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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, ) CASE NO. SX-2012-cr-065 ) Plaintiff, ) CHARGES: 14 V.LC. § 922(a)(1); 14 ) V.LC. § 11(a) Vv. JOSE MANUAL RIVERA, Defendant, Nee! Nee ee Nee ee ee” MEMORANDUM OPINION BEFORE THE COURT is Defendant Jose Rivera’s motion for judgment of acquittal, asking the Court to set aside the jury’s finding that he committed murder in the first degree “because the evidence adduced at trial was insufficient to sustain a conviction.” (Def.’s Motion for J. of Acquittal 1, filed Feb. 21, 2014.) The People filed an Opposition to Rivera’s motion, to which Rivera later filed a Reply. The People then responded further by filing a reply to Rivera’s Reply. In an April 11, 2014 Order, the Court denied Rivera’s motion and struck the People’s reply. In furtherance of that Order, the Court now issues this Memorandum Opinion. FACTUAL AND PROCEDURAL BACKGROUND In a February 13, 2012 Superseding Information, the People charged Jose Rivera, along with Maximiliano Velasquez, III, Juan Velasquez, Sharima Clercent, and Jose Ventura, with committing murder in the first degree, in violation of section 922(a)(1) of title 14 of the Virgin Islands Code, and murder during the commission of a kidnapping, or felony murder, in violation of section 922(a)(2) of title 14 of the Virgin Islands Code. The People also alleged that all five defendants aided and abetted each other in kidnapping and murdering Virgin Islands Police Corporal Wendel! Williams in 2001. ' The Court addressed the February 29, 2012 detention hearing in an August 1, 2012 Memorandum Opinion. People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION Jury selection commenced on January 21, 2014 and ended two days later, on January 23, 2014. The jury was later empaneled and sworn on January 28. 2014 and returned its verdict on February 5, 2014. The evidence before the jury was as follows. The People’s first called Jaslene Williams, sister to Wendell Williams, who testified that she saw her brother regularly in 2001 because they shared a post office box and Williams was the one who picked up the mail for both of them. Sometime in June 2001, Ms. Williams noticed that her brother had disappeared. She was unsure when exactly, however, because one of the officers at the Virgin Islands Police Department, not identified by name at trial, signing him in for his shifts. Eventually, she realized that he was missing because he stopped checking their mailbox, stopped going to work, and never took a previously-purchased cruise. Ms. Williams eventually contacted the police, and later the FBI, for help because she was worried about her brother. The last time she saw or heard from Williams was in June 2001. Williams’s friend, James Liburd, testified next and corroborated Ms. Williams’s testimony regarding her brother’s disappearance. Liburd told the jury he was a close friend of Williams and that the last time he saw Williams was in June 2001 at the Five Corners gas station in Christiansted. Williams had just finished his shift and was going home. Like Ms. Williams, Liburd testified that he had not heard from or seen Williams since that morning in June 2001. The People’s third witness, Theresa Coogle—girlfriend of Maximiliano Velasquez III and mother of two of his children—testified that one night in June 2001, she and Max Velasquez went out to dinner when he asked her to marry him. Coogle was seventeen years old at the time and eight months pregnant with a second child by Max Velasquez. Later that discovery motions and motions to dismiss in a November 7, 2013 Memorandum Opinion, as well as the two year delay in bringing the Defendants to trial in a January 16, 2014 Memorandum Opinion. As the parties are well aware of these pretrial proceedings, the Court will not reiterate that background as part of this Memorandum Opinion. People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION night after she returned home, Max Velasquez asked her to meet him out at the Grapetree Bay area on the southeastern area of St. Croix. When she got to the area, she met Max Velasquez and then followed him to an abandoned building, which was part of the former Grapetree Resort hotel. Although it was dark. Coogle said she was able to see because the abandoned building was illuminated inside by a hanging construction light powered by a portable generator. Max Velasquez, Jose Rivera, Jose Ventura, and Sharima Clercent were there. Also there was another man who was stripped to his underwear and on his knees up against a pole inside the abandoned building with his hands bound together behind the pole. Coogle testified that she later recognized the man from news reports as Wendell Williams. Coogle saw Ventura and Rivera shoot Williams in his hand and in the side of his head. Rivera later dismembered the body and with Ventura put the body into plastic bags and then carried the bags to a boat on the shore. Max Velasquez then ordered her and Clercent to clean up the blood. Coogle identified each of the Defendants and the People moved into evidence the photo arrays she was shown. Coogle testified that she was initially unable to identify Jose Ventura because he looked different in the photograph she was shown in 2011. The VIPD later obtained a photograph of Jose Ventura from around the time of Williams disappeared and from that photograph Coogle identified him, remarking how she could not forget “those ears.” Coogle also acknowledged that she had difficulty identifying Jose Ventura and Jose Rivera at a pretrial hearing held on Monday, January 27, 2014. At that hearing, counsel for the People asked Coogle to identify each of the Defendants. Coogle directed a Superior Court marshal, walking in the row behind the Defendants, to stop when he reached the correct defendant. The People had asked Coogle to point out Ventura. Coogle told the marshal to stop when he reached to Rivera. When asked again to identify Ventura, Coogle again pointed People vy. Rivera SX-2012-cr-065 MEMORANDUM OPINION to Rivera. Eventually, Coogle corrected herself and explained that she had confused Jose Rivera with Jose Ventura. She also explained her confusion at pretrial hearing to the jury, noting she had confused the both men named Jose. Coogle similarly acknowledged on both direct and cross examinations that she gave multiple statements to both federal and local law enforcement agencies, including the Federal Bureau of Investigation, the Drug Enforcement Agency, and the Virgin Islands Police Department, and that there were inconsistencies between her testimony in court and the statements law enforcement agents prepared. Coogle explained to the jury that the law enforcement agents may have confused the facts of Williams's murder with another homicide she witnessed and spoke with the agents about. Counsels for the Defendants also brought out on cross-examination that Coogle was living in Miami, Florida with Mariela Velasquez, Max Velasquez’s sister, where she worked at Wendy’s Restaurant. According to Coogle, she flew back and forth between Miami and St. Croix during this period of time and reiterated to the jury that she was on St. Croix at the time of Williams’s murder. Following Coogle, the People called various law enforcement agents, including VIPD Detective Frankie Ortiz, who testified about the photo arrays prepared by the VIPD and sent to federal agents to show Coogle. He also testified about photographs taken of the crime scene, including the distance from the shore to the abandoned building and whether a boat could reach the shore. FBI agents Clifford Goodman and Kimberly Quesinberry also testified about statements they took from Theresa Coogle and their investigation into Williams’s disappearance, including contact with Jaslene Williams who, according to Goodman, believed that the VIPD might have been involved in her brother’s disappearance. Jimmy Davis and Hector Davis also testified on behalf of the People. In his testimony, Jimmy Davis told the jury that law enforcement wanted him to lie about Rivera’s People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION involvement in Williams’s disappearance. He otherwise denied making any statements to law enforcement. Jimmy Davis’s brother, Hector, testified that he could not remember any discussions with law enforcement because of medication he was taking for mental illness and depression that affected his memory. The People recalled Agents Goodman and Quesinberry to impeach the testimonies of the Davis brothers and then rested. after which Rivera, through counsel, moved for a judgment of acquittal on both counts. Following arguments, the Court denied the motion as to Count I, first-degree murder, but granted the motion as to Count II, murder committed during the course of a kidnapping, or felony murder. (Feb. 3, 2014 Trial Tr. 88:10-12 & 108:23- 109:4.) In his defense, Rivera called six witnesses: four testified on Monday, February 2, 2014 and two on Tuesday, February 3, 2014. Rivera’s first witness, his sister, Gricel Rivera, testified that her brother was shot in December 2000. /d. at 116:16-20. The injury required surgery after which he spent the next few months recuperating at their mother’s house. /d. at 118:7-17. Rivera had to be readmitted to the hospital on June 6, 2001 because of pain in his stomach. /d. at 119:2-25. He went into surgery the next day because “he had something wrong with his intestines.” /d. at 120:2-3. According to Gricel, Jose Rivera had an incision running from his breastbone to his navel that was closed with staples. /d. at 121:6-12. It looked “like a C-section,” she told the jury. /d. at 121:15. After her brother was released from the hospital, he had to have help from his family members for the next few weeks to do even minor tasks like bathing, going to the bathroom, and getting up from the recliner. /d. at 125:5- 127:10. He was unable to drive a car for three to four weeks after the second surgery. /d. at 128:23-25. Rivera had the staples from his incision removed on June 15, 2001. /d. at 131:16- 23. People y. Rivera SX-2012-cr-065 MEMORANDUM OPINION Rivera called another sister, Magali Roldan, as his second witness. /d. at 132:9, 133:23. Roldan repeated much of Gricel Rivera’s testimony regarding their brother’s pain, discomfort, and overall lack of mobility following his second surgery in June 2001. /d. at 134:16-137:18. She also recalled that it was two to three weeks after her brother's surgery before he could walk unaided and more than a month before he could drive a car. /d. at 137:19-24, Rivera’s third witness, his sister, Tania Ruemmel, spoke to the jury about her brother’s shooting injury in December 2000: I was at my home doing laundry on that evening. And my brother drove up in his car, an Acura. .. . He drove up and I was hanging out clothes. He ask me to get him a Cheetos and a juice, which he usually do every night. I told him to get off the car and go get it himself... . [Then] ! saw that he was shot. So | put him into my car—he’ walked to my car and we drove to the Juan Luis Hospital. . .. He was shot in his stomach and he was shot in his arm. Id. at 145:1-18. Ruemmel then corroborated the testimony of Rivera’s two other sisters regarding his surgery and recovery after the shooting and his second surgery in June 2001. All three sisters testified that Rivera’s girlfriend would drive him around if he needed to get anywhere. /d. at 129:3-6, 141:2-6, 152:5-18. Rivera’s next witness, Mariela Velasquez, sister of Maximiliano Velasquez III and Jose Ventura, testified that she left St. Croix and moved to Miami, Florida in 1998. Id at 154:24, 155:21-156:18, & 157:22-158:7. Theresa Coogle came to stay with her three years later, in March 2001, when she flew to Miami to take her eight-month old daughter to see a doctor for an ear infection. fd at 160:16-161:3. She eventually moved in with Mariela Velasquez and got a job in April 2001 working at Wendy’s in North Miami. /d. at 161:17- 164:4. Mariela Velasquez testified that Coogle slept by her apartment every night and stayed there with her until she delivered her second child in July 2001. /d. at 167:3-20. According to Mariela Velasquez, Coogle did not leave Miami until October 2001. /d. at 168:19-21. People v. Rivera SX-2012-cr-065 MEMORANDLM OPINION Rivera called as his next witness Dr. Lloyd Henry who testified about surgeries he underwent in 2000 and 2001. (Feb. 4, 2014 Trial Tr. 8:9-17.) Dr. Henry informed the jury that Rivera arrived at the hospital on December 18, 2000 “with multiple gunshot wounds. One was in the abdomen and there were other wounds in the left upper arm, left forearm and the right index finger.” /d. at 10:2-5. He checked himself out of the hospital two days later. Id, at 13:19-22. Dr. Henry next saw Rivera on June 6th or June 7th of 2001 when he was operated on a second time. /d. at 15:15-18. Scar tissue was removed from the first operation that caused a blockage in Rivera’s intestines. /d. at 20:4-18. Rivera was discharged from the hospital on June 11, 2001. Jd. at 22:3-7. Dr. Lloyd testified that typically the recovery time for someone to walk upright without assistance after the type of surgery Rivera had is approximately ten days to two weeks after leaving the hospital. /d. at 23:4-10. His staples were removed on June 15, 2001. Zc at 29:1-3. Dr. Lloyd explained on cross-examination that he expected that Rivera's recovery time would be shorter because of his age and would also be shorter than the time to recover from the first surgery. Jd. at 27:1-6, 30:8-13. Sandra Rivera, sister of Theresa Coogle, was Rivera’s last witness. She testified that she was on St. Croix in June 2001, having moved back in Apri! 2000 from Miami, Florida. Id. at 34:6-23. Rivera testified that she saw her mother every day after she returned because she would drop her son off at her mother’s to watch him while she was working. Jd. at 37:3- 20. Rivera recalled last seeing her sister Theresa on St. Croix in April 2001. /d. at 38:18-20. She claimed to know “to a degree of certainty” that her sister was not on St. Croix in June 2001 because Theresa did not attend their mother’s birthday party and because she sent her mother pictures and letters from Miami. /d. at 39:4-40:5. But on cross examination, Rivera told the jury that she could not “positively, definitively” say that in June 2001 her sister never got on an airplane and flew back to St. Croix fora visit. /d. at 42:12-19. People y. Rivera $X-2012-cr-065 MEMORANDUM OPINION Following Sandra Rivera’s testimony, Jose Rivera, and Jose Ventura each rested. /d. at 43:5-13. The Defendants each moved for judgment of acquittal, which the Court took the motions under advisement after hearing arguments from the parties. /d. at 50:18-19. The parties then informed the Court that they were satisfied with the jury instructions. /d. at 54:2- 24. Following closing arguments by both sides, the Court instructed the jury and on the second day of deliberations, the jury returned their verdicts, finding Jose Ventura and Jose Rivera guilty of first degree murder of Wendell Williams. Both Rivera and Ventura renewed their motions for judgment of acquittal. The People, through substitute counsel,” then filed their Oppositions to the Defendants’ motions. which Rivera responded to by filing a Reply. The People then filed a second response to Rivera’s Reply, but without first seeking permission from the Court. Subsequently, the Court. in an Order entered on April 11, 2014, denied Rivera’s Motion and struck the People’s second filing from the record. Both Defendants were sentenced to life imprisonment without the possibility of parole on April 4, 2014. This Memorandum Opinion now follows to provide the analysis and discussion as a basis for the Court’s April 11, 2014 Order. DISCUSSION “When the Superior Court considers a motion for judgment of acquittal, it views the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.” Stevens v. People, 52 V.1. 294, 305 (2009) (internal quotation marks and citations omitted)). The court must uphold the jury’s verdict “‘if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Codrington v. People. * Assistant Attorney General Joseph Ponteen appeared in place of trial counsel for the People, Assistant Attorney General Kippy Roberson, Esq., who had filed a motion, which the Court construed as a notice. informing the Court that he would be out on sick leave for an undetermined amount of time. People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION 357 V.1. 176, 189 (2012) (quoting Smith v. People, 51 V.1. 396, 398 (2009)). “The reasonable doubt which will prevent conviction must be the jury’s doubt and not that of this Court.” Smith, 51 V.1. at 398 (internal quotation marks, citation, and brackets omitted). If there are _conflicts in the testimony, such conflicts present “credibility. issues for the jurors to resolve.” id. Courts cannot “substitute [their] own credibility determinations for those of the jury.” /d. (internal quotation marks, ellipsis, and citation omitted). Because only one charge was submitted to the jury, the People only had to prove that Jose Rivera committed murder in the first degree in violation of section 922(a)(1) of title [4 of the Virgin Islands Code. Section 922(a)(1) provides that all murder—defined as the unlawful killing of a human being with malice aforethought, see 14 V.LC. § 921— “perpetrated by means of poison, lying in wait, torture, detonation of a bomb or by any other kind of willful, deliberate and premeditated killing” is murder in the first degree. “[MJurder in the first degree that does not involve poison, lying in wait, torture, or detonation of a bomb ... requires that the People prove [that] the defendant (1) unlawfully killed another, (2) with malice aforethought, and (3) in a willful, deliberate, and premeditated manner.” Codrington, 57 V.L. at 184-85 (citing Brown v. People, 54 V.1. 496, 501 (2011)). Malice aforethought “extends to and embraces generally the state of mind with which one commits a wrongful act. It may be inferred from circumstances which show a wanton and depraved spirit, a mind bent on evil mischief without regard to its consequences.” Nicholas v. People, 56 V.1.718, 731-32 (2012) (quoting Gov't of the VI. v. Sampson, 94 F. Supp. 2d 639, 644 (D.V.I. App. Div. 2000)). {f a killing is done with a deadly weapon such as a firearm, “malice can be inferred from that fact alone.” Premeditation means that someone “conceive[d] the design or plan to kill. A deliberate killing is one which has been planned and reflected upon by the accused and is committed in a cool state of the blood, not in sudden passion engendered by just cause of People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION provocation.” Simmonds v. People, S. Ct. Crim. No. 2012-0074, 59 V.I. , 2013 WL 4404592, *3 (V.I. Aug. 13, 2013) (quoting Brown, 54 V.I. at 507). The person need not have “brooded over his plan to kill or entertained it for any considerable period of time.” dd. (quoting Brown, 54 V.1. at 507). Instead, “a brief moment of thought” is “sufficient to form a fixed, deliberate design to kill.” /a. (quoting Brown, 54 V.I. at 507). To prove beyond a reasonable doubt that Jose Rivera committed first-degree murder, the People had to show that Wendell Williams was a human being, that Jose Rivera killed him, and that he did so willfully, deliberately, and with premeditation and malice aforethought. However, as the People correctly point out in their Opposition, Rivera has not directly challenged any specific element of murder. (See People’s Opp’n to Def.’s Mot. for J. of Acquittal Pursuant to Fed. R. Crim. P. 29 at 7, filed Feb. 28, 2014 (“Defendant fails to point to any element of Murder First Degree (Principal) that the People failed to prove beyond a reasonable doubt.”).) Rivera does not argue in his Motion that the People failed to prove beyond a reasonable doubt that Wendell Williams was a human being, for example, or that he was unlawfully killed. Likewise, Rivera is not claiming that the People did not prove that he acted with malice or willfully, deliberately, and with premeditation. Although not raised, the Court finds that the People presented sufficient evidence of each element of first- degree murder for a rational jury to find Jose Rivera guilty beyond a reasonable doubt. Wendell Williams’s sister, Jaslene Williams, and his friend, James Liburd, both testified to their relationships with Williams and his employment with the Virgin Islands Police Department. Jaslene Williams also identified her brother from a photograph, which the People later moved into evidence. Williams and Liburd both testified that they had not heard from or seen Wendell Williams since the middle of June 2001, which corroborates Coogle’s testimony that she saw a man, who she later learned was Wendell Williams, shot and then People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION dismembered in the middle of June 2001. This evidence was sufficient for the jury to find that Wendell Williams was a human being, that he was killed, and that his killing was done unlawfully. The evidence was also sufficient for the jury to find that Williams’s killing was done willfully and deliberately and with malice and premeditation. Coogle testified that she saw Williams stripped to his underwear and bound to a post with his hands tied behind his back. Jose Rivera and Jose Ventura later shot the bound man in the hand and then in the head. Ventura then cut up the body and he and Ventura stuffed Williams’s body into garbage bags and carried the bags to a boat. From this testimony the jury could find that Williams was killed deliberately, or with premeditation, meaning that his killing was “planned and reflected upon” and “committed in a cool state of the blood, not in sudden passion engendered by just cause of provocation.” Simmonds, 2013 WL 4404592 at *3 (citation omitted). The jury could also infer malice from this evidence, including the use of a firearm to kill Williams. See Nicholas, 56 V.1. at 732. Rather than challenge specific elements. Rivera argues instead that the People failed overall to prove his guilt because the testimony of Theresa Coogle was “inherently incredible or improbable.” (Def.’s Mot. at 13.) Rivera bases this argument on three claims: that Coogle testified inconsistently, that she “asserted facts that she could not have observed about events that could not have occurred under the laws of nature,” and finally that her testimony was inherently incredible because it did not accord with “the physical laws of medicine.” /d. According to Rivera, Coogle gave “seven wildly and meaningfully inconsistent statements to the FBI and VIPD over the course of three years.” Jd. Additionally, “uncontested evidence” showed that Coogle was living in Miami and therefore could not “have witnessed the alleged crime” that she testified to. Jd. Lastly, “the tale she told could not have occurred under the People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION laws of nature” because “[i]t defies the laws of nature that Mr. Rivera would have been engaging in the sustained and arduous physical activity alleged by Theresa Coogle mere days after undergoing major abdominal surgery.” /d. at 14. In response, the People assert that Rivera’s “Motion is based almost entirely on witness credibility.” (People’s Opp’n at 7.) What Rivera is asking, the People argue, is for “this Court to assess the credibility of the People’s main witness, Ms. Coogle, and weigh it against the testimony of defense witnesses.” /d. The place for such a challenge to credibility is “is On cross-examination and subsequent argument to the jury, not in a Motion for Judgment of Acquittal,” the People correctly point out. The People argue that because Rivera “fails to point to any element . . . that the People failed to prove beyond a reasonable doubt,” his Motion should be denied, the People argue. /d. In reply, Rivera contends “that the People concede[d] that their sole evidence of [his] guilt is the uncorroborated testimony of Theresa Coogle,” and that her “version of the operative events has no support in the testimony of any other witness nor in the physical or scientific evidence.” (Def.’s Reply in Further Support of Mot. for J. of Acquittal Pursuant to Fed.R.Crim.P. 29(c)(2) at 1, filed Mar. 4, 2014.) Rivera then asks that the Court keep in mind “the consequences of a conviction” that are “extraordinarily severe—life imprisonment without the possibility of parole.” Jd. at 2. Rivera is correct that in certain instances courts can find that the testimony of a witness was incredible as a matter of law. But such testimony must not be “‘well within the 3 Ina series of recent opinions, the Supreme Court of the Virgin Islands recognized the potential that a witness's testimony may have been “incredible as a matter of law.” See, e.g, Mercado v. People, §. Ct. Crim. No. 2011- 0067, 59 V.1.__. 2013 WL 6266029, *2-4 (V.I. Dec. 3, 2013); Thomas v. People, S. Ct. Crim. No. 2011-0073, 39 V.I.___, 2013 WL 6236080, *4-5 (V.1. Dec. 2, 2013); Fontaine v. People, S. Ct. Crim. No. 2011-0071, 59 VL ___. 2013 WL 5273061, *4-5 (V.I. Sept. 13, 2013); George v. People, S. Ct. Crim. No. 2012-0114, 59 V.L. ___: 2013 WL 3742553, *6-7 (V.L. July 15, 2013); Ostalaza v. People, 38 V.1. 531, 544-46 (2013); Phillip v. People, 58 V1. 569, 584-85 (2013). The Court described the “incredible as a matter of law” doctrine as an “ultra narrow” aspect of an appellate court’s review of the sufficiency of the evidence in a criminal case. See Thomas, 2013 WL 6236080 at *4-5. Cf Fontaine, 2013 WL 5273061 at *4 (“Fontaine is correct that some courts have People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION province of the jury to sort out.’” Fontaine v. People, S. Ct. Crim. No. 2011-0071, 59 V.I. __, 2013 WL 5273061, *4 (V.I. Sept. 13, 2013) (quoting United States v. Hayes, 236 F.3d 891, 896 (7th Cir. 2001)). Rather, the defendant must show “that it would have been physically impossible for the witness to observe what he described, or it was impossible under the laws of nature for those events to have occurred at all.” /d. (quoting Hayes, 236 F.3d at 896). Rivera does not meet this standard. First, the inconsistencies Rivera points to concern differences in the statements Coogle gave to law enforcement officials over the course of the investigation into Williams’s disappearance. The People also acknowledge that “[i]t is no secret that Ms. Coogle’s testimony contained some inconsistencies.” (People’s Opp’n at 2.) But both Rivera and the People overlook two key points. Inconsistencies in a witness’s testimony will not necessarily render that testimony inherently incredible as a matter of law unless the inconsistencies concern some physical impossibility or other impossibility under the laws of nature. Additionally, the inconsistencies Rivera takes issue with were inconsistencies in statements written by FBI and VIPD officials, memorializing their discussions with Coogle. In fact, FBI agent Goodman testified—albeit in response to questions from Rivera’s counsel concerning statements taken from Hector Davis—that it is not FBI policy to show statements to a witness or to have witnesses adopt statements. Instead, the statements are the FBI agent’s own recognized an appellate court's responsibility to review credibility determinations in sufficiency challenges where the witness’s testimony was ‘incredible as a matter of law.’” (emphasis added) (citation omitted)): Phillip, 58 V1. at 584 (“An appellate court may disregard the jury’s reliance on a witness’s testimony when that testimony is inherently incredible or improbable.” (emphasis added) (internal quotation marks and alteration omitted)). Although the Supreme Court has not stated whether the Superior Court can also assess whether a witness’s testimony was incredible as a matter of law, this Court believes—because the Supreme Court applies “the same standard as the trial court” when reviewing the sufficiency of the evidence in the context of a motion for judgment of acquittal, Thomas, 2013 WL 6236080 at *4 (internal quotation marks and citations omitted}— that the “incredible as a matter of law” doctrine is merely a vehicle for challenging the sufficiency of a witness’s testimony at both the trial and appellate levels and therefore, unlike standards of review applicable only on appeal, is not limited solely to appellate courts. But cf Najawicz v. People, 38 V.1. 315, 333 n.11 (2013) (noting that “abuse of discretion, sufficient evidence, clear error, deference, reversible error, and similar concepts are standards applicable to appellate courts, not trial courts.” (emphasis added)). Thus, the Court will consider Rivera’s argument. People v. Rivera SX-20 12-cr-065 MEMORANDUM OPINION recollection of what the witness stated, something Rivera, through counsel, brought out at trial: Q. Okay. Now, let me ask you what [ asked you before. In your conversations with Mr. Davis, did you record what he had to say? A. No, we did not. Q. No video or audio recordings, right? A. That’s correct, sir. Q. And did you have him write a statement and sign it so that we could look at it here in court? A. No, we did not. Q. As a matter of fact, a statement was prepared, typewritten, sometime after the interview, correct? A report was prepared? A. An investigative report was prepared, yes, sir. Q. Okay. And that report was never reviewed by Mr. Davis or signed by Mr. Davis, was it? A. That’s not something we generally do. Q. So the answer would be it was not, right? A. It’s my statement of the interview and that of Special Agent Dennis Kinney. (Feb. 3, 2014 Trial Tr. 42:7-43:1.) Both Rivera and the People overlook this important point. Coogle did not write any of the statements given to the FBI. Instead, those statements were the recollections of the agents who interviewed her. Coogle also did not write any statements given to the VIPD. She did, however, sign those statements but she also explained that she did not read the statements line by line. Thus, the “inconsistencies” Rivera points to were not inconsistencies in Coogle’s trial testimony. Rather, the inconsistencies, which Rivera asserts warrant acquitting him of murder, are instead contradictions between what Coogle told the jury and what law enforcement officials wrote down years earlier. The Court instructed the jury prior statements—of any witness, including Coogle and the Davis brothers—and any testimony about such statements went only to impeach the credibility of those witnesses and not to establish truth. (See Feb. 5, 2014 Trial Tr. 20:8-21:10 (“The testimony of a witness may be discredited, or as we may say, impeached, by showing that he or she has previously made statements which are different than that or here in court. The People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION earlier inconsistent or contradictory statements are admissible only to discredit or impeach the credibility of a witness and not to establish the truth of these earlier statements made somewhere other than here during this trial.”). Because the jury obviously credited Coogle’s testimony, it is not for this Court to undo that determination. Rivera next argues that Coogle’s testimony was inherently incredible because she was not on St. Croix and therefore could not have seen Rivera shoot Williams. While Mariela Velasquez did testify that Theresa Coogle came to Miami in April 2001 and did not leave again until approximately six months later in October 2001, and Coogle’s sister, Sandra Rivera, also testified that she did not see Coogle on St. Croix in the middle of June 2001, their testimony does not show that it was physically impossible for Coogle to have returned to St. Croix, particularly as Coogle emphatically denied that she was in Miami and not on St. Croix in the middle of June 2001. As she explained, she was “back and forth” between Miami and St. Croix at that time. Rivera, and his co-Defendants, took umbrage with Coogle’s assertion at trial and he continues to reject her claim in his Motion. However unlikely it may have been that Coogle “then a 17-year old girl, was regularly flying ‘back and forth’ between Miami, St. Croix and St. Thomas, and just happened to be on St. Croix the night of the alleged crime,” that does not make her “bald claim” physically impossible or impossible under the laws of nature. (Def.’s Mot. at 14.) This is not an instance where evidence showed that air traffic was grounded either in the Virgin Islands, or Florida, or both, during the time when Williams was murdered because of a hurricane or tropical storm, for example. Such evidence might certainly have shown that it was physically impossible for anyone, including Coogle, to have been on an airplane flying to St. Croix in the middle of June 2001. Likewise, the jury did not have before it evidence such as Coogle’s payroll records from her job at Wendy’s in North Miami or social security People y. Rivera SX-2012-cr-065 MEMORANDUM OPINION earning statements that showed that she was working in Miami in the middle of June 2001. Such evidence might have shown that it was impossible under the laws of nature for her to be on St. Croix witnessing a homicide while also working shifts at Wendy’s in Miami because no one can be in two places at the same time. None of the evidence admitted at trial showed that it was physically impossible, either for Coogle specifically or for people generally, to have flown from Miami to St. Croix in the middle of June 2001. Instead, what the jury had before it was conflicting testimony: Coogle’s testimony that she was on St. Croix and witnessed Jose Rivera murder Wendell Williams in contrast to the testimony of Mariela Velasquez who said Coogle did not leave in Miami until October 2001. Inconsistencies go to the weight of the testimony, not its admissibility, and what weight to give to testimony is solely the province of the jury. See Alexander v. People, S. Ct. Crim. No. 2012-0060, 60 V.I. __» 2014 WL 323063, *5 (V.I. Jan. 29, 2014) (“The law irrefutably declares that the jury, and not the court, determines the credibility of witnesses in a jury trial. It is the jury’s special province to weigh conflicting testimony, determine credibility and draw factual inferences.” (internal quotation marks, citations, and alterations omitted)). Rivera’s final argument is that Coogle’s testimony was rendered inherently incredible by the “physical laws of medicine” or alternately “the laws of nature. (Def.’s Mot. at 13-14.) According to Rivera, the Court must set aside the jury’s verdict because “Coogle’s tale of events never mentioned anything about Mr. Rivera being in any pain or discomfort, or moving slowly or in a guarded fashion, during the events [she] claims to have witness.” /d. at 14. The testimony of his sisters and Dr. Lloyd showed that Rivera had surgery in the middle of June 2001 and limited mobility thereafter. As a result, “i]t defies the laws of nature.” Rivera argues, that he “would have been engaging in the sustained an arduous physical activity alleged by Theresa Coogle mere days after undergoing major abdominal surgery.” /d. People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION at 14. This argument must also fail. Rivera fails to explain what he means by the “physical laws of medicine” or the “laws of nature” supporting his argument. Presumably, he means that the testimony of his witnesses somehow established that under the laws of medicine and nature Rivera was rendered immobile from approximately June 6, 2001 when he was admitted to the hospital through his discharge from the hospital on June I1, 2001 and then past the approximate date when Williams was allegedly killed. Putting aside the problem with how courts would determine what the “physical laws of medicine” or the “laws” of nature are, and then how facts might be shown under such laws in court, Rivera nevertheless misreads the testimony he relies on to argue that such natural and medical laws showed Coogle’s testimony to be inherently incredible. Rivera underwent surgery on either on June 6, 2001 or June 7, 2001, walking on June 8, 2001, either one or two days later, and discharged three days after that on June 11, 2001. Four days later, his incision had healed well enough that his staples were removed. Thus, in a span of either nine or ten days, Rivera went from being cut open from navel to chest and operated on to having that incision healed well enough so that the staples could be removed. According to Rivera, this evidence somehow shows that Coogle’s testimony was incredible. But in fact Dr. Lloyd testified that Rivera was walking a day or two after his surgery. He also told the jury he would have expected that Rivera would have recovered relatively quickly due to his youth at the time and in fact recovered more quickly from the second surgery. The jury also heard testimony that in December 2000 Rivera drove with multiple bullets in his body, including in his arm and stomach, not to the hospital, but to his sister’s house where upon arrival he asked her for a drink and a snack. Using their common sense as the Court directed them to, the jury could infer from all of this testimony that Rivera was generally in good People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION physical shape and could have recovered quickly from his surgeries. Moreover, neither Rivera’s sisters nor Dr. Lloyd testified that Rivera was bedridden for every moment of every day after he was released from the hospital on June 11, 2001. Rather, all three of Rivera’s sisters testified that his girlfriend drove him around if he wanted to go anywhere and therefore that Rivera was mobile. Lastly, and most importantly, Rivera’s entire argument must fail because it is misapprehends the incredible as a matter of law doctrine. In addition to the concern with courts determining whether testimony is “physically impossible” or impossible under the “laws of nature,” another concern is that the majority of courts that have discussed this doctrine, including our Supreme Court, merely state what the doctrine requires and then conclude, based on the facts before them, that the challenged testimony was not incredible as a matter of law. See, e.g., George v. People, S. Ct. Crim. No. 2012-0114, 59 V.I._, 2013 WL 3742553, *6- 7 (V.I. July 15, 2013) (defining doctrine and then explaining that inconsistencies in witness testimony cannot show physical impossibility or impossibility under the laws of nature). Accord United States v. Truman, 688 F.3d 129, 139-40 (2d Cir. 2012) (“The District Court determined that Truman, Jr.’s testimony . . . was incredible as a matter of law based on a number of factors. . . . Although these factors surely impaired Truman, Jr.’s credibility, none of them rendered his testimony incredible as a matter of law.” (internal citation omitted)); United States v. McKenzie, 768 F.2d 602, 605-06 (Sth Cir. 1985) (“Nor can we declare the testimony of Davis and Buckner to be incredible as a matter of law unless it is so unbelievable on its face that it defies physical laws. The weaknesses in the testimony of Davis and Buckner do not rise to this standard.” (internal quotation marks, ellipsis, and citations omitted)). Courts do not give examples of when testimony is inherently incredible, physically impossible, or impossible under the laws of nature, even when it would be only dicta. But one requirement of People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION the incredible as a matter of law doctrine is that it must be inherently incredible. That is, the testimony must be incredible on its own, without comparing it to any other evidence or testimony. In discussing the doctrine, courts ask whether the testimony is “inherently” incredible because inherent means belonging to or being an essential part of. For.a witness's testimony to be incredible as a matter of law, such incredibility must be apparent on its face, a blind man testifying to what he witnessed, for example. Cf United States v. Lerma, 657 F.2d 786, 789 (5th Cir. 1981) (“Only when testimony is so unbelievable on its face that it defies physical laws should the court intervene and declare it incredible as a matter of law.” (emphasis added)); People v. Garafolo, 353 N.Y.S.2d 500, 502-03 (App. Div. 1974) (“testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case.” (citation omitted)). Here, Rivera points to inconsistencies between law enforcement statements and Coogle’s testimony, as well as the contradictions between her testimony and the testimony of other witnesses, namely his sisters and Dr. Lloyd, and argues from these “inconsistencies” that Coogle’s testimony is incredible as a matter of law. But one cannot show that a witness’s testimony was “inherently” incredible by pointing to another witness’s testimony. Furthermore, Coogle’s testimony was not physically impossible or impossible under the laws of nature and therefore, it was for the jury to determine which witnesses to believe. They considered the testimony and the evidence and concluded from that evidence that Maximiliano Velasquez III was not guilty but that Jose Ventura and Jose Rivera were guilty. One final point concerning the arguments of the parties is that the Court did not consider the second document filed by the People, which was captioned as a reply to Rivera’s People v. Rivera SX-2012-cr-065 MEMORANDUM OPINION Reply. Local Rule of Civil Procedure 7.1(a}—applicable in criminal proceedings through Local Rule of Criminal Procedure 1.2 and in the Superior Court through Superior Court Rule 7—provides that only a motion, a response in opposition and a reply are allowed unless leave of court is granted. Because Rivera was.the movant, the People were only allowed to file a response in opposition to his motion. Their reply to Rivera’s reply, which was essentially a surreply though not captioned as such, violated Rule 7.1(a) because it was filed without leave of court. Accordingly, the Court struck it from the record in the April 11, 2014 Order and did not consider it in reaching its decision on Rivera’s Motion. CONCLUSION For the reasons stated above, Rivera’s motion for judgment of acquittal will be denied and the People’s Surreply is ordered stricken from the record.