IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX: KINGSHILL



GOVERNMENT OF THE VIRGIN ISLANDS,



Plaintiff, ) CRIMINAL NO. 141/1985

)

)



Vv. ) POSSESSION OF A

} CONTROLLED SUBSTANCE

REUBEN MADURO, ) WITH INTENT TO DISTRIBUTE



)



Defendant. )

)



DARRYL DEAN DONOHUE, ESQUIRE

Assistant Attorney General

Office of the Attorney General

Toro Building



Christiansted, St. Croix



U.S. Virgin Islands 00820

(809) 773-0295



(Attorney for Plaintif£)



ESZART A. WYNTER, ESQUIRE

1 Strand Street

Frederiksted, St. Croix

U.S. Virgin Islands 00840

(809) 772-1900



(Attorney for Defendant)



PETERSEN, Judge



MEMORANDUM OPINION

November {2 1985



This matter is before this Court after a jury trial

in which defendant, Reuben Maduro, was found guilty, on two

counts, of possession with intent to distribute a controlled

substance. Defendant now moves this Court for a judgment of

acquittal and/or for a new trial. For the reasons set forth



below both motions must be denied.

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 2



FACTS



On April 16, 1985 a search warrant was issued and

executed upon defendant Maduro's residence. The government

confiscated various drug paraphernalia and controlled

substances. Defendant was not at home during the search but

was arrested on a warrant at his residence the following day,

April 17, 1985.



Defendant filed a Motion for a Bill of Particulars,

which was granted by this Court on May 21, 1985. Defendant

submitted a subsequent Motion to Compel the government to

disclose the identity of its confidential informant and

further to suppress all evidence obtained as a result of the

aforementioned search. A suppression hearing was held on June

28, 1985, during which both motions were denied.



This matter came on for trial September 17, 1985.

During the course of the trial defense attorney objected to

the admission of test results, reports and testimony by the

government's expert a aenesee This Court allowed the expert

witness' testimony as well as the introduction of the test

results and reports by said expert.



At the conclusion of the trial the jury began

deliberations. After approximately three and one-half hours



had elapsed, the Court through its marshal inquired as to the

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 3



jury's progress. The Marshal was advised by the foreman that

the jurors would be through shortly. After returning a

verdict of guilty on both counts, the jury was questioned

individually by this Court to determine the effect, if any, of

the Court's previous inquiry. When asked if they had felt

pressured in any way to make a decision or coerced into

deciding as they did, all twelve jurors replied in the



negative.



ISSUES



This Court must determine whether it erred in (1)

allowing the expert witness’ testimony, (2) denying disclosure

of the confidential informant's identity (3) making an inquiry

of the jury during its deliberations. This Court must also

decide whether the evidence presented by the government was



sufficient to find guilt beyond a reasonable doubt.



DISCUSSION



I.



Defendant Maduro contends that this Court

erroneously admitted the testimony of the government's expert

witness and results of tests conducted by said witness.

Whether to allow expert testimony has long been held to be



within the discretion of the trial judge, and, unless abused,

GOVERNMENT v. MADURO



CRIMINAL NO. 1141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 4



that discretion is left undisturbed. Whether the

circumstances warrant the use of expert testimony is to be

determined on the basis of assisting the trier of fact. Fed.

R. of Evid. 702. The case law supports the opinion that "...

the trial judge is uniquely suited to make such determinations

and we are loath to overturn his considered judgment as to the



admissibility of expert testimony." United States v. Lopez,



543 F.2d 1156, 1158. (5th Cir. 1976)

Relief under the discovery rules is also subject to



the judgment of the trial court. Again, the court's



discretion unless abused is indisputable. United States v.



Krohn, 558 F.2d 390, 394 (8th Cir. 1977), United States v.



Crow Dog, 532 F.2d 1182, 1189 (8th Cir. 1976), United States



v. Cole, 453 F.2d 902, 905 (8th Cir.) cert. denied, 406 U.S.

922 (1972). In the instant case, the defendant filed a timely

demand for discovery under Rule 16(d) of the Federal Rules of

Criminal Procedure. The government responded yet failed to

mention their planned. use of an expert witness or scientific

reports. This Court permitted the testimony of chemist, John

A. Richards, Jr., as to the results of tests conducted on the

controlled substances confiscated from defendant's residence.

Defendant charges this Court with prejudicial error for not



excluding the expert's testimony.

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 5



Mr. Richards is the chemist of record in numerous

cases, involving illegal drugs, in this jurisdiction. His

testimony, as well as the introduction of chemical tests, is

determinative of the composition of the seized contraband.

However, assuming arguendo, that defendant Maduro's

contentions with regard to the alleged abuse of discretion by

this Court were valid, defendant would still be denied relief

for failing to demonstrate any specific prejudice which flows



from this Court's alleged error. United States v. Crow Dog,



supra, at 1189.



Although defense counsel proclaims that he was

surprised by the eleventh hour disclosure of the expert

witness, an examination of the record reveals that chemist

Richards was thoroughly cross-examined. After indicating that

the confiscated controlled substances tested positive for

hashish and marijuana, Richards was painstakingly questioned

by defense counsel as to his testing procedure. At no time

did defendant request a continuance in order to more

effectively investigate and utilize the eleventh-hour

knowledge disclosed in the expert witness’ report, nor has the

defense made a showing of prejudice to his substantial rights.



United States v. Cole, supra at 904, United States v. Swanson,



509 F.2d 1205, 1209, (8th Cir. 1975) United States v. Crow



Dog, supra at 1189, United States v. Krohn, supra at 394.

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 6



II



Defendant Maduro further asserts that this Court

erred in denying his motion to compel government disclosure of

its confidential informant. This Court disagrees.



There is no fixed rule with respect to the

disclosure of the government's confidential informant.

Whether such disclosure is proper must be determined on a case



by case basis. Roviaro v. United States, 353 U.S. 53, 62, 77



S.Ct. 623 (1957), United States v. Scott, 555 F.2d 522, 523



(5th Cir. 1977). Courts must take into account a crucial and

delicate balancing of the desirability of preserving the

informant's anonymity, thus furthering and protecting the

public interest in effective law-enforcement, against the

fundamental fairness attendant to the individual's right to



prepare his defense. Roviaro, supra at 59-60. United States



v. Medina, 18 V.I.R. 7,9 (1980).



Disclosure has been deemed proper where’ the

confidential informant was a participant in an illegal drug

transaction and/or when informant was the sole witness to the



alleged crime. Government v. Petersen, Cr. No. 156/85 (T.C.



Opinion 1985). Roviaro v. United States., supra, at 64, State



v. Buffington 452 So.2d 1313, 1313 (La. App. 1 Cir 1984). The



present case mirrors neither scenario.

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 7



The record demonstrates that the confidential

informer, "John Doe," has proven on many occasions be a

reliable source for the government. The information provided

by John Doe did not in itself establish probable cause but was

corroborated by a narcotics agent and a private pilot. The

information gleaned from the above sources, in total, is



sufficient to show probable cause. Scott, supra at 527,



United States v. Trejo Zambrana, 582 F.2d 460, 463 (9th Cir.



1978).



While it is generally accepted that the government's

privilege to withhold the identity of its informant must give

way when John Doe's identity is relevant and helpful to the

defense or is essential to a fair trial, the burden is on the

defendant to demonstrate the need for disclosure. Trejo,



supra, at 466 (1978), United States v. Marshall, 532 F.2d



1279, 1282 (9th Cir. 1976), United States v. Estrada, 441 F.2d



873, 879 (9th Cir. 1971) and Gaylor v. United States, 426 F.2d



233, 234-235 (9th .Cir. 1970). Mere speculation that

disclosure would prove beneficial is insufficient to require



it. Marshall, supra, at 1282.



The factual situation in the case at bar is easily

distinguishable from that of Roviaro, and Medina. “John Doe"

did not participate in the commission of any crime. Defendant



Maduro has made no such showing for disclosure which outweighs

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 8



the government's interest in protecting its source of

information. In this case, a proper balance does not render



overnment's nondisclosure erroneous.

g

III.



In his final assignment of error defendant Maduro

claims that this Court disturbed the sanctity of the jury

deliberations by communicating with the jurors through its

marshal. Defendant contends that said communication

constitutes reversible error.



The Supreme Court held that the trial judge's

inquiry as to the jury's progress during its deliberations,

specifically its numerical division, is reversible error.



Brasfield v. United States, 272 U.S. 448, 450 (1926). This



ruling is applicable to the courts of the Virgin Islands.



Government v. Romain, 16 V.I.R. 151, 154 (3rd Cir. 1979).



A prophylactic civil rule prohibiting any

communication between the trial judge and the deliberating

jury in the absence of counsel, despite how innocuous, has



been extended to criminal cases in Yarsunas v. Boros, 423 Pa.



364, 223 A.2d 696 (1966) and Kersey Manufacturing Co. v. Rozic

422 Pa. 564, 222 A.2d 713 (1966). However, the more recent

tendency in criminal cases is to require a showing of



prejudice to one or both parties stemming from the

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 9



communication at issue. Commonwealth v. Bradley, 459 A.2d 733



(1983) Bailiffs (or as in the instant case a marshal acting as

bailiff) are allowed to inquire if the jury has reached a

verdict or to make various innoxious statements. State v.



Christensen, 17 Wash. App. 922, 567 P2d 654, 656 (1977).



In the case at bar, the trial convened in the

courtroom customarily assigned to the trial judge. Due to

faulty air conditioning the trial was transferred to an

infrequently utilized alternate courtroom. After the jury was

out over three hours, the marshal, at the request of the Court

inquired of the jury. "How are you, how are you doing?" To

which one of the jurors responded that they were all right and

would be through shortly.



Although this communication took place ex parte,

this court is convinced that such an innocuous query is not

the kind of instruction to which Yarsunas and Gould refer.

Here as in Freeman v. State, 453 So.2d 776 (Ala. Cr. App.

1984) the trial judge was merely inquiring as to how the jury

was progressing which does not constitute prejudicial error.

Id at 778. This singular question did not express or imply an

opinion of the judge but merely expressed a concern over

whether the jurors were comfortable and whether they were



making any progress toward a verdict. Webb v. State, 684 P.2d

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page 10



1208, 1210 (Okl. Cr. 1984).



The defendant complains that the jury was pressured

to return a verdict. The court's question in no way “imposed

an arbitrary limit on the period of deliberation", Freeman,

supra, at 777. This Court took several measures to insure

that the jury had not interpreted the Court's question as a

direction to hastily conclude its deliberation. Both

attorneys were advised in chambers as to what occurred and

were asked if they had any suggestions or questions. This

conference immediately became part of the record. In open

court when the jury returned its verdict they were polled and

questioned individually, by the Court, as follows:



THE COURT: "What I would wish each juror to

indicate to me, at this time, is whether or not the knock on

the door, by the marshal, at the time he did, in any way,

pressured you, rushed you or forced you into making a quick

determination?"



Each juror, in turn, responded in the negative. The

Court then asked the attorneys to approach the bench and asked

if either side had any questions to ask of the jurors. Both

replied that they had none.



The facts of the instant case are | easily

distinguishable from those cases which have held that



prejudicial communications are reversible error.

GOVERNMENT v. MADURO



CRIMINAL NO. 141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE

Page il



Instructions on the law or its application to the facts often

create a high risk of prejudice, as opposed to incidental



communications such as the one involved here. Bradley, supra,



at 734. The Court's question at issue in this case can not by

the broadest stretch of the imagination be construed as a

legal instruction. The opinions in both Gould v. Argiro, 422



Pa. 433, 434, 220 A.2d 654, 655 (1966) and Kersey, supra, were



based on "both the judge's ex parte communication with the

jury and his failure to promptly record the details of the



incident." Bradley, supra, at 736. Here, this Court not only



promptly made the occurrence part of the record, but also gave

counsel for both sides ample opportunity to question the

jurors, in open court, as to any undue pressure which might

have flowed from the Court's inquiry. There is no basis for



the defendant's claim of reversible error.

IV.



Finally, the defendant asserts that the evidence

presented by the government is insufficient to find guilt

beyond a reasonable doubt. Government's expert witness

testified that each bag of an alleged controlled substance

presented to him at trial, for identification, tested positive

for either hashish or marijuana containing THC, as required by



the Virgin Islands Code. This Court can find no deficiency in

GOVERNMENT v.



MADURO



CRIMINAL NO.



141/1985



POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE



Page 12



the substantive or procedural regularity surrounding the proof



as to the guilt of defendant Maduro to warrant setting aside



the jury's verdict.



For the reasons set forth above,



the defendant's



motions for a judgment of acquittal and/or a new trial are



denied.



va)



/



=



Le



yaa



EILEEN R. PETERSEN



Judge