United States v. Simon, [995 F.2d 1236]

28 V.I. 398

UNITED STATES OF AMERICA, Appellee v. HITSON SIMON a/k/a "SACKO", Appellant

No. 91-3738

United States Court of Appeals for the Third Circuit

June 7, 1993

Appellant's appeal of murder conviction, in which he argued that district court erred by failing to instruct jury on government's burden of proof in relation to alibi defense. The Third Circuit, Garth, J., held that trial court did so err, but that, based on review of entire record, error was harmless.

[Headnotes Classified to Virgin Islands Digest]

[COPY RIGHT MATERIAL OMITTED]

HUGH P. MABE, III, Acting United States Attorney; JAMES A. HURD, JR. (Argued), Assistant United States Attorney, Charlotte Amalie, St. Thomas, V.I., for appellee

IVER A. STRIDIRON (Argued), Charlotte Amalie, St. Thomas, V.I., for appellant

BEFORE: GREENBERG, SCIRICA and GARTH, Circuit Judges

OPINION OF THE COURT

GARTH, Circuit Judge

At the murder trial of appellant Hitson Simon, the district court committed error when it failed to instruct the jury on the government's burden of proof in relation to an alibi defense, as is required under the law of this circuit. However, in light of the entire record, which we have independently reviewed, we conclude that the evidence overwhelmingly demonstrated Simon's guilt beyond a reasonable doubt, and that, therefore, the district court's otherwise reversible error, was harmless.

I.

On the afternoon of Sunday, March 31, 1991, Darrel Nicholson was killed by a single gunshot to the head, fired at close range as Nicholson lay sleeping on a wooden plank in an open shed, or "shanty," in the Stronne Gade area of St. Thomas. The shanty and an adjacent basketball court comprised a regular gathering place, a "hangout," for a group of St. Thomas youths, including Hitson Simon. (See A. 96).

In the aftermath of the murder, the statements of eyewitnesses led officers of the Virgin Islands Police Department to appellant Hitson Simon. Simon subsequently was arrested at his home, and charged with murder in the first degree and with possession of a dangerous weapon during the commission of a violent crime.

At trial, the government presented photographic evidence collected at the scene of the murder, along with the testimony of investigating and arresting police officers. At the heart of the trial, however, and at the focal point of our review, was the testimony of government and defense witnesses regarding Simon's whereabouts at the time of the murder.

A.

The government presented four eyewitnesses, all of whom placed Hitson Simon at the basketball court, in the shanty, with a pistol in his hand at the moment the fatal shot was fired:

Anthony Fitzgerald Brewley.

Anthony Brewley testified that he had grown up with Simon and had known him for fifteen years. (A. 72). Brewley testified that he had spent most of the day on March 31, 1991—from 11:00 a.m. until 5:00 p.m.—at the basketball court. Id. Brewley testified further that, as he washed his car beside the shanty at approximately 3:45 to 4:00 p.m., Simon arrived at the shanty, (A. 74), and that shortly thereafter, he heard what he described as "a long, loud noise." (A. 75). Looking through a glass window, Brewley saw Simon backing out of the shanty. Id. According to Brewley, "[t]he rest of the guys" then said that someone had been shot in the head and killed. Id. When asked at trial if he was certain that the person he saw leaving the shanty after the gunshot was Simon, Brewley responded, "There is no doubt in my mind, who I saw." (A. 75-76).

Keith R. Harrigan.

Keith Harrigan testified that he had been a friend of Hitson Simon, also known as "Sacko," for about five years. (A. 81, 96). Harrigan said that he spent "[a]ll day" on March 31 at the basketball court, having arrived there at 7:00 a.m. (A. 81). Harrigan also testified that at 4:00 p.m., as he was working on his car directly adjacent to the shanty,¹ Simon arrived. (A. 83-84).

Harrigan then saw Simon enter the Shanty, (A. 84), and soon thereafter,² he "heard a shot." (A. 84). Jason Maduro, also known as "Tayo," (A. 136), came out of the shanty and said "our friend is dead." (A. 84). Harrigan testified that he then saw Simon holding a pistol wrapped in a white cloth, id., that he "saw the nozzle pointing at us," (A. 85), and that Simon was "telling us we didn't seenothing." (A. 84, 85). As Simon departed, Harrigan "heard him mention something like, 'the same thing you did with my friend is the same thing I did to you.'" (A. 85). Harrigan had "no idea" as to what Simon was referring. (A. 86).

Jefferson Titus.

Titus testified that he, too, had spent "the whole day" on March 31 at the basketball court, beginning at 11:00 a.m. (A. 99). He also testified that he had known Hitson Simon for four or five years, and that Simon "used to live right down the steps from where I live." Id. When asked about his relationship with both Simon and the victim, Titus stated, "we were just cool friends, all of us." (A. 101).

At 3:00 or 4:00 p.m., Titus saw Simon walk "below the shanty." (A. 102, 103-104). "The next thing," Titus testified, "I hear the gunshot fire." (A. 104). Titus saw Simon "when he came out of the shanty." Id. He observed what he described as "the look of fear" on the faces of Jason Maduro, "Tayo," and another friend known as "Junior," id., and that he heard Simon tell them "that he ain't want no witnesses, he ain't want to hear nothing." Id. When Titus asked Simon what he had done, Simon "point the gun at me and he tell me to shut up and just be quiet. He ain't want to hear nothing." Id. Titus described the gun as a black, palm-sized automatic handgun, and that Simon held both the pistol and a white cloth in the same hand. (A. 106). Simon departed "a couple of seconds" later. (A. 104).

Jason D. Maduro.

Jason Maduro, also known as "Tayo," testified that he was a friend of Simon and had known him for "about seven to eight years now." (A. 120). Maduro testified that he had arrived at the basketball court on March 31 at 10:00 a.m. and remained there "[u]ntil nighttime." (A. 119). Simon arrived shortly after 4:00 p.m. (A. 125). From Maduro's vantage point, "right on the outside of the shanty, on the basketball court," (A. 121), he saw Simon enter the shanty and pull a "white handkerchief" from the waist of his pants.³

After that, I was looking straight out at the Education Building, and then after I heard the gunshot I looked across before Ronnie [the victim] fell to the ground, and Sacko [Simon] was there standing, saying—he was there saying, "The same way you do our friend is the same way you get it."

(A. 126-127). Like Keith Harrigan, Maduro did not know to what Simon was referring. (A. 133).

Later in his testimony, after reviewing a contemporaneous statement he made to the police, Maduro testified that he heard Simon "crank," or cock the weapon, prompting him to "look across" into the shanty. (A. 132).

Q. What did you see when you looked across?

A. He bent over and he hold the pistol to Ronnie [the victim's] head.

Q. What did he do when he held it to his head?

A. He fired it.

Q. You observed this yourself, this happen, sir?

A. Yes.

Q. How far away were you?

A. About fifteen feet away, ten to fifteen feet.

Id.

Maduro then explained that, after he heard Simon "crank" the handgun and bend over the sleeping victim, "that is when I looked out," (A. 138; see A. 142-143), so that when the shot was fired, he was looking at the Board of Education Building. (A. 138-139; 143). Immediately after the shot was fired, Maduro looked back into the shanty and saw blood coming from the victim's head as he fell to the floor, (A. 143), while Simon stood over the body with the gun in his hand. Id. Maduro then saw Simon walk out of the Shanty and heard him say "that he ain't want no witnesses." (A. 133).⁴

B.

In an effort to establish an alibi, the defense presented five witnesses, Simon's mother, father, nephew, brother, and a family friend. Simon presented no other witnesses to establish his whereabouts at the time of the murder.

Derrick Parker.

Parker testified that he was a friend of James Simon, Hitson Simon's brother, (A. 164), and that on Sunday, March 31, 1991, he and James had gone swimming down at the "bay" from approximately 10:00 or 11:00 in the morning until 2:00 in the afternoon. (167-168). At 2:00, Parker testified, Simon arrived at the bay, took a brief swim and departed, (A. 170), heading up the road toward home at about 2:20 p.m. (A. 172, 174). Parker did not see Simon again that day. Id.

James Simon.

Hitson Simon's older brother, James, testified that on March 31 he and Parker saw Simon at the bay at 2:00 p.m., (A. 178),⁵ and that Simon took a ten to fifteen minute swim, (A. 179), before heading home at about 2:15. (A. 180-181). James also testified that he arrived at the Simon home at 2:30 p.m. and that he saw his brother Hitson there ten minutes later. (A. 182). James did not see Hitson again that day. (A. 183, 184). James testified further that it takes him twenty-five to thirty minutes to walk directly from the basketball court where the murder took place to the Simon home. (A. 190).⁶Hitson Philmore Andrew.

Simon's nephew, Hitson Andrew, testified that he lives with the Simon family, and that on March 31 he was at home between job shifts, from 2:30 p.m. until 5:00 p.m. (A. 193, 194, 199). Andrew testified further that he saw Hitson at home on four different occasions that day: at 3:15 p.m., (A. 195-196); at 3:30 to 3:40 p.m., (A. 197), sometime after 3:40 p.m., (A. 197-198); and at 4:30 p.m. (198-199).

Detective Sergeant Reynald Fraser of the Virgin Islands Police Department testified that on the evening of March 31, Hitson Andrew told him that "he did not see Hitson for that entire day. He did not see him at all." (A. 249). On cross-examination, Andrew simply denied having made that statement to Detective Fraser. (A. 209-210).

Edith Simon.

Simon's mother, Edith Simon, testified that on March 31 she left home at 10:30 or 11:00 in the morning, and that she returned at about...