APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS Criminal Nos. 76-64 and 76-65.
Seitz, Chief Judge, Gibbons and Hunter, Circuit Judges.
David Castillo was convicted on one count each of grand larceny, trespassing, and carrying an unregistered firearm, all in connection with the rustling of a heifer from a cattle farm on St. Croix. He was sentenced by the District Court for the District of the Virgin Islands to concurrent terms of four months, two months, and six months on the respective convictions. On appeal, Castillo argues first that there was no evidence corroborating the damaging testimony of his accomplice, as required by 14 V.I.C. § 17.*fn1 Second, he contends that evidence of his prior felony conviction was improperly introduced. Because we agree with the second contention, we must reverse and remand for a new trial.
According to the accomplice testimony of Francisco Navarro, Navarro visited Castillo's residence on the night of March 28, 1976. Castillo lived in a house owned by his girlfriend, whose name was unknown to Navarro. (Later testimony established that the girlfriend was Louisa Santiago.) The house had been a bar and restaurant, but had ceased operations. After a few drinks, Castillo suggested to Navarro that they "go for a heifer." He fetched a shotgun from his room, which adjoined the public areas of the bar, and Navarro procured two knives. The two then drove in Navarro's taxi to a nearby cattle farm. They entered the pasture, and Castillo shot a heifer. The two men skinned the animal, cut it into several large hunks, put it in the trunk of the taxi, and returned to Castillo's residence. The next morning, after Santiago had left the house, they removed the meat from the taxi's trunk and put it in the kitchen.
Later that day the police - who had been informed that Navarro's taxi had been observed at the scene of the crime - stopped the taxi to question Navarro and Castillo. After that questioning, Navarro and Castillo returned to the Santiago house, where Castillo hid the meat and the shotgun while Navarro slept. The police arrived shortly thereafter and discovered chunks of meat hidden in the cistern, in the jukebox, and in the rafters above the ceiling. Also secreted above the ceiling was the gun.
Louisa Santiago testified that on March 29, the day the meat was carried into and hidden within the house, the only set of keys to the house was in Castillo's possession. Santiago had tried to enter the house that afternoon, but found it locked. When she returned later in the afternoon, she found the back door open, and saw the police taking Castillo and Navarro into custody.
Both men were charged with grand larceny and trespassing. Castillo was also charged with possession of an unregistered firearm, in violation of 14 V.I.C. § 2253(a).*fn2 Navarro pleaded guilty to the lesser charge of petit larceny and trespass. Castillo pleaded not guilty to all charges.
Before trial, defense counsel moved to strike from the firearms charge language indicating that Castillo had previously been convicted of second degree murder. He also made a motion in limine to prohibit further mention of the prior conviction. The Government insisted that, because section 2253(a) provides a stiffer maximum penalty for offenders who have prior felony convictions, the prior conviction was an element of the offense that had to be proved. Castillo's counsel argued that the prior conviction went only to the nature of the penalty, not to the elements of the crime, and offered to stipulate to the court that Castillo had a prior felony conviction.
The district court agreed that the prior conviction was an element of the offense, but ruled that the specific crime need not be mentioned. Both the amended information and the written verdict forms given to the jury indicated that Castillo had been previously convicted of a felony. Defense counsel objected to both. The court's instructions to the jury apparently were not recorded. The notes used by the court in giving those instructions, however, indicate that the prior conviction was not listed as one of the elements of the firearms violation with which the defendant was charged.*fn3
At the close of the prosecution's case, defense counsel moved for a judgment of acquittal with respect to all three charges. Castillo brings this appeal, alleging that the district court erred in denying his motion for a judgment of acquittal and in permitting the Government to inform the jury of his prior conviction.
We cannot agree with Castillo's contention that he was entitled to a judgment of acquittal because there was no evidence corroborating the accomplice testimony, as required by Virgin Islands law. As we have interpreted that law, the only corroboration required is evidence "tending to connect defendant with the crime." Government of the Virgin Islands ...