IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

PEOPLE OF THE VIRGIN ISLANDS, )
) CASE NO. ST-20-CR-235
Plaintiff, )
v. )
)
JABAAR MACTAVIOUS, )
) 2021 VI Super.1i8U
Defendant. )
i)
KIMBERLY M. RILEY, ESQ. FREDERICK A. JOHNSON, JR., ESQ.
Assistant Attorney General Assistant Territorial Public Defender
V.I. Department of Justice P.O. Box 6040
34-38 Kronprindsens Gade St. Thomas, V.1. 00804
St. Thomas, V.1. 00802 Attorney for the Defendant

Attorney for the People of the Virgin Islands
CARTY, RENEE GUMBS, Judge

MEMORANDUM OPINION

4] BEFORE THIS COURT is Defendant's motion to suppress filed on August 27, 2021.
The People of the Virgin Islands (the “People”) filed their opposition on September 2, 2021, and
a Suppression hearing was held on September 20, 2021, via Zoom. The People were represented
by Assistant Attorney General Kimberly M. Riley, Esquire. Jabaar Mactavious (“Defendant” or
“Mactavious”), was present and represented by Territorial Public Defender Frederick A. Johnson,
Jr., Esquire. Defendant's motion seeks to suppress the out-of-court identification made-by the
witness and any in-court identification the witness may make because a double-blind photo array

should have been administered, and a single-blind photo array is inherently suggestive.

' Double-blind is an adjective that can modify any procedure, interaction, or experiment that may take place between
two parties when both parties are “blind”-that is without knowledge—about some aspect of the interaction. In this
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235

Memorandum Opinion

q2 The Court heard the sworn testimony of the sole testifier, Virgin Islands Police Detective
Nigel James (“Detective James”). The photo array used by law enforcement was identified and
admitted into evidence, to which Defendant had no objection for the purpose of the suppression
hearing. The Court also heard the parties’ closing arguments. Based on the evidence adduced at
the hearing, the Court does not find the pre-trial identification procedure used by Detective James
impermissibly or unduly suggestive. Further, even analyzing the totality of the circumstances, the
Court arrives to the same conclusion: there was no substantial likeliliood of misidentification.

Therefore, this Court will deny Defendant Mactavious’ motion.

I. FACTUAL BACKGROUND

In the early morning of April 16, 2020, Jabaar “Juba” Mactavious played dominoes at, or
near, 173-308 Estate Tutu Valley, St. Thomas, Virgin Islands, when he noticed Shaq’kil Roberts
(“Roberts”) nearby eating pizza. Mactavious left the domino table to confront Roberts. A verbal
aitercation transpired and Mactavious slapped Roberts’ pizza onto the ground. Subsequently,
Roberts walked towards the table where Defendant and witnesses played dominoes, and
Mactavious went to his vehicle. Upon Mactavious’ return to the table, he revealed a firearm and
shot Roberts multiple times, killing him. That evening, Mactavious went to the police station to
turn himself in. However, after speaking with officers, the police collected “under-clothes and

shoes” from Defendant for the major crimes unit to inspect and subsequently released Mactavious.

context, double-blind refers to a law enforcement procedure, such as a lineup or photo array, where the administrator
does not know which lineup member or photograph in an array is the suspect and neither does the witness. Single-
blind refers to a law enforcement procedure where the administrator knows which individual or image is the suspect
but the witness does not. See generally, Margaret Bull Kovera & Andrew J. Evelo, The Case for Double-Blind Lineup

Administration, 23, PSYCH. PUB. POL. AND L., 421, 422 (2017) (discussing single-blind and double-blind procedures
in the context of a lineup).
People of the Virgin Islands v. Jabaar Mactavious 2021 VI Super !18U
Case No. ST-20-CR-235

Memorandum Opinion

The following day, Defendant fled St. Thomas to Miami, Florida. Two months later on June 17,
2020, Mactavious was arrested in Durham County, North Carolina, and eventually transported
back to the Virgin Islands on August 14, 2020.

94 On September 3, 2020, the People charged Mactavious with ten (10) felony charges
consisting of: murder in the first degree; use of a firearm during the commission of murder in the
first degree; murder in the second degree; use of a firearm during the commission of murder in the
second degree; assault in the first degree; use of a firearm during the commission of an assault in
the first degree; assault in the third degree; use of a firearm during the commission of an assault in
the third degree, reckless endangerment in the first degree; and unauthorized possession of
ammunition. A suppression hearing regarding a witness' identification of Defendant from a photo
array was held on September 20, 2021.

q5 Detective James, an experienced detective for approximately six (6) years, testified he was
the lead investigator. He obtained a photograph of Mactavious from another witness. As part of
the general practice of a criminal investigation, Officer Vernon Carr of the forensic unit compiled
six (6) photographs to create a photo array to present to Detective James. Detective James also
testified the photo array was not in a sealed envelope or covered in any way and he was able to see
all six (6) images in the array.

16 Detective James interviewed two witnesses present during the homicide, but only one of
the witnesses out-of-court identification of Defendant is challenged here. Detective James testified
he and Detective Cherese Thomas (“Detective Thomas”) of the juvenile division met with the
witness in the Four Winds Plaza parking lot approximately two weeks after the incident. Detective
Thomas was not assigned to the case but was present to gain experience in homicide investigations.

The witness sat in the back seat of the unmarked police vehicle. Detective James further testified
3
People of the Virgin Islands v. Jabaar Mactavious 2021 VI.Super {18U
Case No, ST-20-CR-235

Memorandum Opinion

he handed the photo array of six images to the witness and asked him “if he recognized anyone in
the photo array.” This witness knew Defendant prior to the homicide for approximately five to ten
(5-10) years. The witness “immediately and without hesitation” identified the person in photo
number three, the top right photo, as “Juba,” Defendant’s nickname. The witness circled, signed,
and dated the photograph demonstrating confidence in his selection. There was no video taken for
the administration of this photo array.

q7 Defendant asks this Court to suppress this photo array--the witness’ out-of-court
identification—and any potential in-court identification of Mactavious at trial. For the following
reasons, this Court will not suppress the out-of-court identification and the witness will be allowed

to make an in-court identification at trial.

If. LEGAL DISCUSSION

18 Defendant argues the photo array was impermissibly suggestive. because the
circumstances surrounding the identification were not conducted through a double-blinded
administration of the photo array. In other words, because Detective James received the photo
array after he obtained Mactavious’ photograph sent to him by the other witness, he knew the
position of Defendant in the photo array and should not have administered the array. Accordingly,
Detective James may have, consciously or subconsciously, administered the array in a suggestive
manner by phrasing the question asked to the witness in a suggestive way, or demonstrate via body
language whether the witness identified the correct suspect. Defendant argues the array should
have been administered by someone unfamiliar with the case to avoid any conscious or

subconscious suggestive behavior and such administration should have been video-recorded.
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235
Memorandum Opinion
q9 In support of this argument, Defendant posits the U.S. Attorney General’s memorandum
published January 6, 2017, to aid law enforcement conduct out-of-court identifications mandates
this Court to enforce such practices. Defendant insists the memorandum “should be considered by
this court as authoritative on conducting a non-suggestive photo array.” By not following the
guidelines from the memorandum, the method used by law enforcement here was inherently
Suggestive. Altematively, if the memorandum is not binding, Defendant argues the procedures
used by the VIPD should be changed to a mandatory double-blind procedure whenever
administering a photo array as a matter of policy.
qlO0 The People highlight the lack of evidence indicating law enforcement intentionally or
unintentionally acted in an impermissibly suggestive manner. Furthermore, the VIPD does not
mandate the double-blind administration of arrays and Detective James did not violate any
procedures when administering the photo array to the witness. The People also argue the fact that
the administration was not memorialized in video goes to the weight, not the admissibility, of the
evidence. Therefore, the People ask this Court to deny Defendant's motion.

A. Standard for Analyzing Motion to Suppress a Photo Array.
qil A pre-trial identification procedure violates constitutional due process if the procedure is
so unnecessarily suggestive as to create a substantial likelihood of irreparable misidentification.
Garcia v. Government of the Virgin Islands, 48 V.1. $30, 536 (D.V.I. App. Div. 2006) (citing Neil
v. Biggers, 

 (1972)). Courts employ a two-part test to determine whether an
identification procedure violates constitutional due process. Richards v. People, 53 V.1. 379, 387
(V.1. 2010). First, the court must determine whether the identification procedure was unnecessarily

suggestive. Richards, at 387. If the procedure was not unnecessarily suggestive, the inquiry ends
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235
Memorandum Opinion
there. However, if it was unnecessarily suggestive, the court then decides whether the
identification that occurred was reliable despite the suggestive procedure. /d.
412 To determine reliability, “the [c]ourt considers the totality of the circumstances to
determine whether it. was so suggestive as to give rise to a substantial likelihood of
misidentification.” Potter v. People of the V1, 56 V.1. 779, 789 (V.1. 2012). When evaluating the
totality of the circumstances, courts consider factors such 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 demonstrated by the
witness at the [identification]; (5.) and the length of time between the crime and the [identification].
People of the V.I. v. Boyce, No. SX-13-CR-092, 

 (Super. Ct. Oct. 6,
2014) (quoting Biggers, at 199-200).

B. The Pre-Trial Identification Procedure was Not !mpermissibly Suggestive.
{13 Defendant argues the procedure was inherently tainted because the photo array was not
administered in a double-blind fashion. Defendant argues the pre-trial identification procedure
could not have been conducted in a nonbiased manner because Detective James knew Mactavious
was the primary suspect when administering the photo array to the witness. Consequently,
Defendant asserts Detective James may have acted in a manner that persuaded the witness to select
the suspect known by Detective James. This may have occurred consciously or subconsciously,
through body language or verbal cues which ultimately skews the reliability of the out-of-court
identification. The alternative proposition as Defendant argued required Detective Thomas, who
was unfamiliar with Mactavious, to have administered the photo array. The People argue there is
nothing in the record to show any suggestiveness nor is evidence provided showing law

enforcement intentionally or unintentionally impacted the witness’ selection from the photo array.
6
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235
Memorandum Opinion

Any disputes Defendant has about such evidence can be addressed during the cross-examination
of the witness at trial.

{!4 Courts hold the circumstances surrounding the out-of-court identification may not be
impermissibly suggestive when a photo array is administered by law enforcement in a single-blind
or nonblind manner to a witness who identifies a criminal defendant. See generally, Ann K.
Wooster, Annotation, Manner in which Photographic Array Shown by Police to Witness Is
Displayed, or Police Officer's Alleged Nonverbal Cues, as Factor in Determination of Whether
Circumstances of Witness's Identification of Criminal Defendant, as Person in Photograph within
Array, Were Impermissibly Suggestive as Matter of Federal Constitutional Law, 8 A.L.R. 7th
Art. 5 (2016). State and federal jurisdictions together examined circumstances where law
enforcement employed a single-blind technique and determined the technique does not violate
constitutional law. The First Circuit affirmed where a witness has prior familiarity with the suspect,
no amount of police suggestion is likely to influence the witness’ identification. United States v.
Veloz, 

 (D. Mass. 2015), aff'd, 

 (1st Cir. 2020). The Sixth
Circuit held there is no authority that single-blind photo arrays conducted by law enforcement are
per se impermissibly suggestive. United States v. Starnes, $

 (6th Cir. 2014). The
Eighth Circuit asserted there is no requirement that pre-trial identification procedures conducted
by law enforcement be administered by officials who are independent from the investigation in
order to avoid impermissible suggestiveness. U.S. v. Boston, 

 (8th Cir. 2007).

{!5 Similarly, the Northern District of Georgia rejected an argument that photo arrays
administered in a non-double-blind manner is automatically suggestive. United States v. Steele,
No. 1:14-CR-0147-WBH, 

, at *5 (N.D. Ga. Aug. 27, 2015). States such as

California, Connecticut, Massachusetts, Minnesota, New Jersey and Ohio ali concur there is
7
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235

Memorandum Opinion

nothing inherently suggestive about administering a single-blind photo-array. See People v. Lucas,

, 

, 

 (2014); People v. Armstrong, 

 (Cal. App. Ist Dist. 2014); State v. Johnson, 

, 

 (2014);
Com. v. Silva-Santiago, 

, 

 (2009); State v. Richmond, 

 (Minn. Ct. App. 2013); State v. Scott, 

 (N.J. Super. Ct. App. Div.
2013); State v. Simpson, 

, 

.

{i6 = In the case sub judice, the witness knew Mactavious for five to ten (5-10) years prior to the
incident and was present at the time of the incident. The photo array administered in a non-blind
manner is not per se suggestive in this jurisdiction. The VIPD adheres to similar principles
articulated in the memorandum Defendant puts forth and policies adopted by other jurisdictions.
The VIPD uses photo arrays compiled by the forensic unit, where they select photographs of
individuals with similarities in facial features, hair styles, complexion, color of clothing, lighting,
etc. Jurisdictions across the United States and U.S. territories justify non-blind administration of
photo arrays are not unnecessarily or unduly suggestive per se.

{17 Here, the administration of the photo array was rendered unbiased, unsuggestive, and the
detective asked the witness to select the suspect by circling, initialing, and dating the photo. This
procedure is not dissimilar to other jurisdictions. There is nothing in the record to suggest that
Detective James performed any suggestive conduct when administering the photo array to the
witness. The fact that Detective James tendered an unseated photo array has no bearing on the
witness’ prompt identification of Defendant, whom he knew for years and was present at the
incident. Additionally, the recording would not have changed the suggestiveness of the
administration of the photo array. As the People argued, the lack of video recording goes not to

the admissibility but to the weight jurors choose to place on such evidence. In sum, Defendant has
8
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235
Memorandum Opinion
not set forth a single fact to support this argument that Detective James’ conduct, words, or tone,
suggested the selection of Mactavious. Combining this with the immediacy of the witness’ out-of-
court identification, this Court concludes there was not a likelihood of irreparable
misidentification, much less a substantial one.

C. The U.S, Department of Justice’s Memorandum Does Not Bind This Court.
418 Defendant also argues the memorandum from the U.S. Attorney General’s office should
be “considered by this court as authoritative on conducting a non-suggestive photo-array.”
Defendant further posits the VIPD should adopt the double-blinded administration procedures
articulated in the memorandum because single-blinded administrations are inherently suggestive.
The Court dismisses this argument.
ql9 The memorandum explicitly states, “nothing in this memorandum implies that an
identification not done in accordance with these procedures is unreliable or inadmissible in court.”
Sally Q. Yates, U.S. DEp’T OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GEN., MEMORANDUM
ON EYEWITNESS IDENTIFICATION: PROCEDURES FOR CONDUCTING PHOTO ARRAYS, (Jan. 6, 2017).
The memorandum further states, “this document is not intended to create, does not create, and may
not be relied upon to create any rights, substantive or procedural, enforceable at law by any party
in any matter civil or criminal. Nothing in these procedures implies that an identification not done
in accordance with them is unreliable or inadmissible in court.” /d@. The memorandum is clear: in
essence, recommendations from this memorandum may not be used as evidence against the People,
or Government, and does not detract against the reliability of methods used by law enforcement
agencies.
"20 The Court is mindful of its role in our tripartite system of government and the separation

of powers that applies to all branches of government in the Virgin Islands. Gumbs v. Schneider
9
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235

Memorandum Opinion

Reg'l Med. Ctr., 73 V.1. 358 (Super. Ct. 2020); Smith v. Magras, 

 (3d Cir. 1997).
The Court interprets the law and does not set or suggest policies to any agency of the other branches
of government. Thus, this Court will not suggest what policy or policies the VIPD should adopt
regarding the administration of a photo array, rather, only determine whether such policies are
unduly suggestive.

q2| The same argument was made and examined in United States v. Matthias, No. CR 2016-
0025, 2017 WE 2434458 (D.V.L June 5, 2017). As with this case, Matthias argued, “the failure to
follow the DOJ-sanctioned procedures renders the identification procedure impermissibly
suggestive per se.” Id. at *3. In response, the District Court of the Virgin Islands cited the direct
language from the memorandum and reasoned there was no testimony suggesting the detectives
administering the photo array engaged in any suggestive behavior. Similar to the case at hand, the
witness identifted the defendant instantly and was “very confident in his selection.” /d. at *5. The
District Court of the Virgin Islands concluded the Virgin Islands Police Department's failure to
incorporate any practices recommended by the federal zovernment did not render the conduct as
unduly suggestive per se. Id. at *6.

422 Defendant does not challenge the construction of the photo array, but the manner in which
it was administered, by insisting a detective unrelated to the case should have administered the
photo array. Yet, this does not inherently make the administration more reliable than a single-blind
administration. Even if Detective Thomas administered the photo array, Defendant cannot escape
from the fact the witness knew Mactavious for many years and was actually present at the time of
the shooting. Here, as with Matthias, law enforcement had no opportunity to taint the pre-trial

identification process. The witness’ familiarity of Mactavious contributed to the identification of

10
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235
Memorandum Opinion

him in the photo array. Therefore, there is nothing to suggest the out-of-court identification

procedure administered by Detective James was unduly suggestive.

D. Even if the Pre-Trial Procedure was Impermissibly or Unduly Suggestive, the
Totality of the Circumstances Does Not Suggest a Substantial Likelihood of
Misidentification.

{23 = The Court need not inquire as to the reliability of the witnesses identification because the
array and its presentation was not unduly suggestive. However, even if the Court analyzed the
totality of the circumstances, the identification would still be permissible. As provided supra,
courts consider the opportunity of the witness to view the suspect at the time of the crime, the
witness’ degree of attention, the accuracy of the witness’ prior description of the suspect, the levet
of certainty demonstrated by the witness when identifying the suspect, and the length of time
between the crime and the identification of the suspect. See People of the V.1, v. Freit, No. ST-18-
CR-208, 

, at *7 (Super. Ct. Oct. 18, 2019) (quoting Biggers, at 199-200).
424 The witness observed, firsthand, Defendant confront and shoot Roberts. The witness also
reported a detailed account of the incident that matched the description from another witness. The
witness provided accurate details in the description of Mactavious. Furthermore, the witness
identified Defendant from the photo array immediately and signed and dated the photo array to
demonstrate their confidence. None of these factors suggest a substantial likelihood of
misidentification.

{25 One factor that does favor Defendant is the length of time between the crime and the
identification. Detective James administered the photo array approximately thirteen (13) days after
the incident. However, the fact that the witness knew Mactavious for years diminishes this factor
in favor of Defendant. Nevertheless, even when considering the totality of the circumstances, it

favors the reliability of the witness’ identification.
11
People of the Virgin Islands v. Jabaar Mactavious 

Case No. ST-20-CR-235
Memorandum Opinion

Il. CONCLUSION

"26 —_—[n conclusion, the Court does not believe the pre-trial identification procedure utilized by
Detective James was impermissibly or unduly suggestive. This Court finds the pre-trial
identification procedure employed to be sufficient and proper. Considering the totality of the
circumstances, although not required, there has been no substantia! likelihood of misidentification.
The Court finds there was untainted identification of Defendant. Therefore, the Court will deny

Defendant Jabaar Mactavious’ motion to suppress. An appropriate order follows.

Dated: December 10s , 202}

of the Virgin Islands

ATTEST:
Tamara Charles
Clerk of the Court

ERTIFI TRUE oath
‘is day 08
a CHAR

ae Court Clerk

By:
fy Court Clerk Supervisor f2 123! DH

12
ful

IN THE SUPERIOR COURT, OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

PEOPLE OF THE VIRGIN ISLANDS, )
)
Plaintiff, )
v. ) CASE NO. ST-20-CR-235
)
JABAAR MACTAVIOUS, )
) 2021, VI Super 118U
Defendant. )
ed)
ORDER

THIS MATTER came before the Court on September 20, 2021, for a suppression hearing,
via Zoom. Defendant filed his motion to suppress on August 27, 2021. The People of the Virgin
Islands (the “People”) filed their opposition on September 2, 2021. Based on the representations made
by counsel and for the reasons set forth on the record, it is hereby

ORDERED that Defendant’s motion to suppress is DENIED; and it is further

ORDERED that the final pre-trial conference shall come on Monday, April 25, 2022, at
9:30 a.m.; and it is further

ORDERED that jury selection is scheduled on Monday, May 23, 2022, at 9:00 a.m. with
trial to commence sometime during the one (1) week period; and it is further

ORDERED that a copy of this Order shall be distributed to Assistant Altorney General
Kimberly M. Riley, Esquire and Territorial Public Defe

Dated: December / y) , 2021

der Frederick A. Johnson, Jr., Esquire.

hudge of the

of the Virpi
ATTEST:
Tamara Charles
Clerk of the Court CE TO BEA TRUE COPY
This ('4" day of | 20
By: TAMARA CHARLES

CLERK RT
Court Clerk Supervisor 2) £3! LUY ORG cour Clerk