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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX THE PEOPLE OF THE VIRGIN ISLANDS Plaintiff) ) ) ) ) Defendant ) CASE NO. SX-10-CR-0000247 ACTION FOR: 14 V.I.C. 2253 Vs. JAMASON CHARLES TO: NOTICE OF ENTRY OF MEMORANDUM OPINION AND ORDER LAW LIBRARY KIPPY G. ROBERSON, ESQ. JUDGES, MAGISTRATES, LAW CLERKS . J<CLERK OF THE COURT, BOOK VERNEST E. MORRIS, JR., ESQ. Please take noticethat on June 16, 2010 a(n) MEMORANDUM OPINION AND ORDER dated June 15, 2010 was entered by the Clerk inthe above-entitled matter. Dated: June 16, 2010 ietia H. Velazquez, Esa. CLEBtk/OF THE SUPERIOR COURT SHARLENETURNBULL s COURT CLERK SUPERVISOR FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, Plaintiff, vs. JAMESON CHARLES, Defendant. CRIMINAL CASE NO. SX-10-CR-247 MURDER FIRST DEGREE; RECKLESS ENDANGERMENT FIRST; POSSESSION OF AN UNLICENSED FIREARM DURING COMMISSION OF A CRIME OF VIOLENCE Counsel: Kippy Roberson, Esq. Assistant Attorney General V.I. Department ofJustice 6040 Estate Castle Coakley St. Croix, VI00820 Attorneyfor Plaintiff Ernest E. Morris, Jr., Esq. Territorial Public Defender 1-B Clifton Hill, 2nd Floor St. Croix, VI00850 Attorneyfor Defendant BRADY, Julio A., Judge MEMORANDUM OPINION AND ORDER Thismattercamebefore the Court on May 17,2010 for a Hearing on thePeople's Motion For Detention. FACTUAL AND PROCEDURAL BACKGROUND OnMay6,2010,thisCourt issued anarrest warrant fortheDefendant, Jameson Charles, for the crimes of Murder in the First Degree, in violation of 14 V.LC. § 922(a)(1), Reckless Endangerment in the First Degree, in violation of 14 V.I.C. § 625(a), and Possession of an Unlicensed Firearm During the Commission of a Crime of Violence, in violation of 14V.I.C. Memorandum Opinion And Order People v. Charles, SX-10-CR-247 Page2of 11 § 2253(a). A search warrant was also issued, andbail was set at $125,000.00. On the People's Motion, the affidavitsupportingthe arrestwarrantwassealed. Defendantwasarrestedonthewarrant onMay 8,2010, and wasadvised ofhisrights by theHonorable Harold W. L.Willocks onMay 10, 2010. DefenseCounsel moved for hisrelease. The People objected to the Motion for Release, and further requested aDetention Hearing. A Detention Hearing was scheduled for May 11, 2010by JudgeWillocks, who, becauseofotherpendingmatters, askedtheundersignedtohearthe Detention Motion. OnMay 10,2010,thePeople filed aformal Motion AndMemorandum InSupportOfMotion To DetainWithout Bail. Also,thePeople filed a"Motion ToContinue Pretrial Detention Hearing" onthesame date. TheAssistant AttorneyGeneral assigned tothecase represented that hereceived this assignment on May 10, 2010 and, accordingly, needed "more time to properly prepare the evidence of the case for presentation to the Court." This Court granted the People's Motion to Continue byan Order signed on May 10,2010 noting that the "Court believes itisinboth parties' bestinterest to continue ... to May 17, 2010." At that time and date, the Court wasunaware that Defense Counsel had filed an Opposition tothe People's Motion ToContinue onMay 11,2010. In point offact, this Opposition was not presented to the Court until Friday afternoon, May 14,2010. These circumstances wererevealed to the Parties beforethe start ofthe Detention Hearing. Defense Counsel requested that the affidavit accompanying thearrest and search warrants be unsealed, over the objection ofthe People. The Court granted the request and the Prosecutor provided Defense Counsel withtheaffidavit ofDetective Dino Herbert. 1 Memorandum Opinion And Order People v. Charles, SX-10-CR-247 The Peoplecalledonly one witness and presented no exhibits. Thus, this Court's decision on the Defendant'sdetention is predicated on the testimonyonboth direct andcross-examinations by thePeople's Counsel and Defense Counsel and the fewinquiries by the Court. The following is asummaryoftheevidencepresentedbythePeoplethroughDetectiveHerbert's Affidavit andsworn testimony, which the Court found to be probative. As will be discerned, most ofthe evidencewas either perceived by Detective Herbert (e.g., his description ofthe crimescene), orreceived directly by him (e.g., his interviews of Witness 1 and the confidential informant) in the course of his investigation.1 Detective Dino Herbert, athree (3) year veteran ofthe Homicide Division ofthe Virgin Islands Police Department on St. Croix, testified as follows: Detective Herbertwas dispatched to a reportedhomicide on March 16,2010 at about 1:30 a.m., on Fisher Street in Frederiksted. Upon his arrival, he observed a male lying on the ground. He recognized the body to be Dupert"Apache" Knowles, IQ. He statedthatthe Emergency Medical Technicianwho examined thebody reportedto him thattherewere no vital signs. He further stated that the victim had two (2) gunshot wounds to the back ofhis head and three (3) to his lower back. He saidon both directand cross examinations that the area where the corpse lay was well lighted. Detective Herberttestified that the Police securedthe scenebyhaving Police Officers direct traffic aroundthe areawhere thebodywas located. One ofthose officers told DetectiveHerbertthat, while atthe scene,the Defendantapproached him andinquiredifsomeone was deadatthatlocation and further indicated that this inquirywas made within fifteen (15) minutes ofthe shooting. The Detective identified the Police Officer by name. Any other testimony produced at the Detention Hearing not recounted herein the Court deemed to be insufficiently probative or reliable for the Court to consider. Memorandum Opinion And Order People v. Charles, SX-10-CR-247 Detective Herbert also said that during hisinvestigation aconfidential informant (who had provided him previously with reliable information) told him that the Defendant was making statements that he was responsible for Knowles' death. When asked by Defense Counsel if the statement was made by the Defendant to the informant, Detective Herbert's answerwas "yes." Detective Herbert also saidthathe spoke with an eye witness to the deathofMr. Knowles, who recounted that he observed the two (2) men (Defendant and Knowles) having a conversation when he was less than 30 feet from them and after hearing gunshots he saw the Defendant standing over the bodyofMr. Knowles clicking agun. That witness (whom he referred to asWitness 1) also said thattheDefendant resides nextto abakeryonKingStreet.2 DetectiveHerbert further testified thatWitness 1alsopicked out the photograph ofthe Defendantasthe shooter from aphoto array of six (6) individuals. Continuing his testimony, Detective Herbert then identified the Defendant sitting in the courtroom astheperson whose photograph Witness 1hadselected from the photo array. He stated thatWitness 1 alsotold him thatthe Defendantwas standingbehind the victim when he shot him. DetectiveHerbert further statedthathis examinationofthe corpseindicatedthatthe victim was shot at close rangebecause the wounds bore gunshot residue. Oncross-examination, DefenseCounselconductedavigorousandconscientious questioning ofthe Detective on all ofhis direct testimony. The Court specificallydid not permitthe Detective to identifyWitness 1andthe confidential informant. When questionedon the results ofthe Search 2Detective Herbert, inhisArrest/Search Warrant Affidavit, asserted thattheDefendant resided intherearof his mother's Sica Health Food Store and Restaurant located at 19A & 20 King Street, Frederiksted. In his testimony, he confirmed that Defendant's mother's business was next to a bakery. Memorandum Opinion And Order People v. Charles, SX-10-CR-247 Warrant issued along with the Arrest Warrant, Detective Herbert admitted that no gun was confiscated. After the People rested its case, the Defense offered no witnesses or evidence, but made a closingargumentrecommendingdenial oftheDefendant'sdetention. ThePeoplemadenorebuttal. The Court suggested written submissions ifthe Parties were so inclined, and took the matter under advisement. No submissions were made by either Party. At the conclusion of the Hearing, the Court, at Defense Counsel's request and without objection by the People, arraigned the Defendant and entered his 'not-guilty' plea and demand for a speedyjury trial. STANDARD OF REVIEW In the Tobalcase (filed February 11,2009), the Supreme Court invalidated the long-standing practice ofthe Territorial Court andnow Superior Court ofdetaining defendants charged with other major feloniesand limitedpre-trialdetentiononlyto defendantschargedwithFirstDegreeMurder. Tobal v. Peopleofthe Virgin Islands, 51 V.1.147 (VI2009). Inapriordecision, Browne v. People ofthe Virgin Islands, 50V.I.241 (VI2008),whereintheDefendant/Appellantwascharged withand ultimatelyconvictedby ajury of, amongother crimes, Murder First Degree,the Court set forth the applicable law on detention: [W]e hold that section 3 of the ROA governs the issue of pretrial detention for first degree murder defendants in local Virgin Islands courts, and that title 5, section 3504a is inapplicable to the extent that it purports to grant pretrial bail for defendants charged with first degree murder in the Superior Court under Virgin Islands law where the proofis evident or the presumption great. Browne, 50 V.I. at 257-258. Memorandum Opinion And Order People v. Charles, SX-10-CR-247 Id. at 261. Although articulating the standard in various ways, the overwhelming majorityofstatesrequireevidencethatis greaterthan probable cause, but less than beyond a reasonable doubt. In a later case wherein our Supreme Court remanded a detention determination by a trial court, it cited approvingly from a First Circuit Court ofAppeals case: Facedwith the government's reliance upon hearsayevidence at apre trial detention hearing, the First Circuit Court of Appeals aptly explained the reasoning behind the admissibilityofhearsay evidence at such proceedings: [the] authority rests primarily upon the need to make the bail decision quickly, at a time when neither party may have fully marshalled all the evidence in its favor. It may also reflect the realization that at least some hearsay on some occasions may be fairly reliable, perhaps more reliable than certain direct evidence. For example, well-kept records, though hearsay, may be more reliable than eyewitness accounts of, say, a road accident on a foggy night. In any event, the need for speed necessarily makes arraignments, "probable cause" determinations, and bail hearings typically informal affairs, not substitutes for trial or even for discovery. Williams v. People, 2010 WL 1565533 (V.I.), *6 (VI April 19, 2010) quoting United States v. Acevedo-Ramos, 755 F. 2d 203,206 (1st Cir. 1985) (emphasis added). Relying upon the Uniform Rules of Evidence (5 V.I.C. §§ 931-935) which permit the admission ofhearsayatpre-trialdetentionhearings, theBrowne caseupheldthetrialcourtaccepting hearsay testimony in its detention hearings.3 In its unanimous Opinion issuedon April 19,2010, 3The passage bythe Legislature ofAct No. 7161 (sections 15(a) and (b)) onMarch 23,2010, and itsapproval by the Governor on April 7, 2010, replacedthe UniformRulesof Evidenceand made the Federal Rules of Evidence applicableto the Superior Court in criminal cases. The substitutionofthe Federal Rules ofEvidence by legislative fiat wouldnotnegatetheCourt's decisionsinBrowneand Williamstopermithearsayevidenceinpre-trialdetentionhearings. Memorandum Opinion And Order People v. Charles, SX-10-CR-247 the Supreme Court succinctly set the standard that must befollowed bytrial Judges in making a determinationon detentionhearingsas this one: Wehold that, when the People elect to present exclusively hearsay evidence at a pre-trial detention hearing, the trial court, when determining whether the evidenceis clearand convincing,must undertake by whatever means are appropriate under the circumstances to ascertain the reliability of the underlying hearsay statements when their accuracy is in question. Williams at 10 (emphasis added). Significantly, the Court added this caveat: [T]he trial judge should focus on the strength of the People's evidence,ratherthanthe defendant's ultimateguiltor innocence,and may not resolve direct conflicts as to inculpatory and exculpatory facts. Williams at 3 (citation omitted). DuringtheHearing,Defense Counsel objected several times to the use ofhearsaytestimony. However, there is a wealth ofauthority both in the Federal Rules ofCriminal Procedure as well as relevant case law that allow for such testimony to be considered. Title 18 U.S.C. § 3142(f), under the heading of Detention Hearing, clearly states that in such hearings, "[t]he rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information atthehearing."SeeUnitedStates v. Perry, 788F.2d100, lOo^Cir. 1986) (18U.S.C. § 3142(f) "explicitly permits use of evidence [in pre-trial detention hearings] that would not be permissible in a criminal trial"); see also United States v. Delker, 757 F.2d 1390, 1397 (3rd Cir. 1985); and see People v. Matthew, 49 V.I. 285 (Super. Ct. 2008). Moreover, as previously stated, the Browneand Williams cases, supra, expresslypermit hearsay evidence in detention hearings. The Memorandum Opinion And Order People v. Charles, SX-10-CR-247 People objected to the Defense Counsel's questions seeking disclosureofnames ofwitnesses and informants. These objections were sustained for several reasons. Witness disclosure is heavily protected under the Federal Rules of Criminal Procedure. Under 18 U.S.C. § 119(a), revealing personal information about a"covered person" is a crime punishableby imprisonment ofno more than five (5) years. The definition ofa covered person in 18 U.S.C. § 119(b) includes informants or witnesses. It is clear that these statutes are aimed at maintaining the safety of informants and witnesses so that justice can ultimately be served. Furthermore, the statements made by the government witnesses or prospective government witnesses are similarly protected for safety reasons. Under 18 U.S.C. § 3500, no statement by any government witness, other than the defendant, can be the subject of subpoena, discovery, or inspection until after the witness has testified on direct examination in the trial of the case. Only after such testimony on direct examination has occurredcanthe defense petition the government to producethe statements ofthe witness. The realityin this caseis that the Defense Counsel was given the Affidavit ofDetective Herbertwho was the sole testifier at the Detention Hearing. Given the natureofthe crime alleged against the Defendant - allegedly a revenge killing - the Government had ample justification to protect theidentity ofits prospective trial witnesses.4 The onlychargewhich makestheDefendanteligibleforpre-trial detentionistheFirstDegree Murdercharge. CountOneoftheInformation charges"That Jameson(Jama) Charles didunlawfully andwith willful, deliberate and premeditated design, kill Dupert "Apache" Knowles, m, a human ^e front page article inthe June 13-14, 2010 edition ofThe St. Croix Avis informs the reader: "Within the past year, fromJune 2009 to June 13, 2010 there have been 63 homicides throughoutthe Territory." This horrific statistic provides thelegitimate obligation oftheProsecution andtheCourts toprotecttheidentity ofwitnesses (atleast at this stage) to preserve the integrity ofthe criminal justice system. Memorandum Opinion And Order People v. Charles, SX-10-CR-247 Page9ofll being, by shooting him with a firearm in the back ofthe head and lowerback."See Information, filed May 6, 2010. The following recitation consists ofthe evidence that the Court deemed to be both probative and reliable in evaluating the People's Motion For Detention. DISCUSSION Detective Herbert, as an experienced homicide investigator, observed that the gunshot wounds ofthe victim were caused by a gun fired at very close range due to the presence ofgunshot residue. This testimony is corroborated by the statement given to the investigatorby Witness 1who said that the Defendant (whom he knew personally) was standing behind the victim when he shot him and was clicking his gun over the prostate body of the victim after he had collapsed on the ground. Also, Detective Herbert repeated the statement in his Affidavit that he provided Witness 1 with a six (6) picture photo array, and that Witness 1 identified Defendant's photo as the shooter. Moreover, Detective Herbert said that the Emergency Medical Technician who responded to the call examined the victim in his presence and stated he found no vital signs. In his Affidavit, Detective Herbert reported that Dr. Fernando Landron, the Territory's Forensic Pathologist, performed an autopsy on the victim and concluded that he died as a result of five (5) gunshot wounds, removed five (5) projectiles from the corpse, and concluded that the manner ofdeath was homicide. Finally, when Defense Counsel questioned Detective Herbert about the autopsy report, both Detective Herbert and the Prosecutor acknowledged that an autopsy was performed on the victim but that it had not as yet been delivered to the Attorney General's Office. Detective Herbert, in both his Affidavit and his testimony, said that he interviewed an informant who told him that the Memorandum Opinion And Order People v. Charles, SX-10-CR-247 Defendanthadsaidtohim(the unnamed informant) thathe(the Defendant) hadkilled Knowles due to his beliefthat Knowles had killed someone named Vincent "Sensi" Johnson. TheCourt'stasknowis to determine theprobative value of the evidence produced at the hearing asto the essential elements of FirstDegree Murder withwhichtheDefendant is charged. Unlawful Killing The evidence adduced at the Detention Hearing clearly and convincinglyshows that the victim was shot at close range with a gun inflictingwounds to the back of his head and his lower back, resulting in his death. Nothing in this scenario suggests - much less interposes - any other cause ofdeath such as accident or any lesser degree ofmurder or manslaughter. Wilful. Deliberate and Premeditated Design In addition to the above analysis, the hearsay statement given by Witness 1that he witnessed the shootingofthe victim by the Defendant leaves no rational explanation for the killing other than malicious intent, which ultimatelywill be determined bythe triers offact. The eyewitness account, at this stage, is buttressed by the hearsay statement by an informant who told the investigator that the Defendant had told him that he had killed the victim due to his beliefthat the victim had killed another human being (Vincent "Sensei"Johnson). While the People bear no burden ofestablishing a motive for the murder, it is more likely than not to be an issue that will be raised at a jury trial. Also, the autopsy referenced in Detective Herbert's probable cause Affidavit reveals that five (5) firearm projectiles were taken from the body of the victim. This degree of violence supports the People's charge that the Defendant's intent was to kill the victim. Memorandum Opinion And Order People v. Charles, SX-10-CR-247 CONCLUSION Based on the evidencepresented at the DetentionHearing and applying the criteriaset forth most recently in Williams, this Court concludes that there is a substantial probability that the Defendant, Jameson Charles, committed, among other crimes, Murder First Degree against Dupert Knowles on March 16, 2010 as charged by the People in the Information. In recognition ofthe Supreme Court's caution about resolving conflicts between "inculpatory and exculpatory facts," this Court concludes that there were no such conflicts in this case. Indeed, the only significant non-inculpatory testimony was Detective Herbert's admission that no gun was recovered by the searches that he executed pursuant to a warrant in an attempt to locate the murder weapon. This testimony does not establish a "fact" in this Court's estimation and, moreover, is merely non-probative, not exculpatory in nature. Accordingly, the premises considered, it is hereby ORDERED that the People's Motion for Detention is GRANTED. It is further ORDERED that the Defendant is detained pending his trial on the charge of First Degree Murder. ORDERED that a copy of this Order be served on all the parties. Dated: June /fT, 2010 ATTEST: VENfilfo H. VELAZQUEZ, ESQ. Clerik/fthe Court wAjJ ^UalUu Court Clerk Supervisor bfa/io CERTI ,H. )WM=Ll^ 20/CL VEI&&A HrVELAZQUEZ, ESQ. Court Clerk