CONCUR
HOLLAR, L,concurring.
I concur with the majority’s affirmation of the Appellant’s conviction because the U.S. Supreme Court’s decision in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) has undergone reform in recent years resulting in a transition of approaches dealing with the Doyle violations. Accordingly, I respectfully submit this separate analysis from that perspective.
Doyle Violation
The United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), held that it was a violation of due process to impeach defendant’s exculpatory testimony using his post-arrest and post -Miranda silence. Such practice has been deemed fundamentally unfair and a violation of the Fifth and Fourteenth Amendments to the U.S. Constitution for it betrays an “implicit assurance” that a Defendant would not be penalized for exercising his right to remain silent. Wainwright v. Greenfield, 474 U.S. 284, 289; 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). To “use at trial the fact that- (a Defendant) stood mute or invoked his privilege in the face of accusations” was undeniably error on behalf of the prosecution, Miranda v. Arizona, 384 U.S. 436, 468, 86 S. Ct. 1602, 1625, 16 L. Ed. 2d 694 *882(1966), and said constitutional error has been labeled a “Doyle” violation.
The Chapman Standard
In evaluating a constitutional violation, a determination must be made whether the error is harmless beyond a reasonable doubt, a standard enunciated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Although the defendant in Chapman tenaciously maintained that a violation of a constitutional right must always be deemed harmful and should result in an automatic reversal of conviction, the U.S. Supreme Court disagreed and placed the burden upon the state to prove that the constitutional error complained of did not contribute to defendant’s conviction, thus reiterating its holding in Fahy v. State of Connecticut, 375 U.S. 85, 86, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). Under the Chapman standard, the weight of the evidence within a case is viewed against the Doyle violation in order to resolve, “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Chapman, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705. If the Court can reach a conclusion that the evidence of guilt is “so overwhelming” that the constitutional trial error did not affect the ultimate outcome of guilt, then the error is deemed harmless.
Brecht Holding
Significantly, the U.S. Supreme Court, in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 1712, 123 L. Ed. 2d 353 (1993), unequivocally identified a Doyle violation as a constitutional violation and not a violation of a prophylactic rule as stated by the Seventh Circuit Court of Appeals in Brecht, 944 F.2d 1363 (7th Cir. 1991). As a constitutional violation, Doyle was found to “fit squarely” within the trial error category where the “harmless beyond a reasonable doubt” standard was made applicable instead of a structural error category which required automatic reversal. Id. Thus, within “the setting of a particular case”, some constitutional trial errors are subject to “harmless error” analysis and not a “blanket rule of automatic reversal” of the conviction. Brecht, 507 U.S. 619, 113 S. Ct. 1710, 1717, 123 L. Ed. 2d 353 (1993) (citing Arizona v. Fulminante, 499 U.S. 279, 307, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302).
*883Moreover, the U.S. Supreme Court in Brecht narrowed the application of the Chapman standard to cases only on direct appeal. Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 1712, 123 L. Ed. 2d 353 (1993) (direct review of state and federal criminal proceedings on claims of constitutional error are evaluated under the Chapman standard). In the final round of judicial review, Brecht was not a direct appeal but a writ of habeas corpus. Consequently, the Chapman standard was supplanted by a new criterion. Under the new Brecht standard, habeas relief could be granted on collateral review only if the constitutional trial error “had substantial and injurious effect or influence in determining the jury’s verdict”, a burden far more relaxed than the one articulated in Chapman. Under the new benchmark, Brecht’s conviction was affirmed, despite the Doyle violation.
Lastly, even before Brecht’s final trek to the United States Supreme Court, the Wisconsin Supreme Court, on direct appeal, evaluated the Doyle violation under the Chapman standard and affirmed the conviction. Significantly, the U.S. Supreme Court, in its collateral habeas review, never challenged or criticized the Wisconsin Supreme Court’s findings of fact and ultimate decision to affirm Brecht’s conviction on a direct appeal utilizing the Chapman analysis.
Harmless Error Analysis: Different Jurisdictions
Several jurisdictions have delineated specific factors to be weighed in determining whether “harmless error” was committed. In United States v. Dixon, 593 F.2d 626 (5th Cir. 1979), the Court conducted its review on a direct appeal from the District Court for the Northern District of Florida. The decision of the lower court was upheld and the Doyle violation was deemed “harmless” by evaluating the verdict on a case-by-case basis in light of “the facts, trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.” Dixon, 593 F.2d at 629. In affirming the Defendant’s conviction, factors considered were: (1) the lack of prejudice in the jurors’ mind (the reference was not directly linked to his exculpatory story); (2) the trial court’s curative instructions to the jury; (3) the non-repetitive nature of the question (the prosecutor did not elaborate on Defendant’s silence after the witness’ testimony); (4) the fact that the Defendant opened-the-door by inferring his cooperation with the police; and (5) the weight of evidence augmenting Defendant’s guilt. In Williams v. Zahradnick, 632 *884F.2d 353 (4th Cir. 1980), a pre-Brecht appeal was made of the lower court’s denial of a writ of habeas corpus under the Chapman standard. A case-by-case determination was also used which weighed “the prejudicial effect of the improper evidence against the probative value of the properly admitted evidence” and noting that the “variables and weights to be assigned them vary in each case.” Id. at 361. Citing a series of cases, the Court proceeded to outline the following factors to be weighed in evaluating “harmless error”, however noting that the list was not “exhaustive” or “exclusive: (1) the use to which the prosecution puts the post-arrest silence (when the prosecutor’s repetitive and emphatic attack is on the jugular of the defendant’s case, it is rarely declared harmless); (2) who elected to pursue the line of questioning; (3) the other evidence indicative of guilt; (4) the intensity and frequency of the reference; and (5) the ability of the trial judge to grant a motion for mistrial or to give curative instructions. Applying those factors, the Zahradnick Court determined that the prejudicial effect outweighed the probative value on the basis that the prosecutor’s four references upon appellant’s silence was intended to lead “the jury to make inferences of guilt from defendant’s silence.” Zahradnick, 632 F.2d 353, 365 (4th Cir. 1980). Though the evidence against appellant was sufficient to sustain a conviction, the Court stated “it was not persuasive enough to tip the scale towards harmless error” and “must be balanced with appellant’s plausible and corroborated alibi” defense; thus, the district court’s decision was reversed and remanded for the issuance of a writ of habeas corpus. Id. The U.S. Supreme Court in Greer v. Miller, 483 U.S. 756, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987), however, found no Doyle violation where a single question was followed by an immediate objection, and two (2) curative instructions were given, since the prosecutor was not able to use Defendant’s silence for impeachment purposes.
The Third Circuit Approach
In Hassine v. Zimmerman, 1997 U.S. Dist. LEXIS 17043 (E.D. Pa.), the District Court looked at the evidence in its totality to assess Petitioner’s application for a writ of habeas corpus under the new Brecht standard. Although the evidence was reviewed for any substantial and injurious effect or influence on the jury’s guilty verdict,, the Court, applying the same factors, also determined that due to the overwhelming nature of the direct and circumstantial evidence that the Doyle error *885would have been harmless even under the Chapman standard, despite three (3) specific inquiries, three (3) sustained objections, the absence of any curative instructions or admonishment from the Court, and additional commentary during closing arguments. Thus, the application for writ of habeas corpus was denied. Hassine appealed the decision to the U.S. Court of Appeals for the Third Circuit. See Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998). The Third Circuit affirmed the Eastern District Court’s denial of the application for writ of habeas corpus finding the Doyle violation was harmless because it did not have a substantial and injurious effect or influence in determining the jury’s verdict due to the overwhelming evidence of Hassine’s guilt and his lack of credibility separate and apart from the Doyle violation. Hassine, 160 F.3d 941, 959 (3d Cir. 1998). Even though, the Third Circuit, in United States v. Cummiskey, 728 F.2d 200 (3d Cir. 1984), deemed references upon Defendant’s silence an attack upon the “heart of his case”, the holding of Cummiskey rested upon the basic premise underlying a Doyle violation, which is the giving of Miranda rights and the Defendant’s election of silence. By refusing to permit a presumption that Miranda warnings were given at the time of arrest, the Court remanded the case for an evidentiary hearing to establish whether Miranda warnings were given or not. Post-Cummiskey, however, and more recently, the Third Circuit has consistently used a “totality of the evidence” approach in evaluating whether there was a reasonable possibility that the evidence complained of might have contributed to the conviction when analyzing “harmless error” of the trial error variety under the Chapman standard. Given the foregoing, it is clear that the Third Circuit, in evaluating “harmless error” beyond a reasonable doubt, has swung the pendulum from the “jugular theory” analysis to a “totality of the evidence” or “overwhelming nature of the evidence” scrutiny.
Operative Facts in Davis
The Government in its case in chief called the three (3) victims to the stand. They testified that Davis was the sole occupant in the back of the truck. [App. I at 99, 126, 171-172, 190]. Of the three victims, two testified that they saw Davis with a gun in his hand, and he aimed the gun at them. [App. I at 145, 191]. The victims were unequivocal concerning the identity of the appellant because they knew him, they grew up in Estate Whim with him, and attended the same “elementary” *886school with him. [App. I at 99, 172, 230]. Detective Encamación testified that the truck, in which the victims occupied, sustained bullet holes and he collected a bullet projectile from one of the victims. [App. I at 310, 314-316].
On direct examination by his counsel, Davis advanced the exculpatory defense of mistaken identity. In stark contrast to the victims’ testimony, appellant maintains that he did not fire the shots, “Goofy”, who was seated next to him in the truck, did. While appellant readily admitted that he was present when the shots were fired, at the time and place alleged by the victims, he nevertheless contended that someone else did the shooting. Although maintaining there was a shootout between “Goofy” and the occupants of the other vehicle, appellant introduced absolutely no corroborating evidence to support such a scenario. Additionally, not one of the other identified eyewitnesses, alleged to be in the truck with the appellant, including his own brother, came forth to substantiate and advance appellant’s version of the events and thus, exonerate him. The lack of evidence exposed the weakness and heightened the implausibility of Davis’ defense, and raised serious issues of his credibility separate and apart from any inference the People may have drawn through a Doyle violation that “Goofy” was a phantom.
Much to its chagrin, however, the Government, at oral argument, was constrained to acknowledge that it unwittingly stepped over the thinly drawn line of demarcation between permissible and impermissible areas of impeachment when it used appellant’s post-arrest, post-Miranda silence to infer the implausibility of the “Goofy” defense. As outlined in the majority opinion, the prosecutor made the error during during cross-examination of appellant. Davis vehemently argued that the effect of the prosecutor’s questions and statements was to “grind [his] constitutional rights into constitutional detritus”, “denigrate his credibility”, and “carve up the core” of his defense. Notwithstanding the prosecutor’s impermissible references to Davis’ post-arrest, post Miranda silence, no “structural error” was committed which required an automatic reversal. The error was clearly a “trial error” subject to the “harmless error” analysis. The question to be resolved is “whether there existed a reasonable possibility that evidence complained of, [the Doyle violation], might have contributed to the defendant’s conviction”. After objectively reviewing the evidence in its totality, the answer must be a resounding "no".
*887Davis, from the onset, consistently and continually hedged and avoided admission to his prior felony conviction for theft of a stolen vehicle. When specifically asked if he was a convicted felon, Davis responded “no”. When asked if he was convicted of a felony, Davis responded “yes, but I plead guilty”. Upon further questioning, he stated “I don’t call that a conviction. I plead guilty”. Not receiving a responsive answer, the prosecution pursued the matter as previously outlined. Clearly, the prosecutor, in meeting his burden of proof, by necessity, had to carve into the defense by questioning the existence of “Goofy”. There is absolutely nothing sinister about the prosecutor effectively and systematically dismantling the defense which, in this case, was inextricably intertwined with legitimately impeaching the defendant’s credibility. Having utilized both measures, admittedly, the prosecutor laid a “royal shellacking” upon the appellant’s defense.
To the extent the constitutional infraction had any initial impetus, Defense counsel effectively annihilated any adverse inference that could have been possibly derived from the Doyle violation by masterfully executing a re-direct examination of appellant. Davis’ testimony through redirect examination made it abundantly clear that: (1) the police never asked appellant any questions; (2) upon his arrest, appellant was sent straight to jail; (3) Davis never had an opportunity to speak to the police; (4) since his arrest, Davis was incarcerated; and (5) Davis knew and understood his right to remain silent and his right not to speak to the police. Not only did the redirect examination by defense counsel deflect and nullify any improper inference regarding appellant’s silence, but it was also tantamount to a curative instruction.
Further minimizing any adverse inference created by the prosecutor’s impermissible questioning is the inapplicability of the underlying assumption within the United States Virgin Islands. The underlying assumption made as a result of a Doyle violation is that by failing to inform law enforcement of an exculpatory story, a Defendant has fabricated his defense and is thus not credible. One of the postulates that support this assumption is that an accused would ordinarily report to the police any exculpatoiy information. Unfortunately, in the United States Virgin Islands, the converse of that basic assumption appears to be true. Within the territory, it has been widely reported that there exists a general mistrust of the Virgin Islands Police Department (hereinafter “VIPD”). See Ananta Pancham, VIPD Official Says Complaints Against *888Police Have Tripled, St. Thomas Source (August, 2005), http://www.onepaper.com/stthomasvi. The perception of law enforcement within this community is not favorable and information does not flow freely to the police department. This mistrust may emanate from the growing number of “rogue cops” that have been publicly exposed or because of the “leaks” that occur when confidential information is communicated to them. In 2003, a series of articles were written, under the header “Deadly Force”, which chronicled various internal and external problems of the VIPD. See http://www.virginislandsdailynews. com. Consequently, non-cooperation with the VIPD from victims, defendants and witnesses appears to be the norm.
Given that backdrop, together with the masterfully executed re-direct examination of Davis by his attorney which effectively erased any adverse reference to his silence to police, the Doyle violation had undoubtedly a de minimis or non-existent impact in the minds of the St. Croix jury.
Application of Operative Facts in Davis to the Chapman Standard
In reviewing the Doyle violations, in the case sub judice, the Chapman standard must be applied to the operative facts essentially utilizing the Third Circuit approach favoring “a totality of the evidence” analysis. On direct appeal, the Wisconsin Supreme Court, in Brecht, 143 Wis. 2d 297, 421 N.W.2d 96, reviewed the Doyle violation under the Chapman standard using the following three relevant factors: (a) the frequency of the error; (b) the nature of the state’s evidence; and (c) the nature of the defense. After weighing these factors, the Court concluded that the Doyle violation was harmless beyond a reasonable doubt. In evaluating the frequency of the error, the Wisconsin Supreme Court identified only four (4) Doyle violations contained in two (2) pages of a nine hundred (900) page transcript or, measured in temporal terms, a “few minutes in a four day trial in which twenty-five (25) witnesses testified” and ruled those improprieties to be infrequent, de minimis and non-excessive. Id. at 317.
In Hassine, 1997 U.S. Dist. LEXIS 17043 (E.D. Pa.), the District Court concluded that applying either the “new” Brecht or Chapman standards the error was harmless, since only three specific inquiries occurred in a trial that lasted ten (10) days and comprised 1,800 pages of testimony in which thirty-four (34) witness as were called to testify regarding Hassine’s involvement in the conspiracy to commit murder. In *889the case sub judice, there were four (4) inappropriate references during cross-examination, and one reference during closing arguments, comprising less than two pages of 663 pages of actual transcript or approximately a few minutes in a three (3) day trial, where the Government brought six (6) witnesses to testified against the Defendant.
In Brecht, the Wisconsin Supreme Court, found that: (1) the shooting was intentional as evidenced by the horizontal trajectory which was inconsistent with the defendant’s (Brecht) testimony; there was a motive for the crime; (2) the victim told others that Defendant had shot him; the Defendant had demonstrated consciousness of guilt through flight; and (3) there was a lack of evidence to verify Defendant’s story that he (the Defendant) fell down the stairs. Brecht, 143 Wis. 2d 297, 318, 421 N.W.2d 96. Similarly, the District Court in Hassine, outlined a chronology of events that produced overwhelming evidence of defendant Hassine’s guilt. The nature of the evidence against Davis is likewise compelling. There were three (3) victims who placed Davis in the back of the truck. Two of those victims saw Davis with a gun in his hand. The same two victims saw Davis aim the gun in their direction. One victim testified seeing him pull the trigger. [App. Vol. I 191]. None of the victims testified as to anyone being on the back of the truck with Davis. Each of those victims knew him from when they all were children growing up in St. Croix. One victim was in elementary school with him. A fortiori, there was no case of “mistaken identity”. Additionally, there was physical evidence to corroborate the victims’ testimony that they were shot at, as evidenced by the bullet holes found along the victim’s driver side of the vehicle, a projectile removed from the top of the vehicle’s windshield, and pictures reflecting the same. Also one of the victims testified that there had been a previous altercation between himself and appellant’s brother, Hector Davis, thus, establishing a motive for Davis’ “retaliating” actions. [App. Vol. I 250-254], No such motive was presented for “Goofy” to take such action. In fact, none of the victims knew an individual named “Goofy”.
The nature of the defense in Brecht rested on the theory of “an accidental shooting”. However, the Wisconsin Supreme Court noted that the defense was contradicted not only by physical evidence in the form of the horizontal trajectory of the bullet but by other strong circumstantial evidence as well. Id. at 318. Likewise, there was no corroborating evidence to support Davis’ defense that it was not he but *890someone else who fired the gun. Thus, the Davis jury was able to glean, from the testimony presented at trial, appellant’s guilt through the overwhelming permissible evidence.
Conclusion
The Doyle violation, the use at trial of the fact that a Defendant stood mute or invoked his privilege of his Miranda Right to remain silent, in the face of accusations, is categorized as a trial error, not a structural error and thus, not subject to automatic reversal. “Harmless error beyond a reasonable doubt” is the Chapman standard, utilized in direct appeals, to measure whether the prosecution’s use of a Defendant’s post arrest, post-Miranda silence may have contributed to a guilty conviction. Under the Third Circuit approach, the Chapman standard of “harmless error beyond a reasonable doubt” is measured by weighing on a case-by-case basis, “the totality of the evidence”, to resolve “whether there was a reasonable possibility that the evidence complained of might have contributed to the conviction”. If the Court concludes, from the record, that the evidence of guilt was overwhelming and the trial error could not have affected the integrity of the truth-gathering process of the trial as to render it unfair and impact upon the jury deliberations in its finding of guilt, then the error must be deemed harmless. Although the prosecutor’s comment upon Davis’ post-arrest Miranda silence was undeniably a Doyle constitutional violation, there was no reasonable possibility that it contributed to the conviction of guilt given: (1) the overwhelming evidence presented by the Government; (2) appellant’s lack of coiToboration in support of his alleged defense; (3) the curative effect-of the Defense counsel’s redirect examination of defendant in removing any impermissible references created by Davis’ post-arrest post-Miranda silence; (4) the negligible impact such statements had on a jury in the U.S. Virgin Islands; and (5) the similarity between the fact pattern regarding the Doyle error in the case sub judice to that in Hassine v. Zimmerman, 1997 U.S. Dist. LEXIS 17043 (E.D. Pa.), where the District Court denied habeas relief using the Chapman standard as well as the new Brecht standard and the Third Circuit affirmed the Eastern District’s denial. See Hassine, 160 F.3d 941 (3d Cir. 1998).
Any inference drawn by the jury that the appellant’s “mistaken identity” defense was a prevarication of truth and not worthy of belief *891was reached totally independent of any Doyle violation that the prosecution may have committed. Clearly it was:
1. the Government’s three (3) victims who identified appellant as the shooter;
2. the physical evidence of bullet holes in the vehicle they occupied;
3. the conspicuous absence of corroborative evidence to support appellant’s defense;
4. appellant’s refusal to unequivocally “own up” to his prior felony conviction;
5. the evidence of a motive that existed for Davis’ action; and
6. the familiarity of the victims with appellant
that ultimately drove the “death knell” into appellant’s defense. Thus, the prosecutor’s reference to defendant’s silence to police, though impermissible, was harmless beyond a reasonable doubt.
AND NOW, for the reasons more fully stated in a Memorandum Opinion on even date, it is hereby
ORDERED that the Appellant’s conviction is AFFIRMED.