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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 2020 CR 00003 vs ) ) SHEKIL JAMAC BERTHIER ) ) Dchndant ) ) 2022 VI Super U11 MEMORANDUM OPINION fill THIS MATTER is bLfDI‘L the Court on Defendant’s Motlon to Suppress filed SLpthbLl" 24 2021 1 1T2 This momma to suppress came on for hearmg on October 20 2021 Thu Pwplc 0f the Virgin Islands ( the People ) were represented by Assistant Attorney General Nadja D Harrigan Case manager, Detective Tamika Beazer, also appeared, seated at tht. Pwple’s Lounscl table DLandant Shckll Berthler appeared and was represented by Adam G Chnstian Esq Defendant Berthier seeks to suppuss thL out of court and m court identlfications of Berthier fl?) DLandant Shula] BLI‘thiLl was arrested on January 3 2020 and ls charged with third deglee assault in violation of 14 V I C § Z97(a)(2) unauthorized possession of a firearm during the commlssion of a third degree assault in violation \ lhe motion is fully 17mm 1m PLUplL filed an opposlnon 0n 0mm 1; 2021 and the defendant filed Ierly 0n 0mm 19 20m People 01 the V11gm Islands v Shem Be: [[1191 Case No ST 1020 CR 0000? Cite a 2022 VI Suer U11 Memorandum Opmion Page 2 cf 18 of 14 V I C § 2203(2)) reckless endangerment in the first degree m violatlon of 14 V I C § 625(a) and unauthonzed possesswn of firearm ammunition in violatlon of 14 V] C §2256(a) 114 Berthier argues that the identlficatxon made by the victlm, Renaldo Penn was the product of unnecessanly suggestlve procedures by the Virgin Islands Police Department ( VIPD ’) 1n V1013t10n 0f hls Fourteenth Amendment duc proenss rlghts The People argue that the proudures used in constructlon 0f the photo array and its subsequent presentation to Mr Penn satlsficd the relevant legal standard For the reasons set forth herein the motion Will be denied BACKGROUND AND PROCEDURAL POSTURE 11') At the suppression hearing the People called three witnesses VIPD Detective ChLI‘LSL 1homas VIPD Crlmc Scene Techmcian ( CST ) Debra Mahoney and VIPD Detective Tamika Beazer The Defendant did not tall any witnesses ‘‘16 The parties agreed by stipulation to admit the following exhibits Peoples Exhibit M1 Renaldo Perms statement to VIPD dated October 16 2019 PLoples Exhibit M2, a drivcr‘s liccnsc search conducted on Berthier through the Bureau of Motor Vehicles( BMV ); People 3 Exhlblt M3 a supplement report for the photo array and a cnpy of the photo array Wlth Berthier 5 photo included PLoplL 5 Exhibit M4 3 copy of the photo army with Berthlers photo arched and mcluding Renaldo Penn 5 signature dated December 23 2019 at 9 20am Defendant’s Exhibit M1 Renaldo Penn 5 statement to VIPD dated October 16 2019 Defendant 5 Exhibit M2 the photo People aftbe Vugm Manda ; .51191‘1/ Berthzez Case No ST 2020 CR 00003 Cite as 2022 VI Super U11 Memorandum Opnmon array with Berthier’s picture elrcled and including Renaldo Penn 3 s1gnature dated December 23 2019 at 9 203m and Defendant s Exhlbit M3 a driver’s license search conducted on Berthiet 1W Dunng the hearing the Court also admltted Defendant 5 Exhibit M4, a table detailing the tlmLS of sunsets and sunnses in St Thomas, Virgm Islands in October 2019 from tlmeanddate com only to be used as gtneral information for tht approximate time of the sunrise and sunset during the month of October 2019 The Court also admitted Defendant s Exhibxt M5 U S Department ofJusticc Office of the Deputy Attorney General Memorandum Eyew1tncss Identlfication Procedures for Conducting Photo Arrays’ ( DOJ Memorandum ) from January 2017 The Court admitted Defendants M5 with reservations the exhibit w1ll only be used to mform the Court that the federal government had a standard for conductmg photo arrays in 2017 1T8 Berthler argues that VIPD lacks a process for constructing and presenting photo arrays and that the tonstructinn and later presentatlon of the photo array in this case were unnecessarily suggestlve Therefore Berthxer argues Mr Penn 5 out of court identification and all future identlficatlons by Mr Penn must be suppressed as a violatlon of BLI‘tthI‘ s Fourteenth Amendment due process fights The People counter that the photo array and its prustntation met the two prong test requinng (1) identification not he unnecessarily suggestive and (2) that the identification was Sally Q Yates U s DEPT OF Jusqm OHM UP THE DEPUTY ATTORNEY um MEMORANDUM 0N EYl-WITNESSlDEz\TIF101\T10l\ Pnocmnums l-()R CnNnutTINo PHOTO ARRAY§ (Jan 6 2017) People (21 the 1315111 Islands V Shela] 391212191 Case No ST 2020 CR 00003 Cite as 2022 VI Super U11 Memniandum Opinion Page 4 0f 18 reliable because the officer who constructed the army selected photos of persons With similar physical Characteristics to the defendant and Mr PLDH was familiar with the defendant pI‘IOI‘ to the incident The People therefore argue that the motion to suppress should be dCDILd FACTS HQ On October 16 2019 Detective Thomas, who has been a law enforcement OfflCeY‘ with VIPD for twenty two (22) years and was then assigned to the Juvenile Bureau 5 took a statement from Mr Perm regarding an incident that had Just occurred Mr Penn stated that sometime after 7 00PM on October 16 2019 he was attempting to park near his residuum, but another vehicle was blanking his way A young man was standing outsidt tht. vehicle and the driver was in the VChlclL Mr Penn asked them to move the vehicle but they did not Mr Penn got out ofhis vehicle and the young man standing out51de the vehicle left entered a residane brought out a rifle and thereafter fired one shot at Mr Penn who was standing in front of his truck The shot hit Mr Perms truck on the drivur’s Side windshield Mr Penn described the shooter as young (in his teens to early twenties) slim and ‘red skin With braids Mr Penn did not know the young man s name or where he lived but said he was familiar with thL young man who he had seen around the LBy the time of the suppression hearing DetectivL Thomas was assigned to the VIPD Major CrimLs mt People of the Vugm [bIEHdb v Shela! Bu Hum Case I\0 ST 2020 CR 00003 Cite as 2022 VI Supel U11 Memorandum Opmion Page a of 18 nelghborhood because the young man’s uncle lived nearby Mr Penn also stated that he believed the young man 5 name was “Shekil” 1’10 Detectlve Thomas testified that she arrived on the scene fifteen (15) minutes after the inudcnt occurred Her report reflects a tlmc and date of 7 50pm on October 16 2019 4 She testlfied that the incident occurred on an estate road, and she could not remember whether there were streetlights on the road However Detective Thomas testlfied that there was hght emanating from the sunoundmg residences She testified that Mr Penn 5 truck was approx1mately fifteen (15) to twenty (20) feet away from thL nearest resldence 1111 After Detective Thomas took Mr Penn 5 statement 5}“, took steps to Identlfy the young man She determined that Shekil Berthier attended Ivanna Eudora Kean ngh School and was employed as a driver fur Paradise Gas Company So, she bCIiLVLd 11L must hold a valid Vlrgin Islands drivers license §he Investigated his hcense at the BMV and confirmed he had a valid drivers license Detective Thomas then obtamed Berthier 5 photograph from the BMV and added 1t to the case file to be used m a photo array Detective Thomas asked the forensics umt to prepare a photo array Ultimately, the case was turned over to Detective Beazer who also asked the forensics unit to prepare a photo array CST Debra Mahoney prepared the photo array 4 It IS unclear 1f the time llStLd on the neport IS when Detectxve Thomas anived on the scene, when she began the report or completed 1t People aims hzgm Islands v 51mg] 591111191 ‘ Case No ST 2020 CR 00003 Cite is 2022 VI Super U11 Memorandum Opinion IagL 6 of 18 W12 CST Mahoney has been with VIPD for twenty two (22) years and has been assigned to the forensics unit for her entire tenure She testified that she had no information about who would view the photo array she constructed for this matter She rtceived Berthiers photo from Detective Beazer To build the array CST Mahoney searchcd the BMVs system for photos of individuals who had similar Characteristics to Berthitr, 1 a , young men with earrings light complexions and a braided hairstyle of cornrows or plats With the braids sticking up (although she could not find any photos of persons with their braids sticking up) She also ton51dered the shapes of persons noses in selecting photos for the array To find the photos through the BMV, CST Mahoney testified that she had to enter random names into the system In total it took her about an hour to build the photo array CST Mahoney created a Single photo array for this matter 1"13 DLtLCtiVe Tamika Beazer has been With VIFD for six (6) years At the time of the facts giving rise htreto, in 2019 she was assigned to the VIPD Criminal Investigation Bureau 0 Detective Beazer was the detective as51gned to handle the incident reported by Renaldo Penn She requested a photo array to present to the victim On December 23 2019 Detective Beazet along With her colleague Detective Jamaal Fleming presented Mr Penn with a physmal color copy of the photo array Detective Beazer testified that she had seen the photo array prior to presenting it to Mr Penn, but she had had no hand in the preparation of the array When she J At the time of the suppressiun he uing Detective Hewett was assigned to the High Intensity Drug Trafficking Areas (HID’I‘A) T \sk Forte People offhe Vugm Islands v Shela] Bet tine: Case No ST 2020 CR 00003 Cite as 1012 VI Super U11 Memorandum Opinion presented the array to Mr Perm Detective Beazer told him to choose the person who shot at you ” Within two seconds Mr Penn selected Berthier circled the photograph of Berthier and Signed and dated the copy of the photo a1 ray Detective Beazer testified that Mr Penn looked at the photo array and immediately selected Berthier Detectives Beazer and Fleming were with Mr Penn for no more than one or two minutes because hlS identification of Berthier was very quick The interaction with Mr Penn was not recorded by audio or Video and neither Detective Beazer nor Detective Fleming took notes to document the interaction 1714 Detective Thomas testified that VIPD has a standard operating procedure manual that addresses the ways Vittims may identify a suspect She said the manual spec1fically addresses photo arrays and that the manual was last updated in the 19805 Detective Beazer testified that she is not aware of any written procedure for creating or presenting photo arrays, and she is not aware of the 19805 manual that Detective Thomas mentioned Detective Beazer tCStlflCd the training process is hands on conducted only by learning from other detentives She said the procedure is as follows VIPD shows the witness a photo array the Witness selects a photo and then the witness signs dates, and notes the time of their selection on the copy of the photo array but that VIPD does not tell the WltnLSS who to identify nor does VIPD pressure the Witness to make a selection CST Mahoney testified that she is not aware of any written procedures for constructing or presenting a photo array and she did not follow any written procedures when she created the photo array in this case CST Mahoney testified that she never received any formal training for how to build photo People of the Vugm [claims V 51291111 361 212191 Case No ST 2020 CR 00003 Cite as 2022 VI Super U11 Memorandum Opmion arrays but that she learned how to construct an array from other officers, on the job Both CST Mahoney and Detectlve Beazer said they were not familiar With the terms ‘blinded’ or double blinded suspect identification procedure 5 LEGAL STANDARD 1115 The Fourteenth Amendment to the Umted States Constitution states 111 pertinent part that no state shall deprlve any person of hfe hherty or property, without due process of law U S CONST amend XIV § 1 The due process clause 15 made applicable to thL Virgm Islands pursuant to section 3 of thL Rev1sed Orgamc Act of 1954 Rlcbdldb v People 03 VI 379 r384 n 2 (VI 2010) (citing ’Ihe Revised Orgamc Act of 1954 § 3 48 U S C § 1561 zepunted 111 VI Code Ann Histurlcal Documents Organic Acts and U S Constitution at 86 (1990) (preceding VI Code Ann tit 1)) 11 16 The V I Supreme Court has adopted a two part test for reviewmg out of court identificatmns for due process violatwns under the Fourteenth Amendment orlginally articulated by the U S Supreme Court Soc R1011a1ds 53 VI at 384 87 (cxting first Stoval] V Denna 388 U S 293 (1967) then N011 V Bzggels 409 U S 188 (1972) and Manson V Blatbwaztc 432 U S 98 (1977)) As Rlchaz (1.9 V People states ‘ In this context double blind refers to a law enfoxccmmt ploCedllre such as a lineup or photo dxray where the admlniStlatOI does not know the lineup number or photoglaph m an array is the SuspLLt and nexthex does the witness Single blind refers to a 11w enforcement procedure when the admimstmtm knows Which individual or image is the SuhpLLt but the Witness does not People affine Vugm Islands U Maciauious 2021 VI Super 118U 11 1 n 1 (citing Margaret Bull Kovera & Andrew J Evelo The Case f0? Double Blind Lineup Admmistmtiun 23 P§Y( H PUB POL AND L 421 422 (2017)) People offlze VIIgm Is] mds V She1nI Bu thxez (ass N0 ST 2020 CR 00003 Cite as 2022 VI Super U11 Memmandum Opinion [fhrst [the court] detnrmines whether the identification procedure was unnecessarily suggestive and if so [it] must decide whether the identification itself was nevertheless reliable Id at 387 (Citing Guam V Govt 48 VI 530 536 (D VI App Div 2006)) ANALYSIS A The Identification Procedure Was Not Unduly Suggestive 1117 To determine whether an identification procedure was unduly suggestive the Court must first assess whether it was unnecessarily” or impermis51bly suggestive which requlres the Court to assess the degree of suggestiveness presented by the identification procedure actually usud in this case and whether the police had good reason not to use less suggestive procedures' Panel V People 56 VI 779 789 (VI 2012) (citing first U111tedSt7te~z V Stevens 935 F 2d 1380 1389 (3d Cir 1991) then R1cha1de 53 VI at 387) rlhc primary evil to be avoided is a very substantial hkethOd of irreparable misulentificatlon RIChaz db 53 V I at 385 (citing BIggczs 409 U S at 190 (1972)) (1) The Procedure to Create the Phatu Array, and the Photo Array Itself Were Not Undulz Suggestive 1118 Berthler first contends that the photo array presented to Mr Penn was impermissiny suggestive because the other indiv1dua1s included in thL array all had hair styles close to the head while his hands stuck out from his head and he theufure ‘sticks out like a sore thumb The People counter that the array was not People (71‘ the Vugm Islands V SheA1IBezlb1e1 Case No ST 1020 CR 00003 Cite as 2022 VI Super U11 Memolandum Opinion Page 10 0f18 1mpermisalbly suggestive because Mr Penn described the suspect as having his hair braided, and all of the indiwduals in the array have bralded hair The People further state that one of the indlviduals depicted (photo number five m the array) does not have his hair close to his head, as one of h1s bralds is hangmg down onto h1s forehead 1l19 1n Rube! dc the VI Supreme Court found that an 1dentificat10n was unduly suggestlve when the Wltness s only description of a suspect was that he was a black male with spiky dreadlocks and then presenting only one suspect with splky dreadlocks to the w1tness for 1dentification purposes R1011a1 d5 03 VI at 389 The Rmbm d9 court based 1ts reasoning on several decisions from federal elrcu1t courts, whleh held that an identification is unnecessarily suggestive when the defendant was the only person in the lineup or photo array w1th a salient feature from the witness 5 description See 9 g Rabeem v IseIIy 257 F 3d 122 134 (2d Cir 2001) Ummd States V CIazk 499 F201 889 890 (6th C11" 1974) and Umted States v Gazaa 41vazez 541 F 3d 8 14 (lst C11 2008) However, in the Instant matter Mr Penn dLSCI‘led the suspect in greater detail and VIPD presented Mr Penn with six photos of potentlal suspects, each matching the description given by Mr Penn young man w1th braided hair and light eomplexmn as well as CST Mahoneys addition of 1nd1viduals with earrings Even though Berthlers brznds stuck out from hlS head in the photograph that characteristm was not part of the descriptlon Mr Penn provxded to Detective Thomas during the investigation In fact Mr Perm merely stated that the suspect had braids Because the descriptlon Mr Penn gave to VIPD was more detailed than that given in the Blake: (1% case and the photos selected for the photo Peuple 01 the D11gm Islands V 5119111] [391 this!" Case No ST 2020 CR 0000? Cite is 2022 VI Sllpel U11 Memolandum Opinion Page 11 0f 18 array each match the description Mr Penn provided the Court finds the instant case distinguishable from 13101121115; ThlS Court finds that procedure used to create the photo array and the actual use of the photo array were not unduly suggestive (u) T118 Ptesentatum oftbe Photo Array; Was Not UnduIz Suggestzve 1120 Berthler further contends that VIPD s presentation of the photo array to Mr Penn was unduly suggestlve because Detectwe Beazer an officer directly involved in the investigation, asked Mr Penn to select the person who shot at you,” msmuating that the suspect was in thL array and thereby falling to present the array in olther a blinded or double blinded fashion The People respond that because Mr Penn had seen Berthier near his residence on numerous occasions and was already famihar with BLrthier prior to the altercation he could identify the defendant 1121 The use of a photo array may violate due process when pohce atthpt to emphasize the photograph of a given suspect or when circumstances surrounding the array unduly suggest who an identifying w1tness should select ’ [/111th States V A1L/11ba1d N0 2015 0041 2016 WL 1009516 at *4 (D VI Apr 14 2016) (quoting [/111th States V Lawzcme 349 F 3d 109 115 (3d Cir 2003)) To determine the suggestiveness of a photo array, a court must examine the totahty of the Clrcumstances to determme whether the army's suggestivcness denied the defendant due process Lam eme 349 F 3d at 115 (elting Blggez s 409 U S at 199) Specifically a court considers ‘several factors, 1nc1uding the size of the array its manna 0f presentatlon and 1ts contents Reese V F111c0mu 946 F 2d 247, 260 (3d C11 1991) However the First Circuit has held that when police do not use a double blind People Offlle V11gm [SIHIIdi‘ V Shela] 391mm: Case IV) ST 2020 CR 0000‘) Cite '15 2022 VI Super U11 Memorandum Opinion Pay 12 of 18 procedure, if a Witness has prior familiarity with the suspect no amount of police suggestion is likely to influence the Witness 5 ident1f1cati0n Untied States V V9102 109 F Supp 3d 30:) 312 (D Mass 2015) afI’d 948 F 3d 418 (let Cir 2020) 1i22 In the instant matter Berthiers argument that VIPDs presentation of the photo array to Mr Penn was unduly suggestive because VIPD told Mr Penn to select the person who shot at’ him is outweighed by Mr Penn s familiarity with Berthier prior to the incident on October 16 2019 Given Mr Penn 5 extiemely fast seleLtion of Berthler from the photo array the repeated statements that he was familiar With Barthier prior to the incident and overall confidence in his selection of Berthier as the suspect considering the totality of the circumstances the Court finds that VIPD s indication that the suspect was included within the array presented does not ultimately render the identification procedure unduly suggestive Therefore the Court finds the procedures used by VIPD were not unduly suggestive and the Court Will not suppress Mr Penn s out of court identification of Berthier (1‘11) VIPD 5 Lack of Written Standards Does Not Render Its Practices Undulz Suggestive Per Se 1&3 This Court acknowledges that VIPD lacks up to date written standards and procedures for the construction and presentation of photo arrays This lack of procedures does not adhere to the suggested best practices discussed within the DOJ Memorandum admitted with reservations as Defendants Exhibit M5 The Court notes that other defendants have made similar arguments in cases pending before the Superior Court of the Virgin Islands Soc PeupIe 0f the Vlzgm [chads V People oitlze V11gm Islands v ShekIIBenluez Case No ST 2020 CR 00003 Ute as 2022 VI Super U11 Memorandum Opmion Mactavmus 2021 VI Super 118U T11] 18 20 and People (71‘ the Vugm [blands V Dolpbm 2021 VI Super 116U, ‘ 16 However as otherjudicml officers of the Superior Court have held the DOJ Memorandum does not bind this Court the DOJ Memorandum explicitly states “nothing in this memorandum imphcs that an identification not done in accordance w1th these procedures is unreliable or inadmissflfle in court’ IWactanLm T1 19 (quoting Sally Q Yates U S DEPT OF JUS'J [CI OFFICE OF THE DEPUTY ATTORNEY GPN MEMORANDUM 0N EYl‘WITNESS IDENTIFICAIION PRO( EDURES FOR CONDUCTING PHmo ARRAYS (Jan 6 2017)) The District Court of the Virgin Islands has also heard the argument that VIPD 5 failure to adhere to DOJ sanctioned procedures rcndcrs the identification procedure impermissibly suggestive p91 59” Umted States V Mathzas No CR 2016 0035 2017 WL 2434458 at *3 (D VI June a 2017) The Distrlct Court responded that there was no testimony suggesting the detectives admimstering the photo array engaged in any suggestlve bLhavior " and that the w1tness 1dent1fied the defendant instantly and was very confident m his selection such that VIPD s faxlure to incorporate the practlces recommended Within the DOJ Memorandum did not render the 1dcntif1cation unduly suggestwe Id at 1] 21 (citmg Matbzas‘ 2017 WL 2434458 at *5) Accordingly given the circumstances of this caSL discussed at length above thls Court agrees With the holdings in People afthe V1ng Islands V Machmlm People 0ftbe [Ilgm [517ndv V Dalphm and People V M7t1213q that the lack of photo array procedures does not p91 S9 render the identification process unduly suggestive, and therefore does not require suppressmn of Mr Penn 5 identlficatlon People 0mm Vlzgm 1mm; ; 5119111 Be:mm Case No ST 2020 CR 00003 Cite as 2022 VI Suer U11 Memorandum Opnmon quL 14 of 18 B The Identificatmn Was Rehable 1124 The U S Supreme Court has noted that courts should not reach the reliabihty mqulry unless the identificatlon resulted from a $1tuat10n created by improper police conduct Uuzted Saw V Shawls 693 F 3d 363 382 (3d Cir 2012) (citing Peuy V New Hilllpbblle 565 U S 228 245 (2012)) Nevertheless the Court Will briefly analyze the rehability of the 1dentification 1125 When assessing rehability the VI Qupreme Court has adopted a totahty 0f the elrcumstances test orlginally artlculated by the U S Supreme Court See chlzaz d5 53 V I at 386 (citing Blggele 409 U S at 195) The purpose of the reliability test is to assess the likehhood 0f misidentlficatlon Id Reliability is the ‘linthpin 1n determining admissihihty ofidentifxcatmn testimony Id at 390 91 (quoting Manson 432 U S at 114) The U S Supreme Court articulated the following factors, used to assess the totality of the Circumstances [1] the opportunity of the witness to View the cnmmal at the time of the crime [2] thL WltnLSS degree of attention [3] the aLcuracy 0f the Witness pnor descnption of the cnminal, [4] the level of certamty demonstrated by the Witness at the confrontatwn and [5] the length 0ft1mc between the crime and the confrontation Id (quoting Blggew 409 U S at 199 200) 1126 Berthier conthds that because the ineldent occurred after sunset on October 16 2019 mting Defendant s Exhiblt M 4 Wthh lists sunset dates and times from October 2019 and over two months elapsed between the incident and Mr Perms identification of Berthier from the photo array, the identification should be deemed unrehable The People counter that (1) Mr Penn had the opportumty to view the People 01' the Vugm Islands V Shela] 1361mm: Case No ST 2020 CR 0000‘} Cite as 2022 VI Super U11 Memorandum Opinion Page 15 0f 18 defendant at the time of the incident as the parties were in close proximity to one another; (2) Mr Penn had prewously seen the defendant on multiple occasions; (3) Mr Penn accurately described the defendant at the time of his statement to Detective Thomas and all of the individuals in the array matched that description (4) Mr Perm demonstrated great certainty at the identification, because he had seen the defendant prevmusly and (5) the time elapsed between the incident and the identification was not extended and Mr Penn gave a detailed description of the defendant on the date of the incident and he was familiar with the defendant betause the defendant is his neighbor’s nephew 1B7 Considering the totality of the circumstances under the factors articulated, the Court largely agrees With the People that the identification was reliable First although the sun had set at the time of the incident Detective Thomas testified that there was sufficient light emanating from nearby res1dences that visibility should not have been an issue for Mr Penn Additionally there is no indication that Mr Penn suffers from any impediment to his vision Second Mr Penn was focused on parking his vehicle at his residence during the meldent and had already approached the Vehicle blocking his path therefore his attention was on the scenario at hand He exited his vehicle to address the Situation and ultimately was shot at at close range It therefore follows that Mr Penn was paying close attention to the events unfolding at the time of the incident Third Very soon after the incident Mr Penn described the defendant to Detective Thomas a description which fits Berthier Fourth Mr Penn showed a great level of confidence in identifying the defendant as his assailant People 0mm Lug"; £51;de v 9119M Be: me; Case No ST 2020 CR 00003 (ite as 2022 VI Supel U11 Memorandum OplnIUn Pm 16 uf18 as it took him only two seconds to select Berthier from the photo array Additionally, Mr Penn stated he had prevmusly seen Berthier around the neighborhood visiting his uncle who lived in the area threfore it follows that Mr Pam was familiar w1th Berthier and could readily identify him from the photo array presented Finally the two month pLI‘IOd between the ineldent and the identification does not weigh strongly in the defendants favor Two months may be a significant period of time in some circumstances but Mr Penn was prevmusly acquainted with the defendant so It is less likely he struggled to accurately select his assailant Given that Mr Penn had prekusly interacted with Berthier and had seen him on repeated occasions in his neighborhood, the reliability is only minimally affected by this lapse in time 1R8 Therefore considering the totality of the circumstances this Court finds Mr Penn s selection of Berthier from the photo array to be reliable C In Court Identifications Will Not Be Suppressed 1i29 Under the Fouiteenth Amendment pretrial and in court identifications are governed by the same tests 131011211 de 53 VI at 393 Therefore because Mr Penn 5 out of court pretrial identification W111 not be suppressed under the relevant twu prong test for suggestiveness and reliability the Court finds that future in court identifications also will not be suppressed D Section 3 of the Revised Organza Act Due Process Standard 1‘30 Although the Court finds Mr Penns out of court identification of Berthicr to be admissible under the Fourteenth Amendment Berthier further asks the Court to suppress the identification under section 3 0f the Revised Organic Act Berthier People afflze Vugm [slvnde V éhekll Bel Hum Case No ST 2020 CR 00003 Cite as 2022 VI Super U11 Memorandum Opinion Pagt 17 of18 argues that several state courts have held that due process clauses in their respective state constitutions place a higher burden on the government than the U S Constitution for out of court identifications to be issued at trial Berthier spcmfically reliLs upon a recent VI Supreme Court case which held in part that the equal protection and due process clauses of the Virgin Islands Bill of Rights found in section 3 of the Rev1sed Organic Act have meaning independent from that of the Fourteenth Amendment 8311mm V ngeI Am 0ft119 VI 70 VI 1048 1092 (VI 2019) Therefore Berthicr argues this Court should develop an alternative interpretation of the due process clause within the VI Bill of Rights to be more expansive and provide further protections for suspects due process rights within the out of court identification process The Peoples opposition largely disregards this argument merely stating in a footnote that Berthier s reliance on 331170121 v Rangez 4111euca11 01' the {/1ng11 Iblazzds is misplaced as that case addressed the constitutionality of the interpreting the state Lonstitutmn 5 bill 0fr1ghts’ (sic) {[31 Berthier does not cite to any precedent that ‘hinds this Court to find that the Due Process clause of the Revised Organic Act of 1954 requires greater protection for defendants than those already laid out in lenidc Dolphm at 1’ 17 Therefore this Court declines to extend identlfication Jurisprudence beyond what was established in chhauiq absent guidance from the V I Supreme Court See 1d People 01“th Vztgm Islands v Shela] 891 fine) Case No ST 2020 CR 00003 Cite as 2022 VI Supe) U11 Memorandum Opmion I’agL 1s 0f18 CONCLUSION T32 The Court finds that VIPD s procedures for 1dent1fication in thls matter were not unduly suggestive and were ult1mately rehable 7 Therefore Berthler s motlon to suppress the out of court Identification of Berthicr and the accompanymg photo array will be demed Under the relevant case law it follows that the motion to suppress any future m court 1dtnt1ficatlons W111 also be demed An order conSIStent herethh will immedlately follow DATED January 9? 2 2022 g E f 1’ fé4iféf 3: Kathleen Mackay Judge of the Superior Court ATTEST of thz. Virgm Islands TAMARA CHARLES Clerk of the Court BY ( j @— 4-}! LATOYA CAMACHO Court Clerk Supervisor OI /fl7 /& 7 Whlle the Construction and prLsLntatiun of the photo anal) ultlmately satisfied the applicable legal test to deny suppression m this matter the ( cult does encourage VIPD to adopt a standard written procedure for its officers and tLLhnluflnS tn tnllow both fol trammg processes and to prevent future violations of due process See Dolphm It 1‘ 16 (stating that the development of Ind adherence to a written standard procedure for cytwitness phnto xdentxfxcations ahgned with the DOJ Memorandum may go a long way to assuaging deLnse counsels that there Was no undue suggestweness by the VIPD and may save VIPD and the People txme and resources from having tu appear in Court to Justify their procedures the lack of a written guide does not make a procedure unduly suggestive ) IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff ) CASE NO ST 2020 CR 00003 vs ) ) SHEKIL JAMAC BERTHIER ) ) Defendant ) ) ORDER This matter is before the Court on Defendant’s Motion to Suppress In accordance With the Memorandum Opinion entered on this day, it is hereby ORDERED that Defendant 5 Motion to Suppress 1s DENIED' and it is further ORDERED that a copy of this Order and the Memorandum Opinion shall be served upon the Defendant and copies distributed to counsel of record DATED January fl2022 % if :74“ ééf 2:4 Kathleen Mackay Judge 0f the Superior Court of the Virgin Islands ATTEST TAMARA CHARLES Clerk of the Court ‘2; 5(“I3' BY M 42% LATOYA CAMACHO Court Clerk Supervisor 0‘ /a7 /é¢2«