APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX (D.C. Crim. No. 77-155)
Before Seitz, Chief Judge, and Weis and Garth, Circuit Judges.
A Virgin Islands statute repealed after defendants' trial required that accomplice testimony be corroborated before conviction could be had. Concluding that the repealed statute is applicable to crimes committed before its revocation, and finding no corroboration against one defendant, we vacate his conviction. We also hold that a coconspirator is an accomplice within the meaning of the statute and because the trial court's charge was at odds with that construction, we order a new trial on the conspiracy count against the other defendant.
Defendants Civil and James were convicted on charges of robbery, unauthorized use of a motor vehicle, and conspiracy to commit robbery. V.I. Code Ann. tit. 14, §§ 11, 1861, 1862(2), 1382, 551(1). Civil was convicted on an additional count of using a firearm during the commission of a robbery, Id. § 2253. Before the cases were submitted to the jury, the court dismissed counts of kidnapping and petty larceny against both Civil and James.
The events leading up to the crimes occurred after an all-night drinking session, when Norman Smith took two men previously unknown to him, Kenneth Lawrence and Cymandy James, for a ride in his automobile. They first stopped at Christiansted Fort where Lawrence left in an unsuccessful search for marijuana. While he was on his errand, a policeman approached Smith and James as they sat in the automobile and asked them for identification. Satisfied with their responses, the officer walked away. The officer met Lawrence as he returned to the car and he, too, was asked to identify himself.
The three men then drove to a restaurant where Smith and Lawrence had breakfast. James did not join them but called Lawrence aside and asked if Smith had any money. On learning that Smith did have some cash with him, Cymandy James sought and found James Civil, who, with a sawed-off shotgun concealed on his person, waited at the car with James for the others to finish their meals. When Smith and Lawrence returned to the automobile, the four men drove off, ostensibly still in search of marijuana. Smith was directed to drive to an isolated area of the island and was then forced at gun point to get out of the car, was robbed, and left behind while the three men escaped in his automobile.
Lawrence pleaded guilty before trial and in testimony for the prosecution implicated both James and Civil. Smith testified about the events leading up to the robbery and identified James in the courtroom. The police officer pointed out James and Lawrence as the men he saw with Smith at Christiansted Fort.
During his testimony, Smith referred to Civil by name as the one who had held the gun during the robbery. Smith admitted, however, that he had not known Civil before the robbery and had learned his name from the caption of the case and newspaper articles. Smith was not asked to and did not identify Civil in the courtroom or, insofar as the record reflects, at any other time. Thus, the only testimony identifying Civil as the third robber was furnished by Lawrence.
At the conclusion of the prosecution's case, Civil moved for dismissal on the ground there was no corroboration of the accomplice's testimony linking him to the crime as required by Virgin Islands statute. The district judge ruled, however, that the corroboration statute did not apply to conspiracy and denied Civil's motion as well as James's general request for dismissal.
The judge charged the jury that corroboration of an accomplice's testimony was not necessary to prove a conspiracy but was required with respect to the substantive offenses of robbery, unauthorized use of a motor vehicle, and carrying a firearm during the commission of a robbery. The jury returned verdicts of guilty on all counts against both Civil and James. Both defendants have raised numerous issues on appeal, but we find only application of the corroboration statute to have merit.*fn1
At the time of the robbery and at the time of trial, title 14, § 17 of the Virgin Islands Code provided:
"No conviction can be had upon the testimony of an accomplice unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. The corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission."
On October 25, 1978, a few weeks before argument of these appeals, Act No. 4229, repealing § 17 in its entirety, was signed into law. Our first consideration, therefore, is whether to apply the ...