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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS CASE NO. ST-18-CR-208 Plaintiff, 14 V.L.C. §§ 921, 922(a)(1) 14 V.L.C. § 2253(a) 14 V.L.C. § 295(1) 14 V.I.C. § 297(a)(2) 14 V.1.C. § 625(a) vs. AUBREY FRETT JURY TRIAL DEMANDED Defendant. i i a a a a a Cite as 2019 VI Super 141U MEMORANDUM OPINION 41 THIS MATTER is before the Court on Defendant’s “Motion to Suppress Out of Court and in Court Identification and Motion to Suppress Statement by Defendant”, filed March 29, 2019 (“Motion to Suppress”). Plaintiff filed a response and opposition May 23, 2019 (“People’s Response”). The motion came on for hearing on August 19, 2019. The People were represented by Eugene James Connor, Jr. Defendant Aubrey Frett was present and represented by Territorial Public Defender Paula D. Norkaitis. Virgin Islands Detective Nigel James testified for the people. At the conclusion of the hearing, the Court took the matter under advisement. For the reasons set forth herein, Defendant’s Motion to Suppress will be denied. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion FACTS {2 The stated facts derive from Detective James’ testimony at the suppression hearing on August 19, 2019, and the document entered into evidence during the hearing. On September 1, 2018, Jerome Turnbull was shot and killed on St. Thomas, Virgin Islands. Detective James, a 13-year veteran of the V.I. Police Department, was assigned as lead investigator to the murder investigation and responded to the scene of the crime. Persons at the scene told Detective James that someone identified as Witness #1 had seen the incident. Detective James did not take any statements from these persons at the scene because they “did not want to get involved.” {3 Detective James did not speak with Witness #1 at the scene, but he interviewed Witness #1 later that day at the Virgin Islands Police Department’s Major Crimes Office at the Alexander Farrelly Center (“Major Crimes Office”), where he took two statements. The first statement was a written statement in the form of question and answer.! In the statement, Witness #1 said she and Turnbull traveled to an area together and he got out of the car to get a drink when he was shot and killed. Witness #1 said she saw Turnbull walking and then heard shots, but when she looked up, she did not see the shooter. When asked if she saw anyone before the shooting, Witness#1 said she saw people near the bar and shop. Detective James told Witness #1 that persons in the area said she saw who shot Turnbull. Less than an hour after giving 1 The written statement was seven pages long and taken from 6pm-6:5 lpm. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion the written statement, Detective James took a video statement from Witness #1.2 In the video statement, Witness #1 again stated she did not see who shot Turnbull. However, Witness #1 said that immediately after hearing shots fired, a man she had never seen before came to the vehicle and pointed a gun at her and told her to run.3 The man was less than 4 feet from her when he gave her the command, and she observed him for 5 to 10 seconds. Witness #1 described the individual as light complexion, heavy-set, little beard, red shirt and stocking cap. Witness #1 described the shooter’s weapon as a dark colored handgun. After the video statement, Detective James ordered two copies of a photo array. 4 After making the statements, Witness #1 was scared, frightened and did not want to be alone, which prompted Detective James, Detective Cherese Thomas and Corporal Mario Stout to take Witness #1 to a safe house. Officers James, Stout and Thomas all stayed with Witness #1 at the safe house through the night. q5 While still at the safe house the following morning, September 2, 2018, Detective James showed Witness #1 a photo array. Witness #1 looked at the photo array for 10-15 seconds but was unable to identify a suspect. Defendant Frett was shown as picture #8 in the photo array. ? The video statement was taken from 7:44pm-7:53pm. 3 While making the written statement, Witness #1 did not tell Detective James that someone came to the window of the vehicle and pointed a gun at her, but this information appeared in her video statement less than an hour later. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion 16 After looking at the photo array, Witness #1 suggested, with no prompting from the officers, returning to the crime scene to see if she could identify the person who had pointed a gun at her, even though she had not stated she could recognize the person if she saw him again. Sometime after 9am, Witness #1 and all three officers drove to the scene of the crime and as they neared it, Witness #1 identified Frett, who was talking to someone else, as the individual who had pointed a gun at her.4 Witness #1 stated that Frett was wearing the same stocking cap he had worn during the incident.5 Detective James had seen Frett twice before Witness #1 identified him.§ 17 After Witness #1 identified Frett, Detective James prepared an affidavit to obtain an arrest warrant.? The affidavit was based solely on the statement, description and identification made by Witness #1.8 Frett was arrested the next day, September 3, 2018. Following the arrest, Frett was taken to the Major Crimes Office where Detective James and Corporal Stout were located. Detective James advised * Detective James gave two estimates of the time that lapsed between Witness #1 viewing the photo array at the safe house and identifying Frett. At one point, Detective James said approximately 20 minutes had lapsed between the photo array and Witness #1 identifying Frett, and at another point during his testimony, Detective James said 40-45 minutes had lapsed. 5 During the suppression hearing, Detective James first stated that Witness #1 was pretty sure when she identified Frett as the person who pointed a gun at her. Later in the hearing, Detective James stated he believes Witness #1 was 100% sure when she identified Frett. 6 Detective James testified that he is familiar with Frett because he has been a person of interest in another case involving violent crime. Detective James also testified he had seen Frett twice before the incident occurred on September 1, 2018. The first time, Detective James saw Frett standing in the same area where a shooting had recently occurred. Detective James testified that he is aware Frett lives in that area. The second time, Detective James saw Frett at the Investigations Bureau regarding another shooting that occurred in 2018. 7 At 3pm that afternoon, Detective James and the other two officers dropped Witness #1 off at the airport to catch a flight that she arranged before the murder occurred. 8 The affidavit did not mention that 1) Witness #1’s first statement did not state that a man had pointed a gun at her, nor did it include a description of the man, and 2) that Witness #1 had failed to identify Frett in the photo array. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion Frett of his constitutional rights, gave Frett a Warning as to Rights Form and prepared Frett’s arrest report.? Frett refused to make a statement, but then said he did not kill anyone and had run from police because he had weed on him. Detective James testified that these statements were not in response to any questions. The statements were not videotaped. 18 Neither the Police Offense Report nor the 911 Report identified any perpetrator or suspect. No one at the scene reported to police that they saw who shot Turnbull, and Witness #1 never stated she saw who shot Turnbull. However, police procured a statement from Witness #2 on September 16, 2018, who identified Frett as the shooter. Witness #2’s description of the shooter matches the description given by Witness #1. In addition, Witness #2’s description of the handgun allegedly held by Frett matches the description provided by Witness #1. LEGAL STANDARD 19 In deciding whether Frett’s Motion to Suppress should be granted or denied, the Court considers relevant portions of the United States Constitution, below, and case law: ® Detective James states he did not say anything else to Frett, but Detective James could not attest to what any other officer in the room did or did not say. 10 Detective James testified that he does not usually videotape statements and instead, usually writes everything by hand. Detective James also testified that he had no reason to videotape Frett after he refused to make a statement, nor did he have reason to believe that Frett was going to make any unprovoked statements. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion U.S. CONST. amend. V “No person .. . shall be compelled in any criminal case to be a witness against himself. . .”11 U.S. CONST. amend. XIV, § 1 “No State shall. . . deprive any person of life, liberty, or property, without due process of law . . .”12 ANALYSIS {10 Frett contends that Witness #1’s in and out-of-court identifications should be suppressed because the identification procedure constituted a show-up and was unnecessarily suggestive and unreliable. (Mot. Suppress 8-10). Additionally, Frett argues that his statements to police should be suppressed because Frett signed a Warning as to Rights form, refused to make a statement and the statements were not voluntary. Id. at 10-11. Frett also denies making the statements. Id. at 11. The People argue the identification procedure was not unduly suggestive under the totality of the circumstances and the identification was reliable (People’s Resp. 4-8). The People also argue that even if Witness #1’s initial, i.e., out-of-court identification, is suppressed, an in-court identification is permissible. See id. at 8. Additionally, the People argue 11 The Fifth Amendment to the United States Constitution is applicable in the Virgin Islands pursuant to § 3 of the Revised Organic Act of 1954, as amended, 48 U.S.C. § 1561 (1984). 12 The Fourteenth Amendment to the United States Constitution is applicable in the Virgin Islands pursuant to § 3 of the Revised Organic Act of 1954, as amended, 48 U.S.C. § 1561. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion that Frett’s statements were spontaneous, voluntary and were not in response to coercion or questioning. Id. at 9. A. Out-of-Court and In-Court Identification {11 In Stovall v. Denno, 388 U.S. 293 (1967), the United States Supreme “Court held that a defendant may attack an identification on grounds that it was ‘so unnecessarily suggestive and conducive to irreparable mistaken identification’ as to result in the denial of due process.” Richards v. People, 53 V.I. 379, 385 (V.I. 2010) (citing Stovall, 388 U.S. 293, 302 (1967)). Additionally, the United States Supreme Court stated “that ‘[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Id. (quoting Stovall, 388 U.S. at 302). “[But] that ‘a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances.” Id. (quoting Stovall, 388 U.S. at 302). In Neil v. Biggers, 409 U.S. 188 (1972), the U.S. Supreme “Court identified the central question as ‘whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive.” Id. (quoting Biggers, 409 U.S. at. 199). The Biggers Court listed five “factors to be considered [when] evaluating the likelihood of misidentification”, Jd. at 386, described as: [1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation. Id. (quoting Biggers, 409 U.S. at 199-200). {12 In Manson v. Brathwaite, 432 U.S. 98 (1977), the U.S. Supreme Court explicitly “rejected a strict exclusionary rule in favor of a totality of the circumstances approach that focuses on the reliability of the identification stemming from an unnecessarily suggestive identification procedure[, and bJalancing the Biggers factors against ‘the corrupting effect of the suggestive identification.” Id. (citing Brathwaite, 432 U.S. at 110-16). In short, “the appropriate analysis for determining whether an identification procedure created a substantial likelihood of misidentification, and thus violated due process, is two-fold. First, . . . determine whether the identification procedure was unnecessarily suggestive, and, if so, .. . decide whether the identification itself was . .. reliable”. Id. at 387 (first citing Garcia v. Gov't of the V.I., 48 V.1. 530, 536 (D.V.I. App. Div. 2006), aff'd Gov't of the VI. v. Garcia, 232 Fed. Appx. 167, 169 (3d Cir. 2007); and then citing United States v. Brownlee, 454 F.3d 131, 139 (3d Cir. 2006)). 13 “When considering whether an identification was unduly suggestive, [the court] consider[s] first whether it was “unnecessarily” or “impermissibly” suggestive,’ which requires [the cJourt to assess the degree of suggestiveness presented by the identification procedure actually used in [the] case, and whether the police had good reason not to use less suggestive procedures.” Potter v. People, 56 V.I. 779, 789 (V.I. 2012) (first citing United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir. 1991); and then citing Richards, 53 V.I. at 387). People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion 14 In the present case, Witness #1 initially did not tell police that someone had pointed a gun at her. However, in a second statement, Witness #1 described the suspect that pointed a gun at her as light complexion, heavy-set, little beard, red shirt and stocking cap. This second statement was taken within an hour of the first statement, occurred on the same day as the incident and before any identification procedures were employed. Additionally, there is no evidence that Witness #1 was coerced into giving a statement about a perpetrator pointing a gun at her or giving a description of the perpetrator. After giving the second statement, Witness #1 was afraid, resulting in Detective James and two other officers staying through the night with Witness #1 at a safe house. Witness #1’s fear provides at least a plausible reason why Witness #1 may not have described the suspect, or the gun incident, in her first statement. The same night that Witness #1 gave her statements, Detective James ordered a photo array. 1. Photo Array 915 While still at the safehouse the next morning, Witness #1 was shown the photo array and was unable to identify a suspect although Frett was picture #3 in the array. In Potter v. People, the V.I. Supreme Court stated that there is “no authority .. . to suggest that constitutional rights are violated when a defendant’s image is placed in a photo array as a result of an investigation.” Jd. at 790. The V.I. Supreme Court also stated that “[t]he mere presence of [defendant’s] picture within the array did not People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion violate any cognizable right.” Id. (citing United States v. Morgan, 690 F. Supp. 2d 274, 290 (S.D.N.Y. 2010) (“[t]he mere use of a photo array is not inherently suggestive ... .”)). In Potter, “two witnesses described the suspect to the police — including descriptions of [the suspect’s] race, complexion, hair style, approximate height and build — and one described the vehicle . . . the suspect was driving. Based on this information, the officers suspected that [the defendant] might have been involved.” Id. Although Detective James does not say that Frett was added to the photo array because of Witness #1’s statements, there are some similarities between Potter and the present case. {16 First, Detective James ordered the photo array after taking Witness #1’s statements. Second, there is no evidence that Detective James, or the other officers, attempted to suggest that Witness #1 focus on Frett in the photo array. See id. at 791 (“there is no evidence that the police intentionally or unintentionally suggested to the witnesses whose picture they ought to select from the array”). Although Witness #1 had to catch a flight the same day she viewed the photo array, she was shown the photo array around Yam, and she did not arrive at the airport until 3pm. Therefore, Witness #1 likely could have viewed the photo array at the police station, but there is no indication that this would have resulted in a “less suggestive procedure” in this case. See id. at 789 (first citing Stevens, 935 F.2d at 1389; and then citing Richards, 53 V.I. at 387). Third, similar to the defendant in Potter, Frett shared characteristics with the other photos placed in the photo array, e.g., similar beard-length, complexion People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion and body type. See id. at 790-91 (“the array contained six individual photographs, and all were of black men with shoulder-length locks, and they shared [defendant}]’s size, style of facial hair and his complexion”) (citing United States v. Foote, 432 Fed. Appx. 151, 153-54 (3d. Cir. 2011) (affirming a court’s finding that an array was not suggestive when it had pictures of six men of the same race, approximately the same age, same build, and same hair style, even though the length and style of facial hair differed amongst the men)). But see Richards, 53 V.I. at 388 (“A lineup is unduly suggestive as to a given defendant if he meets the description of the perpetrator previously given by the witness and the other lineup participants obviously do not”) (quoting Raheem v. Kelly, 257 F.3d 122, 134-136 (2d Cir. 2001) (defendant was only person in lineup wearing black leather jacket, which suspect was described as wearing)). To reiterate, the persons in the photo array in the present case were of the same general description and generally matched the description given by Witness #1. See People v. Boyce, Case No. SX-13-CR-092, 2014 V.I. LEXIS 84, at *8 (V.I. Super. Ct. Oct. 6, 2014) (unpublished) (individuals in the photo array appeared to have “similar styles of facial hair’, although some individuals had mustaches and others “appeared to have some facial hair,” and “similar build[,] age... . [and] complexions[,] though some [individuals] may have {had] lighter skin). Therefore, the Court finds that the photo array was not unduly suggestive. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion 2. Show-Up Identification {17 Frett argues that the show-up identification procedure used by Detective James and the other officers was unduly suggestive under the totality of the circumstances. See (Mot. Suppress 8-10). See generally BLACK’S LAW DICTIONARY 1506 (9th ed. 2009) (“A [show-up is a] pretrial identification procedure in which a suspect is confronted with a witness to or the victim of a crime. Unlike a lineup, a showup is a one-on-one confrontation”). The People argue that the show-up procedure was not unduly suggestive under the totality of the circumstances. See (People’s Resp. 4-6). In Richards, the V.I. Supreme Court expressed “that ‘[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned”; however, a due process violation “of [such] a confrontation depends on the totality of the circumstances.” Richards, 53 V.I. at 385 (alteration in original) (internal quotation marks omitted) (quoting Stovall, 388 U.S. at 302). In People v. Boyce, the victim indicated to detectives “that he knew several of his assailants by sight and that he would recognize them if he saw them again.” Boyce, 2014 V.I. LEXIS 84, at *2. The victim also “identified the ‘graveyard shop’ as a location where some of the assailants [hung] out.” Jd. The defendant in Boyce argued that police could “have used a less suggestive procedure” than a photo array by “driv[ing] the victim by the ‘graveyard shop’ to see if any of [the] assailants were present there. If [the victim] recognized any of the individuals . . . to be an assailant, [the victim] could then point out that individual to police.” Id. at *7. The court in People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion Boyce stated that this drive-by procedure “bears a strong similarity to a ‘show-up’ procedure.” Id. (citations omitted). 418 The show-up procedure described by the defendant in Boyce is comparable to the procedure used when Witness #1 identified Frett in the area where Turnbull was murdered the day before. Detective James and two other officers drove Witness #1 to the crime scene, on Witness #1’s suggestion, after she was unable to identify a suspect in the photo array. When they got to the street where the murder occurred, Witness #1 identified Frett as the perpetrator and stated that Frett was wearing the same stocking cap he had worn when he pointed a gun at her. {19 Although show-up procedures have been “widely condemned”, the Court must consider the totality of the circumstances to decide whether the procedure was unduly suggestive. See Richards, 53 V.I. at 385 (internal quotation marks omitted) (citing Stovall, 388 U.S. at 302). “In Richards, the V.I. Supreme Court found “that the show- up identification procedure was unnecessarily suggestive under the facts of [the] case.” Id. at 390. In Richards, three suspects were walked out of a police station one- by-one to see if the victim, who was sitting in a tinted police vehicle, could identify the suspects. Id. at 383. The victim identified two of the three suspects, including Richards, as the perpetrators that robbed him.!3 Jd. The V.I. Supreme Court stated 13 Tn Richards, two men robbed the victim while he was standing at the trunk of his car. Richards, 53 V.I. at 382. The victim had an opportunity to see both men’s faces during this encounter. Jd. at 382- 83. After robbing the victim, the two men ran and got into a vehicle driven by a third man. Id. at 383. A woman, who knew the victim had just been robbed and witnessed the two men get in the vehicle, called the police and followed the vehicle until she was able to signal the vehicle to police. Jd. The three People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion “the fact that [defendant] was the only suspect with spiky dreadlocks shown to [the victim] strongly indicates that the procedure employed by the police was suggestive.” Id. at 389. The V.I. Supreme Court continued that “[bJecause [the victim]’s only description of the second robber was that he was a black male with spiky dreadlocks, the suspect’s hairstyle was undoubtedly the salient feature of the description.” Id. (first citing United States v. Garcia-Alvarez, 541 F.3d 8, 14 (1st Cir. 2008); and then citing Frazier v. New York, 156 Fed. Appx. 423, 425 (2d Cir. 2005)). 20 In the present case, the officers did not apprehend suspects to show singly or otherwise to Witness #1. Instead, Detective James and the other two officers drove Witness #1 back to the crime scene, which was in a public area. The individuals that could have been present at the scene were not constrained by police efforts. Additionally, there is no indication that Detective James, the other officers or Witness #1 were aware that a possible suspect would be present at the scene at a certain day or time. This notion is supported by Detective James’ testimony: Witness #1, not Detective James or the other officers, suggested the drive-by procedure and Witness #1 stated that she had never seen the individual who pointed the gun at her before the incident. Under these circumstances, the Court finds that the degree of suggestiveness possibly created by using the drive-by procedure is low. See Potter, 56 V.I. at 789 (citation omitted) (citing Stevens, 935 F.2d at 1389) (“When considering men in the vehicle were taken to the police station and subsequently shown to the victim one-by-one. Id. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion whether an identification was unduly suggestive, [the c]ourt [assesses] the degree of suggestiveness presented by the identification procedure actually used in [the] case ..). {21 The Court acknowledges the possibility of suggestiveness where a victim is taken back to a crime scene and someone with a distinctive piece of clothing or attribute triggers the victim to identify that person as the perpetrator; particularly if that person is the only individual present at the scene, at that time, with the distinctive clothing or attribute. See, e.g., Richards, 53 V.1. at 388 (“[I]ineups in which suspects are the only participants wearing distinctive clothing or otherwise matching important elements of the description provided by the victim have been severely criticized as substantially increasing the dangers of misidentification” (alteration in original) (internal quotations omitted)). However, in the present case, Witness #1 provided Detective James with a fairly more detailed description of the suspect than just that he was wearing a stocking cap, i.e., Witness #1 had already also described the person who pointed a gun at her as light complexion, heavy-set, little beard and red shirt. This more detailed description at least lowers the possibility that Witness #1 arbitrarily identified Frett just because he was wearing a stocking cap. 22 Regarding less suggestive procedures, Witness #1 gave a description of the suspect the evening of the incident, identified Frett the next morning and took a flight from St. Thomas that afternoon. See Potter, 56 V.I. at 789 (citation omitted) (citing Stevens, 935 F.2d at 1389) (“When considering whether an identification was unduly People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion suggestive . .. [the cJourt [assesses] . .. whether the police had good reason not to use less suggestive procedures”). Additionally, although Witness #1’s flight shortly after the incident was unrelated to the incident, the witness was afraid after giving the statements. A photo array was employed, but Detective James’ testimony suggests that a line-up may have been difficult to arrange because of the short time-frame Witness #1 was available. But cf. Richards, 53 V.I. at 390 (“[victim] did not suffer any injuries, nor was he in immediate danger. Moreover, there is no indication that it would have been difficult for the police to conduct a line-up or a photo array that included other persons with a hairstyle matching [the victim]’s description. Therefore, the suggestiveness of the show-up was clearly unnecessary in this case”). The Court finds that under the totality of the circumstances, the drive-by procedure used to identify Frett was not unduly suggestive. Since the Court finds that neither the photo array nor the drive-by procedure were unduly suggestive, no inquiry into reliability is required. As a result, the Court need not address the People’s in-court identification argument. The standard for admitting evidence of a pretrial identification is the same as the standard for permitting an in-court identification in the wake of a pretrial identification. In both cases, the eyewitness testimony will be permitted unless the pretrial identification procedure was so unnecessarily suggestive as to give rise to such a substantial likelihood of irreparable misidentification that admitting the identification testimony would be a denial of due process. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 1410 Memorandum Opinion See Id. at 393 (quoting United States v. Clausen, 328 F.3d 708, 713 (8d Cir. 2003) (first citing Brathwaite, 432 U.S. at 106 n.9; and then citing Garcia, 48 V.I. at 538); (People’s Resp. 8). The pretrial identification of Frett was not unnecessarily suggestive. Therefore, the witness is not barred from identifying him in Court. B. Defendant’s Statement {23 Frett argues that his statements to police, that he did not kill anyone and ran from police because he had weed on him, were not voluntary and must be suppressed. (Mot. Suppress 10-11). 124 “The Fifth Amendment provides that ‘(n]o person shall ... be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.” Castillo v. People, 59 V.I. 240, 264 (V.I. 2013) (alterations in original) (quoting U.S. CoNST. amend. V). “The Fifth Amendment privilege against self-incrimination allows a person to refuse to testify at trial, and to refuse to provide evidence that would lead to prosecution or be used against a person in a criminal prosecution.” Id. (citing Minnesota v. Murphy, 465 U.S. 420, 426 (1984)). “Therefore, the Fifth Amendment essentially protects a person in custody from being coerced into making statements to law enforcement officials that could possibly result in self-incrimination.” Id. 25 According to the United States Supreme Court, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141 Memorandum Opinion interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Ramirez v. People, 56 V.I. 409, 418 (V.I. 2012) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). Elaborating, the U.S. Supreme Court stated, “/b/y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” }4 Id. (quoting Miranda, 384 U.S. at 444 (emphasis added)). To be clear, “[a] suspect is deemed to be ‘in custody’ for Miranda purposes when the suspect has been deprived of freedom of action in any significant way.” Id. at 418 (emphasis added) (citing United Stated v. Thompson, 496 F.3d 807, 810 (7th Cir. 2007)). “Inquiries, statements or conduct by police officers which in light of the suspect’s character are reasonably calculated to elicit from a suspect an incriminating response constitute an interrogation for purposes of the Miranda rule.” Castillo, 59 V.I. at 265 (citing Pennsylvania v. Muniz, 496 U.S. 582, 600-01 (1990); Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). “Miranda requires that ... a suspect... in custody by law enforcement officers . . . , before being questioned, . . . must be informed that he or she has certain rights, including the right to remain silent and the right to the presence of an attorney.” Id. at 264-65 (citing Miranda, 384 U.S. at 444). \4“The Virgin Islands Code defines a ‘law enforcement officer’ as ‘any officer of the Territory who is empowered by law to conduct investigations of or to make arrests for, offenses and any attorney authorized by law to prosecute or participate in the prosecution of such offences.” Ramirez, 56 V.I. at 418 (quoting V.I. CODE ANN. tit. 5, § 4101(f). People v, Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion {26 “[S]uspect[s] can waive [their] rights by choosing to give a statement after the required warnings have been given.” Id. at 265 (citing Miranda, 384 U.S. at 444). Additionally, “the requirement to administer Miranda warnings does not apply to volunteered statements to the police or spontaneous statements.” Id. (first citing Edwards v. Arizona, 451 U.S. 477, 485-86 (1981); then citing United States v. McCoy, 200 F.3d 582, 584 (8th Cir. 2000); and then citing United States v. Binion, 570 F.3d 1034, 1041 (8th Cir. 2009)). “To determine whether a confession is voluntary, a court considers the totality of the circumstances and looks at conduct of officers and characteristics of the accused.” Id. at 265-66 (citing United States v. Muhlenbruch, 634 F.3d 987, 998 (8th Cir. 2011)). Additionally, the waiver of Miranda Rights must be knowing and intelligent. See Castillo, 59 V.I. at 263 (“the issue regarding waiver of one’s right to remain silent is ‘whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case” (citing North Carolina v. Butler, 441 U.S. 369, 373 (1979))); Blyden v. People, 53 V.I. 637, 661 n.19 (V.I. 2010) (“After such warnings have been given, . . . the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement” (quoting Miranda, 384 U.S. at 479)). A “[k]nowing and intelligent waiver must be made with ‘full awareness of both the nature of the right being abandoned and the consequences|.]” People v. Berkley, 2019 VI SUPER 73, 4 59 (second alteration in original) (citing Castillo, 59 V.I. at 263 (quoting Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010))). Additionally, “[a] waiver must be ‘the product of a free and deliberate People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion choice rather than intimidation, coercion, or deception.” Castillo, 59 V.I. at 263 (quoting Berghuis, 560 U.S. at 382). 127 To elaborate, “[u]nder the Fifth Amendment ‘{a] statement is involuntary when it [is] extracted by threats, violence, or express or implied promises sufficient to overbear the defendant’s will and critically impair his capacity for self- determination.” Id. at 266 (first alteration in original) (quoting United States v. LeBrun, 363 F.3d 715, 724 (8th Cir. 2004)). Moreover, in Berghuis v. Thomphkins, the U.S. Supreme Court stated that a “knowing and intelligent waiver’ should be without indicia of coercion such as: ‘incapacitation or sedat{ion], sleep and food deprivation, [or] threats.” Berkley, 59 (alterations in original) (citing Berghuis, 560 U.S. at 387). 128 The U.S. Supreme Court ruled that procedural safeguards, i.e., Miranda Rights, are required before an individual can be constitutionally subjected to a custodial interrogation. See Ramirez, 56 V.I. at 418 (quoting Miranda, 384 U.S. at 444). In the present case, Detective James’ testimony supports that Frett was in custody, was given his Miranda Rights and did not explicitly waive such rights. The murder of Turnbull and assault on Witness #1 occurred on September 1, 2018. After Witness #1 identified Frett on September 2, 2018, Detective James successfully petitioned for an arrest warrant. On September 3, 2018, Frett was arrested and taken to the Major Crimes Office. While in custody, Detective James gave Defendant Frett a Warning as to Rights form, which Frett signed, although he initially refused to make a statement. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion {29 Although the Court finds that Frett was in custody and that he did not explicitly waive his Miranda Rights before making the statements, the Court must determine whether the statements were a result of interrogation, and whether the statements were voluntary or involuntary. See Castillo, 59 V.I. at 265-66. The Court will first determine whether Frett was under interrogation.!5 While Frett was at the Major Crimes Office, Detective James’ advised Frett of his constitutional rights and gave Frett a Warning as to Rights Form. Detective James states that he did not say anything else to Frett. Detective James also worked on Frett’s arrest report. Although Detective James testified that he cannot attest to whether the other officer present said anything to Frett, there is no argument in Frett’s Motion to Suppress and no facts to support the notion that the other officer interacted with Frett. See (Mot. Suppress). Therefore, the Court concludes that there were no “[i]nquiries, statements or conduct by . . . officers . . . reasonably calculated to elicit from [Frett] an incriminating response”, and consequently, no interrogation. See Castillo, 59 V.I. at 265 (citing Muniz, 496 U.S. at 600-01; Innis, 446 U.S. at 300-01). 30 Frett argues that the statements were not made voluntarily.!6 (Mot. Suppress 11). Following from the Court’s conclusion that Frett was not interrogated, i.e., no interaction occurred between Frett and the officers besides reading Frett’s ‘5 In this case, an interrogation analysis is instructive for determining whether Frett involuntarily waived his Miranda Rights when making the statements. 16 Erett also argues that he did not make the statements. However, there is no explanation in Frett’s Motion to Suppress and no facts presented in Detective James’ testimony to support this argument. People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion constitutional rights and giving Frett the Warning as to rights form, the Court finds that Frett’s statements were not “extracted by threats, violence, [] express or implied promises” or coercion. See Berkley, | 59 (citing Berghuis, 560 U.S. at 387); Castillo, 59 V.I. at 266 (internal quotation marks omitted) (quoting LeBrun, 363 F.3d at 724). 131 Frett also alludes that it is “highly unlikely’ he would have made the statements after “sign[ing] a Warning as to Rights [form and] .. . refus[ing] to give a statement.” (Mot. Suppress 10-11). However, the fact that Frett initially refused to make a statement, and then later made unprovoked statements, evinces that Frett had “full awareness of both the nature of the right being abandoned and the consequences” and made “a free and deliberate choice” to make the statements instead of remaining silent. See Castillo, 59 V.I. at 263 (quoting Berghuis, 560 U.S. at 382); Berkley, | 59 (internal quotation marks omitted) (citing Castillo, 59 VI. at 263 (quoting Berghuis, 560 U.S. at 382-83)). Additionally, no facts about Frett’s characteristics, e.g. educational level or age, have been presented to the Court that suggest a waiver of his rights would be involuntary. See Castillo, 59 V.I. at 265-66 (citing Muhlenbruch, 634 F.3d at 998). Therefore, under the totality of the circumstances, the Court finds that Frett waived his Miranda Rights voluntarily and the waiver was knowing and intelligent. See Castillo, 59 V.I. at 265-66 (citing Muhlenbruch, 634 F.3d at 998); Berkley, J 59 (citing Castillo, 59 V.I. at 263 (quoting Berghuis, 560 U.S. at 382-83)). People v. Aubrey Frett Case No. ST-18-CR-208 2019 VI Super 141U Memorandum Opinion CONCLUSION 32 Frett’s Motion to Suppress requests that the Court suppress in and out-of-court identifications by Witness #1 and Frett’s statements. However, the identification procedures, i.e., the photo array and drive-by, that were employed were not unduly suggestive. Therefore, the in and out-of-court identifications will not be suppressed. Additionally, Frett voluntarily waived his Miranda Rights when making the statements at the Major Crimes Office. Therefore, Frett’s statement will not be suppressed. Frett’s Motion to Suppress will be denied. An Order consistent with this Memorandum Opinion will be entered. DATED: October “s , 2019 LAL Ze cia Kathleen Mackay Judge of the Superior Court of the Virgin Islands 1 N Chief Deputy Clerk if ‘A idol 9