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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN PEOPLE OF THE VIRGIN ISLANDS ) CASE NO ST 2018 CR 00208 Plaintiff ) vs ) ) AUBREY FRETT ) Defendant ) “fig Cite as 2020 VI Super 49U MEMORANDUM OPINION This mattei is bef01e the Court on the People of the Virgin Islands’ (herelnafter “the People”) Motion to Continue and Depose a Material Witness, filed March 9 2020, pursuant to Virgin Islands Rule of Civil Proceduie 6 3 and Virgin Islands Rule of Criminal Procedure 15 respectively The Defendant Aubrey Frett (hereinafter “Frett”), opposes the motion For the reasons set forth herein the motion will be denied FACTS Frett was arrested on September 3, 2018 and charged with first degree murder and related charges The following charges are currently pending 1) First Degree Murder 2) First Degree Assault, 3) Unauthorized Use of an Unlicensed Firearm during the Commission of a First Degree Assault, 4) Third Degree Assault, 5) Unauthorized use of an Unlicensed Firearm During the Commiss1on of a Third People of the Virgin Islands v Aubiey Frett Case No ST 2018 CR 00208 Mem01andum Opinion Cite as 2020 VI Super 49U Degree Assault, and 6) Reckless Endangerment in the First Degree all related to the murder of Jerome Turnbull on September 1, 2018 1 At Frett’s airalgnment, jury selection was scheduled for July 22, 2019 But his Jury selection was continued three times since then As of the date of the filing of the subject Motion Jury selection was scheduled for March 23 2020 At the pretrial conference on March 3 2020, the People made an oral motion to continue the March 23, 2020 jury selection in order to depose a material witness Frett objected So, the Court directed the People to file a written motion 2 In their written motion the People request a continuance for two reasons 1) the failing health of the prosecutor s elderly relative who lives off island and the piosecut01’s family duty to visit them and put plans 1n place for their care, and 2) the inability of a material witness to travel and be present at trial in the Virgin Islands As such the People request permission to depose the material witness and that trial be continued until May 2020 LEGAL STANDARD I Contlnuance There is no local rule of criminal procedure that addresses continuances of criminal trials People U Hatcher 68 VI 362 369 (V I Super Ct 2018) The People cite to Superi01 Court Rule 10 1, which piovides that “Rule 6 3 of the Virgin Islands 1 Frett has been in custody at the Bureau ofCorrections since his arrest on September 3 2018 ’ Viigin Islands Rule of Ciiminal Plocedme iequiies that a motion be in writing [and] state the giounds on which it is based, the legal authorities upon which it relies, and the ielief or order sought ” V I R Ciim P 47(b) People of the Virgin Islands v Aubrey Frett Case No ST 2018 CR 00208 Memorandum Opinion Cite as 2020 VI Super 49U Rules of Civ1l Procedure shall govern continuances of all trials conferences and other scheduled hearings, in both civil and criminal cases ” However, Superior Court Rule 10 1 was repealed on February 15 2019 by Supreme Court Promulgation No 2019 003 As such another procedural rule must govern Hatcher 68 VI at 369 (quoting VI R C1im P 1(e)) (‘ When procedure is not prescribed by these Virgrn Islands Rules of Criminal Procedure precedent from the Supreme Court of the Virgin Islands, or the Virgin Islands Code, a Judge may regulate practice in a criminal proceeding in any manner consistent with law of the Virgin Islands ”) Nevertheless, in this instance the March 23 2020 trial date was continued due to the COVID 19 virus thereby making moot the portion of the motion to continue the trial date II Deposition of a Material Witness Under Rule 15(a)(1) of the Virgin Islands Rules of Criminal Procedure a material witness may be deposed ‘to preserve testimony for trial, 1) when exceptional circumstances exist and 2) when it is in the interest of Justice 3 Analysis of the first factor requires consideration of the witness’s unavailability at trial and the materiality of the witness’s testimony Unwed States v IsmaLlL 828 F 2d 153, 159 3 Importantly the use of the term ‘deposition’ in a criminal context is distinct from its use in a civil context See US v IsmaLlL 828 F 2d 153, 159 (3d Cir 1987) In a crvil context, the term deposition ordinarily connotes the taking of testimony for discovery purposes ” Id (citing U S v Cutler 806 F 2d 933, 935 (9th Cir 1986)) However, the term as used in criminal context under Rule 15(a) is restricted to the party s taking of their own prospective witness s testimony 1t does not include the taking of testimony from an opposing party 3 witness Id Further, Rule 15(a) depositions must be granted by court order and are to be taken only to preserve testimony for trial and not for discovery purposes Id (citing Note of the Advrsory Committee to Rule 15) People of the V11 gin Islands v Aub1ey Fiett Case No ST 2018 CR 00208 Memorandum Opinion Cite as 2020 VI Supei 49U (3d Cir 1987) (noting that “exceptional circumstances” must encompass considerations of unavailability and materiality) The second factor con81ders whether deposing the witness is necessary to prevent a failure ofJustice IsmaLlL 828 F 2d at 158 The movant bears the burden of showing that both factors are satisfied Ismatlt 828 F 2d at 158 see also US U Rosenstetn 474 F 2d 705 (2d Cir 1973) Whethei each fact01 has been established is a dete1 mination predicated on the court’s discretion Ismatlz 828 F 2d at 159 A Exceptional Clrcumstances To Show that exceptional circumstances exist, the movant must prove that the witness is unavailable to testify at trial such that, unless the witness is deposed, the witness’s testimony will not be preserved Ismath, 828 F 2d at 159 (citing Untted States v Johnson 752 F 2d 206 209 (6th Cir 1985) (recognizing unavailability as an 1mportant factor in determining whether exceptional circumstances exist)) The nature of the witness’s unavailability must be of a degree sufficient to Justify the finding of an exceptional circumstance For instance, under Rule 804(a)(4) of the Virg1n Islands Rules of Evidence a witness may be considered unavailable if that witness cannot be present or testify at trial due to a physical or mental illness VI R Evid 804(a)(4) see also Gov t of the VI 0 Tranberg 28 VI 52 56 n 1 (VI Super Ct 1993) (citing Fed R Ev 804(a)(4)) 4 4 Effective Mai ch 31 2017 the Vii gin Islands legislatuie adopted the V11 gin Islands Rules of Evidence which supersede all p1ev1ous rules applied in Virgin Islands couits including the Federal Rules of People of the Vii gin Islands v Aubi ey F1 ett Case No ST 2018 CR 00208 Memorandum Opinion Cite as 2020 VI Supe1 49U Additionally, the movant must demonstiate that the witness’s testimony is material to the movant’s case IsmaLlL 828 F 2d at 159 Testimony is considered material if it is likely to make a difference in the outcome of the trial See thhardson U Gov t of the VI 55 V I 1193 1204 (D V I App Div 2011) (quoting Untted States U Valenzuela Bernal, 458 U S 858 867 (1982)) (‘ Evidence is material only if there is a reasonable likelihood that the testimony could have affected the Judgment of the trier of fact ) GOL t of the VI 1) Benjamin 25 VI 191 206 (1990) People of the VI 0 Ward 52 VI 71 93 (V I Super Ct 2009) (quoting U S v Agurs 427 U S 97 106 (1976)) (“Evidence will be deemed material if the suppiessed evidence might have affected the outcome of the trial ”) B In the Interest of Justice Secondly, the movant must demonstrate that the deposition of a material w1tness is in the interest of justice While the phrase “in the interest of justice” has never been defined by Virgin Islands courts, its use as grounds for actions taken in the interest of fairness and efficient Judicial administration reveal its purpose and parameters See e g , FtnanCLal Trust Co Inc U CLtLbanh NA , 268 F Supp 2d 561 569 (D VI 2003) (discussing transfer of venue “in the interest of justice”); Dams U People 69 VI 619 681 n 42 (V I 2018) (recognizing the authority of the trial judge to revisit any 11.11ng, so long as it has jurisdiction over the case at the time, when “the Evidence In re Adoptton of Vt]gm Islands Rules of Evidence Piomulgation No 2017 002 , 2017 WL 1293843 at *1 (VI Apl 3 2017) People of the Virgin Islands V Aub1ey Frett Case No ST 2018 CR 00208 Memorandum Opinion Cite as 2020 VI Super 49U interests of justice” so require it); Percwal U People, 62 VI 477, 490 (V I 2015) (affirming the grant of a new trial ‘in the interest of justice’) Fontame U People, 59 VI 1004 1009 (V I 2013) (discussing a public defender s duty to counsel defend and act in the inteiest of justice”) In re Morton, 56 V I 313 318 (V I 2012) (discussmg the Court’s authority to appoint counsel to further the “interests of justice”) The meaning of the phrase is also revealed by looking at the language and purpose of Rule 15(a)(1) A party may move that a prospective witness be deposed in order to preserve testimony for trial The court may grant the motion because of exceptional circumstances and in the interest ofjustice ” V I R Crim P 15(a)(1) As such the Court finds that the deposition of a material witness is ‘in the interest of justice” if the puipose of such deposition is to preserve testimony for tiial, which would otherwise be absent due to the exceptional circumstances that prevent the witness from testifying at trial This purpose carries with it considerations of fairness and efficient judicial administration similar to those made by other Virgin Islands courts that have used the phrase in their analyses Accordingly the Court finds that in order to demonstrate that the deposition of a material witness is in the interest of justice the movant must Show that the purpose of such deposition is for the preservation of testimony for trial C Notice Thirdly the party seeking the deposition must also give reasonable written notice to the opposing party, including the date and location of the deposition which People of the Viigin Islands v Aubiey F1 ett Case No ST 2018 CR 00208 Mem01andum Opinion Cite as 2020 VI Supe1 49U Page ’7 of 11 the court may alter for good cause and the name and address of the person to be deposed VI R Crim P 15(b)(1) If the defendant is in custody the party seeking the deposition must also give notice to the defendant’s custodial officer of the deposition’s scheduled time and locatlon VI R Crim P 15(b)(2) The custodial officer must produce the defendant at the deposition and keep the defendant in the witness's piesence during the examination,” unless the defendant walves his light to be present 1n writing or contlnues to be disruptive during the deposition after being warned VI R Crim P 15(c)(l)(A) (B) Finally if the deposition is requested by the government and the defendant is unable to bear his portion of the costs the court “must order the government to pay (1) any reasonable travel and subsistence expenses of the defendant and the defendant's attorney to attend the deposition and (2) the costs of the deposition t1 anscript VI R Crim P 15(d)(1) (2) DISCUSSION The People move the Court to grant the deposition of a material witness and continue Jury selection/Jury trial until May 2020 Critically, the Court notes that, due to the COVID 19 Virus Administrative Order No 2002 0001 issued by the VI Supreme Court on Maich 13 2020 suspended all new criminal jury trials indefinitely 5 As such any decision by this Court in this matter will also adhere to 5 In compliance with that Administi ative Oi dei the Court cancelled Aubiey Frett 5 Mai ch 23 2020 juiy selection by Oldel entei ed Maich 17 2020 People of the Virgin Islands V Aubrey Frett Case No ST 2018 CR 00208 Mem01andum Opinion Cite as 2020 VI Super 49U the parameters of that Administrative Order or any other administrative order that may issue from the VI Supreme Court A The People’s Motion to Continue to Depose a Material Witness The People request a continuance to depose a material witness who cannot travel to the Virgin Islands due to “his/her physical condition’ The People allege that the material witness is a paraplegic The People state that it “gave the material witness time for his/her condition to improve for a final prognosis, however, the People received confirmation that his/her condition Wlll not improve As such the People argue that the witness is unavailable and request a continuance to arrange f01 the parties’ travel to depose the witness The People argue that under VI R Grim P 15(a) the witness’ physical condition is an exceptional circumstance that justifies his/her unavailability at trial Moreover, the People argue that the witness’s testimony is “germane to the case” and that fairness warrants that the witness be deposed in order to preserve such testimony for trial Opposing the Motion Frett aigues that the People have failed to allege a sufficient basis to depose a material witness Firstly, Frett argues that the People have failed to establish the existence of an exceptional circumstance that warrants a finding that the witness is unavailable for trial Specifically, F1 ett argues that there is no competent ev1dence in the 1e001d that the witness’s condition prevents his/her travel to the Virgin Islands ” To this point, Frett argues “the People have not provided any medical reports, letters of opinion or other indicia setting forth that the Witness People of the Vii gin Islands v Aubrey Fiett Case No ST 2018 CR 00208 MemOi andum Opinion Cite as 2020 VI Super 49U is medically unable to travel and attend trial to testify, or has been in the past been [sic] unable to be produced” Secondly, Frett argues that the People have not provided anything in the iecord to demonstrate that the witness is material, nor that the witness’s travel needs outweigh the defendant’s rights to confront the witness at trial Frett argues that the lack of evidence “falls short of the People’s burden and the Court agrees The Court is not diminishing the possible burden of the witness’s physical condition Nor does the Court find that the witness’s physical condition makes him capable and available to travel See VI R Evid 804(a)(4) see also Gov t of the VI 0 Tranberg 28 VI 52 56 n 1 (V I Super Ct 1993) (Citing Fed R EV 804(a)(4)) However in the absence of supporting evidence, the Court cannot confirm that the Witness even has the condition of which the People speak nor can the Court reasonably consider whether such condition prevents travel to the Virgin Islands Motions to continue must be supported by eVidence, Hatcher 68 VI at 373 and in the absence of an affidav1t or a letter from a health care professional, mere representations by an attorney do not constitute evidence Henry 1) Dennery 55 V I 986 994 (V I 2011) Therefore the Court cannot find that the witness is unavailable to testify at trial Secondly, even if the People had piovided evidence that the witness’s physical condition made him/her unavailable the People have failed to demonstrate the Witness is material Demonstrating the existence of an exceptional Circumstance People of the Vii gin Islands V Aubrey Fiett Case No ST 2018 CR 00208 Memorandum Opinion Cite as 2020 VI Super 49U includes establishing the witness’s unavailability and the materiality of their testimony See IsmaLlL, 828 F 2d at 159 Without such evidence the Court cannot find that an exceptional circumstance exists As such the Court finds that the People have failed to meet their burden and that therefore the Court need not consider whether the deposition requested would be in the interest of justice, nor whether reasonable written notice was given by the People to the Defendant 6 Accordingly the Court will deny the People’s request to continue for the purposes of deposing a witness B The People’s Motion to Continue Due to a 111 Family Member The People also requested a continuance based on the ill health of an elderly relative of the prosecutor That issue is now moot as the March 23 2020 trial date was canceled by Order entered March 17 2020 due to the COVID 19 Virus CONCLUSION The People have not met their burden of showing that the witness they Wish to depose is a materlal witness, nor have they presented any proof that he/she is unable to travel to the Virgin Islands for trial Therefore, the portion of the Motion to depose the witness will be denied The portion of the Motion seeking a continuance due to the prosecutor’s ill relative is now moot 6 Though the Court’s analysis did not reach the notice requiiement the Court likely would have found the People’s notice to the defendant insufficient because the People failed to notify the defendant of the witness’s name and location as required by VI R Ciim P 15(b)(1) People of the Virgin Islands v Aub1ey F1ett Case No ST 2018 CR 00208 Memmandum Opinion Cite as 2020 VI Super 49U An appropriate order will 1mmediate1y follow DATED April 6 2020 Kathleen Mackay Judge of the Superior Court of the Vlrgin Islands ATTEST TAMARA CHARLES Cler a g /’ WQ 1“ I ’ LORI BOY S TYS Ch1ef De . . . Clerk§:/ Z @fflgfl IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff ) Case No ST 2018 CR 00208 VS ) ) AUBREY FRETT ) Defendant ) ) ORDER This matter is before the Court on the People 5 Motion to Continue and Depose a Material Witness filed March 9, 2020 For the reasons set forth in the Memorandum Opinion entered on this day, 1t is hereby ORDERED that the p01tion of the People’s Motion to Continue to Depose a Material Witness is DENIED; ORDERED that the p01tion of the People’s Motlon to Continue due to illness of the prosecutor’s eldei 1y relative is DENIED as MOOT; and it is further ORDERED that a copy of thls Order and the Memorandum Opinion be served upon Defendant and copies diiected to Assistant Attorney General Eugene James Connor and Assistant Public Defender Paula NorkaitisW % DATED April 6 2020 Kathleen Mackay ATTEST Judge of the Superior Court T CHAR S of the Virgin Islands Cle of the Court Y (’ é" / a LORI BOYN S 0 Chief Deputy irk / 2 /fl’fléfl