and believed erroneously that there was

sufficient evidence for a conviction of voluntary manslaughter. It is only speculation what the

motivation of the jury was in not convicting Fontaine of the greater offenses at the first trial, and

such speculation does not relieve the People of their burden, by any principle of law or fairness,

to prove guilt beyond a reasonable doubt at the retrial on the lesser included offense. Since the

People have not presented sufficient proof of voluntary manslaughter at the retrial, that charge

and the charge of possession of a firearm during the commission of voluntary manslaughter must

be dismissed. Therefore, Fontaine’s Motion for Judgment of Acquittal as to Counts 1 and 2 will

be granted, and the charges on those counts will be dismissed.



3 7g.



'* Fontaine, 56 VI. at 583.

'S Td. at 582-84.



'© Id. at 582.

People of the Virgin Islands v. Richie Fontaine

Criminal No. ST-09-CR-549



Memorandum Opinion



Page 5 of 6



C. There was sufficient evidence before the jury to find Fontaine guilty

beyond a reasonable doubt as an aider and abettor under Counts 3

through 5 of the Information.



Fontaine argues that the Court should grant his Motion for Judgment of Acquittal because

there was insufficient evidence to find that he was guilty as an aider and abettor in the assault

first degree, unauthorized use of a firearm during the commission of assault first degree and

reckless endangerment in the first degree. The Court disagrees with Fontaine and will deny the

Motion as it pertains to Counts 3 to 5.



Fontaine is charged as an aider and abettor under Counts 3 to 5 in the commission of

separate crimes. To find a criminal defendant guilty of aiding and abetting in the commission of

an offense, the jury has to find beyond a reasonable doubt that “the substantive crime has been

committed and that the defendant knew of the crime and attempted to facilitate it, and must also

produce proof that the defendant had the specific intent to facilitate the crime.”’” Phrased in

another way, for the jury to find “aiding and abetting,” it must find that the Defendant associated

himself with the venture, that he participated in it as something that he wished to bring about,

and that he sought by his words and actions to make it succeed.'



Through the testimony of Ruben, the video evidence, and the ballistics evidence, there

was sufficient evidence to establish that Fontaine and others were in possession of firearms on

August 7, 2009 in the early morning hours at the Club Lexus, that Fontaine and others fired at

Phillip from across the street from the Lexus nightclub, and that Phillip died as a result of the

shots that were fired. The video and the testimony show that there were two groups of

individuals firing shots at Phillip on that night. Two were on the left side of the nightclub, and

there were also two individuals, Alpha and Fontaine, firing from across the street on the right

side of the nightclub.



The jury can conclude from this set of facts that other individuals were the direct actors

in an assault in the first degree, since they assaulted Phillip with firearms with the intent to

commit murder. The evidence is also sufficient to show that Fontaine knew what the other

individuals were doing, that by shooting at Phillip he acted to facilitate the murder, and that he

had the requisite specific intent to bring about the crime. The same reasoning supports the aiding

and abetting conviction under Count 4 of the Information charging Fontaine with unauthorized

possession of a firearm and under Count 5 charging him with reckless endangerment in the first

degree. This Court also notes that the Supreme Court went through the same analysis on the

same set of facts on the appeal from the conviction after the first trial. The Supreme Court found

that there was sufficient evidence to support Fontaine’s conviction as an aider and abettor for the



"7 Td. at 578 (quoting Brown v. People, 54 V.1. 496, 505 (2010)) (internal quotations omitted).

'§ Nanton y. People, 52 V.1. 466, 484 (2009) (quoting United States v. Xavier, 2 F. 3d 1281, 1288 (3d Cir. 1993)).

People of the Virgin Islands v. Richie Fontaine

Criminal No. ST-09-CR-549



Memorandum Opinion



Page 6 of 6



assault, weapons, and reckless endangerment counts.'? This Court draws the same conclusion as

the Supreme Court did, and will deny the motion for judgment of acquittal for Counts 3 to 5.7°



Il. Conclusion



The Court will grant the Motion for Judgment of Acquittal as to Counts 1 and 2 of the

Information, and the Court will deny the Motion for Judgment of Acquittal as to Counts 3

through 5 of the Information. The Court finds that there is insufficient evidence that there was a

sudden quarrel or heat of passion to support the manslaughter conviction, and this lack of proof

also means that there is insufficient evidence to support the conviction of unauthorized use of a

firearm during the commission of a voluntary manslaughter. The evidence that there were other

individuals present at the scene of the crime who were all firing guns at Phillip George and in a

public place, and that Fontaine also participated in these activities, is sufficient to support the

convictions for aiding and abetting an assault first degree, unauthorized use of a firearm during

the commission of assault first degree, and reckless endangerment first degree (Counts 3 through

5 of the Information). The Court will therefore grant the Motion for Judgment of Acquittal as to

Counts | and 2 of the Information and deny the Motion for Judgment of Acquittal as to Counts 3

through 5 of the Information.



DATED: July 17) 2013 LAthh



JAMES S. CARROLL III

Judge of the Superior Court

of the Virgin Islands



ATTEST:



° Fontaine, 56 V.1. at 586.



© This Court also notes that had the People chosen to charge Fontaine as a direct actor, the evidence that Fontaine

possessed a firearm, the testimony of Ruben George that Fontaine was shooting at him and his brother, and the

ballistics evidence would have been sufficient for the jury to find Fontaine guilty beyond a reasonable doubt of the

crimes charged as a direct participant and not solely as an aider and abettor.