People; of the Virgin Islands v. Aubrey A. Frett

• Court: Superior Court of The Virgin Islands
• Decided: January 21, 2022
• Docket: ST-18-CR-244
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff ) v ) CRIMINAL NO ST 18 CR 244 ) AUBREY A FRETT ) ) 2022 VI Super 6U Defendant ) )

EUGENE JAMES CONNOR ESQ PAULA D NORKAITIS ESQ Assistant Attorney General Assistant Territorial Public Defender V I Department of Justice P O Box 6040 34 38 Kronprindsens Gade St Thomas V1 00804 St Thomas V I 00802 Attorneyfor the Defendant Attorneyfor the People ofthe Virgm Islands

CARTY RENEE GUMBS Judge

MEMORANDUM OPINION

$1 BEFORE THIS COURT is Defendant s motion to suppress filed on September 10 2021

The People of the Virgin Islands (the People”) filed their opposition on October 23, 2021, and a

suppression hearing was held on October 26, 2021, via Zoom Defendant s motion seeks to

suppress a potential out of court identification and any in court identification to be made at trial

by victim Traveson Bailey (“Bailey”) Defendant also seeks to suppress statements Frett made to

law enforcement the day after the shooting incident

fil2 The Court heard the sworn testimonies of Virgin Islands Police Detective Alex Dorsett

(“Detective Dorsett”) and Officer Vernon Carr ( Officer Carr ’) At the conclusion of the hearing,

the Court took the matter under advisement For the reasons set forth herein, Defendant s motion

to suppress identification and statements will be denied People ofthe Vzrgm Islands v Aubrey A Frett 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

I FACTUAL BACKGROUND

13 On June 26, 2018, at approximately 11 25 am, Bailey visited Lima Grocery in Prindsens

Gade (commonly known as “Goat street ’) in Hospital Ground, St Thomas, U S Virgin Islands

Defs Ex M 2 (June 27 2018 Supplemental Report) According to Bailey a tall light skinned

heavyset, bearded man with twists in his hair, later identified as Aubrey Frett, blocked him from

entering the store by putting his hand across the doorway Def’s Ex M 1 (October 18, 2018,

Dorsett Aff 1|1| 8 21) Frett asked Bailey why he was looking at him and a verbal altercation

ensued Def’s Ex M 1 (October 18, 2018, Dorsett Aff 1| 9) Frett exited Lima Grocery and warned

Bailey not to return DePs Bx M 1 (October 18 2018 Dorsett Aff 1| 9) Bailey entered Lima

Grocery and purchased a beverage Def’s Ex M 1 (October 18, 2018, Dorsett Aff 1| 10) Once

finished with his purchase, Bailey walked towards Bergs Home Housing Community (“Bergs

Home’ ) in Hospital Ground through the Department of Human Services parking lot Def’s Ex

M 1 (October 18 2018 Dorsett Aff 1| 11) Upon arriving at Bergs Home Bailey suddenly heard

someone behind him say, “yeah Def’s Ex M 1 (October 18, 2018 Dorsett Aff 1| 11) Before

Bailey could turn around, he heard gunshots, was struck, and fell to the ground Def’s Ex M 1

(October 18 2018 Dorsett Aff 1| 11) Upon falling Bailey realized he was shot Def's Ex M 1

(October 18, 2018, Dorsett Aff 1| 11) As Bailey laid on the ground, he observed a dark colored

sedan automotive, akin to a Toyota Camry or Honda Accord, flee the area at a high rate of speed

Def’s Ex M 1 (October 18 2018 Dorsett Aff 1| l3) Bailey could not identify the individual that

shot him but was able to call 911 and report the incident Def‘s Ex M 3 (June 26, 2018,

Supplemental Report) Bailey believed this was the same man he encountered at Lima Grocery

DePs Ex M 3 (June 26 2018 Supplemental Report)

2 People ofthe Vzrgm Islands v AubreyA Frett 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

114 Bailey suffered a single gunshot wound and was shortly thereafter transported to Schneider

Regional Medical Center for medical treatment Der Ex M 3 (June 26, 2018, Supplemental

Report) As part of his investigation, Detective Dorsett drove to Schneider Regional Medical

Center and took Bailey 3 statement Def’s Ex M 3 (June 26, 2018, Supplemental Report) Bailey

told Detective Dorsett that as he walked towards Bergs Home he heard shots fire and then felt a

pain in his back Def’s Ex M 3 (June 26 2018 Supplemental Report) Bailey then told Detective

Dorsett he dialed 91 l and believed he saw the shooter drive off in a heavily tinted black Honda or

Toyota Camry Def’s Ex M 3 (June 26 2018 Supplemental Report) Detective Dorsett stated

Bailey 3 statement was stopped abruptly because Bailey was rushed into emergency surgery

'5 Continuing his investigation, Detective Dorsett obtained Lima Grocery’s surveillance

footage from that day and immediately recognized Frett as the man that impeded Bailey’s entrance

to the store DePs Ex M 1 (October 18 2018 Dorsett Aff 1M 15 I6) Detective Dorsett is

personally familiar with Frett from previous interactions while employed with the Virgin Islands

Police Department ( VIPD ) DePs Ex M 1 (October 18 2018 Dorsett Aff ' 16) The

surveillance footage also showed a dark colored, four door vehicle with tinted windows heading

east near Lima Grocery minutes after Bailey exited Lima Grocery Def’s Ex M 1 (October 18,

2018, Dorsett Aff $ 17) The VIPD conducted a search of Bureau of Motor Vehicles ( BMV )

records where Detective Dorsett learned Frett 3 mother owns a black, 2016, four door Honda

Accord with tinted windows Def’s Ex M 1 (October 18 2018 Dorsett Aff ‘1 18)

116 On June 27, 2018, units from the VIPD Special Operations Bureau travelled to Frett s

residence, #1527 Prindsens Gade, to take him into custody for questioning Def’s Ex M 1

(October 18 2018 Dorsett Aff 1| 19) Frett was apprehended near his home After providing Frett

3 People ofthe Virgin Islands v Aubrey A Frett 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

with the requisite Miranda warnings, Detective Dorsett and Sergeant Mario Stout provided Frett a

waiver of rights form Defs Ex M 1 (October 18 2018 Dorsett Aff 11 20) Frett read, signed, and

dated the waiver Defs Ex M 4 (“Warning as to Rights’ form) Detective Dorsett testified the

interrogation took place from approximately 3 15 p m to 4 00 p m During the interrogation, Frett

admitted to confronting Bailey at Lima Grocery but denied shooting him Def’s Ex M 1 (October

18, 2018, Dorsett Aff 1E 21) Detective Dorsett testified he drafted a seven page report of this

statement which Frett signed and was then released from custody

117 Prior to the hearing on October 26, 2021, Defendant reiterated the need for discovery

materials to be served by the government Defendant filed a second supplemental discovery

request and advised the Court he still had not received copies of the alleged statements provided

to Detective Dorsett and other evidence related to this case The People assured the Court the

discovery process was completed by May 2019, time and again However, by the end of the hearing

it was clear the People withheld documents from Defendant In fact, as of the date of the hearing

Defendant was still unaware of an out of court identification, if any, made by Bailey However,

Defendant specifically filed his motion believing that in the event a photo array or some form of

out of court identification exists, Defendant was not in possession of such identification evidence,

and therefore it should be suppressed More particularly, Bailey did not and could not identify the

shooter as Bailey was shot in the back

[1 LEGAL DISCUSSION

‘l8 Defendant argues any out of court identification or in court identification must be

suppressed because Bailey was shot in the back and there is no photo array or any evidence that

identifies Frett as the perpetrator Also Defendant argues that if there currently is no out of court

4 People ofthe Virgin Islands v Aubrey A Frett 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

identification then Bailey identifying Defendant now in a pretrial procedure would be unreliable

and ultimately inadmissible The People admit Bailey made no out of court identification of

Defendant as the shooter and argues the request to suppress Bailey 3 identification of Frett is

“frivolous” because there is no out of court identification to suppress In other words, the

customary investigation practice of using a photo array to identify suspects was never done, hence

“no identification procedure to attack ” The People assert this is a case of circumstantial evidence

‘9 Next, Defendant also argues the seven page written statement and oral statements provided

to law enforcement were coerced and involuntary which violated Frett’s constitutional rights

Conversely, the People argue Frett waived his constitutional rights after he was provided the

Miranda warnings and Frett signed the waiver, fundamentally demonstrating Frett understood his

rights and did not seek legal counsel Therefore, the statements provided to the VIPD were of

Frett s own volition and must not be suppressed

A Defendant’s Motion to Suppress Any Out Of Court Identification is Ineffectual because There Exists No Out Of Court Identification

1 Standard ofRewew when Suppressmg Wztness Out of Court [dennficanon

1110 A pre trial identification procedure violates constitutional due process if the procedure is

so unnecessarily suggestive as to create a substantial likelihood of irreparable misidentification

Carma v Government ofthe Vlrgm Islands 48 VI 530 536 (D V I App Div 2006) (citing Neil

v Bzggers 409 U S 188 196 99 (1972)) Courts employ a two part test to determine whether an

identification procedure violates constitutional due process chhards v People, 53 V I 379, 387

(V I 2010) First, the court must determine whether the identification procedure was unnecessarily

suggestive chhards, 53 V I at 387 If the procedure was not unnecessarily suggestive, the inquiry

5 People ofthe Vzrgm Islands v AubreyA Fret! 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

ends there However, if it was unnecessarily suggestive, the court then decides whether the

identification that occurred was reliable despite the suggestive procedure Id

$1 1 An out of court identification is reliable so long as the “totality of the circumstances” do

not give rise to a “substantial likelihood of misidentification See Potrer v People ofthe V I , 56

V I 779, 789 (V I 2012) When evaluating the totality of the circumstances, courts consider five

factors (I ) the opportunity of the witness to view the criminal at the time of the crime, (2 ) the

witness' degree of attention; (3 ) the accuracy of the witness' prior description of the criminal, (4 )

the level of certainty demonstrated by the witness at the identification; (5 ) and the length of time

between the crime and the identification People of the I I v Boyce, No SX [3 CR 092, 2014

V I LEXIS 84 at *4 5 (Super Lt Oct 6 2014) (quoting Btggers at 199 200) Generally this

standard applies to out of court identifications such as a photo array or a line up

1112 Here, the circumstances of this case are unique and do not require a legal standard of

review At the time of this hearing, the People failed to serve all discovery materials which directly

impacted Defendant s motion to suppress In anticipation thereof and considering the facts,

Defendant preemptively asks this Court to suppress any out of court identification regardless of

whether such evidence existed Further Defendant filed this motion to suppress also in anticipation

of an in court identification, as a direct result of no out of court identification However, because

there was no out of court identification, there is nothing to suppress

2 Analyszs

1|13 In his motion, Defendant argues the lack of evidence and the four month delay between

the incident and the arrest; and any belated out of court identification will render any identification

unduly suggestive and unreliable Defendant contends Bailey was shot from behind and, according

6 People ofthe Virgin Islands v A ubrey A Fret! 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

to Bailey, unable to see the shooter Bailey could only describe to Detective Dorsett a vehicle that

sped away as he laid on the ground Based on the testimony adduced at the hearing, there was no

investigative follow up by law enforcement to obtain an out of court identification from Bailey

Also, Bailey immediately sought emergency medical treatment on the continental United States,

hence no opportunity to conduct a photo array Therefore, any out of court identification now

would be impermissiny suggestive

1|l4 The People in their written opposition and during the hearing established Bailey made no

out of court identification of Frett They assert this is a circumstantial case as Bailey identified

Frett as the person he had the confrontation with at Lima Grocery, and the car on the surveillance

footage matches the description of the car Bailey identified that immediately fled the area which

matches the description of Frett’s mother’s car

1|15 There are no mandates requiring the VIPD to conduct out of court identifications, nor is it

the role of the Court to require law enforcement to do so Accordingly, there is nothing to suggest

an out of court identification will be conducted For this reason, Defendant s argument is

premature, as there does not exist an out of court identification made by Bailey to suppress Thus,

Defendant s motion is ineffectual, and therefore must be denied

B Defendant’s Motion to Suppress In Court Identification is Denied Because the Lack of Pretrial Identification Does Not Preclude an In Court Identification

1[16 Defendant insists the lack of out of court identification interdicts Bailey from identifying

Frett at trial Although there was no out of court identification, the People ask this Court to

preserve the opportunity to make an in court identification of the person Bailey had the verbal

confrontation with at Lima Grocery

7 People ofthe Virgin Islands v AubreyA Fret! 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

1117 Courts have held the absence of an out of court identification does not restrict the

government 5 ability to make an in court identification, only weaken the strength of such

testimony The lack of an out of court identification may significantly dilute the strength of a

subsequent in court identification, but it does not render an in court identification inadmissible

State v Wooten 631 A 2d 271 282 (Conn 1993) A witness inability to identify a defendant from

an out of court identification or pretrial practice does not affect the admissibility of the in court

identification, only its weight and credibility of the witness’ testimony Commonwealth v

Washmgton 927 A 2d 586 601 (Pa 2007)‘ Lmted States v Brown 200 F 3d 700 707 (10th Cir

1999) Other courts also hold a witness for identification at trial may testify without previously

attending an out of court identification procedure See U S v Doram‘es, 471 F 2d 298 (3d Cir

1972) Dams v Stare 560 So 2d 1346 (Fla 3d DCA 1990) People v Patterson 88 Ill App 3d

168 43 Ill Dec 396 410 N E 2d 396 403 (lst Dist 1980) State v Jones 565 So 2d 1023 (La

Ct App lst Cir 1990) writ denied 585 So 2d 565 (La 1991) State v Clay 783 S W 2d 419

(Mo Ct App E D 1989) Although the prosecution may ask a witness to identify the defendant

during trial, the defendant also maintains the right to cross examine or immediately voir dzre the

witness to the fullest extent concerning the circumstances or lack of previous identification See

Wooten 631 A 2d at 282 83

118 At jury trials, the jury, not the Court, determines whether a witness’ testimony is truthful

and reliable The Court should not act as the gatekeeper of such testimony and should instead allow

the jury to determine the witness s credibility and truthfulness of the testimony The Court

preserves the People’s privilege of providing such testimony as well as allowing Defendant to fiJlly

8 People ofrhe Virgin Islands v AubreyA Fret! 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

cross examine the witness Hence, the Court will not preclude a proper in court identification of

Frett and the motion will be denied

C Defendant’s Post Miranda Statements Will Not Be Suppressed Because the Statements Were Made of His Own Volition

1 Standard ofRewewfor Statements Made Durmg Custodial Interrogation

1119 Miranda warnings are required for custodial interrogations See Castillo v People, 59 V 1

240 265 (VI 2013) (citing Rhode Island v [mm 446 U S 291 300 (1980)) A suspect is in

custody when they have been “deprived of freedom of action in any significant way ” Ramirez v

People 56 V I 409 419 (V I 2012) (citing United States v Thompson 496 F 3d 807 810 (7th

Cir 2007)) However, a suspect can waive his rights by making a statement after Miranda warnings

have been given Id (citing Edwards v Arizona 451 U S 477 485 86 (1981)) A defendant can

only waive his constitutional rights knowingly, voluntarily, and without coercion See People v

Azzam No ST 2016 CR 00232 2017 WL 5514375 at *1 2017 VI LEXIS 157 at *3 (VI

Super Ct Nov 14 2017) (citing Moranv Burbme 475 U S 412 421 (1986))

1|20 The burden rests on the defendant to establish the evidence sought to be suppressed was

illegally obtained Azzam 2017 WL 5514375 at *1 2017 V I LEXIS 157 at *2 Once the

defendant alleges facts demonstrating he was in custody and subject to an interrogation, the burden

then shifis to the People to prove by a preponderance of the evidence that the police complied with

Miranda and that the statement was voluntary ” [d (citing Colorado v Connelly, 479 U S 157

(1986))

1121 In this case, both parties agree Defendant was in custody and an interrogation occurred

Defendant was transported to the police station, given Miranda warnings, and then asked if he had

9 People ofthe Virgm Islands v AubreyA Frett 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

any questions Detective Dorsett testified he wrote down Frett 3 statement but as it stands this

statement has not been served by the People to Defendant In sum, Detective Dorsett testified Frett

admitted to being present at Lima Grocery and argued with Bailey at the entrance, but Frett denied

shooting Bailey

1122 Defendant baldly asserts his alleged statements to law enforcement were coerced or were

not of his own volition With the burden shifting to the government, the People produced the signed

waiver warning Frett of his rights The waiver includes a description of rights, and the opportunity

to obtain legal counsel The warning as to rights form states

You must understand your rights before we ask you any questions You have the right to remain silent Anything you say can be used against you in court, or other proceedings You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning

If you cannot afford a lawyer and want one, a lawyer will be appointed for you by the court free of charge and at no cost to you If you decide to answer questions now without a lawyer present, you will still have the right to stop the questioning at any time until you talk to a lawyer

$23 DePs Ex M 4 (‘Warning as to Rights form) Detective Dorsett testified Frett was

provided this statement and Frett signed beneath where it provides “1 have read this statement of

my rights and it has been read to me I understand what my rights are Frett also signed underneath

the waiver language stating

I do not want a lawyer at this time I understand and know what I am doing No promises or threats have been made to me and no pressure or force of any kind has been used against me I hereby voluntarily and intentionally waive my rights and am willing to make a statement and answer questions

1|24 Defs Ex M 4 ( Warning as to Rights form) Law enforcement both verbally advised

Frett of his rights and provided Frett with a written warning as to rights form Defendant s

[0 PeopIe 0fthe Virgin Islands v Aubrey A Frett 2022 VI Super 6U Case No ST 18 CR 244 Memorandum Opinion

signature is seen at the bottom of each section signifying Frett read and understood his

constitutional rights and elected to speak with Detective Dorsett and other VIPD law enforcement

officers Furthermore, Defendant provided no evidence of coercion or that Frett is unable to read

or understand English This waiver indicates any statements made during this custodial

interrogation were of Defendant’s own volition Therefore, the Court will deny Defendant s

motion to suppress statement(s) made to law enforcement

[11 CONCLUSION

1|25 The lack of out of court identification renders Defendant’s request to suppress the absent

out of court identification ineffectual Similarly, the Court will not suppress an in court

identification because the reliability of such testimony is not for the Court to determine but for the

jury to evaluate Finally, Defendant was informed of his constitutional rights while in custody and

waived those rights when he voluntarily provided a statement to law enforcement Given the

foregoing reasons, Defendant’s motion to suppress will be denied An order of even date follows

./ / Dated January £1 2022 K 65 Ren mbs Carty Judge of Superior Court of th irgin Islands ATTEST Tamara Charles Clerk of th C 11

mm Latoya amacho W Court Clerk Sup isor Z & 10%?

ll IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff ) v ) CASE NO ST 18 CR 244 ) AUBREY A FRETT ) ) 2022 VI Super 6U Defendant ) ) ORDER

THIS MATTER came before the Court on October 26, 2021, for a suppression hearing, via Zoom Defendant filed his motion to suppress on September 10, 2021, and the People of the Virgin Islands filed their opposition on October 23, 2021 Based on the representations made by counsel, the testimony adduced at the hearing, and for the reasons set forth on the record, it is hereby ORDERED that Defendant’s motion to suppress is DENIED; and it is further ORDERED that a copy of this Order shall be distributed to Assistant Attorney General Eugene James Connor, Jr , Esquire, Territorial Public Defender Paula D Norkaitis, Esquire, and Samuel L Joseph, Esquire, ChiefTerritorial Pub der

I / Dated January g / 2022 /W {l} Renee um Carty Judge of the S erior Court of the Virgin Islands ATTEST Tamara Charles Clerk of the Co rt

BY WW Latoya macho fi/ Court Clerk Superv sor A &W