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IN THE SUPREME COURT OF THE VIRGIN ISLANDS Jose Rivera Appellant/Defendant, v. People of the Virgin Islands Appellee/Plaintiff. SCT-CRIM-2020-0040 Re: SX-2012-CR-00065 NOTICE OF ENTRY OF FINAL JUDGMENT/ORDER TO: Justices Of the Supreme Court Judges and Magistrate Judges of the Superior Court Martial Webster, Sr., Esq. Richard F. Della Fera, Esq. Michael R. Francisco, Esq. Supreme Court Law Clerks Supreme Court Secretaries Order Book Please take notice that on January 23, 2023 a(n) ORDER dated January 23, 2023, was entered by the Clerk in the above-entitled matter. Dated: January 23, 2023 VERONICA J. HANDY, ESQ. Clerk of the Court By: Deputy Clerk II IN THE SUPREME COURT OF THE VIRGIN ISLANDS JOSE RIVERA ) S Ct Crim No 2020 0040 Appellant/Defendant ) Re Super Ct Crim No 65/2012 (STX) ) ) V ) ) PEOPLE OF THE VIRGIN ISLANDS ) Appellee/Plaintiff ) ) 0n Appeal from the Superior Court of the Virgin Islands Division of St Croix Superior Court Judge Hon Darryl D Donahue Considered May 1 l 2021 Filed January 23 2023 Cite as 2023 VI 1 BEFORE RHYS S HODGE ChiefJustice IVE ARLINGTON SWAN Associate Justice and VERNE A HODGE, Designated Justice ' APPEARANCES Martial Webster, Sr , Esq St Croix, U S V I and Richard F Della Feta, Esq Ft Lauderdale FL Attorneysfor Appellant, Michael R Francisco, Esq Assistant Attorney General St Thomas U S VI Attorneyfor Appellee SWAN, Associate Justice AND NOW, consistent with the Opinion of even date, it is hereby ORDERED that the Superior Court 3 June 3 2020 order is AFFIRMED It is further ORDERED that copies be directed to the appropriate parties SO ORDERED this 23 d day ofJanuary 2023 BY THE COURT : /I IVE ARLINGTO§SWAN Associate Justice ATTES’I‘ VERONICA J HANDY ESQ Clerk of t Court 4 By 7 GM eputy Clerk H Date b O? 3 O? 3 Copies (with accompanying Opinion of the Court) to Justices of the Supreme Court Judges and Magistrate Judges ofthe Superior Court Martial Webster, Sr , Esq Richard F Della Fera, Esq Michael R Francisco, Esq Supreme Court Law Clerks Supreme Court Secretaries Order Book IN THE SUPREME COURT OF THE VIRGIN ISLANDS JOSE RIVERA ) S Ct Crim No 2020 0040 Appellant/Defendant, ) Re Super Ct Crim No 66'20l2 (STX) ) ) V ) ) PEOPLE OF THE VIRGIN ISLANDS ) Appellce/Plaintiff ) ) On Appeal from the Superior Court of the Virgin Islands Division of St Croix Superior Court Judge Hon Darryl D Donahue Considered May I I 2021 Filed January 23 2023 Cite as 2023 VI l BEFORE RHYS S HODGE ChiefJustice, IVE ARLINGTON SWAN Associate Justice and VERNE A HODGE Designated Justice ‘ APPEARANCES Martial Webster, Sr , Esq St Croix, U S V I and Richard F Della Fern, Esq Ft Lauderdalc FL Attomeysfor Appellant, Michael R Francisco, Esq Assistant Attorney General St Thomas, U S V I Attorneyfor Appellee OPINION OF THE COURT SWAN, Associate Justice 1]] Appellant, Jose Rivera, seeks reversal of the denial of his motion for a new trial by the Superior Court of the Virgin Islands (“Superior Court”) In June of 2001, police officer Wendell Williams was the victim of a gruesome and brutal murder that occurred in an abandoned and derelict building on the eastem end ofthe island of St Croix, after Williams had been kidnapped Rivera and his co defendants were charged with first degree murder and other crimes associated with William’s death According to an eye witness, Williams’s lifeless body was immediately dismembered and his body parts taken to a nearby boat and disposed of in the sea waters between Buck Island and St Croix Rivera was convicted of first degree murder and this Court affinned that judgment Rivera v People 64 V l 540 545 (V I 20l6) Thereafter on remand directed by this Court for consideration of motions for new trial, Rivera sought a new trial pursuant to former Superior Court Rule 135 (repealed February IS 20l9) We note that the Virgin Islands Rules of Criminal Procedure were promulgated effective December 1, 2017, and that Rule 33 thereof governs motions for new trial Additionally, Rule l(c)(2) of the Virgin Islands Rules of Criminal Procedure makes those rules applicable to any previously filed proceeding unless exempted by an order ofthis Court or a finding by the Superior Court that applying the Rules of Criminal Procedure in a particular previously pending action would be infeasible or would work an injustice Since former Superior Court Rule 135 authorized the Superior Court to “grant a new trial to a defendant if required in the interest of justice, and current Criminal Procedure Rule 33 incorporates that standard verbatim, the repeal of former Superior Court Rule [35 in 2019 has no effect upon the current appeal Hence, in section 11(3) of the present opinion the interest ofjustice” standard under current Rule 33 is discussed In its June 3, 2020 memorandum opinion, the Superior Court ruled, inter aha, that the asserted newly discovered evidence adverted to (but not actually presented at the evidentiary hearing to determine Rivera s motion) was, in fact, not newly discovered because the evidence was known to (or should have been known to) Rivera either before or during the trial People v Rivera, 73 VI 233 (V I Super Ct 2020) (see 1] 3 of the Superior Court opinion, listing items ‘attached” to the motion, though not offered into evidence at the hearing on the motion) The Superior Court had scheduled an evidentiary hearing “out ofan abundance ofcaution ’ but “Rivera did not take advantage of the opportunity to present any evidence at that hearing, despite clearly having the burden of proof 1d at 239 For the reasons discussed below, we affirm the Superior Court's denial of the motion for new trial I BACKGROUND 1|2 Rivera and four others had been charged with first degree murder and were tried in January of 2018 Three defendants were either granted a judgment of acquittal or found not guilty, while Rivera and another defendant were convicted 2 A Pre Trial Motions Hearing and Other Pre—Trlal Matters 113 On May [0, 2013, Rivera served a notice of alibi defense identifying multiple witnesses that were aware he had surgery on June 6, 200l, to correct a bowel obstruction, and had seen his I For a more detailed history of this matter, see generally Rivera v People, 64 V I 540, 545 SI (V I 2016), Ventura v People 64 VI 589 596-600 (V I 2016) People v Velasquez 59 V I 106 (V I Super Ct 2012) People v Velasque 59 VI 197 (V I Super Ct 2013) People v Velasquez 60 V I 22 (V I Super Ct 2014) People v I’elasque 62 VI 3 (VI Super Ct 2014) Peoplet Riven: 68VI 393 (VI Super Ct 2018)(addtcssing ancillary motions related to Rivera s new trial motion ), People v Riveia 68 V I 552 (V 1 Super Ct 20l8) (denying request by the V l Bureau ofCorrections to have defendants appear via video conference at evidentiary hearing at motion for physical condition during the weeks following that surgery (J A at 2076 79 ) No other discovery disclosures were included in the record 14 On January 27, 2014, a motions hearing was held (3 A at 1780) The defense sought to exclude the testimony of Thetesa Coogle on the basis that she was not present at the scene of the murder, thus making her incompetent as a witness due to a lack of personal knowledge of the events (I A at 1829 30) Coogle testified that, in mid June 2001, she was living on St Croix with her mother and had been in an intimate relationship with Maximiliano Velasquez, III (“Maximiliano”) since she was fourteen years old (.1 A at 18355 ) $5 One night, in June 2001, Coogle received a telephone call from Maximiliano instructing her to drive to pick him up at a location on the eastern end ofSt Croix (J A at 1835 ) Ultimately, Coogle drove to the location of the old Grapetree Hotel located on the southeastern shore of St Croix near Grapetree Bay Even though Coogle had been in the general area in the past, she had not been to this specific location (J A at 1836) Upon her arrival, Maximiliano was standing outside by the road near what Coogle would later realize was an abandoned building Coogle could not immediately see any structures, but when she followed Maximiliano down a foot path, they arrived at an abandoned building 3 (J A at 1836 ) When she entered the building with Maximiliano, she saw Jose Ventura, Jose Rivera, Jr and Juan Velasquez (J A at 1839 ) Coogle had known each individual for several years because they all lived in the same neighborhood The three defendants were with another person in the building who was on his knees and slumped over with his hands bound behind his back around a pole in the middle of the room (J A at 1842 ) 1|6 Through cross examination, the defense elicited the reasons for their argument that Coogle did not personally observe what had happened Coogle explained that she drove a maroon CRX model vehicle to the location to meet Maximiliano (J A at 1876 ) The person bound on the floor was wearing only boxer shorts (J A at 1877) Coogle had no recollection of her statement to investigators that Maximiliano had picked her up in a black Toyota pickup truck (J A at 1889 ) She remembered stating that there was a generator in the building but did not remember telling investigators it was being used to electrocute the victim (J A at189l ) One of the documented statements noted that Sandy Rivera and “Lizbeth” were present at the murder scene, but Coogle had no memory of ever saying Sandy was present Coogle further acknowledged that she remembered saying that Lizbeth was present but, at the hearing, she maintained that she did not remember if Lizbeth was present (J A at 1893 ) 11,7 Pivotal to the prosecution were questions as to Coogle’s residence in June 2001 Coogle again testified that she had been living on St Croix at her mother s residence in Estate William’s Delight (J A at 1897 ) She was six or seven months pregnant and lived with her mother, step father, and two sisters (J A at 1922 ) She gave birth to a son on July 29, 2001, in Miami, Florida (J A at 1922) Prior to his birth, she VHS living in Miami in Maliela Velasque7 s apartment together with Mariela’s brother Francisco Velasquez, and she had begun staying with Mariela in March of 2001 (J A at 1924) Coogle 5 mother had purchased the ticket for her to travel to Miami in March 2001 and Coogle traveled between St Croix and Miami during that time (J A at 1924 ) Coogle acknowledged she had worked at a Wendy’s restaurant in Miami for a month or two and that she began working as an exotic dancer after her son was born (J A at 1925 ) She maintained that she did not have many checkups with a doctor when she was pregnant with her Page 6 of $6 in June, 2001, she could not remember when she flew to Miami, which airline she utilized and fitrther asserted that she, her mother, and her grandmother, Mary Schneider, had all paid for her airline tickets (J A at 1928) She was also questioned about her relationship with a man named Kenny She had a vague memory ofhim and admitted they were friends (J A at 1926 ) ‘18 The court denied the motion to declare Coogle incompetent to testify due to lack of personal knowledge and instead, found this matter to be a credibility issue Coogle had testified that she was present at the murder scene on St Croix in June 2001 While there was no evidence (other than her testimony) placing her on St Croix in June 2001, there was also no evidence definitively placing her in Miami during that same time Neither the docket sheet nor the hearing transcript contains any indication that a motion, either oral or written, was submitted to the court requesting that the trial be continued The absence of a request for a continuance of the trial is noteworthy, as the jury was not sworn until January 28, 2014, or approximately a week after jury selection (J A at2118 19) B Trial 1]9 Jury selection commenced on January 2|, 2014, and a jury of twelve was empaneled, togethel with six a1! mate jlllOlS (J A at 594 ) Aftel the jury was selected, the court p10\ ided the jury with preliminary instructions As pertinent to the issues discussed below, at the commencement of trial, the prosecution gave its opening statement, during which expected evidence was addressed while a noticeable effort was made to emphasize anticipated inconsistencies in witnesses’ testimony (J A at 609 17) Counsel for co defendant Sharima Clercent then presented his opening statement, followed respectively by counsel for Rivera, Juan Velasquez, Jose Ventura, and Maximiliano (J A at 618, 620, 628, 632, 636) Rivera s counsel placed particular emphasis on the internal inconsistencies in Coogle‘s prior statements as well as other contradictory evidence (or lack of evidence) expected to be presented (I A at 623 41 ) l The Prosecution’s Evidence 1110 Jaslene Williams was the prosecution's first witness (I A at 641 ) She was living in Estate Anna’s Hope during the mid year portion of 2001, she had two sisters and one brother, Wendell Williams, the victim (J A at 642 ) She and her brother were close, and she usually saw him two to three times per week (.1 A at 645 ) However, after June 10, 2001, she never saw her brother again (.1 A at 645 ) She and Williams had taken their mother to the airport on the Sunday preceding Father 8 Day, 2001, and she had not heard from him during the following week (1 A at 646) She was not too worried, because Williams was a police officer, and that job had scheduling changes that made it difficult for them to see each other (I A at 646 ) At that time, Williams was working the shiflscheduled from 11 00 p m to 7 00 a m (J A at 647) She had called him and Iefimessages without response—when, on June 18, she had a meeting at a business near where Williams lived, therefore, she stopped by his home and left a note on the docr, as he was not home and his car was not parked in front of his residence (J A at 647 ) She stated that Williams had a “brand new black Suzuki Vitara ” (J A at 647) 111 The prosecution then presented its main witness, Theresa Coogle (J A at 674) In mid June 2001, Coogle was unemployed and living with her mother, step father, and sisters, and she was dating Maximiliano Velasquez (J A at 675 ) She had two children with Maximiliano, the second of whom had been born on July 29, 2001 (J A at 676) At that time, Maximiliano commonly associated with a number of friends, and she specifically named Jose Rivera, Jr , Juan Velasquez, Jose Ventura, and Sharima Clement, who was Rivera’s girlfriend (J A at 677) She then identified Maximiliano and each of the named associates in the courtroom (J A at 677 79 ) The identification of Rivera went as follows Q And would you please identify Jose Rivera by his clothing and location in the courtroom, please? A Jose Rivera is wearing a silver shirt, he has dreads on top of his head, sitting behind the the defense attorneys Q Ask the record to indicate that the defendant excuse me, the witness has identified the defendant Jose Rivera Defense Counsel for Rivera No objection The Court The record will so reflect (J A at 678 ) Coogle s identification ofJose Ventura was placed on the record in the same manner (J A at 679) ‘ l2 In mid June, 2001 Coogle became engaged to Maximiliano, and they went out to dinner to celebrate (J A at 680 ) Around sundown, Maximiliano took Coogle home Later that night, Maximiliano called Coogle and asked her to pick him up at ‘ the old Grapetree [Hotel] ” (J A at 680 8| ) Coogle then drove Maximiliano’s maroon “CRX ’ vehicle to the location he had specified where she found him standing alongside the road She parked the vehicle and followed Maximiliano to a white building off the road and proceed to follow him inside (J A at 682) Inside the building, Coogle saw Rivera and Ventura as well as a person name Michael and a man she did not know, whose hands were bound behind his back while he was kneeling ‘ (J A at 683 ) “3 Coogle recalled that, as she walked into the white building near the old Grapetree Hotel, she saw the victim bound, being electrocuted with wires connected to a generator and wrapped around his body There was a construction light hanging overhead, and the building appeared to have been abandoned (J A at 685 ) Coogle then saw Ventura shoot the victim in the hand and saw Rivera shoot him in the mouth (J A at 685 ) She felt sick and went outside to “throw up" and was followed by Maximiliano, who told her to “get it together ” (J A at 687 ) She eventually returned; at which time she saw Rivera using a saw to dismember the victim’s body She noted that she witnessed Rivera sever the victim s left ankle (J A at 687 ) Coogle could not temember the kind ofsaw beyond remembering that it was not a hand saw and that it was green and made by the John Deere Company (J A at 687) 1H4 She became sick and again went outside to regurgitate (J A at 688 ) She then saw Ventura and Rivera walking outside carrying garbage bags “towards the shore (J A at 688) Coogle testified that she could see the shore from where she was observing when she went outside the second time (J A at 689) She never walked to the shore and did not see what was ultimately done with the garbage bags 1115 Upon returning to the building a second time, Coogle saw a “bunch ofblood everywhere, and Maximiliano told her to help Clement clean everything up (J A at 688 ) When she had finished cleaning up, she and Maximiliano left together, and he told her that, if she “was ever to say anything that [she] would end up just like’ the victim (J A at 689) ‘3 I 6 Approximately seven to eight months late: C ooglc spoke Vt ith law enforcement She could not remember whether she contacted the police first or they contacted her, and could not remember the name of anyone she spoke with, simply testifying that she “spoke to numerous people ” (J A at 691 ) She first spoke with “local law enforcement ’ and then spoke with “task force officers" who were federal agents (J A at 691 ) She estimated that, over the years, she had given six or seven different interviews to investigating officers (J A at 691 ) She explained that she had not spoken to law enforcement sooner because she was afraid, but ultimately, she spoke to them 1|] 7 An unspecified time later, in either 2007 or 2008, Coogle contacted law enforcement again after she had seen Maximiliano at a child custody hearing in Tampa, Florida (J A at 692 ) Seeing him unsettled her, and she feared for her safety (.1 A at 693 ) As a result of those court proceedings, Coogle’s parental rights to her daughter with Maximiliano were terminated 1|18 At the request of law enforcement, Coogle returned to St Croix in 2012 At that time, she was taken by law enforcement officers to Grapetree Bay where they drove around for a couple hours until Coogle noticed familiar surroundings, such as the roof of a building (J A at 694) They then walked around the area, and she saw the building where she had witnessed the victim 5 death The building appeared to be in, generally, the same condition it had been earlier in 2001 (J A at 694 ) She was then shown Exhibit 17 which was a photo of the building (J A at 696) 1|l9 She described the building as follows an abandoned building that, on the exterior, had a blue tank to catch rain water and a front door Inside the building, there was a pole that went from the floor to the roof The lighting was provided by a light that is used in construction work (J A at 704 ) The victim had his hands bound behind his back and around the pole on the night Coogle witnessed his death She specifically identified Exhibit 17 which was entered in evidence as depicting the interior of the building, but she noted that there was more trash on the floor than there had been the night she was inside the building in 2001 (J A at 707 712) She identified what trash was not present when she witnessed the killing and was able to underscore that the garbage bags upon which the victim 5 body had lain were also not in the photo (J A at 713 ) 1120 Coogle was then presented with Exhibit 1, which was entered in evidence (J A at 717) This was a photo array from which Coogle identified Maximiliano as one of the perpetrators of the murder (J A at 717 21 ) This same line of questioning was followed for each photo array in 721 726, 732, 736) Exhibit 2 was the photo array in which Rivera was identified (J A at 721 23 ) However, Rivera’s counsel engaged in voir dire of the witness prior to it being admitted in evidence (J A at 722) During the voir dire, counsel asked, Isn t it a fact that yesterday in this very courtroom we asked you to identify Mr Rivera in person, and three times you pointed to someone that was not Mr Rivera? Isn’t that true? Coogle responded, “That is true ” (J A at 722 ) Coogle had known Maximiliano, Velasquez, and Ventura for about five or six years at the time ofthe murder (J A at 741 ) However, Coogle had known Clement and Rivera only a couple ofyearsS (J A at 74! ) $21 Coogle timber testified that Ventura owned a blue boat, the Regaltlo, at the time of the murder (J A at 743 ) She had identified this boat in her statements during the investigation of the murder in addition to identifying a different blue boat, the Ashes, that belonged to Tomas Melendez, Jr (J A at 743) Coogle further confirmed that the events relating to the murder occurred on St Croix (J A at 747) 1|22 Rivera’s counsel then began cross examination (J A at 748 ) Coogle continued that she had witnessed these events in June of2001 but did not report anything to the police until May 21, 2002 (J A at 748 ) She flirther confirmed that the investigators took notes and prepared a report of that interview Defense counsel then proceeded to identify various inconsistencies between the reports and Coogle's testimony (J A at 752 ) For example, Coogle had mentioned Miguel Torres to the investigators as being present at the killing in addition to persons identified as Sandy Rivera, Michael Lopez, and a Michael or Daniel “from St Martin ” (J A at 753 ) The report further noted 5 Coogle again confused the two defendants named Jose, at first indicating she had known Jose Rivera for five or six that some of these individuals had come to St Croix in a go fast boat named Ashes (J A at 753 ) 1123 The cross examination continued the next day (J A at 764) Rivera s counsel continued to highlight the contradictions between the reports and Coogle’s testimony In an earlier statement, Coogle indicated that Maximiliano had given her a ride to Grapetree in a black Toyota truck Coogle could not remember making this statement (1 A at 767) Similarly, her statement indicated that 3 Sandy Rivera was present at the murder, but Coogle denied ever telling any officer that Rivera was present She did, however, acknowledge that she had informed the investigators that she had a sister named Sandy Rivera (J A at 770) Likewise, the report continued that the victim was bound, gagged, and wearing nothing other than his underwear, but Coogle did not remember the victim being gagged (J A at 771 ) Additionally, while the report noted that the victim was beaten, Coogle did not remember seeing him being beaten, and the report made no mention of the victim’s electrocution even though it noted there was a generator in use (J A at 773 ) 1124 This line ofquestioning was further pursued with Coogle continuing that the investigator’s teport noted that the saw used to dismember the victim s body was electric, but Coogle did not remember indicating to the investigator it was electric (J A at 774) The report further indicated that the boat Ashes was used to dump the victim’s body parts in the ocean, but she did not remember telling them the boat’s name (J A at 775 ) As to the interior ofthe building, the report contained no mention of the pole in the building to which the victim had been bound, but Coogle said she did tell the investigators about it She funher noted that the investigators never asked her to describe the building (J A at 776) ‘25 Coogle was then cross examined as to Defense Exhibit 3, which was a hand written statement signed by her on May 31, 2002 (J A at 779) Rivera’s counsel again reviewed the inconsistencies between Coogle’s testimony and this statement For example, this statement indicated that Maximiliano had taken Coogle to dinner, and he received a phone call while they were driving, after the call, Maximiliano said he needed to meet someone and he drove them to the Divi Hotel, which is different than what she had said occurred in her prior statement as well as in her testimony (J A at 780) Another discrepancy with this statement was that it documented Coogle as having said there were three Puerto Rican men present at the killing (J A at781 ) She asserted these discrepancies were a result of the fact that she ‘was traumatized ” (J A at 781 ) 126 In this statement, it was recorded that Coogle had stated the victim was a black male, kneeling, and wearing only boxer shorts, making no mention that his hands were bound behind a pole (J A at 782 ) Indeed, the statement informed that the victim’s body fell to the ground after he was shot (J A at 789 ) A further contradiction was the fact that the statement noted that a “French maie’ named Michael put wires on the victim that were “plugged to the outlet of the building” and threw water on the victim in order to electrocute him (J A at 783 ) Coogle could not remember telling this account to the police (J A at 783 ) This statement further mentioned that it was Ventura who shot the victim in the hand, and the French man named Michel who shot the victim in the mouth and, finally, Ventura who shot the victim in the side of the head, and the bullet exited the other side of the victim’s head (J A at 786 87 ) 127 Defense counsel continued, questioning Coogle about the fact that the statement indicated she had gone out to the car and slept afier she witnessed the shooting (J A at 790) Coogle asserted that the officers were confining the killing of Williams with ‘ another homicide [Coogle] Page 14 of56 that were blue, red, and white with the word "Tommy” printed on the waist band Upon questioning, Coogle could not remember whether the victim was wearing boxer shorts, or if he was wearing white briefs indeed, she claimed no memory ofjust how the victim was clothed (J A at 791 ) $28 The defense then cross examined Coogle regarding the content of her June 19, 2002 statement (J A at 799 ) For example, Coogle was questioned about the absence ofany mention of the victim having been tied to a pole in the building She explained that she had not been asked about that (J A at 802 ) Counsel then continued his questiouing, but with regard to an investigation record dated May 3| 2003 This was an investigator’s notes ofa phone conversation with Coogle indicating that she had stated she would c00perate and speak with the officer, but only ifthey successfully assisted her to regain custody ofher child (J A at 804 ) Coogle denied having made these statements and testified that she had no memory ofthis conversation She also asserted that she, at the time of trial, had not regained custody (J A at 806) ¢29 Rivera’s counsel continued, moving on to cross examine based on Coogle’s May 25, 2004 statement (J A at 808 ) In this interview, it was documented that Coogle stated that Maximiliano had arrived at h r home an ound l l p m the night of the murder and drove her to the crime scene (J A at 810) This statement also indicated that the victim was a black male dressed in only boxer shorts and kneeling There was no mention of the victim being bound to a pole (J A at 81] ) Likewise, while stating that the victim had been beaten and shot, there was no mention ofhis being electrocuted (J A at 812 ) In explaining the differences in her various statements, Coogle explicated that she had sought counseling to deal with having witnessed this murder and had made an effort to “put things behind” her (J A at 813 ) Counsel then continued, and Coogle continued dismembered and also could not remember the name ofthe boat used to dispose ofthe body (J A at 815 ) 1|30 Coogle’s June 30, 2004 statement presented another attack on the veracity ofhertestimony This statement noted that she had informed the investigators that “she was probably under the influence of a drug” when she witnessed the killing (J A at 821 ) Rivera’s counsel then questioned Coogle as to her drug use at the time of the murder, and she continued that, at different times, she had used marijuana, ecstasy, and cocaine However, she maintained that, at the time of the murder, she had not used any (J A at 821 ) She further expounded that at the time of the killing she was not consuming alcohol either However, she readily admitted that, in 2004 when she gave the statement, she “did a lot of drugs and also drank [nlumerous alcohol (J A at 822 ) Also, like the other statements, Coogle indicated that Maximiliano had driven her to a house “near the old hotel ” 113] However, when questioned about the house to which she was referring, she explained that she meant “the location where the officer was murdered ” (J A at 824) Additionally, she described the victim 3 condition as being handcuffed, which was the first time in any statement that handcuffs wete mentioned (J A at 824 ) This statement also noted that Coogle witnessed the body being dismembered, something she had previously asserted she did not remember (J A at 825 ) This statement also noted that the boat used to dispose of the body was green (J A at 826) A new variation in what Coogle had said occurred arose in this statement where it was recorded that the victim was tortured with “stun guns ” (J A at 827) When questioned about the inconsistencies, she explained that she was in therapy (J A at 826) She further explained that she could not recall the color of the specific boat used because she had seen it at night and further asserted that the investigators had asked her to describe all the boats owned by the defendants, which descriptions she provided (J A at 826) 1l32 Rivera’s counsel further cross examined Coogle as to her August 23, 20l 1 interview (J A at 830 ) In this statement, it was documented that Coogle had driven a maroon CRX vehicle to the murder site During this exchange, Coogle stated that she ‘ never took the black pickup truck ” (J A at 831 ) This statement also indicated that the name of the boat used to dispose of the body was Ashes [I (J A at 832 ) 1|33 Further attacking her credibility, Rivera’s counsel questioned about the details of her life in 2000 2001 Coogle had her first child in July of 2000 and her second child July 29 2001 in Miami, Florida, making her seven or eight months pregnant when the murder occurred (J A at 833 ) At that time, she was ‘staying with ’ Mariela Velasquez, whose brother Francisco Velasquez also lived in the apartment (J A at 834) She was “back and forth from Florida, St Thomas,6 and St Croix , although, she could not remember when she had moved in with Mariela (J A at 834 35, 837) However, she did reaffinn that she was on St Croix at the time of the murder and explained that she stayed with her mother (Elsa Obando), step father (David Obando), and two sisters (OdemarisL Obando and Aisha Obando) \\ hen she “as on St Cioix (J A at 837 ) When she was on St Thomas, she worked at a strip club (J A at 838 ) 1134 Coogle explained that she had gone to stay with Mariela in Miami because she was trying to escape an abusive relationship with Maximiliano While she was there, she worked at a Wendy’s restaurant and worked elsewhere as an exotic dancer (J A at 835 37 ) Rivera’s counsel asked Coogle about her “boyfriend” Kenny, and Cooglc clarified that he was a friend with whom she went out to dinner frequently (J A at 836 ) 1|35 Once Rivera’s counsel had finished, other defense counsel had the opportunity for cross examination Coogle maintained that she and Maximiliano had gone to dinner and enjoyed themselves, and afterward, he drove her home and continued with his other plans without her (J A at 840) Likewise, she reiterated that she had received a phone call from him during which he told her to meet him at Grapetree Counsel explored this testimony in some detail, ostensibly to expose it for its lack of being grounded in reality In doing so, counsel posed several leading questions, an example of the type of questions was, Your testimony is, you went to dinner with him, he calls you, says, come out and give me a ride, and then says come into this building with me and watch this Is that what you want us to believe that he said to you[?] (J A at 843 ) 136 Coogle’s responses varied, but the following is representative, “What I’m telling you, the jury and Your Honor, is that he called me and asked me to come out there and to pick him up And ifyou know the type ofperson that Max is, he 8 very abusive When I went out there, I did as he instructed ” (J A at 843 ) Counsel seemed unconvinced that Maximiliano was a violent domestic abuse: and questioned Coogle “and he’s abusive, but you you just you just engaged to be married to him, didn t you? You have a very nice time ” (J A at 843, 847) Coogle responded, “I was brain washed I was a minor ” 137 Another line of impeachment of Coogle s credibility was similarly explored Coogle had admitted to taking the drug ecstasy after the murder, and while counsel attempted to establish that this drug has adverse effects on memory, Coogle readily conceded that her “memory suffered at the time ofthis ” (J A at 845, 847 ) Counsel continued by highlighting the differences in Coogle s she had driven to the murder site and had no issues locating the property, although she had also testified that Maximiliano had been standing at the road when she arrived However, when the police took her there years later, they drove around for hours before Coogle saw the property She explained this was due to the amount of overgrowth that had sprung up between the time of the murder and 2012 (J A at 85! ) 1138 In another aspect of questioning, Coogle explained that, from the time of her first contact with police, through pre trial hearings, and until her testimony at the trial, she was never asked if she had lived in Florida or anywhere else in June of 2001 Therefore, she never told any investigator or attorney that she had lived any place other than St Croix in June of 2001 (J A at 860 ) 1|39 Coogle further confirmed that Ventura (whom she sometimes referred to as “P D ‘) carried the full garbage bags to the boat (J A at 864 65 ) However she continued that she had told the investigators that she had never seen Ventura shoot anyone, and openly admitted that this statement conflicted with her trial testimony (J A at 865) In further illuminating the absence of what would arguably be significant details, counsel reviewed all of Coogle’s statements and asked her to identify where in each statement she mentioned she was pregnant, and as in most instances in which certain facts were not in the statements, Coogle explained the absence of her being pregnant in the statement resulted from the fact that she was never directly asked if she was pregnant However, counsel pointed out that Coogle had mentioned she regurgitated but was never asked, just like she was never asked ifshe was in shock but she nevertheless provided that information to the police (J A at 882 84) 1140 Defense counsel continued and questioned Coogle as to whether she had an agreement to agreement and denied any memory of any discussion about such an agreement (J A at 886 ) The questioning again returned to Coogle’s residence in Miami in June of200! Coogle continued she and her daughter had lived with Manela for “a while” in 200l and that Mariela had ‘ kicked her out ” However, Coogle denied having any resentment about this occurrence (J A at 888) In an effort to expose bias on Coogle’s part, counsel’s questioning led to Coogle admitting that she had been kicked out before she ever talked to the police to report this murder (J A at 889 ) {[41 Similarly, her relationship history with Maximiliano was reviewed Coogle had known him since she was 12, and they had begun dating when she was 14 When she was 15, she became pregnant with her first child with Maximiliano However, Maximiliano had been seeing 3 Ms Felix and had impregnated her and lived with that woman sporadically while also living with Coogle and her mother occasionally (J A at 889 93 ) Similarly, the history of Coogle 5 co parenting relationship (or more accurately, the lack ofsuch a relationship) was explored by defense counsel Coogle explained that in late 2001 or in 2002, she was at the airport with her older child, the daughter, when Maximiliano and his sisters arrived and “snatched” the child from Coogle’s arms (J A at 897 98 ) The questioning moved on to whether Coogle had contacted the police after hearing of a financial reward for information leading to the apprehension of the victim’s killers She denied any knowledge of a financial reward (J A at 902 ) 142 On re direct examination, the prosecution s questioning was directed at rehabilitating Coogle’s testimony Therefore, different portions of the various statements upon which defense counsel had Coogle cross examined were explored For example, Coogle explained that part of her hesitation in coming forward with information about the murder was that Maximiliano had threatened her (J A at 934) She further explained that “P D ” was her referring to Jose Rivera Page 20 of56 Similarly, Coogle explained that she had mentioned a red Honda in one of the statements, and that Maximiliano had owned a red Honda in June 2001 (J A at 940) Defense counsel then recross examined Coogle, covering the same topics previously addressed The prosecution declined any further examination 1143 The prosecution then called Donald Kidd, a special agent with the Federal Bureau of Investigation (J A at l029 ) Agent Kidd assisted with Coogle’s returning to St Croix in February of 2012 in order to allow her to assist in locating the murder scene (J A at 1036) When they arrived in Grapetree Bay, the building where the murder was alleged to have occurred was not visible from the road because ofsignificant overgrowth ofshrubs, trees, and other vegetation (J A at 1038) Agent Kidd was then shown Exhibit 17 pages I 3, and he confirmed the pages were photos of the exterior of the building 7 (J A at 1038) Agent Kidd then described in detail how Coogle positioned one ofthe investigators where the victim had been bound and, on his knees, and described the actions of the various perpetrators involved in the murder (J A at 1057 ) During cross examination, Agent Kidd explained that the beach is not visible from the building and is about a quarter of a mile away (J A at 1063 64 ) Likewise, the road could not be seen from the building (J A at 1065) 1144 Detective Frankie Ortiz was the next witness (J A at 1071 ) Detective Ortiz, an investigator with the VIPD, was, on June 1, 201 1, assigned the unsolved case ofthe disappearance ’ Exhibit l7 page 4 had already been admitted in evidence Ultimately, the trial court refused to allow the photos into evidence to rehabilitate Coogle s testimony It is difficult to understand this ruling The context of the cross examination demonstrates that the defense was seeking to discredit and undermine Coogle’s testimony by highlighting the difficulty she had in locating this building when she was asked to show the investigators where it was The picture was taken on the day of that investigation and it showed plainly just how difficult it was to see anything but a small portion of the building The exhibit was offered fot a valid purpose, and it is disconcerting at best that the court justified its ruling stating that these photos had no bearing on the prime issue Credibility is always a central issue in a criminal trial, United Stales v Green, 617 F 3d 233, 251 (3d Cir 2010) and the prosecution is entitled to of police officer Wendell Williams Upon reviewing the information that was in the file and meeting with past officers who had conducted the initial investigation, Ortiz sought to locate Coogle, who had been identified as a person with information relating to Officer Williams’s disappearance (J A at [073 ) Ortiz then met with Coogle in Tampa Florida, on June 15, 201 I Following the meeting, he returned to St Croix to continue the investigation based on the information Coogle had provided him (I A at 1074) 1145 The first thing Ortiz did was to proceed, with others, to the area known as Grapetree Bay to attempt to locate the building Coogle had described While they were there, the shrubs and brush were overgrown and thick, making it difficult to notice any structures or other objects even a very short distance into the vegetation Indeed, Ortiz testified that the brush was so dense they had not noticed “that there was a building right next to [them] ” (J A at 1075 ) Ortiz opened the door to this building and saw a generator and a pole in the middle ofthe room this site coincided with Coogle’s description of the murder scene (1 A at 0176) The building was then processed by the members of the VlPD responsible for the identification and collection ofevidence ‘;46 Ortiz was then presented with Exhibit 6, which was an aerial view of the location of the building as printed from Google Earth After this exhibit was entered in evidence Ortiz explained that the image showed the propeny that was owned by the old Grapetree Hotel The detectives drove along the road and parked near the tennis courts Adjacent to the tennis courts is a ‘treatment plant,” and there is a building in which “the only thing standing is the metal beams and the concrete columns (J A at 1084) Ortiz then saw a door through the bushes, which he opened and immediately identified the building as the location of the murder (J A at 1085 )8 Ortiz further explained the likely path a person would traverse to walk from the building to the beach (J A at 1115 ) {47 During cross examination, Ortiz explained that the beach near this building had a reefnear the shore He fimher explained that he was not familiar with boats and was unsure if a boat could be landed at that location considering the coral reef, though he did indicate that it would depend upon the tide (J A at 1088, 1 1 17 ) It was also established that a boat named Ashes was seized by the government in 2000 and that all three boats that were mentioned during the investigation were 25 foot long power boats (.l A at 1092, 1100, 1117) Similarly, it was established that Ortiz was unaware that Coogle was pregnant at the time ofthe murder (.1 A at 1096 ) Likewise, even after Ortiz learned that Maximiliano and Coogle had a child together, Ortiz did not investigate to determine the child’s age (1A at 1087 ) As he explained, “there was nothing that I read that would lead me to make additional contact with anybody ” (l A at 1098 ) Ortiz’s investigation was timber reviewed, and he admitted that Coogle, in past statements, had given as her contact infomation the cell phone number of Maximiliano, but Ortiz had not obtained the call log of that phone for any day in June of2001 (J A at l 100) ‘48 On 1e direct xamination 02117 explained that the beach where the boat an ival occurred does have a reef along portions of it, but there is a portion where the reef appears to not obstruct access He also explained that, when he walked from the building to the beach, he was completely hidden by the vegetation overgrowth (J A at 1181 82) Further cross examination disclosed that nobody from the VlPD attempted to land a boat of a similar size and shape on this beach in an effort to corroborate Coogle 5 version of events (1 A at 1211 ) 149 Agent Clifford Goodman testified next (J A at 1260) On June 17, 2004, Goodman was that Jimmy had infomed investigators that Rivera and others had wanted the victim’s vehicle, but at that time, Rivera and the others did not know the victim was a police officer The group saw Officer Williams jogging, and took advantage of the situation (J A at 1265) 1150 On cross examination, Goodman confirmed that Jimmy never signed any written statement (J A at 1267 ) Similarly, Goodman continued that Coogle had told him that she would not c00perate with investigators or provide any infomation unless she got her daughter back (J A at 1269) Cross examination also elicited testimony from Goodman that was damaging to the prosecution’s case Goodman continued that he had heard that Williams, who was a VIPD officer, had been involved with the seizing of a firearm Williams became aware that two of the officers involved in the seizure had kept the firearm for themselves, and be confronted them This raised concerns with Goodman that the ViPD investigation may not have been thorough (J A at 1273 ) Goodman likewise admitted he was concerned the VIPD did not turn over the whole investigative file to the FBI Goodman also admitted he felt VIPD did not want the FBI involved in the investigation (J A at 1274) 1[51 FBI Agent Quesinberry testified as the next witness Quesinberry had also interviewed Jimmy Davis as part of this investigation (J A at 1290) Davis had initially been unwilling to discuss the disappearance of Williams and had told Quesinben'y to contact his brother Hector Davis (J A at 1291 ) In subsequent interviews, Davis told Quesinberry that a group of people had wanted William’s vehicle and were unaware he was a police officer when they kidnapped him in their efforts to steal his vehicle (J A at 1292) Davis had also seen Rivera with a gun, and when he asked about the gun, Rivera said “Don’t you read the newspaper? Davis asked Rivera if ‘ they had killed the cop, ’ to which Rivera said they did (J A at 1293 ) 1l52 Goodman was then recalled to the stand and testified concerning an interview he had with Hector on August 22 2003 (J A at 1352) Hector had explained that he was talking with a neighbor in Estate Williams Delight, St Croix when Rivera and another man drove up in a white Chevy S I 0 pickup truck (J A at [363 ) During this conversation, Rivera asked Hector to go with him and to later drive the Chevy 810 to his friend’s home afier taking Rivera to his destination Therefore, Hector entered the back of the truck (in the truck bed), and they proceeded to a Texaco gas station near Enfield Green When they arrived, they saw a green or gold vehicle that belonged to Thomas Melendez, Jr At that time, Williams, who had been bound and in the extended cab of the pickup, was removed from the truck Williams was restrained with “flex cuffs ” Hector described the victim He was older, medium build, fairly dark complexion, and wearing a blue polo shirt (J A at I365 ) Williams was imploring and begging Rivera and others to set him free In a subsequent conversation, Rivera told Hector that Williams had been killed and the body dumped at sea (J A at 1367 ) ‘53 The prosecution then rested and defense counsel made arguments for judgments of acquittal 2 The Defense’s Case '54 Gricel Rivera, Rivera’s sister was the first defense witness (J A at 1443 ) In December of 2000, Rivera was in the hospital He had been shot and needed surgery (J A at 1446 ) When Rivera was released from the hospital, Gricel saw him every day (J A at1447) River stayed at their mother's house, and Gricel visited him there (J A at I447) While recovering from the surgery, Rivera had difficulty walking, lifting, and bending over, which caused him excruciating pain (J A at 1447) On June 6, 2001, Gricel went to her mother’s house and found Rivera in hospital for surgery, and the operation occurred on June 7 (J A at 1449 ) He was discharged on June ll, 200l Gricel described Rivera as having a scar from his ‘ breastbone” to his navel that was stapled shut; she said, “it looked like a C section ” (J A at I450 ) Gricel had been the one to give Rivera a ride home after his discharge from the hospital, and at that time, Rivera was unable to enter her vehicle She and her two sons had to assist Rivera, and even then, it was a struggle for Rivera to enter the vehicle (J A at 1451 ) 155 Gricel then drove Rivera to their mother’s home where their uncle assisted in moving Rivera from the car to the house In exiting the vehicle, Rivera required time to rest due to the pain he was experiencing (J A at 1452) From that day through June 16, Gricel saw her brother daily (J A at 1454 ) During this time, he could not stand up without assistance, needed assistance getting into the shower, and needed assistance to sit on the toilet and to get up (J A at I454) Rivera spent those days in a recliner chair (J A at 1455 ) It took Rivera two weeks to become more ambulatory, and even thereafter, he walked with a limp (J A at 1456) Also, during this time, he regularly took pain killers, which caused him to be drowsy and sleep frequently (J A at [458 ) ‘56 Rivera’s other sistei, M1gali Roldan, also testified ( J A at 146! ) Roldan saw Rivera at their mother’s house two or three days after his release from the hospital on June 11 (J A at I463 ) He was in pain, sitting in the recliner chair Rivera had staples ‘from his chest all the way down to his stomach " (J A at 1465) The wound was swollen, and Rivera could not rise up without assistance from being seated (J A at 1465) At this juncture, when Rivera walked, he was stooped over or slouched (J A at 1466) She visited him every two or three days following that visit It took two or three weeks before Rivera was sufficiently recuperated that he could walk 157 Tania Ruemmele, another of Rivera’s sisters, testified (J A at1472) Rivera had driven himself to her home, and when he arrived, Tania saw he had been shot and took him to the emergency room (J A at 1475) Rivera had to have a second surgery on June 6, 2001 (J A at 1477) She saw Rivera after this surgery when she visited him at their mother’s home He was seated in a recliner, in pain, and his surgery wound was visible (J A at 1478 ) Ruemmele visited Rivera every day following the surgery, and it took two to three weeks before Rivera could walk or go to the bathroom unassisted Rivera did not resume driving a vehicle until the end of July (J A at I48] ) 158 Mariela Velasquez, Maximiliano’s sister, was the next witness to testify (J A at 1483 ) Mariela had moved from St Croix to Florida in 1998 and was living in Miami in 2001 (J A at 1487) In her home, a one bedroom apartment, there was also her son, David Solomon, and another young man Francisco Velasquez who was 14 years old (J A at 187 ) Coogle moved in to her apartment in March of 2001 (J A at 1489 ) Coogle was visibly pregnant and seventeen years old (J A at I49! ) Coogle and her daughter slept on a bunk bed in the bedroom, which was shared by all the people living there (J A at 149] ) Coogle began working at Wendy’s Restaurant in Aptil of 3’00! and wonked there into June of 200! (J A at M93 ) In June, Coogle bumed her hand, which required medical treatment Also, Coogle experienced pregnancy pains, and Mariela took her to the hospital to be attended by a doctor (J A at 1494) Mariela was directly asked, Was there any period during May or June and up until the birth of her son in July that Ms Coogle was away from your apartment for the full night or for a series of nights?” Mariela responded that Coogle had slept there every night (J A at 1496) 159 Lloyd M Henry, M D had performed two surgeries on Jose Rivera, and the records for performed on December 18, 2000, when Rivera was brought to the emergency room for treatment after having been shot multiple times in the abdomen, requiring surgery to repair injuries to multiple organs (J A at 1555 58) Rivera was released on December 20, 2000 (J A at 1558 ) 160 Then, in early June of 2001, Rivera returned for another surgery following a prolonged period of abdominal pain and lack ofbowl movements (J A at 1558 63 ) It was determined that Rivera had an obstruction in his intestines that required surgical correction (J A at 1562 65 ) Upon completion of the surgery, the abdominal opening, usually more than eight inches in length, was closed with surgical staples, and he was released on June 11, 2001 (J A at 1567, 1574) Rivera was medically advised to refrain from driving and heavy lifting and “avoid excessive stair climbing ” (J A at 1567 ) These limitations are required in order for such a surgical wound to heal, and it takes ten to fourteen days following the surgery before a person can walk without noticeable difficulty (J A at 1568 ) If these directives are not followed, the patient is in peril of having the internal sutures tear, resulting in a hernia (J A at 1576) 161 Through cross examination the prosecution confirmed the fact that it is standard medical practice to ensure patients are ambulatory following a surgery and to order that they walk daily This regimen was the course of treatment prescribed to Rivera It was further explicated that patients who are younger and in better health will recover more quickly (J A at 171 72) Similarly, the doctor expounded that “lite lifting and “moderate exertion” included such things as traversing stairs and walking (J A at 1572) The doctor further explained that Rivera was prescribed a strong pain killer that would allow him to avoid feeling pain but that Rivera never returned for any follow up care after this second surgery (J A at 1573 ) The doctor also explained that the first surgery required a longer healing time than the second surgery (J A at 1575 ) 162 The defense then presented Sandra Rivera, the sister ofTheresa Coogle (J A at 1577 78 ) Sandra and Coogle’s mother lived in Estate William s Delight on St Croix (J A at 1581 ) Sandra visited her mother daily because her son was taken to her mother to be babysat, leaving him there around noon and retn'eving him at approximately 1 1 30 p m (J A at 1582) In 2001, the last time Sandra recalled seeing Coogle at their mother 5 home was in April (J A at 1584) For example, Sandra visited their mother’s home on June 19, 2001, their mother’s birthday, and did not see Coogle at that time (J A at 1584) Sandra had also received some mail from Coogle, which indicated it had been mailed from Miami, Florida (J A at 1585) Ultimately, Sandra was asked, “Can you tell us to a degree of certainty that Ms Coogle was not on St Croix in June of 2001? “Yes,” was Sandra's response (J A at 1585 ) 163 However, pressing her further, the prosecution asked, “Can you say positively, definitively during this timeframe you talked about in mid 2001 that Theresa Coogle had never gotten on an airplane and come back to St Croix for a visit?” She responded simply, “No ” (J A at 1587 ) The defendants then rested, and the prosecution had no rebuttal case to present (J A at 1588 ) 1164 Renewed motions for acquittal were made, following which closing arguments were presented to the jury (J A at 160! ) The court then gave the final charges to the jury instructing on the burden of proof, presumption of innocence, the duty of the jury to evaluate the credibility of witnesses and weight of evidence, elements of the crimes charged, and other relevant laws (J A at 1715 ) The jury returned its verdict on February 6, 2014, and found Rivera and Ventura guilty of first degree murder pursuant to subsection 922(a)(1) and section 11 of title 14 9 (J A at 2062 ) 1|65 On February 21, 2014, Rivera filed a motion forjudgment of acquittal, which was denied on May 2 2014 '0 (J A at 2085 86) The defendants were adjudged guilty and sentenced They appealed, and their convictions were affirmed (J A at 6) Rivera v People, 64 V I 540 (VI 2016) Ventura v People 64 VI 589 (VI 2016) C Motion for New Trial 1|66 On January 30, 2017, Rivera filed a motion for a new trial pursuant to former Superior Court Rule 135 (J A at 3 ) First, the defense noted that Coogle’s identity was not disclosed until jury selection ” However, counsel subpoenaed Mariela Velasquez and Sandra Rivera to testify at trial (J A at 12) Employing a private investigator, counsel was able to locate other witnesses who could place Coogle in Florida in June 2001 (J A at 12 ) The first was Francisco Velasquez, who lived in Madela Velasquez’s apartment from February through October 2001 Francisco’s affidavit stated that he had lived in Miami from February 8, 2001, until he relocated to St Croix on October 17, 2001 (J A at 149) The second was Kenny Melendez, who had dated Coogle in June 2001 when she lived in Miami (J A at 13) 167 The defense also located some documentary evidence There was a payroll record that established Coogle had worked 27 91 hours in Miami between June 25 2001 and July 8, 2001 (J A at 38 ) There is no evidence of when these hours were worked (at the beginning of the pay period or the end) during the specified dates (J A at 38 ) There was also documentary evidence that Coogle’s daughter received medical treatment in Miami on April 8, 2001 (J A at 42 ) WNW WL 3974333 (V1 Super Ct May 1 2014) (unpublished) see genera”) People v Ventura SX 2012 CR 76 2014 WL 3767484 (VI Super Ct July 25 2014) (unpublished) (denying co defendant 5 motion forjudgment of acquittal) 168 The defense also identified Jose A Rodriguez, a former officer with the VIPD, as having the opinion that the VlPD tampered with evidence and conspired to falsely arrest Rivera (J A at 51 ) No facts establishing the basis for this opinion were recited in the affidavit, and Rodriguez was not called to testify at the hearing Finally, the defense emphasized the absence of travel records from government agencies as evidence Coogle never traveled in June of 2001 (J A At 54) The defense submitted other exhibits in an effort to bolster this evidence and convince the trial court to grant a new trial 169 On June 14, 2018, a hearing was conducted on this motion for a new trial (J A at 101 ) Detective Ortiz testified that he was unaware of any reward offered regarding Williams and that he had never communicated the existence of such a reward to Coogle Also, to the extent his involvement allowed him to know such details, he had no knowledge of the FBI or any other government agency so informing Coogle (J A at 137 ) No other witnesses were called 170 This motion was denied on June 3, 2020 (J A at |56) People v Rivera, 2020 VI Super 64 First, relating to Francisco, at that January 27, 2014 hearing, Coogle testified that she had been living with Mariela and her son, Francisco, in Miami in June of 2001 Furthermore, defense counsel admitted that he had become aware of and contacted Mariela through infonnation he had obtained from one of the defendants Accordingly, Mariela was subpoenaed at trial Francisco had returned to St Croix in October of 2001 and was available to be subpoenaed to testify at the trial (J A at [62 ) Similarly, Kenny Melendez was a subject of cross examination at the pre trial motions hearing on January 27, 2014, and was known, at least, to Mariela Velasquez before trial (J A at 163) Simply, the Superior Court concluded that “the evidence regarding Coogle’s potential absence from St Croix was not ‘unknown at the time of trial ” (J A at 164) 1I7l As to the proffered testimony from Jose A Rodriguez, the court found that it was immaterial, as he only offered his opinion unsupported by historical facts establishing the evidentiary foundation of that opinion (J A at 164) In evaluating the documentary evidence (making every possible inference in favor of the defense), the court noted that the medical treatment of the daughter on April 8, 2001, and the records continued that Coogle was in Miami on April 8, 2001, and on June 25, 200] (at the earliest) These facts left a period of time of approximately three months unaccounted for None of this documentary evidence made it impossible (or even less likely than previously established) that Coogle was in Miami at the time of the murder and, thus, could never have been a witness to Williams’ murder (1 A at 165 ) 1172 On June 26, 2020, Rivera perfected an appeal of the Superior Court’s June 3, 2020 denial of his motion for new trial 11 DISCUSSION A Jurisdiction 1|73 “This Court, being an appellate court, is a court of limited jurisdiction and must be satisfied of its own appellate subject matter jurisdiction before it considers the merits ofan appeal ” World Fleck I'ttlmltels~ ILCt Hemy 71 VI 116! ll67 (VI 20l9) '2 This Court has appellate subject matter jurisdiction over all appeals from the decisions of the courts of the Virgin Islands established by local law[] 48 U S C § 1613a(d) Pursuant to this grant of authority from Congress, the Legislature ofthe Virgin Islands has established this Court and granted itjurisdiction I’See also FirstAm Dev Group/Cartb LLCv WestLB AG 55 VI 594 60] (VI 2011) (“Prior to considering the merits of an appeal, this Court must first determine if it has appellate {sub cct matter] jurisdiction over the matter (citation omitted». Brown v People, 49 V l 378, 379 (V I 2008) (“Before this Court can decide the merits of [this] appeal, we must determine ifwe have jurisdiction ')), V I Gov 1 Hosp & Health Facilities Corp v Gov tofthe V I Page 32 of56 over all appeals arising from a “Final Judgment” '3 of the Superior Court 4 V I C § 32(3) (“all appeals arising from final judgments, final decrees, [and] final orders of the Superior Court”), see 4 V I C § 33(3) ( Appealable judgments and orders shall be available only upon entry of final judgment in the Superior Court ”) '4 1W4 “A Final Judgment is a judgment from a court [that] ends the litigation on the merits leaving nothing else for the court to do except execute the judgment ’” Toussain! v Stewart, 67 V I 931 939 (V I 2017) (quoting Ramirez v People 56 V1 409 416 (V I 2012) (citations omitted» '5 “In a criminal case, the written judgment embodying the adjudication of guilt and sentence imposed based on that adjudication constitutes a Final [Judgment] for purposes of 4 V l C § 32(a) Gonsalves v People 70 V I 812 829 (V I 2019) (citing Perczval v People 62 V1 477, 483 (V I 2015)) The Final Judgment in this case was the order entered June 3, 2020, denying the motion for new trial the only post trial issue then before the court and appellate '3 The jurisdiction of this Court, as set forth in subsections 32(a) and 33(8) of title 4 of the Virgin Islands Code, is a codification of the finality requirement that has been a part of U S common (and statutory) law since this country's founding and requires those wishing to challenge a ruling of a lower court to raise all claims of error in a single appeal followmg final judgment on the merits Enrietto v Roget: Town:end& Thomas PC. 49 V I 31 l, 315 (V l 2007) (quoting Richardson Merrell Inc v Keller 472 U S 424 429 30 (1985)) see also Joseph v Daily News Pub Co Inc 57 V1 566, 571, (V l ‘01“) ( Section 32 embodica the final Judgment lulc, which gcncmlly tequila a party ‘to raise all claims oferror tn a single appeal following final judgment on the merits (quoting 8:32am v PeOpIe, 53 VI 395 400 (V1 2010)» see genelally Bachowskl v Usery 545 FM 363 368 n20 (3d Cir 1976) (citing Metcalfe 3 Case 77 Eng Rep 1193 (K B I615) 15 CHARLES ALAN WRIGHT ARTHUR R MILLER & EDWARD H COOPER FEDERAL PRACTICE& PROCEDURE § 3906 (2d ed I976» " See also 48 U S C § 1611(1)) (d) Em 12110 49 V I at 315 (quoting 4 V I C § 32(a)) Toussam! v Ste» art 67 VI 931, 939 40 (V I 2017) (discussing what constitutes a ‘ Final Judgment ); see generally Prone: v Prosser, 33 VI 32 40 (V 1 Super Ct [995) (noting that With the procedural merger of law and equity In the federal and most state [and territorial] courts under the Rules of Civil Procedure, the term ‘judgment has generally replaced decree ‘ (quoting BLACK S LAW DICTIONARY 410 (6th ed 1990), and citing authorities» see also 4 V I C § 33(b), Penn 1 Mosley, 67 V I 879, 891 n 4 (V I 2017) (discussing the distinctions between a judgment, order, and decree), Miller v Sorenson, 67 V l 861, 871 72 (V l 2017) (discussing the distinctions between a judgment and decree) '5 See genelally Toussaml, 67 V I at 940 n 3 (noting that the entry of a Final Judgment implicitly denies all pending motions, and all prior interlocutory orders merge with the Final Judgment (citing Simpson v BoardofDirs ofSapphire jurisdiction vested in this Court when Rivera filed his notice of appeal on June 26, 2020 V I R APP P 5(b)(l) B Standard of Review 1175 Facially, the parties appear to agree to the test to be applied under Rule 33 While the parties present the five factors of the test for new trial motions based upon newly discovered evidence in a different order, they both similarly state the factors In Phllllps v People, 5| V I 258, 280 (V I 2009), a case Rivera relies on in his brief,‘6 the Court articulated the standard that a litigant must meet to prevail on a motion for a new trial based on newly discovered evidence as follows (a) the motion must allege facts from which the court may infer diligence on the part of the movant (b) evidence must indeed be newly discovered, meaning discovered since trial, (c) evidence must not be merely cumulative or impeaching, (d) evidence must be material to the issue involved, and (e) evidence must be of such probative value and such a nature it would probably produce an acquittal if presented at a new trial (App Br at 16) It is equally important to note in accordance with our holding in Phllhps, that the movant ‘ has a ‘heavy burden’ of proving each of these requirements Philips, 51 V I at 280 (V I 2009) However, although the parties agree on the factors enumerated in P11111079 this is the juncture at which the parties’ agreement ends The parties either disagree on the substantive content ofthe factors, the application ofthat legal standard to the facts presented, or both regarding all aspects of every factor For example, the prosecution argues that the evidence is simply not “ See also United Stale: v Laureano-Salgado, 933 F 3d 20 (lst Cir 2019) This test has been reaniculated many times since it was first applied in lame”: and established as binding Virgin Islands precedent in Lima See generally e 3 United States v lame!!! 528 F 2d 1290 1292 93 (3d Cir 1976) Cimem 459 F 3d at 458 (quoting lame!” 528 F 2d at 1292 and citing Gov (afthe V I v Lima 77 F 2d 1245 l250 (3d Cir 1985)) Gov I ofthe V I v Sampson 94 F Supp 2d 639 651 (DV! App Div 2000) Gov toflhe V I v Krepps Crim No 394 1997 2001 WL 37112920 new and should be automatically rejected on this basis because it existed at the time of trial (App’ee Br at 9) Whereas, the defendant argues that evidence is “new” because “the specific witnesses and evidence presented in the motion for new trial ’ were not available at the time of the trial (App Br at 24) 1|76 The parties have a similar disagreement as to whether due diligence was exercised; whether a new trial motion can ever be based on cumulative or impeachment evidence, whether the evidence, though in some ways cumulative, impeaching, or both, is material to the appeal; and whether, considering the totality ofthe evidence and weighing its probative value and detennining the credibility of the witnesses, there arises a definite and firm conviction that an innocent person was convicted This irreconcilable disagreement between the parties presents the (31st issue to be considered on appeal what is the test (and how is that test to be applied) when a defendant seeks a new trial on the basis that, in light of new evidence, the finding of guilt was against the interest ofjustice? This is a question of law subject to plenary, i e , de novo, review Phillips v People, 5| VI 258, 280 (V I 2009) (“‘The standard of review on a motion for a new trial is abuse of discretion unless the court’s denial of the motion is based on application of a legal precept, in which case om review is plenary ”’ (quoting Curlew Klein 499 F 3d I99, 206 (3d Cir 2007)» " 1|77 To the extent the trial court s denial of the motion for a new trial is based upon a finding of fact, that factual determination is reviewed for clear error more succinctly, the trial court’s ‘7 See generally L’mtedSlates v lees, 618 F 3d 383 390 (3d Cir 2010) (' A determination ofwhether it would grant a new trial 15 left to the discretion of the [trial] court Accordingly, we normally review a [trial] count 3 determination of a new trial motion under the deferential abuse of discretion standard At certain points however the [trial c]ourt suggested that it was bound as a matter oflaw to deny appeliants Rule 33 motion Also, when ruling on a later motion to stay appellant’s sentences pending appeal, the [trial c]ourt referred to its earlier Rule 33 decision and stated, the court 5 exercise of discretion in ruling on the defendant 3 Rule 33 Motion, was cabined by controlling precedent To the extent that we are reviewing a legal rather than a discretionary decision of the [trial clourt, we will apply the factual determinations will be upheld so long as they are not clearly erroneous '8 A trial court commits clear error, thus making its factual finding clearly erroneous, if either the finding of fact has no support in the record or, based upon the record, the finding is irrational that is to say the finding of fact has no reasonable and rational relation to everyday experience, common sense, and the circumstances of life as they are in reality See Greer v People, 2021 V1 7, 1139 (discussing when the fact finding ofa jury is erroneous) Thomas v People, 60 V I 688, 695 (V 1 2014) (The clearly erroneous “standard is applied [to the factual findings of a trial court] because the trial court has ‘a unique perspective at the scene’ and so ‘is in a far superior position than the appellate court (quoting UnitedStates v Boone, 458 F 3d 321 329 (3d Cir 2006) and citing UnitedStales v Cox 324 F 3d 77 87 (2d Cir 2003») '9 1178 Finally, a “determination of whether it should grant a new trial is left to the discretion of the lower court, and will only be reversed for an abuse of that discretion Harris v Gov I ofthe V1 55 V 1 1102 1130 (D V1 App Div 2011) (citing Untied States v Ctmera 459 F 3d 452 458 (3d Cir 2006)) United States v Granms 939 F 3d 429 (2d Cir 2019) The defendant 8 argument that the court incorrectly determined that the facts of this case did not present such '3 See Thomas. 60 V I at 696 97 ( ‘Given the testimony at the hearing another judge indeed, this Court might have ruled differently as to A H s credibility and might not have concluded that there were sufficient inconsistencies regarding her questionnaire and other testimony to distrust her testimony regarding the alleged misconduct However, our task is not to decide whether we would have made the same decision as the trial court, but rather it is limited only to a determination of whether there was an abuse of discretion The trial count made a credibility determination, weighing the testimony ofA H against the testimony of otherjurors ‘In assessing these circumstances on appeal, we are mindful that a trial court‘s findings on issues of credibility and honesty are determinations [of fact] peculiarly within the trial judge s province and are accorded great deference This is because the trial court possesses a superior capacity to observe the demeanor of[witnesses] and to assess their credibility ’ Considering the entire record, we cannot say that, in deciding whether to believe A H or to believe the other jurors, all of whom uniformly denied A H s allegations the trial court clearly erred (quoting Vergile v People, 54 V1 455, 461 (VI 2010) United 9mm: v Mitchell 690 F 3d 127 142 (3d Cir 2012) and citing Sklllmgi Untied State: 561 U S 358 2923 (2010)) '9 For an understanding of the role of an appellate court in applying this standard, see generally United States v exceptional circumstances that there arose a definite and firm conviction that an innocent person was convicted and the jury’s finding of guilt was a miscamage of justice, which is simply an argument that the trial court erred in its application of law to fact, is reviewed for abuse of discretion Wallace v People, 71 V l 703, 723 (V I 2019) Generally, acourt abuses its discretion if it acts arbitrarily or irrationally Alexander v People, 60 VI 486, 494 (VI 2014) (citing Franczs v People, 56 VI 370, 379 (VI 2012)) “Abuse of discretion is evaluated ‘on the reasonableness of the trial court If the trial court could reasonably conclude as it did and the ruling, is one based on soundjudgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet on the ruling is arbitrary or capricious ” Milltgan v People, 69 V I 779, 805 n 4 (V I 2018) (Swan, .1 , concurring in part, dissenting in part) (quoting Emerson v State 371 P 3d 150 153 (Wyo 2016)) A trial court acts arbitrarily, capriciously, or irrationally if its ruling is founded upon “‘a clearly erroneous finding of fact, an errant conclusion of law [,] or an improper application of law to fact‘” ‘ or its actions were ‘elearly contrary to reason and not justified by the evidence ”’ Appleton v Hairigan, 61 V I 262, 268 (V I 2014) (quoting Stevens v People (Stevens 1!) 55 V1 550 556 (VI 2011))” Furthermore a court cannot “exercise its discretion” by choosing to ignore a claim or issue that was properly ’0 See also Smith v Govt of the V I 67 V l 797 803 04 (VI 2017) Pelle v Cerium l ndenvruer: a! Lloyds of London 66VI 315 318 (VI 2017) 31”" 57V! at 461 62 (quoting Pelrusv Queen Charlotte Hotel Corp 56 V1 548 554 (V I 2012»- Stevens ll, 55 V l at 556( We renew a denial of a motion for a new trial based on a Btaa); violation for an abuse of discretion An abuse of discretion arises only when the decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact " (quoting Schneider v Fried 320 F 3d 396 404(3d Cir 2003) and citing Bowryv People 52V! 264 268 (VI 2009)» Gorev Tilda: 50 V I 233, 236 (V I 2008) see gene; ally e g , Harris, 55 V l at l 130 ( A trial court abuses its discretion if it makes a clearly erroneous finding of fact, a mistaken conclusion of law. an improper application of fact to law, or if no reasonable person would reach the same decisson ‘We will not interfere with the [trial] court 5 exercise ofdiscretion unless there is a definite and firm conviction that the court committed a clearer error ofjudgment in the conclusion it reached upon a weighing of the relevant factors ' The trial court committed a clear error of judgment by conflating [the defendant 3] procedural and substantive arguments ‘ (quoting In re Cedam Corp PRIDES Lm‘g , 235 before it Bryan v Fawkes 61 V I 416 476 (V I 2014) (citing Carola v Garcm 59 V l 758 771 (V I 2013)) “It is axiomatic that, when a court with discretion fails to balance the pertinent factors required for it to properly exercise that discretion, such failure constitutes an abuse of discretion ” Rtvera Mercado v Gen M01015 Corp , 51 V I 307, 330 (V l 2009) (Swan, J , concurring), see Beachs'Ide Assocs LLC v Ftshman 53 V I 700 719 (V I 2010) l The Test to be Applied to a Motion for a New Trial Premised Upon Newly Discovered Evidence 1l79 ‘ ‘Unlike an insufficiency of the evidence claim, when a [trial] court evaluates a Rule 33 motion it does not view the evidence favorably to the government, but instead exercises its own judgment in assessing the Government’s case ’” Silveus, 542 F 3d at I l 17 (quoting United States v Johnson, 302 F 3d 139, 150 (3d Cir 2002)) 2' A trial court plays a much more active role in considering a motion for a new trial [In such cases, the trial court] exercises its own judgment in assessing the [prosecution’s] case [22] However, even if [the trial court] beiieves that the jury verdict is contrary to the weight of the evidence, it can order a new trial only if it believes that there is a serious danger that a miscarriage ofjustice has occurred [such] that an innocent person 2' See also Wallace, 7] V I at 787 (Swan, 1 , concurring in part, dissenting in part)( The Superior Court exercises its own judgment in assessing the Government's case (quoting Stevens] 52 V l at 305)) Davis, 35 V I at 85 ( It is well settled that in passing on a motion for a new ttiai, the court's role is to weigh the evidence rather than examine its sufficiency and in doing so may weigh the credibility of witnesses ) 2’ See also Wallace, 7| V i at 723 ( The court may grant a new trial to a defendant if required in the interest of justice In making such a determination, the court ‘may weigh the evidence and credibility of witnesses, and if the court determines that there has been a miscarriage ofjustice, the court may order a new trial ‘" (quoting V l SUPER CT R 135 Phllllps 51 VI at 280)) Fame 62 V] at 632 ( ‘The court may weigh the evidence and the credibility of witnesses, and if the court determines that there has been a miscarriage ofjustice, the court may order a new trial (citing Pe0plev Morton 57 VI 72 77 (VI Super Ct 2012)» Percival 62 V] at 490 91 ( In the case of a motion for a new trial premised on a challenge to the credibility of the witnesses, it remains the law that a trial court should weigh the evidence, but a new trial should not be granted unless the court believes that there is a serious danger an innocent person has been convicted (quoting Stevens I, 52 VI at 306)), see generally Stlveus 542 F 3d at I I I7. has been convicted ’[23] While it remains the law that a trial court should weigh the evidence, a new trial should not be granted unless the court believes that there is a serious danger that an innocent person has been convicted ’ Stevens 1, 52 V I at 305 06 (quoting Silveus, 542 F 3d at 1004 05, and citing other authorities) 1|80 “If the evidence preponderates heavily against the verdict, the court, having cautiously considered all the evidence, may exercise its discretion to order a new trial ” Leycock, 93 F R D at 57] (Rule 33 provides a much broader standard of review than that applied to a motion for judgment of acquittal Under Rule 33, the court weighs the evidence and credibility of witnesses Such an exercise of discretion is to be used only in exceptional circumstances, however ” (citing authorities» 2“ “[T]he court ought not, upon general principles, to grant a new trial, unless the fullest credit is given to the new evidence, and the court is of the opinion that it outweighs in strength and cleamess and force the evidence on the other side In short, a new trial ought not to be granted unless, taking into consideration the new evidence, the verdict, in the opinion of 7’ Wallace, 71 VI at 787 (Swan, J , concurring in part, dissenting in part) (”The Superior Court exercises its own judgment in assessing the Government 5 case However, even if the Superior Court believes that the jury verdict is contrary to the weight of the evidence, it can order a new trial only if it believes that there is a serious danger that a misunriage othtsticc has occurred that is, that an unto cut mutton has been convicted (quoting Stevens] 52 V I at 305)) Davis, 35 V I at 85 (“If after weighing the evidence, the court determines that there has been a miscarriage ofjustice the court may grant a new trial The court may exercise its discretion to order a new trial if it finds that the evidence preponderates heavily against the verdict however, such exercise of discretion is to be used only In exceptional circumstances ”) 1‘ See also Morton, 57 VI at 77 ( The decision to grant a new trial is squarely within the [trial cloun 5 sound discretion Motions for new trials, however, are generally not favored and therefore, should not be granted unless there is a serious danger that an innocent person has been convicted Thus, while a trial court may exercise its discretion and order a new trial, its discretion should be utilized only in exceptional circumstances where it finds that the evidence preponderates heavily against the verdict ) Gov I ofthe V l v Gram, 19 V! 449, 448 (V I Super Ct I983) (“On a Rule 33 motion for a new trial, the power of the court is much broader, and the court may weigh the evidence and consider credibility ofthe witnesses Ifthe court concludes that the verdict is contrary to the weight of the evidence and that a miscarriage of Justice may have resulted, the verdict may then be set aside and a new trial granted Furthermore, the motion for a new trial is addressed to the discretion ofthe court and such discretion should be exercised with extreme caution In other words, the power to grant a new trial should be invoked only in exceptional the court, ought to be the other way, and therefore, injustice has been done to the defendant ” UnuedStatesv Gwen 25 F Cas 1287 IBIS (D Mass 1834) (citing Sawyerv Merrill 27 Mass 16 (Mass 1830), State v Duestoe, 1 S C L 377 (S C 1794)) “When deciding a motion for a new trial, the Superior Court is uniquely situated to weigh the credibility of witnesses " Ventura, 64 V I at 617 (citing Percival 62 V I at 490 Fable I People 62 V I 625 632 (V I 2015)) 1|8l In determining the disposition of a motion for a new tn'al, “[t]he court [has a] duty under Rule 33 to review the record independently ” Harris, 55 V I at 1133 “When faced with a Rule 33 motion, the court must examine the evidence and credibility of the witnesses itself, without viewing the evidence in the light most favorable to the government, and determine whether the interest ofjustice requires a new trial Essentially, Rule 33 calls upon the trial court to examine the fairness and result of the proceedings in an effort to ensure that convictions are just, reliable, and trustworthy and do not offend the court 5 commitment to justice Hams, 55 V I at “33 25 “If a motion for a new trial is based on newly discovered evidence, the court must decide whether there is a reasonable probability that the result would have been different had the evidence been disclosed The mere possibility that an undisclosed item of information might have helped the defense or might have affected the outcome ofthe trial is insufficient ” Dams, 35 V I at 85 (citing Commlmong 706 F Supp 1172 Gm I ofthe V] v Smalls 32 V I 157 (V I Super Ct I995) Gov ! ofthe V I v Grant 19 VI 449, 448 (VI Super Ct I983), and other cases) 2’ Hams, 55 V I at 1133 (“The lower court's very brief assessment of [the witness s] credibility limited to noting it ‘did not disagree’ with the jury fails to satisfy this significant and independent responsibility as the gatekeeper for the halls ofjustice We appreciate the gravity of this case Police Officer Hodge’s murder altered the St Thomas community But a Judge is bound by the law to appropriately exercise the discretion vested in him to ensure a just result Here, the law required the court to fairly consider Harris 3 Rule 33 motion and examine the many factors bearing on [the witness s] credibility His failure to undertake these tasks was an abuse of his discretion Justice 1|82 Understanding that all five enumerated factors must be met in order to be successful in a motion for a new trial based on newly discovered evidence we begin our consideration with factor one, in which it must be determined that the evidence alleged in defendant’s motion was discovered since the trial, thus making it “newly discovered ’ Within factor one, the court must consider the reasons the evidence was not presented at trial and whether it establishes an excuse for the failure to present the evidence We find it significant to acknowledge that the United States Third Circuit Count of Appeal is the Court that originally articulated the five factor test under former Superior Court Rule I35, the pertinent standard ofwhich is continued in Rule 33 ofthe Virgin Islands Rules of Criminal procedure, for evaluating a motion for a new trial premised upon newly discovered evidence However, the Third Circuit recognized that it had aniculated a test that did not reflect how that court actually applied the test in practice United States v Qutles, 618 F 3d 383, 393 94 (3d Cir 20l0) (‘ [W]e could not have intended to hold that evidence germane only for impeachment purposes never could be the basis for granting a new trial ”) A prime example shows that while the court had usually listed the first two factors separately, “discovered since trial” and ‘ due diligence,” in practice in many of its opinions. the court regularly considered the two factors in a single analycis E g Crmem, 459 F 3d at 46! ( The test to determine whether evidence is newly discovered is both objective [(requiring due diligence, at the time of trial, in locating and presenting the evidence)] and subjective [(requirlng a showing that the defendant either lacked actual knowledge of the evidence or that, in spite of actual knowledge, the defendant exercised due diligence in making efforts to present the evidence at trial)] As such we will initially evaluate both factors one and two in our analysis, as these prove to be dispositive of the present appeal i The Defendant had Actual Knowledge of the Evidence and Therefore the Evidence is Not Newly Discovered 183 First outlining the evidence under review, Rivera’s motion identified (1) testimony (through three affidavits) of three witnesses, (2) records demonstrating the efforts to locate Coogle’s travel records in June 2001, (3) medical records, and (4) employment records {84 As it pertains to the proffered evidence, the affidavit of former VIPD officer Rodriguez does not represent evidence because he lacks first hand knowledge of any of the facts he asserts and so stated in the affidavit when he admitted that his assertions are nothing more than ‘ personal opinion ” Lamentably, there is not a single foundational fact recited in the Rodriguez affidavit that demonstrates his assertions of evidence tampering are anything but speculation He does not assert that he personally saw officers tampering with evidence or that he heard officers admit to tampering with evidence Crucially, he does not even assert in his affidavit, at a minimum, that he heard officers discussing their desire to frame Rivera or any other defendant Rodriguez is not offering an expert Opinion, and a lack of factual foundation for his testimony makes this asserted “evidence” specious and inadmissible speculation V l R EVID 601 26 While it was possible that the defendant could have presented Rodriguez’s testimony at the new trial hearing and rectified any deficiencies, Rodriguez was never called as a witness, leaving both the trial court and this Court to base rulings upon only the affidavit Accordingly, the Rodriguez affidavit is not “evidence ’ that can conceivably serve as a basis for a motion for new trial and need not be further considered ° Consistent with this opinion, we do not address whether there may ever be a Situation in which proffered ‘evidencc that would ultimately be inadmissible in any trial may still establish that a new trial must be granted in the interest of 185 As to the other proposed evidence, nothing in the record indicates that the proffered items would be inadmissible under the rules of evidence, and facially, all have a tendency to disprove the veracity of Coogle’s identification of the defendant as the killer Specifically, the proffered evidence is facially relevant Umred States v Monnlla Rivera, 115 F 3d 1060, 1065 & n 2, 1067 (lst Cir 1997) (“The term ‘on its face’ is used deliberately here and with no suggestion that the codefendant s newly available testimony is true ") Furthermore, neither of the now identified witnesses testified at the hearing, nor were the specific records establishing the failure to locate Coogle’s travel history and the other documentary evidence presented at the hearing 186 Irrefutably, we conclude that Rivera had actual knowledge of the evidence now identified in his new trial motion prior to trial, but he inexplicably failed to seek a continuance at the trial At the hearing the day before trial commenced and, importantly, prior to empaneling the jury, Rivera s counsel questioned Coogle about all the evidence that now forms the basis for Rivera’s motion For example, it was Rivera’s counsel who questioned Coogle about living in Miami in June of 200] 1187 Given the questions asked on cross examination, the inescapable conclusion is that Rivera beiievcd the Ieality to be that Coogie never traveled in lune of 200] and thus could never have been on St Croix to witness the murder, making her identification ofthe killer entirely mendacious and speculative, at best, and a complete fabrication, at worst As such, when Coogle testified at the hearing that she traveled between St Croix and Miami in the month ofJune 200l , the defendant was on notice that any travel record for Coogle (or the absence of such record) would be pivotal in the trial Yet, Rivera did not request a continuance to investigate Coogle’s travel record or lack thereof ’7 188 Furthermore, even as ofthe hearing on his motion for new trial, Rivera had never contacted the United States Treasury in an effort to obtain these records 23 Similarly, Rivera’s counsel questioned Coogle about her associations in Miami Through this questioning, it was established that Coogle lived in the same apartment as Francisco Velasquez when she was in Miami Likewise, Coogle admitted to associating with Kenny Melendez during this same questioning at the hearing 29 Additionally, Coogle was questioned about taking her daughter to Miami for medical treatment and admitted that she had taken her daughter to a hospital in Miami in April 2001 Despite this knowledge, Rivera never sought a continuance in order to obtain the relevant records or to interview these two witnesses 3° ’7 E g , Marlon, 17 V I at 276 (‘ The court has not been hesitant tn the past to grant continuances in those cases which merited a delay, especially if counsel claimed he dld not have adequate time to prepare his case But here, counsel had almost one month s notice of the hearing, announced [that he was] ready for trial and actively participated in the case He cannot claim now that he was not prepared ’) While the dcfcndant is always {th [tom an obligation to ptescnt cv1dt.ucc of innocence, t1 ruttains the law that the testimony of a single eyewitness is sufficient evidence to support a conviction by proof beyond a reasonable doubt in the absence of the testimony being inherently incredible Gonsalves, 70 V I at 836 Coogle s testimony was not inherently incredible As such, it was the prosecutor 5 choice to gamble and try a case without corroborating Coogle s testimony that she had flown between St Croix and Miami in June 2001 Without question, this Court does not think it was wise for the ptosecution to try a murder case without ever attempting to contact the United States Treasury to obtain from government files a copy of the mandatory form that was required to be completed by anyone traveling from the Virgin islands to the U S mainland in 2001 This belief, though, does not render Coogle s testimony insufficient to support the identification of Rivera Therefore, it was Rivera‘s choice whether or not to seek out such records and establish their non existence ‘9 While she was only asked about “Kenny,‘ it is clear that the defendant had sufficient knowledge to have obtained Kenny’s" last name in very little time, had a continuance been requested 3° While we have alteady rejected the affidavit of Rodriguez as a basis for granting a new trial, we note that the availability of former officer Rodriguez’s testimony was known to the defendant‘s counsel prior to trial, Rodriguez 189 The prosecution argues that this is the end ofthe inquiry The defense responds by arguing that “the actual evidence itself” was not known just because the defense had a vague notion of its content Two considerations convince us that the inquiry should not end here First, the factors are non dispositive When multiple non dispositive factors are combined to make a test, the court must consider all the factors upon which there is relevant evidence See e g , Gayamch v Gayamch 69 V I 583 588 (V I 2018) (noting that it was not error for the court to leave unaddressed any factor for which there was an absence of evidence establishing its relevance or applicability to the inquiry before the court) ‘90 Second, multiple other courts have considered whether unpresented evidence that was known to the defendant at the time of trial could serve as a basis for granting a motion for a new trial, and when exceptional circumstances presented themselves, those courts did not consider this factor dispositive 3' Furthermore, those courts supported their decisions with convincing logic and legal analysis grounded in the text of the rule, “in the interest ofjustice See Untied States v lees 618 F 3d 383 391 (3d Cir 20l0) ( [Olpinions that say that a court should not grant a motion for a new trial on [such evidence] do not give enough significance to the wording of Rule 33 which as we have indicated, makes clear that the interest ofjustice guides the courts [in] deciding Rule 33 motions and does not suggest that a court should [make categorical, per se distinctions] between [types] evidence in making that determination [S]tatements that a new trial should not be granted on th[is] basis of newly discovered evidence cannot be taken at face value 3' E g Delbrtdge v United States, 262 F 2d 710 71] (D C Cir 1958) (granting a new trial when the defendant had Nothing in the text or history of Rule 33 supports a categorical distinction between types of evidence, and we cannot see the sense of such a distinction ”) 191 We find a prime example in the First Circuit’s decision in Monnlla Rivera, 115 F 3d at 1063,32 addressed in the following analysis In Monnlla Rivera ‘ [t]he trial court [had] denied the new trial motion on the ground that the witnesses were known and available at the time of trial Thus, in the court 8 view, [the defendant] did not meet the requirements of Rule 33 ” However, on appeal, the First Circuit noted that ‘ [t]he statements appear material and appear to give rise to a ‘reasonable’ probability of acquittal upon retrial In saying this, we are taking account of the ambiguity and thinness of the inculpatory evidence and are taking the exculpatory statements at face value As we note below, a hearing might cast a different light on these statements ” Id at 1065 & n 2 Accordingly, the First Circuit employed a nuanced application of the first factor, focusing on whether evidence that was known to the defendant at the time of trial but unavailable for presentation at the trial would so undermine the court’s confidence in the jury’s verdict that the evidence would serve as a basis for granting a new trial “in the interest ofjustice ’ Id at 1065 66 (“[0]ur focus is on the first element of the test ’ “The legal question [to be considered] is whether exculpatory affidavits from codefendants who did not testify at trial because they exercised their Fifth Amendment privileges may ever qualify as ‘newly discovered evidence‘ within the meaning of Rule 33 " “[T]he first question is whether the evidence was ‘unknown or unavailable to the defendant at the time of trial ”’) ’2 The test applied in the First Circuit is articulated similarly as compared to the test applied previously in the courts of the Virgin Islands Montilla Rivera, I 15 F 3d at 1064 65 (“A district court's power to order a new trial is greater than its power to grant a motion for an acquittal Rule 33 authorizes a trial court to grant a new trial ‘ifrequired in the interest ofjustice ’ Here, as where, the motion is based on new or previously unavailable evidence, the defendant has 1192 In this analysis, the First Circuit in Montilla Rivera recognized that, while “[the prosecution] assert[ed] that [the defendant] did not exercise due diligence,” it is “[i]n this [assertion that] lies the problem Both the government’s arguments and the trial court’s ruling assume that [the witnesses} were available to testify at trial But [the defendant], who, it facially appears, had diligently attempted to secure their testimony, did not have the power to compel them to testify at his trial in light of their Fifth Amendment privileges once they changed their minds about testifying ' 1d at 1065 ‘ Given the ‘in the interests ofjustice standard of Rule 33,’ “the ‘newly discovered’ language of rule 33 encompasses evidence that was ‘unavailable’,” and “[ilt was an error of law for the district court to hold that the testimony of these witnesses was available per se Id 1|93 It is obvious that “there [i]s little distinction between evidence which a defendant could not present because he did not know of it and evidence which he could not present because the witness was unavailable despite exercising due diligence ’ Id at 1066 “We believe the better rule is not to categorically exclude the testimony of a codefendant who asserted [their] Fifth Amendment privilege at trial under the first prong but to consider it, albeit with great skepticism, in the context of all prongs of [the rule 33] test Momilla Riven? I [5 F 3d at 1066 194 While in Mantzlla Rivera the court disagree[d] with the decisions treating the belated statements ofcodefendants aimed at exculpating the moving defendant as per se insufficient under Rule 33[, the court] share[d] the general skepticism concerning those statements and {specifically noted that] the present opinion by no means confer[ed] any automatic right in such a case to a new trial or even to a hearing ” 1d at 1067 Recognizing that ‘ the judge may, of course, use the knowledge he gained from presiding at the trial, as well as the showing made in the motion," the unusual combination ofcircumstances ” Id The court reasoned, “there is, here, at least a facial showing ofcompliance with the other prongs sufficient to warrant further inquiry On its face, the proffered testimony in the affidavits is material, and the testimony, if believed, could lead to a different outcome, especially in light of the govemment’s sufficient, but underwhelming, case The new testimony, while it may not be true, is not inherently implausible ” 1d at 1066 1|95 The court further explained that “[t]he term ‘on its face’ is used deliberately here and with no suggestion that the codefendant’s newly available testimony is true That the codefendants waited a year to come forward hardly suppons the strength of their assertions ” Id at 1067 That being said, the court fimher noted that “there is enough to commit the matter back to the [trial] court, which itself, under the law, is responsible for weighing the factors under Rule 33 ” Id Montilla’s conviction rests almost entirely on the testimony of the DEA informant Only the informant places him in the small room, Montilla's other witnesses say he was repairing a car A hearing will be helpful where the matters presented by the proffer are not ‘conclusively refuted as to the alleged facts by the files and records of the case ’ The credibility of the witnesses is important Neither Calderon nor Zorriia testified before this is not a recantation of testimony situation where the court has had an opportunity to assess credibility Id Finally, the court reasoned, “[o]m judgment here turns on unusual circumstances including the weakness of the government’s case against the defendant, significant efforts to produce the codefendants’ testimony before his own conviction, and the plausible explanation as to why the evidence was not available earlier ” Id at 1067 68 Agreeing with the foregoing analysis in Mormlla Rivera, as well as its underlying rationale, we consider what reasons exist for Rivera’s failure to present this evidence at trial and whether these reasons excuse such a failure ii The Defendant Failed to Provide an Exeusable Reason as to Why the Evidence was not Presented at Trial or to Show that He Exercised Due Diligence 3’ 1‘96 “The terms ‘due diligence and ‘excusably ignorant refer to those circumstances where the movant was not able to [present] the evidence [at] trial, though all reasonable avenues had been pursued ’ Morton, 17 V1 at 275 (citing authorities) “To determine whether the movant exercised ‘reasonable diligence,’ we must carefiilly consider the factual circumstances ofthe case ’ Cimera 459 F 3d at 461 3‘ ” The usual situations in which known evidence IS not presented at trial result from either the non existence of such evidence, such as recantations of testimony, or the unavailability of the evndence, such as when a defendant is unable to determine a witness‘s legal name or a witness's location is unknown Because of this reality. courts often discuss ‘ due diligence ‘ and ‘excusable ignorance However, as Delbudge, 262 F 2d at 71 l, exemplifies, exceedingly rare cases may arise where evidence was neither unavailable nor non existent at the time of trial but still justifies the granting of a new trial As such, the discussion ofdue diligence should not be understood as delimiting the exclusive types of facts to be considered See generally Skepple v Bank ofN S 69 V I 700 738-43 (V I 2018) (discussing due diligence) " E g Lima, 774 F 2d at 1250( The proffered testimony also runs afoul of the ‘diligence prong of Iannelh because Sanchez and Rivera were friends of Jose s, one of whom resided directly across the street from the location of the incident It would seem that they could easily have been found in time for trial by the exercise of diligence '), Sampson, 94 F Supp 2d at 65! (‘We agree that the failure of a juror to disclose information during voir dire may qualify as newly discovered evidence under rule 135 While appellant may have established that the evidence was newly discovered and thus met the second prong of the five part test, he has failed to establiSh the first requirement Sampson did not allege facts from which the trial judge could infer that this information would not have been discovered at an LflIIlCl time if ho had been diligent As the niai count noted, the juron s questionnaitc was always available to the defense, as demonstrated by the ease with which a copy of it was obtained after counsel saw the juror dressed in a law enforcement uniform The juror s employment, job title, and statement that he was responsible for enforcing collection ofGovernment delinquent accounts was disclosed [and] available before and during voit dire )' KI apps 2001 WL 371 [2920 at '3 4 ( 'The defendant has not shown that it could not have been previously discovered despite due diligence During his investigation the investigator said that he learned [the witness] had left the island in November, 1997, leaving no forwarding address and could not be found At trial the defense never notified the count of its difficulty in securing these witnesses nor sought to invoke the court s subpoena power or seek a continuance This, the government argues, coupled with the one year window of time which the defense had to investigate the ease and locate witnesses prior to trial, militate against a finding of due diligence The court agrees Defendant presented no facts at the hearing on this motion that would convince this court that the defense took any affirmative steps to contact the witnesses after learning they had moved both witnesses also testified that they were very good friends of the defendant and had been for several years prior to his arrest Thus, this court is unconvinced that the defense, which had access to witnesses who were very close friends of the defendant, could not learn prior to trial that these witnesses had what the defense now deems to be exculpatory evidence (citing United States v DeLuca 137 F 3d 24 40 (lst Cir 1998) UnitedStates v 0m, 23 F 3d 2] 27 (1st Cir I994)» see Rogers 1|97 The mere fact that evidence was known is not sufficient Instead, a reviewing court must consider any reasons apparent in the context of the case for failure to present such evidence the first time around ”There may have been a variety oftactical or strategic reasons that the defendant would not [have pursued a line of questioning or presented certain witnesses in its defense case] ” Clmera, 459 F 3d at 461, e g , Benavente Gomez, 92] F 2d at 381 However, where there are justifiable reasons for a failure to present known evidence, such as cases when, inter aha,” the evidence was unavailable despite diligent efforts or when the evidence came into existence after the trial, e g , Vega Pelegrma, 60l F 2d at 2] (recantation oftestimony), the denial ofa motion for a new trial for no other reason than the defendant’s knowledge is an abuse of discretion If the decision was strategic or tactical, it is extremely likely the defendant waived any issue related to the failure to present that evidence, and this factor would weigh against granting the motion If the failure to present the evidence was beyond the defendant’s control despite diligent efforts, it is likely this factor will weigh in favor of granting the motion {[98 Here, this factor does not weigh in favor of granting a new trial The defendant was aware of all the evidence now identified, or he should have been aware of it It was the defendant‘s counsel who first questioned Coogle about her daughter’s medical treatment in Miami, and this " One example offacts warranting a new trial that did not involve unavailable or non existent evidence was Delbrzdge, 262 PM at 7| 1, where the court found excusable the failure to anticipate the significant role the existence (or nonexistence) ofa newspaper article would play in the prosecutions efforts to undermine the defense We note that, today, we do not decide either (1) when trial counsel s failure to present certain evidence is reasonable in spite of knowledge of its existence. as in Delb; :dge, or when such a failure is unreasonable amounting to ineffective assistance of counsel, see c g , United States v Blow" 982 F Supp 327. 330 (E D Pa 1997) (Defendant had instructed his attorney to call a witness at sentence whom the defendant believed would provide exculpatory evidence, thus warranting a lesser sentence Trial counsel refused to subpoena the witness because the witness would not provide an interview before the sentencing hearing "Defendant knew of the [witnesses’] allegedly exculpatory evidence before his sentencing hearing In fact, the decision of Mr Blount's attorney not to subpoena the [witnesses] is a major basis of petitioner s ineffective assistance ofcounsel claim ’), or (2) whether a new trial motion is an appropriate vehicle to present a claim of ineffective assistance of counsel, though other counts have entertained new trials motions on such questioning occurred at a pre trial hearing Yet, the defendant never sought a continuance or any other court assistance that would have enabled the defense to present this evidence at trial In particular, no motion to compel the prosecution to provide the defense with these medical records was ever filed Likewise, it was the defendant who first questioned Coogle about her roommates in Miami It was the defendant 5 counsel who stated that Coogle had lived with Mariela and Francisco in Miami; Coogle simply answered “yes” to the question containing all those facts While usually, the form of the question is insignificant, the fact that Rivera s counsel was able to ask such a question containing such facts demonstrates that Rivera was fully aware that Francisco existed and could testify that Coogle was in Miami during the relevant time Similarly, it was Rivera’s counsel, through yet another question, who was able to have Coogle confirm her association with “Kenny ” Again, the fact that Rivera s counsel could construct such a question demonstrates that Rivera was aware of Kenny and his knowledge ofCoogle 8 presence in Miami in June 2001 Importantly, it was Rivera’s counsel’s questions that established that Coogle worked at Wendy’s when she was in Miami 1|99 Considering this factual background and the fact that Coogle's identity was disclosed a full 32 days before trial, the inescapable conclusion is that the failure to present this evidence was strategic Several facts buttress this conclusion Rivera called Mariela at trial, and she testified that Coogle was never provided a key to the apartment in Miami, thus necessitating Mariela’s waking up every night to allow Coogle into the apartment Considering this routine, Maricla testified unequivocally that Coogle was in Miami for all of June 2001 Additionally, Coogle’s sister, Sandra Rivera, was called at trial and testified that she had received at least one letter together with some pictures from Coogle in June 2001 and that those had been mailed to St Croix birthday party on St Croix at the end of June 2001 Finally, this same witness testified that she had dropped her child off at their mother 5 home and picked the child up at that same home every day she had worked in June 2001 but had never seen Coogle at their mother’s home Ultimately, Sandra testified that Coogle was not on St Croix in June 2001 ’6 1100 In contrast, Coogle’s credibility was subject to unrelenting and brutal attacks First, the defense fully exposed Coogle’s drug use, which would have limited her ability to remember things accurately and would have undermined her credibility Second, the defense thoroughly reviewed Coogle’s inconsistencies in her statements over the years Third, while not entirely ludicrous, the defense did highlight just how implausible it is that a pregnant seventeen year old girl nearly at hill term and working at a fast food restaurant could have traveled several times between St Croix and Miami and coincidentally been a witness to a homicide while on St Croix 1]lOl The natural conclusion is that the defendant initially just did not believe the testimony of both Francisco and Melendez, or that the employment and medical record were significant given the strength of the evidence that Coogle was not on St Croix and the sheer improbability of her version of events However, a new appreciation ofthe significance ofany given item ofevidence is not newly discovered evidence See Clmem, 459 F 3d at 459 60 & n 9 (“At the outset, it is important to identify the ‘evidence’ at issue The relevant physical markings which represent the account numbers constitute evidence By contrast, an observation or conclusion—or, in the word of the District Court, an ‘appreciation of the significance' about those physical markings ’° The testimony of Coogle 5 Sister was undermined when she admitted that she could not say with 100% certainty that Coogle was never on St Croix during the relevant time While the jury may have given great weight to this, it could also have disregarded this statement Given that she testified that she dropped her child off in the morning and picked the child up in the evening, it is entirely possibIe that Coogle could have been sleeping when her sister came is not evidence The physical markings, in this case, include legible numbers, illegible marks, and blank spaces Those markings are of such a size as to be clearly visible without the aid of a magnifying glass After the trial, [the defendant] offered several observations and conclusions regarding the backs of the checks which he claims constitute new evidence None of these observations or conclusions are evidence (quoting BLACK’S L DICT 656 (4th ed 1957)» ’7 1|l02 Ultimately, the prosecution provided sufficient evidence to meet its burden as determined by the jury, even though Coogle s credibility was exhaustively attacked and subject to rigorous cross examination at trial Even more importantly, Coogle s testimony was corroborated She had testified that the murder happened near Grapetree Bay in an abandoned building with a pole at the center supporting its roof The investigators found an abandoned building in the exact location where Coogle had said the murder occurred, and the building was of such a design that its roof was supported by a pole in the center Additionally, Coogle testified about the generator in the building that had been used by Rivera and his accomplices to electrocute Williams, and the generator was found in the building Coogle consistently described the actual shooting (shot in the hand and mouth), consistently testified that she was so overwhelmed by what she saw she regurgitated; consistently testified that she and another woman cleaned up the victim’s blood; consistently testified that the victim’s body was dismembered and transported in garbage bags to the ocean, and consistently testified that she had traveled between St Croix and Miami in June 2001 Additionally, there was no disagreement regarding the timing ofthe victims’ disappearance ’ See also Peebles v Moses, 40 V I 75 78 (V I Super Ct 1999) ( The speed limit signs are not facts of which the defendant was excusany ignorant or excusany unaware The police report was introduced into evidence by Plaintiff it is not newly discovered evidence that the defendant was unable to locate had he used due diligence The report was available at trial for the Defendant 3 use, but defendant failed to utilize the repon in his defense in any meaningfitl manner After trial and in consultation with an attorney, Defendant now recognizes the possible $ 103 Instead, the identified evidence is merely cumulative in seeking to bolster the testimony of Coogle s sister and Mariela In fact. even ifclassified as rebuttal evidence, the evidence stiil lacks any significant exculpatory value The jury already heard two witnesses testify that Coogle was not on St Croix at the time of the murder How additional, less compelling evidence would somehow lead the jury to credit the defendant’s theory of the case is not apparent 1104 Moreover, the jury had a substantial basis for not crediting the defendant’s theory of the case, notwithstanding a conclusion that Coogle appears to have lacked credibility in some instances In fact, if a trial record can reveal a defendant’s theory of the case without a defendant explicitly stating that theory, no better example could be found The defense elicited Coogle’s lack of formal education never having obtained a high school diploma The defense repeatedly highlighted Coogle's loss of parental rights and how several of the child’s father‘s sisters (and the father) had been involved with Cooglc’s loss ofcustody both indicating that she had a motivation to be mendacious about her children’s father and that she was not a particularly moral or trustworthy person The defense also repeatedly underscored the fact that Coogle worked as an exotic dancer While engaging in lawful employment is not indicative of a character failing, the defense’s questioning certainly implied that a woman who pursues such employment is lacking in morals Finally, defense counsel repeatedly interjected and questioned Coogle about her drug and alcohol use and her ability to travel (both from a financial perspective and a physical perspective considering her advanced pregnancy) between Miami and St Croix Y [05 It is noteworthy that ajury would have had to find a truly absurd factual scenario applicable in order to discredit Coogle’s testimony entirely The defense presented the theory that Coogle, a drug using, heavy drinking “stripper,” was angry with Maximiliano because, while he stood by rights In retaliation, Coogle then concocted a story to get Maximiliano arrested, but she did not just implicate Maximiliano, she implicated him and four of his friends in the murder of Williams Yet, while Maximiliano 8 sisters played a pivotal role in Coogle’s loss of parental rights (at least by the version presented through defense questioning), Coogle did not retaliate against them Then in furtherance of her plot for revenge, Coogle either knew ofthis abandoned building in Grapetree Bay or went out and found a building that conveniently met all the needs of her concocted story of murder Certainly, it is without a doubt difficult to believe that a nine months pregnant, seventeen year old, high school drop out with limited employment was able to travel between St Croix and Miami, but it takes a truly astonishing disregard of reality to believe the defense 5 alternative explanation of events Moreover, given that the defense underscored Coogle‘s drug and alcohol addiction, this theory becomes even less viable because, if the jury credited the defense’s view of Coogle, it would have led to the belief that she would lack the intelligence and clarity to have concocted such an intricate web of deceit $06 Additionally, Coogle s testimony established her credibility When asked under oath in a public courtroom whether she had had her parental rights terminated, she readily admitted the truth about her termination of rights When asked about her drug and alcohol use, she readily admitted to both She did dispute whether she was using such drugs and alcohol during her pregnancy, and she unquestionably admitted that she was a drug user and alcohol drinker When questioned about being an exotic dancer, she readily acknowledged her employment While we fail to see how lawful employment is evidence of any moral failing such that a person would be considered dishonest, it would appear that the defense was appealing to negative societal judgments and stereotypes of women in such employment grounded in sexism and patriarchy In each of these 1107 Likewise, Coogle offered explanations for many of her inconsistencies, as did the various investigators who testified For example, the defense emphasized how Coogle had ‘ never mentioned” certain facts in all of her past statements However, one of the investigators testified that the initial contact with Coogle in Miami did not result in a written statement, it was explained that it was not the standard practice to take statements at such a preliminary stage The agent specifically testified that much of the “missing” information had been provided in the initial interview When cross examined about the variations in her descriptions of the murder and surrounding events, she explained that she had witnessed another homicide and had confused the two One of the investigators also testified that Coogle assisted with more than one homicide investigations 91108 Rather, the situation appears to be that the defendant miscalculated the probative value of the attacks on Coogle’s credibility and the testimony ofboth Coogle’s sister and Mariela, and now, after an adverse jury verdict, the defense seeks to bolster Coogle’s sister’s and Mariela's credibility with other corroborating evidence But regarding evidence from a different perspective is not newly discovered evidence and does not warrant the granting of a motion under Rule 33 See Lima 774 F 2d at 1250 [ll CONCLUSION 1109 Because the present defendant is unable to meet his burden as the movant in supporting the granting of a new trial based on newly discovered evidence, the denial ofRivera s motion was not an abuse of discretion, and the Superior Court 5 denial of his post trial motion for such relief is affirmed Dated uni?” day ofJanuary 2023 221E COURT : IVE ARLINGTg SWAN Associate Justice ATTEST VERONICA J HANDY ESQ Clerk of th ourt i By A ( 11% Deputy Clerk [I Date M