IN THE SUPREME COURT OF THE VIRGIN ISLANDS
KAMAL THOMAS
)
S Ct Civ No 2019 0002
Appellant/Defendant
)
Re Super Ct Crim No 045/2016 (STX)
)
v
)
)
GOVERNMENT OF THE
)
VIRGIN ISLANDS
)
WYNNIE TESTAMARK,l DIRECTOR OF
)
THE V I BUREAU OF CORRECTIONS
)
ET AL
)
Appellee/Plaintiff
)
)
On Appeal from the Superior Court of the Virgin Islands
Division of St Thomas & St John
Superior Court Judge Hon Kathleen Mackay
Considered December 10, 2019
Filed December 28 2022
Cite as 2022 VI 22
BEFORE
RHYS S HODGE Chief Justice MARIA M CABRET, Associate Justice; and
IVE ARLINGTON SWAN Associate Justice
APPEARANCES
Kama] Thomas
St Croix, U S V I
Pro se
Sn Layne Walker, Esq
Assistant Attorney General
Depanment of Justice
St Thomas U S V I
Attorneyfi2r Appellee
OPINION OF THE COURT
' Although Thomas originally named Rick Mullgrav as Director of the Virgin Islands Bureau of Corrections in his
CABRET, Associate Justice
1H
After his March 24, 2010 conviction for third degree assault, using a dangerous weapon
during a third degree assault, simple assault, and two counts of threatening a witness, Kama]
Thomas filed a petition for habeas corpus with the Virgin Islands Superior Court, which dismissed
the petition in part and granted it in part Thomas appeals the court's partial dismissal For the
reasons discussed below, we affirm the Superior Court's memorandum opinion denying Thomas
relief for insufficient evidence to sustain his conviction for third degree assault, but reverse its
Order staying Count VI of his conviction for simple assault and direct the Superior Court, on
remand, to dismiss count VI in accordance with the standard in Titre v People, 2019 VI 3
I
FACTUAL AND PROCEDURAL BACKGROUND
12
On or about the night ofJune 18, 2007 James Cockayne was beaten and killed on St John,
U S Virgin Islands (J A 0014) Kama] Thomas was arrested along with Anselmo Boston and
charged with first degree murder, second degree murder, third degree assault, using a dangerous
weapon during the commission ofa crime ofviolence, and simple assault (J A 0050 ) On October
10, 2008, after a four day jury trial, a jury acquitted Thomas of first and second degree murder
but found him guilty ofthird degree assault, using a dangerous weapon during a crime ofviolence,
and simple assault (J A 0014 )
113
Thomas later filed a motion for a new trial following the discovery of payments by
Cockayne's family to witnesses in connection with the trial (J A 0014) After a hearing on the
motion, the trial court ordered a new trial, and Thomas was tried for the second time in March
2010 on the charges of third degree assault pursuant to 14 V I C
§ 297(2), using a dangerous
weapon during the commission of a crime of violence pursuant to 14 V I C
§ 2251(a)(2)(B),
simple assault pursuant to 14 V I C § 299(2) and two counts of threatening a witness, pursuant to
14 V I C § 1510(a)(1) and (2)
(J A 0051 )
We have previously recounted certain relevant
features of the second trial
At Thomas's second trial the People presented evidence that on the evening
of June 18, 2007, Anselmo R Boston, Thomas's co defendant, was involved in a
heated altercation with Cockayne at a bar in St John for supposedly kicking his
girlfriend's jeep earlier that day, and that Boston struck him with a pool cue At the
time ofthis altercation, witnesses placed Thomas inside the bar with Boston A few
moments after the altercation was over a witness saw Thomas pick up a wooden
stick outside the bar, and then run up the street with Boston alter Cockayne At
around the same time that the witness from the bar saw Thomas and Boston chasing
Cockayne up the street, Leann Oquendo, who was in her car several blocks away,
saw three black males running up the road in the direction of a white male She
further stated that one ofthe individuals running up the road was carrying a wooden
stick, and that when the three individuals reached the white male, they surrounded
him in the street The individual holding the stick then attempted to hit the white
male with the stick, but stopped because Oquendo blew her car horn After deterring
him from hitting the white male twice by blowing her horn, Oquendo drove away
to alert the authorities, leaving the white male in the street still surrounded by the
three other individuals
The People contended that the white male Oquendo saw was Cockayne, and
that the individual with the stick was Thomas The People further contended that
after Oquendo drove away to alert the authorities, Thomas and the other two
individuals assaulted Cockayne To support the People's theory that Cockayne was
assaulted after Oquendo drove away, the People called Dr Francisco Landron, a
forensic pathologist and medical examiner, who testified
that an
external
examination of Cockayne's body revealed that he had sustained a substantial
amount of blunt force injuries These injuries manifested themselves in the form of
contusions and abrasions, and were visible on Cockayne's face, arms, neck,
shoulder, and legs Dr Landron further stated that these injuries were consistent
with the type of injuries a person could have gotten from being struck with a stick
or a piece of wood Dr Landron, however, did not testify concerning Cockayne's
cause of death Nor did he suggest that his cause of death was related in any way to
his blunt force injuries
Thomas v People (Thomas I), 56 V I 647, 656 (V I 2012) Based on this evidence, Thomas was
found guilty on all counts Thomas then filed a motion for a new trial and subsequently, a
supplement to that motion In Thomas's supplement to his motion for a new trial, he alleged that
juror misconduct had deprived him ofhis right to a fair trial and requested a hearing on the matter
The trial court denied Thomas's request for an evidentiary hearing (J A 0015 ) On appeal, we
found the trial court's denial was an abuse ofdiscretion and remanded with instructions for the trial
court to conduct an evidentiary bearing on the matter Thomas v People , 56 V l 647 (2012)
After conducting an evidentiary hearing, the trial court found that no juror misconduct had
occurred and this Court upheld that finding Thomas v People 60 V I 688 (2014)
1|4
Two years later, Thomas filed a petition for habeas corpus alleging that (1) the jury at his
trial lacked impartiality due to pretrial publicity and ineffective voir dire, (2) he had ineffective
assistance ofcounsel, (3) there was insufficient evidence to sustain his assault convictions, and his
sentence violated both (4) 14 V I C § 104 and (5) 5 V I C § 3672(a) (J A 0016) The Superior
Court issued the writ on March 19, 2018 and held a hearing on the matter on August 7, 2018 (J A
0009 1 l) The Superior Court, in its November 13, 2018 memorandum opinion, found that Thomas
failed to show that he was convicted by a jury that was not impartial, that he received ineffective
assistance of counsel, or that the evidence was insufficient to sustain a conviction (J A 0047)
However, the Superior Court did find that Thomas's sentence was improper in that it violated 14
V I C § 1042 and 5 V I C § 3672(a) 3 To remedy these violations the court entered an order in the
underlying criminal case formally staying the imposition of his sentence for simple assault and
2Section 104 provides that an “act or omission which is made punishable in different ways by different provisions of
this Code may be punished under any of such provisions, but in no case may it be punished under more than one,”
and that “[a]n acquittal or conviction and sentence under any one bars a prosecution for the same act or omission
under any other ”
3 Section 3672(a) provides that “[a] judgment imposing a sentence of imprisonment shall specify whether the
sentence is to be served concurrently with or consecutively to any other sentence imposed at the same time or prior
thereto Ifthe sentences are to be served consecutively,
further clarifying the nature of his sentence as required by the relevant statutes Thomas filed a
timely notice of appeal with this Court on December 19, 2018 (J A 0001 )
II
JURISDICTION AND STANDARD OF REVIEW
115
“The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final
decrees or final orders of the Superior Court, or as otherwise provided by law ” V I CODE ANN
tit 4, § 32(a) “A final order is a judgment from a court which ends the litigation on the merits,
leaving nothing else for the court to do except execute the judgment ” Williams v People, 55 V I
721 , 727 (V I 2011)
Because the Superior Court’s November 1, 2018 memorandum opinion and
order disposed of all the claims in Thomas’s petition for habeas corpus relief, it is an appealable
final judgment
Brooks v Gov t ofthe V1 58 V I 417 422 (V I 2013)
116
The standard of review for this Court's examination of the Superior Court's application of
the law is plenary, while findings of fact are reviewed for clear error Heylzger v People, 66 V I
340 348 (V I 2017) (citing St Thomas St John Bd ofElectlons v Daniel 49 V I 322 329 (V I
2007)) The standard of review for a claim of insufficiency of the evidence regarding a criminal
conviction is whether there is substantial evidence, when viewed in the light most favorable to the
government, to support the jury's verdict, such that a rational trier of fact could have found the
presence ofthe essential elements ofthe crime beyond a reasonable doubt Rater v People, 51 V I
354 359 (VI 2009)’ see also Rodriguez v Bureau ofCorrecnons 58 VI 367 371 (VI 2013)
This Court reviews the trial court's grant ofa petition for habeas corpus de novo George v Wzlson
59 VI 984 989 (VI 2013)
III
DISCUSSION
1W
On appeal, Thomas argues that the Superior Court erred by
(l) failing to address his
argument concerning the insufficiency ofthe evidence and (2) by staying his conviction for simple
assault The People contend that the Superior Court did address Thomas’s insufficiency of the
evidence argument and did not err in finding that there was sufficient evidence to sustain Thomas’s
assault convictions The People also argue that the Superior Court properly resentenced Thomas
under the then prevailing interpretation of 14 V I C
(3‘ 104
but agree that Thomas must
nevertheless be resentenced in accordance with our decision in Tme See Titre 2019 VI 3, 1H] 17
20 (overruling a portion of Williams v Pe0ple 56 V I 821 834 n 9 (V I 2012))
A
Sufficiency of the Evidence
‘8
Thomas argues that the People failed to present sufficient evidence to support his
conviction for third degree assault This Court held in Rivera Moreno that a habeas petitioner can
raise purely legal questions through a habeas petition Rivera Moreno v Gov 't ofthe V1 , 61 V I
279, 303 (V I 2014) “This would include challenges to the sufficiency of the evidence when not
otherwise procedurally barred, since a conviction based on insufficient evidence presents an error
of constitutional dimension that must be remedied ” Blyden v Gov? ofthe VI , 64 V I 367, 376
(V I 2016) (citing Jackson v Virginia 443 U S 307 316 (1979))
119
To obtain a conviction for third degree assault under 14 V I C § 297(a)(2), the People must
prove, beyond a reasonable doubt, that the defendant committed an assault, and that the assault
was comm1tted “with a deadly weapon ” See Cascen v People, 60 VI 392, 407 (VI 2014)
(quoting Phipps v People 54 V I 543 550 (V I 2011))' 14 V I C §297(a)(2) An assault is any
unlawful violence upon the person of another with an intent to injure him, whatever be the means
or degree of violence used ” 14 V I C § 292 “When [an] appellant[] challenges the sufficiency
of the evidence presented at trial
all issues of credibility within the province of the jury must be
viewed in the light most favorable to the government ’” Latalladz v People, 51 V I 137, 145 (V I
court must be particularly deferential when detennining whether ajury verdict rests on insufficient
evidence [and] may not usurp the role ofthe jury by re weighing the evidence and re assessing the
credibility of witnesses ” Todman v People, 59 V I 675 681 (V I 2015) (citing United States v
Borza, 592 F 3d 476, 480 (3d Cir 2010)) A reviewing court must affirm a jury's verdict as long
as substantial evidence was presented at trial to allow a rational trier of fact to convict when the
evidence is viewed in a light most favorable to the government Webster v People, 60 V I 666,
678 79 (V I 2014) Cascen 60 V I
at 401
Stevens v People 52 V I 294 304 (V I 2009)
Therefore, “[a]n appellant who seeks to overturn a conviction on insufficiency of the evidence
grounds bears a very heavy burden ” Id (quoting Unzted States v Losaa'a, 674 F 2d 167, 173 (2d
Cir
1982)) (internal quotation marks omitted)
Moreover, a finding of insufficiency of the
evidence should be confined to those cases in which the prosecution's failure to establish the
elements of the crime is clear James v People, 60 V I 311, 318 (V I 2013), Todmann v People,
59 V I 926 934 (V I 2012)
1|10
After reviewing the evidence presented at Thomas’s trial, the Superior Court concluded
that a rational jury could have found that the prosecution proved the elements necessary to convict
Thomas on all the assault related charges beyond a reasonable doubt Specifically, the Court
reasoned that,
Rawlins and Sprauve both testified to seeing Thomas chase Cockayne down the
street with another individual Oquendo testified to seeing Thomas chase a white
male down the street Rawlins testified to seeing Thomas pick up a wooden stick
Oquendo saw one of three individuals preparing to hit a fourth, white male with a
stick as they stood surrounding him Cockayne was later found with multiple blunt
force injuries that were consistent with injuries from being beaten with a stick or
wooden object A rational jury could have concluded that Thomas, after grabbing
a stick, ran after Cockayne, and then assaulted Cockayne with the stick or aided
and abetted another in Assaulting Cockayne A rational jury could also have
concluded that, because of the manner in which the stick was used, it was a deadly
Thomas v Govt ofthe VI No ST16 MC 45 2018 WL 6012539 at *13 (VI Super Nov 13
2018) (unpublished) "
1|ll
According to Thomas, the People's evidence was insufficient because “being placed at the
scene of a crime does not prove [his] guilt” (Appellant’s Brief 6) Specifically, Thomas argues
that neither Kenneth Rawlins nor any ofthe other witnesses, (Kaitlyn Bertolino, Thomas Debelek,
or Anselmo Boston) placed him inside the bar during the altercation and that there is no other
evidence to prove he was involved in the bar fight or aided and abetted an assault (Appellant’s
Brief 6) Thomas focuses the majority of his argument on the contention that the People did not
prove that Thomas associated himself with the venture, that he participated in it as something he
wished to bring about, or that he sought by his words or actions to make it succeed and therefore
the People did not prove he aided and abetted the assault (Appellant’s Brief 7 )
1112
We hold that Thomas has failed to meet the very heavy burden in advancing an
insufficiency of the evidence claim Latalladz, 51 V I at 145 First, Thomas argues that there was
not enough evidence of his involvement in an altercation in the bar to sustain his conviction for
third degree assault, however, Thomas's third degree assault conviction was for the altercation in
4 In a direct appeal following Thomas and his co defendant Boston's first trial, this Court reviewed a challenge by
Boston to the sufficiency of the evidence to convict him The Court, on that appellate review, considered the
testimony from the trial and "recapitulate[d] the facts in the light most favorable to the People " Boston v People, 56
V I 634, 636 (2012) [n the instant action, the Superior Court used these facts from our opinion in Boston's appeal in
its analysis of the sufficiency of the evidence to convict Thomas who was not a party to that appeal However, while
the Superior Court erred when it relied on a summary of facts from a case to which Thomas was not a party, reversal
is not required if such error was nevertheless harmless A "[h]armless error is '[alny error defect, irregularity, or
variance that does not affect substantial rights,’ and thus ‘must be disregarded ’” Phillips v People, 51 V l 258, 278
(V I 2009) (quoting Fed R Crim P 52(a)) Because Boston and Thomas were tried together, all the same testimony
and evidence was presented during their combined trial Therefore, the evidence and testimony on which the
the street, not the one in the bar (Second Amended Complaint 3) 5 Though no one directly
observed Thomas assault Cockayne, Kenneth Rawlins unequivocally identified Thomas and
testified that he saw Thomas pick up a wooden stick outside the bar, and then run up the street
with Boston after Cockayne Thomas I, 56 V I at 650 Also, Leann Oquendo testified that she saw
three black males running up the road in the direction of a white male and that one of the
individuals running up the road was carrying a wooden stick Id She also testified that when the
three individuals reached the white male, they surrounded him in the street and the individual
holding the stick then attempted to hit the white male with the stick but stopped because she blew
her car horn Id After deterring him from hitting the white male twice by blowing her horn,
Oquendo drove away to alert the authorities, leaving the white male in the street still surrounded
by the three individuals Id The People also introduced evidence via a forensic pathologist and
medical examiner that Cockayne's body revealed that he had sustained a substantial amount of
blunt force injuries that manifested themselves in the form of contusions and abrasions, and were
visible on Cockayne's face, arms, neck, shoulder, and legs Id at 650 51 This witness also testified
that these injuries were consistent with the type ofinjuries a person could have received from being
struck with a stick or a piece of wood Id at 651
1113
Ftom this testimonial evidence, the jurors could reasonably infer that Thomas was the man
with the wooden stick whom Leann Oquendo observed standing over Cockayne and attempting to
5 The Second Amended Complaint as it pertains to count four, third degree assault charged Thomas with striking
James Cockayne ‘ over his body with a wooden stick,” in violation of V 1 CODE ANN tit 14 § l [(3) This is notably
different from count one of Second Amended Complaint which charged Anselmo Boston with third degree assault
for striking Cockayne over his body with a ‘ pool stick” and count six which charged Thomas with simple assault for
striking Cockayne “several times about his body with no mention of a weapon Because witnesses Rawlins and
Oquendo testified to seeing Thomas pick up the stick directly outside of the bar and to seeing him in the middle of
hit him Additionally, based upon the forensic pathologist’s testimony describing Cockayne’s
injuries, the jury could reasonably have inferred that, after Oquendo drove away, Thomas hit
Cockayne with the stick
This evidence, when viewed in the light most favorable to the People
was more than sufficient to allow the jury to find beyond a reasonable doubt that Thomas, with a
deadly weapon,6 committed “unlawful violence upon the person ofanother with an intent to injure
him,” and therefore, to sustain Thomas’s conviction for third degree assault Accordingly, we
reject Thomas’s argument that there was insufficient evidence to sustain his conviction for third
degree assault
B
The Double Jeopardy Clause of the Fifth Amendment and 14 V l C §104
{[14
Thomas argues that the Superior Court erred by failing to “stay the [sentence for] third
degree assault and re sentence [Thomas]’ in accordance with 14 V I C § 104 (Appellant’s BR at
10 ) However, § 104 provides that “[a]n act or omission which is made punishable in different
ways by different provisions ofthis Code may be punished under any ofsuch provzszons, but in no
case may it be punished under more than one ” (emphasis added) In its January 28, 2019 order
amending sentence, the Superior Court stayed the imposition ofThomas’s six month sentence for
simple assault, treating the simple assault conviction as a lesser included offense and leaving
Thomas to serve only a single sentence for third degree assault (J A 0061) Therefore, the Superior
Court satisfied the requirements of 14 V I C § 104 by imposing punishment upon Thomas under
only one statute and did not err in declining to stay Thomas’s conviction and sentence for third
degree assault
6 “A deadly weapon is generally described as any firearm or other device, instrument, material, or substance that,
from the manner in which it is used or is intended to be used, is calculated or likely to produce death In some states
the definition encompasses the
'15
However, as the People concede, in the time since the Superior Court issued its order
amending Thomas's sentence, this Court has altered the merger and stay procedure adopted in
Wzllzams Titre v People 2019 VI 3, 1m 17 20 (discussing Williams 56 V I at 832) In Tme this
Court explained that not only did the merger and stay doctrine cause “significant confiJsion,” but
no legitimate purpose is served by having the remedy for a section 104 violation be different from
the remedy for a violation of the Double Jeopardy Clause Titre 2019 VI 3, 1] 20 This Court thus
held in Titre that vacatur shall instead be the remedy in cases in which section 104 is implicated
Id
IV
CONCLUSION
116
We agree with the Superior Court that the evidence presented at Thomas’s trial was
sufficient to sustain his conviction for third degree assault Accordingly, we affirm the Court’s
November 13, 2018 Order denying Thomas’s petition for habeas corpus relief based upon
insufficiency of the evidence However, we remand this matter to the Superior Court with
instructions to vacate Thomas’s conviction and sentence for simple assault in accordance with this
Court’s decision in Tztre
Dated thisfl’dfiDecember, 2022
BY THE COURT
V
ATTEST
VERONICA J HANDY, ESQ
Clerk 0
e Court
By
Deputy Cler
\ a 628 g261