-
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
THE PEOPLE OF THE VIRGIN ISLANDS „,
Plaintiff
Vs.
JOMAR AKA CHIPPA ENCARNACION Defendant
CASE NO. SX-10-CR-0000342
ACTION FOR: 14 V.I.C. 922(A)(1)
NOTICE OF ENTRY OF
MEMORANDUM
OPINION AND ORDER
TO:
SUPERIOR COURT MAGISTRATES
SUPERIOR COURT LAW CLERKS
SUPERIOR COURT JUDGES
LAW LIBRARIES (STX/STT)
KIPPY ROBBERSON, ESQ.
INFORMATION TECHNOLOGY
COURT LOG
CHARLES LOCKWOOD, ESQ.
Please take notice that on September 22, 2010 a(n) MEMORANDUM
OPINION AND ORDER dated August 19, 2010
was entered by the Clerk in the
above-entitled matter.
Dated: September 22, 2010
Venetia H. Velazauez. Esa.
CLERK OF THE SUPERIOR COURT
CHERYtl CLARKE
COURT CLERK II
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
PEOPLE OF THE VIRGIN ISLANDS,
PLAINTIFF,
V.
JOMAR "CHIPPA" ENCARNACION,
DEFENDANT.
s£lO-CR-342
ORDER
THIS MATTER is before the Court on the People's Motion for Pretrial Detention of
Defendant Jomar Encamacion (hereafter "Defendant" or "Encamacion"). A pre-trial detention
hearing was held on the matter on June 28, 2010. For the reasons elucidated in the Court's
MemorandumOpinion of even date, it is hereby
ORDERED that the People's Motion for Pretrial Detention of Defendant is DENIED;
and it is further
ORDERED that the Court will set bail at $250,000.00.
DONE and so ORDERED this //
day ofAugust 2010.
ATTEST:
VENETIA H. VELAZQUEZ, ESQ.
Clerk of the Court
By:
_sJ*r
Dated:
HAROLD \V. L. WILLOCKS
Judge ofthe Superior Court
CERTIFIED TO BE A TRUE COPY
This2^. day of ^t£ZL 20 A>
VENETIA H. VEL AZQUEZ, ESQ.
CLERK GFDhiE COURT
By.
7
Court ClerkS7
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
PEOPLE OF THE VIRGIN ISLANDS,
PLAINTIFF,
v.
JOMAR "CHIPPA" ENCARNACION,
DEFENDANT.
SX-10-CR-342
MEMORANDUM OPINION
(Dated August 11,2010)
THIS MATTER is before the Court on the People's Motion for Pretrial Detention of
Defendant Jomar "Chippa" Encamacion (hereafter "Defendant" or "Encamacion"). For the
reasonsthat follow, thisCourt will denythe People's Motion for Pretrial Detention.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Investigation by the Virgin Islands Police Department revealed that on March 20, 2010, in
the vicinity of Estate Castle Coakley, Christiansted, in the Judicial District of St. Croix, United
States Virgin Islands the deceased Misael Morales (hereafter "Morales") was found murdered by
a single gun shot wound to the back of the head.
Detective Cureene Smith, employed as an
investigator with the Criminal Investigation Bureau, St. Croix District, was assigned to the
homicide of Morales.
Detective Smith asserts that the evidence supports that Chayanne
Trinidad, Co-Defendant (hereafter "Trinidad" or "Co-Defendant") and Encamacion were
hanging out together with Morales on the night of March 19, 2010. Morales was later found and
reported murdered the following day. Based upon evidence uncovered during Detective Smith's
investigation, the People charged Encamacion with murder in the first degree as a principal.
More specifically, the information alleges that Encamacion, while aided and abetted by
[Trinidad], unlawfully and with willful, deliberate and premeditated design, kill [Morales], a
People of the Virgin islands v.Jomar "Chippa" Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 2
human being, by shooting him with a firearm in the back ofthe head in violation of 14 V.I.C. §
922(a)(1) & 11(a). Information People v. Chayanne Trinidadand Jomar "Chippa" Encamacion
at 4. Immediately following Encarnacion's arrest and advise of rights, the People filed a motion
todetain him without bail pending trial pursuant to Section 3 ofthe Revised Organic Act of 1954
as amended (ROA) and codified in48 U.S.C. § 1561. In support thereof, the People also assert
that based upon the instant charges and the facts of the case Encamacion poses a great danger to
the community, and is a flight risk. In opposition, Encamacion argues that the People have
clearly failed to meet the clear and convincing standard established in Browne v. People, 50 V.I.
241 (V.I.2008), cert, denied, No. 08-4186 (3d Cir.Oct.29, 2008).
Encamacion premises its
argument chiefly on the fact that the People have offered no evidence beyond the self-serving
hearsay statement ofTrinidad, co-defendant that implicates Encamacion to the murder ofMisael.
II. ANALYSIS
"Section 3 of the [Revised Organic Act] governs the issue of pretrial detention for first
degree murder defendants in local Virgin Islands courts, and title 5, section 3504a ofthe [Virgin
Islands Code] is inapplicable to the extent that it purports to grant pretrial bail for defendants
charged with first degree murder in the Superior Court under Virgin Islands law where the proof
is evident orthe presumption great" Browne v. People, 50 V.I.. 241 (V.I.2008), cert, denied,
No. 08-4186 (3d Cir.Oct.29, 2008). "Section 3 of the ROA mandates that Virgin Islands judges
grant bail in sufficient sureties to all defendants other than those charged with first degree
murder where the proof is evident or presumption great." [Tobal v. People, Crim No. 2009-070,
2009 WL 357975, at*7(V.I. Feb. 11, 2009)].1
1Section 3 of the Revised Organic Act ["ROA"), known as the "Bill of Rights," provides inter alia,
that "[a]ll persons shall be bailable by sufficient sureties in the case ofcriminal offenses, except for
first degree murder or any capital offense when the proof isevident orthe presumption isgreat." The
Revised Organic Act of 1984, § 3, 48 U.S.C. § 1561, reprinted in V.I. CODE ANN., tit. 1). By
contrast, 5 V.I.C. § 3504a, titled "Detention prior to trial," purports to provide for the pre-trial
detentioin of"person[s] charged with [the dangerous crimes of] murder in the first degree, rape inthe
People ofthe Virgin islands v. Jomar "Chippa"Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 3
In Browne, the Supreme Court "established both the burden of proofand the standard of
proof required to detain without bail a defendant charged with first degree murder." Jalani
Williams v. People, Crim No. 2009-0111, 2010 WL 1565533, at *4 (V.I. April 19, 2010). "The
burden of proof rests on the People to prove clear and convincing evidence that the defendant
committed the crime of first degree murder." See Jalani Williams at *4 (citing from Browne, 50
V.I. at 260-63). However, "the purpose of the bail hearing is not to determine the ultimate
question to be resolved at trial." Jalani Williams at *4 (citing from Browne at 262). Thus, in
determining whether the evidence adduced at the pre-trial detention hearing is clear and
convincing, this Court is mandated to"focus onthe strength of the People's evidence rather than
the defendant's ultimate guilt or innocence, see Browne, 50 V.I. at 262-63, and may not resolve
direct conflicts astoinculpatory and exculpatory facts, see Browne, 50V.I. at 266." Id..
Moreover, the Jalani Williams' Court expounds that 5 V.I.C. §§ 931-935, which govern
the issue of the admissibility of hearsay evidence in local Virgin Islands courts, do not bar the
admission of hearsay at pre-trial detention hearings." See Jalani Williams at *6. However, it
aptly instructs that "when the People elect to present exclusively hearsay evidence at a pre-trial
detention hearing, [this Court] when determining whether the evidence is clear and convincing,
must undertake by whatever means are appropriate under the circumstances to ascertain the
reliability of the underlying hearsay statement when their accuracy is in question." Jalani
Williams at *10.
At the hearing, the Government presented evidence through the testimony of Detective
Cureene Smith.
Detective Smith has been a police officer with the Virgin Islands Police
Department for approximately eight (8) years and a detective assigned to the major crime unit for
approximately three (3) years. On March 20, 2010, Detective Smith was dispatched on a call at
first degree, arson in the first degree, robbery inthe first degree, burglary in the first degree, kidnapping
for ransome, or drug trafficking." 5 V.I.C. § 3504a(a)(l).
People of the Virgin islands v. Jomar "Chippa" Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 4
about 7:00 a.m. to investigate a possible homicide in the vicinity of Plot 180 Old Coakley, St.
Croix.
She explained that upon her arrival to the scene she observed that a male individual
laying on the ground with a single gunshot wound to his forehead2. [The victim was later
determined to be Misael Morales, Junior was found to be dead.]
Her investigation further
revealed—based upon an autopsy performed by Dr. Francisco Landrum, the forensic
pathologist—that the cause of Misael Morales' death was a single gunshot wound to his head
and that the manner ofdeath was homicide.
At the crime scene, Detective Smith found on Morales' person a Cost U Less ID card and
a check stub for approximately $350.00 and some cents3. A pendant, identified by Misael's
mother as being a pendant that Morales usually wore on a long gold chain around his neck, was
also found inclose proximity to his body. Statements obtained by Detective Smith from a Cost
U Less manager further revealed that Morales had gotten paid and had cashed his check on
March 19th (the day before he was murdered). Detective Smith testified that Morales pockets
were turned inside out, no cash was found on him and his gold chain was missing. Smith also
testified that W-I upon questioning stated that after Morales finished work on the 19th he met her
at Sunny Isles and gave her $40.00 and told her that he was going to Peter's Rest to pay for a cell
phone. Family members upon inquiry by Detective Smith that Morales was last seen in the El
Sol Bar with Chayanne Trinidad.
Through Detective Smith's testimony the Government
established the existence ofcorroborative evidence Obtained by the Forensic Department through
subpoena prepared by the Attorney General's office ofa recording by asurveillance camera at El
Sol Bar showing Morales having drinks with Chayanne Trinidad on March 19, 2010. Trinidad
was interrogated and during his initial interview Trinidad stated thaton March 19, 2010 Morales
2Although Detective Smith testified that the gunshot wound was to the forehead all otherstatements
appear toindicate that the gunshot wound was tothe back ofthehead.
3The amount of the checkstub presented laterin Detective Smith's testimony is actuallyS375.03.
People ofthe VirginWands v. Jomar "Chippa" Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 5
came to his residence to pay him the balance of the money for the cell phone and that after they
left and went together to El Sol Bar. Trinidad made statements to Detective Smith that while at
EI Sol Bar Morales had told Trinidad that he was going to Castle Coakley to buy a bag of weed.
Trinidad then told Detective Smith that Morales left El Sol Bar and that he [Trinidad] went to
Sion Farm at around eight (8) p.m. Approximately a month later, Detective Smith interviewed
Trinidad a second time.
During the second interview Trinidad stated that while Morales and
Trinidad were at the EI Sol Bar, Encamacion picked them up in his uncle's truck and drove them
around for awhile. Encamacion then drove them to his residence where he parked up his uncle's
truck and they proceeded to walk through a shortcut. Trinidad also stated that while they were
walking towards Castle Coakley Encamacion told Trinidad that he was going to shoot Morales.
Encamacion who was walking behind of Morales then pulled out a .38 from his waist and shot
Morales to the back of his head. Trinidad further stated that when Encamacion had picked them
up from El Sol Bar that Encamacion had said that he was going to shoot somebody tonight.
Trinidad upon interrogation described that weapon as a .38 with a brown, bronzish handle and
that he had seen the gun before at Encamacion's uncle' residence and that it was kept it in a a
dresser drawer.
During cross-examination of Detective Smith, the defense
firmly established that
absolutely no evidence has been uncovered to date on the murder weapon.
It was clarified that
neither a casing nor a projectile was ever found at the scene.
Moreover, although Trinidad's
statements to Detective Smith lead to the recovery of a .38 firearm at Encamacion's uncle's
residence, which is located in the rear of where Encamacion lives, the police department has not
yet had an opportunity to test the firearm for DNA or any other forensic evidence.
Detective
Smith likewise acknowledged that there is no evidence showing that Encamacion's fingerprints
are on the .38 seized from his uncle's residence.
It was also clearly established that other than
n. tslai
People of the Virgin islands v. Jomar "Chippa" Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 6
Trinidad's prior hearsay statements to Detective Smith describing the .38 firearm found in
Encamacion's uncle's residence as being the murder weapon used by Encamacicn there is
nothing that connects the .38 firearm seized and Encamacion.
Thus, there is obviously no
forensic evidence producedat the hearing connecting the firearm seized by the police department
at Mr. Soto's residence4 with this crime or with Encamacion.
The Defense further established during cross-examination of Detective Smith that the
first interview conducted of Trinidad by Detective Smith and Sergeant D. Herbert took place in
April 2010 and that an affidavit had been prepared subsequent to the interview recording some of
Trinidad's statements obtained during the interview. The Defense was also able to establish that
the second interview conducted of Trinidad by Detective Smith and Sergeant Herbert was taken
on approximately June 20, 2010.
The Defense pointed out inconsistencies in Trinidad's
statements. Trinidad had initially denied that he was at the murder scene of Morales during the
course of his first interview, while during the second interview he said he was at the murder.
The Defense also raised the issue that Trinidad during the first interview denied selling a
Motorola cell phone to the alleged victim and during the second interview admitted to selling a
cell phone to the alleged victim. The Defense also emphasized that Trinidad had in his first
interview admitted that Morales had come to his house prior to the murder to pay him some
money and that the police had discovered on Morales' person at the scene of the crime a check
stub in the amount of three hundered and seventy-five dollars and change.
The Defense also
pointed at the fact that the video from the El Sol Bar showed Morales on the video drinking with
Trinidad and Morales paying for the drinks in cash.
The Defense also pointed out that at the
scene of the crime that Morales' gold chain had been obviously taken off of him and that
4 Mr. Soto is Encamacion's uncle.
People of the Virgin islands v.Jomar"Chippa"Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 7
according to statements made by Encamacion to Detective Smith, Trinidad had sold the gold
chain to a Hispanic guy.
The Defense also established from Detective Smith's testimony that Trinidad had
confided that he had murdered Morales and threatened Encamacion that he was going to murder
Encamacion if Encamacion did not leave the island.
Encamacion told Detective Smith that
Trinidad had taken him to the scene of the alleged murder. The Defense also established that
Encamacion has never declared that he was at the murder and watched Trinidad kill Morales.
The Defense also pointed out that Encamacion had made statements to Detective Smith
regarding Trinidad's requesting ammunition from Encaracion and that Encamacion had provided
.38 caliber bullets to Trinidad.
Detective Smith's testimony also confirmed that Trinidad
admitted that he had requested the bullets from Encamacion.
The Defense established that Encamacion has no other criminal contact prior to this case
and no criminal record.
Upon further cross-examination of Detective Smith the Defense also
established that Encamacion has strong family ties to the community.
Critically, Detective Smith upon questioning from the Court responded that the only
connection that Encamacion has to the murder of Morales is Trinidad's statement to Detective
Smith and Sergeant Herbert stating that Encamacion picked them up in his uncle's truck, a silver
tmck.
Trinidad's statement that Encamacion pulled out a .38 with a brownish or brownish
handle. The fact that a .38 with a brownish, bronze handle was found at Encamacion's uncle's
residence, which is in the rear of where Encamacion resides. There was also a statement by
Morales uncle that a truck had picked up Trinidad and Morales from El Sol Bar.
Although
Morales' uncle was unable to identify the person driving the tmck or to give a clear description
of the truck that he saw.
i Tslar
People ofthe Virgin Islands v. Jomar"Chippa"Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 8
The Government relies on Encamacion's ability to describe the murder scene as being
probative ofEncamacion's involvement ir. the murder, In opposition, the Defense points out that
according to Encamacion's statements to Detective Smith, Encamacion explained how he had
learned from Trinidad about the murder of Morales and therefore able to describe the scene
because Trinidad had taken Encamacion to the scene in an attempt to find the pendant that had
come off Morales' gold chain, which Trinidad had taken.
Accordingly, and based upon the testimony and evidence presented at the pre-trial
detention hearing, the Court finds that the People have established the following facts relevant to
proving that Encamacion committed the crime of murder in the first degree, but finds that they
plainly fail to rise to the clear and convincing standard:
1.
Trinidad stated to Detective Smith that on March 19, 2010, Trinidad and
Morales were picked up by Encamacion at the El Sol Bar in Encamacion's
uncle's pickup tmck.
2.
Trinidad
stated
to
Detective
Smith that
during
ride
in pickup
truck
Encamacion said to Trinidad that he intended to kill someone.
3.
Trinidad stated to Detective Smith that he, Encamacion, and Morales got off
the pickup tmck and went on foot toward Castle Coakley and took a short cut
through the bush by Bashment.
4.
Trinidad stated to Detective Smith that as they were walking towards Castle
Coakley, Encamacion told Trinidad that he was going to kill Morales.
5.
Trinidad stated that he saw Encamacion follow Morales into the bush and
shoot Morales with a .38 revolver.
6.
Trinidad admits taking the cell phone from Morales after the shooting.
People of the Virgin raands v. Jomar "Chippa" Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 9
7.
Encamacion admits that he knew his uncle had a .38 caliber firearm in his
rnnm and thatwhen Trinidad had previously askedEncamacion for bullets for
a .38 caliber Encamacion had given Trinidad four bullets.
8.
During the investigation, the police found a .38 caliber firearm
in
Encamacion's uncle's house in the dresser drawer based upon Trinidad's
statements to the police.
9.
Encamacion lives in front of his uncle's house where the .38 caliber firearm
was found.
10.
Encamacion stated to Detective Smith that he was aware that Trinidad had
sold Morales a phone and that Trinidad was mad because Morales had not
paid in full and that he was being cheated by Morales.
11.
After the shooting Encamacion stated that Trinidad told him how he had shot
Morales and killed him and threatened Encamacion to leave the island or he
was going to kill him too.
12.
Encamacion stated that Trinidad told him that he had sold Morales' gold
chain to a Hispanic man.
13.
Encamacion stated that Trinidad described in detail to Encamacioin how he
shot Morales and how he fell to the ground.
14.
Encamacion told police that Trinidad took him to the scene where Morales
was shot and showed him the blood on the ground and described how he
followed him through the bush and shot him in the back.
15.
Encamacion told policehe looked in the area alongwith Trinidad forthe gold
pendant that was on Morales' gold chain when he was killed but could not
find it.
People ofthe Virgin lHands v. Jomar "Chippa" Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 10
16.
The gold pendant had been recovered by police at the crime scene on March
20, 1010, the day they found Morales' dead body.
The Court finds that the only evidence adduced at the pre-detention hearing—introduced
through the testimony of the Government's sole witness, Detective Smith—that actually
implicates Encamacion to the murder of Morales were the hearsay statements of Trinidad, his
co-defendant made to the police. This fact clearly raises the Jalani Williams issue and, thereby,
imposes on this Court the duty to ascertain the underlying "reliability" of Trinidad's hearsay
statements where their accuracy are in question.
In so assessing, therefore, it is critical that the
Government fatally failed to present any materially relevant evidence sufficiently corroborating
Trinidad's statements. Statements by Morales' Uncle regarding witnessing that Trinidad and
Morales had been picked up by a tmck without any further descriptive statements identifying
Encamacion as the driver or the color or make of the tmck does not sufficiently corroborate
Trinidad's hearsay statements. Thus, the fact that Morales' Uncle was unable to describe the
truck they saw sufficiently to identify that it was in fact Encamacion's Uncle's tmck indicates
that the evidence does not rise to the level of clear and convincing standard necessary to connect
Encamacion to the murder of Morales. Moreover, the fact that the police uncovered a .38 firearm
at Encamacion's Uncle's house without any additional evidence—other than Trinidad's hearsay
statement connecting the weapon with Encamacion—likewise fails to sufficiently corroborate
Trinidad's hearsay statements made to the police during his interrogation. Accordingly, in the
absence of any additional materially relevant evidence sufficiently corroborating Trinidad's
statements and thereby substantially connecting Encamacion to the murder of Morales, the Court
finds that Trinidad's hearsay statements are not—standing alone—sufficiently "reliable" to meet
the clear and convincing standing required under Browne and Jalani Williams.
II.
CONCLUSION
People ofthe Virgin raands v. Jomar "Chippa" Encamacion
SX-10-CR-342
MEMORANDUM OPINION
Page 11
For the foregoing reasons, the Court finds that the People's evidence adduced at the pre
trial detention hearingfails to sufficiently meet the standard of clear and convincing evidence
established in Browne and expounded in Jalani Williams with respect to the People's reliance on
hearsay statements exclusively.
=ft^4/^
Dated
/9-30/D
ATTEST:
VENETIA H. VELAZQUEZ, ESQ.
Clerk of the Court
By:3
Dated:
3c
7ourt Cleric Supervisor
Cj^H[£
HAROLiyW. L. WILLOCKS
Judge of the Superior Court
•
CERTIF !F,n JO K A 1;iUE COPY
Thisg^ tiay ofep?^/- 20 /J
VENETIA:!. VElfcQCEZ, ESQ
CLERK^TT-i-iE COURf
By- / //
Court Clerk