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@ © IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, ) CRIMINAL NO: ) ST-16-CR-337 Plaintiff, ) vs. ) ) JARMAINE AYALA, ) ) Defendant. ) ) MEMORANDUM OPINION THIS MATTER is before the Court on Defendant Jarmaine Ayala’s “Motion to Dismiss and Incorporated Memorandum in Support of the same” (filed through counsel November 09, 2016), and “Motion to Dismiss and Incorporated Memorandum in Support of the same” (filed through counsel December 20, 2016).! For the reasons set forth herein, both Ayala’s motions to dismiss will be denied. I. Background On September 16, 2013, the Virgin Islands Police Department (VIPD) investigated a robbery that occurred earlier that morning at the Gems and Gold Corner jewelry store in St. Thomas, Virgin Islands. According to witnesses, the robbers pointed a gun at a worker behind the counter, stole jewelry, and then fled in a dark colored Jeep Wrangler. Subsequent VIPD investigation revealed that the Jeep 1 The People did not file a response to either motion. O People v. Jarmaine Ayala Case No. ST-16-CR-337 Memorandum Opinion was a rental car, and Ayala was listed as one of the authorized drivers. Ayala was interviewed and released by VIPD, pending further investigation. Approximately two years and eleven months later, on August 30, 2016, a warrant was issued for Ayala’s arrest. Ayala was arrested in St. Croix on October 19, 2016, and made his initial appearance in the Superior Court in St. Croix the following day. His arraignment was then scheduled for November 3, 2016 in St. Thomas. The Information, dated October 31, 2016, was filed November 2, 2016. After his Initial Appearance and apparent inability to post bail, Ayala was held at the Bureau of Corrections on St. Croix. At the November 3, 2016 hearing Ayala’s attorney notified the court Ayala had not been transported from the Bureau of Corrections on St. Croix to St. Thomas for the arraignment. Because Ayala was not present, the court then rescheduled the arraignment for November 17, 2016. Ayala has now filed two motions to dismiss based on separate legal theories. First, Ayala asserts Virgin Islands Superior Court Rule 123 (Rule 123) has been violated because his arraignment occurred more than ten days after of his initial appearance; and therefore the charges against him should be dropped, and he should be immediately released from the Bureau of Corrections. Second, Ayala asserts—pursuant to 5 V.I.C. § 3541— the three year statute of limitations expired before he was arrested and as a result the charges should be dismissed. Ayala asserts the alleged offenses occurred on September 16, 2013; therefore, the three year statute of limitations expired on September 16, 2016. © @ People v. Jarmaine Ayala Case No. ST-16-CR-337 Memorandum Opinion However, Ayala was not arrested until October 19, 2016, more than three years after the alleged crimes. The Court will address each of Ayala’s motions to dismiss in turn. II. Discussion (1) Ayala’s Motion to Dismiss based on Superior Court Rule 123 The Virgin Island Superior Court Rules require the court to schedule a matter for arraignment no later than ten days after a defendant in custody makes their initial appearance. V.I. SUPER. CT. R. 123(b)(4). However, the ten day time limit may be extended by the court “with the consent of the defendant and the court, or by the court without the consent of the defendant, but only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.” Id. Virgin Island courts have not defined an “extraordinary event” for purposes of Rule 123. However, “[w]hen statutes from other jurisdictions are substantially similar to a Virgin Islands statute, [this Court] may look for guidance at how that jurisdiction's courts have interpreted the similar statute” Ottley v. Estate of Bell, 61 V.I. 480, 494 n.10 (V.I. 2014); see also Corraspe v. People of the Virgin Islands, 53 V.I. 470, 480-481 (VI. 2010) (applying the rules of statutory constructions to analyze a Superior Court rule) (citing Norman J. Singer, Southerland Statutes and Statutory Construction, § 67:14 (6th ed. 2003) (recognizing that “in one form or another almost O People v. Jarmaine Ayala Case No. ST-16-CR-337 Memorandum Opinion every rule of construction for statutes finds application in the interpretation of the rules of practice.”)) Alaska has a rule of criminal procedure that is substantially similar to Rule 123(b)(4) and states: the judicial officer shall schedule a preliminary examination...but in no event later than 10 days following the initial appearance, if the defendant is in custody...in the absence of consent by the defendant, the judicial officer may extend these time limits only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interest of justice Alaska Rule of Criminal Procedure 5(e)(4)(A)-(B). In Sproaies v. State, 81 P.3d 301, 303 (Alaska Ct. App. 2003), the court discussed an “extraordinary circumstance” as something that will not “predictably occur again and again,” and “justifies a deviation from the normal law.” Ayala’s original arraignment hearing was scheduled on November 3, 2017, in accordance with Rule 123; however, the date of the arraignment was extended because Ayala was not transported from the Bureau of Corrections on St. Croix. Thus, the central question is, was the extension of time proper under Rule 123? The Court first notes that at the November 3, 2016 hearing, Ayala’s counsel did not object to the matter being rescheduled to November 17, 2017. However, whether his failure to object should be considered “consent” under Rule 123 is of low priority, because in this instance—even without consent—Ayala not being transported for the original arraignment represents an “extraordinary circumstance.” An in-custody defendant, not being transported to his scheduled arraignment, on O @ People v. Jarmaine Ayala Case No. ST-16-CR-337 Memorandum Opinion another island, is not an event that will “predictably occur again and again.” Instead it is an event that “justifies a deviation from the normal law” governing the time limit for arraignments. Furthermore, interpreting Rule 123 differently would “result in injustice or absurd consequences,” Brady v. Gov't of the Virgin Islands, 57 V.I. 438, 442-448 (VI. 2012), because a defendant charged with multiple felonies—such as Ayala—would be released with their charges dismissed simply because they were not transported to their first arraignment hearing, despite suffering practically no prejudice from a short scheduling delay. The Court finds re-scheduling Ayala’s arraignment to the November 17, 2016 date was indispensable to the interests of justice. Therefore, Ayala’s motion to dismiss based on Rule 123 will be denied. (2) Ayala’s Motion to Dismiss based on Commencing a Criminal Action Pursuant to 5 V.LC. § 3541. The Virgin Islands Code requires the People to commence a criminal action for a felony within “three years after [the crime’s] commission. V.I. Code Ann. tit. 5, § 3541(a)(2).2 However, the Virgin Islands Code does not define when or how the People actually commence a criminal action, and Virgin Islands courts have been discordant in addressing the issue. ? For murder, felony child abuse, felony child neglect, any felony sexual offense perpetrated against a victim, embezzlement of public moneys, and the falsification of public records, there is no limitation of the time within which a prosecution shall be commenced. 5 V.I.C. §3541. O People v. Jarmaine Ayala Case No. ST-16-CR-337 Memorandum Opinion For example, in Gov’ of the Virgin Islands v. Moncayo, 31 V.I. 135 (D.V.I. 1994), the court analyzed 5 V.I.C. § 3541 and stated “the court must first determine what acts, the filing of an information or the issuance of an arrest warrant within the limitation period, constitute the ‘commencement’ of a criminal action...” Id. at 142. (emphasis added). Ultimately, the Court found the arrest warrant had effectively commenced the criminal action. Id. (agreeing with government’s position that “where a criminal limitation statute does not provide specifically... the action is ‘commenced’ for purposes of the statute of limitation with the issuance of an arrest warrant found on probable cause.”) Yet, in Miller v. People of the Virgin Islands, 54 V.I. 398 (V.I. 2010) the Supreme Court of the Virgin Islands suggested the filing date of an information would determine when a criminal prosecution commenced, but then cited Moncayo for that assertion. This Court has previously noted the contrariety between Moncayo and Miller in People of the V.I. v. Cummings, 2016 V.I. LEXIS 60, *3 n.3 (V.I. Super. Ct. May 9, 2016) which stated, “The Virgin Islands Supreme Court has suggested the key date is the filing of the information (although it did so in apparent tension with Moncayo, its putative source).” In any event, this Court is guided by the purpose of 5 V.I.C. § 3541 to determine what commences a criminal action. “Generally, statutes of limitations ‘guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge.” Ventura v. People of the Virgin Islands, 64 V.I. 589, 611 n.10 (V.I. 2016) (emphasis added) (citing U.S. v. Marion, 404 U.S. 307, 322 O People v. Jarmaine Ayala Case No. ST-16-CR-337 Memorandum Opinion (U.S. 1971)). Furthermore, in the absence of legislation specifying otherwise, “it is generally held that the prosecution is commenced, and the statute tolled, at the time a complaint is laid before a magistrate and a warrant of arrest is issued. State v. Kruelski, 677 A.2d 951, 955 (Conn. App. Ct. 1996) (collecting cases); see Moncado, 31 V.I. at 142 (“generally...when, as is usually the case there are preliminary proceedings, the prosecution is commenced and the statute is tolled at the time a complaint is laid before a magistrate and a warrant of arrest is issued.”) (citing 21 Am. Jur. 2d, Criminal Law, § 230, p.417) (collecting cases). The Court finds that either the issuance of a proper arrest warrant or the filing of an information, whichever is earlier, commences a criminal action for purposes of 5 V.LC. § 3541. Thus, the criminal action against Ayala commenced in accordance with 5 V.IC. § 3541 because the alleged offense occurred on September 13, 2013, and Ayala’s arrest warrant was issued within three years on August 30, 2016. Therefore Ayala’s motion to dismiss pursuant to 5 V.I.C. § 3541 will be denied." 3 In Ayala’s motion to dismiss pursuant to 5 V.1.C. § 3541 the issue of tolling is discussed. However, because the Court has found the criminal action commenced within the three years of the offense, the issue of tolling has become moot. People v. Jarmaine Ayala Case No. 5T-16-CR-337 Memorandum Opinion Page & An Order consistent with this Memorandum Opinion will be entered Leal lope le DATED: February Z 2017 ae Kathleen Mackay Judge of the Superior Court of the Virgin Islands ATT 2 . RELLA H. EORGE Acting Clerk of th , BY: as oS KY) LORI BOYNES TYS is Court Cle Supervisg¢ Oi lal