                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT

                         _______________

                           No. 13-4381
                         _______________

           GOVERNMENT OF THE VIRGIN ISLANDS

                                 v.

                        RICHARD FAHIE,

                                      Appellant

                         _______________

       On Appeal From the District Court of the Virgin Islands
            (D.C. Crim. App. No. 3-06-cr-00027-001)
               Chief Judge: Hon. Curtis V. Gómez
             District Judge: Hon. Raymond L. Finch
            Superior Court Judge: Hon. Julio A. Brady

          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          May 16, 2014

Before: RENDELL, FUENTES and GREENAWAY, JR., Circuit Judges.

                   (Opinion Filed: July 18, 2014)
                                     _____________

                                 OPINION OF THE COURT

                                     _____________

FUENTES, Circuit Judge.

       Richard Fahie appeals his convictions and requests a new trial. Fahie argues that

his attorney provided ineffective assistance, and he contends that the Superior Court

erroneously admitted certain testimony. For the reasons that follow, we affirm.

                        I. Factual and Procedural Background

       On April 9, 2005, Patrick Benjamin was shot near the Tau Club in the Smith Bay

area of St. Thomas. Officer Earl Mills was dispatched to the scene of the shooting. When

he arrived, Mills observed Benjamin on the ground, lying in blood. Benjamin was taken

to the hospital and treated by Dr. Sidney Commissiong for gunshot wounds in his left

shoulder, left hand, and back.

       Detective Joel Dowdye visited Benjamin in the hospital and interviewed him

about the shooting. Dowdye later provided Benjamin a photo array of six faces from

which Benjamin identified Fahie as the shooter. Fahie was subsequently arrested.

       The government filed a five-count Information against Fahie, which was later

amended. Count One charged Fahie with attempted first degree murder, in violation of 14

V.I.C. §§ 921, 922(a)(1), and 331. Count Two charged Fahie with carrying an unlicensed

firearm during the attempted commission of a first degree murder, in violation of 14

V.I.C. §§ 2253(a), 921, 922(a)(a), and 331. Count Three charged Fahie with first degree

assault, in violation of 14 V.I.C. § 295(1). Count Four charged Fahie with carrying an
unlicensed firearm during the commission of a first degree assault, in violation of 14

V.I.C. §§ 2253(a) and 295(1). Finally, Count Five charged Fahie with possession of

ammunition, in violation of 14 V.I.C. § 2256(a).

       The case proceeded to trial, during which the government presented testimony

from Mills, Dowdye, Commissiong, and Benjamin. Both Mills and Dowdye testified that,

on multiple occasions, Benjamin identified Fahie as the shooter. Benjamin himself

testified that, after he was shot, he yelled, “Richard Fahie from Bordeaux shot me.” J.A.

90. After a two-day trial, the jury found Fahie guilty on Counts One, Two, Three, and

Four of the amended Information. The jury found Fahie not guilty on Count Five.

       Fahie appealed to the Appellate Division of the District Court of the Virgin

Islands. He asserted that his attorney provided ineffective assistance. He also argued that

the Superior Court erroneously admitted hearsay testimony by Mills, Dowdye, Benjamin,

and Commissiong and character testimony by Benjamin. The Appellate Division declined

to address Fahie’s ineffective assistance of counsel claim. In pertinent part, the Appellate

Division explained that “the record is inadequate for a comprehensive inquiry into the

strategy and tactics behind counsel’s decisions not to object to evidence introduced by the

People or present alibi evidence.” J.A. 12. With respect to the challenged evidence, the

Appellate Division held that the hearsay testimony fell within Section 932(1) of the

Virgin Islands Code and that the admission of Benjamin’s character testimony did not

amount to plain error. Fahie now appeals.1


1
 The Appellate Division had jurisdiction over this matter pursuant to 48 U.S.C.
§ 1613a(a). We have jurisdiction pursuant to 48 U.S.C. § 1613a(d). “Because ineffective
                                        II. Analysis

                           A. Ineffective Assistance of Counsel

       On appeal, Fahie renews his argument that his attorney provided ineffective

assistance of counsel, and he contends that the record is adequate for us to address this

claim on direct appeal.

       “It has long been the practice of this court to defer the issue of ineffectiveness of

trial counsel to a collateral attack.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.

2003). Our “refusal to entertain [ineffective assistance] claims on direct review stems

from the reality that such claims frequently involve questions regarding conduct that

occurred outside the purview of the [trial] court and therefore can be resolved only after a

factual development at an appropriate hearing.” United States v. McLaughlin, 386 F.3d

547, 555-56 (3d Cir. 2004) (citations and quotation marks omitted). A narrow exception

to the rule against hearing ineffective assistance claims on direct appeal applies in rare

circumstances “[w]here the record is sufficient to allow determination of ineffective

assistance of counsel” and “an evidentiary hearing to develop the facts is not needed.”

United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). However, Fahie’s

challenge does not “fit[] into that narrow class of ineffectiveness claims amenable to

review on direct appeal.” McLaughlin, 386 F.3d at 556. The record before us is

insufficient to address Fahie’s ineffective assistance of counsel claim because we cannot


assistance of counsel claims present mixed questions of law and fact, our review is
plenary.” United States v. Kauffman, 109 F.3d 186, 187 (3d Cir. 1997). We review for
plain error the Superior Court’s decision to admit evidence in the absence of an objection
to its admissibility. See United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007).
discern if his attorney’s performance was due to trial strategy or ineffectiveness.

Therefore, we affirm the Appellate Division’s decision not to entertain Fahie’s ineffective

assistance claim on direct appeal.

                                B. Benjamin’s Testimony

       Fahie next argues that the Superior Court erroneously admitted Benjamin’s bad

character testimony. In particular, Fahie challenges the admission of three statements that

Benjamin made about Fahie. Benjamin testified that: (1) he was the victim of a prior

unprovoked attack by Fahie, (2) Fahie always said, “He’s a wanted man he can do

anything,” and (3) Fahie always said, “He hate Dominicans, he hate Antiguans, and he

hate Jamaicans, he have to kill all of them.” J.A. 99-100. Because Fahie failed to object

to the admission of these statements at trial, we apply plain error review.

       To establish plain error, a defendant must demonstrate “that the error was clear or

obvious under current law” and “affected the outcome of the trial.” Rivas, 493 F.3d at

136. Assuming, without deciding, that Benjamin’s three remarks were inadmissible, the

Superior Court did not commit plain error because this testimony did not affect the

outcome of Fahie’s trial. As the Appellate Division correctly noted, Benjamin’s

“statements did not comprise the heart of [his] testimony, nor did they play a particularly

important role in the People’s case.” J.A. 16. Given the overwhelming evidence against

Fahie, the outcome of the case would have been the same regardless of Benjamin’s

testimony about Fahie’s past conduct. Therefore, we conclude that the admission of

Benjamin’s statements did not amount to plain error.
                             C. Commissiong’s Testimony

       Finally, Fahie argues that Commissiong’s testimony that “[Benjamin] said he

knew who shot him” should have been excluded because it was irrelevant and

inadmissible hearsay.2 J.A. 60. Because Fahie failed to object to the admission of

Commissiong’s testimony at trial, we review his challenge for plain error.

       Section 771(2) of the Virgin Islands Code broadly defines “relevant evidence” as

“evidence having any tendency in reason to prove any material fact.” 5 V.I.C § 771(2).3

Commissiong’s testimony was relevant because it helped corroborate the credibility of

Benjamin’s identification of Fahie as the shooter.

       Moreover, Commissiong’s testimony fell within a hearsay exception. Hearsay is

defined as “a statement which is made other than by a witness while testifying at the

hearing offered to prove the truth of the matter stated.” 5 V.I.C § 932. While hearsay

testimony is generally inadmissible, Section 932(1) of the Virgin Islands Code permits

the use of a statement “previously made by a person who is present at the hearing and

available for cross-examination with respect to the statement and its subject matter.” 5

V.I.C § 932(1). Here, Commissiong testified about a statement previously made by


2
  On appeal, Fahie appears to have abandoned his previous hearsay challenges to the
testimony of Mills, Dowdye, and Benjamin. Therefore, we do not address these claims in
our opinion. See New Jersey v. Merrill Lynch & Co., 640 F.3d 545, 547 n.3 (3d Cir.
2011).
3
  At the time of this case, the Uniform Rules of Evidence, codified as 5 V.I.C. §§ 771-
3
956, the time of this case, thePeople, 2009 WL 707182, at *7 (V.I. Mar. V.I.C. §§ 771-
  At applied. See Phillips v. Uniform Rules of Evidence, codified as 5 12, 2009); see
956, applied. See Phillips v. People, 2009 WL 707182, at *7 (V.I. Mar. 12, 2009); see
also Chinnery v. Virgin Islands, 2011 WL 3490267, at *8 (V.I. May 27, 2011)
(explaining that the Uniform Rules of Evidence were not repealed and replaced with the
Federal Rules of Evidence until April 7, 2010).
Benjamin, who was present at Fahie’s trial and available for cross-examination.

Therefore, Commissiong’s testimony regarding Benjamin’s statement was admissible

pursuant to 5 V.I.C. § 932(1).

       Even if the Superior Court erred in admitting Commissiong’s testimony, it did not

commit plain error because the testimony did not affect the outcome of Fahie’s trial.

Commissiong’s statement occurred during the course of a two-day trial. Due to the

overpowering evidence against Fahie, the result in this case would have been the same

regardless of Commissiong’s testimony that “[Benjamin] said he knew who shot him.”

J.A. 60.

       Given that Commissiong’s testimony was relevant, fell within a hearsay exception,

and did not affect the outcome of the trial, the admission of this testimony did not

constitute an error, let alone a plain error.

                                        III. Conclusion

       For the foregoing reasons, we affirm the Appellate Division’s judgment in all

respects.
