Kishawn Smith v. Government of the Virgin Islands Office of the Attorney General USVI Bureau of Corrections

IN THE SUPERIOR COUR1 OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST IOHN *************

KISIIAWN SMITH ) ) CASE NO ST 2020 MC 00034 Petitioner, ) ) vs ) PE FITION FOR WRIT OF HABEAS ) CORPUS GOVERNMENT OF THE VIRGIN ISLANDS ) OFFICE OF THE ATTORNEY GENERAL ) U S V I BUREAU OF CORRECTIONS ) n AL ) ) Resgondents )

Cite as 2024 VI Super 21U

MEMORANDUM OPINION AND ORDER

$11 THIS MATTER is before the Court onpz 0 :8 Petitioner Kishawn Smith’s (“Smith ’) Motion for Extraurdinary Writ of Habeas Cutpus ( Motion ) filed Septembet 17 2020 The L lerk ofthe Court donketed the Motion as a separate civil action Tltcrctore, the Motion will be treated as a Petition for Writ ofHabeds Corpus ( Petition )

1T2 For the redsons set forth below, the Court will deny the Petition as Smith has not made a puma {mu showing that rclict should be granted

1 INTRODUCTION

1]? In support of his Petition that a wtit of habeas corpus should issue Smith states that he was tried and convicted “approximately 14 years ago ’1 Smith atgues that his conviction “raises a constitutional violation 2 Smith mites

[t]hus tor relevancy 0f the tact of argument within the I ealm of this ltabLas corpus motion, the issues of Miranda Rights being presented during the midst of trial Also Petitioner argues that there was Proseuutonal Misconduct Ineffective Assistance of Counsel, and Improper Juror Instructions in the jury tnal 1

114 Smith states that he was arrested on August 7, 2006 and sentenced on April 30, 2007 on Count [I of the charges, carrying an unlicensed thearm during the commission of a second degree murder, Count III of the charges, second degree murdet, and Count IV, unauthonzed possessian 0t

‘ Pet r s Mot 2 Smith \\ as sentenced m 2007 now seventeen (17) years ago , Pet r s Mot 3 ‘ Pct'r : Mo! 3

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ammunition 4 Smith states on the night ofhis driest he waived his Mu am/a rights, answered two (2) questions (“Do yuu know the victim? ‘ “Do you live in Estate Thomas ’ ) and then invoked his 6'“ Amendment right asking for an attorney 5 Smith states that while handcufling Smith and leading him out ofthe interrogation room, a singular detective made an unsolicited comment asking ifhc drives a green Suzuki Esteem and if his nickname is “Captain" and that the “detective should have known that [Smith], who had previously tequested Lounsel would answer the questions, violating his Mlmndzz rights 6 Smith states that this additional questioning violated his 6‘" Amendment rights 7 Smith asserts that at trial the detective was asked ifhe asked him any questions and the detective testified to the two (2) questions he was asked before invoking his 6‘h Amendment right K Smith W! ites that he took the stand in his defense and was asked the same questions and defense counsel objected the Court held a sidebat and the judge gave instructions to the juiy and struck the testimony but the prosecutor asked the questions again 9

{(5 Smith argues that his incitcctivc assistance ofuounsel Liaim is based on the grounds that the attorney didn t object when the prosecutor asked the Mlnmda questions again atter thejudgcjust gave the jury instructions and told him and the prosecutor that he can’t infer of [sic] ask those questions again to Smith also states that both prosecutors made references to Smith saying he drove a green Suzuki Esteem ‘ (01 impeaLhment purposes” afier being told not to do so, the trial judge did not give a Lurative instruction, and his appellate counsel should have brought up this argument on appeal ‘1 Smith avers that his eiaim for proseuutorial misconduct is “based on the repeated interence made by the prosecutor, well aflcr the fact that Petitioner invoked his Mmmdn rights ”2 Finally, Smith asserts that the prosenuturs tainted his trial by vouching fot the credibility of witnesses and expressing his personal opinion conceming the guilt ()fthe accused '3

116 Procedurally, Smith has aheady appealed his conviction, asserting that the evidence presented at trial was insufficient to sustain his convictions M The Virgin Islands Supreme Court found that ‘ the evidence is sutficient to sustain Smith’s convictions for second degree murder and possession of an unlicensed firearm However, because the People failed to present sufficient evidence that Smith was not authorized to possess ammunition, his conviction on that chatge ’ was reversed 1‘

‘ Pet r 5 Met 3 4 5 Pet r s Mm 4 6 Pet r s Mm 4 7 Pet r 5 Mol S 7‘ Pet r s MOI 5 9 Pet I s Mot 5 The (curt notes that this account does not indiLate a Allrlmdll violation at trlai on its face l0Pet r sMot 5 6 “ Pct: sMot 6 '1 Pct I sMol 6 '3 Pet r s Mm 6 "‘ Emu)” Pawn oft)“ I I 51 V I 396 (V1 2009) K It, at 397

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II I EGAI STANDARD

A Petition for writ ofhaheas Lnrpus

117 ‘ Habeas corpus is an equitable remedy employed when a person’s conviction involved a constitutional violation ‘6 “Locally, section 3 01 the Revised OrganiL Ant establishes the use 01 writs ofhabeas earpus under Virgin Islands law ’ '7 Pursuant to Virgin Islands Habeas Corpus Rule 2(4), “[d]ny person who believes he or she is unlawfully imprisoned 0r detained in custody, or confined under unlawful Cunditions,1nay file a petitinn for a writ nfhaheas corpus to seek review 01 the legality ofthat imprisonment m detention Rule 2(a)(4) further states that a petition for 21 W1 it of habeas corpus must ‘ set forth separately eaLh ground on which the imprisonment or detention is alleged to be illegal and shall state the speeifie facts supporting each ground ”

118 V 1 CODE ANN tit 5 § 1302 states that

Application for the writ of habeas Lurpus shall be made by petition signed eithei by the party fer whose reliefit is intended or by some pelson in his behalf The petition shall comply with the following requirements (1) It shall specify that the person in whose behalf the writ is applied for is imprisoned or 1 estrdined ufhis liberty and the ott‘tccr or person by whom, and the place where he i§ so confined 0r restrained, naming all the parties it they are known, or describing them if they are not known (2) Ifthe imprisonment is alleged to be illegal, the petition shall state in what the alleged illegality consists (3) The petition shall be verified by the oath 0fthe party making the application

119 When presented with a procedurally compliant habeas petition, this Court “must first determine whether the petition states a prima fade case for relief that is, whether it states facts that, if true, entitle the petitioner to relief and also whether the stated claims are for any reason proeedurally barred "‘8 A petitioner makei a prima tacie ease by stating ‘speeifie factual allegations whieh require habeas reliefrather than mere conclusions ofspeculations ”19 “It the court determines that the petition does not state aprmw fame ease for relief or that the claims are all procedurally barred the noun will deny the petition outright 71) However it it appears that the writ ought to be issued, the Superior Court shall grant the petition for writ of hdbeds corpus without delay 2' The

‘5 Burl»: \ Pimp” 2019 V16 11 11 (Citing Kuhlmmm 1 Wilton 477 U S 436 447 (1986)) l7{.1 (citing Rum: Munmn Gov 10/1/11» Vngmlslnndt 61 v1 279 292 (VI 2014)) ‘3 BmALt HL/but Super Cl C“ No 5X15 CV 513 2017 WL 5502954 211* 1 [VI Super Ct NOV 14 2017) (unpublished) (quolmg Rnua Morena 1 Got 1mm: 1" gm Islands 61 v1 279, 311 (V 1 2014) "11mm,“ 0m mm“ VHgm [\lzmzls Super Ct (,1). No s1 16 M( 47 2018VI LEXIS 54 at*4(Vl Super (1 June 20 2018) (quoting V I H L R adusnry committee a note) (unpublished) °Smwnt Villlgmt Supet (t (.iv N0 5X [5 CV 278 2018\71 lEXlS 97 at*4(VI Super Lt Sept 1‘} 2018) 'III (quoting from R1101: Manna \ (701 I 0/1/10 lug!“ [1/(Iml't 61 V1 279 311 (V I 2014) (internal citations and

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Court can deny the writ efhabeas corpus ifthe petitioner has not met the pnma [awe standatd ””1

B Muamln rights {[10 As this Court outlined in Pcnplc of the VI v Nammn U

In Mutmdn I A11_0na 384 U S 436 478 79 86 S Ct 1602 16 L Ed 2d 694 (1966) the noun held

when an individual is taken into etlstody or otherwise deprived ufhis freedom by the authorities in any significant way and is subjected to questioning the privilege against self incrimination iejeopardized Procedural safeguards must be employed to proteet the privilege and un1ess ether fully effective means are adopted to notify the person 0thi51ight0f5i1enee and to assure that the exercise 01 the right wi1l be scrupulously honmed, the following measutes are requited He must be warned prior to any questioning that he has a right to remain silent, that anything he says can be used against him in a court of law that he hd> the right to the presence of an attorney, and that if he cannot aftord an attorney one must be dfferded to him thtoughnut the interrogation Afier such warnings have been given, and welt 0pp01tunity afforded him, the individual may knowingly and intelligently waive these rigth and agree to answer questions or make a statement

Moreover in Mlehtgzm t Mosley 423 U S 96 104 06 S Ct 321 46 L Ed 2d 313 (1975) the court held that the ddmissibihty of statements obtained after the person in custody has decided to lemain silent depends under Miranda [51L] on whether his ‘right to cut oft questioning was ‘scrupulously honored ‘ ‘ In determining whether d. defendant 5 “right to cut 0ft questioning” was hemmed, the Supreme Court in Mosley considered the following 1) the amount of time that passed before questioning resumed; 2) whether the next intenegation was conducted by the same officer Defendant had informed that he was invoking hie tight to remain silent; 3) whether Defendant was given a new set of Miranda wamings at the subsequent interrogation, 4) and whether the second interrogation addressed a crime that had not been a subject 01 the eat her interrogation ” 1d at 106 However, it is important to note that these factors are not necessarily dispositiw Unwed Stalev v Lajfer 1» 503 F 3d 293 303 (3d Ur 2007)

Additionally in People afthe VI \ hum 50 V1 905 910 (D VI 2008) the

quutatmm omitted) [d xSuperCl Can: No SI 2010 (R 00065 2010 \ l 1FX1S 37 (V 1 Suer Ct May 24 2010)

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court concluded that ‘[t]hc scrupulously honored standard tequires the government to abstain tram questioning a suspect unless he (1) initiates further conversation, and (2) waives the previously asserted right to silence 2“

C Prosecutorial misconduct

1111 [n Dam: v People,“ the Virgin Islands Supleme Court laid out the legal standard and analysis at proseeutorial misconduut claims

A claim of piosecutorial misconduct during trial requires a noun to resolve two questions whether the piosecutor 5 comments were in fact improper and it so, whether the remarks p1 ejudiccd the defendant 5 right to a fair trial Afier considering the entire trial proceeding, reversal will result it the misconduct so inflected the trial with untaimess as to make the resulting conviction a denial of due process

In analyzing whethel reversdl is warranted, this Couit considers the bLOpe ufthe objectionable comments and theii relationship tu the entire proceeding, the ameliorative effect of any curative instructions given, and the strength of the evidence supporting the defendant 5 conviction When a jury is given an instruttion, including a curative instruction, the pi esumption is that thejury will follow the instruction If we determine that the People did engage in miscondutt, we will reverse unless the error is hamlless Under the harmless error analysis, it the error is constitutional, we will affirm only ifwe find that the en or is harmless beyond a reasonable doubt while ifthe emit is non constitutional we will affirm when it is highly probable that the error did not contribute to tthudgment 2"

D Ineffective assistance of counsel

1112 In Pond] t P( 01115,,7 the Virgin Islands Supreme Court stated that to prevail on d claim 0t ineffeLtive assistance Ofcounsel, the petitionei must show that “counsel’s performance tell below an objective standard at reasonableness and that counsel’s performance prejudiced [him or her] resulting in an unreliable or fundamentally unfair outcome in the proceeding ‘23 The Virgin Islands Supreme Conn went on to note that the “proper measure of [an] attorney[’s] perfonndnce [is] simply reasonableness under prevailing protessional norms, and, therefore, review of Lounsel 5 p01 formance is geneially highly deferentidl, as there is a presumption that ‘undet the circumstances ’

" Id at *5 7 569 V[619(V12018) 7" Id at 623 (citation: umimd) 759 V I 444 (V I 2013) 3m al453 (quotlng S'mmx/uu Peopk 55 v1 485 494(VI 2011))

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the challenged action might be considered sound tridl strategy 2"

E Improper jury instructions

1113 In Rmhuck v 601 tofthe VI 3" the Virgin Islands Sup1e1ne Court stated that absent a timely objection, improper juiy instruetinus are reviewed tor elem” error 3' The Virgin Islands Supreme ( Quit lluther Stated that in detennining the adequacy 0t any jury instruction the Lourt must examine the Jury instructions as a Whole to detennine whether [a particular instruction] was misleading or inadequate to guide the jury s deliberation "m Lastly, the Virgin lsldnds Supreme Conn has held that thejury is required tu be guided by the specific final jury instnietions 011 the elements Of [a] crime, and not guided by reference to 01 1elianee upon the elements of the crime being mentioned in a ditfe1ent context elsewhere in the trial reeord "’33

Ill ANALYSIS

A Smith’s petition is prucedurally compliant

1114 Smith Writes that he is the person for which reliei is sought and that he is imprisoned at the Citrus County Detention Faeility in Leeann), Florida 34 He does not name the 01111.01 or person by whom he is imprisoned or otherwise describes them within the body ofhis Petition However, in his Affidavit In Support 0t In Formd Pduperis In Matter OfWrit OfHabcas Corpus that accompanies his Petition, and the accompanying letters he has filed regarding his Petition, he does name Wynnie Testamark, Direetor 0fthe Bureau ofCorrections, in the caption The Court as Smith proceeds pm 3e, will deem this requirement satisfied ‘5 Smith also alleges his imprisonment to be illegal and states the grounds for what the alleged illegality consists of Namely Smith alleges violations of his Miranda fights, proscentorial misconduct, ineffective assistance of counsel, and improper jury instructions Smith includes a signed oath at the end ofthe petition deelaring and certifying that the infennatinn is two and aeculate Therefore, Smith 5 Petition satisfies the requirements nfS V IC § 1302 B Alleged Miranda violations do not meet the prunafacte standard

1115 Smith ptemises his Miranda right violation 0n the alleged fdets that dfier signing a Waiver

’11] (quoting Smddlmzh Ihlthgmn 466 U S 668 688 689 (1984)) ‘0 7021 VI 13 "111 a11114(c11mg Em Dmuh Puma 2020 V18 then 011mg Rudilguu \ [’eop/L 2019 VI 19 lastly citing nullme 1 PLoplL' 2019 V124) ‘ [d (citm first Casctln Pauple 50 v1 392 413 (V 1 2014) lhen Puma 1 Peuplz’ 57 VI 399 409 (VI 2012)) “111 (quoting Namoni Piople 52v1 466 481 (VI 2009)) 3* Pet r s Mm 1 ‘5 The Court should liberally construe filings bypm M panics SH Cur) 11/0 1 ( 111 Ht); [gage Int. 63 V 1 670 679 (V 1 201))(qnoung Emmu I Ellume >6V1 636 691 115(V1 2012))

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and being asked two (2) questions he was allegedly asked additional questions while he was being led away These questions are allegedly ‘whether he drove a green Suzuki Estecm’ and whetherhis nickname is “Captain ”3" However it is not borne out that there was a Muandu vielation hero, and assuming mguendu there was it was harmless or otherwise used tor impeachment purposes Smith does not say what he said in response to the questions just that he had been asked them He alleges these wete brought up at trial in further violatinn ofhis Mmmda rights 37 Smith was informed ufhis nghts and waived them Smith argues that his invocation Ufa lawyer makes his willful answers to two (2) questions regarding his nickname and whether he drove a eertdin vehide, inadmissible 38

1116 Smith attaches to his petition pages 240 and 246 of Volume I of the Trial Transcript involving his Miranda waiver fem The transcript 0fthe case indicates that on and between these pages Detective Mania Stout (“Stout") was questioned as to whether Smith waived his Mnanda rights and whether Smith signed the waiver form along with the present OffiLCIS, that the pmseeution sought to entet the signed waivet into evidence; that defense counsel objected to the cntcrtng of the waiver under the impression it was being entered as a wtitten statement, that the prusecution stated they are questioning the office: as to the oral statement Smith gave not entering the paper as a written statement but rather to show that Smith waived his Miranda rights, that the Court allowed testimony on the oral statement as whether or not the car was operable as it would he a ‘ statement consistent with his mother” and went to credibility, and that defense counsel considered it a eollatet at issue xv The Court then entered as People’s Exhibit Number 29 the signed waivet form J“

1117 On cross examination, Smith’s attorney crossed Stout, confirming that Smith had waived his rights and asking him about the oral statement that the officers heard Smith say he drove a green Suzuki; that he was at Estate Thomas, that his mather owned a Champagne Mazda, that there was an alibi offered that he was at a party in Estate Thomas and that there was nu testimony anyone at the crime scene saw a green Suzuki 4'

{[18 Smith testified timing the trial On direct examination he testified

Q Did you also sign a waivct? A Yes Q And what statmncnt did you make, it any, on that day7 A Well, before he began to write down anything, Q You say “he ’ Who’s he?

“' Pct r s Mot a ‘7 As the Court notes supra n 9, Smith s account that he and smut wete asked the two (2) questions he was asked hefolt m» Dking his Muamln rights by askutg for an attorney ts not a Murmtlu vtolation on its tace ‘5 hunt the mat transcript tt appears that Smith told the otficer that he was timing 3 green Sumki the night UfIhL murder ‘7 Trial Tr Volum31239 46 4” Trial Tr Volume 1 249 4‘ FrtalTr Volume I 250 5.7.

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A Detective Stout He asked me if] own a green car, and I told him yes And then he asked me who the other car in the yard for I tell him that’s my mother eat The champagne Mazda But when he initially started to do the questioning he asked me ifI know Kelmon David, and I said yes But at that point I told him that I want to see my lawyet So questioning stopped right (here Q So you did ask to see A Yeah I did Yes I did Q You gave no further statement at the time? A No no I gave them no fimhei statement “2

1H9 On cross examination the following ethdnge took place

Q So Corporal Stout testified here from a report that he did that on the night Kelmon David was killed you were driving you said you were driving a green Suzuki Swift You’re saying he s lying? A Yes, because the green Suzuki Esteem I have deem twork from since 2004 I told him I own a gteen Suzuki Esteem, Q Mr Smith, A Yes Q you told Comoial Stout well you say you didn ttell him about tlu. green Su7uki even though he said you did? But you told him that you were— Attomoy BcthoI That’s not a conect characterization 01 his testimony His testimony was he said he owned a green Su7uki He was not driving a green Suzuki at the time Attorney Dick My understanding is that the Corporal testified that he told him he was driving one that night He denies that The Court All right Then it’s cross examination So he has that authority to ask him ifthat is what he said Overruled M

$20 Smith’s own testimony is that he waived his M1; and” rights was asked about the cars before Stout started w1iting anything down, he requested an attorney afier Kehnon David was brought up, and then he gave no tuither statement afier that However, even ifthe account given by Smith in his Petition, as opposed to his sworn testimony at trial, is t: ue, habeas reliefwould still not be warranted It is not clear how Smith phrased his invocation ofhis right for counsel and whether it was clear and unambiguous that he wished questioning to stop ”’4 Smith does not explain why the detective “should have known” that Smith would answer those questions as Smith did know at that time he had a right to remain silent, havingjust been informed ofhis Miranda rights The setting he was asked in was

‘ lrial Tr Volume III 209 10 * Trial Tr Volume III 216 17 ‘4 Pulplni H1111 47 V I 407 414 15 (V 1 Super Ct 2006) (citing cases where the rcqucst for 1n anumey mas not clearly unambiguous and unequi\0t.al)

Smith v (wwmmc'nt of the Vllgifl Iclnmlv era! v1 Super ZlU Case No ST 2020 MC 00034 Memorandum Opinion and Order Pave 9 at 14

less coereive blnLE he was being escorted away tiom the interrogation room and only in the preseme of one officer instead ofmultiple Further these qucitions do not directly relate to the crime but have to do with Smith himself

1121 Additionally, the question as to Smith 5 nickname could be considered a “booking ' question as ‘alias” is a part ofthe intake form ‘5 Unlike an alias in a c1iminalwnspirauy,a Ham (/4) gut rm, or a mafia moniker, which are often attempts to disguise its user’s identity during the commission ofa crime or in war Smith’s nickname is a pan of his identity ‘6 It would have been how he was commonly addressed, known, and identified by the public, as is Lustomaiy in the United States Virgin Islands and the Caribbean more Widely ‘7 However, assuming again (llgllLYlllO that (hue was a Mzranda violation, at the very least the Violation was harmless as he was identified by others during his trial as Captain” and the prosecution did not need to rely on the alleged violation to identify Smith as “Captain ’Indecd, during Smith’s trial, Smith as well as several other individuals were identified by witnesses by only their nicknames 48 Fm example, during Mr Niabingie Parker’s testimony this following exchange took place

Q What was the other name that you knew him by? A Captain Q And how often did you refer to him as Captain? A That is what I used to always rotor to him as Captain Q Did you ever retei to him as Kishawn? A Nah Q Just Captain’ A Just Captain Q Any other nick name’ A No 4"

‘5 Pumu/iumu \ Mum , 496 U S 582, 601 (1990) [establishing the ‘ booking question” exchtion to M1] (1min) “Ste c g V R! st Rvmk Does (Li‘s Amcnca Inc /Dog Eat Dog Productions 1992) (in whim the mcmbcn: ofa dlamnnd heIS| are only known to each other by theiralihm Mr Brown Mr While Mr Blonds Mr Blue MI Orange and Mr Pink ‘7 Ye: Alscess Lawns Brown VILArmmu thr Me where! er lime alepanplctmd stone: firm: Du Auto Iv THU”! 10 m V I DA” YNFWS (Feb 27,2019) https //www virginidandsdailynews com/opinion/mckname: thrive wherever there are people and stones tram dicks“: (0 |wain I0 ub/dl’liLiC fchdEec Scb2 507f a59b 9d7356933074 html( IlaLcms that (.aubbean people are not the only one: that like to comma nicknames ) “m (g TrialTr VolumeII 125 n 4 10 Q You know him av A Pie Q Do Von know Ina full name’ A Nah I don’t know his full name like that Q You know him a: Pie! A Yeah

W hill lr Volume [1 119 20

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1122 Like Smith s nickname, the question about the glean Suzuki does not dixectly relate to the crime, but rather went to the veracity 0t Smith’s alibi Smith testified directly about owning the green ear Furthel, rather than implicating him in the crime, the infonnation about the green Suzuki went to Smith‘s credibility on the stand and the veracity ofhis alibi It is permissihle to impeach a testifying defendant with information obtained in violation of Mn anda 5" The prosecutor highlighted this use in closing arguments

We know the Defendant when he returned from the United States attei having months to think about what, it anything, he’s going to say, he tells Detective Stout the night he is an ested for murdering Kelmnu David,1was driving a green Suzuki the night ofFebruary 4 2006 His own mothei told us that s not possible The ear had been mashed up well before that date 51

{[23 Smith‘s trial, and the evidence presented, involved multiple pieces ofphysical evidence As well as testimony [mm witnesses, investigating officers, and an expert medical examiner His guilty verdict did not hinge on his admission as to his nickname or the type of vehicle he claims to have owned 01 driven Further, the Court finds that these admissions were harmless as they did not directly implicate Smith in the crime, nor would they have had any effect on thejury verdict

C Alleged prosecutorial misconduct and improper jury instructions challenges do not meet the prnnafaue standard

{124 On closs examination, the prosecutor began to ask ‘Q You never mentioned that you were with other you never mentioned being with ‘ at which point the judge ordeled a sidebar ‘2 During the sidebai thejudge stated

So, you understand that I m not keeping you from asking him any diiect questions now that ht, is on the stand But the constitutional problem that I’m having, you can’t create an inference that he didn’t say certain things at the time of his arrest Now that he is on the stand you can ask him any question you want But you can trefer well you didn tsay this You didn tea)! that Because that is constitutionally impetmissihie I would have to give an instruction that anything that you asked him as to what he may not have asked said to the officer after he, you know had invoked his right to an attorney, is stricken But that can tkeep you from asking him a direct question Not that you didn’t say this

5“ 5"; ¢ g Walt \ Hull) 73 W3d 78 85(lenn (rim App 1999) (uting IirsthmIM NIH York 401 U S 222 225 25 (1971) then Sum 1 Hum)?! (:95 SW2d 530 538 (Tenn Cnm App 1985)( A statement that i: inadtniswihle against a defendant in the slate S ease in chief because ofa Miranda violation may properly be usLd for impeachment purposes to a‘taLk the testifying defendant 5 Credlbiiil) 1 5’ Trial 1r Volume IV 36 5 Trial [r Volume 111718

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to the Detective You didn’t say that Ask him stiaight out now whatever you want to ask him ‘3

{125 1 hejudge then gave thejury curative instructions that stated in part

So to the extent that theie was any question that was made by the Government as to what he didn’t say to the Officer after he invoked those lights that is stricken He has no requirement to say anything afler that So there can he no implication that he didn t say pertain things to the Officer utter he invoked his rights So please understand that there um be no inference aftei he said he wanted an attomey W

1126 Later during cross examination, this exchange took place “Q Okay Clarissa is incorrect? And Corporal Stout is incorreet when about the green Suzuki Swifi’ A No I didn t tell you Clarissa was incorrect I said [Just said that but I also said that ”55 Smith did not even address the question about Stout

1127 1 he prosecutot had begun to ask a negative question with an impermissible interence (“you never mentioned being with”) and so thejudge stepped in The proseeutm' did not violate thejudge’e instructions aftei they wete given Smith was on the stand and the prosecutor is pemtitted to ask direct questions to Smith about his testimony, which mentioned owning the green car, and Stout‘s testimony about a pan of Smith’s alibi concerning driving a green Suzuki Swift that night What the judge‘s instructions plainly forbade the prosecutor from doing was questioning Smith on the stand as to what he did not say to Stout and trying to ureate an appearance ofguilt er an interenee as to some fact based on the tact that Smith invoked his right to counsel or did not answer a particular question As the judge stated during sidebar if they say they want to be silent it they don t want to say anything, it they invoke their lights, you can’t comment on why they didn’t say things "5" At no point did the prosecutor Violate this directive Rather, the prosecutor was challenging Smith’s credibility and the veiacity ofhis alibi drawn from pennissihle testimony The jury instruction itself contains no clear error and is an accurate reflection ofthe law

$128 Further, the prosecutor’s statements during closing argument were not in violation omeith’s constitutional rights As explained above, the reference to the green Suzuki Swifl, which came out in the testimony of Stout, Smith, and Smith’s mother, was not improper Smith also objects to the pmseeutor bolstering the credibility Ufa witness during closing arguments and attaches page 36 of Volume IV ofthe Trial Transcript that contains the prosecutor stating

“ Trial Ti Volume III 223 24 5° Trial 1 r V01umeIII224 25 SS Prim] Tr Volume 111232 5” lrial [A Volume lXIZI‘)

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And you heard the words ofa young woman, a young girl, Marysid Stridiroh That young girl Marysia Stiidimn had no motive to lie No motive to lie to tome in hem and tell us what she saw Nothing to gain by telling us that And, in fact ladies and gentlemen, I think we re all well awaic, much to lose muLh to be concerned about by sitting in that stand 57

112‘) The Supreme Court ofthe United States Virgin Islands has endorsed the Thiid ( ircuit s understanding of Vouching “vouthing constitutes an assurance by the piosecutmg attorney at the credibility Ufa government witness through pelsonal knowledge or by other information outside of the testimony before the jury ’8 In F(trlmgllm 1 People the prosecutur stated Ladies and Gentlemen 01 the Jury, we submit that it would be so highly coincidental that let me put it this way Why would Trevom Lake want to make up a story '5” In Umlerl Stuns v Wa/ku (‘0 the case from the Third Cllbull, the proseLutor stated

N0“, ask youiselves what motivation would Officer Ruben Scott and former Officer Raymond Dubois have to come in here and lie to you What motivation I submit to you that they have no motivation to lie to you I submit to you that you can determine using your common sense and yourjudgmcnt you can due: mine the credibility ufthose two and the only two eyewitnesses to the seaxch 5'

$130 Recently, this Cuurt considered whether the following statement in the case at People t Smart"Z was impermissible Vouehing

And I submit to you, I isa Toussaint doesn’t have any reason to lie Lisa Toussaint lives in New York Lisa Toussaint is 17 years removed from this case and doesn’t live in St Ihomds Are we to believe that she came down here from New York just to lie, or is it more reasonable that she came down here because she remembers what oceurred that night and why it struck her as Strange?“

1131 In all three (3) cases, the courts found that the statements weie not impermissible vouching f0! the Lredibility ofa witness As this Cnurt explained in Smart, ‘the People were not assuring the jury that the witness was Credible or that the People had some inside knowledge not in evidence for why thejury should consider [the witness] Credible but rather ‘ the People were providing an

57 Trial Tr Volume IV 36 5” Fm/mgmnt Ptoph 55 VI 644 636 (VI 2011) (citing Lmlul TlaIm \ Walla) 153 1‘ 311180 184 (3d (it 1998)) 1) Id 117 155 F 3(1130(3d (Jr 1998) M Id at 184 ‘ 2022 VI Super 93U ”1 [11 M11 38

.511"!!! v (lnvummdnt «flint Vlrgm Aland: «I 11/ VI Super 2“.) ( In V0 ST 2020 MC 00034 Memorandum Opiniun and Order Page 13 of 14

aigument for W hy thejuiy might find her credible M I ikewise in the instant case, the prosecutor did not allude to some intoinmtion outside the cVidence or personal knowledge about why the jury should find Marysia Stridimn credible, but prox ided an argument for why she should be believed She had no bias or thing to gain from her testimony and only something to lose potentially hei life Smith has not shim n that the prosecutor impermissiny vouched for the witnesses credibility, rather, the proseeutor made a fail 1y standard argument for why the jury should credit the witness s testimony Thus, Smith has not made dp/ 1sz fame showing ofpmsecutorial miSLonduet 0r improper jury institution

D Ineffective assistance of counsel challenge does not meet the prmm fume standard

1132 As the Court finds that any purported Miranda violations are, at the very least, han‘nless, the failure to object to them cannot constitute ineftcctive assistance of counsel Further, whether or not to make an objection is a quintessential part of trial strategy and Smith tails to detail how Lounsel’s tailurc to object resulted in a fundamentally unfair outcome particular when Smith himselftestificd that he told the detective he owned a green Lar "5 [fit was not ineffective assistance of counsel at the trial level, it follows that it cannot be ineffective assistanee Ofcounsei for Smith 3 appellate counsel to have failed to raise an incttective assistance of counsel claim at the appellate level Therefoxe Smith has not made apnma fume showing at inettective aSSIStance of counsel

IV CONCLUSION

$133 Smith was anested in August 2006, and sentenced in April 2007 for mm aim, second degree murder Smith aheady appealed his conviction, which was upheld by the Virgin Islands Supreme Court in 2009 Smith filed his Motion for Extraordinary Writ oi Habeas Corpus on September 17, 2020, alleging Lunstitutional violations consisting of Miranda rights violations, prosecutorial miSCOI‘thLI, inetfeetive assistance of counsel, and impropet juxy instructions The Court construed Smith 5 Motion as a Petition for Writ 0t Habeas Corpus While liberally construing the Petition and finding it compliant, the Court finds that Smith did not make aprmmfacze showing of any violation '1 heretore, Smith 5 Petition will be denied

{134 Aceoidingly it is hetebv

ORDERED that the Petitioner Kishawn Smith 5 Motion for Fxttdordindry Writ of Habeas Corpus filed September 17 2020 is DENIED and it is further

“ 1d mm 0‘ Williams | People, 2024 VI 2 ( Although he questions the competency at his trial cuunstl’: matey “huh apparently in» olved cnunxel 5 failure to ObjeLt Io lhc Admission ofallegedly prior inconstslenl statements, Williams fail~ to suggest why the failure to objeu was an unsound \ual strangy )

Smuh v bnvernmem 0] flu: Vngm Nun”: a a! VI Super 21L Clue Nu ST 2010 MC 00034 Memurandum Opinion and Order Page 14 of 14

ORDERED that a copy ofthis Memorandum Opinion and Ordel shall be mailed m Kishawn Smith #19 1873 at Chins County Detention Facility 2604 Woodland Ridgc Drive Leeann) FL 3446! with the following notation on the envelope “1 EGAL MAIL please open in presence of inmate only; and acop) thereofshall be dimmed to Assistant Attorney Gamma] [an S A Clement

DATED May 20 2024 MW @UL DENISE M FRANCOIS Judge ofthc Superior Conn 0f the Vilgin Islands

ATTEST

'[ AMARA CHARLES Clerk of the Court

BY m D NA D D NOV KN (cum Clerk Supelvisox LIL/ 39 /m%/

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Thomas/St. John

Kishawn Smith, Case Number: ST-2020-MC-00034 Petitioner Action: Writ of Habeas Corpus v.

Government of the Virgin Island et al, Respondent.

NOTICE of ENTRY of (2) ORDERS To Kishawn Smith (via USPS) Ian S. A. Clement, Esq (via Email) :

Please take notice that on May 20, 2024 a(n) (2) ORDERS dated May 20, 2024 was/were entered by the Clerk in the above-titled matter.

Dated May 20, 2024 Tamara Charles : Clerk of the Court By:

Nicole Smith Court Clerk II