Jahzeel Fenton v. Government of the VI Office of the VI Attorney General Wynnie Testamark, Director of the US Virgin Islands Bureau of Corrections

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

JAHZEEL FENTON PETITIONER SX 19 MC 078/SX 10 CR 347

v PETITION FOR WRIT OF HA BEAS CORPUS

GOVERNMENT OF THE VIRGIN ISLANDS OFFICE OF THE V I ATTORNEY GENERAL WYNNIE 'I‘EsrAMARK DIRECTOR OF THE U S VIRGIN Is LANDS BUREAU OF CORRECTIONS

RESPONDENI‘S

Cite as 2021 VI Superior 1011’

Mr Jahzeel Fenton, Pro Se Inmate Number #101160

Golden Grove Adult Correctional Facility Rural Route #1 Box 9955

Kingshill Virgin Islands 00850

Attorney Michael R Francisco, Esq .

Assistant Attorney General V I Department of Justice #34 38 Kronprindsens Gade GERS Building 2"6 Floord

St Thomas Virgin Islands 00802

MEMORANDUM ORDER

J01:10 Meade. Judge

‘1 1 THIS MATTER is before the Court on the Petition of Jahzeel Fenian (hereinafter Petitioner or Fenton ] seeking relief by Writ of Habeas Corpus In his request for relief Petitioner has asked the Court to vacate his conviction and release him from the custody of the Virgin Islands Bureau of Corrections Peti tioner argues that during the underlying criminal proceedings, the People failed

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to provide a bullet trajectory report that would show that he did not discharge the bullet that injured the victim of the underlying criminal offenses For the reasons stated below the Petitioner 8 request for relief is DENIED

FACTUAL and PROCEDURAL BACKGROUND ‘1 2 Fenton was arrested on March 19 2010 and subsequently charged in an information with the criminal counts of (1) Attempted Murder in the First Degree in violation of fitle 14 VI C § 922(a)(1) & 331 (2) Assault in the First Degree with Domestic Violence in violatlon of Title 14 V I C § 295(1) and Title 16 V I C § 91(1)) (3) Unauthorized Possession of a Firearm During the Commission

of a Crime of Violence in violation of Title 14 VI C § 2253(a) (4) Mayhem in

violation of Title 14 V I C § 1341(a)(2) (5) Discharging or Aiming a Firearm in

violation of Title 23 V 1 C § 479(a) and (6) Simple Assault and Battery with Do

mestic Violence in violation of Title 14 V I C § 299(1) and 16 V I C § 91(b)(1)

&

(2) in relation to the shooting and injury of Jo Ana Lang Subsequently the Peo

ple filed a superseding information adding four counts of Child Abuse in violation of Title 14 V I C § 505 The counts of Child Abuse were based on allegations that the minor children of Jo Ana Lang were present when the shooting occurred ‘11 3 As part of Petitioner s demand for discovery he made a request for a bullet trajectory analysis or report which was referenced in the Crime Scene Evidence Report dated March 19 2010 and drafted by forensic technician Linda Pascal When the report was not produced Petitioner filed a motion to compel discovery on February 19 2016 The court granted the motion and entered an

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order on March 1 2016 giving the People fourteen days to provide the requested discovery The trial was scheduled for August 15 2016 On June 27 2016 Pe tittoner filed a motion to dismiss pursuant to Brady 1: Maryland 373 U S 83 (1963) contending that the People 8 failure to provide the bullet trajectory anal ysis or report amounted to withholding exculpatory evidence The court con ducted a hearing on the motion to dismiss at the Final Pretrial Conference on August 8 2016 After presentation by counsels the court denied the motion to dismiss but restricted the People from using at trial any evidence of bullet tra jectory that required expert evaluation and reserved the evidentlary findings of the forensic investigative officers for discussion at trial ‘1l 4 Following the court s ruling on the motion to dismiss Petitioner through counsel informed the court that the Parties had reached a plea agree ment The Petitioner entered a plea of No Contest to count 2 of the superseding information Assault First Degree with Domestic Violence Pursuant to the plea agreement all other counts in the superseding information were dismissed The court after examination of the Petitioner accepted the Plea (I 5 Petitioner was sentenced on July 26 2017 The court sentenced the Petitioner to a term of incarceration of twenty [20) years The court 8 sentence is memorialized in its Order of Judgment and Commitment entered on July 28, 2017 Petitioner appealed his sentence to the Virgin Islands Supreme Court con tending that his sentence was unlawful because the Superior Court Imposed a sentence that was greater than the ten years recommended in his plea agreement

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and that Superior Court Rule 126 permitted him to withdraw his plea if the Court departed from the sentence recommended in the plea agreement The Virgin Is lands Supreme Court rejected these arguments and affirmed the conviction See Fenton 0 People 69 VI 889 (VI 2018)

‘I 6 The Petitioner is presently in the custody of the Virgin Islands Bureau of Corrections serving a 20 year term of incarceration having been adju dicated guilty after entering a plea of No Contest to First Degree Assault/ Do mastic Violence in the underlying criminal proceedings 91 7 Petitioner filed an action for a writ of habeas corpus on September 18 2019 following which the matter was referred to a Magistrate to make fac tual findings conclusions of law and recommendations regarding the validity of the Petitioners claim The Magistrate conducted a hearing on August 7 2020 but did not reduce the findings to writing The Court granted the petition and issued the writ on April 30 2021 The People filed their return on May 19 2021 and the Petitioner filed his traverse on June 1 2021 On June 29 2021 the Court conducted an evidentiary hearing in which the parties offered witness tes timony and other evidence The legal Standard

‘fi 8 Under Virgin Islands law any person who believes that he/she is unlawfully restrained of his/her liberty may seek redress from the Superior Court by filing a petition for a writ of habeas corpus Title 5 VI C § 1301 Hub Corp Rule 2 (a)(1] The Court must issue the writ if the petition states a prima

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facie case for relief and the claims are not legally barred Hub Corp Rule 2(d)(1) In determining whether the petitioner has stated a prima facie case the Court must consider whether the factual allegations if true would entitle the petitioner to relief Hab Corp Rule 2(b)(1) When a court grants habeas corpus relief it may order a remedy other than discharge from incarceration Rivera Moreno v Gov’t of the Virgin Islands 61 VI 279 298 (V I 2014) and may award a different form of relief or remedy as justice may require V I Hub Corp R 2th)

‘1 9 Petitioner 3 claim for habeas corpus relief argues that his incarcer ation is in violation of the right to due process caused by the People 5 failure to provide exculpatory evidence resulting in a Brady violation If the Petitioner can prove a Brady violation he is entitled to relief Kyles v Whitley 514 U S 419 435 (1995]

Discussion

A. Petitioner Failed to Establish the Existence of Undisclosed Evidence ‘1 10 The substance of Petitioners claim is that after a discovery request from the Petitioner in the underlying criminal proceedings the People failed to provide evidence that was favorable to him and thereby violated his right to due process Brady at 87 Specifically Petitioner alleges that the People failed to dis

close a bullet trajectory analysis or report that would have exonerated him ‘To prove a Brady violation the Petitioner must show that (1] the government with

held evidence either willfully or inadvertently (2} the evidence was favorable either because it was exculpatory or of impeachment value and (3) the withheld

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evidence was material Lambert v Blackwell 387 F 3d 210 252 (3“ Cir 2004] [citmg Banks v Dretke 540 U S 668 691 (2004)] The trial court entertained Defendant 5 Motion to Dismiss for Brady violations at the Final Pretrial Confer ence on August 8 2016 In his argument to support the motion to dismiss Fe titioner s counsel described the requested evidence as follows

A trajectory analysis involves measurements and other trigonometry and other analysis calculations to determine the path of the bullet projectile where it would land And they would then estimate the position of the shooter the position of the shot the person who was shot and the sort (Transcript of August 8 2016 p 4)

‘ll 11 Petitioner based his claim of the existence of this analysis or report on the statement a trajectory was then completed referenced in the Crime Scene Evidence Report authored by forensic technician Linda Pas cal The Crime Scene Evidence Report makes no reference to measurements or mathematical formulas to determine the position of the shooter the rel ative position of the person being shot the point of origin of the projectile or where it would land It appears that the statement was part of a cursory observation that investigating officers made in relation to what they thought was a bullet hole The full text of the officers observation as outlined in the Crime Scene Evidence Report is as follows

Sgt Hitesman then observed what to be a bullet hole in the Northeast bedroom northwest screen Based on further inspection it appeared that the bullet passed through the northwest screen and dented the 3m louver and landed to the Northeast of the windowpane a trajectory was then completed

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‘E 12 The People argued at the hearing on the motion to dismiss as the Respondents do now that the only information available in relation to a bullet trajectory is that which is referenced in the Crime Scene Evidence Report Fur ther counsel for the People informed the Court that the People disclosed all of the information relative to the crime scene investigation Petitioner has provided no other evidence that the bullet trajectory analysis or report as envisioned or described by the Petitioner actually exists or has ever existed Instead Petitioner insists that the Crime Scene Evidence Report is sufficient to prove that a bullet trajectory analysis or report was completed beyond the reference in the Report Since Petitioner has not established that the trajectory analysis or report existed or if it existed was ever in actual or constructive possession of the People and was suppressed the Court cannot do an analysis of the additional Brady factors That is a detennination of the exculpatory or impeachment nature of the evi dence or whether it was material

B Petitioner s No Contest Plea Negates His Claim of 9. Due Process Violation

‘3! 13 The Brady Rule which requires prosecutors to disclose evidence favorable to a defendant is designed to protect the defendants constitutional safeguards with particular emphasis on the right to a fair trial secure a fair and trustworthy outcome and preserve the integrity of the judicial process There can be no Brady violation unless the governments nondisclosure infringes on the defendants fair trial right Umted States v Stuntsko 729 F 2d 256 262

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(3rd Cir 1984) (citing United States v Riggs 713 F 2d 39 43 (3“1 Cir 1983) The prosecution s suppression of evidence favorable to the accused violates due process where the evidence is material to guilt or punishment Brady at 87 As the United States Court ofAppeals for the Third Circuit has noted The Supreme Court has cautioned that in making 3 Brady materiality determination the focus should be upon an evaluation of whether the suppression of the evidence re sulted in a verdict unworthy of confidence United States v Pellulo 105 F 3d 117 123(3rd Cir 1997) Evidence is material where there is a reasonable prob ability that had the evidence been disclosed to the defense the result of the pro ceeding would have been different A reasonable probability is a probability suf fluent to undermine confidence in the outcome Simmonds v Beard 590 F 3d 223 234 (3ml Cir 2009) (quoting United States v Bagley 473 U S 667 682 (1985)

‘11 14 The trial court convicted the Petitioner based on his plea of No Contest to count 2 of the superseding information to wit Assault in the First Degree with Domestic Violence in violation of’I‘itle 14 V I 0 § 295(1) and Title 16 V I C § 91(b) Petitioner does not contend that there was some unlawful occur rence in the criminal proceedings that interfered with his ability to make a know mg and voluntary plea Petitioner contends that the unavailability of the bullet trajectory analysis or report dictated his decision in entering the plea This con tention cannot sustain a claim for 3. Brady violation To constitute 3 Brady violation the non disclosure must do more than impede the defendants ability

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to prepare for trial it must adversely affect the courts ability to reach a just conclusion to the prejudice of the defendant Stuntsko at 262 (citing United States v Campagnuolo 592 F 2d 852 861 62 (51h Cir 1979)

‘1 15 During the evidentiary hearing on his habeas corpus petition Petitioner attempted to impress upon the Court that the bullet trajectory analysis or report would show that he could not have discharged the bullet that injured the victim but that the victim injured herself Additionally Petitioner introduced into evidence a DNA swab analysis and Virgin Islands Police record of property receipt to boost his claim that he did not discharge the weapon Petitioner sug gested to the Court that the property that was taken from him was examined for evidence that he discharged a weapon and was returned because no evidence was found to show that he discharged the weapon In addition Petitioner argued that the DNA swab analysis indicated that a female handled the weapon finally Petitioner insinuated that the bullet trajectory analysis or report was suppressed because it was favorable to him ‘K 16 In effect the Petitioner is asking this Court to decide in a habeas corpus proceeding what the evidence would have shown in a criminal trial Not only is the Petitioner asking the Court to act in the capacity of a jury to judge the weight and credibility of evidence that determines conviction or acquittal but Petitioner is also asking the Court to speculate on the materiality effect and relevance of a bullet trajectory analysis or report that he has not shown or proven to erast Petitioner 5 understanding of the purpose of the habeas corpus

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proceeding and the role of the Court is misguided “The purpose of the writ of habeas corpus is not to determine guilt or innocence or to weigh the evidence submitted at trial or to determine the strength of the prosecutors case but to prevent manifest injustice Rodriguez v Bureau of Corrections 58 V I 367 376 {V I 2013) A habeas corpus proceeding is not a vehicle to litigate credibility concerns that were not presented to a jury Ventura 0 People of the Virgin Islands 64 V I 589 590 (V I 2016) See also Fontaine 1: People 56 V I 571 586 (V I 2012) (finding that all issues of weight and credibility of evidence in a criminal proceeding are within the province of the jury) and Smith v Peeple 51 V I 396 401 (V I 2009} (finding that a court considering evidentiary challenges subsequent to a criminal conviction is prohibited from weighing evidence and determining the credibility of witnesses) Petitioner ignores the fact that a crimi nal trial is the most appropriate proceeding in which to make a full examination of the evidence Petitioner waived his right to a full examination of the evidence when he decided to enter a plea of “No Contest Petitioner cannot now launch a collateral attack on his conviction by intimating that the evidence would not have secured his conviction A court in a habeas corpus proceeding cannot grant relief by releasing a petitioner from custody based on what the petitioner claims that the evidence would likely show at trial A court in a habeas corpus proceeding could only grant relief if the admission of evidence at trial prejudiced the peti tioner and undermined the fairness of the criminal proceeding ‘H 17 Similarly Petitioner can only succeed on his claim of a Brady

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violation if he can show that the People 3 failure to disclose was prejudicial to him and unfairly influenced his conviction Petitioner s conviction was obtained through his plea The unavailability of a bullet trajectory analysis or report is not material to Petitioners conviction therefore Petitioner can show no prejudice from it s unavailability Where a defendant suffers no prejudice from the govern ment s failure to disclose a report there is no Brady violation Starusko at 262 Unless the omission deprived the defendant of a fair trial there was no consti tutional violation requiring that the verdict be set aside and absent a constitu tlonal violation there was no breach of the prosecutors constitutional duty to disclose United States v Agurs 427 U S 97 108 (1976) A reasonable probability that had the evidence been disclosed to the defense the outcome of the proceedings would have been different necessarily entails the conclusion that the suppression must have had substantial injurious effect or influence in determining the jury s verdict Brecht v Abrahamson 507 U S 619 623 (1993) Kyles v Whitley at 435 Petitioner s free knowing and voluntary choice to enter a plea negates any claim of prejudice or unfairness to his conviction on the basis that the alleged bullet trajectory analysis or report was not provided to him Conclusion

‘1 18 Fenton challenged his conviction based on allegations that the People 5 failure to provide him with a bullet trajectory report or analysis denied him the right to due process In sum Fenton seeks habeas corpus relief

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contending that the People violated the Brady rule To prove a Brady violation a habeas corpus petitioner must show that the failure to disclose evidence prej udiced the petitioner and led to an unfair and unjust outcome in the underlying criminal proceedings Fentons conviction is based on his plea of no contest as he chose not to challenge the charges against him Not only did Fenton fail to show that the claimed evidence exists his plea of no contest negates his claim that the unavailability of the evidence unfairly or unjustly influenced his convic tlon Fenton 3 request for habeas relief is DENIED DONE AND SO ORDERED this l5"I day of October 2021

IE:%ORABLE J0M0 MEADE

JUDGE OF THE SUPERIOR COURT

ATT E ST

TAMARA CHARLE§ Clerk 0? e Court X! f , e ’

45%;! ’1 :2 curt Clerk. 31pm