IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS )
)
Plaintiff ) CASE NO ST 2020 CR 00003
vs )
)
SHEKIL JAMAC BERTHIER )
)
Dchndant )
)
2022 VI Super U11
MEMORANDUM OPINION
fill THIS MATTER is bLfDI‘L the Court on Defendant’s Motlon to Suppress filed
SLpthbLl" 24 2021 1
1T2 This momma to suppress came on for hearmg on October 20 2021 Thu Pwplc
0f the Virgin Islands ( the People ) were represented by Assistant Attorney General
Nadja D Harrigan Case manager, Detective Tamika Beazer, also appeared, seated
at tht. Pwple’s Lounscl table DLandant Shckll Berthler appeared and was
represented by Adam G Chnstian Esq Defendant Berthier seeks to suppuss thL
out of court and m court identlfications of Berthier
fl?) DLandant Shula] BLI‘thiLl was arrested on January 3 2020 and ls charged
with third deglee assault in violation of 14 V I C § Z97(a)(2) unauthorized
possession of a firearm during the commlssion of a third degree assault in violation
\ lhe motion is fully 17mm 1m PLUplL filed an opposlnon 0n 0mm 1; 2021 and the defendant
filed Ierly 0n 0mm 19 20m
People 01 the V11 gm Islands v Shem Be: [[1191
Case No ST 1020 CR 0000? Cite a 2022 VI Suer U11
Memorandum Opmion
Page 2 cf 18
of 14 V I C § 2203(2)) reckless endangerment in the first degree m violatlon of 14
V I C § 625(a) and unauthonzed possesswn of firearm ammunition in violatlon of
14 V] C §2256(a)
114 Berthier argues that the identlficatxon made by the victlm, Renaldo Penn was
the product of unnecessanly suggestlve procedures by the Virgin Islands Police
Department ( VIPD ’) 1n V1013t10n 0f hls Fourteenth Amendment duc proenss rlghts
The People argue that the proudures used in constructlon 0f the photo array and its
subsequent presentation to Mr Penn satlsficd the relevant legal standard For the
reasons set forth herein the motion Will be denied
BACKGROUND AND PROCEDURAL POSTURE
11') At the suppression hearing the People called three witnesses VIPD Detective
ChLI‘LSL 1homas VIPD Crlmc Scene Techmcian ( CST ) Debra Mahoney and VIPD
Detective Tamika Beazer The Defendant did not tall any witnesses
‘‘16 The parties agreed by stipulation to admit the following exhibits Peoples
Exhibit M1 Renaldo Perms statement to VIPD dated October 16 2019 PLoples
Exhibit M2, a drivcr‘s liccnsc search conducted on Berthier through the Bureau of
Motor Vehicles( BMV ); People 3 Exhlblt M3 a supplement report for the photo array
and a cnpy of the photo array Wlth Berthier 5 photo included PLoplL 5 Exhibit M4 3
copy of the photo army with Berthlers photo arched and mcluding Renaldo Penn 5
signature dated December 23 2019 at 9 20am Defendant’s Exhibit M1 Renaldo
Penn 5 statement to VIPD dated October 16 2019 Defendant 5 Exhibit M2 the photo
People aftbe Vugm Manda ; .51191‘1/ Berthzez
Case No ST 2020 CR 00003 Cite as 2022 VI Super U11
Memorandum Opnmon
Page 3 of 18
array with Berthier’s picture elrcled and including Renaldo Penn 3 s1gnature dated
December 23 2019 at 9 203m and Defendant s Exhlbit M3 a driver’s license search
conducted on Berthiet
1W Dunng the hearing the Court also admltted Defendant 5 Exhibit M4, a table
detailing the tlmLS of sunsets and sunnses in St Thomas, Virgm Islands in October
2019 from tlmeanddate com only to be used as gtneral information for tht
approximate time of the sunrise and sunset during the month of October 2019 The
Court also admitted Defendant s Exhibxt M5 U S Department ofJusticc Office of the
Deputy Attorney General Memorandum Eyew1tncss Identlfication Procedures for
Conducting Photo Arrays’ ( DOJ Memorandum ) from January 2017 The Court
admitted Defendants M5 with reservations the exhibit w1ll only be used to mform
the Court that the federal government had a standard for conductmg photo arrays
in 2017
1T8 Berthler argues that VIPD lacks a process for constructing and presenting
photo arrays and that the tonstructinn and later presentatlon of the photo array in
this case were unnecessarily suggestlve Therefore Berthxer argues Mr Penn 5 out
of court identification and all future identlficatlons by Mr Penn must be suppressed
as a violatlon of BLI‘tthI‘ s Fourteenth Amendment due process fights The People
counter that the photo array and its prustntation met the two prong test requinng
(1) identification not he unnecessarily suggestive and (2) that the identification was
Sally Q Yates U s DEPT OF Jusqm OHM UP THE DEPUTY ATTORNEY um MEMORANDUM 0N
EYl-WITNESSlDEz\TIF101\T10l\ Pnocmnums l-()R CnNnutTINo PHOTO ARRAY§ (Jan 6 2017)
People (21 the 1315111 Islands V Shela] 391212191
Case No ST 2020 CR 00003 Cite as 2022 VI Super U11
Memniandum Opinion
Page 4 0f 18
reliable because the officer who constructed the army selected photos of persons With
similar physical Characteristics to the defendant and Mr PLDH was familiar with the
defendant pI‘IOI‘ to the incident The People therefore argue that the motion to
suppress should be dCDILd
FACTS
HQ On October 16 2019 Detective Thomas, who has been a law enforcement
OfflCeY‘ with VIPD for twenty two (22) years and was then assigned to the Juvenile
Bureau 5 took a statement from Mr Perm regarding an incident that had Just
occurred Mr Penn stated that sometime after 7 00PM on October 16 2019 he was
attempting to park near his residuum, but another vehicle was blanking his way A
young man was standing outsidt tht. vehicle and the driver was in the VChlclL Mr
Penn asked them to move the vehicle but they did not Mr Penn got out ofhis vehicle
and the young man standing out51de the vehicle left entered a residane brought out
a rifle and thereafter fired one shot at Mr Penn who was standing in front of his
truck The shot hit Mr Perms truck on the drivur’s Side windshield Mr Penn
described the shooter as young (in his teens to early twenties) slim and ‘red
skin With braids Mr Penn did not know the young man s name or where he lived
but said he was familiar with thL young man who he had seen around the
LBy the time of the suppression hearing DetectivL Thomas was assigned to the VIPD Major CrimLs
mt
People of the Vugm [bIEHdb v Shela! Bu Hum
Case I\0 ST 2020 CR 00003 Cite as 2022 VI Supel U11
Memorandum Opmion
Page a of 18
nelghborhood because the young man’s uncle lived nearby Mr Penn also stated that
he believed the young man 5 name was “Shekil”
1’10 Detectlve Thomas testified that she arrived on the scene fifteen (15) minutes
after the inudcnt occurred Her report reflects a tlmc and date of 7 50pm on October
16 2019 4 She testlfied that the incident occurred on an estate road, and she could
not remember whether there were streetlights on the road However Detective
Thomas testlfied that there was hght emanating from the sunoundmg residences
She testified that Mr Penn 5 truck was approx1mately fifteen (15) to twenty (20) feet
away from thL nearest resldence
1111 After Detective Thomas took Mr Penn 5 statement 5}“, took steps to Identlfy
the young man She determined that Shekil Berthier attended Ivanna Eudora Kean
ngh School and was employed as a driver fur Paradise Gas Company So, she
bCIiLVLd 11L must hold a valid Vlrgin Islands drivers license §he Investigated his
hcense at the BMV and confirmed he had a valid drivers license Detective Thomas
then obtamed Berthier 5 photograph from the BMV and added 1t to the case file to be
used m a photo array Detective Thomas asked the forensics umt to prepare a photo
array Ultimately, the case was turned over to Detective Beazer who also asked the
forensics unit to prepare a photo array CST Debra Mahoney prepared the photo
array
4 It IS unclear 1f the time llStLd on the neport IS when Detectxve Thomas anived on the scene, when
she began the report or completed 1t
People aims hzgm Islands v 51mg] 591111191 ‘
Case No ST 2020 CR 00003 Cite is 2022 VI Super U11
Memorandum Opinion
IagL 6 of 18
W12 CST Mahoney has been with VIPD for twenty two (22) years and has been
assigned to the forensics unit for her entire tenure She testified that she had no
information about who would view the photo array she constructed for this matter
She rtceived Berthiers photo from Detective Beazer To build the array CST
Mahoney searchcd the BMVs system for photos of individuals who had similar
Characteristics to Berthitr, 1 a , young men with earrings light complexions and a
braided hairstyle of cornrows or plats With the braids sticking up (although she
could not find any photos of persons with their braids sticking up) She also
ton51dered the shapes of persons noses in selecting photos for the array To find the
photos through the BMV, CST Mahoney testified that she had to enter random names
into the system In total it took her about an hour to build the photo array CST
Mahoney created a Single photo array for this matter
1"13 DLtLCtiVe Tamika Beazer has been With VIFD for six (6) years At the time of
the facts giving rise htreto, in 2019 she was assigned to the VIPD Criminal
Investigation Bureau 0 Detective Beazer was the detective as51gned to handle the
incident reported by Renaldo Penn She requested a photo array to present to the
victim On December 23 2019 Detective Beazet along With her colleague Detective
Jamaal Fleming presented Mr Penn with a physmal color copy of the photo array
Detective Beazer testified that she had seen the photo array prior to presenting it to
Mr Penn, but she had had no hand in the preparation of the array When she
J At the time of the suppressiun he uing Detective Hewett was assigned to the High Intensity Drug
Trafficking Areas (HID’I‘A) T \sk Forte
People offhe Vugm Islands v Shela] Bet tine:
Case No ST 2020 CR 00003 Cite as 1012 VI Super U11
Memorandum Opinion
Page 7 of 18
presented the array to Mr Perm Detective Beazer told him to choose the person who
shot at you ” Within two seconds Mr Penn selected Berthier circled the photograph
of Berthier and Signed and dated the copy of the photo a1 ray Detective Beazer
testified that Mr Penn looked at the photo array and immediately selected Berthier
Detectives Beazer and Fleming were with Mr Penn for no more than one or two
minutes because hlS identification of Berthier was very quick The interaction with
Mr Penn was not recorded by audio or Video and neither Detective Beazer nor
Detective Fleming took notes to document the interaction
1714 Detective Thomas testified that VIPD has a standard operating procedure
manual that addresses the ways Vittims may identify a suspect She said the manual
spec1fically addresses photo arrays and that the manual was last updated in the
19805 Detective Beazer testified that she is not aware of any written procedure for
creating or presenting photo arrays, and she is not aware of the 19805 manual that
Detective Thomas mentioned Detective Beazer tCStlflCd the training process is
hands on conducted only by learning from other detentives She said the procedure
is as follows VIPD shows the witness a photo array the Witness selects a photo and
then the witness signs dates, and notes the time of their selection on the copy of the
photo array but that VIPD does not tell the WltnLSS who to identify nor does VIPD
pressure the Witness to make a selection CST Mahoney testified that she is not aware
of any written procedures for constructing or presenting a photo array and she did
not follow any written procedures when she created the photo array in this case CST
Mahoney testified that she never received any formal training for how to build photo
People of the Vugm [claims V 51291111 361 212191
Case No ST 2020 CR 00003 Cite as 2022 VI Super U11
Memorandum Opmion
Page 8 of 18
arrays but that she learned how to construct an array from other officers, on the job
Both CST Mahoney and Detectlve Beazer said they were not familiar With the terms
‘blinded’ or double blinded suspect identification procedure 5
LEGAL STANDARD
1115 The Fourteenth Amendment to the Umted States Constitution states 111
pertinent part that no state shall deprlve any person of hfe hherty or property,
without due process of law U S CONST amend XIV § 1 The due process clause 15
made applicable to thL Virgm Islands pursuant to section 3 of thL Rev1sed Orgamc
Act of 1954 Rlcbdldb v People 03 VI 379 r384 n 2 (VI 2010) (citing ’Ihe Revised
Orgamc Act of 1954 § 3 48 U S C § 1561 zepunted 111 VI Code Ann Histurlcal
Documents Organic Acts and U S Constitution at 86 (1990) (preceding VI Code
Ann tit 1))
11 16 The V I Supreme Court has adopted a two part test for reviewmg out of court
identificatmns for due process violatwns under the Fourteenth Amendment
orlginally articulated by the U S Supreme Court Soc R1011a1ds 53 VI at 384 87
(cxting first Stoval] V Denna 388 U S 293 (1967) then N011 V Bzggels 409 U S 188
(1972) and Manson V Blatbwaztc 432 U S 98 (1977)) As Rlchaz (1.9 V People states
‘ In this context double blind refers to a law enfoxccmmt ploCedllre such as a lineup or photo dxray
where the admlniStlatOI does not know the lineup number or photoglaph m an array is the SuspLLt
and nexthex does the witness Single blind refers to a 11w enforcement procedure when the
admimstmtm knows Which individual or image is the SuhpLLt but the Witness does not People affine
Vugm Islands U Maciauious 2021 VI Super 118U 11 1 n 1 (citing Margaret Bull Kovera & Andrew J
Evelo The Case f0? Double Blind Lineup Admmistmtiun 23 P§Y( H PUB POL AND L 421 422 (2017))
People offlze VIIgm Is] mds V She1nI Bu thxez
(ass N0 ST 2020 CR 00003 Cite as 2022 VI Super U11
Memmandum Opinion
Page 9 of 18
[fhrst [the court] detnrmines whether the identification procedure was
unnecessarily suggestive and if so [it] must decide whether the identification itself
was nevertheless reliable Id at 387 (Citing Guam V Govt
48 VI 530 536 (D VI
App Div 2006))
ANALYSIS
A The Identification Procedure Was Not Unduly Suggestive
1117 To determine whether an identification procedure was unduly suggestive the
Court must first assess whether it was unnecessarily” or impermis51bly suggestive
which requlres the Court to assess the degree of suggestiveness presented by the
identification procedure actually usud in this case and whether the police had good
reason not to use less suggestive procedures' Panel V People 56 VI 779 789 (VI
2012) (citing first U111tedSt7te~z V Stevens
935 F 2d 1380 1389 (3d Cir 1991) then
R1cha1de 53 VI at 387) rlhc primary evil to be avoided is a very substantial
hkethOd of irreparable misulentificatlon RIChaz db 53 V I at 385 (citing BIggczs
409 U S at 190 (1972))
(1) The Procedure to Create the Phatu Array, and the Photo Array
Itself Were Not Undulz Suggestive
1118 Berthler first contends that the photo array presented to Mr Penn was
impermissiny suggestive because the other indiv1dua1s included in thL array all had
hair styles close to the head while his hands stuck out from his head and he theufure
‘sticks out like a sore thumb The People counter that the array was not
People (71‘ the Vugm Islands V SheA1IBezlb1e1
Case No ST 1020 CR 00003 Cite as 2022 VI Super U11
Memolandum Opinion
Page 10 0f18
1mpermisalbly suggestive because Mr Penn described the suspect as having his hair
braided, and all of the indiwduals in the array have bralded hair The People further
state that one of the indlviduals depicted (photo number five m the array) does not
have his hair close to his head, as one of h1s bralds is hangmg down onto h1s forehead
1l19 1n Rube! dc the VI Supreme Court found that an 1dentificat10n was unduly
suggestlve when the Wltness s only description of a suspect was that he was a black
male with spiky dreadlocks and then presenting only one suspect with splky
dreadlocks to the w1tness for 1dentification purposes R1011a1 d5 03 VI at 389 The
Rmbm d9 court based 1ts reasoning on several decisions from federal elrcu1t courts,
whleh held that an identification is unnecessarily suggestive when the defendant was
the only person in the lineup or photo array w1th a salient feature from the witness 5
description See 9 g Rabeem v IseIIy 257 F 3d 122 134 (2d Cir 2001) Ummd
States V CIazk 499 F201 889 890 (6th C11" 1974) and Umted States v Gazaa
41vazez 541 F 3d 8 14 (lst C11 2008) However, in the Instant matter Mr Penn
dLSCI‘led the suspect in greater detail and VIPD presented Mr Penn with six photos
of potentlal suspects, each matching the description given by Mr Penn young man
w1th braided hair and light eomplexmn as well as CST Mahoneys addition of
1nd1viduals with earrings Even though Berthlers brznds stuck out from hlS head in
the photograph that characteristm was not part of the descriptlon Mr Penn provxded
to Detective Thomas during the investigation In fact Mr Perm merely stated that
the suspect had braids Because the descriptlon Mr Penn gave to VIPD was more
detailed than that given in the Blake: (1% case and the photos selected for the photo
Peuple 01 the D11 gm Islands V 5119111] [391 this!"
Case No ST 2020 CR 0000? Cite is 2022 VI Sllpel U11
Memolandum Opinion
Page 11 0f 18
array each match the description Mr Penn provided the Court finds the instant case
distinguishable from 13101121115; ThlS Court finds that procedure used to create the
photo array and the actual use of the photo array were not unduly suggestive
(u) T118 Ptesentatum oftbe Photo Array; Was Not UnduIz Suggestzve
1120 Berthler further contends that VIPD s presentation of the photo array to Mr
Penn was unduly suggestlve because Detectwe Beazer an officer directly involved in
the investigation, asked Mr Penn to select the person who shot at you,” msmuating
that the suspect was in thL array and thereby falling to present the array in olther a
blinded or double blinded fashion The People respond that because Mr Penn had
seen Berthier near his residence on numerous occasions and was already famihar
with BLrthier prior to the altercation he could identify the defendant
1121 The use of a photo array may violate due process when pohce atthpt to
emphasize the photograph of a given suspect or when circumstances surrounding the
array unduly suggest who an identifying w1tness should select ’ [/111th States V
A1L/11ba1d N0 2015 0041 2016 WL 1009516 at *4 (D VI Apr 14 2016) (quoting
[/111th States V Lawzcme 349 F 3d 109 115 (3d Cir 2003)) To determine the
suggestiveness of a photo array, a court must examine the totahty of the
Clrcumstances to determme whether the army's suggestivcness denied the defendant
due process Lam eme 349 F 3d at 115 (elting Blggez s 409 U S at 199) Specifically
a court considers ‘several factors, 1nc1uding the size of the array its manna 0f
presentatlon and 1ts contents Reese V F111c0mu
946 F 2d 247, 260 (3d C11 1991)
However the First Circuit has held that when police do not use a double blind
People Offlle V11 gm [SIHIIdi‘ V Shela] 391mm:
Case IV) ST 2020 CR 0000‘) Cite '15 2022 VI Super U11
Memorandum Opinion
Pay 12 of 18
procedure, if a Witness has prior familiarity with the suspect no amount of police
suggestion is likely to influence the Witness 5 ident1f1cati0n Untied States V V9102
109 F Supp 3d 30:) 312 (D Mass 2015) afI’d 948 F 3d 418 (let Cir 2020)
1i22 In the instant matter Berthiers argument that VIPDs presentation of the
photo array to Mr Penn was unduly suggestive because VIPD told Mr Penn to select
the person who shot at’ him is outweighed by Mr Penn s familiarity with Berthier
prior to the incident on October 16 2019 Given Mr Penn 5 extiemely fast seleLtion
of Berthler from the photo array the repeated statements that he was familiar With
Barthier prior to the incident and overall confidence in his selection of Berthier as
the suspect considering the totality of the circumstances the Court finds that VIPD s
indication that the suspect was included within the array presented does not
ultimately render the identification procedure unduly suggestive Therefore the
Court finds the procedures used by VIPD were not unduly suggestive and the Court
Will not suppress Mr Penn s out of court identification of Berthier
(1‘11) VIPD 5 Lack of Written Standards Does Not Render Its Practices
Undulz Suggestive Per Se
1&3 This Court acknowledges that VIPD lacks up to date written standards and
procedures for the construction and presentation of photo arrays This lack of
procedures does not adhere to the suggested best practices discussed within the DOJ
Memorandum admitted with reservations as Defendants Exhibit M5 The Court
notes that other defendants have made similar arguments in cases pending before
the Superior Court of the Virgin Islands Soc PeupIe 0f the Vlzgm [chads V
People oitlze V11 gm Islands v ShekIIBenluez
Case No ST 2020 CR 00003 Ute as 2022 VI Super U11
Memorandum Opmion
Page 13 of 18
Mactavmus 2021 VI Super 118U T11] 18 20 and People (71‘ the Vugm [blands V
Dolpbm
2021 VI Super 116U, ‘ 16 However as otherjudicml officers of the Superior
Court have held the DOJ Memorandum does not bind this Court the DOJ
Memorandum explicitly states “nothing in this memorandum imphcs that an
identification not done in accordance w1th these procedures is unreliable or
inadmissflfle in court’ IWactanLm T1 19 (quoting Sally Q Yates U S DEPT OF
JUS'J [CI OFFICE OF THE DEPUTY ATTORNEY GPN MEMORANDUM 0N EYl‘WITNESS
IDENTIFICAIION PRO( EDURES FOR CONDUCTING PHmo ARRAYS (Jan 6 2017)) The
District Court of the Virgin Islands has also heard the argument that VIPD 5 failure
to adhere to DOJ sanctioned procedures rcndcrs the identification procedure
impermissibly suggestive p91 59” Umted States V Mathzas No CR 2016 0035
2017
WL 2434458 at *3 (D VI June a 2017) The Distrlct Court responded that there
was no testimony suggesting the detectives admimstering the photo array engaged
in any suggestlve bLhavior " and that the w1tness 1dent1fied the defendant instantly
and was very confident m his selection such that VIPD s faxlure to incorporate the
practlces recommended Within the DOJ Memorandum did not render the
1dcntif1cation unduly suggestwe Id at 1] 21 (citmg Matbzas‘
2017 WL 2434458 at
*5) Accordingly given the circumstances of this caSL discussed at length above thls
Court agrees With the holdings in People afthe V1ng Islands V Machmlm People
0ftbe [Ilgm [517ndv V Dalphm and People V M7t1213q that the lack of photo array
procedures does not p91 S9 render the identification process unduly suggestive, and
therefore does not require suppressmn of Mr Penn 5 identlficatlon
People 0mm Vlzgm 1mm; ; 5119111 Be: mm
Case No ST 2020 CR 00003 Cite as 2022 VI Suer U11
Memorandum Opnmon
quL 14 of 18
B The Identificatmn Was Rehable
1124 The U S Supreme Court has noted that courts should not reach the reliabihty
mqulry unless the identificatlon resulted from a $1tuat10n created by improper police
conduct Uuzted Saw V Shawls 693 F 3d 363 382 (3d Cir 2012) (citing Peuy V
New Hilllpbblle 565 U S 228 245 (2012)) Nevertheless the Court Will briefly
analyze the rehability of the 1dentification
1125 When assessing rehability the VI Qupreme Court has adopted a totahty 0f
the elrcumstances test orlginally artlculated by the U S Supreme Court See
chlzaz d5 53 V I at 386 (citing Blggele 409 U S at 195) The purpose of the reliability
test is to assess the likehhood 0f misidentlficatlon Id Reliability is the ‘linthpin 1n
determining admissihihty ofidentifxcatmn testimony Id at 390 91 (quoting Manson
432 U S at 114) The U S Supreme Court articulated the following factors, used to
assess the totality of the Circumstances
[1] the opportunity of the witness to View the cnmmal at the time of the crime
[2] thL WltnLSS degree of attention [3] the aLcuracy 0f the Witness pnor
descnption of the cnminal, [4] the level of certamty demonstrated by the
Witness at the confrontatwn and [5] the length 0ft1mc between the crime and
the confrontation
Id (quoting Blggew 409 U S at 199 200)
1126 Berthier conthds that because the ineldent occurred after sunset on October
16 2019 mting Defendant s Exhiblt M 4 Wthh lists sunset dates and times from
October 2019 and over two months elapsed between the incident and Mr Perms
identification of Berthier from the photo array, the identification should be deemed
unrehable The People counter that (1) Mr Penn had the opportumty to view the
People 01' the Vugm Islands V Shela] 1361mm:
Case No ST 2020 CR 0000‘} Cite as 2022 VI Super U11
Memorandum Opinion
Page 15 0f 18
defendant at the time of the incident as the parties were in close proximity to one
another; (2) Mr Penn had prewously seen the defendant on multiple occasions; (3)
Mr Penn accurately described the defendant at the time of his statement to Detective
Thomas and all of the individuals in the array matched that description (4) Mr Perm
demonstrated great certainty at the identification, because he had seen the defendant
prevmusly and (5) the time elapsed between the incident and the identification was
not extended and Mr Penn gave a detailed description of the defendant on the date
of the incident and he was familiar with the defendant betause the defendant is his
neighbor’s nephew
1B7 Considering the totality of the circumstances under the factors articulated, the
Court largely agrees With the People that the identification was reliable First
although the sun had set at the time of the incident Detective Thomas testified that
there was sufficient light emanating from nearby res1dences that visibility should not
have been an issue for Mr Penn Additionally there is no indication that Mr Penn
suffers from any impediment to his vision Second Mr Penn was focused on parking
his vehicle at his residence during the meldent and had already approached the
Vehicle blocking his path therefore his attention was on the scenario at hand He
exited his vehicle to address the Situation and ultimately was shot at at close range
It therefore follows that Mr Penn was paying close attention to the events unfolding
at the time of the incident Third Very soon after the incident Mr Penn described
the defendant to Detective Thomas a description which fits Berthier Fourth Mr
Penn showed a great level of confidence in identifying the defendant as his assailant
People 0mm Lug"; £51;de v 9119M Be: me;
Case No ST 2020 CR 00003 (ite as 2022 VI Supel U11
Memorandum OplnIUn
Pm 16 uf18
as it took him only two seconds to select Berthier from the photo array Additionally,
Mr Penn stated he had prevmusly seen Berthier around the neighborhood visiting
his uncle who lived in the area threfore it follows that Mr Pam was familiar w1th
Berthier and could readily identify him from the photo array presented Finally the
two month pLI‘IOd between the ineldent and the identification does not weigh strongly
in the defendants favor Two months may be a significant period of time in some
circumstances but Mr Penn was prevmusly acquainted with the defendant so It is
less likely he struggled to accurately select his assailant Given that Mr Penn had
prekusly interacted with Berthier and had seen him on repeated occasions in his
neighborhood, the reliability is only minimally affected by this lapse in time
1R8 Therefore considering the totality of the circumstances this Court finds Mr
Penn s selection of Berthier from the photo array to be reliable
C In Court Identifications Will Not Be Suppressed
1i29 Under the Fouiteenth Amendment pretrial and in court identifications are
governed by the same tests 131011211 de 53 VI at 393 Therefore because Mr Penn 5
out of court pretrial identification W111 not be suppressed under the relevant twu
prong test for suggestiveness and reliability the Court finds that future in court
identifications also will not be suppressed
D Section 3 of the Revised Organza Act Due Process Standard
1‘30 Although the Court finds Mr Penns out of court identification of Berthicr to
be admissible under the Fourteenth Amendment Berthier further asks the Court to
suppress the identification under section 3 0f the Revised Organic Act Berthier
People afflze Vugm [slvnde V éhekll Bel Hum
Case No ST 2020 CR 00003 Cite as 2022 VI Super U11
Memorandum Opinion
Pagt 17 of18
argues that several state courts have held that due process clauses in their respective
state constitutions place a higher burden on the government than the U S
Constitution for out of court identifications to be issued at trial Berthier spcmfically
reliLs upon a recent VI Supreme Court case which held in part that the equal
protection and due process clauses of the Virgin Islands Bill of Rights found in
section 3 of the Rev1sed Organic Act have meaning independent from that of the
Fourteenth Amendment 8311mm V ngeI Am 0ft119 VI 70 VI 1048 1092 (VI
2019) Therefore Berthicr argues this Court should develop an alternative
interpretation of the due process clause within the VI Bill of Rights to be more
expansive and provide further protections for suspects due process rights within the
out of court identification process The Peoples opposition largely disregards this
argument merely stating in a footnote that Berthier s reliance on 331170121 v Rangez
4111euca11 01' the {/1ng11 Iblazzds is misplaced as that case addressed the
constitutionality of the interpreting the state Lonstitutmn 5 bill 0fr1ghts’ (sic)
{[31 Berthier does not cite to any precedent that ‘hinds this Court to find that the
Due Process clause of the Revised Organic Act of 1954 requires greater protection for
defendants than those already laid out in lenidc Dolphm at 1’ 17 Therefore this
Court declines to extend identlfication Jurisprudence beyond what was established in
chhauiq absent guidance from the V I Supreme Court See 1d
People 01“th Vztgm Islands v Shela] 891 fine)
Case No ST 2020 CR 00003 Cite as 2022 VI Supe) U11
Memorandum Opmion
I’agL 1s 0f18
CONCLUSION
T32 The Court finds that VIPD s procedures for 1dent1fication in thls matter were
not unduly suggestive and were ult1mately rehable 7 Therefore Berthler s motlon to
suppress the out of court Identification of Berthicr and the accompanymg photo array
will be demed Under the relevant case law it follows that the motion to suppress
any future m court 1dtnt1ficatlons W111 also be demed
An order conSIStent herethh will immedlately follow
DATED January 9? 2 2022 g E f 1’ fé4iféf 3:
Kathleen Mackay
Judge of the Superior Court
ATTEST of thz. Virgm Islands
TAMARA CHARLES
Clerk of the Court
BY ( j @—
4-}! LATOYA CAMACHO
Court Clerk Supervisor OI /fl7 /&
7 Whlle the Construction and prLsLntatiun of the photo anal) ultlmately satisfied the applicable legal
test to deny suppression m this matter the ( cult does encourage VIPD to adopt a standard written
procedure for its officers and tLLhnluflnS tn tnllow both fol trammg processes and to prevent future
violations of due process See Dolphm It 1‘ 16 (stating that the development of Ind adherence to a
written standard procedure for cytwitness phnto xdentxfxcations ahgned with the DOJ Memorandum
may go a long way to assuaging deLnse counsels that there Was no undue suggestweness by the
VIPD and may save VIPD and the People txme and resources from having tu appear in Court to Justify
their procedures the lack of a written guide does not make a procedure unduly suggestive )
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS )
)
Plaintiff ) CASE NO ST 2020 CR 00003
vs )
)
SHEKIL JAMAC BERTHIER )
)
Defendant )
)
ORDER
This matter is before the Court on Defendant’s Motion to Suppress
In accordance With the Memorandum Opinion entered on this day, it is hereby
ORDERED that Defendant 5 Motion to Suppress 1s DENIED' and it is further
ORDERED that a copy of this Order and the Memorandum Opinion shall be
served upon the Defendant and copies distributed to counsel of record
DATED January fl 2022 % if :74“ ééf 2:4
Kathleen Mackay
Judge 0f the Superior Court
of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Court
5(“I3'
‘2;
BY M
42% LATOYA CAMACHO
Court Clerk Supervisor 0‘ /a7 /é¢2«