                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-2001

Virgin Islands v. Albert
Precedential or Non-Precedential:

Docket 00-1604




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"Virgin Islands v. Albert" (2001). 2001 Decisions. Paper 30.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/30


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed February 23, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-1604 and 00-3306

GOVERNMENT OF THE VIRGIN ISLANDS

v.

NICHOLAS ALBERT,
       Appellant

Appeal from the Appellate Division of the
District Court of the Virgin Islands
(D.C. Crim. No. 97-cr-00004)

Argued
December 7, 2000

Before: MANSMANN and ALITO, Circuit Judges, and
FULLAM, District Judge.*

(Filed February 23, 2001)



_________________________________________________________________
* The Honorable John P. Fullam of the United States District Court for
the Eastern District of Philadelphia, sitting by designation.
       Iver A. Stridiron
       Attorney General
       Frederick Handleman
       Solicitor General
       Maureen Phelan Cormier (Argued)
       Assistant Attorney General
       Department of Justice
       48B-50C Kronpindsens Gade
       GERS Bldg., 2nd Floor
       St. Thomas, U.S.V.I. 00802

        Counsel for Appellee

       Andrew C. Simpson, Esquire
        (Argued)
       Bryant, Barnes & Simpson, P.C.
       47 King Street, 2nd Floor
       Christiansted, VI 00820

        Counsel for Appellant

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Nicholas Albert appeals from the judgment of sentence
entered after his conviction of first degr ee felony murder
and other related offenses. Albert ar gues that he is entitled
to a new trial because the trial court abused its discretion
when it admitted a videotape of the crime scene which
included graphic views of the victim.

After viewing the videotape in its entirety, we conclude
that the Territorial Court properly ruled that the probative
value of the crime scene videotape outweighed its
prejudicial impact. Albert's defense to thefirst degree
murder charge was that he was not involved in the murder.
The videotaped evidence is to the contrary. Despite its
gruesome depictions, its admission was not an abuse of
discretion. In addition, assuming the videotape was
cumulative of crime scene photos also admitted into
evidence, given the other evidence of Albert's guilt, we find
that its admission was harmless error . We will, therefore,
affirm.

                                2
I.

On November 24, 1995, Barbara Cromwell arrived at her
family's vacation condominium on St. Croix. Cr omwell was
president of the Board of Directors of the condominium
complex and had come to St. Croix to start negotiations
with an insurance company and local contractors to
reconstruct the premises after extensive damage caused by
a hurricane. John Reichert, the owner of another unit and
a friend of Cromwell's, also traveled to St. Cr oix to
participate in the discussions.

On November 27, Reichert and Cromwell saw a"little
guy" on the premises of the complex looking through an
open door of Cromwell's unit and lurking ar ound the
condominium property. Reichert told the young man to
leave. A little later, Reichert and Cr omwell discovered three
young men inside one of the condominium units and called
the police. One young man ran away. The second, identified
as the defendant, 15-year old Nicholas Albert, picked up a
rock and threatened Reichert. The thir d man, later
identified as Johnny Kidd, the "little guy" previously sighted
on the property, left the area and walked down to the beach
followed by Albert.

Reichert and Cromwell spent the evening of November 28
at Cromwell's condo, reviewing insurance papers. Reichert
left about 10 p.m. Shortly thereafter, Kidd and Albert crept
into Cromwell's second-story unit. The pair searched the
apartment and took five to six hundred dollars from
Cromwell's purse. They proceeded to rifle through dressers,
a suitcase and a storeroom.

Kidd and Albert then moved into the bedroom where
Cromwell was sleeping. Kidd took a lighter and started
flashing it over Cromwell's face. She woke up screaming.
What happened next was the source of dif fering testimony
at trial. According to Albert, Kidd deter mined that Cromwell
should be tied up. Albert testified that he picked up a pair
of white shoes, took the shoelaces out and he and Kidd
each tied one of her hands to the bed. After Cr omwell was
tied, Albert went through the dressers in the bedrooms. He
then left the room and found a set of keys. He went back
into the room and asked Cromwell to point out which key

                               3
opened the outside gate. Albert left to unlock the gate,
returned and removed a television, VCR and stereo from
the unit. He testified that Kidd then walked out of the
bedroom and said "she dead, you know." Albert saw blood
on the wall, left the condominium and loaded Cr omwell's
car with the fruits of the robbery.

The government's version of events dif fers. The
prosecution theorized that when Cromwell woke up and
screamed, one of the intruders slashed at her with a knife
while the other blocked her escape by hitting her with a
blunt object. Under the government's scenario, while
Cromwell attempted to fight off her attackers, she was
overcome by a knife stab to her throat, cutting the jugular
vein and severing her windpipe back to the neck bone.1
According to the government, it was after Cromwell's death
that Kidd and Albert tied her to the bed, jammed a
washcloth into her mouth, taped her face, spr ead her legs
open to expose her genitalia and tossed a por nographic
video onto the bed, attempting to stage a sex crime which
could deflect suspicion away from them.

An anonymous tip led to the arrest of Kidd and Albert.
Albert turned himself in to the police, admitted committing
the burglary with Kidd, but blamed the mur der solely on
Kidd. When arrested, Kidd admitted, "I did it. I was the one.
I cut her." He did not name an accomplice. 2

Albert was charged with First Degree (pr emeditated)
Murder, First Degree (felony) Mur der, Burglary, Burglary
with Intent to Commit Assault, Conspiracy to Commit
Burglary, Kidnaping and Conspiracy to Commit Kidnaping.
At trial, the government, over objection by the defense,
introduced a videotape of the crime scene which included a
_________________________________________________________________

1. The autopsy performed revealed that Cromwell sustained 12 stab
wounds, incise wounds, multiple abrasions due to blunt force, and
contusions to the face, torso, legs and thighs. The pathologist testified
that Cromwell was alive when the wounds wer e inflicted and that the
cause of death was "massive bleeding or hemorr hage shock due to
multiple wounds and due to incise wounds of the neck."

2. Kidd was separately tried for the murder of Barbara Cromwell. He was
convicted of three counts of burglary and murder, including
premeditated first degree murder , and kidnaping.

                               4
detailed look at Cromwell's partially naked body tied to the
bed with the neck wound revealed. Albert was found guilty
on all charges except premeditated mur der.

On December 19, 1996, the fifteen-year old Albert was
sentenced to life imprisonment without possibility of
probation or parole on the felony mur der count, plus 50
years to be served consecutively on the remaining counts.
A notice of appeal to the Appellate Division of the United
States District Court of the Virgin Islands was filed. On the
issue relevant here, the Appellate Division found that Albert
did not properly object to the admission of the videotape of
the crime scene; therefore, the Territorial Court did not
abuse its discretion in allowing it to be played to the jury.

Albert filed a notice of appeal to our court on March 2,
2000, beyond the 10-day limit set forth in Fed. R. App. P.
4(b). Defense counsel, a self-admitted novice in criminal
matters, mistakenly believed and informed Albert that the
appeal from the Appellate Division judgment had to be filed
within 30, not 10, days. When Albert was notified that the
appeal faced possible dismissal due to the jurisdictional
defect, he filed a motion for an extension of time to file the
appeal on the grounds of excusable neglect. The District
Court of the Virgin Islands granted the motion.

The government filed an appeal from the award of the
time extension arguing that ignorance of the rules does not
constitute excusable neglect. At oral argument, however,
the government conceded that caselaw could be interpreted
to allow the present appeal to proceed. The government,
therefore, abandoned its jurisdictional challenge.

We agree that authority exists for the viability of this
appeal. See Pioneer Inv. Servs. Corp. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 391-92 (1993) (interpreting
analogous Bankruptcy Rule); United States v. Clark, 51
F.3d 42, 44 (5th Cir. 1995); United States v. Hooper, 9 F.3d
257, 259 (2d Cir. 1993). But see Amatangelo v. Borough of
Donora, 212 F.3d 776, 779 (3d Cir . 2000) (discussion of
FRAP 4(a)(5)(A)).

Our jurisdiction rests upon 28 U.S.C. S 1291.

                               5
II.

The appeal presents a singular issue: did the trial court
err in allowing a videotape of the crime scene into evidence
because its probative worth was outweighed by its
prejudicial impact? We review this ruling under an abuse of
discretion standard, United States v. Balter, 91 F.3d 427,
442 (3d Cir. 1996), and will affirm the trial court's
determination unless it acted arbitrarily or irrationally.
United States v. Universal Rehabilitation Servs., 205 F.3d
657, 669 (3d Cir. 2000).3" `[I]f judicial restraint is ever
desirable, it is when a Rule 403 analysis of a trial court is
reviewed by an appellate tribunal.' " United States v. Scarfo,
850 F.2d 1015, 1019 (3d Cir. 1989) (quoting United States
v. Long, 574 F.2d 761, 767 (3d Cir . 1978)).

After Cromwell's body was discovered, a forensic
investigator took photographs, videotaped the scene and
collected evidence. The government sought admission of the
videotape into evidence. Defense counsel filed a motion in
limine to preclude its admission on the gr ounds that it was
narrated and because its prejudicial natur e outweighed its
usefulness. In defense counsel's words:

       . . . Some of the shots are close ups of the neck area,
       showing the cut. It's awful. It's not necessary. A lot of
       what the video tends to portray is an issue. I can only
       surmise that the Government is using the video to
       instill horror, to instill punishment, the element of
       punishment.

       They have other ways of presenting the scene to a lay
       jury. It's my understanding that the Government has
       two dozen photographs, still photographs, which show
       the items that they claim are important.
_________________________________________________________________

3. We emphasize that our review focuses on the trial court's Rule 403
balancing determination as if not previously heard by the Appellate
Division. See Semper v. Santos, 845 F .2d 1233, 1235 (3d Cir. 1998)
(second appellate tribunal shall review territorial court's determination
using same standard of review applied by Appellate Division); see also
Government of Virgin Islands v. Grant, 775 F.2d 508, 510 n.1 (3d Cir.
1985) (propriety of evidentiary ruling by territorial court, affirmed by
Appellate Division, decided under Federal Rules of Evidence and
reviewed for abuse of discretion).

                               6
       * * *

       So it's not just unduly prejudicial, its cumulative.
       Indeed, for us to sit and watch the video and then turn
       around and have to watch the still photos is a waste of
       time. You have a waste of time element.

The government, for its part, did not pr esent a detailed
argument for the videotape's admission. Its position was
that the tape "showed the apartment and the condition of
the apartment, the condition of the victim and how she was
found, the murder weapon and the items of that nature;
thus, the tape was relevant to contrast Albert's claim that
he did not know what Kidd was doing in the bedr oom." The
government also submitted that the videotape would assist
the jury in understanding the facts of the case, particularly,
in that it supported the portion of Albert's confession
consistent with the government's version of the details of
the crime. The jury could see, by comparing what they had
seen on the videotape to what Albert told the officer, that
Albert participated in Cromwell's murder .

The court viewed the videotape and made the following
ruling:

       THE COURT: Having reviewed the video, the Court
       finds that relevant to the issues of trial,
       in that it depicts the crime scene,
       shows the location of various items of
       evidence, some of which have been
       testified to in court already.

       It also shows the layout of the crime
       scene, the entrance, as well as the
       different rooms and their particular
       positioning. And, obviously, the victim,
       and the injuries, and the resulting
       injuries, in any event, from the crime.

       And, therefore, the only issue befor e the
       Court is the extent of any prejudice to
       the defendant or confusion of the
       issues, et cetera.

       Having viewed the video, the Court also
       finds that the evidence is probative for

                               7
       the same reasons mentioned before.

       Although the Court finds the video
       somewhat long, it's approximately 45
       minutes. At this stage, the Court does
       not conclude that it's a waste of time,
       or amounts to a needless presentation
       of cumulative evidence, or that it would
       mislead the Jury or confuse the issues.

       The Court noticed that the video shows
       graphically the injuries to the victim's
       neck. Some to her arms and some to
       the legs.

       The Court, however, does not find the
       evidence to be so inflammatory as to
       amount to prejudice, which
       substantially outweighs the probative
       value.

       The Court will, therefore, permit the
       introduction of the video into evidence.

       * * *

       [T]he Court would concur with defense
       counsel, however, that there are
       opinioned narration throughout this
       video. And would bar that portion of the
       video from being displayed to the Jury.

As the excerpt above demonstrates, the trial judge found
the videotape was relevant to and probative of the issues at
trial and not so inflammatory that its evidentiary value was
dwarfed by its graphic depictions. The judge agreed with
defense counsel, however, that the "opinionated" narration
throughout should be barred from the jury. Accordingly, a
version of the videotaped crime scene, narrated by the
police officer who photographed the scene, was shown to
the jury without the audio. Although the videotape was 45
minutes long, the jury saw a shortened version. During its
presentation, the government fast-forwar ded the tape a
number of times, presumably to avoid irr elevant or
redundant evidence.

                               8
In its closing argument, the government called upon the
jury to examine the videotape to support its view that
Albert's participation conformed to the gover nment's theory
of the case. The government argued that the videotape
depicting Cromwell's defensive wounds evidenced that she
put up a fight before she was tied to the bed with the
shoelaces. The government then opined that it would have
taken more than the diminutive Kidd to subdue Cromwell.
Also emphasized was the pristine condition of the shoelaces
used to tie Cromwell's wrists to the bed. The government
posed the question -- how could the shoelaces used to tie
Cromwell be free of blood if the tying occurred before the
stabbing as Albert contended?

While deliberating, the jurors asked to see the videotape
again. The trial court allowed the second viewing, but
instructed the jurors as follows:

       As you will recall, however, the only portion of the
       video, that has been admitted into evidence -- and,
       therefore, the only portion that you ar e permitted to
       consider, as evidence -- is merely what's seen on the
       video as opposed to the audio and what's said on it.
       So, we have prepared the television for you. And it
       would allow you to look at it. But it would not allow
       you to see the video or to -- to hear, rather, any of the
       audio or increase the volume in any way.

The record indicates that the volume buttons were taped
over to preclude producing an audio portion of the
videotape. The defense did not object to either the jurors'
request to view the video or the court's pr ecautions
concerning the audio portion of the tape. 4

We have examined the entire 45-minutes of the videotape
and there is no question that it is gruesome. The
concentration on Cromwell's lower body, while
_________________________________________________________________

4. The concurring opinion strongly suggests that the court's admonition
concerning the audio portion of the videotape went unheeded. We are
unwilling to presume juror misconduct in the absence of any evidence of
same. In any event, Albert does not assert in his brief that the trial
court
erred by failing to take additional steps to pr event the jury from
listening
to the audio track of the videotape.

                               9
disconcerting, was not unduly protracted and was crucial
to show the defensive wounds on Cromwell's body. The
videotape was then clearly relevant to demonstrate the
government's theory that one small man could not have
subdued a struggling Cromwell and have inflicted the
massive injuries upon her unassisted. The videotape also
bolsters the government's theory that Cr omwell was tied to
the bed with the shoelaces after the murder . While the area
of the bed surrounding Cromwell's body was blood-soaked,
the shoelaces were surprisingly clean. If Cr omwell had been
tied to the bed prior to the murder, it is more than probable
that the laces would have been splattered with blood.
Albert's admission that he took the shoelaces out of the
shoes and helped Kidd tie Cromwell, combined with the
condition of the shoelaces, is significant evidence of his
participation in the murder. Graphic though it may be, the
admission of the videotape was significantly pr obative. The
trial court's decision to allow the jury to view it cannot be
considered arbitrary or irrational.

We next comment on whether the cumulative nature of
the videotape rendered its admission unnecessary. There
were pictures taken at the crime scene which also depicted
the condition of the bedroom, the body, and the shoelaces.
Even if we were to determine that the pictures rendered the
videotape cumulative and, therefore, diminished in
probative worth, we would not grant a new trial. The error
which may have been caused by the admission of the
videotape was harmless given the other evidence of Albert's
guilt, established primarily through his own testimony.

For these reasons, we will affirm the Judgment in a
Criminal Case entered by the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               10
