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IN THE SUPREME COURT OF THE VIRGIN ISLANDSSUPREME CT. NO. 2018-066
COLLY CASCEN,Appellant,
v.
PEOPLE OF THE VIRGIN ISLANDS, JULIUS WILSON, DIRECTOR OF THE VIRGIN ISLANDS BUREAU OF
CORRECTIONS, and DAVID ZOOK, WARDEN OF THE SUSSEX STATE PRISON,
Appellees.
Super. Ct. No. ST-14-CR-482 (STT)
BRIEF OF APPELLEE
Dated: March 16, 2020
Respectfully submitted,
DENISE N. GEORGE, Esq.Attorney General
PAMELA R. TEPPER, Esq.Solicitor General
By: IAN S.A. CLEMENT, Esq. Bar No. R-2089 Assistant Attorney General Department of Justice 34-38 Kronprindsens Gade GERS Complex, 2nd Floor St. Thomas, VI 00802 (340) 774-5666– ext. 10112 (340) 340-775-9710 (f)
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TABLE OF CONTENTSTABLE OF CONTENTS.................................................................................. i
TABLE OF AUTHORITIES .......................................................................... iii
STATEMENT OF JURISDICTION................................................................ 1
STATEMENT OF THE ISSUES..................................................................... 2
STATEMENT OF RELATED CASES OR PROCEEDINGS............................2
STATEMENT OF THE CASE AND FACTS ................................................... 3
STANDARD OF REVIEW ............................................................................. 6
SUMMARY OF THE ARGUMENT................................................................ 7
ARGUMENT ............................................................................................. 10
POINT I .................................................................................................. 10
THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY DENYING CASCEN’S PETITION WITHOUT A HEARING BECAUSE THE PARTIES’ FILINGS REVEALED NO FACTUAL DISPUTES .......................................................................................... 10
POINT II.................................................................................................. 11
THE SUPERIOR COURT DID NOT ERR BY FINDING THAT CASCEN FAILED TO SATISFY HIS BURDEN TO SHOW THAT TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE................................................................................................................11
A. The Superior Court did not err by finding that Cascen failed to satisfy his burden to show that the jury heard prosecutor’s comments at sidebar................................................................................................... 13
B. The Superior Court did not err by finding in the context of the entire trial, trial counsel’s failure to object to certain comments made by the prosecutor during closing did not amount to ineffective assistance of counsel ..............................................................................15
C. The Superior Court did not abuse its discretion by holding that trial counsel was not constitutionally ineffective when producing impeachable witnesses..........................................................................24
D. The Superior Court properly found that the trial judge’s criticism of trial counsel did not result in prejudice to Cascen............................29
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E. This Court has not adopted the Cumulative Error Doctrine; nevertheless, trial counsel’s errors did not cumulatively demonstrate ineffective assistance of counsel............................................................34
POINT III ...............................................................................................36
THE SUPERIOR COURT DID NOT ERR BY FINDING THAT CASCEN FAILED TO SATISFY HIS BURDEN TO SHOW THAT APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE....................................................................................36
CONCLUSION ..........................................................................................40
CERTIFICATE OF BAR MEMBERSHIP ............................................. 41
CERTIFICATE OF FILING AND SERVICE ........................................ 41
CERTIFICATE OF WORD COUNT.......................................................42
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TABLE OF AUTHORITIES
Cases
Albrecht v. Horn, 471 F.3d 435 (3d Cir. 2006) ........................................... 32Alexander v. People, 65 V.I. 385 (V.I. 2016).................................................8Buehl v. Vaughn, 166 F.3d 163 (3d Cir. 1999)..............................................11Burke v. Herbert, 68 V.I. 144 (V.I. Super. 2017)........................................... 7Cascen v. People of the Virgin Islands, 60 V.I. 392 (V.I. 2014)...... 2, 5, 6, 35Connor v. People of the V.I., 59 V.I. 286 (V.I. 2013)................................... 21Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464 (1986) .................... 14Francis v. People of the V.I., 59 V.I. 1075 (V.I. 2013) .................................20Gumbs v. People, 64 V.I. 491 (V.I. 2016) .....................................................11Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366 (1985) ................................... 10Hodge v. McGovan, 50 V.I. 296 (V.I. 2008)................................................. 1Holt v. United States, 218 U.S. 245, 54 L. Ed. 1021, 31 S. Ct. 2 (1910) ....... 36Hughley v. Gov’t of the V.I., 2011 U.S. Dist. LEXIS 107812 (D.V.I. App. Div.
Sept. 23, 2011) ............................................................................................ 7Imbach v. Clark, 2012 U.S. Dist. LEXIS 109948 (C.D. Cal. Jan. 10, 2012) 26Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308 (1983) ...............................34Joseph v. People of the V.I., 60 V.I. 338 (V.I. 2013) ........................ 11, 32, 33Ledesma v. Gov't of the V.I., 2019 V.I. Supreme LEXIS 47 (Dec. 12, 2019)25Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147 (1994)...................... 27McAleese v. Mazurkiewicz, 1 F.3d 159 (3d Cir. 1993)................................. 10Mendez v. Gov't of the V.I., 56 V.I. 194 (V.I. 2012)....................................... 6Padilla v. Kentucky, 559 U.S. 356,, 130 S. Ct. 1473 (2010).........................23People of the V.I. v. Amedee, 2010 V.I. LEXIS 84 (Super. Ct. Nov. 16, 2010)
...................................................................................................................15Rivera-Moreno v. Gov't of the V.I., 61 V.I. 279 (V.I. 2014) ...................... 1, 8 Simon v. Gov't of the V.I., 116 F. Supp. 3d 529 (D.V.I. 2015) ............... 14, 22St. Thomas-St. John Bd. Of Elections v. Daniel, 49 V.I. 322 (2007) ............ 6States v. Price, 13 F.3d 711 (3d Cir. 1994) ................................................... 31Strickland v. Washington, 466 U.S. 668 (1984).......................... 7, 10, 12, 23Suarez v. Gov't of the V.I., 56 V.I. 754 (V.I. 2012) ........................................ 1United States v. Beaty, 722 F.2d 1090 (3rd Cir. 1983) ...............................29United States v. Bencivengo, 749 F.3d 205 (3d Cir. 2014) .........................28United States v. Cleve-Allan George, 2011 U.S. Dist. LEXIS 124280 (D.V.I.
Oct. 26, 2011) ...........................................................................................22United States v. De Peri, 778 F.2d 963 (3d Cir. 1985) ................................36
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United States v. Hynes, 467 F.3d 951 (6th Cir. 2006) ................................28United States v. Levi, 405 F.2d 380 (4th Cir. 1968) ................................... 21United States v. Nobel, 696 F.2d 231 (3d Cir. 1982)................................... 31United States v. Shiomos, 864 F.2d 16 (3d Cir. 1988) ................................36United States v. Wilensky, 757 F.2d 594 (3d Cir. 1985) .............................29Villot v. Varner, 373 F.3d 327 (3d Cir. 2004)...............................................6Warner v. Transamerica Ins. Co., 739 F.2d 1347 (8th Cir. 1984)..............29
Statutes
4 V.I.C. § 32(a)............................................................................................... 15 V.I.C. § 1311................................................................................................. 914 V.I.C. § 295(1) ........................................................................................... 314 V.I.C. § 297(2)........................................................................................... 314 V.I.C. § 625(a) ........................................................................................... 314 V.I.C. § 922(a)(1)....................................................................................... 314 V.I.C. § 2253(a) ......................................................................................... 3
Rules
V.I. R. App. P.22(a)(3)(i)...............................................................................2V.I. R. App. P. 22(f) .....................................................................................39V.I. R. App. P. 22(m) ................................................................................... 25V.I. R. H.C. 2(b)............................................................................................. 7
Other Authorities
Jackson, Advocacy Before the United States Supreme Court, 25 Temple L. Q. 115, 119 (1951) ......................................................................................34
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STATEMENT OF JURISDICTION
This Court has jurisdiction over this case pursuant to 4 V.I.C. § 32(a).
Title 4, Section 32, Subsection (a) gives this Court “jurisdiction over all
appeals arising from final judgments, final decrees or final orders of the
Superior Court, or as otherwise provided by law.” “An order denying a
petition for a writ of habeas corpus is a final order … from which an appeal
may lie.” Rivera-Moreno v. Gov't of the V.I., 61 V.I. 279, 292-93 (V.I. 2014)
(quoting Suarez v. Gov't of the V.I., 56 V.I. 754, 758 (V.I. 2012). Since the
Superior Court’s October 12, 2018, Order denying Appellant’s Petition for
Writ of Habeas Corpus constitutes a final judgment, this Court possesses
jurisdiction over this appeal, timely filed on November 9, 2018.
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STATEMENT OF THE ISSUES
1. Whether the Superior Court erred by denying the Petition for Writ of
Habeas Corpus without holding an evidentiary hearing?
2. Whether the Superior Court erred by finding that Appellant’s trial
counsel was not ineffective?
3. Whether the Superior Court erred by not finding that Appellant’s
direct appeal counsel was ineffective?
STATEMENT OF RELATED CASES OR PROCEEDINGS
Pursuant to V.I.S.CT.R. 22(a)(3)(i), this matter has been before this
Court on direct appeal in matter captioned Cascen v. People of the Virgin
Islands; S. Ct. Crim No 2012-007, 60 V.I. 392 (V.I. 2014).
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STATEMENT OF THE CASE AND FACTS
The People charged Appellant in a six-count Third Amended
Information with the following offenses: (1) Murder in the First Degree, of
Christian D. Soto III (“Christian”), in violation of 14 V.I.C. § 922(a)(1)
(Count 1); (2) Attempted Murder in the First Degree, of Cyril Peters
(“Peters”), contrary to 14 V.I.C. § 922(a)(1) (Count 2); (3) Assault in the
First Degree, of Cyril Peters, in violation of 14 V.I.C. § 295(1) (Count 3); (4)
Assault in the Third Degree, of W.J., a minor, contrary to 14 V.I.C. § 297(2)
(Count 4); Reckless Endangerment in the First Degree, in violation of 14
V.I.C. § 625(a) (Count 5); and (6) Possession of an Unlicensed Firearm
During the Commission of a Crime of Violence, contrary to 14 V.I.C. §
2253(a) (Count 6). (JA11-JA13)
Following a six-day jury trial, Cascen was convicted of Murder in the
First Degree of Christian , Attempted First Degree Murder of Peters, Third
Degree Assault of the minor M.J., Reckless Endangerment in the First
Degree, and Possession of an Unlicensed Firearm During the Commission
of a Crime of Violence. (JA786-JA787) Cascen subsequently filed a Motion
for Judgment of Acquittal or in the Alternative, a New Trial on March 23,
2010. (JA17-JA39). On August 31, 2011, the trial court denied Cascen’s
motion. (JA55-JA89).
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On December 28, 2011, the Court sentenced Cascen to life
imprisonment for the first-degree murder conviction, ten years
imprisonment for the first-degree attempted murder conviction (which was
merged with the first degree assault conviction)1, two years imprisonment
for the third-degree assault conviction, five years imprisonment for the
reckless endangerment conviction and five years imprisonment with a
$25,000 fine for the unauthorized possession of a firearm during the
commission of a violent crime conviction. (JA792-JA794) Since his
convictions, Cascen has been in the custody of the Bureau of Corrections
and is currently housed at Sussex State Prison in Waverly, Virginia.
Cascen timely appealed his convictions. In his Opening Brief,
Appellate Counsel raised the issues of multiple alleged erroneous
evidentiary and legal rulings that required reversal, jury partiality, violation
of the confrontation clause, and insufficiency of the evidence. (JA938-
JA969)
1 The sentence imposed by the Superior Court predates this Court’s decision in Titre v. People of the Virgin Islands, 70 V.I. 797 (V.I. 2019), which found that merged convictions on lesser-included offenses violated the Double Jeopardy Clause. Though not raised by Appellant, Cascen’s sentence is in contravention of this Court’s holding in Titre. Consequently, this Courtshould remand this matter to the Superior Court for the sole purpose of vacating Cascen’s sentence on the first-degree assault conviction.
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On January 8, 2014, this Court issued an Opinion that reversed
Cascen’s convictions for third-degree assault and unauthorized possession
of a firearm and affirmed the remaining convictions. Cascen v. People of
the Virgin Islands, 60 V.I. 392 (V.I. 2014). Furthermore, because the
Judgment and Commitment misidentified the crimes for which Cascen was
convicted and the sentences imposed for those convictions, this Court
remanded the case with instructions for the Superior Court to amend the
Judgment and Commitment. Id.
On December 9, 2014, Cascen filed a Petition for Writ of Habeas
Corpus and amended it on March 23, 2016. (JA802) Cascen raised ten
collateral attacks, each of which asserted ineffective assistance of counsel
claims: (1) trial counsel was ineffective in failing to object to inadmissible
testimony, (2) trial counsel was ineffective for failing to object to the
prosecutor eliciting improper testimony concerning witnesses’ fear of
Cascen and his background, (3) trial counsel was ineffective in failing to
seek a mistrial based on the prosecutor’s comments made at sidebar, (4)
trial counsel was ineffective in failing to move for a mistrial based upon
prosecutor’s improper comments during closing arguments, (5) trial
counsel was ineffective in calling witnesses that were easily impeached by
the prosecutor by prior inconsistent statements, (6) trial counsel was
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ineffective by failing to secure the attendance of victim, Cyril Peter at trial,
(7) trial counsel’s deficient performance garnered sharp criticism from the
Court which prejudiced Cascen, (8) trial counsel’s cumulative ineffective
assistance prejudiced Cascen, (9) appellate counsel was ineffective for
failing to properly raise the issue of prosecutor’s improper closing
arguments on appeal, and (10) appellate counsel was ineffective for failing
to properly raise the issue of the jury sequestration on appeal. (JA803-
JA804).
On October 12, 2018, the Superior Court issued an Opinion and Order
denying Cascen’s petition without a hearing, holding that his claims lacked
factual merit. (JA884-JA936). On November 9, 2018, Cascen filed a Notice
of Appeal.2
STANDARD OF REVIEW
Generally, the standard of review in examining the Superior Court’s
application of law is plenary, while it reviews the Superior Court’s findings
of fact only for clear error. See Bryan v. Gov't of the V.I., 56 V.I. 451, 456
(V.I. 2012). A trial court's conclusions of law in dismissing a petition for
2 For the sake of brevity, the People refer the Court to its Opinion on direct appeal for a summary of the facts of the underlying crime. Cascen, 60 V.I. at 398-401. However, the People will cite to record as provided by the Appellant in this Responsive Brief.
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writ of habeas corpus are subject to plenary review. Mendez v. Gov't of the
V.I., 56 V.I. 194, 199 (V.I. 2012).
Further, a claim of ineffective assistance of counsel requires a
showing than an attorney committed serious errors to undermine the
proper functioning of the adversarial process, which cannot be relied on as
having produced a just result. Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984). However, “[E]ven an error that may justify a reversal on
direct appeal will not necessarily sustain a collateral attack.” Hughley v.
Gov’t of the V.I., 2011 U.S. Dist. LEXIS 107812 *7-8 (D.V.I. App. Div. Sept.
23, 2011)
Pursuant to the Virgin Island Habeas Corpus Rules, the court,
“[w]hen presented with a petition for habeas corpus, must first determine
whether the petition states a prima facie case of 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 an opportunity to be heard, whether
the stated claims are for any reason procedurally or substantively barred as
a matter of law.” V.I. R. H.C. 2(b); Burke v. Herbert, 68 V.I. 144, 148 (V.I.
Super. 2017).
SUMMARY OF THE ARGUMENT
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Here, the trial and appellate record supports the Superior Court’s
factual finding that Cascen did not present a prima facie case for habeas
corpus relief. Therefore, the Superior Court’s findings were not erroneous.
Trial counsel did, in fact, make timely evidentiary objections.
Moreover, Cascen failed to meet his burden to show that the jury heard the
prosecutor’s side bar comments. Additionally, Cascen cannot show that but
for trial counsel’s failure to object to the prosecutor’s comments during
closing the jury would have reached a different verdict. Furthermore, trial
counsel’s decision to put on certain witnesses fell within the realm of trial
strategy and did not constitute constitutional ineffectiveness. Further, the
Court’s criticism of trial counsel did not result in prejudice to Cascen.
Additionally, this Court has not yet adopted the cumulative error doctrine.
But even if it were to adopt the cumulative error doctrine, the alleged errors
in this case did not cumulatively demonstrate ineffective assistance of
counsel. Moreover, appellate counsel presented the arguments that had the
best prospects for success on appeal, and his representation was not
constitutionally ineffective. Finally, the Superior Court carefully considered
the voluminous record, Petition and Return and issued an Opinion that
found that no factual disputes existed. Therefore, the Superior Court did
not abuse its discretion by denying Cascen’s petition without a hearing.
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Rivera-Moreno, 61 V.I. at 313, Alexander v. People, 65 V.I. 385, 398 (V.I.
2016)(Swan, J. concurring).
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ARGUMENT
POINT I
THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION BY DENYING CASCEN’S PETITION WITHOUT A HEARING BECAUSE THE PARTIES’ FILINGS REVEALED NO FACTUAL DISPUTES
Title 5 of the Virgin Islands Code, Section 1311 provides that after the
filing of papers and only if the petitioner has established a prima facie case
for relief “[t]he court shall have full power and authority to require and
compel the attendance of witnesses, by process of subpoena and
attachment, and to do and perform all other acts and things necessary to a
full and fair hearing and determination of the case.” 5 V.I.C. § 1311, Rivera-
Moreno, 61 V.I. at 313. “An evidentiary hearing, however, is not necessary if
the parties' filings reveal absolutely no factual disputes.” Id. at 314. Since,
as discussed infra, the Superior Court did not err by finding that Cascen
presented no factual disputes, the Superior Court did not abuse its
discretion by denying Cascen’s petition without holding an evidentiary
hearing.
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POINT II
THE SUPERIOR COURT DID NOT ERR BY FINDING THAT CASCEN FAILED TO SATISFY HIS BURDEN TO SHOW THAT TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE
The Sixth Amendment to the United States Constitution guarantees
the right to counsel. Strickland v. Washington, 466 U.S. 668, 684, 104 S.
Ct. 2052, 2063 (1984). The Sixth Amendment applies to the Virgin Islands
through Section 3 of the Revised Organic Act of 1954 as amended, and the
right to counsel under the Sixth Amendment encompasses the right to
effective assistance of counsel. McAleese v. Mazurkiewicz, 1 F.3d 159, 166
(3d Cir. 1993).
When reviewing Cascen’s claim that he received ineffective assistance
of counsel, this Court must employ the test articulated by the Supreme
Court in Strickland, supra, at 687-88, that: “[w]hen a convicted defendant
complains of the ineffectiveness of counsel's assistance, the defendant must
show that counsel's representation fell below an objective standard of
reasonableness.” Id., and see Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. at
366, 369 (1985). In addition, “[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Id. (quoting
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Strickland, supra, at 668, 694); and see Gumbs v. People, 64 V.I. 491, 507
(V.I. 2016). The Supreme Court has firmly established that a reviewing
court must consider the strength of the evidence of guilt in deciding
whether the Strickland prejudice prong has been satisfied. Buehl v.
Vaughn, 166 F.3d 163, 172 (3d Cir. 1999).
Gumbs, imposed a two-part test for defendants to satisfy their burden
to show that their counsel was constitutionally ineffective. Id. A defendant
must (1) identify acts or omissions of counsel that are alleged to be outside
the range of reasonable professional judgment and competent assistance,
and (2) show that there is a reasonable probability that, but for the
counsel’s unprofessional errors, the results of the trial would have been
different. Id.
To satisfy the second prong of Gumbs, the defendant must
affirmatively prove prejudice. Id. at 693 Otherwise, counsel’s error, even if
it was professionally unreasonable, will not satisfy defendant’s burden. Id.
at 691. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. at 694. Further, in its analysis the Court
should “presume . . . that the judge or jury acted in according to law.” Id.
The reviewing court must determine given the totality of the evidence
before the judge and jury, is there a reasonable probability that, absent the
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errors, the jury would have had reasonable doubt of defendant’s guilt. Id. at
635. However, “[b]ecause advocacy is an art and not a science . . .
[counsel's] strategic choices must be respected” if they were “made after
thorough investigation of law and facts relevant to plausible options.”
Strickland, 466 U.S. at 681.
A. The Superior Court did not err by finding that Cascen failed to satisfy his burden to show that the jury heard prosecutor’s comments at sidebar
The Superior Court noted that the trial transcripts revealed that, on
direct examination, Cyril Peters’ girlfriend, Yessenia Knowles denied seeing
who fired the shots that killed Christian and injured Peters. (JA897). Later,
the prosecutor asked Knowles if she remembered speaking to Detectives
Herbert and Braithwaite at the hospital after the shooting or speaking to
any other ladies at the hospital. (Id.) The court noted that the transcripts
showed that Knowles did not remember speaking to FBI agent Tom
Drummond about the case. (JA897-JA898). Defense counsel objected,
arguing that the prosecutor was attempting to impeach his own witness,
and then asked for a sidebar. (JA898).
Cascen admits that the Superior Court accurately recounts the entire
sidebar in its Opinion. (Appellant’s Brief p. 14) In the sidebar, the
prosecutor stated that Drummond previously recorded a statement of
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Knowles that she adopted in which she identifies Cascen as the shooter, and
states that Cascen previously warned her that he would kill Peters, and why.
(JA898-JA899) During the sidebar, Superior Court Marshall Ann Marie
Wong twice warned the court that the jury could hear their conversation.
(Id.) After the second warning, the Court excused the jury. (JA899)
Cascen now argues that trial counsel was ineffective because he did
not request a mistrial or ask for a curative instruction. (Appellant’s Brief, p.
13). The Superior Court noted that the trial transcript does not reflect that
the jury heard any part of the sidebar conversation. (JA899) Just because
Marshall Wong believed that the jury could hear the conversation, does not
mean that the jury heard the conversation.
Cascen bore the burden of showing that the jury, in fact, heard the
sidebar conversation. Moreover, Cascen had to also show that if the jury
heard the sidebar conversation, a mistrial, or at least a curative instruction
from the court was warranted. Further, that but for that alleged failure, the
result of his trial would have been different.
In his brief, Cascen also notes that this issue highlighted the need for
an evidentiary hearing. (Appellant’s Brief, p. 15, n. 1). However, what
Marshall Wong heard is not relevant. What is relevant is what the jury
allegedly heard. However, in the context of an ineffective assistance of
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counsel claim, speculation does not establish prejudice. Simon v. Gov't of
the V.I., 116 F. Supp. 3d 529, 559 (D.V.I. 2015)(instructing that a habeas
petitioner must “affirmatively prove prejudice”). Based upon the available
trial record, however, the Superior Court did not err by finding that Cascen
failed to show that the jury heard anything and as a precaution, the trial
court excused the jury. (JA274) Therefore, an evidentiary hearing was
unwarranted, and this Court should affirm the Superior Court’s judgment.
B. The Superior Court did not err by finding in the context of the entire trial, trial counsel’s failure to object to certain comments made by the prosecutor during closing did not amount to ineffective assistance of counsel
The United States Supreme Court has held that on habeas review a
prosecutor’s comments during closing argument must so “infect the trial
with unfairness as to make the resulting conviction a denial of due process.”
Darden v. Wainwright, 477 U.S. 168, 180, 106 S. Ct. 2464, 2471 (1986). “It
is not enough that the prosecutor’[s] remarks were undesirable or even
universally condemned.” Simon, 116 F. Supp. 3d at 556. “[T]he reviewing
court must examine the prosecutor's offensive actions in context and in
light of the entire trial, assessing the severity of the conduct … and the
quantum of evidence against the defendant.” Id. (quoting Moore v.
Morton, 255 F.3d 95, 107 (3d Cir. 2001) (internal quotation marks
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omitted)). Furthermore, “[a] prosecutor's comments during closing
argument warrant a mistrial only if the remarks were improper and the
remarks prejudiced the substantive rights of the accused.” People of the V.I.
v. Amedee, 2010 V.I. LEXIS 84, at *13 (Super. Ct. Nov. 16, 2010).
Here, the Superior Court examined six allegedly objectionable
statements made by the prosecutor during the People’s closing argument
and found that by-in-large the comments fit within the People’s theme of
“roaring silence” (i.e. the absence of evidence in the People’s case-rather
than serving to frighten the jury). (JA900-JA905) The Superior Court
found that when viewed considering all the evidence presented at trial and
in context of the closing argument, trial counsel’s failure to object to
specific remarks did not constitute ineffective assistance of counsel.
(JA905)
Specifically, first trial counsel objected to the prosecutor’s statement
that “[Dooly]3 knows that this gonna be a murder case and his life will be in
danger if he cooperates and they find out about it. He did not want to go the
police, the regular police, that word might get out that he’s cooperating.”
(JA695). Upon the objection the trial court admonished the prosecutor to
3 Both the victim and his father’s name was/is Christian Soto. The father’s name is Christian Soto Jr. and his son’s name was Christian Soto, III. The elder Soto has been referred to as “Dooly”, his nickname, and the People do so here for clarity.
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keep his remarks to the testimony as it was stated rather than inferring
certain things. (Id.) To which, the prosecutor responded that his comments
were a reflection Dooly’s actual testimony. Id. An examination of Dooly’s
testimony bears this out:
Q. Okay. Do you know how long it was before you went in and gave a full statement?
A. I don’t know the exact date, but when my brother came, he took me there to the Attorney General’s office. We say we gonna place the case there in the attorney general’s hand; not in the police station in the police hands.
Q. And why was that?
A. Because in the police station is so easy for somebody to find out what they are being up against, some of these cops and gon’ go and say this, that beginning, that, that. Then somebody come and get me.
Q. Why was that a concern for you?
A. Because it’s a murder case. People know when someone get killed the person might not want to take the blame, so they gon’ try and get me kill, so I listen when my brother talk to me everything. He say man, you keep quiet. I am coming there. When I come there, we is going to deal with it. …
(JA162-JA163)
The Superior Court correctly found that trial counsel committed no
error here and that trial counsel was not constitutionally ineffective.
Next, the Superior Court noted that Cascen argued that the
prosecutor improperly commented that Knowles “came to court [but was]
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afraid to make [a] statement [about her life being threatened] in Cascen’s
presence.” (JA903) The Superior Court’s review of the transcript, revealed
that during closing argument the prosecutor told the jury that Knowles had
identified Cascen as the shooter on September 7, 2008 to the police and
FBI after receiving death threats. (JA903) Then the prosecutor recounted
that Knowles refused to identify Cascen as the shooter at trial. (JA903) The
prosecutor further summarized the testimony of Detective Braithwaite and
FBI Agent Tom Drummond who stated that Knowles told them that she had
seen David Phillips driving the black truck on September 7, 2008, and two
months prior, Cascen told her that he intended to kill Cyril Peters. (JA686-
JA689) The Superior Court then noted that the prosecutor then tried to
explain the discrepancy by stating “but when she came to court, she’s afraid
to make that statement in the Defendant’s presence.” (JA689, JA903). Trial
counsel immediately objected. The prosecutor then rephrased, stating “She
refused to make an identification in the courtroom despite her prior
statement.” (Id.) Here, trial counsel’s effective objection caused the
prosecutor to rephrase his statement and move on to summarize the
testimony of another witness. (Id.)
In the context of the entire trial, moreover, the prosecutor’s brief
comment was not such as to infect the entire proceeding and deny Cascen a
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fair trial. Further, trial counsel made a proper objection. Therefore, the
Superior Court did not err by finding that trial counsel was not
constitutionally ineffective regarding the second complained-of comment.
Third, Cascen argued that the prosecution improperly commented
that Wayne Christian “did not want to testify” and then asked rhetorically
“why is that?”, and fourth, Cascen argued that the prosecutor improperly
commented that Leonardo Rodriguez was seen at the crime scene but at
trial testified that he “didn’t see nothing, I don’t know a thing about it.”
(JA904) The Superior Court reviewed the trial transcript which revealed
that the prosecutor contrasted Wayne Christian’s testimony that he was just
passing through when shots were fired, with Dooly’s testimony that
Christian was sitting in the truck that the revelers were gathered around
when the shots were fired. (JA693, JA904) With respect to Rodriguez, the
prosecutor reminded the jury that his statement placed him a car length
away from the shooter’s truck and of his trial testimony that he heard shots
and ran in response. (Id.)
The Superior Court correctly found that to the extent that the
prosecutor inferred that Christian and/or Rodriguez, were afraid to testify,
did not want to testify or did not want to identify Cascen as the shooter,
such was harmless error, when weighed against Dooly’s eye-witness
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testimony and the testimony Herbert and Drummond regarding Knowles
prior inconstant statements. (JA904); and see Simon, 116 F. Supp. 3d at
556.
Fifth, the Superior Court examined Cascen’s alleged error regarding
the prosecutor’s statement in closing that Cyril Peters did not testify at trial
because “he was hiding because he doesn’t want to be here after being shot
so many times.” (JA694, JA904-JA905). Trial counsel objected and the
trial court overruled the objection. But because trial counsel objected, the
Superior Court correctly found that trial counsel was not ineffective. (Id.)
Finally, the Superior Court examined Cascen’s alleged error that trial
counsel allowed the prosecutor to indicate that all the witnesses knew that
Cascen is a cold-blooded murderer without objection. The prosecutor also
said “[T]hey know him and his crew. They know if they cooperate with
police, they are dead.” (JA693)
In the context of the prosecutor’s entire closing argument, he was
explaining Cyril Peters’ conspicuous absence from the trial and
summarizing the testimony of all the previous witnesses whose testimony
were inconsistent either with prior statements or the facts of the case. He
recounted Det. Herbert’s testimony that he contacted Peters on the phone
and advised him that the People needed him in the Virgin Islands to appear
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as a witness. But Det. Herbert could not locate Peters and Peters refused to
disclose his location. (JA694) These statements fit within the theme of the
prosecution’s closing to explain the lack of certain evidence.
The Superior Court correctly found that the prosecutor was not trying
to appeal to the jury’s emotions and prejudices. Cf. Francis v. People of the
V.I., 59 V.I. 1075, 1080 (V.I. 2013)(finding that the prosecutor homosexual
comments during closing was intended to appeal to the jury’s emotions and
prejudices, but nonetheless finding that the fleeting comments were not
grounds for a new trial).
Moreover, trial counsel had made several objections during the
prosecutor’s closing, some objections the court sustained, some caused the
prosecutor to rephrase his statement. But the trial court overruled trial
counsel’s immediate past objection. Contrary to Cascen’s assertion,
however, this final statement was the only statement the prosecutor’s
closing to which trial counsel did not object.
Furthermore, the evidence against Cascen was strong. Dooly testified
that he knew Cascen since Cascen was a child. (JA141) Cascen and Dooly
were neighbors; Cascen would pass Dooly’s residence at least twice a day
and they would exchange pleasantries. (JA148) Cascen would call out ‘hey
jockey”, and Dooly would reply “yeah father.” (JA149) Dooly testified that
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Cascen held the gun in his left hand. (JA150) And, in fact, Cascen is left-
handed. Dooly knows Cascen; he was feet away from him when Cascen shot
Christian. He picked Cascen out of a six-person photo array. (JA165-JA168)
Dooly further testified that he saw the same black truck from which Cascen
emerged parked in front of Cascen’s house three days after the shooting.
(JA174-JA176). Additionally, FBI Agent Drummond testified that Knowles
identified Cascen as the shooter in an interview. (JA620)
This Court has consistently held that “[i]f trustworthy, a single
positive eyewitness identification may be sufficient proof of guilt, even if it
is contradicted by the accused or by alibi testimony. And see Connor v.
People of the V.I., 59 V.I. 286, 290 (V.I. 2013) (“ ‘[I]t is well established at
common law … that ordinarily the testimony of one eyewitness is sufficient
for the purpose of identification of the perpetrator of the crime.’ ”) (quoting
United States v. Levi, 405 F.2d 380, 382 (4th Cir. 1968)).
In the context of all the evidence adduced at trial, Cascen cannot
show that there is a reasonable probability that had trial counsel objected to
this final statement, the results of his trial would have been different.
Likewise, trial counsel was not constitutionally ineffective for failing to
request a mistrial. Therefore, the Superior Court did not err by finding that
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trial counsel was not ineffective regarding his treatment of the prosecutor’s
closing argument. Accordingly, this Court should affirm the Superior Court.
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C. The Superior Court did not abuse its discretion by holding that trial counsel was not constitutionally ineffective when producing impeachable witnesses
Here, the Superior Court examined trial counsel’s strategic choice to
call six witnesses on behalf of Cascen and correctly found that Cascen has
not satisfied his burden to show that trial counsel committed constitutional
error.4 The Superior Court found Cascen’s argument that trial counsel
should have known that the minimal benefit that these witnesses presented
would have been outweighed by damaging evidence brought out on cross-
examination to be without merit.
On appeal, Cascen has similarly failed to show that the Superior
Court committed reversible error. Specifically, Cascen has failed to show
that trial counsel’s presentment of these witnesses could never be
considered sound trial strategy.
“Generally, ‘the determination whether to call a witness lies soundly
with trial counsel, not the defendant.’” Simon, 116 F. Supp. 3d at 555
(quoting United States v. Cleve-Allan George, 2011 U.S. Dist. LEXIS
124280 (D.V.I. Oct. 26, 2011). Under Strickland, this Court must presume
4 On appeal, Cascen has only argued that trial counsel was ineffective for calling three witnesses, Tracelyn Bradshaw, Estalita Davis and Karima Gaskins. (Appellant’s Brief, pp. 22-25) Therefore, Cascen has abandoned his claims of alleged error regarding the other three witnesses, Jonathan Cepeda, Dooly and Detective Fred Braithwaite.
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that, under the circumstances, a challenged action might be sound trial
strategy. Id. In order for Cascen to overcome this presumption, he must
show either that “(1) the suggested strategy (even if sound) was not in fact
motivating counsel, or, (2) that the actions could never be considered part
of a sound strategy.” Id. “Surmounting Strickland's high bar is never an
easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1484
(2010); see also Strickland, 466 U.S. at 690 (“[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.”).
The People adduced testimony at trial that suggested that after Peters
ran from his car, Cascen ran after him, shooting him in the leg and shooting
him several other times as he cowered in a bush. (JA253) Trial counsel
called Tracelyn Bradshaw to testify about her work as nurse at the Bureau
of Corrections. (JA519-JA520) Bradshaw testified that in the Bureau of
Corrections infirmary she observed Cascen when he came there to
reschedule an appointment with the doctor regarding a gunshot would he
suffered to his foot that caused him to limp and prevented him from
running. (JA520) In contrast to the People’s evidence, the Superior Court
reasoned that trial counsel adduced Bradshaw’s testimony to show that
Cascen could not run and walked very slowly with a limp. (JA906). On
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cross-examination, however, the prosecutor elicited testimony that
Cascen’s need for medical attention arose from a prior shooting incident.
(JA522)
On appeal, Cascen presents no argument that suggests that trial
counsel’s decision to call Bradshaw to counter the prosecutor’s evidence
regarding the shooting could never be considered sound trial strategy and
thus trial counsel was not ineffective.
Trial counsel also called Estalita Davis to present evidence that an
individual known as “Dave from La Grange” was the shooter, not Cascen.
Davis testified that after the shooting she was at the hospital with Bradshaw
and Knowles. (JA523-JA524) She further testified that she overheard
Knowles call Christian’s mother on Bradshaw’s cellphone and state: “miss,
I’m sorry. I’m going to do the right thing . . . She said, ‘it’s Dave from La
Grange.’” (JA526-JA527) On cross examination, however, the prosecutor
asked Davis if when giving Detective Herbert a statement one month after
the shooting she stated that she had heard anything regarding Cascen.
(JA531) The Superior Court noted that trial counsel immediately objected.
(JA907) The prosecutor argued that Davis’s possible bias permitted him to
cross-examine Davis regarding that possible bias. The court then overruled
trial counsel’s objection. (Id.) The prosecutor was able to elicit testimony
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from Davis that she heard that Knowles and Cascen were having an affair.
Again, trial counsel objected that this question was beyond the scope of
direct, which was overruled. (JA531-JA532)
For the first time on appeal, however, Cascen argues that trial counsel
stated the wrong grounds for his objection. (Appellant’s Brief, p. 22).
Specifically, Cascen argues that the proper objection would have been
hearsay instead of beyond the scope. (Id.) However, in his Petition, Cascen
states that trial counsel failed to object at all. (JA826) The People submit
that Cascen has waived this argument pursuant to V.I. R. App. P. 22(m) But
see Ledesma v. Gov't of the V.I., 2019 V.I. Supreme LEXIS 47, at *8 (Dec.
12, 2019)(applying a more lenient waiver standard in habeas proceedings in
the interest of judicial economy).
The People submit further that it is unreasonable for this Court to
expect that trial counsel would have anticipated that Davis would have
testified to a rumor regarding Knowles and Cascen given the limited
purpose of her direct testimony. Further, as the Superior Court noted, trial
counsel immediately attempted to limit cross examination with objections.
Even if this Court finds that trial counsel stated the wrong grounds for his
objection, Cascen cannot show that had trial counsel stated the proper
objection the results of his trial would have been different if the jury had
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not heard the irrelevant question and equally irrelevant answer. See e.g.
Imbach v. Clark, 2012 U.S. Dist. LEXIS 109948, at *131 (C.D. Cal. Jan. 10,
2012)(denying habeas relief where appellant failed to show that there was
no reasonable basis for the habeas reviewing court to deny relief on a claim
of improper trial objection). The adequacy of trial counsel's representation
is based on the totality of representation rather than by isolated acts or
omissions.
Finally, Cascen argues that trial counsel was ineffective by calling
Karima Gaskins as an alibi witness. On direct examination, Gaskins
testified that Cascen was with her from 9:00 p.m. to 11:00 p.m. on
September 7, 2008. (JA585-JA587) On cross-examination, however, the
prosecutor was able to get Gaskins to express doubt regarding the time that
Cascen was with her. (JA588-JA592) On redirect, trial counsel attempted
to rehabilitate Gaskin’s testimony by having her confirm that Cascen was
with her from 9:00 pm to 11:00; and, since she was not present at the
shooting, she did not know when it occurred. (JA596-JA597) The
prosecutor and trial counsel recrossed and redirected Gaskin again with the
prosecutor attempting to cast doubt on her recollection of the timeline and
trial counsel attempting to confirm it.
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The Superior Court correctly found that trial counsel, in fact, had an
obligation to call a credible witness who could establish an alibi for Cascen.
(JA910) Furthermore, Gaskins may have been Cascen’s strongest witness.
Cascen has not specifically argued, and cannot show, that had trial counsel
not called Gaskins as a witness, the result of his trial would have been
different. Therefore, Cascen has failed to show how trial counsel’s calling of
a credible alibi witness was constitutionally ineffective. Consequently, the
Superior Court did not err in its review.
D. The Superior Court properly found that the trial judge’s criticism of trial counsel did not result in prejudice to Cascen
Here, Cascen argues that trial counsel’s performance was so deficient
that he forced the trial court to assume the role of advocate. (Appellant’s
Brief, p. 25). Specifically, Cascen complains of trial counsel’s cross
examinations of Maurice Cooper, Detective Herbert, and Detective
Matthews. (Appellant’s Brief, pp. 25-27).
The United States Supreme Court has stated that a litigant must scale
a high bar to demonstrate that the conduct of the trial judge has prejudiced
the trial against him. In Liteky v. United States, 510 U.S. 540, 555-56, 114
S. Ct. 1147, 127 L. Ed. 2d 474 (1994), the Court stated that:
[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to,
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counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . .. Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration—even a stern and short-tempered judge's ordinary efforts at courtroom administration—remain immune.
United States v. Bencivengo, 749 F.3d 205, 216 (3d Cir. 2014)5
Here, the trial court’s comments regarding Maurice Cooper’s
testimony and its questioning of Cooper amounted to a clarification of
Cooper’s ballistics testimony and does not in any way exhibit bias. (JA377)
Bencivengo, 749 F.3d at 216 (citing United States v. Hynes, 467 F.3d 951
(6th Cir. 2006) (no reversible error where the district judge, among other
things, “interrupted defense counsel to ask him to clarify his questions, to
avoid an argumentative tone with a witness, [and] to proceed to a different
topic because the one in question had been exhausted . . . .”) Similarly, trial
counsel asked the court to direct Detective Herbert to answer his question.
5 While the decisions of the Third Circuit are not mandatory authority on this Court, the Respondents submit that federal authority is persuasive since this Court has yet to rule on this issue.
03/16/2020
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To which, the trial court responded calmly “I thought he was responding.
Maybe not responding the way you wanted him to, but he was responding.”
(JA313).
Even if this Court were to deem the trial court as impatient, this
exchange does not exhibit bias resulting in prejudice to Cascen. As the
Third Circuit has noted, “[H]owever, the trial judge is not forbidden from
participating in the conduct of a trial, as ‘a trial is not a contest but a search
for the truth so that justice may be properly administered.’ United States v.
Wilensky, 757 F.2d 594, 597 (3d Cir. 1985)(quoting United States v. Beaty,
722 F.2d 1090, 1093 (3rd Cir. 1983).
The Wilensky Court held that “in order to reverse on grounds of
excessive judicial intervention, the record must either ‘disclose actual bias
on the part of the trial judge (or) leave the reviewing court with an aiding
impression that the judge’s remarks and questioning of witnesses projected
to the jury an appearance of advocacy partiality.’” Id. at 598 (quoting
Warner v. Transamerica Ins. Co., 739 F.2d 1347, 1351 (8th Cir. 1984)).
However, the Third Circuit found after reviewing the record, the defendant
was not denied his Sixth Amendment right to counsel or Fourteenth
Amendment right to due process. Id.
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Here, after trial counsel attempted to highlight weaknesses in Detective
Cooper’s ballistics testimony with questions regarding comparisons of shell
casings without a gun, the trial court made the following statement:
Counsel it is very clear that he has testified he had no firearm to compare the cartridge’s with. All he is saying is that the two cartridges were fired from the same firearm. There is no attempt to link the cartridges to any firearm.
(JA374-JA380)
The Superior Court correctly characterized this statement as a clarification
of Cooper’s testimony for the jury to ensure they understood the probative
value of his testimony. (JA920) The Superior Court found that the trial
court had not exhibited any bias or partiality. On appeal, Cascen has failed
to present an argument that plausibly shows that the trial court exhibited
bias under any interpretation of its actions.
Cascen also claims that the judge took on the role of advocate
regarding trial counsel’s cross-examination of Detective Matthews.
(Appellant’s Brief, pp. 26-27). Trial counsel cross-examined Detective
Matthews on the statements that he took after the shooting at the hospital.
(JA446-447) Trial counsel asked Detective Matthews if he remembered
Cepeda identifying Cascen in a photo array and saying the name “Colly
Cascen.” (JA447) Detective Matthews then testified: “Yeah, because that’s
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the focal point of the investigation.” (JA448) Trial counsel then asked: “As a
matter of fact, you all, the detective bureau has been focusing on Mr. Colly
Cascen for a while, right?” (Id.) Detective then uttered the following
unresponsive statement: “He’s come up in several other cases.” (Id.) As the
Superior Court noted, the trial court immediately interjected:
That answer would be stricken from the record and the jury will ignore it. He [trial counsel] wasn’t talking about any other case. He was talking about this case.
(JA906)
The trial court struck an obviously non-responsive and prejudicial
comment from Detective Matthews. The trial court was not required to wait
for an objection from trial counsel to strike obviously improper testimony.
Additionally, Cascen’s reliance on United States v. Nobel, 696 F.2d
231 (3d Cir. 1982) is misplaced. Nobel involved the issue of whether a trial
judge should have recused himself after he revealed that he owned stock in
the victim. In affirming the conviction, the Court of Appeals for the Third
Circuit noted that the defendant did not object to the judge’s tone of voice
or other behavior at trial, and, in fact its examination of the record did not
lead to the conclusion that the trial judge’s tone or conduct deprived the
defendant of a fair trial. Id. Similarly, in United States v. Price, 13 F.3d 711,
724 (3d Cir. 1994), also cited by Appellant, the Third Circuit held that the
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conduct of the trial judge “did not overstep the bounds of prudent judicial
conduct.” Id.
The Superior Court correctly found that the trial court did not
overstep its bounds in each of the foregoing instances. Therefore, he has
failed to show that but for any of these imagined errors the result of his trial
would probably have been different. Consequently, he cannot show he
suffered prejudice and that trial counsel was constitutionally ineffective.
Therefore, this Court should affirm the Superior Court’s decision.
E. This Court has not adopted the Cumulative Error Doctrine; nevertheless, trial counsel’s errors did not cumulatively demonstrate ineffective assistance of counsel
This Court has not adopted the cumulative error doctrine. Joseph v.
People of the V.I., 60 V.I. 338, 355 n.11 (V.I. 2013); and see Simmonds v.
People of the V.I., 59 V.I. 480, 504 n.16 (V.I. 2013). Nevertheless, even if
this court had adopted the cumulative error doctrine, this case does not
present “‘the unusual case in which synergistic or repetitive error violates
the defendant's constitutional right to a fair trial, . . ..’” Id. The Third
Circuit, however, has recognized “that errors that individually do not
warrant habeas relief may do so when combined.” Albrecht v. Horn, 471
F.3d 435, 468 (3d Cir. 2006).
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Here, however, Cascen has not enumerated which alleged errors
cumulatively demonstrated ineffective assistance of counsel. (Appellant’s
Brief, pp. 28-29). Furthermore, as found by the Superior Court, when
weighing the alleged errors discussed herein against the evidence of
Cascen’s guilt presented at trial, Cascen suffered no prejudice and the
alleged errors did not deny his right to fair trial. Joseph, 60 V.I. at 355 n.11.
The Superior Court correctly found that Cascen had not satisfied
Strickland’s high bar on any of the alleged errors of trial counsel. (JA928)
Furthermore, as the Superior Court noted, “the record shows that not only
had harmless error not resulted from trial counsel’s actions, but in most
instances trial counsel made no error. (Id.)
Specifically, as argued in Point II, B, supra,6 the Superior Court found
the evidence of Cascen’s guilt overwhelming. The People presented
evidence of Cascen’s premeditation, and credible eye-witness testimony
from someone who had known Cascen most of his life. Thus, Superior
Court did not err by finding that the weight of this evidence demonstrating
Cascen’s guilt was far greater than any imagined errors attributed to trial
counsel. Accordingly, this Court should affirm the Superior Court.
6 Appellee’s Brief, pp. 20-21.
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POINT III
THE SUPERIOR COURT DID NOT ERR BY FINDING THAT CASCEN FAILED TO SATISFY HIS BURDEN TO SHOW THAT APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE
The Sixth Amendment entitles a criminal defendant to the effective
assistance of counsel during his first appeal as of right under the Strickland
standard. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985). The United
States Supreme Court has recognized the superior ability of trained counsel
in the “examination into the record, research of the law, and marshalling of
arguments on [the appellant's] behalf.” Jones v. Barnes, 463 U.S. 745, 751,
103 S. Ct. 3308, 3313 (1983). Id. Justice Jackson, after observing appellate
advocates for many years, stated:
One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . .. [Experience] on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.
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Id. (quoting Jackson, Advocacy Before the United States Supreme Court,
25 Temple L. Q. 115, 119 (1951))
Here, Cascen argues that appellate counsel was ineffective simply
based upon the fact that this Court noted that counsel waived the issue of
improper comments made by the prosecutor during closing statements.
Cascen, 60 V.I. at 400 n.3. But Cascen failed to examine the issues that
appellate counsel did raise, which the Superior Court reviewed that were far
more promising arguments on appeal. Of the arguments raised by appellate
counsel, the Confrontation Clause argument was the strongest followed by
the argument against transferred intent for third-degree assault. (JA963-
JA967) In fact, this Court previously reversed two of Cascen’s convictions.
Cascen, 60 V.I. at 408-413.
On the other hand, the argument regarding the prosecutor’s improper
comments was a relatively weaker argument because, as argued in Point II,
B, supra7, the prosecutor’s comments did not deny Cascen of a fair trial. In
fact, this Court found the evidence of Cascen’s guilt was strong and
affirmed his convictions of first-degree murder and reckless endangerment.
Cascen, 60 V.I. at 400-408.
7 Appellee’s Brief, pp. 14-21.
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38
Similarly, Cascen’s argument that he was prejudiced by the trial
court’s decision to sequester the jury had little chance of success. Evidence
adduced at trial showed that fear intimidation was part of Cascen’s modus
operandi. In fact, when on the morning before the jury was to retire to
deliberate, Juror No. 11 brought to the judge’s attention that a black truck
was seen loitering outside her home, the judge acted well within his
discretion to sequester the jury and free them from any outside influence.
United States v. Shiomos, 864 F.2d 16, 18 (3d Cir. 1988) (citing Holt v.
United States, 218 U.S. 245, 251, 54 L. Ed. 1021, 31 S. Ct. 2 (1910); cf.
United States v. De Peri, 778 F.2d 963, 972-73 (3d Cir. 1985) (refusal to
sequester not an abuse of discretion).
Moreover, a trial court’s decision to sequester a jury is a neutral one,
the benefit of which inures neither to the People nor the defendant.
Shiomos, 864 F.2d at 18. Consequently, the likelihood that this Court would
have found that the sequestration of the jury in this case denied Cascen of a
partial jury is miniscule.
This Court must, as did the Superior Court, defer to appellant
counsel’s decision regarding which issues that he chose to raise on appeal
pursuant to Strickland and Jones v. Barnes, supra. Accordingly, this Court
03/16/2020
39
should not find that appellate counsel was constitutionally ineffective for
choosing not to raise this issue.
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CONCLUSION
For all the foregoing reasons this Court should affirm the Superior
Court’s denial of Appellant’s denial of the Writ of Habeas Corpus.
Respectfully Submitted,
DENISE N. GEORGE, ESQ.Attorney General
PAMELA TEPPER, ESQ.Solicitor General
Dated: March 16, 2020 By: /s/ Ian S.A. Clement_____IAN S.A. CLEMENT, ESQ.Assistant Attorney GeneralAttorney ID No. R-2089Virgin Islands Department of Justice34-38 Kronprindsens GadeGERS Complex, 2nd FloorSt. Thomas, USVI 00802(340)774-5666 ext. 10112
03/16/2020
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CERTIFICATE OF BAR MEMBERSHIP
IAN S.A. CLEMENT, Counsel for the Appellees, certifies that he is a
member in good standing of the bar of the Supreme Court of the Virgin
Islands.
/s/ Ian S.A. Clement_____
CERTIFICATE OF FILING AND SERVICE PURSUANT TO V.I.S.CT.R. 15(d)
I certify that on March 16, 2020, the undersigned caused a true
correct copy of the foregoing Appellees’ Brief to be efiled pursuant to the
Rules of the Virgin Islands Supreme Court Jeffrey Moorhead, Esq., counsel
for Appellant.
/s/ Ian S.A. Clement_____
03/16/2020
42
CERTIFICATE OF WORD COUNT PURSUANT TO V.I.S.CT.R. 22(f)
I certify that Pursuant to V.I.S.CT.R. 22(f) the total word count of
foregoing brief is 7632 words.
/s/ Ian S.A. Clement_____
03/16/2020
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