The V.I. Supreme Court overturned Ariel Devon Frett’s 2010 conviction in the kidnap murder of Gabriel Lerner on June 20, remanding the case for retrial, saying Frett’s statement to police after asking for an attorney played too large a role in the case.
When Frett, now 26, went on trial in 2011 for Lerner’s murder, prosecutors alleged he and John Jared Southwell, now 21, kidnapped Lerner after he offered the two men a ride. Frett and Southwell then allegedly robbed Lerner, put him in the trunk of his own car, and killed him in a remote area on the west end of St. Thomas, prosecutors alleged.
The principal evidence against Frett and Southwell came from Southwell, who pointed the finger at Frett as the instigator and gunman. Southwell led investigators to Lerner’s body and pleaded guilty in 2010 to one count each of second-degree murder and first-degree assault-robbery for his role in the crime. He is currently serving a 20-year prison sentence.
During the three-day trial, Frett claimed Southwell lied, and recanted information he gave in a police statement that confirmed he, Southwell and Lerner had all been in Lerner’s vehicle together.
Chief Justice Rhys Hodge wrote the opinion, which was unanimous, finding that the trial court erred by allowing Frett’s statement to police to be used not just to impeach Frett’s court testimony, but also as substantive evidence.
The opinion recounts that during Frett’s interrogation, he invoked his right to an attorney and the interrogation stopped. Police then told Frett that Southwell had signed a statement implicating Frett. Frett then signed a waiver of representation and signed a statement saying he and Southwell received a ride from Lerner, but denied killing him.
That statement was admitted into evidence, but not as a confession or substantive evidence; only to impeach Frett’s credibility at trial, calling his truthfulness into question.
"This case is not one where prejudicial evidence that should have been excluded entirely was wrongly admitted into evidence. Instead, it is one in which evidence properly admitted for a limited purpose—in this case, impeachment—was allowed to be used beyond its limited purpose," Hodge wrote.
According to Hodge, it could be argued that, since the statement could be used for impeachment, the jury would have heard the same statements and could have come to the same conclusion. But jury instructions would have helped limit the chances of that statement being misused, he suggested.
The Supreme Court ruled the Superior Court "committed reversible error when it permitted the People to use a statement obtained in violation of Frett’s constitutional right to counsel, and which was suppressed before trial, to be used as substantive evidence against him at trial." The case was then remanded for a new trial.
The opinion did not forbid the use of that statement at trial, but ordered the trial court to only allow the statement to be used to impeach Frett’s other statements, and "if requested," to instruct the jury to take "great care and caution," in considering the testimony of witnesses who benefit from a plea agreement.
Reached by phone Monday, V.I. Department of Justice Acting Criminal Division Chief Renee Gumbs-Carty said the government planned to retry the case whenever V.I. Superior Court schedules it. She declined to comment on the Supreme Court decision.
