Government of the Virgin Islands v. Gregory Williams

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3521
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GOVERNMENT OF THE VIRGIN ISLANDS
v.
GREGORY WILLIAMS,
Appellant
___________
On Appeal from the District Court of the Virgin Islands - Appellate Division
(D.C. Criminal No. 3-05-cr-00056-001)
Chief Judge: The Honorable Curtis V. Gomez
District Judge: The Honorable Raymond L. Finch
Superior Court Judge: The Honorable Patricia D. Steele
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ARGUED December 1, 2009
Before: McKEE, FUENTES, and NYGAARD, Circuit Judges.
(Filed: March 17, 2010)
Richard F. Della Fera, Esq. (Argued)
Entin & Della Fera
110 Southeast 6 Street, Suite 1970th
Fort Lauderdale, FL 33301
Natalie Nelson Tang How, Esq.
27 & 28 King Cross Street
Phoenix Court Business Complex
Christiansted,
St. Croix, USVI 00820

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The Honorable Patricia D. Steele, Judge of the Superior Court, Division of1.
Saint Croix, sitting by designation.
Counsel for Appellant
Ernest Bason, Esq.
Terryln M. Smock, Esq. (Argued)
Office of the Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade, GERS Complex, 2 Floornd
Charlotte Amalie
St. Thomas, VI 00802
Counsel for Appellee
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
I.
Appellant Gregory Williams was convicted by a jury of first degree murder and
related charges involving assault and illegal use of weapons. Judge I’ve Arelington Swan
presided and Williams was sentenced to life in prison without parole.
Williams appealed his conviction to the District Court for the Virgin Islands. His
appeal was heard by a three-judge panel of that court’s appellate division (Judges Gomez,
Finch and Steele ). He challenged the sufficiency of the evidence and argued that1
comments made by the trial judge deprived him of a fair trial. The District Court
affirmed Williams’ conviction and he has timely appealed. Because we conclude that the
trial judge’s comments so infected the trial, and his attempts at a curative instruction were

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too little, too late, and could not purge the injustice, we will reverse and remand for a new
trial.
II.
We have held that “no person [may] be deprived of his interests in the absence of a
proceeding in which he may present his case with assurance that the arbiter is not
predisposed to find against him.” Wang v. Attorney General, 423 F.3d 260, 269 (3d Cir.
2005) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)). That assurance is
absent — and judicial conduct improper — whenever a judge appears biased, even if he
actually is not biased. See In re Antar (SEC v. Antar), 71 F.3d 97, 101 (3d Cir. 1995).
Public confidence in the judicial system turns on “the appearance of neutrality and
impartiality in the administration of justice.” LaSalle Nat'l Bank v. First Conn. Holding
Gr., LLC XXIII, 287 F.3d 279, 292 (3d Cir. 2002). Thus, even if the trial judge here was
not actually biased — and we do not speculate as to his state of mind — the “mere
appearance of bias” on his part “could still diminish the stature” of the judicial process he
represents. See Clemmons v. Wolfe, 377 F.3d 322, 327 (3d Cir. 2004). In other words,
“justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 13
(1954); see also Peters v. Kiff, 407 U.S. 493, 502 (1972). On this record, such an
appearance was not satisfied.
III.

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The bias of the trial judge here centers on comments he made during the cross
examination of a prosecution witness. Raymond Smith was an eyewitness to the murder.
He had given a statement to the police describing the perpetrator as “[h]e was like five
ten, like 150 to 170, had on a black, black and white plaid shirt and he had a low haircut.”
Smith also admitted at trial that he had been smoking marijuana before his encounter. He
testified that “the weed does — don’t affect you mentally — it just give you a natural
high.” He also acknowledged that he saw the gunman for a “split second” and then never
saw him again.
When defense counsel attempted to challenge Smith’s ability to identify Williams
given the fact that he was enjoying his “natural high,” counsel was admonished by the
trial judge who made the following comment in the presence of the jury, and while
sustaining an objection by the prosecution:
But get to the — get to the perception. Because I’ll tell you something.
There’s a lot of people I does smell that they be smoking, smoking thing, as
you pass the cars, and they’re better drivers than a lot of these other people
on the road that just can’t drive.
Judge Swan continued with additional commentary:
So, my policies might be different from all the other judges. But, then
again, I have been here longer than all the other judges. I’m the most senior
associate judge so I don’t — I have been doing this for a long time and
nobody has ever found fault with it. So I don’t follow the young folks. I go
with my own policy. I’ve been around longer than all of them. Three of
them put together don't have as much years as I have. So, I have my own
policy.

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In United States v. Olgin, 745 F.2d 263 (3d Cir. 1984), we set out the appropriate
analysis for courts to use in assessing the propriety of a trial judge’s comments before the
jury. We explained that “[t]here is no bright line separating remarks that are appropriate
from remarks that may unduly influence a jury”). Id. at 268-69. This analysis requires a
balancing of the following four factors: (1) the materiality of the comment, (2) its
emphatic or overbearing nature, (3) the efficacy of any curative instruction, and (4) the
prejudicial effect of the comment in light of the jury instruction as a whole. Id.
A. Materiality
Here, the trial judge’s comments occurred during the cross-examination of
Raymond Smith. Defense counsel asked Smith whether he had been smoking marijuana
before the shooting. Raymond Smith replied in the affirmative. The prosecutor objected
on grounds of relevancy. Defense counsel responded that Raymond Smith’s testimony
about whether he had been smoking marijuana was relevant to show his ability to
perceive the shooting. The trial judge sustained the objection, explaining his ruling with
the aforementioned comments, in the presence of the jury
We have no difficulty finding his comments material. The trial judge’s comments
not only improperly bolstered a witness’s testimony, but impacted directly on the
presentation of Williams’ defense. Defense counsel attempted to discredit Smith’s
testimony by pointing to Smith’s own admission that he was high on marijuana when he
saw the gunman. We have no doubt that the trial judge’s statement could be viewed by

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the jury as vouching for Smith’s testimony and supporting his ability to identify the
gunman.
B. Emphatic and Overbearing Comments
In United States v. Gaines, we discussed the limitations on the court's power to
comment on the evidence:
Unquestionably, any comment by a trial judge concerning the evidence or
witnesses may influence a jury considerably, and emphatic or overbearing
remarks particularly may be accepted as controlling, thus depriving a
defendant of his right to have questions of fact and credibility determined
by the jury. If the judge exercises restraint in his comments, however, and
makes it clear in his charge that the jury remains the sole determiner of
credibility and fact, he has not overstepped the permissible limits of
comment.
450 F.2d 186, 189 (3d Cir. 1971). We conclude that the trial judge’s unsolicited opinion
concerning the witness and the use of marijuana was made in an overbearing or emphatic
manner. First, the trial judge made this comment while sustaining the prosecutor’s
objection:
[DEFENSE ATTORNEY]: Your eyes get red when you're smoking weed?
[RAYMOND SMITH]: Yes.
Q: Does it affect your ability to move?
A: No, sir.
Q: Can you--do you drive a car?
A: Yes, sir.
Q: Can you drive a car the same when you're not on weed as when you're on
weed?
[PROSECUTOR]: Objection, Your Honor. They don't have an expert.
[DEFENSE ATTORNEY]: I’m trying to see how it affects him.
THE COURT: But get to the — get to the perception. Because I’ll tell you
something. There’s a lot of people I does smell that they be smoking,

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smoking thing, as you pass the cars, and they’re better drivers than a lot of
these other people on the road that just can’t drive.
This comment took place while the trial judge was ruling on an objection. The judge
spoke emphatically (“But, let me tell you something . . .”) in sustaining the prosecutor’s
objection, and in so doing, came very close to implicitly dismissing an important part of
the defense’s case in the eyes of the jury. Second, in attempting to impress the jury with
his reputation as a jurist, the trial judge’s further comments touting his trial experience
and longevity is overbearing and compounded the error. Such extemporaneous
commentary by the trial judge deprived Williams of his right to have questions of fact and
credibility determined by the jury.
C. Efficacy of any Curative Instruction
The trial judge made an attempt to cure the error by an instruction to the jury. He
said:
Anything that I have said in terms of marijuana, that is — I’m going to
order that stricken from the record. What that means is that in your
consideration of this case, you’re not to consider anything whatsoever that I
mentioned about marijuana. Only what the witnesses said from the witness
stand.
Given our previous findings of the materiality and forcefulness of the trial judge’s
statements, we do not find his instruction sufficient to mitigate any prejudice against
Williams. First, the trial court’s instruction was not given at the time of the objection, or
even in close proximity thereto. Second, the trial court’s curative instruction was too

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vague in that it only told the jurors to “disregard anything I have said in terms of
marijuana.”
D. Totality of the Instruction
The true impact of the trial courts’s statement was that it supported the testimony
of a prosecution eyewitness to the murder – an eyewitness the defense was attempting to
challenge as unreliable. The trial judge further compounded the difficulty presented by
this comment when he emphasized his experience and judicial superiority over the other
members of the bench who, presumably, would not have said what he said regarding the
use of marijuana. Given the permeating and prejudicial nature of the trial judge’s
comments, we find this to be one of those cases where “the trial judge’s comments are so
out of bounds that no cautionary instruction to the jury could remove their prejudicial
effect.” Olgin, 745 F.2d at 268-69.
E. Balancing the Comments against the need for reversal
We conclude that the scales tip sharply in favor of reversing Williams’ conviction
and remanding this matter for a new trial.
IV.
The trial judge’s comments here deprived Williams of a fair trial. We will reverse
his conviction and sentence and remand this case for a new trial.

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FUENTES, Circuit Judge, concurring.
I agree with the majority opinion that the trial judge’s comments during Smith’s
testimony were inappropriate. I write separately to emphasize an additional prejudicial
comment by the trial judge that I believe affected the fairness of Williams’s trial. At trial,
Makeda Petersen was called as a witness to testify by the Government, and she testified
that Williams was not the shooter at the scene. The Government, dissatisfied with her
testimony, moved to have Petersen declared a hostile witness under Federal Rule of
Evidence 611(c). The court agreed with the Government, and then, in the presence of the
jury, stated that it had declared Petersen to be a hostile witness. The trial judge went on
to state that the court “deems her to be uncooperative and evasive, and particularly twice
she has rejected questions by the Government calling her.” (Supp App. 365-66 (emphasis
added).) The prejudicial effect of remarks like this underscores why courts should not
explain evidentiary rulings in the jury’s presence. The trial judge’s characterization of
Petersen’s testimony as “uncooperative and evasive” could very well have influenced the
jury’s assessment of whether or not to credit her testimony. See Quercia v. United States,
289 U.S. 466, 470 (1933). In a case such as this, in which the jury heard contradictory
accounts of the critical events and its ultimate decision depended upon whether it
believed Petersen’s testimony, judicial statements bearing upon the credibility of a
witness, such as the trial judge’s characterization of Petersen’s testimony here, could be
highly influential. Cf. United States v. Anton, 597 F.2d 371, 374 (3d Cir. 1979) (“a

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strongly worded comment by the court questioning the defendant’s credibility may well
overbear the jury’s ability to make independent fact findings”). Given that no curative
instructions were given with respect to the judge’s statements about Petersen’s testimony,
I believe that the judge’s comments concerning Petersen, in addition to those regarding
Smith, were sufficiently prejudicial to Williams to require a new trial in this case.

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