IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
KENRICK MAYNARD,
Petitioner,
SX-2018-MC-00066
V.
PETITION FOR WRIT OF
HABEAS CORPUS
GOVERNMENT OF THE VIRGIN
ISLANDS, GOVERNOR ALBERT BRYAN
in his official capacity, ARIEL M. SMITH,
ATTORNEY GENERAL in her official
1
capacity, BUREAU OF CORRECTIONS
2023 VI Super 36
DIRECTOR WYNNIE TESTAMARK in her
official capacity, CITRUS COUNTY
DETENTION CENTER WARDEN MIKE
QUINN in his official capacity,
Res ondents.
MEMORANDUM OPINION
,r I THIS MA TIER is before the Court on the Writ of Habeas Corpus issued October 29, 2020,
and Respondents' Return, filed December 1 1 , 2020. By the Writ, the Court found that Petitioner
had stated a prima facie case for relief in his Petition for Writ of Habeas Corpus, filed August 7,
2018, and that his claims alleging Brady violations and ineffective assistance of trial counsel were
not barred as a matter oflaw. By Order entered February 1 1 , 2021, Petitioner's opportunity to file
a traverse was extended for 21 days. To date, Petitioner has not filed a traverse. On August 9, 2022,
a hearing was held and additional evidence in the form of sworn testimony and affidavits were
presented to the Court. At the hearing, Petitioner was given 2 1 days following completion of the
hearing transcript to file a supplemental brief, Respondents were given 21 days to respond, and
Petitioner was given 7 days to reply. The hearing transcript was completed on February 1 5 , 2023.
By Order entered February 15, 2023, both parties were given 21 days to file supplemental briefing.
1
Pursuant to V.I. R. Civ. P. 25(d), when a public officer named as a party acting in an official capacity
ceases to hold office while the action is pending, the officer's successor is automatically substituted as a
party. Such is the case here and the caption is amended accordingly.
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Both briefs were filed on June 2 1 , 2023. Because the Court finds that Petitioner was deprived of
his constitutionally protected right to effective assistance of counsel at trial, relief will be granted.
STANDARD OF REVIEW
,r 2 "Any person who believes he or she is unlawfully imprisoned or detained in custody,
confined under unlawful conditions, or otherwise unlawfully restrained of his or her liberty, may
file a petition for a writ of habeas corpus to seek review of the legality of that imprisonment or
detention." V.I. H.C.R. 2(a). Petitioners may use a writ of habeas corpus to seek redress of
constitutional violations. Rivera-Moreno v. Gov't o
f the V.l., 61 V.1. 279, 297 (V.1. 2014). The
presumption of innocence does not apply to habeas proceedings, and the burden is on the petitioner
to prove their case. Fahie v. Gov't o
f the V.I., 73 V.1. 443,452 (V.I. 2020). "The court must issue
a writ of habeas corpus if the petitioner has alleged, prima facie, grounds showing entitlement to
relief and the claims are not legally barred." V.I. H.C.R. 2(d)(l).
3 The Virgin Islands Supreme Court has held that direct appeals of trial court convictions
conducted by the Appellate Division of the District Court and the Third Circuit that consider and
decide the same claim or claims subsequently raised in a habeas petition "will typically not result
in a procedural bar [of that claim in the habeas proceeding] if the claim involves a question of
law." Rodriguez v. Bureau of Corr., 70 V.I. 924, 938 n.9 (V.I. 2019); see also Rivera-Moreno, 61
V .I. at 303 (holding that a habeas petition can raise issues that were, or could have been, raised on
direct appeal to the Appellate Division or the Third Circuit, provided that the issues involve a
question of law rather than fact). However, "when a prisoner files a writ of habeas corpus in the
Virgin Islands alleging claims already reviewed by another competent court, including a federal
court, the local court may, in its discretion, consider that ruling as a basis to deny improper
successive review." Rodriguez, 70 V.I. at 938-39.
4 Important to the claims for relief currently pending before this Court, Brady violations are
questions oflaw. Mosby v. Mullgrav,
65 V.I. 2 6 1 , 2 6 8 (V.I. 2016). Further, ineffective assistance
of counsel claims "will rarely be procedurally barred in a habeas proceeding, s i n c e . . . ' a claim of
ineffective assistance of counsel is not appropriately reviewed for the first time on direct appeal."'
f the V.I., 64 V.1. 367, 381 (V.I. 2016) (quoting Codrington v. People, 57 V.I.
Blyden v. Gov't o
176, 1 9 1 (VJ. 2012)). Accordingly, none of Petitioner's claims herein is procedurally barred.
Maynard v. Gov 't o
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5 "A petitioner may be awarded a discharge - o r another form of redress, such as a new
sentencing hearing, that remedies the violation alleged - i f any of the seven conditions set forth in
2
5 V.I.C. § 1 3 1 4 are met, or if relief is warranted to remedy a constitutional or statutory violation,
even if the right to that remedy is not expressly set forth in a statute." V.I. H.C.R. 2(b)(2).
3
BACKGROUND
I. The Underlying Case
6 On July 4, 1999, Petitioner Kenrick Maynard and his brother, Ricky Kanasha, were
involved in a violent altercation with Leslie Hyman and his cousin, Kimba George, at festival
activities during Carnival on St. John. Three weeks later, on July 26, 1999, Leslie Hyman was shot
several times in the area of Savan on St. Thomas. On the night of the shooting, Leslie informed
4
police that he did not know who had shot him. However, at Maynard's trial two years later, Leslie
testified that Maynard was responsible for the shooting.
7 Two days later, on July 28, 1999, Leslie's brother, Adolph Hyman, Jr., was walking in
5
Savan with his father, Adolph Hyman, Sr., and Hyman, Sr.'s longtime girlfriend, Maria Weeks.
Hyman, Jr. and Weeks both testified at trial that Maynard approached them and began shooting at
2
5 V.I.C. § 1 3 1 4 provides:
If it appears on the return of the writ that the prisoner is in custody by virtue of process from any
court or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to
the restriction of section 1 3 1 3 of this title:
(I) When the jurisdiction of such court or officer has been exceeded.
(2) When the imprisonment was at first lawful, yet by some act, omission, or event which has taken
place afterwards, the party has become entitled to a discharge.
(3) When the process is defective in some matter of substance required by law rendering such
process void.
(4) When the process, though proper in form, has been issued in a case not allowed by law.
(5) When the person having custody of the prisoner is not the person allowed by law to detain him.
(6) Where the process is not authorized by any order, judgment, or decree of any court, nor by any
provision of law.
(7) Where a party has been committed on a criminal charge without reasonable or probable cause.
3
Unless cited otherwise, background information is distilled from the opinions of the Appellate Division
of the District Court of the Virgin Islands in Maynard v. Gov't o
f the Virgin Islands, 5 1 V.I. 744 (D.V.I.
App. 2009) and the United States Court of Appeals for the Third Circuit in Maynard v. Gov't o
f the Virgin
Islands, 392 Fed. Appx. l05 (3d Cir. 2010).
" Maynard was tried for the shooting of Leslie Hyman and the subsequent murder of Adolph Hyman, Sr. in
a single proceeding. (Terr. Ct. Crim. No. ST-F400/2000).
5
Weeks is also sometimes described as Hyman, Sr.'s common law wife.
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Hyman, Sr., and that Hyman, Jr. and Weeks ran away. Weeks testified that she attempted to hide
behind a wall, from where she saw Maynard shoot Hyman, Sr. several times while Hyman, Sr.
was face down on the ground. Hyman, Sr. died from his injuries. A warrant for Maynard's arrest
was issued August 5, 1999, but he was not immediately arrested.
18 Five months later, in the early morning hours of January 1 , 2000, the Virgin Islands Police
Department (VIPD") arrested six individuals in connection with gunshots fired near Hospital
Ground on St. Thomas. In searching the surrounding area, officers discovered spent cartridges and
two firearms - an MP-45 and an AK-47. The case against those individuals charged with
possession of the AK-4 7 was eventually dismissed for lack of evidence. The firearms found at
Hospital Ground, as well as the casings recovered from the scene of Hyman, Sr. 's shooting were
submitted to the Federal Bureau oflnvestigation for forensic testing. That testing disclosed that at
least some of the bullets that killed Hyman, Sr. five months earlier had been discharged from the
6
AK-47 discovered at Hospital Ground.
19 Pursuant to the August 5, 1999 warrant, on October 3, 2000, a VIPD forensic investigator
7
traveled to Atlanta, Georgia, where Maynard was incarcerated under the name Samuel E. Blyden,
and escorted Maynard back to the Virgin Islands. In May 2001, the Government of the Virgin
Islands charged Maynard with five offenses arising out of the above events in Criminal No. ST
F400/2000. The first three counts charged offenses related to the July 26, 1999 shooting of Leslie
8
Hyman, and Counts Four and Five charged offenses related to the July 28, 1999 shooting death
of Adolph Hyman, Sr."
10 Trial began on September 24, 2001, lasting a day and a half. Maynard was acquitted by the
jury of Counts One, Two, and Three, and convicted of Counts Four and Five. Maynard's
6
See 392 Fed. Appx. at 108 n.5: "A firearms examiner for the Federal Bureau oflnvestigation testified that
one of the firearms was technically a Mac-90, which is a civilian version of the better-known AK-47.
However, the parties described the gun as an AK-47 at trial and in briefing....We adopt the parties'
convention of referring to the weapon as an AK-47, even though that description appears to be technically
incorrect." Similarly, throughout this Opinion, references are to an AK-47.
7
It is unclear from the record the circumstances under which VIPD learned that Maynard was incarcerated
in Georgia under an assumed name.
8
Count One of the Information charged first-degree assault, Count Two charged third-degree assault, and
Count Three charged unauthorized possession of a firearm.
9
Count Four charged first-degree murder and Count Five charged unauthorized possession of a firearm.
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subsequent motion for new trial was denied, and he was sentenced on November 13, 2001 to life
imprisonment on the first-degree murder charge, and three years on the unauthorized possession
of a firearm charge, to be served concurrently. Judgment and Commitment, Criminal No. ST
F400/2000 (Nov. 2 1 , 2001).
JI. Prior Appellate and Habeas Review
,r 1 1 On November 21, 2001, Maynard appealed his Territorial Court conviction to the
Appellate Division of the District Court of the Virgin Islands," raising four issues for review.'
On April 17, 2009, the Appellate Division issued its opinion affirming Maynard's conviction on
both counts. Maynard appealed that decision to the Third Circuit Court of Appeals, contending
that the Government had violated Brady v. Maryland by failing to disclose ( I ) the identities of the
six individuals arrested on January I , 2000 for possession of the AK-47, and (2) Maria Weeks'
drug treatment history. On August 25, 2010, the Third Circuit affirmed Maynard's conviction on
both counts.
,r 12 In 2 0 1 5 , Petitioner Maynard filed a prose "Motion for Extraordinary Writ of Habeas
Corpus" in the Superior Court of the Virgin Islands, Division of St. Thomas and St. John, Case
No. ST-20!5-MC-00070. Maynard argued that he was not attempting to re-litigate the issues
presented to the Appellate Division and the Third Circuit, but rather sought "to acquire clarification
of distinct [sic] decision of said mentioned courts." The Superior Court treated Maynard's Motion
as a Petition for Writ of Habeas Corpus, which it denied, holding that Petitioner sought to
"relitigate issues already argued before the Appellate Division and Third Circuit, and...improperly
assert[ed] a Brady violation." Order, 5 (May 2, 2016).
10
In 2004, the Virgin Islands Legislature established the Supreme Court of the Virgin Islands as the highest
court in the Virgin Islands, which assumed its appellate jurisdiction on January 29, 2007, prior to which an
initial appeal of right from the Territorial Court could be brought in the Appellate Division of the District
Court, followed by a second appeal of right to the Third Circuit Court of Appeals. Effective January I,
2005, the name of the Territorial Court changed to the Superior Court of the Virgin Islands. See Act No.
6687, § l(b), amending 4 V.I.C. § 2(a) (Oct. 29, 2004).
"Whether the trial court erred by not dismissing the charges as a result of alleged Brady violations; (2)
whether the trial court erred by allowing the Government's expert witness to testify about matters that were
not disclosed to the defense before trial; (3) whether the trial court erred by not severing the several offenses
with which Maynard was charged; and (4) whether alleged prosecutorial misconduct during closing
arguments warrants a reversal of Maynard's conviction." Maynard, 5 1 V.I. at 754.
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III. The Instant Petition
,r 13 On August 7, 20 18, through his present attorney, Maynard filed the instant Petition for
Writ of Habeas Corpus, alleging violations of Brady v. Maryland and ineffective assistance of
counsel. Attached to the Petition was the Affidavit of Nyjah Adams ("Adams Affidavit"), one of
the six individuals arrested on January I, 2000 for possession of the AK-4 7 discovered at Hospital
Ground. The Adams Affidavit provided potentially exculpatory information concerning the
circumstances of Hyman, Sr.'s murder, indicating that Adams knew Hyman, Sr., and that on the
night of Hyman, Sr.'s murder, Adams witnessed Hyman, Jr. get into an altercation with someone
he knew only as "Hamster." Adams Affidavit, ,r,r 8-9 (Jul. 3 1 , 2018). Adams further stated that
"[a]fter the altercation involving Hamster and Mr. Hyman, Jr., Hamster was upset, carrying the
AK-47, he left in an angry manner and moments later I heard a discharging of shots. Mr. Maynard
was not present when Hamster left with the AK-47." Id. at 1 1 .
,r 14 On August 30, 2019, the Court entered an Order requiring an informal response from
Respondents within 1 5 days to address Maynard's ineffective assistance of counsel claims, as well
as "whether Petitioner may present in this proceeding his allegations of violations of Brady v.
Maryland, or whether those claims are precluded by having been addressed on direct appeal and
his prior Habeas Corpus petition." Order for Informal Response, 2 (Aug. 30, 2019); see V.I. H.C.R.
2(c). On March 17, 2020, Maynard filed a Motion to Deem Facts Admitted for purposes of issuing
the Writ and further proceedings, based on the Government's failure to respond to the Court's
August 30, 2 0 1 9 Order. On June 17, 2020, the Court entered its Second Order Requiring Informal
Response, ordering Respondents to respond to the allegations in the Petition within 1 5 days.
15 On July 14, 2020, Respondents submitted their Informal Response, arguing that Petitioner
failed to raise a plausible ineffective assistance of counsel claim "given that the totality of the
evidence supports his conviction," and that he could not relitigate the Brady v. Maryland
allegations previously raised on appeal. Informal Response, 9 (Jul. 14, 2020).
16 This Court found that Maynard had stated a prima facie case for relief, granted his Petition,
12
and issued the Writ of Habeas Corpus on October 29, 2020. On December 1 1 , 2020, Respondents
12
The Court's Order issuing the Writ also deferred ruling on Petitioner's March 1 7 , 2020 Motion to Deem
Facts Admitted. As that Motion sought "to have the factual basis deemed admitted for purposes of issuing
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filed their Return pursuant to V.l. H.C.R. 2(e). Despite the Court's Order entered January 29, 2021
extending the time within which Maynard might file a Traverse, he did not do so.
,r 1 7 On June 2, 2021, the Court scheduled an Evidentiary Hearing to be held July 22, 2021 to
address the factual issues in dispute, pursuant to V.I. H.C.R. 2(g). On July 9, 2021, Respondents
filed their Motion to Strike and Objection to the Affidavit of Nyjah Adams ("Motion to Strike").
Respondents argued that the Adams Affidavit constituted inadmissible hearsay, obtained nearly
eighteen years after Maynard's conviction without the benefit of cross-examination. Motion to
Strike, ,r,r 2, 4, 8 (Jul. 9, 2021 ). Maynard did not file a substantive response; instead, his counsel
moved on July 14, 2021 for a continuance of the evidentiary hearing, which was granted by Order
entered July 16, 2021. The hearing was rescheduled for December 8, 2021, but on the day before,
Petitioner's counsel filed an "Emergency Motion to Continue," opposed by Respondents. The
Court again granted the continuance, but imposed monetary sanctions on Petitioner's counsel for
failure to comply with procedural rules.
18 On January 28, 2022, without response from Maynard, the Court denied Respondents'
Motion to Strike, given the stage of the proceeding and the judicial principle that motions to strike
are strongly disfavored. The Court held that Respondents' concerns with the Adams Affidavit
would be more appropriately addressed at the evidentiary hearing.
19 The evidentiary hearing was held August 9, 2022. Petitioner called Nyjah Adams, who
appeared remotely from St. Kitts. The Government objected on the record to the Court allowing
Adams to testify, arguing that "[a]uthenticating this witness and finding him competent . . . requires
more than simply him coming on a screen and saying his name is Nyjah Adams and showing [his
passport] from a distance of hundreds of miles to represent that fact." Transcript of August 9, 2022
Hearing, 1 1 . After engaging in additional questioning and noting the Government's objection, the
Court permitted Adams to testify. When Petitioner's counsel moved to have the Adams Affidavit
offered into evidence the Government again objected, stating that the authenticating attorney
the writ of habeas corpus and for further proceedings," and as proceedings have concluded, the Writ has
been issued, and relief will be granted herein, that Motion is denied as moot.
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"provided an affidavit to the Respondent stating that she has no independent recollection or records
13
of [the Adams] Affidavit. " Id. at 36.
20 The Court accepted the Adams Affidavit as Exhibit I over Respondents' objection,' and
Adams proceeded to testify to the substance. Id at 37. He described the individual known as
Hamster as someone who was often seen with an AK-47, which was "his signature item that people
was [sic] fear him for." Id at 44-45. Adams went on to describe his recollection of July 28, 1999,
the night that Hyman, Sr. was killed, stating:
Hamster showed up again, yeah. I don't know that was like the second time I saw him on
that night. And he showed up, and this time he was actually like kind of ramping like he
upset about this person. That same name you call, I think, this Adolph person. That is where
I vaguely recall that name from, yes. And then he was like, yeah, this person owe him
money or some shit. And then he was about to like, yeah, go off. And then he scale off and
went. And then a little few minutes later, I don't know about four or five minutes to ten
minutes, yeah, we end up heard some gun shots. And then, yeah, that was real loud. I say
to myself, that can't be no pistol.
Id at 46-47.
$21 Although he couldn't say for certain whether the AK-47 he saw Hamster possess on that
night was the same weapon which led to his January I , 2000 arrest, Adams noted regarding the
AK-47 that "ain't much people had stuff like that . . .I doubt it had two of those on the streets at
those time." Id at 5 I. He further stated that "if it was a pistol, yeah, I think everyone would have
know [sic]. The kind of loudness of the gunshots I know it wasn't a pistol." Id at 59. In response
to Respondents' cross-examination as to whether he "ha[s] any expertise in firearms," Adams
responded that "I am an expert in hearing the sound that they sound different. The sound wake you
up every night and every morning the area where we live." Id at 108-09.
,r 22 Following the testimony of Adams, Petitioner's counsel called Maynard to the stand.
Maynard testified that prior to trial, he did not know the identity of the six individuals arrested for
13
On cross-examination, Respondents introduced the Affidavit of Angelina Gracy Sookoo-Bobb, an
attorney licensed in St. Kitts, indicating that she was working at the law office where Adams executed his
Affidavit, which bears her signature and notary seal. The Affidavit stated that she did not recall ever meeting
Adams or notarizing his Affidavit, and thus at the hearing could not authenticate it.
'' Despite the Court's admission of the Adams Affidavit and Adams' testimony, the Court herein rules
against Petitioner on his prayer for relief purportedly supported by the Adams Affidavit, and grants relief
on alternate grounds. As such, Respondents are not prejudiced by the admission of the Adams Affidavit.
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possession of the AK-47, and that he did not know their names until the middle of trial. Id. at 123.
He further testified that the first time he saw trial counsel was the day he hired him about six
months prior to trial, and that the second time was the day before trial, when "maybe were [sic]
half an hour we spend together." Id. at 125, 128, 13 I. Maynard also stated that he asked trial
counsel to locate witnesses for the trial, but that to his knowledge counsel had not done so. Id. at
127. Maynard testified that he was not with Hamster on the night of Hyman, Sr.'s murder, and that
he did not know him personally but that "St. Thomas is very small . . . we does [sic] frequent around
the same areas." Id. at 130.
23 After the hearing, the Court took the matter under advisement, permitting the parties the
opportunity to file briefs following receipt of the hearing transcript. Both post-hearing briefs were
filed June 2 1 , 2023. Petitioner's Supplemental Brief reiterated his arguments regarding both the
alleged violations of Brady v. Maryland and ineffective assistance of counsel, noting his prayer
for relief seeking a discharge from his sentence or a new trial. Respondents' Brief reiterated the
arguments made in the Informal Response and Respondents' Return, arguing that Maynard failed
to carry his burden of proof regarding both his Brady and ineffective assistance of counsel claims.
LEGAL STANDARD
I. Brady Violation
24 The Due Process Clause of the Fifth and Fourteenth Amendments to the United States
Constitution, applicable to the Virgin Islands through Section 3 of the Revised Organic Act of
1954,' require the prosecution to disclose certain evidence to the accused. In Brady v. Maryland,
the United States Supreme Court held that "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material to guilt
or punishment, regardless of the good faith or bad faith of the prosecution." Ponce v. People, 72
V.I. 828, 9 1 9 (V.I. 2020) (Swan, J., dissenting in part) (quoting Brady v. Maryland,
373 U.S. 83,
87 (1963)). To prevail on a Brady claim, a defendant must show that the evidence was "(1)
15
Revised Organic Act of 1954, § 3; 48 U.S.C. § 1 5 6 1 ; see also Balboni v. Ranger Am. o
f the V.I., Inc., 70
V.I. 1048, 1056 (V.1. 2019) ("Although section 3 incorporates the federal equal protection and due process
clauses by reference in addition to its own free-standing equal protection and due process clauses that are
unique to the Virgin Islands Bill of Rights, courts have indicated that these provisions serve as separate
limitations on the power of the Virgin Islands Government.").
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suppressed, (2) favorable, and (3) material to the defense." People v. Ward, 55 V.I. 829, 842 (V.I.
2 0 1 1 ) (quoting Bowry v. People, 52 VJ. 264,274 (VJ. 2009)).
25 Both willful and inadvertent suppression of evidence by the prosecution may qualify as
suppression under the first Brady prong. Strickler v. Greene,
527 U.S. 263, 282 (1999). "The
government's Brady obligations attach to all exculpatory evidence in the government's actual or
constructive possession." Maynard, 392 Fed. Appx. at 113. Further, "the government must
disclose Brady material sufficiently in advance of trial to enable the defendant to use the evidence
in a meaningful fashion." Id. at 1 1 4 . However, "the government is not obliged under Brady to
furnish a defendant with information which he already has or, with any reasonable diligence, he
can obtain himself." Ward, 55 VJ. at 845 (quoting United States v. Starusko,
729 F.3d 256, 262
(3d Cir. 1984)).
$26 Regarding the second prong, "[e ]vidence that is favorable to the accused includes
exculpatory evidence and evidence that impeaches a prosecution witness, regardless of whether
the evidence has been requested." People v. Corraspe, 2 0 1 8 V J . LEXIS 10, *3 (VJ. Super. Jan.
3 1 , 2018) (citing United States v. Bagley,
473 U.S. 667,675 {1985)). "The prosecution must also
disclose evidence that could be used to impeach a government witness, especially when the
witness' testimony is an important part of the prosecution's case." Id. (citing Giglio v. United
States, 405 U.S. ISO {1972)).
27 Lastly, a piece of evidence is material to the defense when "there is a reasonable probability
that the outcome would have been different had the evidence been disclosed to the defense."
George v. People, 59 V.I. 368, 378 (VJ. 2013) (internal citations and quotation marks omitted).
"The purpose of Brady is not to require the prosecution to disclose all possibly favorable evidence
to the defense but to make certain that the defendant will not be denied access to evidence which
would insure him a fair trial."
Id. (citing Stevens v. People,
55 V.I. 550, 556 (VJ. 2 0 1 1 ) ) . Thus,
"the ultimate inquiry 'is not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence."' Stevens, 55 VJ. at 556 (quoting Kyles v.
Whitley, 5 1
4 U.S. 419, 434 {1995)).
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II. Ineffective Assistance o
f Counsel
128 The right to the effective assistance of competent counsel is guaranteed by the Sixth
Amendment to the United States Constitution. Strickland • Washington, 466 U.S. 668, 684-85
(I 984). The Sixth Amendment applies to the Virgin Islands through Section 3 of the Revised
16
Organic Act of 1954. To prevail on an ineffective assistance of counsel claim, a defendant must
demonstrate that (I) trial counsel's "performance fell below an objective standard of
reasonableness," and (2) that counsel's "deficient performance prejudiced [the defendant],
resulting in an unreliable or fundamentally unfair outcome to the proceeding." Burke v. Prosper,
70 V.I. 866,874 (V.1. 2019) (internal citations omitted).
129 To satisfy the first prong, a petitioner must overcome the presumption that trial counsel's
performance was part of sound trial strategy. Francis v. People,
57 V.I. 2 0 1 , 2 3 9 (V.I. 2012)
("Courts generally afford much deference to the tactical decisions of trial counsel even when such
decisions prove unsuccessful."). Further, the petitioner "must identify the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional judgment." Ibrahim
f the V. I., 2008 V .I. Supreme LEXIS 2 0 , 5 (V .I. Jan. 18, 2008) (quoting Strickland, 466
v. Gov't o
U.S. at 690).
,r 30 The second prong requires a petitioner to demonstrate "a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different."
Corraspe v. People, 53 V.I. 470, 479-80 (V.I 2010) (internal citation omitted). A reasonable
probability of such prejudice is one "sufficient to undermine confidence in the outcome."
Strickland,
466 U.S. at 694. The question, then, is whether "absent the errors, the factfinder would
have had a reasonable doubt respecting guilt."
Id. at 695. In answering this question, the court
must "consider the totality of evidence."
Id.
DISCUSSION
I. Facts Giving Rise to Claims
,r 3 1 Maynard claims violations of Brady v. Maryland and ineffective assistance of counsel.
Both require review of facts from his trial regarding the identity of the six January I , 2000 arrestees
" Revised Organic Act of 1954, $ 3; 48 U.S.C. $ 1 5 6 1 .
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and prosecution witness Weeks' history of drug use. Those facts are reviewed here, followed by
legal analysis.
a. Identity of
the Six Arrestees
,r 32 On January 1 , 2000, six individuals were arrested and charged with possession of the same
AK-47 that Maynard was purported to have used to kill Adolph Hyman, Sr. five months earlier.
The case against the six arrestees was eventually dropped for lack of evidence. Forensic testing by
the FBI after the January 1 , 2000 arrests determined that at least ten of the sixteen shell casings
collected at the Hyman, Sr. murder scene were fired from the same AK-47. During pretrial
discovery, the prosecution handed over several documents that identified those arrestees using
arrest numbers rather than their names.
33 At the final pretrial conference on September 10, 2001, two weeks prior to the September
24, 2001 jury selection and trial, Maynard's attorney requested the names of the January 1
arrestees. In response, the prosecutor "represented that the arrestees' names were in a document
listing property seized during the arrest... [that] had already been provided to the defense. He said
that the government 'ha[d] no further information' and that defense counsel was 'asking for blood
out of a rock."' Maynard, 392 Fed. Appx. at 109. On appeal, the Government conceded that the
identities of the arrestees did not, in fact, appear in the document that had been provided to the
defense.
34 At the start of trial defense counsel renewed this disclosure request. The prosecutor
responded that he had provided counsel with all of the documents he had concerning the weapon,
but that none of those documents contained the identity of the arrestees. That statement was
"manifestly inconsistent with the prosecutor's statement before trial that the names had already
been provided to the defense in an inventory document." Id at 109 n.6.
35 During the Government's case in chief at trial, the prosecutor called to the stand Officer
Miguel Perez, who had investigated the January 1 , 2000 shooting incident. During his testimony,
the government sought to admit a document that was part of the chain of custody for the AK-4 7
that did contain the names of the six January 1 arrestees. When Maynard's counsel objected to
admission of the report due to the Government's lack of disclosure despite multiple pretrial
requests, the prosecutor responded that the chain of custody records in Maynard's file did not
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contain the names, and that the document which did contain the names came from a separate case
17
file. The prosecutor indicated that he had first learned of the existence of that document from an
unidentified individual in the prosecutor's office during the lunch recess.
36 Maynard's counsel moved to dismiss on the basis that the Government's late production
of this information violated his rights under Brady. The prosecution opposed, arguing that the
names were not relevant and that even if the arrestees possessed exculpatory information, Maynard
had suffered no prejudice because defense counsel still had time to investigate, as the prosecution's
case was still ongoing. Despite chastising the prosecution, the trial court denied the motion to
dismiss, indicating that it would reconsider the issue at the close of the Government's case. The
trial judge urged Maynard to investigate any information that the document might furnish before
the close of trial. However, the renewal of Maynard's motion at the close of the Government's
case was again denied because the trial court found that defense counsel "could have investigated
the individuals after the first day of trial and that he was able to encourage jurors to infer that one
of the arrestees was linked to the firearm." Maynard, 392 Fed. Appx. at 109. During closing
argument, Maynard's counsel urged the jury to make just such an inference, reciting to the jury
the names of the six persons arrested for possessing the AK-47, the same weapon used to kill
18
Hyman, Sr.
b. Weeks' History of Drug Use
37 At the final pretrial conference, Maynard's counsel also requested any records in the
Government's possession regarding Weeks' drug use or treatment, information of which the
prosecutor responded that he had no knowledge. Defense counsel requested that the Government
seek such records from the Virgin Islands Department of Health and, two days later, the prosecutor
responded that he had made contact but that without a court order, clinic personnel would not
discuss whether records existed for Weeks. Neither party requested any such court order, and the
prosecutor did not take any other steps to obtain the records.
17
"The record does not identify whether the document appeared in a file associated with the January I
arrests, or with another unidentified case. For our purposes, we note only that, whatever the purpose of the
file, it was clearly related to the seizure of the AK-47 and contained documents associated with the arrestees
being taken into custody." Maynard, 392 Fed. Appx. at 109 n.7.
See infra note 22.
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38 At trial, prior to opening statements, defense counsel renewed his disclosure request for
Department of Health records regarding Weeks' drug treatment, and the prosecutor reiterated that
a court order was needed. Defense counsel then served a subpoena on the Department of Health
demanding production of those records. After Maynard testified in his own defense, his counsel
requested and was granted a continuance to call the Department of Health official who had been
subpoenaed but failed to appear. The trial judge asked if counsel needed the court's assistance in
procuring the witness's attendance, but defense counsel declined the offer and later rested the
defense case without having called the Department of Health witness.
39 The Department complied with the subpoena the next day, but the records did not arrive at
the courthouse until the trial had concluded and the court had closed the evidentiary record and
submitted the case to the jury. Maynard requested that the court reopen the evidence to allow him
to submit the records to the jury, but the court refused. Following the conclusion of the trial but
prior to the hearing on Maynard's motion for new trial, defense counsel was able to obtain the
information he had repeatedly requested yet did not receive prior to resting his case during trial.
,r 40 The Department of Health records received post-trial included a discharge summary noting
that Weeks reported an eleven-year history of crack cocaine use and was characterized by
therapists as "a pathological liar who alters the truth to fit her needs and fantasies." Maynard, 5 1
V.I. at 763. However, the only evidence the jury heard regarding Weeks' drug use came from
Maynard's testimony and from defense counsel asking Weeks about her drug use on cross
examination."
" Weeks' drug use was featured in the closing arguments of both defense counsel and the prosecutor.
Maynard's counsel argued: "What else do we know about Maria Weeks? She, we submit the evidence is
that she's a crack addict. She bought crack. Mr. Maynard said he saw her."
In its initial closing argument, the prosecutor argued: "How does [Maynard] get the nerve to call that
woman a crackhead? He has the nerve to call that woman, who he had just killed her husband, he is going
to now call her a crackhead. I spit at the idea of him taking that type of revenge out on this family even
further."
In its rebuttal argument, the prosecution doubled down: "And that's the person that we're referring to as
a crackhead. Crackhead. The only person that said Maria Weeks is a crackhead is Kenrick Maynard. That's
a heck of a thing to say about somebody. That's a heck of a thing to call a woman like that. Okay?"
Maynard, 5 1 V.I. at 762-63, n . 1 3 , 14.
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II. Analysis - Brady Violations
141 To prevail on a Brady claim, a petitioner must show that evidence was "(1) suppressed, (2)
favorable, and (3) material to the defense." Bowry, 52 VJ. at 274. Maynard raises two Brady
claims: (a) the prosecution's failure to tum over the identities of the six individuals arrested
January I , 2000; and (b) the prosecution's failure to tum over evidence related to Maria Weeks'
drug use. Petition at ,i,i 26-34, 44-48. Respondents contend that Maynard "was not prejudiced by
a purported Brady violation because the Government did not suppress evidence" or, in the
alternative, "even if the Court were to determine that the Government suppressed evidence,
Petitioner has failed to demonstrate that such evidence is favorable and material." Respondents'
Return, 1 1 (Dec. 1 1 , 2020).
a. Identity of the Six Arrestees
42 The record clearly supports the finding that the prosecution suppressed the identities of the
six persons arrested on January I , 2000, charged with possession of the same weapon that had
been used in the July 28, 1999 murder for which Maynard was convicted, satisfying the first prong
of Brady. Brady requires the prosecution to provide to the defendant "all exculpatory evidence in
the government's actual or constructive possession," and a prosecutor must "take the minimal
steps necessary to acquire...information' of which the prosecution should be aware, even ifit lacks
knowledge of the material at the time the defendant requests disclosure." Maynard, 392 Fed. Appx.
at 1 13 (internal citation omitted).
43 Here, the six arrestees were handled by the same police department that investigated the
murder of Hyman Sr., and both matters were referred for prosecution to the Office of the Attorney
General of the Virgin Islands. The Court concurs with the reasoning of the Appellate Division of
the District Court:
The purpose of Brady and its progeny would be seriously undermined if knowledge of
material, exculpatory evidence could not be imputed between two attorneys working for
the same sovereign in the very same office with a relatively small number of attorneys,
simply because one attorney works on criminal matters while the other works on domestic
relations matters.
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Maynard, 5 1 V.I. at 765-66 (internal citations omitted).3
44 The trial judge, the Appellate Division, and the Third Circuit all admonished the
Government's attorney for his conduct and callous disregard of the repeated requests of defense
counsel for the names of the January 1 arrestees, to which Maynard was clearly entitled. Indeed,
"the prosecutor failed to perform even the most rudimentary search for their names." Maynard,
392 Fed. Appx. at 1 13 . In this setting where a criminal defendant's liberty is at stake the
constitutional obligations of the prosecutor require "disclosure of exculpatory 'information in the
possession of the prosecutor's office, the police, and others acting on behalf of the prosecution."'
Id (quoting Wilson v. Beard, 589 F.3d 6 5 1 , 6 5 9 (3d Cir. 2009)).
45 Nevertheless, the record establishes that Maynard's counsel could have obtained this
information through the exercise of reasonable diligence, both prior to and during trial. Defense
counsel received the arrestees' names during trial, entered them into evidence, and urged the jury
to draw an inference that one of them was connected to the murder weapon.
46 The Third Circuit found that the prosecution had suppressed the arrestees' identities but
determined that Maynard had "not moved his Brady challenge beyond the realm of conjecture"
regarding the second and third prongs, favorability and materiality, because "insofar as the names
of the January 1 arrestees were themselves exculpatory, Maynard presented them to the jury and
urged jurors to conclude that one of the arrestees was linked to the weapon or to the murder." Id
at 1 1 7 - 1 8 . The Court concurs and finds no basis for relief under Brady regarding the identity of
the January 1 arrestees.
20 The quoted language of the Appellate Division relates to the Government's failure to turn over evidence
relating to Maria Weeks' drug use but applies equally here. In that case before the Family Division of the
Territorial Court, the Government sought to remove Weeks' children from her custody due to her drug use.
The Appellate Division found "little doubt that the Government prosecutor in this matter [was] charged
with knowledge of the custody proceedings involving Weeks." Maynard, 5 1 V.I. at 765. That rationale is
even more compelling regarding the names of the January I arrestees, against whom criminal charges were
brought by the same division of the Office of the Attorney General that later brought the case against
Maynard. See also United States v. Perdomo,
929 F.2d 967 (3d Cir. 1 9 9 1 ) (holding that a prosecutor had
constructive knowledge of information held by another arm of the government accessible to the prosecutor).
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b. Weeks' History of Drug Use
47 The Appellate Division and the Third Circuit also found no Brady violation concerning the
Government's failure to provide Department of Health records relating to Maria Weeks' drug use
because the information could have been discovered through the defense's exercise of reasonable
diligence. Maynard, 5 1 V.I. at 766 ("There are strong indications in the record that the Government
misled whether intentionally or unintentionally the defense by repeatedly insisting that it
had...[no] knowledge of Weeks' drug use .. . Balanced against the Government's knowledge of
Weeks' drug use .. . however, is Maynard's apparent knowledge of, and total lack of diligence in
obtaining information about, that drug use."); Maynard, 392 Fed. Appx. at 120 ("Because
Maynard's counsel could have obtained the records prior to trial through the exercise ofreasonable
diligence, those records cannot serve as the basis for relief under Brady."). The Court concurs and
finds no basis for relief under Brady arising from the Government's failure to provide Department
of Health records relating to Weeks' drug use, as those records were reasonably available to
Maynard.
III. Analysis - Ineffective Assistance o
f Counsel
,i 48 To prevail on an ineffective assistance of counsel claim, a petitioner must ( I ) overcome the
presumption that trial counsel's performance was part of sound trial strategy by identifying specific
"acts or omissions of counsel that are alleged not to have been the result of reasonable professional
judgment," and that (2) raise a reasonable probability of prejudice such that confidence in the
outcome of the trial is undermined. Ibrahim, 2008 V.I. Supreme LEXIS 20 at * 5; Strickland,
466
U.S. at 694. Maynard raises two ineffective assistance of counsel claims: (a) trial counsel's failure
to request a continuance at the final pretrial hearing; and (b) trial counsel's failure to investigate
(i) the six arrestees and (ii) key prosecution witness Maria Weeks' history of drug use. The Court
finds that Maynard has not established that acts or omissions of counsel entitle him to relief for
failing to request a trial continuance at the pretrial conference or for failing to investigate the
identities of the six January I , 2000 arrestees. Nonetheless, the Court does find that Maynard is
entitled to relief as a result of trial counsel's failure to investigate Maria Weeks' history of drug
use.
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a. Counsel's Decision Not to Request a Continuance
49 Maynard argues that he was denied a fair trial because defense counsel failed to request a
continuance of the trial at the final pretrial hearing two weeks prior. He posits that such a
continuance would have permitted further investigation into the individuals arrested for possessing
the alleged murder weapon and, regarding Weeks, to "procure evidence of the eyewitness's prior
crack use and diagnosis of being a pathological liar." Petition at fl 35-39. Instead of seeking to
continue the trial to permit further investigation, defense counsel renewed his document disclosure
requests at the final pretrial conference and again at the commencement of trial, to no avail.
50 The Court finds that counsel's failure to request a continuance of trial does not, standing
alone, overcome the presumption afforded to counsel that such action was part of sound trial
f the Virgin Islands, 71 V.I. 1227, 1242 (3d Cir. 2019) ("It is a high
strategy. See Simon v. Gov't o
bar to claim ineffectiveness from failing to seek a continuance or lack of time to prepare."). The
time required to investigate these matters may not have necessitated a continuance of the trial, if
counsel had successfully obtained the documentation sought. As such, defense counsel's failure to
request a continuance, in itself, does not amount to ineffective assistance of counsel.
b. Counsel's Failure to Investigate
i. Identity o
f the Six Arrestees
1 51 The Court finds that Maynard has satisfied the first prong of the ineffective assistance of
counsel analysis, overcoming the presumption that counsel's failure to make attempts to identify
and investigate the arrestees before or during trial was part of sound trial strategy and that such
omissions were not the result of reasonable professional judgment. Counsel could have made
attempts to learn the identities of the arrestees prior to trial by contacting the law enforcement
personnel who handled the arrests. Further, counsel never spoke with any of the arrestees after
learning their names, even though the court did not rule on Maynard's Brady challenge until a
month after trial. These omissions cannot in good faith be deemed to have been part of a sound
trial strategy.
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'I[ 52 Yet, as the trial judge noted, counsel had all the information necessary to argue to the jury
21 22
that someone else possessed the AK-47. Indeed, counsel made that argument to the jury.
Further, there is no showing that any of the six arrestees could have provided exculpatory evidence.
As such, Maynard has not raised a reasonable probability of prejudice such that confidence in the
outcome of the trial is undermined to the extent necessary to satisfy the second prong of his
ineffective assistance of counsel claim. See Maynard, 5 1 V.I. at 760; Ibrahim, 2008 V.I. Supreme
LEXIS 20 at *5. Accordingly, the Court finds that Maynard has not established his ineffective
assistance of counsel claim regarding counsel's failure to investigate the identities of the six
arrestees.
ii. Weeks' History of Drug Use
'1[ 53 It is undisputed that the defense knew about Weeks' drug use, knew how to obtain
information about that drug use, and was offered assistance of the court to do so. Defense counsel's
failure to take steps, with or without the trial court's offered assistance, to obtain this significant
information concerning Weeks easily overcomes the presumption of sound trial strategy. It is clear
that, with due diligence of counsel in advance of or during trial, the evidentiary landscape before
the jury would have been vastly different from that upon which Maynard was convicted.
54 Counsel repeatedly declined assistance of the trial court to procure this crucial information
concerning the prosecution's key eyewitness before and during trial. The relative ease with which
counsel obtained the information after trial, as he could have done before trial, leads to the
inescapable conclusion that Maynard's counsel's representation was objectively unreasonable,
indicative of a lack of zealousness in preparation and advocacy at trial. As such, regarding Weeks'
records, Maynard has satisfied the first prong of his claim for ineffective assistance of counsel, as
21
The trial judge further stated: "The Court finds that the defendant had all the information to discover
those names, and based on cross-examination probably knew of those named..." Maynard, 5 1 V.I. at 760.
12
During closing argument, Maynard's counsel urged the jury to infer that one of the arrestees was linked
to the firearm in an attempt to discredit the government's theory that Maynard was responsible for the
murder of Hyman, Sr.:
"But we know, do we not, that somebody else other than Kenrick Maynard possessed that gun,
because on January I , 2000, there was a shooting...
" .. . {The police) arrested Jose Hodge, Antonio Benjamin, Sherman Louis, Kareem George, Naja
Adams, and Kwasi Adams [) for possession of that same firearm, the gun that was used to kill Adolph
Hyman [Sr. J . .. "
Maynard, 392 Fed. Appx. at 1 1 0 .
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the Court finds that the representation included acts and omissions that were not consistent with
any sound trial strategy or the exercise of reasonable professional judgment. See Ibrahim, 2008
V.l. Supreme LEXIS 20 at 5.
55 As to the second prong, the Court finds that defense counsel's failure to investigate Weeks'
history of drug use and propensity for prevarication raises a reasonable probability of prejudice to
Maynard, undermining confidence in the outcome of the trial. The question here is whether, absent
the errors of counsel, "the factfinder would have had a reasonable doubt respecting guilt."
Strickland, 466 U.S. at 695. Weeks was the Government's key eyewitness. Maynard had personal
knowledge of her drug use and, because of counsel's "deficient performance," Maynard's defense
was prejudiced by the fact that his testimony as the accused was the only evidence the jury heard
to impeach Weeks' credibility. See Burke v. Prosper, 70 V.I. at 874. Had Maynard been able to
present concrete impeachment evidence about Weeks' eleven-year history of crack cocaine
addiction, as well as her therapists' characterization that she was "a pathological liar who alters
the truth to fit her needs and fantasies," Weeks' credibility as a witness would have undoubtedly
been seriously affected. On these facts, by the acts and omissions of his counsel, Maynard was
substantially prejudiced at trial to the extent that confidence in the outcome of the trial has been
undermined.
56 Considering the "totality of the evidence," the Court finds that Maynard's inability to
present at trial concrete evidence to support his own testimony of Weeks' drug use, evidence that
with diligence was available to his counsel, likely "had a pervasive effect on the inferences to be
drawn from the evidence, altering the entire evidentiary picture." Strickland,
466 U.S. at 695-96.
On these facts, the Court finds that "there is a reasonable probability that, absent the errors [of
counsel], the factfinder would have had a reasonable doubt respecting guilt." Id.at 695. As such,
Maynard has satisfied the second prong of his claim for ineffective assistance of counsel and is
entitled to relief.
CONCLUSION
,i 57 In sum, the Court finds that Petitioner Maynard was deprived of constitutionally mandated
effective assistance of counsel at trial. Defense counsel's failure to investigate Government witness
Maria Weeks' history of drug use fell below an objective standard of reasonableness. Counsel's
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deficient performance prejudiced Maynard "resulting in an unreliable or fundamentally unfair
outcome in the proceeding." Burke, 70 V.I. at 874. Maynard prays for an order discharging him
from his sentence or, in the alternative, a new trial. Chapter 91 of Title 5 of the Virgin Islands
Code governing habeas proceedings "contemplates remedies other than discharge . . . [and]
recognizes that an incarcerated individual may not be entitled to immediate discharge from
custody, yet may still be unlawfully imprisoned and entitled to relief." Rivera-Moreno, 61 V.1. at
295.
1 58 In light of the foregoing, Petitioner is granted relief by separate Order entered herewith,
vacating that portion of the November 2 1 , 2001 Judgment and Commitment entered in Criminal
No. ST-F400/2000 adjudicating Maynard guilty of the Virgin Islands crimes of first-degree murder
(14 V.1.C. § 922(a)(l)) and unauthorized possession of a firearm (14 V.1.C. § 2253(a)), and
granting a new trial on those charges.
DATED:
ATTEST:
TAMARA CHARLES
Clerk of the Court
By: Sharisse A. Bascombe _
Court Clerk Supervisor
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
KENRICK MAYNARD,
Petitioner,
SX-2018-MC-00066
V.
GOVERNMENT OF THE VIRGIN PETITION FOR WRIT OF
ISLANDS, GOVERNOR ALBERT BRYAN HABEAS CORPUS
in his official capacity, ARIEL M. SMITH,
ATTORNEY GENERAL in her official
capacity, BUREAU OF CORRECTIONS
DIRECTOR WYNNIE TEST AMARK in her
official capacity, CITRUS COUNTY
DETENTION CENTER WARDEN MIKE
QUINN in his official capacity,
Res ondents.
ORDER
By Memorandum Opinion entered in this matter herewith, Petitioner is entitled to relief on his
Petition for Writ of Habeas Corpus. Accordingly, it is hereby
ORDERED that Petitioner's prayer for relief pursuant to Writ of Habeas Corpus is
GRANTED. It is further
ORDERED that the portion of the November 21, 2001 Judgment and Commitment in
Criminal No. ST-F400/2000 adjudicating Petitioner GUILTY of Count IV (First-Degree Murder: 14
V.I.C. § 922(a)(l)) and Count V (Unauthorized Possession and Carrying ofa Firearm: 14 V.I.C. §§
2253(d) and 2253(a)) is VACATED and set aside. It is further
ORDERED that Respondent, through the Office of the Attorney General, shall notify the
Court, in writing, within thirty (30) days of the date of entry of this Order whether the People of the
Virgin Islands intend to retry the referenced criminal charges against Petitioner. It is further
ORDERED that Petitioner shall remain in the custody of the Bureau of Corrections pending
further Order of the Court. It is further
ORDERED that a copy of this Order and the accompanying Memorandum Opinion shall be
served FORTHWITH on all parties and appearing counsel.
osm 7.4, 7, 202 3
ATTEST: TAMARA CHARLES
Clerk of the Court
Sharisse A. Bascombe
By:-------------
Court Clerk Supervisor
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
Kenrick Maynard, Case Number: SX-2018-MC-00066
Plaintiff Action: Writ of Habeas Corpus
v.
Kenneth Mapp, et al,
Defendant.
NOTICE of ENTRY
of
Order
To Yohana M. Manning, Esq. Michael Robert Francisco, Esq.
:
Please take notice that on July 10, 2023
a(n) Memorandum Opinion and Order
dated July 7, 2023 was/were entered
by the Clerk in the above-titled matter.
Dated July 10, 2023 Tamara Charles
:
Clerk of the Court
By:
Sharisse Bascombe
Court Clerk Supervisor