Petition for Writ of Certiorari — Auriel Devon Frett, Petitioner v. Territory of the Virgin Islands

APPENDIX TABLE OF CONTENTS

Opinion of the Supreme Court of the Virgin Islands

(February 22, 2017) ............................................ 1a

Order of the Third Circuit

(August 24, 2018) ............................................. 37a

Order of the Third Circuit Granting Petition for

Writ of Certiorari (September 7, 2017) ........... 39a

Second Order of Judgment and Commitment

(October 14, 2015) ............................................ 40a

Southwell Plea Agreement

(September 3, 2010).......................................... 43a

App.1a

OPINION OF THE SUPREME COURT

OF THE VIRGIN ISLANDS

(FEBRUARY 22, 2017)

IN THE SUPREME COURT OF

THE VIRGIN ISLANDS

________________________

AURIEL DEVON FRETT,

Appellant/Defendant,

v.

PEOPLE OF THE VIRGIN ISLANDS,

Appellee/Plaintiff.

________________________

S. Ct. Crim. No. 2015-0082

Re: Super. Ct. Crim. No. 452/2008 (STT)

On Appeal from the Superior Court of the

Virgin Islands Division of St. Thomas & St. John

Superior Court Judge: Hon. Harold W. L. Willocks

Before: Rhys S. HODGE, Chief Justice;

Maria M. CABRET, Associate Justice; and

Ive Arlington SWAN, Associate Justice.

SWAN, Associate Justice.

Appellant, Auriel Devon Frett (“Frett”), appeals

the judgment and commitment entered by the Superior

Court on October 14, 2015, which adjudged him guilty

of first-degree murder, first-degree assault and kidnapping for robbery, and sentenced him to life imprison-

App.2a

ment without parole. For the reasons elucidated below,

we affirm.

I. Facts and Procedural History

We previously expounded the salient facts of this

case in our prior reported opinion, Frett v. People, 58

V.I. 492 (V.I. 2013), in which this Court reversed Frett’s

convictions stemming from the robbery and murder

of Gabriel Lerner (“Lerner”).

Frett’s retrial commenced on June 8, 2015. Prior

to jury selection, Frett objected to the testimony of

the People’s first fact witness, retired Judge Brenda

J. Hollar, arguing that the prejudicial effect of her

testimony outweighed its probative value. The trial

court permitted Judge Hollar to testify and instructed

the jurors that they were not to give such testimony

greater weight due to the witness’s former position as

a judge. The jury also heard the testimony of John

Southwell (“Southwell”), who had previously been

charged with first-degree murder, together with Frett.

Southwell, however, consummated a plea agreement

with the People, pursuant to which he pleaded guilty

to second-degree murder and first-degree assault with

the predicate offense of robbery, and agreed to testify

against Frett. On both direct and cross-examination,

Southwell testified to the plea agreement and its terms,

which included a twenty-year incarceration sentence

on the murder charge and a ten-year incarceration

sentence on the robbery offense. By Frett’s motion,

the plea agreement was also admitted into evidence.

Southwell testified that on the morning of October

26, 2008, Lerner stopped to offer a ride to him and

Frett. Frett—while seated directly behind Lerner and

holding a black .380 caliber handgun—asked Lerner

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if he had ever been robbed before. Lerner surrendered

his wallet to Frett, who then directed Lerner to the

back seat of his vehicle. Frett then drove the vehicle

to a local grocery store in Estate Dorothea, where he

and Southwell used Lerner’s credit card to purchase

items. At trial, the jury viewed video surveillance

footage showing Frett and Southwell at the store.

Next, Southwell testified that Frett drove the vehicle

to Estate Hull Bay, where Southwell opened the trunk

and Frett forced Lerner inside. Southwell recounted

that Frett then drove to Estate Bordeaux, where he

stopped at a dirt road. Southwell and Frett removed

Lerner from the trunk, after which they walked along

a trail. Frett then ordered Lerner to turn around,

before shooting Lerner in the back of his head.

After the People’s presentment of evidence, Frett

unsuccessfully moved for a judgment of acquittal

under Federal Rule of Criminal Procedure 29. Frett

presented no witnesses in his defense. During Frett’s

closing summation, counsel urged the jury to consider

Southwell’s testimony with caution, as Southwell had

entered into a plea agreement with the People and

therefore had an “incentive,” presumably to falsely

implicate Frett in the murder. (JA at 604.) Frett’s

counsel then argued to the jury that Southwell opted

to enter into the plea agreement to avoid spending

the remainder of his life in jail. At that point, the

trial court interjected, sua sponte. The court instructed

the jury that any “term of incarceration” was “within

the sole province of the court,” and directed the jury

to refrain from considering such term when evaluating

the evidence. (JA at 604-05.)

Upon recommencing his closing argument, Frett’s

counsel told the jury that Southwell had “cut a deal”

App.4a

with the People in exchange for his testimony in Frett’s

trial. (JA at 605.) During the People’s rebuttal argument, the prosecutor urged the jury to consider whether

Southwell’s twenty-year sentence on the murder charge

was “such a great deal.” (JA at 612-13.) The prosecutor

also argued that Frett was guilty and stated that

neither an inference nor a presumption of innocence

existed. The People also claimed that Southwell had

accepted responsibility for his role in the murder and

posited to the jury that Southwell had testified truthfully.

In its final instructions to the jury, the court

directed the panel to consider Southwell’s testimony

with great care and caution, given the admitted evidence regarding his plea agreement with the People.

The court also instructed, “[i]f the accused be proven

guilty, say so. If proven not guilty, say so.” (JA at 65051.) Ultimately, Frett was adjudged guilty of all three

counts with which he was charged, and by the judgment and commitment order entered on October 14,

2015, he was sentenced to life incarceration without

the possibility of parole for the charge of first degree

murder.1 Frett timely filed a notice of appeal on November 3, 2015. See V.I. S. Ct. R. 5(b)(1).

II. Jurisdiction and Standard of Review

We exercise jurisdiction over this appeal pursuant

to title 4, section 32(a) of the Virgin Islands Code,

which provides, “[t]he Supreme Court shall have juris1 Frett was also sentenced to a period of incarceration of 45 years

for his kidnapping for robbery conviction, to run consecutive to

his first-degree murder charge, and 15 years for his first degree

assault-robbery conviction, which is to be suspended upon completion of the sentences for the other two charges.

App.5a

diction over all appeals arising from final judgments,

final decrees or final orders of the Superior Court, or

as otherwise provided by law.” It is well-established

that in a criminal case, the written judgment embodying the adjudication of guilt and the sentence imposed

based on that adjudication constitutes a final judgment

for purposes of this statute. Williams v. People, 58 V.I.

341, 345 (V.I. 2013) (collecting cases). The Superior

Court’s October 14, 2015, judgment and commitment

constitutes a final order, thereby vesting this Court

with jurisdiction. Id.

Our review of the trial court’s application of law

is plenary, while findings of fact are reviewed for clear

error. Tyson v. People, 59 V.I. 391, 400 (V.I. 2013).

Issues raised by an appellant for the first time on appeal

are reviewed for plain error. Id. In applying this standard, “this Court must find (1) an error, (2) that is plain,

and (3) that it affected substantial rights.” Freeman

v. People, 61 V.I. 537, 544 (V.I. 2014) (citing JacksonFlavius v. People, 57 V.I. 716, 721 (V.I. 2012)). If we

determine the error meets these requirements, this

Court may grant relief if we deem the error one which

seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Id. (citing Flavius,

57 V.I. at 721).

“When reviewing a challenge to the sufficiency of

the evidence leading to a conviction, the standard of

review is whether there is substantial evidence, when

viewed in the light most favorable to the government,

to support the jury’s verdict.” Gumbs v. People, S. Ct.

Crim. No. 2014–0069, ___ V.I. ___, 2016 WL 1713600,

at *3 (V.I. Apr. 26, 2016) (citing McIntosh v. People,

57 V.I. 669, 678 (V.I. 2012)); see Coleman v. Johnson,

132 S. Ct. 2060, 2064 (2012). We exercise plenary review

App.6a

over a trial court’s denial of a motion for judgment of

acquittal. Gumbs, 2016 WL 1713600, at *2 (citations

omitted).

III. Discussion

A.

Frett’s Due Process Rights Were Not Violated by

the Prosecutor’s Misstatement of the Law on the

Presumption of Innocence

Frett claims that the People, during its closing

argument, misstated the law by making repeated

comments implying that the presumption of innocence

had been eliminated prior to jury deliberations, thereby

violating his due process rights. Specifically, Frett

challenges two statements made by the prosecutor in

her rebuttal closing summation. First, the prosecutor

told the jury, “it is not that this defendant is innocent.

That is not it. He’s guilty. Guilty on each of those

counts. There’s no inference of innocence here today.

None whatsoever.” (JA at 611-12.) Shortly thereafter,

the prosecutor stated: “things turned really bad as a

result of [Frett]. As a direct result of Frett. There’s no

presumption here whatsoever of innocence.” (JA at

612.) Given that Frett failed to object to either of these

statements before the Superior Court, we review them

only for plain error. John v. People, 63 V.I. 629, 639

(V.I. 2015) (“[I]ssue[s] . . . not fairly presented to the

trial court for consideration . . . will be reviewed only

for plain error.” (citing Freeman, 61 V.I. at 544)).

Under the Fifth Amendment of the United States

Constitution, applicable in the Virgin Islands pursuant

to section 3 of the Revised Organic Act, a criminal

defendant is “guarantee[d] due process in all court

proceedings.” Rivera v. People, 64 V.I. 540, 571 (V.I.

App.7a

2016) (citing Simmonds v. People, 59 V.I. 480, 491 (V.I.

2013)). “A claim of prosecutorial misconduct during trial

requires a court to resolve two questions: whether

the prosecutor’s comments were in fact improper and,

if so, whether the remarks prejudiced the defendant’s right to a fair trial.” Monelle v. People, 63 V.I.

757, 770 (V.I. 2015). If the subject remarks do constitute misconduct, “we proceed to determine whether

that misconduct ‘so infected the trial with unfairness

as to make the resulting conviction a denial of due

process,’ taking into account ‘the entire proceeding.’” Gov’t of the V.I. v. Mills, 821 F.3d 448, 456 (3d

Cir. 2016) (citations omitted); Estick v. People, 62

V.I. 604, 617 (V.I. 2015). In our inquiry, this Court

examines “the scope of the objectionable comments

and their relationship to the entire proceeding, the

ameliorative effect of any curative instructions given,

and the strength of the evidence supporting the

defendant’s conviction.” Monelle, 63 V.I. at 770.

Reversal is warranted unless the error is harmless.

Connor v. People, 59 V.I. 286, 299 (V.I. 2013). If the

error is constitutional, “we will affirm [only] if we

find that the error is harmless beyond a reasonable

doubt.” Id. (alterations in original). Conversely, “if

the error is non-constitutional, we will affirm when it

is highly probable that the error did not contribute to

the judgment.” Id.

Indeed, “[p]rior to conviction, the accused is shielded by the presumption of innocence, the ‘bedrock[,]

axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our

criminal law.’” Betterman v. Montana, 136 S. Ct.

1609, 1614 (2016) (quoting Reed v. Ross, 468 U.S. 1, 4

(1984)). Our society’s belief that all are innocent until

App.8a

the state has proved them guilty is implicit in the concept of ordered liberty, United States v. Salerno, 481

U.S. 739, 763 (1987), and this presumption of innocence

“is a basic component of a fair trial under our system

of criminal justice.” Delo v. Lashley, 507 U.S. 272,

278 (1993). Accordingly, a defendant retains a presumption of innocence throughout the trial process, until a

jury returns a guilty verdict. Martinez v. Ct. of Appeal

of Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000).

At the outset, therefore, the prosecutor’s comments

that “[t]here’s no inference of innocence here today,”

and “[t]here’s no presumption here whatsoever of

innocence,” are both patently incongruous with the

fundamental legal principle that Frett was presumptively innocent throughout the entire trial, until the

time of conviction. Portuondo v. Agard, 529 U.S. 61, 76

(2000) (Stevens, J., concurring in judgment) (“[T]he

presumption of innocence . . . survives until a guilty

verdict is returned.”); Watts v. State, 370 P.3d 104,

108 (Wyo. 2016) (“[T]he presumption of innocence

remains with the accused until the jury concludes

that a conviction is warranted beyond a reasonable

doubt.”); State v. Peterson, 673 N.W.2d 482, 486 (Minn.

2004) (“One accused of crime has the right to have

the jury take [the presumption of innocence] to the

jury room with them as the voice of the law.”); State

v. Boots, 848 P.2d 76, 89 (Or. 1993) (“[D]oubt is only

removed when a jury returns a verdict of guilty, for

the presumption of innocence is a disputable question

which goes with the jury into the jury room for consideration.”).

Nevertheless, the fact that the prosecutor’s closing

remarks were incorrect or improper is not dispositive

of this issue because it does not provide per se grounds

App.9a

for a new trial. Estick, 62 V.I. at 617. As Frett accurately recognizes, the crucial question is whether the

misconduct “so infected the trial with unfairness as

to make the resulting conviction a denial of due process

in light of the entire proceeding.” Id.; Parker v.

Matthews, 567 U.S. ___, 132 S. Ct. 2148, 2153 (2012)

(“[A] prosecutor’s improper comments will be held to

violate the Constitution only if they so infected the

trial with unfairness as to make the resulting conviction

a denial of due process.” (quoting Darden v. Wainwright,

477 U.S. 168, 181 (1986)) (quotation marks omitted));

Marshall v. Hendricks, 307 F.3d 36, 67 (3d Cir. 2002)

(“[I]mproper conduct is not, in itself, sufficient to constitute constitutional error, even when—as here—

that conduct is alleged to be both deliberate and pervasive. Improper conduct only becomes constitutional

error when the impact of the misconduct is to distract

the trier of fact and thus raise doubts as to the fairness of the trial.”). It is apparent in this case that

although the prosecutor’s comments bearing upon the

presumption of innocence were improper, they did not

amount to constitutional error because the misstatements did not affect the outcome of the trial.

First, Frett’s analogizing this case to Mahorney v.

Wallman, 917 F.2d 469 (10th Cir. 1990) is unavailing.

The prosecutor in that case explicitly told the jury,

during voir dire, that the presumption of innocence

was not designed to protect every defendant, but rather,

only “those persons who are, indeed, not guilty of a

crime.” Id. at 471. He further elaborated that the presumption was “not intended to let those who are

guilty escape justice.” Id. Subsequently, in his rebuttal

argument, the prosecutor explained to the panel that

while they were duty-bound to presume the defendant

App.10a

innocent at the commencement of the trial, “things

ha[d] changed.” Id. Then, he offered a protracted explanation that the evidence at trial had removed the

presumption of innocence, and that the presumption “no

longer exist[ed]” and “[was] not there any more.” Id.

Crucially, defense counsel’s prompt and persistent

objections to these misstatements were all expressly

overruled by the trial court. Id. (indicating that defense

counsel immediately objected to each of the prosecutor’s statements, requesting that the jury be admonished to disregard them and moving for a mistrial,

and that the trial court responded each time by overruling the objections and granting defense counsel an

exception to its rulings). Essentially, therefore, the

trial court in Mahorney sanctioned the prosecutor’s

impermissible arguments, girded them with the court’s

imprimatur and exponentially enhanced their potential

prejudicial effect on the jury. See Cardona v. State,

185 So.3d 514, 524-25 (Fla. 2016) (“The [improper]

remarks were not isolated and were repeatedly

objected to, and when those objections were overruled,

it again stamped the judge’s imprimatur of approval

on the improper remarks.”); People v. Norton, 563

N.Y.S.2d 802, 811 (N.Y. App. Div. 1990) (“[W]hen, as

here, the court overrules the defendant’s objections,

and gives ‘standing to the statement of the District

Attorney as legitimate argument,’ . . . the possibility

of prejudice is greatly enhanced.”) (quoting People v.

Ashwal, 347 N.E.2d 564, 567 (N.Y. 1976)). The trial

court in Mahorney not only gave the appearance of

approving the misconduct, but the appellate court

found that it also abdicated its responsibility to specifically instruct the jury on the presumption of

innocence. 917 F.2d at 473-74. The appellate court’s

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prejudice determination was further influenced by

the fact that the jury had been presented with two

competing accounts of the events surrounding the

crime, neither of which was confirmed or discounted

by any extrinsic evidence. Id. at 474.

This case, however, is easily distinguishable from

Mahorney, primarily in the brevity of the prosecu-

tor’s remarks and the ameliorative effect of the trial

court’s extensive instructions to the jury. Here, the

prosecutor’s statements encompassed two perfunctory lines made during rebuttal argument, neither of

which garnered any objection from defense counsel.

Second, in its preliminary instructions to the jurors,

the Superior Court specifically directed, “the defendant is presumed innocent throughout the trial of this

case.” (JA at 226.) During the final instructions to the

panel, the court also properly instructed the jury on

the presumption of innocence as follows:

In this, as in any criminal case, the Defendant is presumed to be innocent until he is

proved to be guilty. Thus, Defendant[,]

although accuse[d], begins the trial with a

clean slate so to speak with no evidence

against him. This presumption of innocence

continues until overcome by proof establishing

guilt beyond a reasonable doubt. The burden

of proving each and every essential element

of the crimes charged is upon the government and always upon the Government.

[....]

The law does not require the Defendant to

prove his innocence. Accordingly, you must

assume the Defendant is innocent unless

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you’re convinced beyond a reasonable doubt,

after considering the evidence in the case

that he is guilty. The presumption of innocence alone, however[,] is enough to acquit

the Defendant if the People fail to prove

their case beyond a reasonable doubt. You

should evaluate the evidence admitted in

this case and determine the innocence or

guilt of the Defendant entirely in accordance

with these instructions.

(JA at 678-79.)

The Superior Court, in its preliminary instructions,

also cautioned the jurors that “closing arguments are

not evidence,” (JA at 226) and on at least three distinct

occasions during final instructions, the trial judge

reminded the jurors that they were not to consider

the lawyers’ statements and arguments as evidence.

As we have repeatedly held, this Court “must assume

that juries for the most part understand and faithfully

follow instructions.” Cascen v. People, 60 V.I. 392, 414

(V.I. 2014); see Lingar v. Bowersox, 176 F.3d 453, 46061 (8th Cir. 1999) (“When counsel misstates the law, the

misstatement is harmless error if the court properly

instructs the jury on that point of law or instructs that

the attorneys’ statements and arguments are not evidence.”); Bland v. Sirmons, 459 F.3d 999, 1015 (10th

Cir. 2006) (even where there has been misleading argument by counsel, the jury is presumed to follow its

instructions); Francis v. Franklin, 471 U.S. 307, 324

n.9 (1985) (“The Court presumes that jurors, conscious

of the gravity of their task, attend closely the particular language of the trial court’s instructions in a

criminal case and strive to understand, make sense of,

App.13a

and follow the instructions given them.”); Monelle v.

People, 63 V.I. 757, 770-71 (2015).

Lastly, in contrast to Mahorney, Southwell’s

testimonial account of the murder was supported by

the physical and testimonial evidence in the record,

further diminishing any possibility of prejudice to

Frett. Taking into account the entire proceeding, we

find that although the prosecutor’s statements constitute misconduct, the court’s failure to correct those

statements does not amount to plain error because the

statements did not infect the trial with unfairness as

to make the resulting conviction a denial of due

process, thereby affecting Frett’s substantial rights.

Fahie v. People, 59 V.I. 505, 511 (V.I. 2013) (“To affect

[an appellant’s] substantial rights, the error must be

prejudicial, which means that there must be a reasonable probability that the error affected the outcome of the trial.” Id. at 511 (quoting Elizee v. People,

54 V.I. 466, 479 (V.I. 2010))) (internal quotation marks

omitted).

B.

The People Did Not Commit Prosecutorial Misconduct in Its Use of Southwell’s Plea Agreement

Frett argues that the prejudicial cumulative effect

of three purported errors made by the People, with

regards to Southwell’s plea agreement, warrants the

reversal of the conviction in this case. Frett claims

that the prosecutor: (1) inserted a subjective belief as

to Southwell’s plea agreement into this case; (2) misstated the terms of the plea agreement; and (3) used

the plea agreement as substantive evidence against

Frett. Whether viewed individually or collectively, these

arguments are specious.

App.14a

Certainly, Frett is correct that a co-defendant’s

guilty plea may not be considered substantive evidence

of the defendant’s guilt. United States v. McGill, 815

F.3d 846, 897 (D.C. Cir. 2016); Gov’t of V.I. v. Mujahid,

990 F.2d 111, 115 (3d Cir. 1993). Such use of the plea

“poses the threat that a defendant will be found guilty

not on the basis of evidence against him, but on the

basis of a shadow cast by cases against others.”

United States v. Gambino, 926 F.2d 1355, 1367 (3d Cir.

1991). Nonetheless, evidence of a testifying witness’s

plea agreement may be introduced for probative purposes, such as to allow the jury to accurately assess

the witness’s credibility, to eliminate concern that the

jury may harbor concerning whether the government

has selectively prosecuted the defendant, and to explain

how the witness has first-hand knowledge concerning

the events about which he or she is testifying. United

States v. Universal Rehab. Servs. (PA), Inc., 205 F.3d

657, 665 (3d Cir. 2000) (citations omitted).

Frett contends that the prosecutor attempted to

diminish the plea agreement by suggesting to the jury

that Southwell’s twenty-year sentence was lengthy,

and that the prosecutor manipulated the plea agreement by implying that Southwell’s sentences required

him to spend thirty years in jail, as opposed to twenty.

In advancing his argument, Frett refers to the prosecutor’s following comments: “let’s think about it, is 20

years such a great deal, 20 years of your life. Twenty

years of John Southwell’s life. He got 10 years also on

the robbery.” (JA at 612-13.) First, the context and

sequence in which these comments arose are critical:

these remarks were made in the People’s rebuttal

argument, after and in reply to Frett’s emphasizing

to the jury during his closing summation that South-

App.15a

well and the People had “cut a deal.” (JA at 605.) Thus,

the prosecutor’s remarks were an invited and permissible beckoning to the jury to independently determine

whether “the deal” would have incentivized Southwell

to offer perjured testimony. Frett’s argument that the

People manipulated the terms of the plea agreement is

equally meritless. Indeed, the prosecutor did not overtly explain that the ten-year and twenty-year imprisonment terms were concurrent. However, we fail to see

how this fleeting statement prejudiced Frett, particularly considering that Southwell explicitly testified

that the sentences were concurrent and the executed

plea agreement—which was admitted into evidence

on Frett’s own request—unequivocally indicated that

the People agreed to recommend concurrent sentences.

Frett also asserts that the People repeatedly

stressed to the jury that Southwell had taken responsibility for his role in the murder by entering into a

plea agreement with the People. In Frett’s estimation,

the People therefore implied to the jurors that they

should convict Frett to make him “take responsibility”

as well. (Appellant’s Br. at 19.) First, while the prosecutor referred to Southwell taking responsibility for

his role in the crime, evidence of a co-defendant’s guilt

“is clearly admissible to show the witness’s acknowledgment of participation in the offense.” United States v.

Roth, 736 F.2d 1222, 1226 (8th Cir. 1984); accord United

States v. Woods, 764 F.3d 1242, 1246 (10th Cir. 2014).

These remarks were obviously an extrapolation from

the fact that Southwell had entered into a plea agreement with the People, and not an invitation to the

jury to infer Frett’s guilt as a result.

Second, the trial record is devoid of any evidence

that the prosecutor encouraged the jury to make Frett

App.16a

take responsibility for the murder by returning a guilty

verdict, and Frett does not refer to the same in his

brief. We recognize that, in this context, the prosecutor’s

comments would have been improper if they sought

to penalize Frett for choosing to not plead guilty, or

summoned the jury to conjure up negative inferences

about Frett’s assertion of his constitutional right to a

jury trial. But, a parsing of the trial court record

uncovers no comments from the prosecutor condemning

Frett, either explicitly or implicitly, for declining to

enter into a plea agreement with the People. Because

the People’s remarks did not use Southwell’s plea

agreement as substantive evidence of Frett’s guilt, this

argument is spurious.

C.

The People Did Not Engage in Vouching or

Improper Bolstering

Frett contends that the prosecutor committed misconduct by improperly vouching for Southwell’s credibility and bolstering his testimony. Frett premises

these claims on the prosecutor’s statements to the

jury that Southwell: (1) testified truthfully; and (2)

accepted responsibility for his role in the murder.

(Appellant’s Br. at 20.) As we have found no error in

the prosecutor’s argument that Southwell had accepted

responsibility for his participation in the murder, we

proceed to analyze whether the prosecutor’s comments

on Southwell’s veracity amounted to impermissible

vouching. And, given that the alleged vouching was

not objected to during the trial, we again apply plain

error review.

In the People’s closing argument, the prosecutor

stated:

App.17a

Southwell entered into an agreement with

the government. . . . The foundation . . . of this

agreement was for him to testify truthfully

in this matter, and he did. He came forward

today and he told you everything that happened during that period. He told you all

the details, all of the facts, and it’s very consistent with what was shown in the video. It

is very consistent with what occurred on October 28th during the police chase. So, he has

testified truthfully.

(JA at 593-94.)

Prosecutorial vouching for the credibility of a

government witness poses two dangers: “(1) such

comments can convey the impression that evidence not

presented to the jury, but known to the prosecutor,

supports the charges against the defendant and can

thus jeopardize the defendant’s right to be tried

solely on the basis of the evidence presented to the

jury; and (2) the prosecutor’s opinion carries with it

the imprimatur of the Government and may induce the

jury to trust the Government’s judgment rather than

its own view of the evidence.” Farrington v. People,

55 V.I. 644, 657 (V.I. 2011) (citation omitted). However,

to substantiate a claim that there was improper

vouching, two criteria must be met: (1) “the prosecutor

suggest[ed] to the jury that the witness is telling the

truth (2) because of personal knowledge the prosecutor

ha[d] about the witness’ testimony or ability to be

truthful.” Francis v. People, 56 V.I. 370, 388 (V.I. 2012).

Based on an exhaustive review of cases analyzing

vouching, the Third Circuit Court of Appeals, in United

States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998),

App.18a

enunciated the following precaution regarding this

test:

[I]t is not enough for a defendant on appeal

to assert that the prosecutor assured the

jury that a witness’ testimony was credible.

The defendant must be able to identify as

the basis for that comment an explicit or

implicit reference to either the personal knowledge of the prosecuting attorney or information not contained in the record. It follows

that where a prosecutor argues that a witness

is being truthful based on the testimony given

at trial, and does not assure the jury that

the credibility of the witness [is] based on

his own personal knowledge, the prosecutor

is engaging in proper argument and is not

vouching.

Id. at 187 (citations omitted).

In subsequent Third Circuit cases, it has become

even clearer that a statement merely asserting that a

witness is testifying truthfully will not amount to

improper vouching absent an indication that that

declaration purports to be based on the prosecutor’s

personal knowledge or opinion of the witness’s veracity

or evidence not presented to the jury.

For instance, in United States v. Rivas, 493 F.3d

131 (3d Cir. 2007), the prosecution stated of two witnesses: “they came here and they told you the truth

about what happened.” Id. at 138. Declining to view

this argument as impermissible vouching, the Court

of Appeals held that “the prosecution did not suggest

it knew from extra-record evidence that [the witnesses] were telling the truth.” Id. In United States v.

App.19a

Lore, 430 F.3d 190 (3d Cir. 2005), the prosecutor also

stated that a witness had offered truthful testimony,

while relying on evidence in the record for this assertion. The prosecutor argued, “ladies and gentlemen,

you’ll see that [the witness’s testimony] was also corroborated by other witnesses, other documentation

and other physical evidence . . . [and] was simply the

truth based upon the testimony and based upon the

evidence that was presented.” Id. at 212. Again, the

Court of Appeals found no improper vouching. First,

the court observed that in deciding whether statements to the jury improperly vouched for a witness’s

credibility, a court considers them in the context in

which they were given. Id. Then, the court elucidated

that “[the prosecutor] did not base his assurance on

claimed personal knowledge or evidence outside the

record . . . [and] [r]ather than invoke information not

contained in the record, the prosecutor urged the jury

to consider ‘the evidence that was presented.’” Id.

Similarly, here, the People did not engage in impermissible vouching. First, the prosecutor did not err in

arguing that Southwell’s plea agreement required truthful testimony because Southwell had testified to that

proviso and the plea agreement was in the record. See

United States v. Milan, 304 F.3d 273, 290 (3d Cir.

2002) (no improper vouching where prosecutor inquired

into witnesses’ cooperation agreements requiring

truthful testimony in exchange for a leniency recommendation, as prosecutor “never made any statement

that invited a plausible jury inference of extra-record

proof of reliability in the government’s exclusive

possession”); United States v. Saada, 212 F.3d 210,

225 (3d Cir. 2000) (“Because the prosecutor’s comments

as to why [the cooperating witnesses] had an incen-

App.20a

tive to tell the truth were based on th[e] evidence, they

constituted proper argument and not improper vouching.”).

Moreover, the prosecutor never insinuated that

she—for some extra-evidentiary reason— knew or was

assuring the jury that Southwell was telling the truth.

Crucially, a contextual reading of the prosecutor’s comments illustrates that immediately after she averred

that Southwell had been truthful, she directed the

jury’s attention to video footage which they had

viewed. As a whole, therefore, the prosecutor was not

assuring the jury that Southwell was being truthful

based on any personal knowledge or information she

harbored. United States v. Young, 470 U.S. 1, 11 (1985)

(“[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be

viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the

fairness of the trial.”); Mulley v. People, 51 V.I. 404,

414 (V.I. 2009) (“Improper ‘vouching’ occurs where a

prosecutor suggests that she has reasons to believe a

witness that were not presented to the jury.”). Admittedly, given that the jurors are the ultimate arbiters

of witnesses’ credibility, the phraseology of the prosecution’s remarks was, arguably, ill-advised. However,

for the reasons explicated, we do not conclude that the

People engaged in improper vouching.

Frett requests this Court to view the People’s

“multiple, flagrant examples of prosecutorial misconduct” cumulatively, as a basis for reversal. (Appellant’s Br. at 21.) However, as explained above, the only

error made by the prosecutor was her incorrect assertion during her rebuttal argument regarding the non-

App.21a

existence of the presumption of innocence. When viewed

against the entire trial record, that solitary error provides no grounds for reversal of this case.

D.

The Superior Court Committed No Error in Its

Jury Instructions

Next, Frett argues that doubt infects the validity

of the verdict because the Superior Court gave the

jury illegal instructions. As grounds for this claim,

Frett identifies the following instruction to the panel:

“[i]f the accused be proven guilty, say so. If proven

not guilty, say so.” Frett postulates that this instruction negates the presumption of innocence and inverts

the burden of proof. Again, because defense counsel

failed to object to this jury instruction, a new trial is

warranted only if the court erred in a manner which

satisfies the plain error test.

Preliminarily, we note that “[a] jury instruction will

generally not be invalidated unless it is shown that

the instruction substantially and adversely impacted

the constitutional rights of the defendant and impacted the outcome of the trial.” Freeman v. People, 61

V.I. 537, 544 (V.I. 2014) (citing Prince v. People, 57

V.I. 399, 405 (V.I. 2012)). And, “a claim of improper

instruction will rarely justify reversal of a criminal

conviction when no objection has been made in the

trial court.” Id. Importantly, this Court has long reiterated that “[a] challenge alleging reversible error in

jury instructions must be considered in light of the

complete jury instructions and the whole trial record.”

Monelle, 63 V.I. at 763 (collecting cases).

While the trial court’s instruction—read in complete isolation—could be taken to address burden-shifting, this is not a case where the court failed to instruct

App.22a

the jury on the presumption of innocence and the

People’s burden of proof. On the contrary, the Superior Court explained both legal tenets at length, going

so far as to twice remind the jury that the burden of

proof “never shifts” to the defendant. (JA at 678-79.)

As the United States Court of Appeals for the First

Circuit concluded when examining a practically identical instruction, “[i]t is highly improbable that the jury

would have been so impressed by that one passage in

the charge as to have ignored the multiple warnings

against presuming appellant had to prove that he

was not guilty.” United States v. Thomann, 609 F.2d

560, 566 (1st Cir. 1979).2 In that case, the First Circuit

emphasized, as we do here, that a single jury instruction must be viewed in the context of the overall charge.

Id. Since the trial court had properly instructed the

jury on the presumption of innocence and the government’s burden of proof, the Court of Appeals found no

grounds for reversal. Id.; United States v. Teresa,

420 F.2d 13, 18-19 (4th Cir. 1969) (Because jury instructions, taken as a whole, specifically stated the basic

rules by which defendant’s guilt or innocence was to

be determined, no reversible error found in the following charge: “[i]f the accused be proved guilty, say

so. If proved not guilty, say so.”).

When examined against the backdrop of the entire

jury instructions, we do not believe that the jury was

misguided by the trial court’s charge. Accordingly,

this single instruction did not impinge upon Frett’s

right to a fair trial or impact the outcome of the trial.

Nonetheless, we do not endorse utilization of this

2 The jury instruction at issue was: “[i]f either or both of the

defendants be proven guilty, say so. If either or both of the defendants be proven not guilty, say so.” Thomann, 609 F.2d at 565.

App.23a

jury instruction and think it wise for the trial court

to either omit this instruction altogether or modify

its language to avoid any inadvertent suggestion to

the jury that the defendant bears a burden to prove

his or her lack of guilt.

E.

The Trial Court Did Not Violate Frett’s Due

Process Rights by Failing to Instruct the Jury on

the Specific and Limited Uses of Southwell’s Plea

Frett argues that the trial court erred by failing

to instruct the jury on the limited use of Southwell’s

plea. He claims that in addition to instructing the

jury to examine Southwell’s plea with “great care and

caution,” the trial court should have, additionally,

precisely addressed the permissible purposes for which

the guilty plea could be used. (Appellant’s Br. at 24.)

Frett neither objected to the trial’s court’s failure to

instruct the jury in the manner which he now insists,

nor requested the jury instruction which he presently

demands. Therefore, we review for plain error.

When Frett’s prior case was before this Court, we

determined that the trial court should give the “great

care and caution” instruction when requested. We

further directed that unless there exists a reason

compelling its omission, this instruction should be

routinely given when the trial court is informing the

jury how to weigh the credibility of accomplices and

witnesses cooperating with the government in return

for some benefit. Frett, 59 V.I. at 515. We urged the

Superior Court to reconsider, on remand, its decision

to exclude such language from its instructions to the

jury, if requested by the defendant. Id.

During Frett’s trial in 2015, the court instructed

the jury in compliance with this directive. The court

App.24a

explained that the government was permitted to present Southwell’s testimony; urged the jury to consider such testimony with great care and caution;

instructed the jurors to make their own determination

on whether Southwell’s testimony may have been

influenced by the plea agreement; and directed the

jurors to give the testimony the weight they believed

it deserved. (JA at 660-61.) The Superior Court’s

detailed instructions were adroitly crafted and given

in accordance with this Court’s opinion. Therefore,

the trial court did not commit any error, much less

plain error, in failing to further instruct the jury as

to the precise ways in which the guilty plea could not

have been used. See Woodrup v. People, 63 V.I. 696,

721 (V.I. 2015) (“Given that the Superior Court’s instruction in this case was extensive and detailed, and

tracked the instruction we mandated . . . the Superior

Court did not commit error—let alone plain error—

even if it did not use the exact language we did in

that decision.”).

We nevertheless turn to the issue of whether this

Court should, at this juncture, adopt the standard

that the trial court must also specifically instruct the

jury on the limited use of a co-defendant’s testimony,

by explaining that a co-defendant’s plea must not be

used as substantive evidence of a defendant’s guilt.

We are mindful that “[t]he limitations on guilty plea

evidence . . . protect significant interests.” Mujahid,

990 F.2d at 116. Likewise, this Court is cognizant

that “admitting a co-defendant’s guilty plea can

jeopardize the fundamental fairness of a criminal trial

because of the likelihood that the jury may impute a

co-defendant’s guilt to the defendant.” Id. Therefore,

we hold that where a co-defendant’s guilty plea is

App.25a

being admitted in a defendant’s trial, the court must

specifically instruct the jury that this plea is not proof

of the defendant’s guilt and must be disregarded

when determining the defendant’s guilt or innocence.

Id. Where appropriate, the Superior Court may also

wish to consider the use or modified use of Third

Circuit Criminal Model Jury Instruction 4.19,3 which

encapsulates the following principle regarding the

limited use of the co-defendant’s plea:

The jury . . . should be instructed that it

may not consider the guilty plea and/or plea

agreement as evidence that the defendant is

guilty of the offenses with which he/she is

charged, but rather that such evidence is

offered only to allow the jury to assess the

witness’s credibility, to eliminate any concern

that the defendant has been singled out for

prosecution, or to explain how the witness

possessed detailed firsthand knowledge regarding the events about which he or she testifies.

3 The Third Circuit Court of Appeals Criminal Jury Instruction

4.19 provides in relevant part:

[You must not consider (name of witness)’s guilty

plea as any evidence of (name of defendant)’s guilt.

(His) (her) decision to plead guilty was a personal decision about (his)(her) own guilt. Such evidence is offered

only to allow you to assess the credibility of the witness; to eliminate any concern that (the defendant)

(any of the defendants) has been singled out for prosecution; and to explain how the witness came to

possess detailed first-hand knowledge of the events

about which (he) (she) testified. You may consider (name

of witness)’s guilty plea only for these purposes.].

App.26a

Universal Rehab. Servs., 205 F.3d at 668. Lastly, we

refer the Superior Court’s attention to 5 V.I.C. § 740(4),

which directs that where proper, the jury is to be

instructed that “[t]he testimony of an accomplice ought

to be viewed with distrust and the evidence of the

oral admissions of a party with caution.”

F.

The Trial Court’s Error in Sua Sponte Restricting

Defense Counsel’s Summation Did Not Violate

Frett’s Constitutional Rights

A trial court possesses broad discretionary power

over the scope of counsel’s closing arguments. Herring

v. New York, 422 U.S. 853, 862 (1975); United States

v. Eldridge, 984 F.2d 943, 946 (8th Cir. 1993); Gov’t

of the V.I. v. Commissiong, 706 F. Supp. 1172, 1185

(D.V.I. 1989) (“A trial court has broad discretion to

limit the time and scope of closing arguments as long

as the defendant is permitted to make all legally

tenable arguments supported by the facts brought out

at trial.”). However, an improper limitation on closing

summation may encroach upon a defendant’s Sixth

Amendment right to counsel and a defendant’s due

process rights. See State v. Frost, 161 P.3d 361, 365–

66 (Wash. 2007); Goodrich v. State, 854 So. 2d 663,

664-65 (Fla. Dist. Ct. App. 2003).4 The United States

4 The Fifth and Sixth Amendments, as well as the Due Process

Clause of the Fourteenth Amendment, are applicable to the

Virgin Islands by virtue of section 3 of the Revised Organic Act.

48 U.S.C. § 1561 (“The following provisions of and amendments

to the Constitution of the United States are hereby extended to

the Virgin Islands to the extent that they have not been previously extended to that territory and shall have the same force

and effect there as in the United States or in any State of the

United States . . . the first to ninth amendments inclusive [and]

the second sentence of section 1 of the fourteenth amendment.”).

App.27a

Supreme Court has further instructed that improper

restriction on closing argument, even where it violates

the Constitution, does not necessarily rank as structural

error requiring automatic reversal. Glebe v. Frost, 574

U.S. ___, 135 S. Ct. 429, 430-31 (2014) (“Only the rare

type of error—in general, one that infect[s] the entire

trial process and necessarily render[s] [it] fundamentally unfair—requires automatic reversal. None of

our cases clearly requires placing improper restriction

of closing argument in this narrow category.” (citations

and internal quotation marks omitted)). The Court expounded, “[e]ven assuming that Herring established

that complete denial of summation amounts to structural error, it did not clearly establish that the restriction of summation also amounts to structural error.”

Id. at 431.

Frett argues that the trial court erred by its sua

sponte action in interrupting his closing argument,

which enabled the subsequent jury instructions to

undermine his entire core defense. Frett complains of

the following interaction between his counsel and the

trial judge, and the court’s admonition to the panel:

[Attorney Joseph:] The [c]ourt will tell you . . .

[that] you must weigh with great caution the

testimony you heard from Mr. Southwell

because he has an incentive. This for that.

You want me to say Frett did it, and I[’m]

going [to] get a break. That’s [Frett’s] problem

. . . [I] can’t spend the rest of my life in jail.

The Court: Sustained. Ladies and gentlemen any

term of incarceration, if any, is within the

Rivera-Moreno v. Gov’t of the V.I., 61 V.I. 279, 315 n.11 (V.I.

2014).

App.28a

sole province of the [c]ourt. Do not consider

that when making your determination.

(JA at 604-05.)

We glean that Frett sought to underscore Southwell’s supposed incentive to falsify his testimony by

highlighting the variance between the sentence Southwell potentially faced—life imprisonment—and that

which he received subsequent to the plea agreement.

On one hand, there is no indication in the trial court

record that the jury was specifically presented with

evidence that Southwell was facing a mandatory life

sentence prior to his plea agreement. Nevertheless,

closing arguments “represent the parties’ last, best

chance to marshal the evidence and persuade the jurors

of its import,” United States v. Taylor, 54 F.3d 967,

977 (1st Cir. 1995), and Frett’s theory that Southwell

had an incentive to testify mendaciously was warranted by the testimony and plea agreement which had

been entered into evidence. Further, even assuming

that the jurors did not possess knowledge that the

maximum penalty for first-degree murder is life imprisonment, they could have easily and reasonably deduced

that Southwell was subject to a considerably lengthier

and/or harsher sentence before he consummated the

plea agreement with the People.

As counsel is allowed latitude to vigorously argue

reasonable inferences from the evidence adduced at

trial, we agree that the court’s instruction to the jury

was in error. James v. People, 59 V.I. 866, 888 (V.I.

2013) (“[T]he cardinal rule of closing argument [is] that

counsel must confine comments to evidence in the

record and to reasonable inferences from that evidence.”) (citing United States v. Lopez-Medina, 596 F.3d

716, 740 (10th Cir. 2010)); United States v. Weatherly,

App.29a

525 F.3d 265, 272 (3d Cir. 2008) (“It is permissible for

counsel to argue inferences [which] flow logically and

convincingly from the facts in the record.”); Commonwealth v. D’Amato, 526 A.2d 300, 309 (Pa. 1987) (“[A]

defense attorney must have reasonable latitude in

presenting a case to the jury and must be free to present

his or her arguments with ‘logical force and vigor.’

Counsels’ remarks to the jury may contain fair deductions and legitimate inferences from the evidence presented during the testimony.” (citations omitted)).

We do not accept, however, the assertion that

Frett was denied his due process right to a “meaningful

opportunity to present a complete defense,” California

v. Trombetta, 467 U.S. 479, 485 (1984), or his Sixth

Amendment right to make final arguments on his

theory of the defense, in contravention of Herring v.

New York, 422 U.S. 853 (1975). While cross-examining

Southwell, defense counsel questioned him on the

offenses with which he was initially charged, the

charges to which he ultimately pleaded guilty and

the People’s sentencing recommendations under the

plea agreement, before requesting that the executed

plea be admitted into evidence. Further, defense counsel

asked Southwell whether he had been told that he

“could get early parole or a reduced sentence,” if

Frett were convicted. (JA at 535.) Frett’s counsel also

unequivocally stated to Southwell, during crossexamination, “you don’t know what the truth is and

the truth is Mr. Frett did not shoot Mr. Lerner. You

did it.” (JA at 546.) Most tellingly, during his closing

summation and without the court’s interjection, Frett’s

counsel posited to the jury:

Yes, [Southwell’s] facing first degree murder

charges. He’s facing first degree robbery.

App.30a

He’s facing reckless endangerment, and so

they cut a deal. And so the [c]ourt will tell

you the Government is permitted to present

testimony of someone who has reached a

plea bargain with the Government. And

they get some benefit in exchange for their

testimony, but you should treat such testimony with great care and caution.

(JA at 605.)

The thrust of the defense theory, “that Southwell

was not credible given his incentive to lie and implicate

Frett,” (Appellant’s Br. at 31) was exceedingly apparent

to the jury. Without question, Frett was freely permitted

his trial strategy of undermining Southwell’s credibility

by challenging his motives for testifying.5 For these

reasons, we conclude that the court’s errors did not

deny Frett his right to a fair trial, and this issue provides no justification for reversal.

G.

The Trial Court Did Not Err in Allowing Judge

Brenda J. Hollar to Testify

According to Frett, the trial court erred by allowing

Lerner’s supervisor, retired Judge Brenda J. Hollar,

5 The fact that defense counsel was interrupted when specifically stressing the variance between life imprisonment and the

sentences Southwell actually received also did not eliminate

defense counsel’s entire theory, as Frett contends. The difficulty

with this argument is that the trial record contained no evidence that Southwell was facing a mandatory life sentence in

the first place. Frett’s counsel neither questioned Southwell on

the maximum penalty nor cross-examined him on the number of

years by which his sentences were reduced in accepting the

plea. And, such information was not contained in the plea agreement which Frett requested be entered into evidence.

App.31a

to testify as a fact witness during the trial. He argues

that Judge Hollar’s testimony was unduly prejudicial

so as to outweigh its probative value. We review the

Superior Court’s evidentiary rulings for an abuse of

discretion, unless the court’s decision involves application of a legal precept, in which case we exercise

plenary review. Simmonds v. People, 59 V.I. 480,

485-86 (V.I. 2013).

Rule 403 of the Federal Rules of Evidence6 provides as follows: “[t]he court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Because particular deference is afforded to the court’s determinations from Rule

403 balancing, “we may not disturb the trial court’s determination unless we find that the court acted arbitrarily or irrationally.” Alexander v. People, 60 V.I.

486, 494 (V.I. 2014). Likewise, there is a presumption

in favor of admitting relevant evidence, and “judicial

restraint is . . . desirable” when reviewing a trial

court’s ruling under Rule 403. Francis, 56 V.I. at 38586. Importantly, “careful limiting instructions to the

jury have been held to mitigate the potential prejudice arising from evidence deemed admissible

following a Rule 403 balancing.” Tyson, 59 V.I. at 424.

6 The Virgin Islands Legislature adopted the Federal Rules of

Evidence to govern the admission of evidence in the Superior

Court on April 7, 2010. 2010 V.I. Sess. Laws 50 (Act No. 7161,

§ 15(b)). We note that under Promulgation Order 2017-0002, the

Virgin Island Rules of Evidence are made effective March 21,

2017, and under Rule 403 of those rules, the Virgin Islands retains

Fed. R. Evid. 403’s balancing test.

App.32a

First, we are unpersuaded by Frett’s contention

that he was prejudiced by the jury’s purported inclination to believe Judge Hollar’s testimony. The testimony

was both brief and factual and it does not appear

that Frett took issue with its veracity or otherwise

considered it objectionable. More significantly, however, in deciding to permit the testimony of Judge

Hollar, the court properly balanced its probative value

against its prejudicial effect. First, the court appropriately requested a proffer as to the content of the

testimony. Then, the court questioned the People at

length as to the relevance of the testimony, to which

the People averred that they sought to relay the

events which led to the search for Lerner and explained that Judge Hollar would identify Lerner in an

exhibit. The court then heard Frett’s argument as to

the potential prejudice of the testimony, before taking

the matter under advisement.

Upon deciding to allow the testimony, the court,

guided by Hatcher v. McBride, 650 S.E.2d 104 (W. Va.

2006), implemented further precautionary measures

to mitigate any potential prejudicial effect on the

jury. First, during voir dire, the prospective jurors

were questioned about their knowledge of or affiliation

with Judge Hollar. Additionally, the trial judge prohibited character testimony and directed that Judge

Hollar be referred to as “Ms. Hollar.” (JA at 267-70.)

Moreover, the court instructed the jurors, both prior

and subsequent to Judge Hollar’s testimony, that they

were the sole determiners of the weight to be given to

the judge’s testimony, which was not entitled to more

credence based on Judge Hollar’s former position.

Having considered these factors, we conclude that the

App.33a

trial court did not abuse its discretion in this regard,

and we find no reason to disturb its ruling on this issue.

H. The Evidence Was Sufficient to Support the Jury’s

Verdict

Frett argues that the trial court erred in denying

his Rule 29 motion for judgment of acquittal, contending that the evidence in this case was insufficient to

support the jury’s findings. Primarily, Frett contends

that he was improperly convicted by the testimony of

a single interested witness, whose testimony was

unreliable. We summarily reject this argument.

First, we underscore that this Court must apply

a highly deferential standard of review to the jury’s

verdict, as we do not serve as usurpers of the role of

the jury. We do not engage in second-guessing the

evidence presented at trial, and we are not responsible

for re-weighing the credibility of witnesses. Thomas

v. People, 60 V.I. 183, 191 (V.I. 2013) (citing Augustine

v. People, 55 V.I. 678, 684 (V.I. 2011)); Connor, 59 V.I.

at 305 (collecting cases). Additionally, we have long

reiterated that the testimony of a single witness is

sufficient to support a conviction, even if uncorroborated and contradicted by other testimony. Percival v.

People, 62 V.I. 477, 487 (V.I. 2015) (quoting Connor, 59

V.I. at 291); Webster v. People, 60 V.I. 666, 681-82 (V.I.

2014); Cascen, 60 V.I. at 406 n.4; Francis v. People,

57 V.I. 201, 211 (V.I. 2012). Lastly, Frett presented

the issue of Southwell’s credibility to the jury, and it

was entirely within the jury’s province to accept or

reject Southwell’s account of the events surrounding

Lerner’s murder. Therefore, this Court is mindful that

a “sufficiency challenge is not a vehicle to relitigate

credibility arguments that were unpersuasive to the

App.34a

trier of fact.” Webster, 60 V.I. at 681 (quoting Billu v.

People, 57 V.I. 455, 466 (V.I. 2012)) (quotation marks

omitted).

We have previously explicated the standard for

reviewing an appellant’s sufficiency-of-the-evidence

claim. This Court must “view the evidence in the light

most favorable to the People, and affirm the conviction

if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable

doubt.” Webster, 60 V.I. at 678-79 (quoting Cascen,

60 V.I. at 401); see Cavazos v. Smith, 565 U.S. 1, 7

(2011). Therefore, “a finding of insufficiency of the

evidence should be confined to those cases in which

the prosecution’s failure to establish the elements of

the crime is clear.” Fahie v. People, 62 V.I. 625, 630

(V.I. 2015).

Frett’s argument that there was insufficient evidence to sustain a conviction is belied by the evidence

in the record. While under oath, Southwell testified

that on the morning of October 26, 2008, Lerner stopped

to offer a ride to both him and Frett. Southwell further

testified that when in the car, Frett asked Lerner if

he had ever been robbed before, while holding a black

.380 caliber handgun. Frett forced Lerner into the

back seat of the vehicle, and then drove to a grocery

store in Estate Dorothea, where he and Southwell

purchased items with Lerner’s credit card. The jury

also viewed video surveillance footage depicting Frett

and Southwell at that store. Next, Southwell testified

that Frett drove to Estate Hull Bay, where Southwell

opened the trunk and Frett put Lerner inside. Frett

then drove Lerner’s car to Estate Bordeaux and stopped

at a dirt road. Southwell explained that he and Frett

removed Lerner from the trunk and proceeded to

App.35a

walk along a trail. According to Southwell, Lerner

asked Frett if he was about to be killed, in response

to which Frett ordered Lerner to “turn around [and]

shut up.” (JA at 478.) Southwell testified that, standing four to five feet away, he then saw Frett shoot

Lerner in the back of his head, which was consistent

with autopsy findings. When viewed in the light most

favorable to the People, there was ample evidence to

convict Frett beyond a reasonable doubt of all

criminal charges. The trial court, therefore, did not err

in denying Frett’s Rule 29 motion for judgment of

acquittal.

IV. CONCLUSION

Although the prosecutor misrepresented the law

on the presumption of innocence during her closing

argument, these remarks did not infect the trial with

such unfairness that the conviction was a denial of

Frett’s due process rights. The trial court did not err

either in its jury instructions on the use of Southwell’s

plea or its decision to permit the testimony of retired

Judge Brenda J. Hollar. Further, the court’s erroneous

interjection and limitation of Frett’s closing argument

did not violate Frett’s due process rights. Lastly, the

jury’s verdict was supported by sufficient evidence.

Accordingly, we affirm the Superior Court’s October

14, 2015 judgment and commitment.

Dated this 22nd day of February, 2017

By the court:

/s/ Ive Arlington Swan

Associate Justice

App.36a

Attest:

Veronica J. Handy, Esq.

Clerk of the Court

App.37a

ORDER OF THE THIRD CIRCUIT

(AUGUST 24, 2018)

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________________

AURIEL FRETT,

Petitioner,

v.

PEOPLE OF THE VIRGIN ISLANDS,

Respondent.

________________________

No. 17-1830

(D.V.I. Nos. V.I. S. Ct. Crim. No. 2015-0082,

V.I. Super. Ct. Crim. No. 452/2008)

Before: KRAUSE, ROTH, FISHER, Circuit Judges.

As the petition for certiorari in this case was

filed on April 13, 2017, this case is dismissed for lack

of jurisdiction. See Vooys v. Bentley, No. 16-3912, ___

F.3d ___, slip op. at 4 (3d Cir. Aug. 21, 2018) (holding

that this Court lacks certiorari jurisdiction for petitions

of certiorari filed on or after December 28, 2012).

App.38a

By the Court

/s/ Cheryl Ann Krause

Circuit Judge

Dated: August 24, 2018

NMR/cc:

Nancy F. Lucianna, Esq.

Ian S.A. Clement, Esq.

Dwyer Arce, Esq.

Edward L. Barry, Esq.

John-Russell B. Pate, Esq.

App.39a

ORDER OF THE THIRD CIRCUIT GRANTING

PETITION FOR WRIT OF CERTIORARI

(SEPTEMBER 7, 2017)

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________________

AURIEL FRETT,

Petitioner,

v.

PEOPLE OF THE VIRGIN ISLANDS,

Respondent.

________________________

No. 17-1830

(V.I. S. Ct. Crim. No. 2015-0082)

Before: MCKEE, JORDAN and

RESTREPO, Circuit Judges.

The foregoing petition for a writ of certiorari is

granted. Judge Jordan would have voted to deny the

petition.

By the Court

/s/ L. Felipe Restrepo

Circuit Judge

Dated: September 7, 2017

App.40a

SECOND ORDER OF

JUDGMENT AND COMMITMENT

(OCTOBER 14, 2015)

IN THE SUPERIOR COURT

OF THE VIRGIN ISLANDS,

DIVISION OF ST. THOMAS AND ST. JOHN

________________________

PEOPLE OF THE VIRGIN ISLANDS,

Plaintiff,

v.

AURIEL DEVON FRETT,

Defendant.

________________________

No. ST-08-CR-452

Before: Harold W.L. WILLOCKS,

Administrative Judge of the Superior Court.

THIS MATTER came before the Court for sentencing on September 8, 2015. Jury selection and trial

was held from June 8, 2015 to June 11, 2015. The

jury made the following findings:

Count One: Defendant is found Guilty of Count

One of the Second Amended Information, to wit:

Murder in the First Degree, in violation of Title

14, Section 922(a)(1).

Count Two: Defendant is found Guilty of Count

Two of the Second Amended Information, to wit:

App.41a

Assault in the First Degree, in violation of Title

14, Section 295(3).

Count Three: Defendant is found guilty of Count

Three of the Second Amended Information, to wit:

Kidnapping for Robbery, in violation of Title 14,

Section 1052(a).

The Pre-sentence report was received. The Court

hereby enters judgment as follows in accordance with

the verdict:

Count One

Ordered, Adjudged and Decreed, that Defendant

is found Guilty of Count One of the Second Amended

Information, to wit: Murder in the First Degree, in

violation of Title 14, Section 922(a)(1). It is further:

Ordered, Adjudged and Decreed, that Defendant is

remanded to the care, custody and control of the Bureau

of Corrections for a period of incarceration of Life

Without Parole.

Count Two

Ordered, Adjudged and Decreed, that Defendant

is found Guilty of Count Two of the Second Amended

Information, to wit: Assault in the First Degree, in

violation of Title 14, Section 295(3). It is further:

Ordered, Adjudged and Decreed, that Defendant is

remanded to the care, custody and control of the Bureau

of Corrections for a period of incarceration of fifteen

(15) years. All will be suspended upon completion of

sentence for Counts One and Three.

App.42a

Count Three

Ordered, Adjudged and Decreed, that Defendant

is found Guilty of Count Three of the Second Amended

Information, to wit: Kidnapping for Robbery, in violation of Title 14, Section 1052(a). It is further:

Ordered, Adjudged and Decreed, that Defendant is

remanded to the care, custody and control of the Bureau

of Corrections for a period of incarceration of forty

five (45) years to run consecutive to Count One. It is

further

Ordered, Adjudged and Decreed, that Defendant

may appeal this sentence within thirty (30) days of

entry of Judgment.

DONE and So ORDERED this 13th day of October,

2015.

/s/ Harold W.L. Willocks

Administrative Judge of the

Superior Court

Attest

Estrella George,

Acting Clerk of the Court

By: /s/ {Illegible}

Court Clerk Supervisor

Dated: 10/13/2015

App.43a

SOUTHWELL PLEA AGREEMENT

(SEPTEMBER 3, 2010)

DEPARTMENT OF JUSTICE

OFFICE OF THE ATTORNEY GENERAL

________________________

St. Thomas, U.S.V.I.

(340) 774-5666

(340) 776-3494 Fax

St. Croix U.S.V.I.

(340) 773-0295

(340) 773-1425 Fax

Arturo Watlington, Jr. Esq.

Attorney for Defendant

Law Offices of Arturo Watlington

P.O. Box 261

St. Thomas, Virgin Islands 00804

Re: People of the Virgin Islands v. John J.

Southwell, ST-10-CR-382

Dear Attorney Watlington:

Please be advised that the People of the U.S.

Virgin Islands hereby extend the following plea offer

to your client.

The Defendant, JOHN J. SOUTHWELL, is currently charged in a nine-count Information, identical to

the charges brought against AURIEL DEVON FRETT,

consisting of one count of Murder in the First Degree,

in violation of Title 14 V.I.C. §§ 921, 922(a)(1); one

count of Felony Murder, in violation of Title 14 V.I.C.

§ 922(a)(2); one count of Assault in the First Degree-

App.44a

Robbery, in violation of Title 14 V.I.C. § 295(3); one

count of Kidnapping for Robbery, in violation of Title

14 V.I.C. § 1052(a); one count of Reckless Endangerment, in violation of Title 14 V.I.C. § 625 and four (4)

counts of Using a Firearm During the Commission of

a Crime of Violence, in violation of Title 14 V.I.C.

§ 2253(a)(2)(B).

Mr. Southwell may plead guilty to Count X of an

amended Information, Murder in the Second Degree,

in violation of Title 14 V.I.C. § 922(b). Murder in the

Second Degree carries a mandatory minimum sentence

of not less than five (5) years imprisonment with no

maximum sentence. He shall also plead guilty to Count

IV, Assault in the First Degree-Robbery, which carries

a maximum sentence of not more than fifteen (15) years

incarceration.

Defendant shall plead guilty as an adult before

the criminal court. Should he plead guilty as indicated,

the People, at sentencing, will move to dismiss all

remaining counts.

Our recommendation at sentencing will be as

follows:

1. A period of twenty (20) years incarceration.

Both sentences shall run concurrently with credit for

time the defendant has spent in custody during the

pendency of this matter including while he was a

minor.

As part of this offer, Mr. Southwell will be required

to testify truthfully at the trial of People of the Virgin

Islands v. Auriel Devon Frett, Crim. No. F452/08. Mr.

Southwell’s testimony must, in sum and substance,

also be consistent with the statement he provided to

the Virgin Islands police detectives and executed on or

App.45a

about October 28, 2008. Failure to testify truthfully

at trial, or any hearing or proceeding including deposition or videotaped deposition regarding the matter

herein, will be considered a violation of the agreement

and shall render the terms and conditions of the plea

agreement null and void.

As part of this agreement, Defendant also agrees

that once the plea is accepted by the court, that he

will withdraw his Notice of Appeal and Amended

Motion For Stay Pending Appeal currently pending in

the Supreme Court. Acceptance of the above-stated

plea offer must be done in writing, BY SIGNING THIS

LETTER IN THE SPACE PROVIDED BELOW indicating that acceptance and returning the original, by

fax or otherwise, to this office.

I believe the Office of the Attorney General has

provided you with all the discovery required pursuant

to court rules. However, we invite you to examine the

contents of our files at a mutually convenient time

prior to accepting the plea should you wish to do so.

Please feel free to contact the undersigned counsel

at 774-5666 extension 163, to discuss the plea offer

and any other concerns you may have.

App.46a

Sincerely,

Vincent F. Frazer, Esq.

Attorney General

By: /s/ Renee Gumbs Carty, Esq

Renee Gumbs Carty, Esq.

Assistant Attorney General

Accepted by Defendant

/s/ John Southwell

Date: 9-16-10

Witnessed by Attorney

/s/ Adam Walker, Esq

Date: 9-16-10