On Appeal From The District Court of the Virgin Islands. (D.C. Crim. No. 90-35)
Before: Stapleton, Hutchinson, and Nygaard, Circuit Judges
Appellant Paul Mills was convicted of Third Degree Burglary and Grand Larceny. The district court sentenced Mills to the mandatory minimum sentence of ten years pursuant to the habitual criminal statute since he had been convicted of a felony in 1988. The issue on appeal is whether Mills' Sixth Amendment right to Compulsory Process was violated when the district court refused to allow a material witness to testify at Mills' trial. We conclude that it was and will reverse the district court's Order of Judgment and Commitment and remand for a new trial.
Janet Ellison, a tourist visiting the Virgin Islands, returned to her room at the Virgin Isles Hotel at around 10 p.m. She found that it had been ransacked and she saw a man fitting Mills description in the room with a large bag under his arm. She exchanged words with him and he ran from the room. Mills was arrested soon after. Ellison identified Mills twice after the incident: in a photo-array at the police station, and at Mills' trial.
Only one other witness, a hotel security guard named Maurice Maynard, placed Mills near the scene of the crime. Maynard told the police that he encountered a man fitting Mills description in a hallway of the Virgin Isles Hotel several seconds after being summoned to Ellison's room. When he asked the person his name, the person replied "Gene." Maynard picked Mills' photo out of a police photo album.*fn1
On the evening of the burglary, Maynard spoke with several people living in a shanty town near the Virgin Isles Hotel. After giving a description of the man he saw in the hallway, the shanty dwellers told Maynard that the description lit a local individual known as "Commander." Maynard did not follow up this lead, nor did he tell the police about "Commander."
Later, during a conversation with David Jackson, an investigator for the Federal Public Defender, Maynard told Jackson that his identification of Mills from the photo volume was probably not correct. Maynard told Jackson about "Commander" and described the man he saw in the hallway as small. Maynard did not tell the police or the U.S. Attorney that he believed his statement to be inaccurate. Maynard left his job as a security guard and moved to Florida to attend college.
Mills was charged in a two count information with Third Degree Burglary, 14 V.I.C. § 444, and Grand Larceny, 14 V.I.C. § 1083(1). The U.S. Attorney subpoenaed Maynard to testify at Mills' trial. Mills also subpoenaed Maynard after he learned that Maynard's identification testimony may be inconsistent with his statement to the police.*fn2 Maynard voluntarily travelled to the Virgin Islands at his own expense to testify at Mills' trial. Unfortunately, Mills' trial was postponed for two weeks. Before returning to Florida, Maynard warned the U.S. Attorney that it he would be difficult for him to return in two weeks because he had college examinations scheduled. Maynard refused to return to the Virgin Islands on the day before Mills trial and the U.S. Attorney issued a warrant. He was arrested in Florida and taken to the Virgin Islands by the U.S. Marshal's Service.
At his trial, and after all other government witnesses testified, the U.S. Attorney called Maynard. Maynard took the witness stand but refused to testify.*fn3 The district court questioned Maynard why he was refusing to testify and why he should not be held in contempt. Maynard's reasons were unsatisfactory and the district court found him in contempt of court and remanded him to the custody of the Marshal's Service.
With Maynard unwilling to testify, the U.S. Attorney and the Federal Public Defender entered into an evidentiary stipulation. They stipulated that Maynard's original written statement to the police would be entered into evidence, but that Mills would be allowed to call investigator Jackson to impeach Maynard's statement.
Unknown to either party, Maynard had told the U.S. Marshals, within minutes after he was taken from the courtroom, that he was willing to testify and that he regretted his behavior on the witness stand. The Marshals immediately told the court. Notably, Maynard told the U.S. Marshals that he was willing to testify that Mills, the defendant in the courtroom, was not the man Maynard saw in the hallway of the Virgin Isles Hotel. Indeed, Maynard said that Mills was much larger physically than the person he had seen. This new testimony would contradict his written statement to the police and his identification from the ...