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)
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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
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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
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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
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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
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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
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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
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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))
2 Analyszs
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
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
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