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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, ) ) Plaintiff, ) CASE NO. ST-13-CR-206 ) v. ) ) CECIL FRANCIS, ) ) Defendant. ) ) MEMORANDUM OPINION On June 3, 2014, Defendant Cecil Francis moved to dismiss the Information, asserting that continuances granted since the time of his arrest have violated his constitutional right to a speedy trial. The People responded to the motion on June 6, 2014, arguing that “Defendant has failed to show that he has suffered any undue prejudice.”! Because the Court has not found a speedy trial violation, Defendant’s motion to dismiss is denied. FACTUAL AND PROCEDURAL HISTORY Francis was arrested on May 6, 2013, probable cause was found on May 7, 2013, and bail was set at $200,000.00. Defendant has been in custody continuously since his arrest. A six count Information was filed on May 22, 2013, charging the movant with various sex crimes against a minor. After the Court found Defendant to be indigent, the matter was officially assigned to the Territorial Public Defender on May 23, 2013. On May 29, 2013, the Court scheduled jury selection for July 22, 2013, with a jury trial to be conducted during the three (3) week trial period thereafter. 1 People’s June 6, 2014, Opposition to Defendant’s Motion to Dismiss Based on Speedy Trial, p. 3; see LRCi 5.1 and 11.2, People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 2 of 11. Francis filed a Renewed Demand for Discovery on June 13, 2013, and a Supplemental Discovery Request on June 25, 2013. On June 25, 2013, one month before jury selection was to commence, Francis informed the Court that he was still awaiting information from his employer, forensic DNA, text messages, and the criminal history of the victim. When the People requested a continuance at the July 1, 2013, pretrial conference, to commence plea negotiations and because the prosecuting attorney would be off-island, the Court calendared jury selection for November 25, 2013.3 However, Defendant waived trial by jury on November 14, 2013,* and the Court scheduled the matter for a bench trial to be held on December 9, 2013.° Since the Public Defender’s office had also filed a motion to be relieved as counsel on November 6, 2013, claiming a conflict of interest with a witness for the People, the Court appointed Attorney David Cattie as Defendant’s counsel, and continued the bench trial to February 10, 2014, through an Order entered December 11, 2013. Defendant filed exhibit and witness lists on February 6, 2014. On February 7, 2014, the People filed a motion to continue the bench trial, stating that two (2) of its witnesses would not be available during the February trial period and that “it has recently received documents from the Defendant’s counsel regarding the possibility of an alibi defense.”© The matter was then continued to March 26, 2014.7 On March 24, 2014, the People again moved to continue, asserting that during discovery it was learned that the dates listed on the Information would need ? June 25, 2013, Pretrial Memorandum, p. 1. 3 July 23, 2013, Order. 4 Waiver of Trial by Jury, dated November 8, 2013, and filed with the Court on November 14, 2013. > November 18, 2013, Order. ® February 7, 2014, proposed Order, filed by the People. 7 February 7, 2014, Order. People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 3 of 11. to be amended.® The Court granted the People leave to amend the Information and continued the trial to May 6, 2014.9 The undersigned was unexpectedly out of the Territory the week of May 6, 2014, due to his brother’s death, and the bench trial was moved to June 5, 2014. Finally, the attorney for the People had a family emergency in May of 2014,"° resulting in the bench trial being rescheduled to its present date, July 29, 2014." Defendant’s Motion to Dismiss for Speedy Trial Violation was filed on June 3, 2014, and the People opposed the motion on June 6, 2014. STANDARD OF REVIEW -— SPEEDY TRIAL Pursuant to the Sixth Amendment of the United States Constitution, which was extended to the Virgin Islands through the Revised Organic Act,!? “[iJn all criminal prosecutions, the accused shall enjoy the right ... to have a speedy, and public trial”. The right “attaches at the time of an arrest or formal charge and protects a defendant from undue post-accusation delay.”!3 Our courts have adopted the four factors established by the United States Supreme Court in Barker v. Wingo'* when determining whether a defendant’s speedy trial has been violated: “(1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his rights; and (4) and prejudice to the defendant.”'* “The burden of proving prejudice lies with the defendant.”!® ® The People filed an identical motion to amend on May 7, 2014. 9 March 25, 2014, Orders. 1° People’s May 29, 2014, Emergency Motion for Continuance. 't May 29, 2014, Order. 2 48 U.S.C. § 1561; Revised Organic Act of 1954, § 3 (“The following provisions of and amendments to the Constitution of the United States are hereby extended to the Virgin Islands to the extent that they have not been previously extended to that territory and shall have the same force and effect there as in the United States or in any State of the United States: ...the first to ninth amendments inclusive...”). '3 Carty v. People of V.1., 56 V.1. 345, at *8 (V.1. 2012) (citing United States v. Marion, 404 U.S. 307, 313 (1971). 4 407 U.S. 514 (1972). '5 Carty, 56 V.1. 345, at *10 (citation omitted). People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 4 of 11. “[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case,”!” and the Court “evaluate(s) and scrutinize(s) the conduct and actions of the trial court, [the defendant] and the People and the role each played in causing the delay before trial.”!® If a speedy trial violation is found, “the typical remedy seeks ‘to counteract any resulting prejudice demonstrated by a petitioner.’”!? DISCUSSION I. Length of Delay Defendant seeks dismissal with prejudice because he has been “continu[ally] incarcerat[ed] on this matter for over a year,” in violation of his constitutional right to a speedy trial.2° “The length of delay is measured from the earlier period of the date of an arrest or an indictment.””! If the delay is neither “unusual” nor “interminable,” “there is no need for further inquiry into the remaining factors of the balancing test.” Francis was arrested on May 6, 2013, over fourteen (14) months before his July 29, 2014, bench trial. The Third Circuit “has held that a delay of fourteen months is sufficient to evaluate '6 Carty, 56 V.1. 345, at *12 (citing Hakeem vy. Beyer, 990 F.2d 750, 760 (3d Cir.1993)). '7 Barker, 407 U.S. at 522 (citing Beavers v. Haubert, 198 U.S. 77, 87 (1905)). '8 Carty, 56 V.1. 345, at *10. 19 Simmons v. Beyer, 44 F.3d 1160, 1171 (3d Cir, 1995) (quoting Burkett v. Cunningham, 826 F.2d 1208, 1222 (3d Cir.1987)). Although this decision was not rendered by the Third Circuit as it served as the de facto court of last resort in the Virgin Islands, Najawicz v. People, 58 V.I. 315 (V.I. 2013), Simmons and other federal cases cited throughout this Opinion clarify the Sixth Amendment right to a speedy trial, which is applicable to our Territory via Section 3 of the Revised Organic Act of 1954. The Court finds that the federal cases clarifying the right to a speedy trial under the U.S. Constitution provide the “appropriate... rule[s] based on the unique characteristics and needs of the Virgin Islands” and the parties. Govt. of VI. v. Connor, S. Ct. Civ. No. 2013-0095, 2014 WL 702639, at *3 (V.1. 2014). 20 Defendant's June 03, 2014, Motion to Dismiss for Speedy Trial Violation, p. 1. 2! Carty, 56 V.I. 345, at *11 (citing United States v. Battis, 589 F.3d 673, 678 (3d Cir. 2009)). 22 Carty, 56 V.1. 345, at *11. 3 Carty, 56 V.1. 345, at *11 (citing Doggett v. United States, 505 U.S. 647, 652-53 (1992)). People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 5 of 11. »24 and “other circuits have held that a delay that exceeds one year the remaining Barker factors, has even been presumed to be sufficiently prejudicial to require evaluation of the three remaining factors.”*5 Although not singularly determinative, because Francis’s trial has been deferred for over 14 months, the Court will scrutinize the remaining Barker factors. Il. Reason for the Delay This matter has been continued seven (7) times: four (4) times at the request of the People, two (2) times by the Court’s own initiative and once (1) because Defendant waived jury trial. A. THE DELAYS ATTRIBUTABLE TO FAMILY EMERGENCIES Do NoT WEIGH AGAINST EITHER PARTY OR THE COURT. Twice the matter was delayed because of unexpected family emergencies. As the Defendant points out, delays necessitated by family emergencies involving essential and irreplaceable parties to the matter are not weighed in consideration of a speedy trial violation.”® Both occasions necessitated the absence of either the Judge or the Prosecutor, and because each unforeseeable and unfortunate situation arose within days of trial, it was both inappropriate and undesirable for a new judge or prosecutor to proceed with the matter.?”? Therefore the two (2) 4 Carty, 56 V.I. 345, at *11 (citing Battis, 589 F.3d at 678). * Carty, 56 V.1. 345, at *11 (citing United States v. Cardona, 302 F.3d 494, 497 (Sth Cir.2002); United States v. Waterford, 468 F.3d 891, 901 (6th Cir.2001)). 26 United States v. Hale, 685 F.3d 522, 536 (Sth Cir, 2012) cert. denied, 133 S. Ct. 559, 184 L. Ed. 2d 343 (ULS. 2012) (“The government's motion provides enough information... to determine that [the witness] was ‘a critical fact witness’ whose family emergency made him unavailable to attend trial and any efforts to take him away from his family... the same week the incident occurred would be unreasonable... [The] ends of justice were served by the... court's grant of the government's motion to continue, and... [the] court's exclusion from the speedy trial clock of the [resulting delay] was not clearly erroneous”); State v. Ochoa, 2014-NMCA-065, 2014 WL 982506, at *3 (“One trial setting was vacated by the district court due to a death in the judge's family, causing a three-month delay. ... We do not weigh [this] delay[] against any party”). 27 The Court acknowledges that this is not a hard and fast rule. If it is reasonable to proceed with the trial without the affected party or if the party is realistically replaceable in time for trial, the Court will make the required ir quiry as to whether the family emergency delay did or did not violate the defendant’s rights to a speedy trial. People v. Ceci] Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 6 of 11. month three (3) week delays ascribable to family emergencies will not be considered in the Court’s calculations. B. CONTINUANCES TO PROTECT DEFENDANT’S DUE PROCESS AND FAIR TRIAL RIGHTS ARE ATTRIBUTABLE TO THE DEFENDANT. The right to a speedy trial is “imposed by the Due Process Clause of the Fourteenth t,”"* which, amongst other things, guarantees an accused a fair trial.27 On two (2) Amendmen occasions, the Court found that the continuances requested by the People were necessary to preserve Defendant’s due process right to a fair trial. The assignment of new defense counsel to this matter a month before the then scheduled December trial required a two (2) month extension in order to allow Defendant’s attorney sufficient time to prepare for trial. Then, in March 24, 2014, two (2) days before the then scheduled bench trial, while interviewing the minor alleged victim, the People discovered that the dates listed in the Information were incorrect, and in light of Defendant’s desire to present alibi evidence, this change necessitated additional preparation time for all parties. Therefore, these delays, which totaled approximately three (3) months and two (2) weeks, are attributed to Francis.*° As discussed below, Defendant was not prejudiced by the continuances granted on his behalf, but he would have been prejudiced if forced to proceed to * trial without them. C. DEFENDANT’S WAIVER OF A JURY TRIAL NECESSITATED A CONTINUANCE TO SCHEDULE A BENCH TRIAL. The Defendant waived jury trial on November 14, 2013, eleven (11) days before the matter was schedule for a November 25, 2013, jury selection. The Court immediately removed the matter from the jury docket and scheduled a bench trial for December 9, 2013, a two (2) 28 Barker, 407 U.S. at 515 (citing Smith v. Hooey, 393 U.S. 374 (1969) and Dickey v. Florida, 398 U.S. 30 (1970)); 48 U.S.C. § 1561; Revised Organic Act of 1954, § 3. 29 People v. George, 59 V.1. 368, at *4 (V.I. 2013). 3 Carty, 56 V.1. 345, at *I1. People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 7 of 11. week continuance. Because this change was initiated by Defendant, this time is attributed to him. D. THE PEOPLE’S REQUESTS FOR CONTINUANCES WERE REASONABLE AND DID NOT VIOLATE DEFENDANT’S RIGHTS TO A SPEEDY TRIAL. On July 1, 2013, the People requested a continuance because the prosecuting attorney would be off-island and plea negotiations would soon commence. The matter — then scheduled for a three-week trial period after July 22, 2013 — was continued to November 25, 2013, to accommodate the People’s and the Public Defender’s schedule, as well as the Court’s docket.3! The People’s February 7, 2014, request stated that two (2) of its witnesses would not be available for trial and that it had just been notified of Defendant’s intention to present an alibi defense. 32 Because there is no The right to a speedy trial “does not preclude the rights of public justice. evidence that the People sought to delay the trial “for the purpose of obtaining an unfair advantage in this case or in an effort to impede, obstruct, or hamper the defense in preparing or presenting its case,” the Court finds that these extensions were reasonable. Additionally, because the Defendant consented to the initial four (4) month continuance, that delay is attributed in some degree to both parties. However, the approximately one (1) month two (2) week continuance granted to the People to allow them additional time to secure witnesses and prepare for Defendant’s alibi defense*? is attributable entirely to the People. 3! During the pretrial conference, the attorney for the People requested that the trial, then schedule for July 22, 2013, be continued to August. Defendant’s then attorney requested a September trial date and stated that she had no objection to a continuance. The Court review its calendar and set the matter for November 4, 2013. July 1, 2013, Record of Proceedings: Pretrial Conference, p. 2. 32 Beavers, 198 U.S. at 87. 33 The Defendant is under no obligation to serve written notice of an alibi defense unless specially requested by the People. FED. R. CRIM. P. 12.1(a). It does not appear that this request was made, and the Court will err on the side of an assumption that it was not. However, if this request had been made, and the Defendant had only supplied the information several days before trial, as he has done here, the ensuing delay would be attributable to him. People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 8 of 11. E. DISCOVERY HAS BEEN COMPLEX ENOUGH TO JUSTIFY SOME OF THE CONTINUANCES., Although Defendant contends that “[t]he delay has nothing to do with the complexity of the case,’4 it has involved some adjustments to accommodate pre-trial preparation. The Court granted one (1) continuance to allow Francis’s new defense council sufficient time to prepare for trial. Another continuance was granted to ensure that the parties had time to adjust to the change of dates in the Amended Information. This case involves the alleged sexual assault of a minor on multiple occasions, a sensitive matter that requires extra time to prepare and then clarify the victim’s testimony; it is not unexpected that adjustments to the trial schedule would need to be made during discovery involving a child, and it is well accepted that special considerations are made when the victim is a minor.*> Moreover, the change in the alleged dates of the assaults is especially significant because Defendant seeks to present an alibi defense. These continuances benefited and were necessary for both parties. III. Defendant’s Assertion of His Rights “An assertion of [a defendant's right to a speedy trial] provides evidence that the defendant was being deprived of his constitutional right since the more serious the deprivation, the more likely a defendant is to complain.”3° A defendant who is represented by counsel can identify a motion declaring that right at a time when a formal claim would have a chance to succeed on the merits.>” Although Defendant first asserted his right to a speedy trial at his arraignment on May 23, 2013, he initially sought a jury trial. After waiving trial by jury, Defendant did not assert his right to a speedy trial again until he filed his motion to dismiss on 4 Defendant’s June 3, 2014, Motion to Dismiss for Speedy Trial Violations, p. 5. 35 See, for example, Maryland v. Craig, 487 U.S. 836, 857-858 (Confrontation Clause and testimony by children); US. v. Clark, 335 Fed. Appx. 181 (3d Cir. 2009) (child victim impact statements and due process rights). 36 Carty, 56 V.I. 345, at *12 (quoting Battis, 589 F.3d at 680). 7 Carty, 56 V.1. 345, at *12 (citing Battis, 589 F.3d at 680). People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 9 of 11. June 3, 2014, less than two (2) months before trial. His motion was filed shortly after the Court had to continue the trial because of family emergencies experienced by both the Court and the People, neither of which count toward the Court’s consideration of whether Defendant was _ prejudiced by any delay. Further, the fact that Defendant’s motion to dismiss was filed shortly before trial suggests that it was filed for tactical reasons, Because the continuances were not prejudicial either individually or collectively, do not weigh into the Court’s consideration of this motion, and/or were for the Defendant’s benefit; and because the motion to dismiss was made shortly before trial is scheduled to commence; the Court finds that Defendant’s motion was not made at a time when a formal assertion “would render some chance of success.” -IV. Prejudice to the Defendant The three (3) interests that the speedy trial right is designed to protect are: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.*8 The most serious criteria involves disruption of defendant’s ability to adequately prepare his case.°? A. DEFENDANT DOES NOT ESTABLISH EITHER OPPRESSIVE PRETRIAL INCARCERATION OR EXCESSIVE ANXIETY AND CONCERN. Although Defendant has asserted that he has “suffered” due to his pre-trial detention and “impairment of his defense” and that he has sustained “financial losses and the curtailment of his associations,” *° these assertions are conclusory and not supported by evidence.*! 38 Carty, 56 V.1. 345, at *12 (quoting Barker, 407 U.S. at 532). 3 Id. 4° Defendant’s June 3, 2014, Motion to Dismiss for Speedy Trial Violation, pp. 5-6. 4! “Defendant... has failed to identify any prejudice other than that stemming from his pre-trial incarceration, which, given the length of the delay, only slightly weighs in favor of dismissal.” Brown, 55 V.I. 496, at *4 (citing Barker, 407 U.S. at 534 (finding that “prejudice was minimal” because even though the defendant “liv[ed] for over four years under a cloud of suspicion and anxiety” and “spen[t] 10 months in jail before trial ... there is no claim that any ... Witnesses died or otherwise became unavailable owing to the delay”) (further citation omitted)). People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 10 of 11. B. THE LENGTH OF THE DELAY DID NOT PREJUDICE THE DEFENDANT. The continuances requested by or for both parties and the Court resulted in over fourteen (14) months of delay. The three (3) months and two (2) weeks of continuances necessitated by changes in defense counsel and changes in the alleged dates of occurrences were extended almost exclusively for his benefit,4? as was as the two (2) week continuance after Defendant waived his right to trial by jury, and these are attributable to him. The two (2) month three (3) week delay necessitated by family emergencies does not count towards the Court’s consideration of prejudice. The one (1) month two (2) week continuance requested by the People to adequately prepare for trial is attributed to the People. It should not be overlooked that jury selection was expeditiously scheduled to take place only two (2) months after Francis’s arrest. Had Defendant not waived a jury trial, a prompt disposition of this case would have been had. Thus, the subsequent continuances of the bench trial could, to substantial extent, be considered attributable to Defendant; and the Court finds the resulting four (4) month delay initiated by the People on July 22, 2013, is only partly attributable to the People® and not unduly prejudicial to the Defendant. Defendant has failed to meet his burden of demonstrating that he has been prejudiced by the delay, and the first three (3) Barker factors do not “weight so heavily in favor of the defendant that prejudice is to be presumed.” 42 Indeed, denial of a continuance to allow Defendant time to adjust his alibi defense to the corrected dates in the Amended Information would have subjected Defendant to the immediate risk of “try[ing to] hit a moving target.” Defendant’s June 3, 2014, Motion to Dismiss for Speedy Trial Violation, p. 6. 4 US. v. Gould, 672 F.3d 930, 937 (10" Cir. 2012) (“The reason for the delay weighs against the government in proportion to the degree to which the government caused the delay”) (citation omitted). 44 US. y. Cutno, CRIM.A. 05-268, 2013 WL 5960831, at *3 (E.D. La. Nov. 6, 2013) (quoting United States v. Serna—Villarreal, 352 F.3d 225, 230 (Sth Cir.2003). People v. Cecil Francis Case No. ST-13-CR-206 Memorandum Opinion, July 24, 2014 Page 11 of 11. CONCLUSION After balancing the Barker factors, it is clear that the length of the delay was attributable to or on the behalf of both parties, and the short delays necessitated by family emergencies do . hot count toward the Court’s calculations. This is not a case that was languishing on the trial court's docket for a number of years, and there has been no lengthy period of judicial inactivity during Francis’s pre-trial incarceration. Significantly, Francis has failed to prove how the length of the delay has prejudiced him. He has presented no evidence that evidence has been Icst, that the recollection of any witnesses has faded, or that other prejudice to his defense has resulted from delay. Therefore, the Court finds that Defendant’s speedy trial rights have not been violated. An appropriate Order is issued herewith. Dated: July 24, 2014 ee HON. MICHAEL C. DUNSTON JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS 4 Carty, 56 V.1. 345, at *13. IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff, ) CASE NO. ST-13-CR-206 CECIL FRANCIS Defendant ORDER The Court having issued a Memorandum Opinion on this date, it is ORDERED that Defendant’s June 3, 2014, motion to dismiss is DENIED: and it is ORDERED that copies of this Order shal! be directed to counsel of record Dated: July), 2014 iaieinimer ses are mT ml HON. MICHAEL C. DUNSTON strella George JUDGE OF THE SUPERIOR COURT Acting Clerk f Coy a) | —— a OF THE VIRGIN ISLANDS UV, OP a) ay WT Onl ori Boyne¢+T Court Clerk Supervisor ay, [4