FOR PUBLICATION

SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
PEOPLE OF THE VIRGIN ISLANDS, CASE NO. SX-2012-CR-076

Plaintiff,

JOSE VENTURA,

Defendant.

)
)
)
)
)
)
)
)
)
)

Cite as: 

Appearances:

JOSEPH PONTEEN, ESQ.

Chief Deputy Attorney General
Virgin Islands Department of Justice
Christiansted, VI 00820

For People of the Virgin Islands

RONALD D. WOOD, ESQ.
The Wood Law Office

Show Low, AZ 85901
For Jose Ventura'

MEMORANDUM OPINION
(Filed June 3, 2020)

DONOHUE, SR., Senior Sitting Judge:

ql THIS MATTER is before the Court on remand from the Supreme Court of the Virgin Islands for
this Court to “consider . . . in the first instance,” Ventura v. People, 

 (2016) (“Ventura
IP’), the new trial motion Jose Ventura (“Ventura”) made after the jury found him guilty of first-degree

murder. “Although Ventura’s co-defendant, Jose Rivera (“Rivera”), did not file a motion for new trial, the

' Daniel J. Cevalios, Esq., was counsel of record when the motion addressed herein was filed. Attomey Cevallos withdraw with
permission on appeal and Ronald D. Wood, Esq. was appointed in his place. On remand, Attorney Wood was granted leave to
withdraw for personal reasons and Emest E. Morris, Jr., Esq. was appointed. Attomey Morris later withdrew, and Attomey
Wood was reappointed since his personal matter had been resolved by then.
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION
Page 2 of 29

Supreme Court nonetheless remanded his case as well, concluding that ‘it would be manifestly unjust to
deny Rivera the same opportunity simply because his counsel failed to make the same argument.’” People
v. Rivera, 

, 396-97 (Super. Ct. 2018) (“Rivera [iP’) (quoting Rivera v. People, 64 V.1. 540, 587
(2016) (“Rivera [P’)). On remand, Rivera filed his own motion for a new trial based on newly-discovered
evidence, which this Court has denied in a separate opinion of even date. See People v. Rivera, 

. For the reasons stated below, Ventura’s motion for a new trial will also be denied.
FACTUAL AND PROCEDURAL BACKGROUND

{2 The factual and procedural background of this case has been summarized in prior opinions of this
Court and the Virgin Islands Supreme Court. See generally People v. Ventura, SX-12-CR-076, 

 (V.L Super. Ct. July 25, 2014) (‘Ventura P’), aff'd in part and rev'd on other grounds by
Ventura If, 64 V.1. 589; see also People v. Rivera, SX-12-CR-063, 

 (V.I1. Super. Ct.
May 1, 2014) (“Rivera I”), aff'd in part and rev'd on other grounds by Rivera I, 64 V.1. 540. Ventura and
Rivera were charged and convicted of first-degree murder for the 2001 kidnapping and killing of Virgin
Islands Police Corporal Wendell Williams. They each moved for judgment of acquittal after the jury
returned its verdict, which this Court denied. See generally Ventura I, 

; Rivera J, 

. Ventura also moved for a new trial, which the Court denied “but not on the merits. Rather,
because Ventura’s motion... was ‘untimely filed,’ the Court ‘declined to address the substance.’”? Rivera
ITT, 68 V.1. at 397 (brackets omitted) (quoting Ventura 7, 

 at *62). Ventura and Rivera
each were sentenced to a term of imprisonment for life.

3 On appeal, the Supreme Court affirmed their convictions but “concluded that denying Ventura’s

motion for a new trial as untimely was in error because the People ‘did not object to the late filing’ and

? Ventura had only filed one document but included two requests within that document: a motion for judgment of acquittal and
a motion for a new trial.
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 3 of 29

had waived the ‘defense of untimeliness.’” Rivera HJ, 68 V.L. at 398 (quoting Ventura I/, 64 V.1. at 617).
Both cases were remanded for this Court to consider Ventura’s motion on its merits. On remand, the Court
granted the parties “leave to supplement their respective motion papers.” Rivera ITT, 68 V.I. at 399
(quotation marks, brackets, and citations omitted). Ventura requested and was granted leave “to
supplement to his motion papers with his appellate brief.” Jd. at 401. Otherwise, the parties did not
supplement their respective positions on remand.
DISCUSSION
A. The People’s Surresponse

94 Before turning to the merits of Ventura’s motion for a new trial, the Court must first explain why
the People’s surresponse to that motion must be reinstated. Initially, in addressing Ventura’s motions, the
Court struck the People’s surresponse because it was filed without leave. See Ventura, 

 at *63. See Ventura, 

 at *63 (“Because Ventura was the movant, the People were
only allowed to file a response in opposition to his motion. Their Reply to Ventura’s Reply . . . was filed
without leave of court. Accordingly, the Court struck it from the record . .. and did not consider it in

reaching its decision.”). There is no question that the Court had the authority to strike the surresponse

66

because “‘a court has inherent authority to strike any filed paper which it determines to be abusive or
otherwise improper under the circumstances.”” People v. Roberts, 70 V.1. 168, 172 (Super. Ct. 2019)
(quoting Jn re: Asbestos, Catalyst & Silica Toxie Dust Exposure Litig., 68 V.1. 507, 515 (Super. Ct. 2018).
But courts are not obligated to strike papers filed late or without permission, or even by non-parties. Cf

 (““[I]it does not follow that courts should always strike untimely-filed papers just because they were
filed late.” (quoting Der Weer v. Hess Oil V.I. Corp., 64 V1. 107, 127 (Super. Ct. 2016)); accord In re:
Alumina Dust Claims, 67 V.1. 172, 188 (Super. Ct. 2017) (“Documents filed by nonparties can be stricken

from court files.” (emphasis added)). Instead, the decision to strike papers from the record is discretionary.
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 4 of 29

See Der Weer, 64 VL. at 127 (“A pleading or other paper on file, that is so defective in form, or so improper
in substance, that it ought not to be placed on file, or a pleading or paper placed on file without right to
file it, may, on motion, be stricken from the files; and the court may, sua sponte, order such pleading or
paper stricken from the files. The court has control of its files and its records, and the object of an order
striking pleadings or papers from the files is simply to disencumber the files and the records of the court
of papers that are in themselves improper and objectionable, or that are improperly placed on file.” (ellipsis
and citation omitted)). Thus, since the decision to strike something from the record is discretionary, courts
can disregard late-filed papers or papers filed without permission instead of striking them. See Roberts,
70 V.I. at 172 (“[W]hen motion papers are filed late, courts can strike them, or dismiss an untimely motion
or disregard an untimely response or reply . . . .” (citation omitted)); accord In re: Kelvin Manbodh
Asbestos Litig. Series, Case No. SX-97-CV-514, et seg., 2018 V.1. LEXIS 96, *16 n.14 (V.J. Super. Ct.
Sep. 19, 2018) (deciding to disregard rather than strike an opposition filed by a nonparty).

q5 As noted, the Court struck the People’s surresponse because it was filed without leave and “only
a motion, a response in opposition and a reply are allowed unless leave of court is granted.” Ventura J,

 at *63 (citing D.V.I. Local R. Civ. P. 7.1(a); D.V.I. Local R. Crim. P. 1.2; and Super.
Ct. R. 7). But more importantly, Ventura had raised new arguments in his reply to support his motion for
a new trial. (Cf People’s Reply to Def.’s Reply Br. 4, filed Mar. 12, 2014 (hereinafter “Surresponse”)
(“Ventura now raises a new reason that he is entitled to a new trial that was not in his original Motion for
New Trial.”).) Generally, “it is improper for a party to raise an issue for the first time in a reply brief in
Superior Court, because the opposing litigant is not, as a matter of course, given an opportunity to respond
to that new argument. . . under the rules governing standard motion practice in Virgin Islands trial courts.”
Braithwaite v. Xavier, 71 V.1. 1089, 1100 (2019). For this reason, arguments raised in reply papers are

generally deemed waived. See 

 (citing Perez v. Ritz-Carlton V.[, Inc., 59 VI. 522, 528 n.4 (2013)).
People v, Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 5 of 29

Rather than notify the Court that Ventura waived his new argument because he raised for the first time in
his reply, or request leave to respond, the People instead filed a surresponse without leave and addressed
the argument on the merits. The Court struck it, acting sua sponte. On further reflection, the Court finds
that it must reinstate the People’s surresponse. Three reasons support this conclusion.

6 First, the People filed their surresponse on March 12, 2014. The order striking it was entered on
April 10, 2014. In the intervening weeks, Ventura did not move to strike it or object. He may have forfeited
the right to object. Accord Ventura II, 64 V.1. at 617 (“When a party fails to raise a defense of untimeliness,
thereby forfeiting that defense, a court should proceed to the merits of a case. Here, the People admit that
it did not object to the late filing of Ventura's motion for a new trial, and the Superior Court should have
proceeded to address the merits of the motion.” (citations omitted)). But more importantly, by responding
to Ventura’s arguments on the merits, the People waived the right to claim that Ventura waived his new
argument. Cf Webster v. FirstBank P_R., 66 VI. 514, 518 n.2 (2017) (“[T]he fact that FirstBank has
briefed the issue on the merits without contending that the issue has been waived is sufficient for FirstBank
to have waived waiver.” (citing Simpson v. Golden, 56 V.1. 272, 281 n.6 (2012)). Thus, striking the
sufresponse sua sponte may have been in error. Cf Braithwaite, 71 V.1. at 1100 (noting that generally the
Superior Court should let the parties be heard before acting sua sponte) (citing Malloy v. Reyes, 

 (2014)).

q7 Second, complying with the Supreme Court’s mandate may require reinstating the People’s
surresponse. In remanding this case to the Superior Court, the Supreme Court, technically, did not reverse
or vacate any portion of the April 10, 2014 order that struck the People’s surresponse and denied Ventura’s
post-trial motions. (Cf Order 1-2, entered May 4, 2016, Ventura v. People, 8. Ct. Crim. No. 2014-0021
(“AND NOW, consistent with the Opinion of even date, it is hereby ORDERED that the Superior Court’s

May 2, 2014 judgment and commitment is AFFERMED but that this case is REMANDED so that the
Peaple v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 6 of 29

Superior Court may consider on the merits the issue of whether a new trial should be granted in the first
instance.”).) To be clear, this Court denied, not dismissed, Ventura’s motion for a new trial.’ By remanding
Ventura’s motion to this Court to consider it, the Supreme Court had to implicitly vacate the portion of
the April 10, 2014 order that denied the motion. The Supreme Court did not “order[] the complete
opposite,” Hon, Jon O. Newman, Decretal Language: Last Words of an Appellate Opinion, 

, 728 (2005), i.e., that Ventura be given a new trial. Instead, the Court remanded for a merits
determination, which implies that the Court’s denial of the motion had to have been implicitly vacated.
Cf In re Morin, 

 (Vt. 2011) (“The power to remand is essentially connected with the power
to vacate.”). In general, vacatur of an order has the effect of reinstating the status quo ante. See 

 (“When
a court vacates and sets aside a judgment, that eliminates the judgment and thereby returns the case to its
status before the judgment was made. In many circumstances, this will leave a case in a procedural posture
such that it requires further proceedings in the original court.”); accord Deprins v. Clark, 

 (9th Cir. 2014) (“Vacatur of an order creates a legal status the same as if the order never
existed.”); Wagner v. Wagner, 

 (owa 2000) (marriage reinstated) (‘[I]f a judgment
or decree of divorce is vacated or annulled, the marital rights, obligations, and status of the parties are
revived and restored, The vacation of the decree places the parties in the status in which they were before
the divorce.” (citation omitted)); People v. Cosme, 

 (N.Y. 1992) (criminal charges

reinstated) (“vacatur of the defendant’s conviction had revived all of the counts in the indictment.”); Mani

> Generally, if a court lacks authority to rule on a motion, the motion is dismissed, not denied. Cf Paul v. Raritan Supply Co.,
No. SX-97-CV-329, 2017 V.1. LEXIS 106, *8 (V.1. Super. Ct. July 13, 2017) (stipulation for dismissal filed by nonparties)
(“[T]}he Court cannot grant or deny relief here. Consequently, the stipulation must be dismissed.”); see also Der Weer v. Hess
Oil V1. Corp. , 60 V.1. 91, 98 (Super. Ct. 2014) (pending motions can either ‘ruled upon, dismissed, or withdrawn.’” (emphasis
added) (quoting 56 Am. Jur. 2d, Motions, Rules, and Orders § 31 (2010)). Denying a motion, even as moot, technically
constitutes a ruling. Cf Arno v. Hess Corp., 71 V.L 463, 486-88 (Super, Ct. 2019). In this instance, the Court denied Ventura’s
motion for a new trial. See Ventura 1, 

 at *62 (“Because the Court denies the motion for new trial as being
untimely filed, the Court declines to address the substance of the motion.”). Having concluded that the Court lacked the
authority to consider the motion because it was untimely, dismissing it, rather than denying it, may have been more appropriate.
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 7 of 29

Med., P.C. v. Am. Transit Ins. Co., 957 N.Y.8.2d 636, 636 (App. Term 2010) (summary judgment motion
reinstated) (“The order granted defendant’s motion to vacate a judgment and the underlying order granting
plaintiff's motion for summary judgment on default and, upon such vacatur, restored plaintiff's motion to
the calendar.”); see also Bromberg v. People, 

 (1907) (vacatur of vacatur reinstates
initial order), Accordingly, for this Court to be able to consider Ventura’s motion on the merits, the Virgin
Islands Supreme Court had to have implicitly vacated this Court’s denial of Ventura’s motion and
reinstated status quo ante, Reinstating the status quo ante might also have implicitly reinstated the
People’s surresponse.

18 Third, and most importantly, even if the Supreme Court’s mandate did not implicitly reinstate the
People’s surresponse, the Supreme Court nonetheless remanded Ventura’s motion to this Court to render
a ruling, which would be incomplete without considering the People’s surresponse. The crux of Ventura’s
argument for a new trial is in his reply, which is why the People filed a surresponse. (See Surresponse 4
(“Ventura now raises a new reason that he is entitled to a new trial that was not in his original Motion for
New Trial.” (emphasis added)).) In other words, Ventura’s initial “argument” for a new trial was

perfunctory, spanned two pages,’ cited the wrong rule, and consequently, relied on non-binding authority,

* Ventura’s entire argument for a new trial was as follows:

Defendant incorporates each and every argument, fact, and allegation stated supra as if fully restated herein
at length.

Federal Rule of Criminal Procedure 33(a) provides that a judgment may be vacated or a new trial
ordered “if the interest of justice so requires.” Rule 33 expressly provides that the trial court, in its broad
discretion, may set aside a jury verdict to prevent a miscarriage of justice. See also, United States v. Perez,

, *3 (S.D.NLY. Feb. 28, 2003) (citations omitted):

“In considering a Rule 33 motion, the district court must strike a balance between weighing the
evidence and the credibility of witnesses and not ‘wholly usurping’ the role of the jury. Because a court
generally must defer to the jury’s resolution of conflicting evidence and assessment of witness credibility,
‘[iJt is only where exceptional circumstances can be demonstrated’ that a trial judge may intrude upon a
jury’s factual determinations.” /d. (citations omitted). While courts may disfavor motions for new trials and
exercise “great caution” before granting them, “any error which would require reversal on appeal is a
sufficient basis for granting a new trial.” United States v. Stiner, 

 (D. Kan. 1991).
Therefore, Rule 33 “may be applied when the trial court does not believe that the evidence supports the jury's
People vy. Ventura 

$X-2012-CR-076

MEMORANDUM OPINION

Page 8 of 29

leaving the Court in the position of having to scour the record to make his argument for him, contra Litwin
Corp. v. Universal Oil Prods. Co., 69 V.1. 380, 387 (Super. Ct. 2018) (“[N]Jo court can make a movant’s
arguments for him when he has failed to do so.” (quotation marks and citations omitted)), or find the
argument waived. Cf Hess Oil VI. Corp. v. Fluor Daniel, 

 ¥ 19 (“[A]rguments or issues
not raised by the movant or inadequately briefed are generally deemed waived.”) Again, however, rather
than that Ventura waived his request for new trial by not adequately briefing it, cf Toussaint v. Stewart,

, 945 n.10 (2017); Antilles Sch. Inc. v. Lembach, 64 V.1. 400, 428 n.13 (2016), the People

instead submitted a perfunctory response in opposition.’ Only in his reply did Ventura truly develop his

verdict.” United States v. Brodie, 

 (E.D. Pa. 2003), citing United States v. Dixon,

 (3d Cir. 1981) (emphasis added).

When considering a motion for a new trial, “the trial judge can consider the credibility of the
witnesses and the weight of the evidence to insure that there is not a miscarriage of justice. It has often been
said that he/she sits as a thirteenth juror.” United States v. Turner, 

 (E.D. Mich. 1979).

A district court can order a new trial on the ground that the jury’s verdict is contrary to the weight
of the evidence if it “believes that there is a serious danger that a miscarriage of justice has occurred; that is,
that an innocent person has been convicted. Unifed States v. Brennan, 

 (3rd Cir. 2003).
A district court’s power to grant a new trial is much broader than its power to grant a motion for judgment of
acquittal. United States v. A. Lanoy Alston, 

 (9th Cir. 1992); United States v. Capati, 

 (8.D. Calif. 1997).

Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion, it
does not view the evidence favorably to the government, but instead exercises its own judgment in assessing
the government's case. Brennan, 326 F.2d at 189. In other words, this Court sits as the “thirteenth juror” and
independently evaluates the evidence, including the credibility of witnesses. Government of Virgin Islands
v. Derricks, 

 (3rd Cir. 1987); Tibbs v. Florida, 

 (1982).

CONCLUSION

For the above reasons, Defendant Jose Ventura respectfully requests this Court enter a judgment of
acquittal, or, in the alternative, order a new trial.

(Def.’s Post- Verdict Mots. Pursuant to Rules 29 & 33 of Fed. R. Crim. P. Submitted Prior to Receipt of Trial Tr.; Mot. for Ext.
of Time to Supp. Post-Verdict Mots. Upon Receipt of Tr.; & Reservation of Right to Supp. Upon Receipt of Tr. 21-22, filed
Feb. 21, 2014 (alterations in original).)

5 The People’s response in opposition was:

When assessing a motion pursuant to Fed. R. Crim. P. 33(a), the Court “exercises its own judgment in
assessing the Government’s case. However, even if [the Superior Court] believes that the jury verdict is
conirary to the weight of the evidence, it can order a new trial only if it believes that there is a serious danger
that a miscarriage of justice has occurred—that is, that an innocent person has been convicted. United States
v. Silveus, 

, 

 (3d Cir. 2008).
People v. Ventura 

$X-2012-CR-076

MEMORANDUM OPINION

Page 9 of 29

argument, devoting four out of twelve pages to explaining why he should be granted a new trial, allegedly
because several witnesses perjured themselves. Since the People responded to Ventura’s new argument,
the Court believes that the safer route—under the unique circumstances presented here—is to vacate the
portion of the April 10, 2014 order that struck the People’s surresponse, reinstate it, and consider it in
ruling on the merits. The Court cannot presume that the Supreme Court remanded this matter solely for
the Court to issue a perfunctory denial. Cf Larrison v. United States, 

 (“[[]it would be idle
to return the record for the purpose of passing upon a motion that must be denied.”).
B. Ventura’s Motion for New Trial

79 In ruling on a motion for a new trial, the Superior Court “may weigh the evidence and the
credibility of witnesses, and if the court determines that there has been a miscarriage of justice . . . order
a new trial.” Fahie v. People, 62 V.1. 625, 632 (2015) (citing People v. Morton, 57 V.1. 72, 77 (Super. Ct.
2012)). On a new trial motion “the Superior Court is uniquely situated to weigh the credibility of witnesses
... especially ... where there is not an abundance of evidence indicating guilt and the credibility of...
witnesses is, at best, questionable.” Ventura IT, 

 (citations omitted), And “[a] new trial must
be granted when the verdict is against the interests of justice.” Gonsalves v. People, 

, 832 n.8
(citing Super. Ct. R. 135). But when “a motion for a new trial [is] premised on a challenge to the credibility
of the witnesses, ‘it remains the law that a trial court should weigh the evidence, but a new trial should
not be granted unless the court believes that there is a serious danger that an innocent person has been

convicted.” Percival v. People, 62 V.1. 477, 491 (2015) (brackets omitted) (quoting Stevens v. People, 52

For the reasons discussed above, which the People incorporate as if fully restated herein, there is no
serious danger that a miscarriage of justice has occurred. Given the evidence, there is no serious danger that
an innocent person was convicted. Thus, this Court should deny the defendant's Motion for a New Trial

(People’s Opp’n to Def.’s Mot. 18, filed Feb. 28, 2014 (brackets in original).)
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION
Page 10 of 29

V.L. 294, 306 (2009)).
{10 As grounds for a new trial, Ventura contends that “at least three witnesses for the prosecution
perjured themselves on the stand,” which “was apparent to all only after their testimony that perjury had
occurred.” (See Def’s Reply Br. to People’s Resp. 9, filed Mar. 5, 2014 (hereinafter “Reply”).)
Specifically, he claims that Teresa Coogle (“Coogle”), the primary witness and only eyewitness, as well
as two other witnesses, Jimmy and Hector Davis (collectively “the Davis Brothers”), perjured themselves.
Relying on Larrison, Ventura claims that a new trial should be granted if:

1. The court is reasonably well satisfied that the testimony given by a material witness is

2. ee it a jury might have reached a different conclusion; [and]

3. That the party seeking the new trial was taken by surprise when the false testimony was

given and was unable to meet it or did not know of its falsity until after the trial.

 at 8-9 (quoting United States v. Meyers, 

 (3d Cir. 1973) (citing in turn Larrison, 

)).
fil‘ Ventura’s reliance on Larrison is misplaced, however, because Larrison concerns recanted
testimony. See Larrison, 

. Neither Coogle nor the Davis Brothers recanted their testimonies.
Moreover, Ventura failed to point out that the United States Court of Appeals for the Seventh Circuit
overruled Larrison eight years before Ventura filed his motion. See United States v. Mitrione, 

 (7th Cir. 2004) (“Today, we overrule Larrison and adopt the reasonable probability test.”),
vacated on other grounds, 

 (2005). That would not preclude the Superior Court of the Virgin

Islands, in the absence of binding precedent from the Supreme Court of the Virgin Islands or the Supreme

Court of the United States, from following Larrison.® Cf Hughley v. Gov't of the V.L, 61 V.1. 323, 337-

® Ventura’s motion would have raised a question of first impression: whether the Virgin Islands should follow Larrison. See
Gov't of V.L v. Lima, 

, 1251 n.4 (3d Cir. 1985) (“The Larrison test has not been adopted by this Court.”); see
also People v. Stevens, No. ST-06-CR-157, 

, *12 (V.1. Super. Ct. Aug. 17, 2012) (‘“(U]pon subsequent
research, the Court has found that Larrison has not been clearly adopted in this jurisdiction, but has merely been considered as
persuasive authority where the newly discovered evidence suggests perjury by a material witness.” (footnote omitted)). But of
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 1! of 29

38 (2014); see Gov't of the V.I. v. Connor, 

 (2014) (per curiam) (citing Banks v. Int’l
Rental & Leasing Corp., 55 V.1. 967, 977-78 (2011)). But since Ventura complains of perjured testimony,
not recanted testimony, Larrison is not applicable here.

ql2 “All perjured relevant testimony is at war with justice, since it may produce a judgment not resting
on truth.” Jn re Michael, 326 U.S, 224, 227 (1945); see also United States v. Agurs, 

(1976) (“[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and

must be set aside if there is any reasonable likelihood that the false testimony could have affected the

United States v, Smith, Crim. No. 88-146, 

, *6 n.1 (D.V.J. Aug. 30, 1990) (“The Court is aware
that the Third Circuit has not flatly adopted the Larrison rule.”). Nationally, two approaches have emerged to address recanted
testimony: whether the result “might” be different or “probably would” be different without the testimony.

One approach has been to treat the recantation as a form of newly discovered evidence. When a new trial is
sought upon such evidence, the moving party must satisfy what has come to be known as the “Berry” test.
This multi-part test, named after the case of Berry v. State, 

 (1851), includes a requirement that
the new evidence probably would produce a different result. Berry has been adopted in substance by most
state and federal courts... . A second approach has been to treat recanted testimony as a problem distinct
from newly discovered evidence. Perjured testimony affects the integrity of the judicial process in a way that
overlooked evidence does not. Moreover, while a rigorous standard for obtaining a second trial upon new
evidence may be justified as an incentive for the parties to marshal evidence and to present it at the first trial,
the parties need no such incentive to combat perjury. The seminal decision establishing a distinct test for
recanted testimony is Larrison v. United States, 

 (7th Cir.1928). ... Those courts which fail to
discern any functional difference between the recantation of trial testimony and the discovery of new
evidence after trial have applied the Berry test in both situations. However, most courts now apply the
Larrison test to recanted testimony.

State v. Lawrence, 

 (Idaho Ct. App. 1986) (paragraph breaks and all other citations omitted); see also
State v, Clark, 

 (Mont. 2005) (“Since its creation, several courts have adopted the Larrison test, combined
it with the Berry test, or noted it without commitment as to its authority or applicability in their jurisdiction.” (citations
omitted)). Some courts adopted Larrison but modified it. See, e.g., State v. Britt, 

 (N.C. 1987) (adopting
modified Larrison test).

The most common modifications to the Larrison test involve its second and third criteria, As to the second,
which looks to the materiality of the evidence, the typical modification is to require more than a mere
“possibility” that a jury might have reached a different conclusion. Instead, the more stringent standard of
“probability” is applied. ... The other common modification is to delete surprise as a separate criterion. .. .
The one constant criterion under virtually every formulation of a test is that the trial court must itself be
reasonably satisfied the challenged testimony or statements were actually false

People v. Schneider, 

 (Colo. App. 1999) (Briggs, J., dissenting) (citations omitted), rev’d 

 (Colo.
2001). Several courts continue to follow Larrison, even after the Seventh Circuit overruled it in Mitrione. E.g., Ortega v. State,
$

, 103 (Minn. 2014) (*ZLarrison has been overnuled . . . but we continue to apply its test in cases involving witness
recantation and false testimony.” (citing State v. Caldwell, 

 (Minn.1982)) (other citation omitted);
State v. Jones, No. 9911016309, 

, *16 0.102 (Del. Super. Ct. Sept. 3, 2008) (“Although Delaware still
adheres to the Larrison test, that test is applicable only where the witness recants.” (citations omitted)). Because both tests
concern recanted testimony, the Court does not have to decide what test to adopt.
People v. Ventura 

$X-2012-CR-076

MEMORANDUM OPINION
Page 12 of 29

judgment of the jury.” (footnotes omitted)). Neither the prosecution nor the defense may knowingly
present perjured testimony at trial. See Napue v. Illinois, 

 (1959) (“The principle that a
State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction,
implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes
only to the credibility of the witness.”); Nix v. Whiteside, 

 (1986) (“[T]here is no right
whatever—constitutional or otherwise—for a defendant to use false evidence.” (citation omitted)).

{13 Even if'a witness does lie under oath, “[i]t need not . . . obstruct or halt the judicial process. For
the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact-finding
tribunal must hear both truthful and false witnesses.” In re Michael, 336 U.S. at 227-28. However, if
“undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the
prosecution knew, or should have known, of the perjury,” then the conviction “must be set aside if there
is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs,

 (emphasis added) (footnotes omitted); accord People v. Ward, 55 V.1. 829, 842 (2011)
(“A Giglio violation .. . is a type of Brady violation in which the undisclosed evidence reveals that the
prosecution knowingly made false statements or introduced or allowed trial testimony that it knew or
should have known was false.” (quotation marks and citations omitted)). With this background in mind,
the Court examines the challenged witnesses’ testimony, beginning with the Davis Brothers.

(1) The Davis Brothers

ql4 Concerning the Davis Brothers, Ventura does not point to any specific falsities in their testimonies.
Instead, Ventura claims that the Davis Brothers perjured themselves because the People expected them to
lie and had “FBI impeachment witnesses . . . lined up and waiting to testify after the expected false
testimony of the Davis Brothers.” (Reply 11.) Based on this ipsi dixit, Ventura concludes that the Court

should be “reasonably well satisfied that the testimony given by these material witnesses is false,” 

 that
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION
Page 13 of 29

“[wlithout the[ir] testimony . . . a jury would have reached a different conclusion—though the standard is
only that the jury might have reached a different conclusion,” id. at 12, and that Ventura was “taken by
surprise.” /d. Ventura emphasizes that he does not accuse the prosecution of misconduct. See id. at 9
(“Defense counsel is not alleging misconduct on the part of the prosecution in the perjury of the People’s
witnesses.”). But even if the Court were to “assume that the People were unaware of the perjured testimony
. .. anew trial is [still] warranted if the testimony was material, and ‘the court is left with a firm belief
that but for the perjured testimony, the defendant would most likely not have been convicted.’” Jd. at 10
(emphasis added) (brackets omitted) (quoting United States v. Wallach, 

 (2d Cir. 1991)).
415 The People, in response, correctly point out that Ventura failed to show “what testimony was false
and how defense counsel were surprised by such testimony.” (Surresponse 4.) The People reject that
Ventura’s trial counsel, Daniel L. Cevallos, Esq., “an experienced criminal defense attorney, who is also
a legal analyst and online columnist for CNN and HLN,” id. at 5, could claim surprise that “the Davis
brothers testified that they did not have any knowledge of, and never had a conversation with any of the
defendants, regarding the death of Corporal Williams ... .” Jd. Even if the defense was surprised, Ventura
was not prejudiced, the People assert. See id. (Further, the Davis brothers’ testimony that they knew
nothing about the murder of Corporal Williams was not prejudicial to Ventura.”). Since “Ventura cannot
satisfy all three prongs in the Larrison case he cited,” id., “this Court should deny Defendant’s Motion for
a New Trial because this is not a case where there is a serious danger that an innocent person was
convicted.” Jd. at 6.

416 Although the People give short shrift to the testimonies of the Davis Brothers, their testimony does
give the Court reason to pause. Jimmy Davis (“Jimmy”) was arrested during the trial and charged “with
corruptly influencing a juror.” Davis v. People, 8. Ct. Crim. No. 2014-0036, 

, *1 (V.I. Aug. 14, 2014) (per curiam). Despite the charge, the People still called Jimmy to testify.
People v. Ventura 2020 V1 Super 63
5X-2012-CR-076

MEMORANDUM OPINION

Page 14 of 29

When he took the stand, Jimmy immediately asked to speak with a lawyer, but outside the jury’s hearing.
The Court recessed, reached out to the attorney appointed to represent him in the related case, Mark
Milligan, Esq. (“Attorney Milligan”), and asked if he could come to the courthouse. The People had
offered Jimmy transactional immunity and he would have to be advised of his rights first.

{17 In the interim, the People called Hector Davis (“Hector”). Hector had been flown in the night
before from Texas, where he was serving time on a felony conviction. Shortly after taking the stand,
Hector too asked to speak to an attorney, but within the jury’s hearing. The Court immediately recessed
and conterenced with Hector and trial counsel! in chambers. Hector expressed concerns that he had not
been fed until a few hours before coming to court and, more importantly, about his testimony. He asked
to speak with the attorney who had been appointed to represent him years earlier in another case. Court
records showed that his prior attorney was Thomas Alkon, Esq. (“Attorney Aikon”). Hector implied, but
did not state directly, that his prior case was connected with this case against Ventura. The Court reached
out to Attorney Alkon and also asked him to come to the courthouse to speak with his former client.

"18 By then, Attorney Milligan had arrived and met with Jimmy. Outside the jury’s presence, the
People petitioned the Court for transactional immunity pursuant to Title 14, Section 20 of the Virgin

Islands Code, which the Court granted. Jimmy testified, identified Rivera, and placed himself on St. Croix
in June 2001. Beyond that, he denied all knowledge about the death of Corporal Williams and claimed
that law enforcement officers “wanted [him] to lie on Mr. Rivera.” (Trial Tr. 91:14-15 Jan. 31, 2014).)
Jimmy did admit to speaking with law enforcement officers about Williams’s disappearance. But Jimmy
testified that he told them did not know anything. Again, he said it was law enforcement officers who tried
to get him to say that he had knowledge about the homicide. During direct examination, perhaps in an
altempt to demonstrate his truthfulness, Jimmy told the jury that he “got arrested Wednesday for a juror,

where somebody claimed, say I tampered with a juror. I never did tamper with a juror.” /d. at 92:23-25.
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 15 of 29

The Court immediately ordered the jury taken out of the courtroom and instructed Jimmy to only answer
the questions asked and not volunteer any other information. After the jury returned, the People asked
Jimmy if he recalled telling an FBI agent that his brother Hector might have information about Williams’s
homicide, which Jimmy denied. The People then yielded the witness. On cross-examination, counsel for
Rivera confirmed that Jimmy never signed any statements prepared by law enforcement officers.

{19  Inrebuttal, the People did call two FBI agents, Supervisory Special Agents Clifford Goodman and
Kimberly Quesinberry. Special Agent Goodman testified that he spoke with Jimmy in Puerto Rico, where
Jimmy had been taken for his own safety, and that Jimmy had told him that Rivera said that he (Rivera)
and unnamed others took Corporal Williams’s car because they wanted to use it to commit a crime. Jimmy
also told Special Agent Goodman that Rivera had told him that he (Rivera) did not know that Williams
was a police officer when they took his car. Goodman acknowledged on cross-examination that Jimmy
never signed a document adopting those statements. When asked whether it was important to take accurate
notes when interviewing people, Special Agent Goodman admitted that there can be “disputes about what
was said .. . [by] the person interviewed.” (Trial Tr. 104:22-23 (Jan. 31, 2014).) Goodman explained that
“{ijt happens frequently for a variety of reasons.” Jd. at 104:24. Special Agent Quesinberry’s testimony
was largely the same, except that she contradicted Jimmy’s testimony, telling the jury that Jimmy did tell
her to speak with Hector. She also admitted on cross-examination—before Hector testified—that she had
advised law enforcement officers that Hector “may not be viable as a government witness.” Jd. at 136:8-9.
The reason: because Hector was a liar. See 

 (“Q. Okay. And as I understand it, your opinion
was that Hector Davis basically is a liar, correct? A. Yes, he did lie on a particular — on —on some particular
things, that is correct.” (line breaks omitted)).

{20 Hector’s testimony proceeded along similar lines. He also lacked any knowledge about the

homicide. However, after meeting with Attorney Alkon, Hector insisted during a sidebar conference that
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 16 of 29

he had entered into a cooperation agreement with the People of the Virgin tslands in 2003. The Court
pulled a copy of a 2002 criminal case, Government of the Virgin Islands v. Hector Davis, Criminal No.
180/2002 (STX), from storage, which did have a cooperation agreement on file, under seal. But the
agreement was not signed by Hector, the prosecutor, or Attorney Alkon. But Hector insisted that a signed
copy did exist and stressed his desire to adhere to the agreement because he did not “want that agreement
hunt me down now, or in the future it haunt me back down.” (Trial Tr. 17:10-12 (Feb. 3, 2014).) The
People then petitioned for transactional immunity for Hector, which the Court granted. But Hector simply
told the jury that he could not recall anything. Cf Ventura I, 

 at *7-8 (“Jimmy Davis’s
brother, Hector, testified that he could not remember any discussions with law enforcement because of
medication he was taking for mental illness and depression that affected his memory.”).

{21 Again, in rebuttal, the People called Special Agents Goodman and Quesinberry. Special Agent
Goodman told the jury that during an interview on St. Croix in August of 2003, Hector told him that he
(Hector) was at his house (a date and time was not given) when Rivera drove up and asked Hector to
accompany him because he needed Hector to drive his truck back home. Hector jumped in the truck, riding
in the truck bed until they reached a four-door sedan. Williams was restrained inside the trunk with flex
cuffs. Sometime later, Rivera found out that Williams was a cop. Goodman then told the jury that Hector
told him (Goodman) that he (Hector) told Rivera that it “was fucked up to kill a cop.” (Trial Tr. 37:21
(Feb. 4, 2014).) Rivera remarked “[t]hat it was no big deal, just a part of life.” Jd. at 37:24. Hector told a
slightly different version during an interview approximately two years later. In the more-recent version,
Rivera told Hector he knew Williams was a cop and admitted that “he had killed him and dumped him at
sea.” Id. at 38:19-20. On cross-examination, Special Agent Goodman concurred with Special Agent
Quesinberry’s assessment that Hector was not a viable government witness. See id. at 45:11-22. Special

Agent Quesinberry’s testimony again largely corroborated Special Agent Goodman’s testimony, except
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 17 of 29

that she told the jury that Hector told her that Rivera told him, when he asked why he killed Williams, that
“they had to kill the policeman because he had a transaction with a Arab from the Jiffy Mart and Jose.”
id. at 59:11-12. What the transaction involved or who Jose was were not explained. Hector also told
Special Agent Quesinberry that Rivera and another person, Eurie Joseph, had offered to sell Williams’s
firearm to him (Hector). On cross-examination, Quesinberry acknowledged that Hector had signed a
cooperation agreement with the federal government or the Virgin Islands government for a possible
reduction in sentence if he provided useful information.

*
{22 Several aspects of the Davis Brothers’ testimony are troubling. Ventura is not wrong in suggesting
that “[t]he People were so expectant of their false testimony, that FBI impeachment witnesses were lined
up and waiting to testify after the expected false testimony.” (Reply 11.) But the Court cannot go so far as
to find that the People knew that the Davis Brothers would give unfavorable testimony. Outside the jury’s
hearing, Hector had insisted on honoring his past agreement with law enforcement, which tends to show
that he would testify truthfully. Moreover, both he and Jimmy were given transactional immunity. But

once they testified, the People should have left well-enough alone. Instead, the People called the FBI

agents after each Brother testified to impeach them. The problem is that the agents’ testimonies exceeded
the Davis Brothers’ testimonies, essentially becoming “a mere subterfuge to get before the jury evidence
not otherwise admissible.” United States v. Morlang, 

 (4th Cir. 1975).

23 +‘ Federal Rule of Evidence 607, which governed when this case was tried, see Ventura, 

 at *22 n.4, provides that “{a]ny party, including the party that called the witness, may attack
the witness’s credibility.” Clearly, the prosecution can impeach its own witnesses, particularly if the
witnesses do not testify as anticipated. But “the doctrine permitting impeachment of one’s own witness

under circumstances of actual surprise cannot be used as a ruse or a device with which to put into the
People v, Ventura 

§X-2012-CR-076

MEMORANDUM OPINION

Page 18 of 29

evidence what would otherwise be clearly inadmissible hearsay statements.” United States v. Michener,

, 883 n.3. 3d Cir. 1945) (citations omitted); accord Griffith v. State, 

, 968 n.4
(Ind. 2015) (“[A] party is forbidden from placing a witness on the stand when the party’s sole purpose in
doing so is to present otherwise inadmissible evidence cloaked as impeachment.’” (quoting Appleton v.
State, 

 (ind. 2001)); State v. Turecek, 

 (Iowa 1990) (“The State
is not entitled under rule 607 to place a witness on the stand who is expected to give unfavorable testimony
and then, in the guise of impeachment, offer evidence which is otherwise inadmissible. To permit such
bootstrapping frustrates the intended application of the exclusionary rules which rendered such evidence
inadmissible on the State’s case in chief.”).

“24 Hector had testified that he did not recall talking with Special Agent Goodman. (See Feb. 3, 2014
Trial Tr. 28:21-24 (“Q. Okay. Do you remember having a conversation on August 22nd of 2003 at Golden
Rock with FBI Agent Clifford Goodman? A. I can’t remember that.” (line breaks omitted)).) When the
prosecutor pressed him further, Hector said “[t]hat’s twelve years ago, man. I do things, J been living all
my life, I been doing all kind of thing twelve years ago. I forgot everything, you understand?” Jd. at 29:8-

10, The prosecutor pressed further, questioning whether Hector recalled telling the FBI about seeing

Rivera with Williams before the murder or seeing William’s firearm after. Hector finally said:
I can’t remember that. Prosecutor, I take sight medication now, I take depression, I take
hearing voices, I take — with side effects, At the end of the day I can’t remember all of that.
All my life I’m taking medication — not all my life, but from since I went Texas I taking,
you understand?
id. at 31:7-12. Technically, Hector’s testimony was unimpeachable — not because it was truthful or
untruthful, but because he said he could not remember. Rather than try to refresh Hector’s recollection
with the statements the FBI agents took after they met with him or by questioning him about the

cooperation agreement with law enforcement, the People ended Hector’s testimony and solicited the
People v. Ventura 

§X-2012-CR-076

MEMORANDUM OPINION

Page 19 of 29

information they wanted from Special Agents Goodman and Quesinberry. That was improper because
Hector’s testimony was effectively unimpeachable. Special Agents Goodman and Quesinberry did not
testify that Hector really could remember. Cf State v. Russell, 

 (lowa 2017) (“When
a witness testifies that he or she does not remember the underlying facts, the only subject to be impeached
is the witness’s memory or ability to recollect.” (citing State v. Gilmore, 

 (lowa
1977)). To be sure, courts recognize that “where a witness makes a testimonial statement and then does
not remember a prior inconsistent statement he made dealing with the same facts or is evasive as to that
statement either party may introduce the prior inconsistent statement into evidence if certain foundation
prerequisites are met.” /d. (ellipsis, brackets, and citation omitted); accord Hutson v. State, 

 (Tex. Crim. App. 1956) (“Where the witness denies or testifies that he does not remember making
a prior inconsistent statement, the adverse party may prove that he did make such statement.” (citation
omitted)). But here the prosecution called the agents to get into evidence the testimony that Hector would
or could not give. That was improper.
425  Jimmy’s testimony is similarly troubling because he did not deny speaking to the FBI. Instead, he
claimed the FBI tried to get him to lie. When Special Agents Goodman and Quesinberry testified, the
People did not ask them if they tried to get Jimmy to lie. Instead, they gave detail upon detail, testifying
to out of court statements Jimmy made to them. In other words, the People elicited specifics from the
agents that they could not gct from Jimmy. This too was improper.

Witnesses may, of course, sometimes fail to come up to the expectations of counsel and in

such situations there is an understandable temptation to get before the jury any prior

statement made by the witness. And it may be that in certain instances impeachment might

somehow enhance the truth-finding process. Yet, whatever validity this latter assertion may

have, it must be balanced against the notions of fairness upon which our system is based.

Foremost among these concepts is the principle that men should not be allowed to be

convicted on the basis of unsworn testimony.

Morlang, 

 (citing Bridges v. Wixon, 

 (1945)).
People v. Ventura 2026 V1 Super 63
SX-2012-CR-076

MEMORANDUM OPINION
Page 20 of 29

26 Most troubling here is that neither Davis Brother’s prior statements to the FBI constituted prior
inconsistent statements. “{P]rior inconsistent statements are admissible as non-hearsay when the declarant
testifies and is subject to cross-examination about a prior statement, and the statement is inconsistent with
the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding
or in a deposition.” Canton v. People, 

 (2014) (quotation marks, citation, and brackets
omitted). The FBI agents were called for impeachment purposes to attack the credibility of the Davis
Brothers. They were not supposed to give substantive testimony that Ventura and Rivera were guilty, i.e.,
that what Jimmy and Hector told them is what really happened. This is the concern here: “it is an abuse
of the rule, in a criminal case, for the prosecution to call a witness that it knows will not give it useful
evidence, just so it can introduce hearsay evidence against the defendant.” United States v. Johnson, 

 (D.C. Cir. 1986) (quotation marks, brackets, and citation omitted).

{27 But the Court cannot find that the People knew that Jimmy and Hector would not give uscful
evidence. Cf United States v. Buffalo, 

 (8th Cir. 2004) (“[T]he proper inquiry is whether,
as an objective matter and irrespective of the calling party’s motive, the probative value of a statement for
impeaching the credibility of a witness is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” (quotation marks, brackets, and citations omitted)). Once
the Davis Brothers failed to give useful evidence, the People should have known that calling Special
Agents Goodman and Quesinberry to impeach them might lead to the admission of inadmissible hearsay
evidence. Cf Morlang, 

 (“{P]rior unsworn statements of a witness are mere hearsay and
are, as such, generally inadmissible as affirmative proof. The introduction of such testimony, even where

limited to impeachment, necessarily increases the possibility that a defendant may be convicted on the

basis of unsworn evidence, for despite proper instructions to the jury, it is often difficult for them to
People v. Ventura 2020 V1 Super 63
§X-2012-CR-076

MEMORANDUM OPINION

Page 21 of 29

distinguish between impeachment and substantive evidence.”). The problem is that none of the Defendants
objected,’ and the Court did not, on its own, given a limiting instruction, which some courts have held
constitutes plain error “if the jury could give substantive effect to the impeachment evidence.” United
States v, Lewis, 

, 197 n.34 (D.C. Cir. 1982) (“{W]hen a party seeks to impeach a witness by
prior inconsistent statements, it is plain error not to give an immediate limiting instruction if the jury could
give substantive effect to the impeachment evidence.” (citations omitted)); accord United States y. Ince,

 (4th Cir. 1994) (“When the prosecution atlempts to introduce a prior inconsistent
statement to impeach its own witness, the statement’s likely prejudicial impact often substantially
outweighs its probative value for impeachment purposes because the jury may ignore the judge’s limiting
instructions and consider the ‘impeachment’ testimony for substantive purposes. That risk is multiplied
when the statement offered as impeachment testimony contains the defendant’s alleged admission of guilt.
Thus, a trial judge should rarely, if ever, permit the Government to ‘impeach’ its own witness by
presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession
to the crime for which the defendant is being tried.” (citations omitted)).

428 Anew trial is only warranted if the error was prejudicial, however. Cf Williams v. People, 59 V1.
1043, 1049 (2013). Here, the Court cannot find any of these errors to be prejudicial because, even when
the Davis Brothers’ testimony is excluded, as well as the testimony of the FBI agents, the jury still heard

from Coogle that “the person that shot [Williams] in his hand . . . was Jose Rivera, the person that shot

7 In fact, after the People rested their case in chief and Rivera moved for judgment of acquittal, Rivera urged the Court to
disregard the Davis Brothers’ testimony entirely. (See Feb. 3, 2014 Trial Tr. 82:6-18 (“If I could start at the tail end of it, I
would suggest that the testimony of both of the Davis brothers did not — there was substantive testimony that did not accuse
my client of doing anything. The statements that were introduced to impeach those parties are not relevant as far as substantive
evidence is concemed. And the only statement that my client had anything to do with any kidnapping of Officer Williams
would be the statement of Hector Davis; and again, not his direct testimony, but only his impeachment statements. So there is
no evidence of any participation in a kidnapping by Jose Rivera.” (paragraph break omitted)).)
People v. Ventura 2020 Vi Super 63
SX-2012-CR-076

MEMORANDUM OPINION
Page 22 of 29

him in his mouth was Jose Ventura.” Rivera II, 64 V.1. at 557 n.8 (quotation marks and citation omitted).
Her testimony was sufficient for the jury to find Ventura and Rivera guilty. See Ventura II, 

(“[T]he testimony of a single witness is sufficient to support a conviction, even if uncorroborated and
contradicted by other testimony.” (quotation marks and citations omitted)).
(2) Theresa Coogle

{29 Ventura also attacks Coogle’s testimony, however, claiming the People engaged in prosecutorial
misconduct when they “learned for the first time at trial that at the time of the incident Coogle was 1)
pregnant; and 2) “back and forth” between Miami and St. Croix, and more likely simply in Miami, which
means they learned that their primary witness had deceived them for over a decade.” (Reply 11.) This “is
enough evidence,” Ventura contends, “to establish that Theresa Coogle gave false testimony at trial, that
[her] testimony surprised the Defendants because it was different even from her multiple inconsistent
statements, and this false testimony warrants a new trial.” Jd. In response, the People reject Ventura’s
claim of surprise, noting that his attorney had “all of Ms. Coogle’s prior statements before Ms. Coogle
testified.” (Surresponse 4.) And “even if defense counsel was surprised, Ventura was still able to counter
Ms. Coogle’s testimony that she was on St. Croix at the time of the murder.” Jd What’s more,
“[i]nconsistent statements by a witness do not render the witness’ testimony false,” the People counter,
“especially when those statements are acknowledged and explained by the witness.” Jd.

{30 Asathreshold matter, courts do not assume witnesses lie under oath at trial. See United States v.
Johnson, 

 (10th Cir. 1980) (“Appellants’ claim of prejudice rests on the assumption
that the testimony given by Fowler was perjured. However, we cannot assume, on the basis of Miller’s
testimony alone, that Fowler’s testimony was knowingly false. . .. Furthermore, even if we were to accept
the proposition that Fowler committed perjury in some portions of her testimony, a new trial is not

mandated.”); Meece v. Commonwealth, 529 $.W.3d 281, 294 (Ky. 2017) (“This trial occurred thirteen
People v. Ventura 

$X-2012-CR-076

MEMORANDUM OPINION

Page 23 of 29

years after the murders, and we cannot assume that every single discrepancy is an intentional lie or perjury.
Memories alter and that is why we place value in a jury’s truth-finding ability. The jury heard all the
evidence, even the inconsistent evidence.”); Commonwealth v. Foerst, 

 (Pa. Super. Ct.
1947) (“We cannot assume that Rosemiller perjured himself and the jury having apparently believed his
testimony, there is ample evidence to sustain its verdict of guilty.”); accord Croghan v. Umplebaugh, 162
N.W, 596, 597 (lowa 1917) (“It would seem that one ought not to profit by his own wrong; that one ought
not to retain the fruits of victory obtained through means of perjured testimony. But we cannot assume
that the verdict of the jury is founded on false testimony.”). The Court does acknowledge, however, that
Coogle’s testimony was less than ideal.

{31 At the time of the homicide of Corporal Williams, Coogle was 17 years old and near or in her third
trimester. Coogle admitted that she gave birth in Miami, Florida on July 29, 2001, approximately a month
after Corporal Williams’s death in June 2001. (See Trial Tr. 88:25-89:4 (Jan. 28, 2014).) Coogle also
admitted that she had been living in Miami for some time before the homicide. Since she gave birth in
Miami, she had to have flown to St. Croix before the homicide and returned to Florida after the homicide
while approximately seven months pregnant. That was her testimony: that she “was back and forth from
Florida and St. Croix” during the relevant time period (Trial Tr. 75:18 (Jan. 29, 2014).)

{32 Coogle’s testimony is at the heart of Ventura’s argument. For this reason, the Court will excerpt a
large portion of Rivera’s cross-examination of Coogle for context:

Q. Okay. Very good. Now, as I understand it, you had a child in July of 2000; is that
correct?

A. That is correct.

Q. And you had another child on July [of] 2001.

A. That is correct.

Q. So it would be fair to say that at the time that you claim to have been seeing these events,
you would have been eight months pregnant?
A. Seven or eight. I had my son early.
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 24 of 29

Q. Okay. Seven or eight months pregnant, okay. Now, [redacted] was not born in St. Croix,
was he?

A. No, he was not.

Q. He was born in Florida; is that correct?

A. That is correct.

Q. As a matter of fact, he was born in Miami, if I’m correct.

A. That’s correct.

Q. Okay. And at the time he was bom, you were living in North Miami, wouldn’t you agree
with that?

A. I was staying in North Miami.

Q. And you were staying with Mariela Velasquez?

A. That’s correct.

Q. And with her brother Francisco Velasquez?

A. That’s correct.

Q. And that’s where you were living when your son was born in July of 2001?

A. I was staying there, correct.

Q. Okay. Now, isn’t it a fact, Ms. Coogle, that you had been living at that address with
Mariela Velasquez, Francisco Velasquez for several months there in Florida?

A. [ was back and forth from Fiorida and St. Croix.

Q. Well, let’s talk about that. You went to Miami to live with Mariela Velasquez in March
of 2001, didn’t you?

A. I wouldn’t say I went to go live; I would say I went to go stay. And I don’t remember
exactly the month. J] went back and forth several times.

Q. Well, if | were to tell you it was March of 2001 that you moved there, would you quibble
with me?

A. | do not remember the date and time.

Q. And you went there because your young daughter was having some kind of an ear
problem; correct?

A. That’s incorrect. I moved -- I went there to escape out of a abusive relationship that |
had with Max Velasquez.

Q. Okay. And that was many months before the birth of your son... isn’t that right?

A. I traveled back and forth throughout that time, yes.

Q. Isn’t it a fact that when you were in Miami before your son was born that you worked
at a Wendy’s?

A. When I was in Miami, I did work at a Wendy’s, yes.

Q. And Wendy’s is a -- a fast food restaurant; correct?

A. That is correct.

Q. And what was your Job at the Wendy’s?

A. I did numerous amount of things.

Q. Such as?

A. I was a cashier, I did the grill. I did a lot of things.

Q. Okay. And you were doing this while you were pregnant with your son; correct?

A. Yes.

Q. All right. Isn’t it a fact that -- well, do you -- while you were there in Miami, you also
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 25 of 29

had a boyfriend named Kenny, a guy with a red truck, do you recall that?

A. He wasn’t a boyfriend; he was a friend.

Q. Okay. But he would come by and pick you up frequently; correct?

A. We went out on dinners, yes.

Q. Okay. Do you remember when you got the burn on your hand, the top of your hand,
when you were living there in Miami with Mariela Velasquez and Francisco Velasquez?
A. I wasn’t living there; I was staying there. And yes, I do.

Q. And as a matter of fact, Mariela had to call the Dade County Rescue, didn’t she?

A. I don’t think she was there. Nobody was there. I called 911 myself.

Q. And do you remember when the Dade County Rescue came and treated you there at
Mariela and Francisco’s place?

A. I do not know the date, no.

Q. But that was all taking place in Miami, and that event took place; correct?

A. That is correct.

Q. Okay. And you had some other jobs in Miami as well, didn’t you?

A. Oh, yes.

Q. What else did you do in Miami?

A. To support myself, 1 stripped.

Q. Okay. Where -- where did you strip?

A. Well, when I was kicked out of the house that I was staying at with Mariela, I went and
worked with a couple of the girls that worked at -- oh, I couldn’t even remember the name
of the club to tell you.

Q. Okay. So while you were in Miami, you were working at Wendy’s for a period of time
and stripping for a period -- period of time; correct?

A. That’s correct.

Q. And isn’t it a fact that in June of 2001, when you claimed to have seen these events, you
were living in Miami with Mariela Velasquez and her brother?

A. That’s incorrect. I was back and forth, and I was on St. Croix at the time of this homicide.
Q. And who were you staying with when you were back on St. Croix during the time of
this homicide? Where were you living?

A. I was in between my mother’s house and I also stayed in St. Thomas.

Q. Okay, Where did you stay in your mother’s house. What’s the address?

A, [redacted].

Q. And who else was there?

A, My two sisters, my stepfather and my mother.

Q. And where were you staying in St. Thomas?
A. I was staying in a lot of hotels.

Q. In a lot of hotels?

A. Yes.

Q. And were you working in St. Thomas?

A. Yes.

Q. Where were you working?

A. I was also a stripper there.

Q. And at what place?
People v. Ventura 

S$X-2012-CR-076

MEMORANDUM OPINION

Page 26 of 29

A. Club 75.

Q. Club 75?

A. Yes.

Q. And you’re telling us that this was taking place in 2001?

A. I started dancing later on, at the end of the year 2001, on St. Thomas.
Q. I’m interested in where you were in June of 2001, not later in the year?
A. I was at my mother’s.

Q. You were not in St. Thomas then; correct?
A. No.

Q. And you deny under oath that you were in Florida in June of 2001, is that what you’re
telling the ladies and gentlemen of the jury?

A. What I’m telling you is that the date of that murder, I was on St. Croix. Again I was
back and forth, through Miami and St. Croix.

Q. Okay. Aside from the people that you have mentioned that were there -- that you say

were there at the address, is there anyone else who can establish your presence here on St.

Croix on June 14, 2001?

A. Not that I could think of at this present time.

. From this testimony—and the fact that Coogle signed several statements law enforcement
officers prepared from their interviews of her but without reading them first, (see, e.g., Hr’g Tr. 122:13-
17 (Jan. 27, 2014})—Ventura claims the People engaged in misconduct because they learned first time at
trial that Coogle was pregnant and “back and forth” between Miami and St. Croix, “which means they
learned that their primary witness had deceived them for over a decade.” (Reply 11.) However, Ventura
is simply mistaken.
433 First, technically, the People did not learn af trial that Coogle was pregnant at the time of Corporal
Williams murder. Coogle had testified extensively at a suppression hearing held the day before trial.® It
was then that she testified that she was pregnant in June 2001. (See Jan. 27, 2014 Hr’g Tr. 126:25-127:3
(“Q. Ms. Coogle, were you pregnant in June, 2001? A. Yes, I was. Q. How many months pregnant were

you? A. I was approximately, about six, maybe seven.” (line breaks omitted)).) That was also when Coogle

testified to having flown “back and forth” between St. Croix and Miami while pregnant. /d. at 149:8. This

® During trial, the case agent for the Virgin Islands Police Department, Detective Frankie Ortiz, did admit that he first learned
that Coogle was pregnant during trial. (See Trial Tr. 141:22-25 (Jan. 30, 2014).)
People v. Ventura 

8X-2012-CR-076

MEMORANDUM OPINION

Page 27 of 29

information was elicited by the defense, specifically by Ventura’s co-defendant Sharima Clercent.?
Admittedly, the Court is “splitting hairs.” But issues Ventura is raising requires such precision because
Coogle’s pregnancy and her travels during her pregnancy were not revealed for the first time at trial.
Larrison, which Ventura relies on, requires that the defendant, not the prosecution, be surprised by
testimony and not learn of its supposed falseness until after trial. See Larrison, 

 (“That the
party seeking the new trial was taken by surprise when the false testimony was given and was unable to
meet it or did not know of its falsity until after the trial.”).

734 Second, none of the defendants—five at the time of trial—claimed surprise by Coogle’s testimony.
In fact, it was the prosecution who repeatedly objected during the suppression hearing, arguing that
defense counsel were using the suppression hearing as a quasi-deposition. (See, e.g., Hr’g Tr. 86:14-17
(“I’m going to be objecting to them using this as a fishing expedition, to try and get into facts of the case,
and proof of facts and trying to use this as a deposition of the witness.”).) Counsel for Ventura disagreed,
countering that it was not a deposition, just “a very wide inquiry.” Jd. at 89:15-16. The result of this
wide inquiry” is that everything Coogle testified to at trial was elicited the day before trial. Yet, no one
asked for a continuance. Thus, the Court rejects Ventura’s claim that Coogle’s inconsistences amount to
perjury.

435 Ventura also takes issue with the plausibility of Coogle’s testimony, that a 17 year-old girl
regularly flew back and forth between St. Croix, St. Thomas, and Miami while pregnant, and happened to
be on St. Croix where she witnessed a murder and helped clean up afterward. But Ventura did not follow
up on any of those issues at trial. None of the defendants called any witness to rebut the plausibility of

pregnant teenagers flying over international waters during their third trimester. No one asked Coogle

° Clercent was eventually acquitted by the Court after the People rested their case in chief.
People v, Ventura 

S$X-2012-CR-076

MEMORANDUM OPINION
Page 28 of 29

whether a parent or guardian accompanied her. No one asked what airlines she flew on. In fact, no one
asked what airport she flew out of. No one questioned Coogle about her physical appearance in 2001,
whether, as a pregnant seventeen-year old, her pregnancy was visibly apparent or could have been hidden
by baggy clothing, for example. What’s more, the Court takes juridical notice the events at issue here
occurred before the terrorist attacks of September 11th and the numerous changes to airline security that
followed. The Court cannot just assume that Coogle lied when she testified under oath that she traveled
back and forth between St. Croix and Miami.

{36 To bolster his claim, Ventura points to several statements law enforcement officers took in the
years after Williams’s homicide. Ventura concludes that Coogle was lying in court because she signed off
on several (if not all) statements law enforcement officers prepared from their interviews. Yet at trial,
Coogle supposedly gave a different version of the events, Ventura claims. As one example, Coogle
supposedly told law enforcement officers that she rode with Maximiliano Velasquez II1]—Coogle’s
boyfriend at the time and a co-defendant of Ventura who the jury acquitted— in a black pick-up truck to
the location where Corporal Williams was murdered. At trial Coogle testified that she drove herself there
in a maroon CRX after Velasquez called her. Another example: Coogle supposedly told law enforcement
officers that crack cocaine was being cooked at the location of the homicide whereas at trial, she said she
told the officers that she smelled an odor of crack cocaine. One final example: Coogle supposedly told
law enforcement officers that her sister was also at the site of the homicide, yet during trial, said denied
that her sister was there.

{37 Ventura overlooks three things. First, Coogle acknowledged that the statements said what they
said. She did not take issue with them. She simply disagreed with the memorialization of the law
enforcement officers. Second, and more importantly, the core of Coogle’s testimony did not change: Jose

Ventura shot Williams in the hand and Jose Rivera shot him in the head. Finally, Coogle testified that she
People v. Ventura 

SX-2012-CR-076

MEMORANDUM OPINION

Page 29 of 29

had witnessed other crimes and the statements law enforcement took may not have been correct. (See Trial
Tr. 61:14-16 (Jan. 29, 2014) (“I remember telling them that, but I think they were confusing the fact that
it was due to another homicide that I witnessed.”).}

{38 This Court presided over the trial and was “uniquely situated to weigh the credibility of witnesses.”
Ventura I, 64 V.1. at 617 (citations omitted). The Court finds Coogle to be credible. She never lost her
composure, raised her voice, or got combative while six attorneys, including the prosecutor, questioned
her for three days straight, four including the suppression hearing. Her testimony did not faulter. Her story
did not change. There were discrepancies between what she said at trial and what law enforcement officers
wrote down, which Coogle addressed. She also admitted that she was traumatized by what she saw and
took drugs and sought therapy to cope. The jury heard all this testimony—as well as claims that Coogle
was “pursuing this fantastical story against Max Velasquez and his friends, and people that he knows, to
get revenge for losing [her] daughter[,]” (Trial Tr. 53:10-13 (Jan. 30, 2014)—and still acquitted
Maximiliano because Coogle testified that Ventura shot Williams in the mouth and Rivera shot him in the
hand. No serious danger that innocent persons were convicted is present here. See Percival, 62 V.1. at 491

CONCLUSION
739 Accordingly, for the reasons stated above, the People’s surresponse will be reinstated and

Ventura’s motion for a new trial denied. An appropriate order follows.

of
ATTEST: D

ARRYL DEAN DONOHUE, SR.
Senior Sitting Judge