People of the Virgin Islands

2020 VI Super 92U

Opinion

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

)

PEOPLE OF THE VIRGIN ISLANDS )

)

Plaintiff )

) CASE NO ST 17 CR 031 v )

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JEHRELLE ASTER WARNER )

) Cite as 2020 VI Super 92U Defendant )

)

MEMORANDUM OPINION

‘F 1 THIS MATTER is before the Court on the People of the Virgin Islands’ Motion to Allow

Witness to Appear via Skype or Other Electronic Real Time Medium at Trial, filed on October 21, 2019 Defendant filed an Opposition on October 23, 2019 The Court held a pretrial conference on October 20, 2020, where the parties informed the Court that they continue to hold the same views expressed in their motions, regardless of the onset of the COVID 19 pandemic For the reasons set forth below, the Court will grant the People’s motion 1 Factual Background 11 2 Defendant Warner was been charged with various violations of the criminal code in connection with an incident where she allegedly crashed into Wolfgang and Monika Goldammer with her vehicle The incident occurred when the couple was visiting St Thomas, Virgin Islands on a cruise The record reflects that Mrs Goldammer was pushing Mr Goldammer across a crosswalk in his wheelchair when they were struck by Defendant’s vehicle Mr Goldammer later died from his injuries, but Mrs Goldammer was not seriously injured Mrs Goldammer is approximately seventy five (75) years old and lives in Germany; she is also the People’s primary witness The People, even pre pandemic, sought the Court’s permission to allow Mrs Goldammer to testify via electronic medium on the grounds that she could not travel due to post traumatic stress disorder associated with

People v Jehrelle Aster Warner Cite as 2020 VI Super 92U Case No ST 17 CR 031 Memorandum Opinion

the incident and her age The parties arguments remain the same, but the People’s position now appears much stronger because of the COVID l9 pandemic II The Confrontation Clause 1] 3 Defendant Warner opposes the remote testimony of Mrs Goldammer on the grounds that it violates her Sixth Amendment right to confront adverse witnesses Def ’5 Opp’n 2 The Sixth Amendment applies to the Virgin Islands through section 3 of the Revised Organic Act of 1954 and guarantees a criminal defendant the right ‘to be confronted with the witnesses against him ”US Const amend VI The Revised Organic Act contains a parallel provision, which the Virgin Islands Supreme Court has not, to date, interpreted differently than the Sixth Amendment Murrell v People 0fthe VI 54 VI 338 354 (VI 2010)‘ bulsee Balbom v Ranger Am ofthe V.[ Inc 70 VI 1048 1089 (VI 2019) (holding that the Virgin Islands Supreme Court has the power to interpret the Revised Organic Act’s Bill of Rights as providing greater protection for individual rights than the United States Constitution) 1] 4 The Confrontation Clause affords criminal defendants both the right to confront and to cross examine adverse witnesses ” Browne v People ofthe VI , 56 V I 207, 221 22 (V I 2012) However, the right like many has limitations In Maryland v Crazg 497 U S 836 (1990) the United States Supreme Court held that allowing child sexual abuse victims to testify in a separate room where the defendant could see them via a one way monitor did not run afoul of the Sixth Amendment [d at 851 52 It stated that the Confrontation Clause reflects a preference for face to face confrontation,’ which “must occasionally give way to considerations of public policy and the necessities of the case ’ 1d at 849 Confrontation rights may be satisfied absent a physical, face to face confrontation at trial only where denial of such confrontation is necessary to timber an important public policy and only where the reliability of the testimony is otherwise assured ” Id at 850

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People v Jeltrelle Aster Warner Cite as 2020 v1 Super 9211 Case No ST 17 CR 03! Memorandum Opinion

15 Courts have relied on this holding to permit live remote testimony in various contexts, including where the witness 3 health and safety might be compromised by testifying in person See Lmted States v Gigante 166 F 3d 75 79 (2d Cir 1999) (allowing elderly witness to testify from a remote location while in witness protection program), see also Unzted States v Donz:ger, No 19 CR 561 (LAP) 2020 U S Dist LEXIS 157797 at *5 6 (S DN Y Aug 31 2020) (allowing testimony by two way video because “limiting the spread of COVID l9 and protecting at risk individuals from exposure to the virus are critically important public policies”); Virgin Islands v Tranberg, 28 V I 52, 55 (V I Terr Ct 1993) (finding that allowing a victim of elder abuse to testify by video would be analogous to the procedure used for child sex abuse victims) However, courts have recognized that under C ralg the government must show not only that remote testimony serves an important public policy, but that it is necessary, meaning there are no alternatives (mired Srates v Pangelman, No 19 10077 JWB 2020 U S Dist LEXIS 157465 at *7 (D Kan Aug 31 2020) (declining to allow healthy witnesses testify remotely during COVID 19 pandemic); United States v Casher, No CR 19 65 BLG SPW 2020 U S Dist LEXIS 106293 at *8 (D Mont June 17 2020) (requiring witness to testify in person during COVID l9 pandemic because he could travel by vehicle to courthouse and avoid the increased exposure associated with air travel) '16 When allowing remote testimony, courts have evaluated whether the underlying goals of confrontation would still be met without live in court testimony “The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross examination ” George v People 0fthe VI 59 VI 368 380 (VI 2013) (quoting Dams v Alaska 415 US 308 315 16 (1974)) Another central “purpose of the Confrontation Clause is to ensure the reliability of testimony by permitting the jury to draw conclusions from the manner and demeanor of the witness ” Cascen v

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People v Jehrelle Aster Warner Cite as 2020 v1 Super 92v Case No ST 17 CR 031 Memorandum Opinion

People of the VI 60 VI 392 412 (V I 2014) (quoting Untied States v de Jesus Casteneda 705 F 3d 1117 1120 n 3 (9th Cir 2013)) Considering these rationales courts have found that

[A]llowing a prosecution witness to testify during a criminal trial by two way video conference or two way closed circuit television does not violate the defendant s right to confront the witnesses against them where doing so is necessary to protect the health or well being of the witness or someone else, and the defendant is able to cross examine and confront the witness through the video platform

Commonu ealth v Masa No 1981CR0307 2020 Mass Super LEXIS 109 at *5 (Aug 10 2020) (collecting cases) [I] Remote Testimony by Mrs Goldammer 1] 7 This Court finds that allowing Mrs Goldammer to testify by live two way video does not violate Defendant Warner s right to confrontation Under Craig, the Sixth Amendment is satisfied by something other than live face to face confrontation if it is necessary to further an important public policy and the reliability of the testimony is assured 497 U S 850 The Court finds that preventing the spread of COVID 19 and not subjecting Mrs Goldammer, who is an at risk individual, to a possible infection is an important public policy that can only be served by allowing remote testimony in this situation Donzzger 2020U S Dist LEXIS 157797 at *5—6 Masa 2020 Mass Super LEXIS 109, at *5 Requiring Mrs Goldammer to travel a great distance across international borders would subject her to significant risk of exposure to COVID 19 and the Court sees no viable alternative in this situation See United States v Dams No 19 101 LPS 2020 U S Dist LEXIS 196624 at *6—8 (D De] Oct 23, 2020) (allowing witnesses residing “between 611 and 2,706 miles” from the courthouse to testify remotely) The Court is persuaded by Dams, which held that “due to the impact of the coronavirus pandemic (especially on long distance travel), [the] witnesses should not, and are not expected to, leave their homes and communities Id at *8 Further, the reliability of Mrs Goldammer’s testimony can be ensured by cross examination on a two way video conferencing

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People v Jehrelle Aster Warner Cite as 2020 VI Super 92U Case No ST 17 CR 031 Memorandum Opinion

platform Virtual examination will allow jurors to draw inferences about her credibility and the veracity of her testimony just as they would in a live court proceeding These considerations outweigh Defendant Warner 3 interest in face to face confrontation 1d at *5 1] 8 The Court therefore holds that Defendant Wamer’s Sixth Amendment right to confront the witnesses against her is satisfied by the live two way video testimony and cross examination of Mrs Goldammer The Court emphasizes that this holding does not automatically extend to all other requests for remote video testimony during the COVID l9 pandemic Pangelinan, 2020 U S Dist LEXIS 157465 at *7 ( usher 2020 U S Dist LEXIS 106293 at *8 This situation involves amyriad of factors weighing in favor of remote $56me order of even date follows

Dated Novemberé 2020 / C J [1‘ Q ’ “Li

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Judge of the erior curt of the Virgin Island

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

)

PEOPLE OF THE VIRGIN ISLANDS )

)

Plaintiff )

) CASE NO ST 17 CR 031 V )

)

JEHRELLE ASTER WARNER )

) Cite as 2020 VI Super 92U Defendant )

)

ORDER

AND NOW, for the reasons stated in the accompanying Memorandum Opinion, it is

hereby ORDERED that the People 3 motion is GRANTED ORDERED that a copy of this Order shall be distributed to Assistant Attorney General Alexandra C Bynum, Esquire and Territorial Public Defender Julie S Todman, Esquire

Dated ovembed 2020 I, /

I (J “ Llugl

, /‘

I

Rene t umbs Carty

Judge 0| e Superior Court of the Virgin Islands

AT!" T var Charles [I I k a a 01.111 I fq§=Am [A /4 ggelfA I a LnnBoynes Ty on ‘ Chief Deputy ' erk [Z 4 M