2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-21-2011 

# Go v t of the VI v

. J o se N une z
P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-3370

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2011

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2011 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" Go v t of the VI v

. J os e N unez " (2011). 2011 D e cisio n s . P a pe r 1389. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2011/1389NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 10

- 3370

_______________ GOVERNMENT OF THE VIRGIN ISLANDS

v. JOSE NUNEZ, Appellant

_______________ On Appeal from the District Court of the Virgin Island s Appellate Division of St. Thomas (D.C. C rimina l Action No. 3

- 0 5

- c r - 0 0 1 04

- 001 ) District Judge s : Hon. Curtis V. Gomez and Hon. Raymond L. Finch Superior Court Judge: Honorable Julio A. Brandy

_______________ Submitted Under Third Cir cuit LAR 34.1(a) April 14 , 2011

_______________ Before: SCIRICA , RENDELL and AMBRO , Circuit Judges (Opinion filed : April 21, 2011 )

_______________ OPINION

_______________ AMBRO, Circuit Judge
Jose Nunez was convicted by a jury i n the Superior Court of the Virgin Islands of first degree rape and first degree assault with intent to commit rape. He was sentenced to2 concurrent terms of 25 years’ imprisonment on the r ape count and 10 years’ imprisonment on the a ssault count. He appe aled to the Appellate Division of the District Court of the Virgin Islands , which held that assault was a lesser included offense of rape, and therefore the convictions were multiplicitous . It thus remanded to the Superior Court to vacate Nunez’s convicti on and sentence for assault. The Court rejected Nunez’s other assignments of error , and he appeals. We affirm the District Court’s judgment

. I. Background In December 2003 Nunez was accused of raping his housemate. He was arrested and charged with first degree rape ( in violation of 14 V.I.C. §§ 1700(a), 1701(2) ), first degree assault with intent to commit rape ( in violation of 14 V.I.C. § 295(3) ), carrying or possessing a weapon ( in violation of 14 V.I.C. § 2251(a)(2) ), and third degree assault ( in violation of 14 V.I.C. § 297(2) ) . Nunez’s defense at trial was that his sexual relationship with the victim was consensual. A jury convicted him of the first two charges and acquitted him of the latter two. At trial, FBI Agent Kristina Losquadro testi fied for the Government that chemical tests were done on a vaginal swab and that those tests could indicate the presence of blood. The accompanying FBI report , which was entered into evidence as Exhibit 9 , concluded that the presence of bloo d in the victi m’s vaginal area could not be confirmed. During its case, defense counsel examined Nunez’s sister, Lorensa Torres, in an effort to refute the Government’s theory th at Nunez had changed his story after speaking to his sister at the police station after his arrest (he had first told police that he did nothing to the victim) . After Torres’ testimony, the Court comme nted on the Government’s decision to3 conduct cross

- examination, questioning its purpose for doing so. At the close of testimony, defense couns el requested that closing arguments be postponed until the next day, given the late hour. The Court denied the request. Accordingly, the Government, and then the defense, gave their closing arguments. Prior to the Government’s rebuttal, it also asked fo r a postponement until the next day, and the Court acquiesced. The next day, d uring the Government’s rebuttal, it stated that blood was present on the vaginal swab. Defense counsel objected to the Government ’ s characterization of the evidence . The follo wing day, the Court instructed the jury that the
Government’s statement s were not evidence and that the jurors should rely only on the FBI reports in evidence. During deliberations , the jury conveyed to the Court that it need ed “ a clearer understanding of the charges.” In response, the Court re

- read the elements of the charged crimes but declined to comment any further. On appeal, Nunez makes the following arguments.

**•** The Superior Court’s comments after Torres’ testimony were inappropriate
and under mined her testimony, which resulted in prejudice.

**•** T he Government’s statements in closing regarding the blood evidence testimony prejudiced him , and the curative instruction was insufficient to

cure this prejudice.

**•** The District Court incorrectly attribu ted to “trial management” the Superior Court’s decision to allow the Government to present its closing rebuttal4 statements the next day ; he contends that this was a denial of his right to effective assistance of counsel.

**•** The Superior Court fail ed to prov ide additional clarifying instructions to the jury regarding the elements of the charges.

**•** T he District Court failed to address Nunez’s argument that the compilation
of these alleged errors require s a new trial

. We do not find these arguments persuasive and , for the reasons that follow, a ffirm the District Court’s judgment. 1

We also disagree with Nune z’s argument that the Superior Court improperly failed to give additional clarifying instr uctions to the jury. Provided a c ourt does not misstate II. Discussion We reject Nunez’s attempt to characterize the overnight break during closing arguments as a denial of Nunez’s right to counsel, as w e agree with the District Court that Nunez’s ineffective assistance

- of

- counsel argument is no more than an objection to the
Court’s handling of the trial

. The Superior Court’s decision regarding the timing of closing arguments was discretion ary trial management

. See United States v. R ana , 944 F.2d 123, 126 (3d Cir. 1991) (quotation marks omitted). It did not abuse its discretion in declining defense counsel’s request to group the closing a rguments together and postpone the rebuttal until the following day

.

1 The Superior Court of the Virgin Islands had jurisdiction under 4 V.I.C. § 76. The Appellate Division of the Distr ict Court of the Virgin Islands had jurisdiction under 48 U.S.C. § 1613a(a), (d). We have jurisdiction under 28 U.S.C. § 1291 and 48 U.S.C. § 1613a(c).5 the law, we review its jury instructions for abuse of discretion. United States v. Hoffecker , 530 F.3d 137, 1 73

- 74 (3d Cir. 2008). As noted by the District Court, the jury did not ask any additional questions after the trial judge re - read the elements of the crimes charged

. Nor does t he record suggest that there was any lingering juror confusion. Accordingly, we conclude there was no abuse of discretion. With respect to Nunez’s remaining issues , after reviewing the parties’ briefs and relevant portions of the record, we conclude that the District Court correctly applied the relevant legal standards . We thus agree with that Court , for substantially the same

reasons contained in its fine opinion, that there was no reversible error arising from the Superior Court’s comments after Torres’ testimony or from the Government’s statemen ts regarding the blood evidence

. Because we agree with the District Court that the Superior Court did not commit a series of cumulative errors, as Nunez alleges, we cannot conclude that due process requires a new trial. Cf. United States v. Copple , 24 F.3d 535, 547 n.17 (3d Cir. 1994) ( noting that where a defendant alleges mistrial based on cumulative error, a new trial is required only when the combination of errors “so infected the jury’s deliberations that they had a substantial influence on the outcome of the trial”).
* * * * *
We thus affirm the District Court’s judgment affirming the Superior Court’s judgment of conviction for first degree rape.