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.

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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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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

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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

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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

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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