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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX PEOPLE OF THE VIRGIN ISLANDS ) CASE NO SK 2012 CR-076 ) Plaintiff, ) ) V ) ) JOSE VENTURA, ) ) Defendant ) ) Cite as 2020 VI Super 63 Appearances JOSEPH PONTEEN, ESQ Chief Deputy Attorney General Virgin Islands Department ofJustice Christiansted V1 00820 For People ofthe Virgm Islands RONALD D WOOD, ESQ The Wood Law Office Show Low AZ 85901 For lose Ventura' MEMORANDUM OPINION (Filed June 3 2020) DONOHUE, SR., Senior Sitting Judge 1ll THIS MATTER is before the Court on remand from the Supreme Court of the Virgin Islands for this Court to “consider in the first instance,” Ventura v People, 64 V I 589, S96 (2016) (“Ventura [1”), the new trial motion Jose Ventura (“Ventura”) made after the jury found him guilty of first degree murder “Although Ventura’s co-defendant, Jose Rivera (“Rivera”), did not file a motion for new trial, the ' Daniel J Cevallos Esq , was counsel ofrecord when the motion addressed herein was filed Attorney Cevallos withdraw with permission on appeal and Ronald D Wood, Esq was appointed in his place On remand, Attorney Wood was granted leave to withdraw for personal reasons and Ernest E Morris, Jr , Esq was appointed Attorney Morris later withdrew, and Attorney Wood was reappointed since his personal matter had been resolved by then Page 2 of29 Supreme Court nonetheless remanded his case as well, concluding that ‘it would be manifestly unjust to deny Rivera the same opportunity Simply because his counsel failed to make the same argument ”’ People v Rivera 68 V I 393 396 97 (Super Ct 2018) ( Rivera 111’ ) (quoting Rivera v People 64 VI 540 587 (2016) (“Rivera 11”» On remand, Rivera filed his own motion for a new trial based on newly discovered evidence, which this Court has denied in a separate opinion of even date See People v Rivera, 2020 VI Super 64 For the reasons stated below, Ventura’s motion for a new trial W11] also be denied FACTUAL AND PROCEDURAL BACKGROUND 112 The factual and procedural background of this case has been summarized in prior opinions of this Court and the Virgin Islands Supreme Court See generally People v Ventura SX 12 CR 076 2014 V I LEXIS 53 (V I Super Ct July 25 2014) ( Ventura 1’) 01721 In part and rev d on other grounds by Ventura I] 64 V I 589 see also People v Rivera SX 12 CR 063 2014 V1 LEXIS 49 (V I Super Ct May 1, 2014) (“Rwera I”), afi’dmpart and rev don other grounds by Rivera II, 64 V I 540 Ventura and Rivera were charged and convicted of first degree murder for the 2001 kidnapping and killing of Virgin Islands Police Corporal Wendell Williams They each moved for judgment of acquittal after the jury returned its verdict, which this Court denied See generally Ventura I 2014 V I I FXIS 53 Rivera I, 2014 V I LEXIS 49 Ventura also moved for a new trial, which the Court denied “but not on the merits Rather, because Ventura’s motion was ‘untimely filed,’ the Court ‘declined to address the substance ”’2 Rivera I]! 68 V I at 397 (brackets omitted) (quoting Ventura 1 2014 V I LEXIS 53 at ”‘62) Ventura and Rivera each were sentenced to a term of imprisonment for life 113 On appeal, the Supreme Court affirmed their convictions but “concluded that denying Ventura’s motion for a new trial as untimely was in error because the People ‘did not object to the late filing’ and 2 Ventura had only filed one document but mcluded two requests within that document a motion forjudgment ofacquittal and a motion for a new trial Page 3 of29 had waived the ‘defense of untimehness ”’ Rivera III, 68 VI at 398 (quoting Ventura 11, 64 V I at 617) Both cases were remanded for this Court to consider Ventura’s motion on its merits On remand, the Court granted the parties “leave to supplement their respective motion papers ” Rivera III, 68 VI at 399 (quotation marks, brackets, and citations omitted) Ventura requested and was granted leave “to supplement to his motion papers with his appellate brief” Id at 401 Otherwise, the parties did not supplement their respective positions on remand DISCUSSION A The People’s Surresponse 1|4 Before turning to the merits of Ventura’s motion for a new trial, the Court must first explain why the People’s surresponse to that motion must be reinstated Initially in addressing Ventura’s motions, the Court struck the People’s surresponse because it was filed without leave See Ventura, 2014 V I LEXIS 53 at *63 See Ventura, 2014 V I LEXIS 53 at *63 (“Because Ventura was the movant, the People were only allowed to file a response in opposition to his motion Their Reply to Ventura’s Reply was filed Without leave of com Accordingly, the Court struck it from the record and did not consider it in reaching its decision ”) There is no question that the Court had the authority to strike the surresponse because “‘a court has inherent authority to strike any filed paper which it detemiines to be abusive or otherwrsc improper under the circumstances ’” People v Roberts, 70 VI l68, 172 (Super Ct 2019) (quoting In re Asbestos Catalyst & Silica Toxic Dust Exposure Lilig , 68 V l 507, 515 (Super Ct 2018) But courts are not obligated to strike papers filed late or without permission, or even by non parties Cf. 1d (“‘[I]it does not follow that courts should always strike untimely filed papers just because they were filed late (quotmg Der Weer v Hess 011 VI Corp 64 V I 107 127 (Super Ct 2016)) accord In re Alumina Dust Claims, 67 V I 172 188 (Super Ct 2017) ( Documents filed by nonparties can be stricken from court files ” (emphasis added» Instead, the decision to strike papers from the record is discretionary Page 4 of29 See Der Wear, 64 V I at 127 (“A pleadmg or other paper on file, that is so defective in form, or so improper in substance, that it ought not to be placed on file, or a pleading or paper placed on file without right to file it, may, on motion, be stricken from the files, and the court may, sua sponte, order such pleading or paper stricken from the files The court has control of its files and its records, and the object of an order striking pleadings or papers from the files is Simply to disencumber the files and the records of the court ofpapers that are in themselves improper and objectionable, or that are improperly placed on file ” (ellipsis and citation omitted» Thus, since the decision to strike something from the record is discretionary, courts can disregard late filed papers or papers filed without permission instead of striking them See Roberts, 70 V I at 172 (“[W]hen motion papers are filed late, courts can strike them, or dismiss an untimely motion or disregard an untimely response or reply ” (citation omitted», accord In re Kelvm Manbodh Asbestos Ling Series Case No SX 97 CV 514 et seq 2018 V1 LEXIS 96 I"16 n 14 (V I Super Ct Sep 19, 2013) (deciding to disregard rather than strike an opposition filed by a nonparty) 15 As noted, the Court struck the People’s surresponse because it was filed without leave and “only a motion, a response in opposition and a reply are allowed unless leave of court is granted ” Ventura I, 2014 VI LEXIS 53 at *63 (citing D VI Local R Civ P 7 1(a) D VI Local R Crim P 1 2 and Super Ct R 7) But more importantly, Ventura had raised new arguments in his reply to support his motion for a new trial (Cf People 3 Reply to Def ’5 Reply Br 4, filed Mar 12, 2014 (hereinafter “Surresponse ) (“Ventura now raises a new reason that he is entitled to a new trial that was not in his original Motion for New Trial ”)) Generally, “it is improper for a party to raise an issue for the first time in a reply brief in Superior Court because the opposing litigant is not, as a matter ofcourse, given an opportunity to respond to that new argument under the rules governing standard motion practice in Virgin Islands trial courts ” Brazthwarte v Xavier, 71 V I 1089, 1100 (2019) For this reason, arguments raised in reply papers are generally deemed waived See 1d (citing Perez v R112 Carlton VJ Inc 59 VI 522, 528 n 4 (2013)) Page 5 of29 Rather than notify the Court that Ventura waived his new argument because he raised for the first time in his reply, or request leave to respond, the People instead filed a surresponse without leave and addressed the argument on the merits The Court struck rt, acting sua sponte On further reflection, the Court finds that it must reinstate the People’s surresponse Three reasons support this conclusion 16 First, the People filed their surresponse on March 12, 2014 The order striking it was entered on April 10, 2014 In the intervening weeks, Ventura did not move to strike it or object He may have forfeited the right to object Accord Ventura 11, 64 V I at 617 (“When a party fails to raise a defense ofuntimeliness, thereby forfeiting that defense, a court should proceed to the merits ofa case Here, the People admit that it did not object to the late filing of Ventura's motion for a new trial, and the Superior Court should have proceeded to address the merits ofthe motion ” (citations omitted» But more importantly, by responding to Ventura’s arguments on the merits, the People waived the right to claim that Venture waived his new argument Cf Webster v FirstBank P R 66 VI 514 518 n 2 (2017) ( [The fact that FirstBank has bnefed the issue on the merits without contending that the issue has been waived is sufficient for FirstBank to have waived waiver ” (citing Simpson v Golden, 56 V I 272, 281 n 6 (2012)) Thus, striking the surresponse sua sponte may have been in error Cf Brarthwazte 71 V I at 1100 (noting that generally the Superior Court should let the parties be heard before acting sua sponte) (citing Malloy v Reyes, 61 V I 163 175 (2014)) 117 Second, complying with the Supreme Court’s mandate may require reinstating the People’s surresponse In remandmg this case to the Superior Court, the Supreme Court, technically, did not reverse or vacate any portion ofthe April 10, 2014 order that struck the People’s surresponse and denied Ventura’s post trial motions (Cf Order 1 2 entered May 4 2016 Ventura v People S Ct Crim No 2014 0021 (“AND NOW, consistent with the Opinion ofeven date, it is hereby ORDERED that the Superior Court’s May 2 2014 judgment and commitment is AFFIRMED but that this case is REMANDED so that the Page 6 of29 Superior Court may consider on the merits the issue of whether a new trial should be granted in the first instance ”) )To be clear, this Court denied, not dismissed, Ventura’s motion for a new trial 3 By remanding Ventura’s motion to this Court to consider it, the Supreme Court had to implicitly vacate the portion of the April 10, 2014 order that denied the motion The Supreme Court did not “order[] the complete opposite,” Hon Jon 0 Newman, Decretal Language Last Words ofan Appellate Opinion 70 Brook L Rev 727, 728 (2005), ie , that Ventura be given a new trial Instead, the Court remanded for a merits determination, which implies that the Court’s denial of the motion had to have been implicitly vacated Cf In re Morin, 45 A 3d 39, 41 (Vt 201 l) (“The power to remand is essentially connected with the power to vacate ) In general, vacatur ofan order has the effect ofreinstating the status quo ante See id (“When a court vacates and sets aside ajudgment, that eliminates the judgment and thereby returns the case to its status before thejudgment was made In many circumstances, this will leave a case in a procedural posture such that it requires further proceedings in the original court ”), accord Deprms v Clark, 566 F App'x 608, 611 (9th Cir 2014) (“Vacatur of an order creates a legal status the same as if the order never existed ) Wagner v Wagner 604 N W 2d 605 610 (Iowa 2000) (marriage reinstated) ( [11f ajudgment or decree of divorce is vacated or annulled, the marital rights, obligations and status of the parties are revived and restored The vacation ofthe decree places the parties in the status in which they were before the divorce ’ (citation om1tted)), People v Cosme, 599 N E 2d 678, 678 (N Y 1992) (criminal charges reinstated) (“vacatur ofthe defendant’s conviction had revived all ofthe counts in the indictment ”), Manx 3 Generally, if a court lacks authority to rule on a motion, the motion is dismissed, not denied Cf Paul v Rama» S’upply Co No SX 97 CV 329 2017 VI LEXIS 106 *8 (V 1 Super Ct July 13 2017) (stipulation for dismissal filed by nonparties) (“[T]he Court cannot grant or deny relief here Consequently, the stipulation must be dismissed ”), see also Der Weer v Hess 011 V I Corp , 60 V I 91, 98 (Super Ct 2014) (pending motions can either ‘ruled upon dismissed, or withdrawn ’ (emphasis added) (quoting 56 Am In: 2d Motions Rules and Orders § 31 (2010)) Denying a motion even as moot technically constitutes a ruling Cf Arno v Hess Corp 71 V I 463 486 88 (Super Ct 2019) In this instance the Court denied Ventura 8 motion for a new trial See Ventura 1, 2014 V l LEXIS 53 at ‘62 (“Because the Court denies the motion for new trial as being untimely filed, the Court declines to address the substance of the motion ”) Having concluded that the Court lacked the authority to consider the motion because it was untimely, dismissmg it, rather than denying it, may have been more appropriate Page 7 of29 Med P C v Am Transzt Ins Co 957 N Y S 2d 636 636 (App Term 2010) (summary judgment motion reinstated) (“The order granted defendant’s motion to vacate ajudgment and the underlying order granting plaintiff’s motion for summaryjudgment on default and, upon such vacatur, restored plaintiff‘s motion to the calendar ”); see also Bromberg v People, 136 Ill App 602, 603 (1907) (vacatur of vacatur reinstates mitial order) Accordingly, for this Court to be able to consider Ventura’s motion on the merits, the Virgin Islands Supreme Court had to have implicitly vacated this Court’s denial of Ventura’s motion and reinstated status quo ante Reinstating the status quo ante might also have implicitly remstated the People’s surresponse 1|8 Third, and most importantly, even ifthe Supreme Court’s mandate did not implicitly reinstate the People’s surresponse, the Supreme Court nonetheless remanded Ventura’s motion to this Court to render a ruling, which would be incomplete without considering the People’s surresponse The crux ofVentura’s argument for a new trial is in his reply, which is why the People filed a surresponse (See Surresponse 4 (“Ventura now raises a new reason that he is entitled to a new trial that was not m hzs magma] Matronfor New Trlal ” (emphasis added» ) In other words, Ventura’s initial “argument” for a new trial was perfunctory, spanned two pages,4 cited the wrong rule, and consequently relied on non binding authonty, " Ventura s entire argument for a new trial was as follows Defendant incorporates each and eVery argument, fact, and allegation stated supra as if fully restated herein at length Federal Rule of Criminal Procedure 33(a) provides that a judgment may be vacated or a new trial ordered “if the interest ofjustice so requires ” Rule 33 expressly provides that the trial court in its broad discretion, may set aside a jury verdict to prevent a miscarriage ofjustice See also, United States v Perez, 2003 WL 721568 *3 (S D N Y Feb 28 2003) (citations omitted) “In considering a Rule 33 motion, the district court must strike a balance between weighing the evidence and the credibility of witnesses and not wholly usurpmg’ the role of the jury Because a court generally must defer to the jury’s resolution of conflicting evidence and assessment of witness credibility, ‘[i]t is only where exceptional circumstances can be demonstrated’ that a trial judge may intrude upon a jury’s factual determmations ” Id (citations omitted) While courts may disfavor motions for new trials and exercise “great caution” before granting them “any error which would require reversal on appeal is a suflicient basis for granting a new trial United States v Stmer 765 F Supp 663 664 (D Kan 1991) Therefore, Rule 33 “may be applied when the ma! court does not believe that the evtdence supports thepay 3 Page 8 of29 leaving the Court 1n the positron ofhavmg to scour the record to make his argument for him, contra Lrtwin Corp v Universal Oil Prods Co , 69 V I 380, 387 (Super Ct 2018) (“[N]o court can make a movant’s arguments for him when he has failed to do so ” (quotanon marks and citations omitted», or find the argument waived Cf Hess Oil VI Corp v F[nor Daniel, 2020 VI Super 50 1| l9 ( ‘[A]rguments or issues not raised by the movant or inadequately briefed are generally deemed waived ”) Again, however, rather than that Ventura waived his request for new trial by not adequately briefing it, cf Toussaint v Stewart, 67 VI 931 945 n 10 (2017) Antilles Sch Inc v Lembach 64 VI 400 428 n 13 (2016) the People instead submitted a perfunctory response in opposition.’ Only m his reply did Ventura truly develop his verdict United States v Brodie, 268 F Supp 2d 420 424 (E. D Pa 2003) citing United States v Dixon 658 F 2d 18] 193 (3d Cir I981) (emphasis added) When considering a motion for a new trial, “the trial judge can consider the credibility of the witnesses and the weight ofthe evidence to insure that there is not a miscarriage ofjustice It has ofien been said that he/she sits as a thirteenth juror UnitedStates v Turner 490 F Supp 583 593 (E D Mich 1979) A district court can order a new trial on the ground that the jury’s verdict is contrary to the weight ofthe evidence if it “believes that there is a serious danger that a miscarriage ofjustice has occurred, that is, that an innocent person has been convicted United States v Brennan 326 F 3d 176 188 89 (3rd Cir 2003) A district court’s power to grant a new trial is much broader than its power to grant a motion forjudgment of acquittal UnitedStatesv A LanoyAlston 974F 2d 1206 1211 (9th Cir 1992)‘ UnitedStatesv Capatr 980 F Supp [114 (S D Calif 1997) Unlike an insufficiency of the evidence claim when a district court evaluates a Rule 33 motion it does not View the evidence favorably to the government, but instead exercises its ownjudgment in assessmg the government’s case Brennan, 326 F 2d at 189 In other words, this Court sits as the “thirteenthjuror” and independently evaluates the evidence, including the credibility of witnesses Government of Virgm Islands v Derrrcks 810 F 2d 50 55 (3rd Cir 1987) Trbbs v Florida 457 U S 31 42 (1982) CONCLUSION For the above reasons, Defendant Jose Ventura respectfully requests this Court enter ajudgment of acquittal, or, in the alternative, order a new trial (Def 3 Post Verdict Mots Pursuant to Rules 29 & 33 ofFed R Crim P Submitted Prior to Receipt ofTrial Tr ; Mot for Ext ofTime to Supp Post Verdict Mots Upon Receipt ofTr & Reservation of Right to Supp Upon Receipt of Tr 21 22 filed Feb 21 2014 (alterations in origmal)) 5 The People’s response in opposition was When assessing a motion pursuant to Fed R. Grim P 33(a), the Court “exercises its own judgment in assessing the Government’s case However, even if [the Superior Court] believes that the jury verdict is contrary to the weight ofthe evidence, it can order a new trial only if it believes that there is a serious danger that a miscarriage ofjustice has occurred—that is that an innocent person has been convicted UnitedStates v Silveus 542 F3d 993 1004 l005 50 VI 1101 (3d Cir 2008) Page 9 of29 argument, devoting four out oftwelve pages to explaining why he should be granted a new trial, allegedly because several witnesses perjured themselves Since the People responded to Ventura’s new argument, the Court believes that the safer route—under the unique circumstances presented here—is to vacate the portion of the April 10, 2014 order that struck the People’s surresponse, reinstate it, and consider it tn ruling on the merits The Court cannot presume that the Supreme Court remanded this matter solely for the Court to issue a perfunctory denial Cf Lamson v United States, 24 F 2d 82, 87 (“[I]1t would be idle to return the record for the purpose ofpassing upon a motion that must be denied ”) B Ventura’s Motion for New Trial 1|9 In ruling on a motion for a new trial, the Superior Court “may weigh the evidence and the credibility of witnesses, and if the court determines that there has been a miscarriage ofjustice order a new trial Fahze v People 62 V I 625 632 (2015)(cit1ng People v Morton 57 V I 72 77 (Super Ct 2012)) On a new trial motion “the Superior Court is uniquely situated to weigh the credibility ofwitnesses especially where there is not an abundance of evidence indicating guilt and the credibility of witnesses is, at best, questionable ’ Ventura [1, 64 V l at 617 (citations omitted) And “[a] new trial must be granted when the verdict is against the interests ofjustice ” Gonsalves v People, 70 V I 812, 832 n 8 (citing Super Ct R 135) But when ‘a motion for a new trial [is] 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 that an innocent person has been convicted Perczval v People 62 V I 477 491 (2015) (brackets omitted) (quoting Stevens v People, 52 For the reasons discussed above, which the People incorporate as if fully restated heretn, there is no serious danger that a miscarriage ofjustice has occurred Given the evidence, there is no serious danger that an innocent person was convicted Thus, this Court should deny the defendant’s Motion for a New Trial (People 5 Opp n to Def 5 Mot l8 filed Feb 28 2014 (brackets in original» Page 10 of29 V I 294 306 (2009)) 110 As grounds for a new trial, Ventura contends that “at least three witnesses for the prosecution perjured themselves on the stand,” which “was apparent to all only after their testimony that perjury had occurred ” (See Def’s Reply Br to People’s Resp 9, filed Mar 5, 2014 (hereinafier “Reply”) ) Specifically, he claims that Teresa Coogle (“Coogle”), the primary witness and only eyewitness, as well as two other witnesses, Jimmy and Hector Davis (collectively “the Davis Brothers”), perjured themselves Relying on Iarrzson, Venture claims that a new trial should be granted if 1 The court is reasonably well satisfied that the testimony given by a material witness is false; 2 That without it ajury might have reached a different conclusion, [and] 3 That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial [(1 at 8 9 (quoting United States v Meyers 484 F 2d 113 116 (3d Cir 1973) (citing in turn Lamson 24 F 2d at 87)) 1|11 Ventura’s reliance on Lamson is misplaced, however, because Lamson concerns recanted testimony See LarrIs'on, 24 F 2d at 85 Neither Coogle nor the Davis Brothers recanted their testimonies Moreover Ventura failed to point out that the United States Court of Appeals for the Seventh Circuit overruled Lamson eight years before Ventura filed his motion See United States v Mitrzone, 357 F 3d 712, 718 (7th Cir 2004) (“Today, we overrule Lamson and adopt the reasonable probability test ”), vacatedon other grounds, 543 U S 1097 (2005) That would not preclude the Superior Court ofthe Virgin Islands, in the absence of binding precedent from the Supreme Court ofthe Virgin Islands or the Supreme Court of the United States fi'om following Lawson 6 Cf Hughley v Gov t ofthe VI 61 V I 323 337 ‘ Ventura’s motion would have raised a question of first impression whether the Virgin Islands should follow I am'son See Gov t of V1 v Luna 774 F 2d 1245 1251 n 4 (3d Cir 1985) (”The Lawson test has not been adopted by this Court. ) see also People v Stevens No ST 06 CR 157 2012 V1 LEXIS 42 ’12 (VI Super Ct Aug 17 2012)( [U]pon subsequent research, the Court has found that Lambert has not been clearly adopted in thisjurisdiction, but has merely been considered as persuasive authority where the newly discovered evidence suggests perjury by a material Page 11 of29 38 (2014) see Gov t ofthe VI v Connor 60 VI 597 604 (2014) (per curtam) (citing Banks v Int 1 Rental & Leasmg Corp , 55 V I 967, 977 78 (2011)) But since Ventura complains ofperjured testimony, not recanted testimony, Larrtson is not applicable here 1112 “All petjured relevant testimony is at war withjustice, since it may produce ajudgment not resting on truth In re Mzchael 326 U S 224 227 (1945) see also United States v Agurs 427 U S 97 103 (1976) (“[A] conviction obtained by the knowing use ofperjured testimony is fimdamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the United States v Small Crim No 88 146 1990 U S Dist LEXIS 18123 '6 n I (D V 1 Aug 30 1990)( lhe Court is aware that the Third Circuit has not flatly adopted the Lam'son rule ”) Nationally, two approaches have emerged to address recanted testimony whether the result‘ might” be different or “probably would’ be different without the testimony One approach has been to treat the recantation as a form ofnewly discovered evidence When a new trial is sought upon such evidence, the moving party must satisfy what has come to be known as the “Berry” test This multi part test named after the case of Berry v State, 10 Ga 511 (1851) includes a requirement that the new evidence probably would produce a different result Berry has been adopted in substance by most state and federal courts A second approach has been to treat recanted testimony as a problem distinct from newly discovered evidence Perjured testimony affects the integrity ofthe judicial process in a way that overlooked evidence does not. Moreover, while a rigorous standard for obtaining a second trial upon new evidence may bejustified as an incentive for the parties to marshal evidence and to present it at the first trial the parties need no such incentive to combat perjury The seminal decision establishing a distinct test for recanted testimony is Larrrson v United States, 24 F 2d 82 (7th Cir 1928) Those courts which fail to discern any functional difference between the recantation of trial testimony and the discovery of new evidence afier trial have applied the Berry test in both situations However, most courts now apply the Larrtson test to recanted testimony State v Lawrence 730 P 2d 1069 1071 72 (ldaho Ct App 1986) (paragraph breaks and all other citations omitted) see also State v Clark, 125 P 3d 1099, 1104 (Mont 2005) (“Since its creation, several courts have adopted the Larrtson test, combined it with the Berry test, or noted it without commitment as to its authority or applicability in their jurisdiction " (citations omitted» Some courts adopted Lam'son but modified it See eg State v Britt 360 S E.2d 660 665 (N C 1987) (adopting modified Lamson test) The most common modifications to the Larrrson test involve its second and third criteria As to the second, which looks to the materiality of the evidence, the typical modification is to require more than a mere ‘ possibility ’ that a jury might have reached a different conclusion Instead, the more stringent standard of probability” is applied The other common modification is to delete surprise as a separate criterion lhe one constant criterion under virtually every formulation of a test is that the trial court must itself be reasonably satisfied the challenged testimony or statements were actually false People v Schneider 991 P.2d 296 301 (Colo App 1999) (Briggs J dissenting) (citations omitted) rev d25 P 3d 755 (Colo 2001) Several courts continue to follow Lam‘son even afier the Seventh Circuit overruled it in Mrtnone E g Ortega v State 856 N W 2d 98, 103 (Minn 2014) ( Larrtson has been overruled but we continue to apply its test in cases involving witness recantation and false testimony (citing State v Caldwell 322 N W 2d 574, 584—87 (Minn 1982)) (other citation omitted» State v Jones No 9911016309 2008 WL 4173816 *16 n 102 (Del Super Ct Sept 3 2008) ( Although Delaware still adheres to the Lawson test, that test is applicable only where the witness recants ” (citations omitted» Because both tests concern recanted testimony, the Court does not have to decide what test to adopt Page 12 of29 judgment of the jury ” (footnotes omitted» Neither the prosecution nor the defense may knowingly present perjured testimony at trial See Napue v Illinois 360 U S 264 269 (1959)( The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction implicit in any concept ofordered liberty, does not cease to apply merely because the false testimony goes only to the credibility ofthe witness ); Nix v Whitesrde 475 U S 157 173 (1986) ( [There is no right whatever—constitutional or otherwise—for a defendant to use false evidence ” (citation omitted» 1113 Even if a witness does lie under oath, “[i]t need not obstruct or halt the judicial process For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact finding tribunal must hear both truthful and false witnesses ” In re Michael 336 U S at 227 28 However, if “undzsclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury,” then the conviction “must be set aside ifthere is any reasonable likelihood that the false testimony could have affected the judgment ofthe jury ” Agurs, 427 U S at 103 (emphasis added) (footnotes omitted) accord People v Ward 55 V I 829 842 (2011) (“A Gtglzo violation is a type of Brady violation in which the undisclosed evidence reveals that the prosecution knowingly made false statements or introduced or allowed trial testimony that it knew or should have known was false ”(quotation marks and citations omitted» With this background in mind, the Court examines the challenged witnesses’ testimony, begirming with the Davis Brothers (1) The Davis Brothers 1114 Concerning the Davis Brothers, Ventura does not point to any specific falsities in their testimonies Instead, Ventura claims that the Davis Brothers perjured themselves because the People expected them to lie and had “FBI impeachment witnesses lined up and waiting to testify after the expected false testimony of the Davis Brothers ” (Reply 11 ) Based on this (p81 don't Ventura concludes that the Court should be “reasonably well satisfied that the testimony given by these material witnesses is false,” 1d , that Page [3 of29 “[w]ithout the[ir] testimony ajury would have reached a different conclusion—though the standard is only that the jury Might have reached a different conclusion,” id at 12, and that Ventura was “taken by surprise ” Id Ventura emphasizes that he does not accuse the prosecution of misconduct See id at 9 (“Defense counsel is not alleging misconduct on the part ofthe prosecution in the perjury ofthe People’s witnesses ”) But even ifthe Court were to “assume that the People were unaware ofthe petjured testimony a new trial is [still] warranted if the testimony was material, and ‘the court is left with a firm belief that butfor the petjured testimony, the defendant would most likely not have been convicted ’” Id at 10 (emphasis added) (brackets omitted) (quoting UnitedStates v Wallach 935 F 2d 445 456 (2d Cir 1991)) 1[15 The People, in response, correctly point out that Ventura failed to show “what testimony was false and how defense counsel were surprised by such testimony ” (Surresponse 4) The People reject that Ventura’s trial counsel, Daniel L Cevallos, Esq , “an experienced criminal defense attorney, who is also a legal analyst and online columnist for CNN and HLN,” Id at 5, could claim surprise that “the Davis brothers testified that they did not have any knowledge of, and never had a conversation with any of the defendants, regarding the death ofCorporal Williams ” Id Even ifthe defense was surprised, Ventura was not prejudiced, the People assert See id (‘Further the Davis brothers testimony that they knew nothing about the murder of Corporal Williams was not prejudicial to Ventura ”) Since “Ventura cannot satisfy all three prongs in the Lamson case he cited,” id , “this Court should deny Defendant’s Motion for a New Trial because this is not a case where there IS a serious danger that an innocent person was convicted ” Id at 6 1|] 6 Although the People give short shrifito the testimonies ofthe Davis Brothers, their testimony does give the Court reason to pause Jimmy Davis (“Jimmy”) was arrested during the trial and charged ‘with corruptly influencing a juror ” Davis v People, S Ct Crim No 2014 0036, 2014 VI Supreme LEXIS 40 *1 (V 1 Aug 14 2014) (per curram) Despite the charge the People still called Jimmy to testify Page 14 of29 When he took the stand, Jirmny immediately asked to speak with a lawyer, but outside the jury’s hearing The Court recessed, reached out to the attorney appomted to represent him in the related case, Mark Milligan, Esq (“Attorney Milligan”), and asked if he could come to the courthouse The People had offered ermy transactional immunity and he would have to be advised of his rights first 1H7 In the interim, the People called Hector Davis (“Hector”) Hector had been flown in the night before from Texas, where he was serving tune on a felony conviction Shortly afier taking the stand, Hector too asked to speak to an attorney, but within the jury’s hearing The Court immediateiy recessed and conterenced with Hector and trial counsel in chambers Hector expressed concerns that he had not been fed until a few hours before coming to court and, more importantly, about his testimony He asked to speak With the attorney who had been appointed to represent him years earlier in another case Court records showed that his prior attorney was Thomas Alkon, Esq (“Attorney Alkon”) Hector implied, but did not state directly that his prior case was connected with this case against Ventura The Court reached out to Attorney Alkon and also asked him to come to the courthouse to speak with his former client 1118 By then Attorney Milligan had arrived and met with Jimmy Outside the jury’s presence, the People petitioned the Court for transactional immunity pursuant to Title 14, Section 20 of the Virgin Islands Code, which the Court granted Jimmy testified, identified Rivera, and placed himselfon St Croix in June 2001 Beyond that, he denied all knowledge about the death of Corporal Williams and claimed that law enforcement officers “wanted [him] to lie on Mr Rivera ”(Trial Tr 91 14 15 (Jan 31, 2014)) Jimmy did admit to speaking with law enforcement officers about Williams’s disappearance But Jimmy testified that he told them did not know anything Again, he said it was law enforcement officers who tried to get him to say that he had knowledge about the homicide During direct examination, perhaps in an attempt to demonstrate his truthfulness, Jimmy told the jury that he “got arrested Wednesday for a juror, where somebody claimed, say I tampered with a Juror I never did tamper with a juror ” Id at 92 23 25 Page 15 of29 The Court unmediately ordered the jury taken out ofthe courtroom and instructed Jimmy to only answer the questions asked and not volunteer any other information After the jury returned, the People asked Jimmy ifhe recalled telling an FBI agent that his brother Hector might have information about Williams’s homicide, which Jimmy denied The People then yielded the witness 0n cross examination, counsel for Rivera confirmed that Jimmy never signed any statements prepared by law enforcement officers 119 In rebuttal, the People did call two FBI agents, Supervisory Special Agents Clifford Goodman and Kimberly Quesinberry Special Agent Goodman testified that he spoke with Jimmy in Puerto Rico, where Jimmy had been taken for his own safety, and that Jimmy had told him that Rivera said that he (Rivera) and unnamed others took Corporal Williams’s car because they wanted to use it to commit a crime Jimmy also told Special Agent Goodman that Rivera had told him that he (Rivera) did not know that Williams was a police officer when they took his car Goodman acknowledged on cross examination that Jimmy never signed a document adopting those statements When asked whether it was important to take accurate notes when interviewing people, Special Agent Goodman admitted that there can be “disputes about what was said [by] the person interviewed ’ (Trial Tr 104 22 23 (Jan 31, 2014) ) Goodman explained that “[i]t happens frequently for a variety of reasons ” Id at 104 24 Special Agent Quesinberry’s testimony was largely the same, except that she contradicted Jimmy s testimony, telling thejury that Jimmy did tell her to speak with Hector She also admitted on cross examination—before Hector testified—that she had advised law enforcement officers that Hector “may not be viable as a government Witness ” Id at 136 8 9 The reason because Hector was a liar See Id at 135 19 22 (“Q Okay And as I understand it, your opinion was that Hector Davis basically is a liar, correct?A Yes, he did lie on a particular on on some particular things, that is correct ” (line breaks omitted» 1[20 Hector’s testimony proceeded along similar lines He also lacked any knowledge about the homicide However, afier meeting with Attorney Alkon, Hector insisted during a sidebar conference that Page 16 of29 he had entered into a cooperation agreement with the People of the Virgin Islands in 2003 The Court pulled a copy of a 2002 criminal case, Government ofthe Virgin Island: v Hector Davis, Crimmal No 180/2002 (STX), from storage, which did have a cooperation agreement on file, under seal But the agreement was not signed by Hector, the prosecutor, or Attorney Alkon But Hector insisted that a Signed copy did exist and stressed his desire to adhere to the agreement because he did not “want that agreement hunt me down now, or in the future it haunt me back down ” (Trial Tr 17 10 12 (Feb 3, 2014)) The People then petitioned for transactional immunity for Hector, which the Court granted But Hector simply told thejury that he could not recall anything Cf. Ventura I 2014 V I LEXIS 53 at *7 8 ( Jimmy Davis 3 brother, Hector, testified that he could not remember any discussions with law enforcement because of medication he was taking for mental illness and depression that affected his memory ”) 1121 Again, in rebuttal, the People called Special Agents Goodman and Quesinberry Special Agent Goodman told the jury that during an interview on St Croix in August of 2003, Hector told him that he (Hector) was at his house (a date and time was not given) when Rivera drove up and asked Hector to accompany him because he needed Hector to drive his truck back home Hectorjumped in the truck, riding in the truck bed until they reached a four door sedan Williams was restrained inside the trunk with flex cuffs Sometime later, Rivera found out that Williams was a cop Goodman then told the jury that Hector told him (Goodman) that he (Hector) told Rivera that it “was fucked up to kill a cop ” (Trial Tr 37 21 (Feb 4 2014) ) Rivera remarked [t]hat it was no big deal just a part of life Id at 37 24 Hector told a slightly different version during an interview approximately two years later In the more recent versron, Rivera told Hector he knew Williams was a cop and admitted that “he had killed him and dumped him at sea” Id at 38 19 20 On cross examination, Special Agent Goodman concurred with Special Agent Quesinberry’s assessment that Hector was not a viable government witness See 1d at 45 ll 22 Special Agent Quesinberry’s testimony again largely corroborated Special Agent Goodman’s testimony, except that she told the jury that Hector told her that Rivera told him when he asked why he killed Williams that “they had to kill the policeman because he had a transaction with a Arab from the Jiffy Mart and Jose ” [d at 59 ll 12 What the transaction involved or who Jose was were not explamed Hector also told Special Agent Quesinberry that Rivera and another person, Eurie Joseph, had offered to sell Williams’s firearm to him (Hector) On cross-examination, Quesinberry acknowledged that Hector had signed a cooperation agreement with the federal government or the Virgin Islands government for a possrble reduction in sentence ifhe provided useful information all 1| 1‘ 1122 Several aspects ofthe Davis Brothers’ testimony are troubling Ventura is not wrong in suggesting that “[t]he People were so expectant of their false testimony, that FBI impeachment witnesses were lined up and waiting to testify aficr the expected false testimony ” (Reply 11 ) But the Court cannot go so far as to find that the People knew that the Davis Brothers would give unfavorable testimony Outside thejury 3 hearing Hector had insisted on honoring his past agreement with law enforcement, which tends to Show that he would testify truthfully Moreover, both he and Jimmy were given transactional immunity But once they testified the People should have lefiwell enough alone Instead, the People called the FBI agents after each Brother testified to impeach them The problem is that the agents’ testimonies exceeded the Davis Brothers’ testunonies, essentially becoming “a mere subterfuge to get before the jury evidence not otherwise admissible United States v Morlang 531 F 2d 183 190 (4th Cir 1975) 1|23 Federal Rule of Evidence 607, which governed when this case was tried, see Ventura, 2014 V I LEXIS S3 at *22 n 4 provides that [a]ny party including the party that called the witness may attack the witness’s credibility ” Clearly, the prosecution can impeach its own witnesses, particularly if the witnesses do not testify as anticipated But “the doctrine permitting impeachment of one’s own witness under Circumstances of actual surprise cannot be used as a ruse or a device with which to put into the Page 18 of29 evrdence what would otherwise be clearly inadmissrble hearsay statements ” United States v Michener, 152 F 2d 880 883 n 3 (3d Cir 1945) (citations omitted) accord Gryj‘ith v State 31 N E 3d 965 968 n 4 (Ind 2015) (‘ [A] party is forbidden from placing a witness on the stand when the party’s sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment ”’ (quoting Appleton v State 740 N P 2d 122 125 (Ind 2001)) State v Turecek 456 N W 2d 219 225 (Iowa 1990)( The State is not entitled under rule 607 to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible To pemiit such bootstrapping frustrates the intended application of the exclusionary rules which rendered such evidence inadmissible on the State’s case in chief") 1124 Hector had testified that he did not recall talking with Special Agent Goodman (See Feb 3 2014 Trial Tr 28 21 24 (“Q Okay Do you remember having a conversation on August 22nd of2003 at Golden Rock with FBI Agent Clifi‘ord Goodman? A i can’t remember that ” (line breaks omitted))) When the prosecutor pressed him further, Hector said “[t]hat’s twelve years ago, man I do things, I been living all my life, I been doing all kind ofthing twelve years ago I forgot everything, you understand?” Id at 29 8 10 The prosecutor pressed further, questioning whether Hector recalled telling the FBI about seeing Rivera with Williams before the murder or seeing William’s firearm afier Hector finally said I can’t remember that Prosecutor, I take sight medication now, I take depression, I take hearing voices, I take with side effects At the end ofthe day I can’t remember all ofthat All my life I’m taking medication not all my life, but from Since I went Texas 1 taking, you understand? Id at 31 7 12 Technically, Hector’s testimony was unimpeachable not because it was truthful or untruthful, but because he said he could not remember Rather than try to refresh Hector’s recollection with the statements the FBI agents took afler they met with him or by questioning him about the c00peration agreement with law enforcement, the People ended Hector’s testimony and solicited the Page [9 of 29 information they wanted from Special Agents Goodman and Quesinberry That was improper because Hector’s testimony was effectively unimpeachable Special Agents Goodman and Quesinberry did not testify that Hector really could remember Cf State v Russell 893 N W 2d 307 317 (Iowa 2017) (‘ When a witness testifies that he or she does not remember the underlying facts, the only subject to be impeached is the witness’s memory or ability to recollect” (citing State v Gilmore, 259 N W 2d 846, 857 (Iowa 1977)) To be sure, courts recognize that “where a witness makes a testimonial statement and then does not remember a prior inconsistent statement he made dealing with the same facts or is evasive as to that statement either party may introduce the prior inconsistent statement into evidence if certain foundation prerequisites are met” Id (ellipsis, brackets, and citation omitted), accord Hutson v State, 296 S W 2d 245, 249 (Tex Crim App 1956) (“Where the witness denies or testifies that he does not remember making a prior inconsistent statement, the adverse party may prove that he did make such statement ” (citation omitted» But here the prosecution called the agents to get into ev1dence the testimony that Hector would or could not give That was improper 125 Jimmy’s testimony is similarly troubling because he did not deny speaking to the FBI Instead, he claimed the FBI tried to get him to lie When Special Agents Goodman and Quesinberry testified, the People did not ask them if they tried to get Jimmy to lie Instead, they gave detail upon detail, testifying to out of court statements Jimmy made to them In other words, the People elicited specifics from the agents that they could not get from Jimmy This too was improper Witnesses may, ofcourse, sometimes fail to come up to the expectations ofcounsel and in such situations there is an understandable temptation to get before the jury any prior statement made by the witness And it may be that in certain instances impeachment might somehow enhance the truth finding process Yet, whatever validity this latter assertion may have, it must be balanced against the notions of fairness upon which our system is based Foremost among these concepts is the principle that men should not be allowed to be convicted on the basis of unswom testimony Morlang 531 F 2d at 190 (citing Bridges v Wlxon 326 U S 135 153 54 (1945)) Page 20 of29 ‘|l26 Most troubling here is that neither Davis Brother’s prior statements to the FBI constituted prior moonsistent statements “[P]rior inconsistent statements are admissible as non hearsay when the declarant testifies and is subject to cross exammation about a prior statement, and the statement is inconsistent with the declarant s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition ” Canton v People, 61 V I 511, 518 (2014) (quotation marks, citation, and brackets omitted) The FBI agents were called for impeachment purposes to attack the credibility of the Davis Brothers They were not supposed to give substantive testimony that Ventura and Rivera were guilty, i e , that what Jimmy and Hector told them is what really happened This is the concern here “it is an abuse of the rule, in a criminal case, for the prosecution to call a witness that it knows will not give it useful evidence, just so it can introduce hearsay evidence against the defendant ’ Untied States v Johnson, 802 F 2d 1459 1466 (D C Cir 1986) (quotation marks brackets and citation omitted) 1127 But the Court cannot find that the People knew that Jimmy and Hector would not give useful evidence Cf UnitedStates v Buflalo 358 F 3d 519 524 (8th Cir 2004) (‘ [T]he proper inquiry is whether as an objective matter and irrespective ofthe calling party’s motive, the probative value ofa statement for impeaching the credibility of a witness is substantially outweighed by the danger of unfair prejudice confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence ”(quotation marks, brackets, and citations omitted» Once the Davis Brothers failed to give useful evidence, the People should have known that calling Special Agents Goodman and Quesinberry to impeach them might lead to the admission of inadmissible hearsay evidence Cf Morlang, 531 F 2d at 190 (“[P]rior unswom statements of a witness are mere hearsay and are as such, generally inadmissible as affirmative proof The introduction of such testimony, even where limited to impeachment, necessarily increases the possibility that a defendant may be convicted on the basis of unswom evidence, for despite proper instructions to the jury, it is often difficult for them to Page 21 of29 distinguish between impeachment and substantive evidence ”) The problem is that none ofthe Defendants objected,7 and the Court did not, on its own, given a limiting instruction, which some courts have held constitutes plain error “if the jury could give substantive effect to the impeachment evidence ” United States v Lewrs 693 F 2d 189 197 n 34 (D C Cir 1982) ( [W]hen a party seeks to impeach a witness by prior inconsistent statements, it is plain error not to give an immediate limiting instruction ifthejury could give substantive effect to the impeachment evidence ” (citations omitted»; accord United States v Ince, 21 F 3d 576 581 (4th Cir 1994) (“When the prosecution attempts to introduce a prior inconsistent statement to impeach its own witness, the statement’s likely prejudicial impact ofien substantially outweighs its probative value for impeachment purposes because the jury may ignore thejudge’s limiting instructions and consider the ‘impeachment’ testimony for substantive purposes That risk is multiplied when the statement offered as impeachment testimony contains the defendant’s alleged admission ofguilt Thus, a trial judge should rarely, if ever, permit the Government to ‘impeach’ its own witness by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession to the crime for which the defendant is being tried ” (citations omitted» 1&8 A new trial is only warranted ifthe error was prejudicial, however Cf Williams v People, 59 V I 1043, 1049 (2013) Here, the Court cannot find any of these crrors to be prejudic1al because, even when the Davis Brothers’ testimony is excluded, as well as the testimony of the FBI agents, the jury still heard from Coogle that “the person that shot [Williams] in his hand was Jose Rivera, the person that shot 7 In fact, afier the People rested their case in chief and Rivera moved for judgment of acquittal, Rivera urged the Court to disregard the Davis Brothers testimony entirely (See Feb 3 2014 Tnal Tr 82 6-18 ( If I could start at the tail end of it, I would suggest that the testimony of both of the Davis brothers did not there was substantive testimony that did not accuse my client ofdoing anything The statements that were introduced to impeach those parties are not relevant as far as substantive evidence is concerned And the only statement that my client had anything to do with any kidnapping of Officer Williams would be the statement of Hector Dams, and again, not his direct testimony, but only his impeachment statements So there is no evidence ofany participation in a kidnapping by Jose Rivera " (paragraph break omitted» ) Page 22 of29 him in his mouth was Jose Ventura ” Rivera II, 64 V I at 557 n 8 (quotation marks and Citation omitted) Her testimony was sufficient for the jury to find Ventura and Rivera guilty See Ventura [1, 64 V I at 606 (“[T]he testimony of a single witness is sufficient to support a conviction, even if uncorroborated and contradicted by other testimony ” (quotation marks and citations omitted» (2) Theresa Coogle ‘[[29 Ventura also attacks Coogle’s testimony, however, claiming the People engaged in prosecutorial misconduct when they “learned for the first time at trial that at the time of the incident Coogle was 1) pregnant, and 2) “back and forth” between Miami and St Croix, and more likely simply 1n Miami, which means they learned that their primary witness had deceived them for over a decade ”(Reply 11 ) This “is enough evidence,” Ventura contends, “to establish that Theresa Coogle gave false testimony at trial, that [her] testimony surprised the Defendants because it was different even from her multiple inconsistent statements, and this false testimony warrants a new trial ” Id In response, the People reject Ventura’s claim of surprise, noting that his attorney had “all of Ms Coogle’s prior statements before Ms Coogle testified ” (Surresponse 4) And “even {fdefense counsel was surprised, Ventura was still able to counter Ms Coogle’s testimony that she was on St Croix at the time of the murder ” Id What’s more “[i]nconsistent statements by a witness do not render the witness’ testimony false,” the People counter, “especially when those statements are acknowledged and explained by the witness ” Id 1130 As a threshold matter, courts do not assume witnesses lie under oath at trial See Untred States v Johnson 621 F 2d 1073 1075 (10th Cll‘ i980) ( Appellants claim of prejudice rests on the assumption that the testimony given by Fowler was perjured However, we cannot assume, on the basis of Miller’s testimony alone, that Fowler’s testimony was knowingly false Furthermore, even ifwe were to accept the proposition that Fowler committed perjury in some portions of her testimony, a new trial is not mandated ) Meece v Commonwealth 529 S W 3d 281 294 (Ky 2017) ( This trial occurred thirteen Page 23 of29 years after the murders, and we carmot assume that every smgle discrepancy is an intentional lie or perjury Memories alter and that is why we place value in a Jury’s truth finding ability The jury heard all the evidence, even the inconsrstent evidence ”); Commonwealth v Foerst, 53 A 2d 847, 849 (Pa Super Ct 1947) ( We cannot assume that Rosemiller perjurcd himselfand the jury having apparently believed his testimony, there is ample evidence to sustain its verdict ofguilty ”), accord Croghan v Umplebaugh, 162 N W 596, 597 (Iowa 1917) (‘ It would seem that one ought not to profit by his own wrong, that one ought not to retain the fruits of victory obtained through means of perjured testimony But we cannot assume that the verdict of the jury is founded on false testimony ”) The Court does acknowledge, however, that Coogle’s testimony was less than ideal 1131 At the time ofthe homicide ofCorporal Williams, Coogle was 17 years old and near or in her third trimester Coogle admitted that she gave birth in Miami, Florida on July 29, 2001, approximately a month after Corporal Williams s death in June 2001 (See Trial 'Ir 88 25 89 4 (Jan 28 2014)) Coogle also admitted that she had been living in Miami for some time before the homicide Since she gave birth in Miami, she had to have flown to St Croix before the homicide and returned to Florida after the homicide while approximately seven months pregnant That was her testimony that she “was back and forth from Florida and St Croix during the relevant time penod (Trial Tr 75 18 (Jan 29 2014) ) 1B2 Coogle’s testimony is at the heart of Ventura’s argument For this reason, the Court will excerpt a large portion of Rivera’s cross—examination ofCoogle for context Q Okay Very good Now as I understand it you had a child in July of 2000 is that correct? A That is correct Q And you had another child on July [of] 2001 A That is correct Q So it would be fair to say that at the time that you claim to have been seeing these events, you would have been eight months pregnant? A Seven or eight I had my son early Page 24 of29 Q Okay Seven or eight months pregnant, okay Now, [redacted] was not born in St Croix was he? A No, he was not Q He was born in Florida, is that correct? A That is correct Q As a matter of fact, he was born in Miami, if I’m correct A That’s correct Q Okay And at the time he was born, you were livmg in North Miami, wouldn’t you agree with that? A I was staying in North Miami Q And you were staying with Mariela Velasquez? A That’s correct Q And with her brother Francisco Velasquez? A That’s correct Q And that’s where you were living when your son was born 1n July of2001 ? A I was staying there, correct Q Okay Now, isn’t it a fact, Ms Coogle, that you had been living at that address with Mariela Velasquez, Francisco Velasquez for several months there in Florida? A I was back and forth from Florida and St Croix Q Well, let’s talk about that You went to Miami to live with Mariela Velasquez in March of2001 didn t you? A I wouldn’t say I went to go live, I would say I went to go stay And I don’t remember exactly the month I went back and forth several times Q Well, if I were to tell you it was March of2001 that you moved there would you quibble with me? A i do not remember the date and time Q And you went there because your young daughter was having some kind of an ear problem correct? A That’s incorrect I moved I went there to escape out of a abusive relationship that I had with Max Velasquez Q Okay And that was many months before the birth ofyour son isn’t that right? A I traveled back and forth throughout that time, yes Q Isn’t it a fact that when you were in Miami before your son was born that you worked at a Wendy s? A When I was in Miami, I did work at a Wendy’s, yes Q And Wendy’s is a a fast food restaurant, correct? A That is correct Q And what was yourjob at the Wendy s? A I did numerous amount ofthings Q Such as? A I was a cashier I did the grill I dld a lot ofthings Q Okay And you were doing this while you were pregnant with your son; correct? A Yes Q All right Isn’t it a fact that well, do you while you were there in Miami, you also Page 25 of29 had a boyfriend named Kenny, a guy with a red truck, do you recall that? A He wasn’t a boyfi'iend, he was a friend Q Okay But he would come by and pick you up frequently, correct? A We went out on dinners, yes Q Okay Do you remember when you got the burn on your hand, the top of your hand, when you were living there in Miami with Mariela Velasquez and Francisco Velasquez? A I wasn’t living there; I was staying there And yes, I do Q And as a matter of fact, Mariela had to call the Dade County Rescue, didn’t she? A I don’t think she was there Nobody was there I called 911 myself Q And do you remember when the Dade County Rescue came and treated you there at Mariela and Francisco’s place? A I do not know the date, no Q But that was all taking place in Miami, and that event took place, correct? A That is correct Q Okay And you had some other jobs in Miami as well, didn’t you? A Oh, yes Q What else did you do in Miami? A To support myself I stripped Q Okay Where where did you strip? A Well, when I was kicked out ofthe house that I was staying at with Mariela, I went and worked with a couple ofthe girls that worked at oh, I couldn’t even remember the name of the club to tell you Q Okay So while you were in Miami, you were working at Wendy’s for a period oftime and stripping for a period period oftime, correct? A That’s correct Q And isn’t it a fact that in June of200 1 , when you claimed to have seen these events, you were livmg in Miami W1th Mariela Velasquez and her brother? A That’s incorrect I was back and forth, and l was on St Crorx at the time ofthis homicide Q And who were you staying with when you were back on St Croix during the time of this homicide? Where were you living? A I was in between my mother s house and I also stayed in St Thomas Q Okay Where did you stay m your mother’s house What’s the address? A [redacted] Q And who else was there? A My two sisters, my stepfather and my mother Q And where were you staying in St Thomas? A I was staymg in a lot of hotels Q In a lot of hotels? A Yes Q And were you working in St Thomas? A Yes Q Where were you working? A I was also a stripper there Q And at what place? Page 26 of29 A Club 75 Q Club 75? A Yes Q And you re telling us that this was taking place 111 2001? A I started dancing later on, at the end ofthe year 2001, on St Thomas Q I’m interested in where you were in June of2001 , not later in the year? A I was at my mother’s Q You were not in St Thomas then correct? A No Q And you deny under oath that you were in Florida in June of 2001, is that what you’re telling the ladies and gentlemen ofthe jury? A What I’m telling you is that the date of that murder, I was on St Croix Again I was back and forth, through Miami and St Croix Q Okay Aside from the people that you have mentioned that were there that you say were there at the address, is there anyone else who can establish your presence here on St Croix on June 14, 2001 ? A Not that 1 could think ofat this present time Id at 74 4 80 1 From this testimony and the fact that Coogle signed several statements law enforcement officers prepared from their interviews of her but Without reading them first, (see e g , Hr’g Tr 122 13 17 (Jan 27, 2014))—Ventura claims the People engaged in misconduct because they learned first time at trial that Coogle was pregnant and “back and forth’ between Miami and St Croix, “which means they learned that their primary witness had deceived them for over a decade ” (Reply I] ) However Ventura is simply mistaken 1|33 First, technically, the People did not learn at trial that Coogle was pregnant at the time ofCorporal Williams murder Coogle had testified extensively at a suppression hearing held the day before trial 8 It was then that she testified that she was pregnant in June 2001 (See Jan 27 2014 Hr g Tr 126 25 127 3 (“Q Ms Coogle were you pregnant in June 2001 ? A Yes, I was Q How many months pregnant were you? A I was approximately, about six, maybe seven ” (lme breaks omitted» ) That was also when Coogle testified to having flown “back and forth” between St Croix and Miami while pregnant Id at 149 8 This 3 During trial, the case agent for the Virgin Islands Police Department, Detective Frankie Ortiz, did admit that he first learned that Coogle was pregnant during trial (See Trial Tr 141 22 25 (Jan 30 2014)) Page 27 of29 information was elicited by the defense, specifically by Ventura’s co defendant Sharima Clercent 9 Admittedly, the Court is “splitting hairs ” But issues Ventura is raising requires such precision because Coogle’s pregnancy and her travels during her pregnancy were not revealed for the first time at trial Larrison, which Ventura relies on, requires that the defendant, not the prosecution, be surprised by testimony and not learn of its supposed falseness until afler trial See Larrison, 24 F 2d at 88 (“That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial ”) 1134 Second, none ofthe defendants five at the time oftrial—claimed surprise by Coogle’s testimony In fact, it was the prosecution who repeatedly objected during the suppression hearing, arguing that defense counsel were using the suppression hearing as a quasi deposition (See e g , Hr’g Tr 86 l4 17 (“I’m going to be objecting to them using this as a fishing expedit1on, to try and get into facts of the case, and proof of facts and trying to use this as a deposition ofthe witness ”) ) Counsel for Ventura disagreed, countering that it was not a deposition, just ‘ a very wide inqiury ” Id at 89 15 16 The result of this wide inquiry” [S that everything Coogle testified to at trial was elicited the day before trial Yet, no one asked for a continuance Thus, the Court rejects Ventura’s claim that Coogle’s inconsistences amount to injury 1l35 Ventura also takes issue with the plausrbility of Coogle’s testimony, that a 17 year old girl regularly flew back and forth between St Croix, St Thomas, and Miami while pregnant, and happened to be on St Croix where she witnessed a murder and helped clean up afterward But Ventura did not follow up on any of those issues at trial None of the defendants called any witness to rebut the plausibility of pregnant teenagers flying over international waters during their third trimester No one asked Coogle 9 Clement was eventually acquitted by the Court after the People rested their case in chief Page 28 of29 whether a parent or guardian accompanied her N0 one asked what airlines she flew on In fact, no one asked what airport she flew out of No one questioned Coogle about her physical appearance in 2001, whether, as a pregnant seventeen year old, her pregnancy was visibly apparent or could have been hidden by baggy clothing, for example What’s more, the Court takes juridical notice the events at issue here occurred before the terrorist attacks of September 11th and the numerous changes to airline security that followed The Court cannot just assume that Coogle lied when she testified under oath that she traveled back and forth between St Croix and Miami 1136 To bolster his claim, Ventura points to several statements law enforcement officers took in the years after Williams’s homicide Ventura concludes that Coogle was lying in court because she signed off on several (if not all) statements law enforcement officers prepared from their interviews Yet at trial, Coogle supposedly gave a different version of the events, Ventura claims As one example, Coogle supposedly told law enforcement oflicers that she rode with Maximiliano Velasquez III—Coogle’s boyfi'iend at the time and a co defendant of Ventura who the jury acquitted in a black pick up truck to the location where Corporal Williams was murdered At trial Coogle testified that she drove herself there in a maroon CRX after Velasquez called her Another example Coogle supposedly told law enforcement officers that crack cocaine was being cooked at the location of the homicide whereas at trial, she said she told the officers that she smelled an odor of crack cocaine One final example Coogle supposedly told law enforcement officers that her sister was also at the site of the homicide, yet during trial, said denied that her sister was there 1137 Ventura overlooks three things First, Coogle acknowledged that the statements said what they said She did not take issue with them She Simply disagreed w1th the memorialization of the law enforcement officers Second, and more importantly, the core ofCoogle’s testimony did not change Jose Ventura shot Williams in the hand and Jose Rivera shot him in the head Finally, Coogle testified that she Page 29 of29 had witnessed other crimes and the statements law enforcement took may not have been correct (See Trial Tr 61 14 16 (Jan 29 2014) ( I remember telling them that but I think they were confusing the fact that it was due to another homicide that I witnessed ”) ) 1138 This Court presided over the trial and was “uniquely situated to weigh the credibility ofwitnesses ” Ventura II, 64 V I at 617 (citations omitted) The Court finds Coogle to be credible She never lost her composure, raised her voice or got combative while six attorneys, including the prosecutor, questioned her for three days straight, four including the suppression hearing Her testimony did not faulter Her story did not change There were discrepancies between what she said at trial and what law enforcement officers wrote down, which Coogle addressed She also admitted that she was traumatized by what she saw and took drugs and sought therapy to cope The jury heard all this testimony as well as claims that Coogle was “pursuing this fantastical story against Max Velasquez and his friends, and people that he knows, to get revenge for losing [her] daughter[] (Trial Tr 53 10 13 (Jan 30 2014)——a.nd still acquitted Maximiliano because Coogle testified that Ventura shot Williams in the mouth and Rivera shot him in the hand No serious danger that innocent persons were convrcted is present here See Percrval, 62 V I at 491 CONCLUSION 139 Accordingly, for the reasons stated above, the People’s surresponse will be remstated and Ventura’s motion for amytrial denied An appropriate order follows DONE this V day of June 2020 . L Q . q maTe. ATTEST D DEAN DONOHUE, SR. TAMARA C I ES Senior Sitting Judge Clerkof/’///’ / In / By [/1/ ,i/ II o Dated 2;”£99 0 SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX PEOPLE OF THE VIRGIN ISLANDS ) CASE NO SX 12 CR 076 ) Plaintiff, ) ) V ) ) JOSE VENTURA ) ) Defendant ) ) ORDER AND NOW, for the reasons stated in the accompanying Memorandum Opinion ofeven date, it is hereby ORDERED that the Order dated April 4 2014 entered April 10 2014 is VACATED as to the portion striking The People’s Reply to Defendant Jose Ventura’s Reply Brief to the People’s Response (2/28/14) to Defendant Ventura 5 Post Verdict Motions Submitted Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure filed on March 12, 2014, the same is REINSTATED It IS further ORDERED that the Post Verdict Motions Pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure Submitted Prior to Receipt of the Trial Transcript, Motion for Extension of Time to Supplement Post Verdict Motions Upon Receipt of Transcript; and Reservation of Right to Supplement Upon Receipt of Transcript filed by Defendant Jose Ventura on February 21, 2014 is DENIED as to the request for a new trial and DENIED as moot as th:jequest for an extension oftime P DONE AND SO ORDERED this 3 day ofJune 2020 ATTEST DAR DE IONOHUE, SR T O IARLES Senior Sitting Judge Clerk0H1; / By 12/1 1 4111/ fl C '5'' Dated I i; 00.. u