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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN PEOPLE OF THE VIRGIN ISLANDS ) CASE NO SX 2019 CR 00034 ) Plaintiff ) POSSESSION OF A ) DANGEROUS WEAPON ) DURING A CRIME OF vs ) VIOLENCE ) ) KHARY WILLIAMS ) ASSAULT IN THE THIRD ) DEGREE Defendant ) ) Cite as 2022 VI Super 43U MEMORANDUM OPINION 1]] THIS MATTER is before the Court on Defendant 5 Motion to Dismiss, filed June 2, 2020 The People of the Virgin Islands (the People ) filed an Opposition to Motion to Dismiss, on July 2, 2020 The defendant filed Defendant 3 Reply to Opposition to Motion to Dismiss, on July 15, 2020 For the reasons set forth herein, the motion will be denied BACKGROUND 112 The defendant, Khary Williams ( Williams or Defendant ), is charged with third degree assault and possession of a dangerous weapon during a crime of violence The People allege that Williams engaged in an altercation with, and ultimately stabbed, the alleged victim on January 14, 2019, in Christiansted, St Croix, U S Virgin Islands Williams was arrested on February 8, 2019, had his initial hearing on February 1 1, 2019, and was arraigned on February 27, 2019 {[3 Williams argues that the charges against him should be dismissed for violation of his Sixth Amendment right to speedy trial He asserts that the government has failed to provide requested discovery for fourteen (14) months (as of the date the motion was filed) and that he has been prejudiced by the delay The People argue that Williams also contributed to the delay by requesting the matter be moved to a different venue, and thereafter the Court did not set a trial date The People also argue that they were never made aware that Williams was missing pertinent evidence LEGAL STANDARD 1l4 The Sixth Amendment to the U S Constitution, applicable to the U S Virgin Islands through § 3 ofthe Revised Organic Act of 1954 ' guarantees the right to a speedy trial U S CONST amend VI 115 To determine whether a defendant’s speedy trial right has been violated, the Court balances four factors (1) the length of delay, (2) the reasons for the delay, (3) the defendant 5 assertion of the right, and (4) prejudice to the defendant Carty v People of the Virgin Islands 56 V I 345 364 (VI 2012) (citing Barker v ngo 407 U S 514 (1972)) A delay must be significantly lengthy to trigger a Barker analysis, and a “longer delay is more ‘presumptively prejudicial to the rights of the defendant Franczs v People 63 V I 724 748 (2015) (quoting Doggett v United States, 505 U S 647, 651 52 (1992)) [N]o one factor is ‘a necessary or sufficient condition to the finding of a deprivation ofthe right ofspeedy trial ”’ Gov I ofthe Virgin Islands v Richardson, 51 VI 449 458 59 (D V I 2009) (quoting Barker 407 U S at 533) However the Virgin Islands Supreme Court has held that the fourth factor, prejudice to the defendant, is the most important factor Rodriguez v People ofthe Virgm Islands 2019 VI 19 1| 44‘ Franczs 63 VI at 746 With this in mind, the Court must balance the four factors to determine whether a defendant 3 speedy trial right has been violated ANALYSIS A The delay was sufficiently lengthy to trigger a Barker analysis 116 As a threshold matter, the Court must determine whether the delay was sufficiently lengthy to trigger a Barker analysis Franczs, 63 V I at 748 The Virgin Islands Supreme Court has held that a delay over twelve (12) months is presumed sufficiently prejudicial to require evaluation of the remaining three Barker factors Carry, 56 V I at 365 The speedy trial clock begins to run “from the date ofarrest or indictment, whichever is earlier People ofthe Virgm Islands v RIvera, 54 VI 116 127 (VI Super Ct 2010) (hereinafter szera 1’) (quoting I mfed States v Barns 589 F 3d 673 768 (3d Cir 2009)) 117 Williams was arrested pursuant to warrant' on February 8, 2019 Although Williams was released on his personal recognizance as of the date of his initial hearing,3 this matter has been pending for over three years Therefore, the delay is sufficiently lengthy to trigger a full Barker analysis B Both parties’ actions contributed to the reason’s for delay $18 Under the second Barker factor, the Court seeks to determine which party is responsible for the delay and why Rodrtgue 2019 VI [9 at ‘ 26 (citing Rivera 1 People 64 V I 540 582 (V I 2016) (hereinafter “szera [1”); Franczs, 63 V I at 748) Pretrial delay is often “inevitable ’ The warrant for Williams s arrest was supported by a probable cause affidavit attested and signed by Virgin Islands Police Officer Jeffrey Nisbett, who was then assigned to School Security Bureau for the District of St Croix and wholly justifiable Doggett 505 U S at 656 but the People ultimately bear the burden of justifying delays Rodriguez 2019 VI 19 atfil 26' Barns 589 F 3d at 679 (quoting Barker 407 U S at 527 (the ‘ultimate responsibility must rest with the government, since it is the [g]ovemment‘s duty to bring a defendant to trial )) {[9 Each reason for a delay is assigned a corresponding weight in favor ofor against the speedy trial claim and then balanced against one another Rodriguez, 2019 VI 19 at 1] 26 (citing Barker, 407 U S at 531) Delays caused by the defendant weigh against granting the motion to dismiss, while delays caused by the People weigh in favor of dismissal Id An unexplained delay should be weighed against the People, in favor of dismissal [d An action by the People can range from being done with reasonable diligence” to being done in “bad faith,” with negligent action falling between the two People v Morton No ST 2010 CR 00164 2018 WL 4348336 at *2 (V 1 Super Ct Jan 12 2018) (citing Dagger! 505 U S at 656) If the People have exercised reasonable diligence in their prosecution, a speedy trial claim will fail, regardless of the length of the delay, as long as there has been no identifiable prejudice to the defendapt Id (citing Doggett, 505 U S at 656 United States v Velazquez 748 F 3d 161 175 (3d Cir 2014)) However if the People caused delay in bad faith, the requested relief is almost automatic Id (citing Velazquez, 749 F 3d at 175) 1110 Williams argues that because this matter has been delayed absent a good faith reason for the delay, it must be dismissed with prejudice The People respond that it is the Court 5 job to set trial dates, which it has not done, and a large reason for the delay was the transfer of the matter from the District of St Croix due to conflicts of interest The Court will now assess each delay or subset of delays to determine whether it weighs in favor of or against granting the motion to dismiss (a) Admmzstratzve and Court Delays 1111 Defendant was arrested on February 8, 2019 Three months later, on May 6, 2019, Williams filed a motion for change of venue in the interest ofjustice, arguing that because the alleged victim is the son of ajudge in the District of St Croix, the matter must be transferred to the District of St Thomas and St John The matter was first assigned to Honorable Judge Douglas A Brady who recused himself on May 15, 2019 The matter was reassigned to Honorable Judge Harold W L Willocks,‘ and he recused himself on May 22 20l9 The matter was next assigned to Honorable Judge Jomo Meade on May 28 2019, and he recused himself on May 29, 20l9 The Defendant then renewed his motion for change of venue on June 3, 2019 The Clerk of the Court transferred the matter to the District of St Thomas and St John on June 5, 2019 The matter was assigned to Honorable Judge Renee Gumbs Carty on June 16, 2019, however she recused herselfon November 13, 2019 The matter was reassigned to Honorable Judge Michael C Dunston on or around February 6, 2020 At that time Judge Dunston though retired, was serving as a Senior Sitting Judge In January 2021, Honorable Judge Sigrid M Tejo succeeded Judge Dunston and his cases were automatically assigned to her Judge Tejo recused herself on April 21, 2021, and the matter was reassigned to the undersigned judicial officer on June 7, 2021 1'12 These administrative recusals and reassignments caused a delay of more than two years The delays include the transfer of venue in the interest ofjustice, the retirement and succession of a Superior Court judge, and multiple recusals in the interest ofjustice, all ofwhich are reasonable and justified causes for delay There is no indication that the People have prosecuted this matter without reasonable diligence, and delays caused by the trial court are generally not weighed heavzly against the prosecution Morton, 2018 WL 4348336 at *7 (citing Rivera I, 54 V I at 129) (emphasis added) However, given that the delays were significantly lengthy, and it is the People 8 responsibility to bring a defendant to trial, Barker 407 U S at 527, the Court will weigh the administrative delays slightly against the People, in favor of dismissal (b) Discovery Delays 1113 On February 27, 2019, Williams was arraigned, and a scheduling order was entered It ordered the People to provide initial discovery within twenty one (21) days of arraignment, scheduled a discovery conference for May 22, 2019, and scheduled jury selection for October 7, 2019 On March 7 2019 the People timely served Williams with discovery On May 6 2019 Williams filed a notice of a supplemental discovery request for fifteen (15) items listed in a letter5 attached to the motion and a demand for personnel and internal affairs records of Officer Jeffrey Nisbett 6 On May 20, 2019, Williams filed two motions one to compel discovery of the supplemental items and another to compel personnel records and internal affairs files of Officer Nisbett On July 30, 2019, the People filed a supplemental response to discovery request providing Williams only with Officer Nisbett’s employee history On September 12 2019, Williams filed a motion to deem conceded his motion to compel discovery and motion to compel personnel records and intemal affairs files of Officer Nisbett The People did not respond On February 6, 2020, Judge Dunston ordered the People respond to Williams’s motions or provide the court with copies 5 See Letter from Kye Walker, Esq to Assistant Attorney General Eric Chancellor dated May 6, 2019 6 At the time of the alleged incident, Officer Nisbett was employed by the Virgin Islands Police Department assigned to the School Security Bureau Officer N of the previously filed responses by March 6, 2020 and scheduled a motions hearing for May 25, 2020 1114 Williams argues that the absence of any good faith reason for these delays requires dismissal Williams states that in his May 6, 2019 letter to the People, he raised the inadequacy of the initial discovery provided, and requested fifteen additional items in his supplemental discovery request 7 Williams further contends that his motion to compel, filed May 20, 2019, reiterated the inadequacy of discovery, and the People still had not responded to the supplemental discovery request nor provided the requested discovery Williams argues that the People ignored both motions as well as the February 2020 order directing the People to respond to the motion by March 6, 2020 8 In all, Williams argues that the People 5 failure to provide adequate discovery has significantly inhibited his ability to prepare for trial The People counter that they were unaware Williams never received or was unable to access the requested surveillance videos (one of the items listed in the May 6, 2019 letter), and the People provided internal affairs’ records on Officer Nesbitt on July 30 2019, which Williams never indicated was inadequate The People contend they have tendered all requested discovery to Defendant 1115 A deliberate attempt to delay trial in order to hamper the defense weighs heavily against the prosecution, but a more neutral reason such as negligence or overcrowded courts weighs less heavily Rodriguez 2019 VI 19 at 11 26 (citing I mted States v Loud Hawk 474 U S 302 315 (1986) Barker 407 U S at 531 United States v Frye 489 F3d 201 210 (5th Cir 2007)) Ultimately the prosecution bears the burden to justify the delay Id It is unclear whether the 7 See Letter from Kye Walker Esq to Assistant Attorney General Eric Chancellor dated May 6 2019 at ‘K 1 Re People were acting with reasonable diligence in providing discovery materials in this matter Although the People did provide Williams with Officer Nisbett 3 employee history on July 30, 2019, they do not offer justification for failing to provide either the full supplemental discovery that Williams requested or the response to Williams’s motions ordered by Judge Dunston However, the Court finds no indication of bad faith in the People 3 preparation and provision of discovery Nevertheless, because Williams claims that, as of the date of the filing of the motion to dismiss, he still had not received the requested supplemental discovery,9 the Court finds that People have not handled the matter as expeditiously as was possible At a minimum, the People's delay amounts to negligent prosecution and is contrary to the speedy trial guarantee Therefore, this delay will weigh slightly against the People and in favor of dismissal (c) Delay Due 10 C0v1a' 19 Related Continuance 116 The motions hearing scheduled by Judge Dunston for May 25, 2020 was ultimately continued “to a date to be determined ’ due to the then new coronavirus disease 2019 (‘ Covid l9”) pandemic The hearing has not yet been rescheduled, as the case was twice reassigned after Judge Dunston retired But there is also no indication that the People responded to Williams’s motions as Judge Dunston ordered in his February 6, 2020 order, nor that they provided any additional discovery Although delays due to Covid 19 are not attributed to either party,'0 the Court notes that the People have failed to respond to Williams’s outstanding motions or provide the requested discovery Therefore, this delay indicates the People have acted with some negligence in the 9 And the docket does not reflect that the People provided any additional discovery since Defendant filed his motion =3 #11:“lElsirgin Islands Supreme Court promulgated numerous administrative orders regarding ongoing judicial proceedings amidst the Covid l9 pandemic all of which include language stating that delays resulting from the prosecution of this matter and the Court will weigh it slightly against the People and in favor of dismissal 1117 The timelines of the court’s administrative delays, the People’s discovery delays, and the Covid l9 pandemic are significantly intertwined Because all ofthese delays weigh slightly against the People, in favor of dismissal, and the delays occurred concurrently throughout the over three year waiting period, this second Barker factor as a whole will weigh slightly against the People and in favor of dismissal C Defendant asserted his right to speedy trial 1118 The third Barker factor asks the Court to evaluate the extent and frequency with which the defendant asserted his right to speedy trial See Rodriguez, 20l9 VI 19 at 11 42 A defendant shows that he has asserted his right to a trial when he is represented by counsel and he can identify a motion or direct instructions to his counsel to assert that right at a time when a formal assertion of his rights would render some chance of success ” Id (quoting Franas, 63 V I at 752; Carly, 56 V I at 366) ‘ Repeated refer[ence] to speedy trial rights indicates a desire to commence trial as soon as possible Id at 11 43 (quoting Rivera II, 64 V I at 584) 1119 Williams first asserted his right to a speedy trial at his arraignment on February 27, 2019 Williams formally asserted his right to speedy trial again in the instant motion to dismiss, filed June 2, 2020 Therefore, given that Williams has asserted his right on two occasions, the Court finds this factor weighs in his favor, in favor of dismissal D The Court does not identify significant prejudice against the Defendant 1120 The Virgin Islands Supreme Court has repeatedly said the final Barker factor, prejudice against the defendant caused by the delay, is the most important Rodriguez, 2019 VI 19 at 11 44, Franczs, 63 V I at 746 To evaluate prejudice, a court considers three interests which the right to speedy trial is designed to protect (l) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired Rodriguez 2019 VI 19 at 11 44 (citing Franczs 63 V I at 753 Carty 56 V I at 367) The defendant bears the burden of proving prejudice Morton,» 2018 WL 4348336, at *7 (citing Carry 56 V I at 367' Barker 407 U S at 532) 1121 Williams makes no arguments regarding prejudice, so the Court will analyze this factor with the information in the file and the parties’ respective arguments on the other factors 1122 The first prejudice factor details that the speedy trial right exists to prevent Oppressive incarceration In the instant matter, Williams was released on his own recognizance at his initial hearing Therefore, Williams has not been incarcerated, and there is no indication that the period during which Williams has awaited trial has been oppressive in any way Accordingly, the first prejudice factor does not weigh in Williams’s favor 1123 The second prejudice factor highlights that the speedy trial right is in place to minimize anxiety and concern of the accused Williams alludes to some anxiety due to the failure of the People to provide adequate and requested discovery, though he does not directly address it Absent a specific articulation of “unusual circumstances suggesting excessive anxiety and concern impacting his health or finances, this factor will not weigh in a defendant’s favor Rodriguez, 2019 VI 19 at 11 45 (quoting WeIs v State 694 S E 2d 350 362 (Ga 2010)) Therefore as Williams expresses no cognizable anxieties or concerns resulting from the delays, the Court will not weigh the second prejudice factor in his favor 1124 The third prejudice factor says that speedy trial right exists to limit the possibility that the defense will be impaired Williams argues that the People’s failure to provide the requested discovery prevented him from being able to properly prepare for his trial He fimher argues that the People’s failure to provide material information, respond to motions, or actively participate in litigation has placed him at a disadvantage in his ability to prepare for trial However, Williams’s statements about the missing discovery are vague, with no argument or indication about how such evidence would specifically have aided his defense The Virgin Islands Supreme Court has stated such speculation is insufficient to show cognizable prejudice to one’s defense See Rivera ll, 64 VI at 586 In addition, the trial date was not set, so Williams should have sufficient time to prepare " Therefore, the Court finds no indication of any impairment to Williams 5 defense and does not weigh this third prejudice factor in Williams’s favor 125 Defendants have the burden to prove prejudice, Morton, 2018 WL 4348336, at *7, and this Court finds Williams has not shown sufficient basis for the Court to conclude that he has been prejudiced by the delay The Court is not persuaded that Williams has suffered prejudice pursuant to the relevant standard adopted by the Virgin Islands Supreme Couit Therefore, this factor will weigh against Williams, and against granting the dismissal CONCLUSION 1:26 This matter has been delayed for a variety ofreasons but much ofthe delay can be attributed to the administrative delays of the Court and the Covid 19 related delays of more than two years In addition, the People’s failure to produce requested discovery contributed to the delay The Court ” Contemporaneous with the issuance of this opinion, the Court will issue a revised scheduling order with a motions finds that the Barker factors, when weighed and balanced, do not justify dismissal Although the delay is sufficiently lengthy, the reasons for the delay weigh only slightly in Williams s favor, and though Williams has asserted his right to speedy trial on two occasions, the most important factor prejudice to the defendant weighs against Williams s motion to dismiss The Court finds no deliberate attempt by the People to delay the trial in order to hamper the defense, Williams is not in custody, and there is no cognizable prejudice to his defense Absent a showing of actual prejudice, the motion must be denied Accordingly, the Court will deny the motion to dismiss, but will simultaneously order the People to respond to Williams s outstanding motions and will schedule a new motions hearing and a pretrial conference under separate order An order consistent herewith will immediately follow é ¢ DATED April 02/ 2022 7 3’ Kathleen Mackay Judge of the Superior Court ATTEST of the Virgin Islands TAMARA CHARLES Clerk of the Court BY {For LATOYA CAMACHO Court Clerk Supervisor Q3J&l&