IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
                                    DIVISION OF ST. CROIX


  ANGEL L. PARRILLA JR

                                             Petitioner,           CASE NO. SX-2023-MC-00063

                             Vv.
                                                                     PETITION FOR WRIT OF
 THE PEOPLE OF THE VIRGIN                                               HABEAS CORPUS
 ISLANDS; ALBERT BRYAN, JR
 GOVERNOR; OFFICE OF THE
 ATTORNEY GENERAL; WYNNIE                                                 2024 VI SUPER 53U
 TESTAMARK, DIRECTOR, VIRGIN
 ISLANDS BUREAU OF CORRECTIONS
 DANA GRANT, ACTING WARDEN,
 JOHN A. BELL CORRECTIONAL
 FACILITY.

                                   ____Respondents

    MEMORANDUM              OPINION AND ORDER DENYING PETITION FOR WRIT OF
                                      HABEAS CORPUS

qi      THIS MATTER is before the Court on Petitioner Angel L. Parrilla Jr.’s (“Parrilla”) Petition
for Writ of Habeas Corpus (“Petition”), filed December 12, 2023.' Because the Court finds that
Petitioner does not state a prima facie case for relief, his Petition will be denied
                                               BACKGROUND

72     Petitioner was convicted, following a jury trial conducted July 22-25, 2019 (SX-2018-CR
00003) of Murder in the Second Degree, Unauthorized Possession of a Firearm During the
Commission of a Crime of Violence, Assault in the First Degree, Possession of Ammunition,
Reckless Endangerment, Discharging or Aiming a Firearm, with regard to an incident that occurred
on or about January 6, 2018 in which Curtis Phipps was killed. Parrilla was sentenced to a term of
twenty-eight (28) years incarceration on the murder count, and lesser terms to be served
concurrently on the other counts, by Order of Judgment and Commitment entered March 17, 2020
Parrilla did not file a direct appeal of his conviction to the Supreme Court of the Virgin Islands



' Petitioner filed his pro se Petition on a standardized “fill in the blanks”   Form VI-AO-241,     a form of the
District Court of the Virgin Islands citing 

 as the statutory basis for relief sought. Giving
broad latitude to the filings of pro se litigants, the Court accepts and considers the Petition as properly filed,
seeking relief pursuant to 5 VLC.      § 1301 et seq
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 73       ‘Petitioner seeks relief on three separate grounds: (1) Violation of 6" Amendment
 Constitutional right to effective assistance of counsel; (2) Violation of 14°* Amendment
 Constitutional due process right to proper jury instructions; and (3) newly discovered evidence
 Petitioner requests that the Court remand the case for a new trial or other relief. Petition, at 17

914      On Ground One, Parrilla alleges a violation of his 6 Amendment right to effective
 assistance of counsel, based upon appointed counsel’s inadequate pre-trial investigation, failure to
 establish possible defenses, lack of meaningful discussions or adequate contact with Petitioner,
 failure to     “subpoena Defendant’s witnesses, interview any of the listed witnesses, conduct an
independent search for witnesses or properly cross examine the government’s witness at trial,” as
well as counsel’s failure to “request that the court instruct the jury of the lesser offense of
manslaughter.” /d. at 7. Had the defense “been fully investigated and developed, the jury might
well have been convinced that the defendant acted ‘without malice aforethought.’” /d.
15       On Ground Two, Petitioner alleges that his 14" Amendment right to due process was
violated because the trial court failed to properly instruct the jury on Count II of the Information
That count charged Murder in the First Degree (felony murder in violation of 14 V.I.C. §
922(a)(2)). Although the trial court instructed the jury on the lesser included offense of Murder in
the Second Degree, on which Petitioner was convicted, no instruction was requested or given on
the lesser included offense of Voluntary Manslaughter (14 V.I.C. § 924(1)). Jd. at 9
16       Petitioner’s final Ground Three alleges that the Court should grant relief due to newly
discovered evidence, consisting of a swom affirmation from Kysian Nicholas (“Nicholas”), signed
and notarized September 11, 2023. By his affirmation, Nicholas claims that he was an eyewitness
to the incident involving Parrilla on or about January 6, 2018, that he “witnessed Angel Parrilla
walking away but was grabbed by the arm by the deceased and at that point a fight broke out. I
witnessed Angel Parrilla and the deceased struggling over a weapon and that’s when | removed
myself from the scene.” Petition, Addendum
                         JURISDICTION AND STANDARD OF REVIEW
(7       This Court has jurisdiction under 5 V.L.C. § 130% et seg. that permits persons unlawfully
imprisoned or restrained to prosecute a writ of habeas corpus. The pleadings of pro se litigants
“are interpreted ‘with considerable lenience because [they] lack formal legal training’ and that ‘it
is [our] policy to give pro se litigants greater leeway in dealing with matters of procedure and
pleading.’” Clarke v. Lopez, 73 V.1. 512, 516 (V.1. 2020) (quoting Marsh-Monsanto v. Clarenbach,

 (V.I. 2017)). it has been long recognized that “pro se litigants are to be accorded
substantial justice despite any defects in the pleadings.” Creque v. Roebuck, 16 V.1. 197, 208 (V.1
Terr. Ct. 1979) (citations omitted)
48     The Revised Organic Act provides that “{a]ll persons shall have the privilege of the writ of
habeas corpus and the same shall not be suspended except as herein expressly provided.” Revised
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Organic Act of 1954 § 3; 

. Title 5 V.LC. § 1303 and V.I. H.C.R.                1(c) grant the
Superior Court of the Virgin Islands authority to hear petitions for writ of habeas corpus. “Every
person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.” 5
V.LC. § 1301. “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)(1)
19      “The United States Supreme Court has repeatedly held that, at a minimum, the common
law writ of habeas corpus encompasses a right to remedy constitutional violations.” Rivera
Moreno v. Gov't of the V.1., 

 (V.1. 2014). Because the presumption of innocence
does not apply during habeas proceedings, “[w]hen a defendant seeks to challenge the
determination of guilt after he has been validly convicted and sentenced, it is fair to place on him
the burden of proving his innocence, not just raising doubt about his guilt.” Fahie v. Gov't of the
VL, 73 V.L 443, 452 (V.1. 2020) (quoting Herrera v. Collins, 

 (1993))
410    The Virgin Islands Habeas Corpus Rules provide
       When presented with a petition for a writ of habeas corpus, within the period(s)
       specified in this Rule the Superior Court must first determine whether the petition
       states a prima facie case for relief -- that is, whether it states facts that, if true, would
       entitle the petitioner to discharge or other relief -- and, in its discretion, may also
       determine, after providing the petitioner with reasonable notice and a right to be
       heard, whether the stated claims are for any reason procedurally or substantively
       barred as a matter of law
V.L HLC.R. 2¢b)(1)
       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
       In assessing whether the petitioner would be entitled to relief if the factual
       allegations were proved, the court must take petitioner’s factual allegations as true
       The court does not determine at this stage whether the petitioner is entitled to
       discharge or any other form of remedy if habeas corpus relief is ultimately granted
       The issuance of a writ of habeas corpus under this Rule is an intermediate step
       pursuant to 5 V.I.C. § 1304 which does not award any of the relief sought in the
       petition, but requires the respondent to file a return, responding to the petition
V.I. H.C.R. 2(d)(1)
Gil    A petition for writ of habeas corpus must satisfy the following requirements
       (1) It shall specify that the person in whose behalf the writ is applied for is
       imprisoned or restrained of his liberty and the officer or person by whom, and the
       place where, he is so confined or restrained, naming all the parties, if they are
       known, or describing them, if they are not known
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         (2) If the imprisonment is alleged to be illegal, the petition shall state in what the
         alleged illegality consists
         (3) The petition shall be verified by the oath of the party making the application
5 V.LC. § 1302
912     Applying these standards, the Court must analyze whether Parrilla’s Petition meets his
burden of stating a prima facie case, thereby requiring Respondents to file a return to support the
lawfulness of Parrilla’s incarceration
                                                  ANALYSIS
{13     The Petition must state where Petitioner is imprisoned and must be directed to the persons
having custody of Petitioner. See 5 V.LC. §§ 1305 and 1302(1). The Petition satisfies these
provisions by stating that Parrilla is imprisoned at Tallahatchie County Correctional Facility and
names as Respondents the People of the Virgin !slands, Governor Albert Bryan Jr., the Office of
the Attorney General, Virgin Islands Bureau of Corrections Director Wynnie Testamark, and
Acting Warden of John. A. Bell Correctional Facility Dana Grant.* Petitioner’s claim is not
procedurally barred and, presented under penalty of perjury, satisfies the requirement under 5
V.1.C. § 1302(3) that it be verified by oath
414    The Petition must state a prima facie case for relief regarding the alleged illegal
imprisonment. See 5 V.L.C. § 1302(2). The Court must determine whether the Petition “states facts
that, if true, entitle the petitioner to relief    . . ” Rivera-Moreno v. Gov't   of the V.L, 61 V.1. 279, 311
(V.E. 2014) (internal quotation marks omitted). Petitioner’s three grounds for relief are addressed
in the order presented




? A petition for writ of habeas corpus must specify, inter alia, “the officer or person by whom” the petitioner
is imprisoned or restrained. 5 V.I.C. § 1302(1). The People of the Virgin Islands and the Office of the
Attorney General may not be properly named as Respondents herein. The Attorney General is charged with
the duty “to prosecute in the name of the People of the Virgin Islands, offenses against the laws of the
Virgin Islands,” but has neither the power nor the duty to imprison or restrain persons convicted of criminal
offenses. 3 V.LC. § 114(a)(3). By the Judgment and Commitment herein, Petitioner was “remanded to the
care, custody and contro! of the Bureau of Corrections.” The Bureau of Corrections is “an independent
bureau within the Executive Branch of the Government” and “exercise(s] general control over persons
arrested, detained, or sentenced by a court of law.” 5 V.LC. § 4503(a); 3 V.LC. §§ 372, 375(a). The BOC
Director and Acting Warden are proper Respondents notwithstanding that Petitioner is housed at the
Tallahatchie County Correctional Facility. (“Commitment to institutions within the jurisdiction of the
Bureau shall be to the Bureau, not to a particular institution. The Director of Corrections shall assign a
newly committed inmate to an appropriate institution. He may transfer an inmate from one institution to
another, consistent with the commitment and in accordance with treatment, training and security needs.” 5
V.LC. § 4505.) The Governor, as chief executive officer of the Government is also a proper Respondent
The pro se Petition is addressed on its merits and the possible erroneous inclusion of the People of the
Virgin Islands and the Office of the Attorney General in the caption is of no effect
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415       GROUND ONE: Ineffective assistance of counsel - 6" Amendment violation. The Petition
alleges
          The appointed counsel failed to conduct an adequate pre-trial investigation into the
          defendant’s version of events regarding the crime and failed to establish possible
          defenses which resulted in the deprivation of the constitutionally guaranteed right
          to effective assistance of counsel. Furthermore, Defense counsel limited his pre
          trial investigation to discussions with the prosecuting attomey whilst having no
          meaningful discussions or adequate contact with defendant prior to trial. Counsel
          also failed to subpoena Defendant’s witnesses, interview any of the listed witnesses,
          conduct an independent search for witnesses or properly cross examine the
          government’s witness at trial. Had the situation been fully investigated and
          developed, the jury might well have been convinced that the defendant acted
          “without malice aforethought” and it was counsel’s further ineffectiveness in
          failing to request     that the court   instruct   the jury   of the lesser offense   of
          manslaughter.
Petition, at 7
416        Petitioner’s 6 Amendment right to effective assistance of counsel        “applies to the Virgin
Islands through Section 3 of the Revised Organic Act of 1954.” Maynard v. Gov't of the Virgin
Islands, 77 V.1. 369, 384 (V.L. Super. Ct. 2023) (citing Revised Organic Act of 1954, § 3; 48 U.S.C
§ 1561). To prevail on an ineffective assistance of counsel! claim, Petitioner must demonstrate that
(1) trial counsel’s “performance fell below an objective standard of reasonableness,” and that (2)
trial counsel’s “deficient performance prejudiced [the defendant], resulting in an unreliable or
fundamentally unfair outcome in the proceeding.” Burke v. Prosper, 70 V.1. 866, 874 (V.1. 2019)
(internal citations omitted)
417      Regarding the first prong, “the defendant has the burden of overcoming the presumption
that the allegedly defective performance was a part of sound trial strategy.” Francis v. People, 

 (V.I. 2012) (citing Strickland v. Washington, 

 (1984)). A habeas
petitioner “must identify the acts or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.” /brahim v. Gov't of the V.1., 2008 V.1.             Supreme
LEXIS 20, *5 (V.I. Jan. 18, 2008) (quoting Strickland, 

)
4]!8     Petitioner’s primary argument here is that his trial counsel failed to adequately investigate
his case. The Supreme Court of the Virgin Islands has explained
          An attorney’s performance is only defective for failure to investigate or call a
          witness where the witness’s testimony would have “provided a viable defense
          Carillo v. United States, 

, 

 (D.V.I. 1998). Indeed
          “a particular decision not to investigate must be directly assessed for reasonableness
          in all the circumstances, applying a heavy measure of deference to counsel’s
          judgments.” Strickland v. Washington, 

, 

, 80 L
          Ed.   2d 674 (1984).   Where trial counsel may have had “reason to believe that
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        pursuing investigations would be fruitless or even harmful,” the decision not to
        investigate cannot “later be challenged as unreasonable.” 

Suarez v. Gov't   of the Virgin Islands, 56 V.1. 754, 763-64 (V.I. 2012)
419     In reviewing whether the Petition makes a prima facie showing that trial counsel’s
performance was objectively unreasonable, Petitioner’s sworn allegations alone are before the
Court. Parrilla claims that counsel failed to investigate his claims, failed to interview or subpoena
witnesses, including eyewitness Nicholas, failed to have any meaningful contact or discussions
with Parrilla prior to trial, and failed to adequately cross-examine witnesses. The Petition does not
set forth specific facts to question the reasonableness of trial counsel’s judgment and trial strategy,
including how counsel should have investigated and who he should have interviewed or
subpoenaed.   Neither does the Petition explain which witnesses, and how, counsel should have
properly cross examined.    Rather, Petitioner presents conclusory statements without detail as to
through whom      and how the defense would have been able to present evidence of “a viable
defense.”
420      Yet, even recognizing the heavy measure of deference afforded counsel’s performance, at
this stage of the proceedings, the Court accepts the Petition as presenting facts that, arguably,
through Nicholas’s testimony may have provided a viable defense, at least as to the element of
malice aforethought on the felony murder count. As to the first prong of his ineffective assistance
claim, the Court accepts that Petitioner has made an adequate presentation that counsel’s
performance was deficient, falling below an objective standard of reasonableness
4/21    As to the second prong of presenting a prima facie claim of ineffective assistance of
counsel, Petitioner must 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.1. 470, 479-80 (V.f. 2010) (internal citation omitted).   “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 

‘When a defendant challenges a conviction, the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.” /d, at 695. “[A] court hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury.” /d
4/22    Petitioner’s allegations must be supported by specific facts to establish a prima facie case
       Therefore, we clarify that a petitioner must make allegations that, if later proven
       true, would entitle him to habeas relief, and these allegations must also have
       specific factual support to sufficiently state a prima facie case warranting granting
       of the writ of habeas corpus. Consequently, a factually unsupported allegation is
       insufficient to state a prima facie case and entitle a petitioner to habeas relief. See
       United States v. Fishel, 

 (Sth Cir. 1984) (“Allegations ... must be
       supported by substantial factual assertions capable of resolution by an evidentiary
       hearing.”)
Woodrup v. Gov't of the Virgin Islands, 75 V.1. 495, 502 (V.I. 2022)
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 423     The only specific facts that Petitioner presents are set out in the Nicholas affirmation
 wherein Nicholas states that he witnessed Parrilla and Curtis Phipps arguing, that Parrilla began to
 walk away but Phipps grabbed him by the arm, and a fight broke out as the two struggled over a
 weapon. Nicholas then left the scene and saw no more
924     The Nicholas affirmation states in full
        I Kysian Nicholas from St Croix who was born on December 3, 1994 swear and
        hereby affirm that I was an eyewitness to the incident involving Angel Parrilla on
        or about 1/6/18. On the night of the incident I witnessed the conflict between Angel
        Parrilla and the deceased. I didn’t know what was being said but by their actions I
        knew they were arguing. I witnessed Angel Parrilla walking away but was grabbed
        by the arm by the deceased and at that point a fight broke out. I witnessed Angel
        Parrilla and the deceased struggling over a weapon and thats [sic] when I removed
        myself from the scene. No one has coherent [sic] me to make this statement I am
        also willing to do so under oath in a court of law
Petition, Addendum
925     Todetermine whether the Petition demonstrates a reasonable probability that the trial result
would have been different but for counsel’s lack of effectiveness, including the failure to present
Nicholas as a trial witness, consideration of the totality of the evidence before the jury is necessary
See Strickland, 

. The trial court’s Memorandum Opinion on Parrilla’s post-trial
Rule 29 Motion for Judgment of Acquittal describes the evidence the jury considered in convicting
Petitioner on Count II of Murder in the Second Degree, including that of another eyewitness
        Juan Bautista (hereinafter “Bautista”) was working a gambling booth at Festival
        Village the night Curtis Phipps was shot. He testified that Phipps and Parrilla were
        both playing at the booth. After a round of play. Bautista heard a commotion and
        turned around to see that Parrilla had moved from where he had been playing and
        was grappling with Phipps. Bautista also saw Parrilla’s shirt lifted up and that there
        was a revolver in his waistband. Bautista testified that he saw Parrilla reach for the
        gun and Phipps try to stop him from pulling it out. Parrilla punched Phipps, who
        stumbled back. The gun fell to the ground and Parrilla picked it up and shot Phipps,
        who had his back to Parrilla. Bautista further testified that Parrilla approached
        Phipps while he was on the ground and fired twice more, for a total of three shots
        Parrilla then put the gun back in his waistband and ran away
People v. Parrilla, 2019 VI SUPER 173U, 7 9 (V.I. Super. Ct. 2019)
926    Bautista testified that Parrilla pulled up his shirt and showed Phipps that he had a gun and
Phipps lunged for it. The men began wrestling for the gun, it dropped to the ground, Parrilla picked
it up and Phipps again lunged for the gun. /d. at    10
427     The EMT dispatched to attend to Phipps after he was shot testified that Phipps had a
puncture wound to his back and that he required CPR all the way to the hospital. Other evidence
introduced indicates that Phipps died that night of his injuries. /d. at J 11
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428      Beyond Petitioner’s conclusory allegations, the only specific evidence he claims would
have been presented to the jury with adequate trial representation is the testimony of Nicholas. But
the proposed testimony of Nicholas compliments and does not in any substantive manner
contradict Bautista’s testimony and the evidence before the jury. Both Nicholas and Bautista
describe an argument leading to a physical struggle over a gun. Nicholas affirms, “I witnessed
Angel Parrilla and the deceased struggling over a weapon and thats [sic] when I removed myself
from the scene.’
729     In assessing Parrilla’s ineffectiveness claim, we “must consider the totality of the evidence
before the ... jury.” Strickland, 

. Considering the totality of that evidence, Phipps
and Parrilla fought, they wrestled for the gun before Parrilla shot Phipps in the back and twice
more while Phipps was on the ground. The testimony of Nicholas would have added nothing. Since
Nicholas removed himself from the scene before the shooting, Nicholas could not have testified
that the gun discharged as Parrilla and Phipps struggled over it, or otherwise that the killing
occurred upon a sudden quarrel or in the heat of passion. The jury had the opportunity to consider
all the evidence as to the manner and method of the killing that it would have heard even if Nicholas
had testified. The evidence, with or without Nicholas’s testimony, was that Parrilla shot Phipps in
the back and then a second and third time when Phipps was on the ground. Given the totality of
the evidence, had trial counsel! called Nicholas as a witness, there is not a reasonable probability
that the result of the case would have been different. See Corraspe, 53 V.I. at 479-80. Parrilla’s
claim fails because it cannot be said that there is ‘‘a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 

730      Petitioner further claims that, in addition to failing to investigate and identify Nicholas
prior to trial, his 6" Amendment right to competent representation was violated by counsel’s failure
to request that the jury be instructed on voluntary manslaughter as a lesser included offense of
Count II that charged Murder in the First Degree (14 V.I.C. § 922(a)(2) — felony murder). The
parties agreed that the court’s instructions to the jury on Count I (Murder in the First Degree
premeditated, 14 V.LC. § 922(a)(1)) include the lesser included offenses of Murder in the Second
Degree and Voluntary Manslaughter. People v. Parrilla, 2019 VI SUPER 173U, 4 3 (V.1. Super
Ct. 2019)
931     However, the jury instructions agreed by the parties for Count II included only the lesser
included offense of Murder in the Second Degree, but not Voluntary Manslaughter. The jury
acquitted Parrilla on Count I of the charged offense and both lesser included offenses, found him
not guilty of Murder in the First Degree in Count II, but found him guilty of Murder in the Second
Degree, the only lesser included offense of Count II on which the jury was instructed
932     Voluntary manslaughter is “the unlawful killing of a human being without malice
aforethought. ... upon a sudden quarrel or heat of passion.” 14 V.ILC. § 924(1). Parrilla posits that
had Nicholas been called as a witness and testified consistent with his present affirmation, he was
entitled to an instruction on voluntary manslaughter as the lesser included offense of Count II, and
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 that counsel’s failure to move for such an instruction deprived him of his right to effective
representation. Without that instruction, Parrilla claims that the jury was deprived of the means to
find him guilty of voluntary manslaughter for the unlawful killing of Curtis Phipps, without malice
aforethought, upon a sudden quarrel or heat of passion
933      As reviewed above, Nicholas’ affirmation and his potential testimony would not have
contradicted the totality of the evidence before the jury as to the facts of the killing - Parrilla shot
Phipps in the back and twice more as he lay on the ground. Taking Petitioner's factual allegations
as true, those facts presented by the Nicholas affirmation would not entitle Parrilla to relief.
434      Had trial counsel called Nicholas as a witness and requested a voluntary manslaughter jury
instruction for Count II, in light of all the evidence before the jury, it cannot be said there is a
reasonable probability that the jury would have determined that the killing occurred upon a sudden
quarrel or heat of passion and that the outcome of the case may have been different.’ Parrilla
concedes as much in his Petition, noting that he can only speculate that different professional
choices by counsel would have made a difference. “Had the situation been fully investigated and
developed, the jury might well have been convinced that the defendant acted ‘without malice
aforethought.’” Petition, at 7 (emphasis added)
935     Petitioner has failed to establish a prima facie case by presenting “specific factual support”
that, if proven, could entitle him to relief on his ineffective assistance of counsel claim, and the
Petition will be denied as to that claim
436     GROUND TWO: Trial court’s failure to instruct on the lesser included offense of voluntary
manslaughter in Count II - 14" Amendment due process violation
        Petitioner claims that his 14‘" Amendment due process rights were violated by the court’s
failure to instruct the jury on Count II of the lesser included offense of Voluntary Manslaughter
On Count I, Petitioner was acquitted of the charged offense and both lesser included offenses,
including Voluntary Manslaughter. But, on Count II, the jury found Parrilla not guilty of the
charged offense, but guilty of the only lesser included offense offered, that of Murder in the Second




* The Court notes that “there may be circumstances where a defendant's failure to request an instruction on
lesser included offenses can be proper trial strategy, such as when the defendant is pursuing an ‘all or
nothing’ strategy because he believes that the State has not successfully proven the elements of a charged
offense.” Perkins v. Phelps, 

, at * 33-34 (D. Del. May 16, 2012). It is worthy
of note that trial counsel did not ignore the issue of the proper instructions as to Count II. Prior to trial,
counsel presented his written Proposed Modification of Murder First Degree Jury Instruction and Revised
Proposed Modification of Murder First Degree Jury Instruction, substantively addressing distinctions
between the elements of first-degree and second-degree murder. See VI Judiciary CMS, Docket entries 127,
 131 (SX-2018-CR-00003). At this stage in the habeas proceedings, the record before this Court is silent as
to whether counsel’s failure to seek a voluntary manslaughter instruction as to Count II was strategic or
otherwise. However, for the reasons stated the result is unchanged
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 Degree. No Voluntary Manslaughter instruction was given and that lesser included offense was
 not available for the jury’s consideration on the verdict form for Count II
937     Because Petitioner’s trial counsel did not request an instruction to the jury on the lesser
included offense of Voluntary Manslaughter for Count II and did not object to its exclusion from
 the final the jury instructions, review of the trial court’s instructions is for plain error. See Roebuck
 v. Gov't of the V.I, 75 V.1. 260, 267 (V.I. 2021)
138       In the context of an appeal alleging that the trial court erred in failing to give a lesser
included offense instruction where none was requested by counsel, the Supreme Court has defined
the standard for plain error as
          an error, that was plain, that affected the defendant’s substantial rights. But [e]ven
          then, this Court will only reverse where the error seriously affects the fairness,
          integrity, or public reputation of judicial proceedings. Moreover, any claim that the
          trial court gave an improper instruction will rarely justify reversal of a criminal
          conviction where a party fails to preserve a charging error by objecting at trial
Velazquez v. People, 65 V.1. 312, 323 (V.I. 2016) (citations and internal quotations omitted)
9139      Jury instruction of a lesser included offense is only appropriate “when the evidence
warrants that instruction.” Codrington v. People, 57 V.1. 176, 194 (V.I. 2012). The United States
Supreme Court informs that a “defendant is entitled to an instruction on a lesser included offense
[only] if the evidence would permit a jury rationally to find him guilty of the lesser offense and
acquit him of the greater.” Keeble v. United States, 

 (1973).       “[FJor a jury to
convict a defendant on a lesser included offense that is not charged in the information, there must
be     ‘a reasonable ground of doubt’ for the jury to find that the defendant committed the lesser
offense but not the higher offense.”    Phipps v. People, 54 V.1. 543, 550-51 (V.L. 2011) (quoting 5
V.LC. § 3635)
740      =©Attrial, Kysian Nicholas did not testify, and the information set out in his affirmation was
not before the trial court. The trial evidence consisted of testimony from Juan Bautista that
Petitioner “was grappling with Phipps. ... that he saw Parrilla reach for the gun and Phipps try to
stop him from pulling it out. Parrilla punched Phipps ... The gun fell to the ground and Parrilla
picked it up and shot Phipps, who had his back to Parrilla.” People v. Parrilla, 2019 VI SUPER
173U, { 9. “Bautista further testified that Parrilla approached Phipps while he was on the ground
and fired twice more, for a total of three shots.” /d
441      Based upon the trial evidence, the trial court’s failure to sua sponte determine to present to
the jury a voluntary manslaughter lesser included offense instruction on Count II, without request
of Parriila’s counsel, did not “seriously affect{] the fairness, integrity, or public reputation of
judicial proceedings.” Therefore, Petitioner has not established a prima facie case for habeas relief
that the trial court’s failure to include a lesser included voluntary manslaughter charge to the jury
on Count II violated his 14" Amendment rights, and the Petition will be denied as to that claim
Parrilla v. People et al.; SX-2023-MC-00063
Memorandum Opinion and Order Denying Petition for Writ of Habeas Corpus
Page II of 12                                                                         2024 VI SUPER 53U

442      GROUND THREE:             Newly discovered evidence
         Ground Three alleges that Parrilla is entitled to relief due to newly discovered evidence
that was unknown at the time of trial and could not have been discovered due to counsel’s
ineffectiveness and “would have possibly” resulted in a different verdict. Petition, at 10. The new
evidence consists of the Nicholas affirmation, signed and notarized September 11, 2023. By the
affirmation, Nicholas claims that he was an eyewitness to the subject incident and that he
  witnessed Angel Parrilla walking away but was grabbed by the arm by the deceased and at that
point a fight broke out. | witnessed Angel Parrilla and the deceased struggling over a weapon and
thats [sic} when I removed myself from the scene.”
443     “The Supreme Court has recently confirmed that newly discovered evidence may entitle
an incarcerated petitioner to relief pursuant to 5 V.I.C. §1314(2).” 4 Frett v. Gov't of the V.1., 2024
VI SUPER 28, ¥ 18 (V.1. Super. Ct. 2024) (citing Fahie, 73 V.1. at 451). “To prevail on a claim of
newly discovered evidence, a petitioner must identify evidence that is so conclusive and so
persuasive that no reasonable juror would have found petitioner guilty beyond a reasonable doubt
This standard is extremely high.” Williams v. People, 

,             26 (V.I. 2024) (citations and
internal quotation omitted)
444       Parrilla’s newly discovered evidence consisting of the Nicholas affirmation does not set
forth facts that, if proven, would entitle Petitioner to habeas relief. The only additional “new”
information the statement provides that was unknown at trial is that Nicholas “witnessed Angel
Parrilla walking away” from Phipps, who grabbed him by the arm, “and at that point a fight broke
out.” The trial court’s Memorandum Opinion denying Petitioner’s Rule 29 motion set out in detail



“Title 5 V.I. Code § 1314 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 1313 of this title
                  (1) 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
5 VLC.   § 1314
Parrilla v. People et al.; SX-2023-MC-00063
Memorandum Opinion and Order Denying Petition for Writ of Habeas Corpus
Page [2 of 12                                                                    2024 VI SUPER 53U

the trial testimony of Juan Bautista, as reviewed above. That evidence was sufficient to support
the conviction of Petitioner of Murder in the Second Degree
445     Viewing that trial evidence, Nicholas’    affirmation, stating that Phipps grabbed Parrilla’s
arm while Parrilla was walking away and a fight over Parrilla’s weapon is not “so conclusive and
SO persuasive that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt.” While the affirmation provides counterevidence to the evidence introduced at trial, it is
not so conclusive a reasonable juror would necessarily acquit Petitioner.
146      In this habeas proceeding, it is not enough for Petitioner to raise doubt as to his guilt, but
instead Petitioner must prove his innocence. See Fahie, 73 V.1. at 452 (quoting Herrera v. Collins,

 (1993)). Because he has failed to do so here by presentation of the Nicholas
affirmation, the Petition fails to state a prima facie case for relief on the grounds of newly
discovered evidence under 5 V.I.C. § 1302(2), and the Petition will be denied as to that claim

                                           CONCLUSION
147    For the reasons set forth herein, the Court finds that Petitioner has not stated a prima facie
case for habeas corpus relief regarding his ineffective assistance of counsel claim; his claim that
he was denied due process by the trial court’s failure to instruct the jury on the lesser included
offense of Voluntary Manslaughter on Count II; or his claim that the newly discovered evidence
of the Nicholas affirmation entitles him to relief.

       In light of the foregoing, it is hereby

       ORDERED that Parrilla’s Petition for Writ of Habeas Corpus is DENIED,            and this matter
is CLOSED

       SO ORDERED this VA o              day of December, 2024




                                                         GO7>
                                                    DOUGLAS A. BRADY,
                                                                                  =
                                                                                JUDGE
ATTEST
TAMARA CHARL
Clerk of the               /

By             Pa
                    Court Clerk SQ)
               RNAS