ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN (D.C. Crim. No. 76-10).
Van Dusen, Weis and Garth, Circuit Judges.
Whether a jury may return a valid verdict on one of two counts in an information after being discharged because of inability to agree on the other is one of the issues raised in these appeals. Another is the contention that the former jeopardy principle barred the defendant's trial on a murder charge when he had already been convicted for possession of a dangerous weapon, the knife used in the killing. We decide these points and others adversely to the defendant and affirm his convictions.
In January, 1976, the defendant Smith became involved in a barroom dispute on the island of St. John, Virgin Islands. He left the bar and, on returning a short time later, challenged a patron named Walsky to come outside and fight. Walsky complied and, in the ensuing struggle, was stabbed to death by Smith.
Smith was arrested for first degree murder and, since he was 17 years of age, was brought before the Juvenile Division of the Territorial Court of the Virgin Islands, pursuant to 4 V.I.C. § 176. After a hearing, at which the defendant was represented by counsel, the judge found probable cause to believe that a crime had occurred involving violence upon the person of another, and that the minor had committed the crime. The defendant was then transferred to the district court for criminal proceedings.
In the district court, a two-count information was filed, charging the defendant with murder in the first degree (later reduced by the Government to second degree), and with carrying or using dangerous weapons.
On February 19, 1976, trial commenced before a jury, and on Saturday, February 21, 1976, the court declared a mistrial because the jurors had been unable to reach a verdict. Within an hour thereafter, the jury foreman telephoned the trial judge and advised him that during their deliberations the jurors had agreed upon a verdict on one count. The jurors were reconvened on the following Monday morning and returned a verdict of guilty on the weapons charge.
A second trial on the murder charge also resulted in jury disagreement, but on the third trial the defendant was found guilty of murder in the second degree.
The defendant has filed two appeals: one from the dangerous weapon conviction, and the other from the murder count. Since the issues are interrelated, both appeals will be reviewed in this opinion.
The principal issue in this appeal is whether the verdict delivered after the jury's discharge is sustainable. A further development of the factual background on this point is helpful.
The jury began its deliberation on Friday afternoon, February 20, 1976, at 3:35 P.M., and continued until 2:30 A.M. the following morning.*fn1 It resumed deliberations at 10:24 A.M., and at 2:34 P.M. was called into the courtroom by the trial judge. He told the jurors he believed a deadlock had been reached and it would not be fruitful to continue deliberations. The judge concluded by commending them for their efforts. No comments were made by the jurors, who were then dismissed and told to report for further duty on the following Monday morning.
Less than an hour later, the jury foreman telephoned the trial judge and advised him that a verdict had been reached as to Count II (the weapons charge). He said that the verdict slip was in an unsealed envelope in a drawer in the jury room. At the trial judge's direction, a court official then telephoned the foreman who precisely described the location of the verdict slip. After the court employee found two envelopes at the specified place, he delivered them to the trial judge who directed that they be sealed.
On Monday morning, February 23, 1976, the jurors reassembled in the courtroom.In the absence of the trial judge, another district judge presided, and the foregoing facts were entered in the record. The foreman read the verdict of guilty and, on the poll, all the jurors agreed with the finding. In response to a question from the presiding judge, the foreman stated that the verdict on Count II had been agreed upon shortly after 10:00 P.M. on Friday evening. At no time did the defendant object to the dismissal of the jury on the preceding Saturday afternoon or its reconvention and return of the verdict on Monday.
An examination of the exhibits in this case reveals a separate verdict slip for Count II, with each juror's ...