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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX THE PEOPLE OF THE VIRGIN ISLANDS Loe CASE NO. SX-09-CR-0000435 Plaintiff Vs ACTION FOR: 14 V.I.C. 295(1) JONATHAN HAKIM Ne ee wee ws ee Defendant NOTICE OF ENTRY OF MEMORANDUM OPINION AND ORDER To: MAGISTRATES OF THE SUPERIOR COURT "LAW CLERKS, LAW LIBRARY, RECORD BOOK, IT JUDGES OF THE SUPERIOR COURT JOSEPH PONTEEN, ESQ. BEVERLY A. EDNEY, ESQ. Please take notice that on August 22, 2014 a(n) MEMORANDUM OPINION AND ORDER dated August 21, 2014 was entered by the Clerk in the above-entitled matter. Dated: August 22, 2014 Estrella H. George ACTING CLERK OF THE SUPERIOR , Coe Fi Si IRIS D. CINTRON COURT CLERK II SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, ) ) CASE NO. SX-09-CR-435 Plaintiff, ) V. ) MURDER IN FIRST DEGREE, ETC. ) JONATHAN HAKIM, ) Defendant. MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on Defendant Jonathan Hakim’s Motion to Dismiss Because of Post-Accusation Delay and Memorandum of Law in Support (jointly “Motion”), filed July 31. 2014. The People have not responded. For the reasons that follow, Defendant’s Motion will be denied. PROCEDURAL BACKGROUND Defendant was arrested August 15, 2009 and arraigned on September 2, 2009, at which time he requested a speedy jury trial. By Order dated November 27, 2009, jury selection and trial was originally scheduled for May 31, 2010. However, at the May 21, 2010 pretrial conference, Defendant’s counsel advised the Court that the defense was not ready for trial. Counsel for the People advised that the case was not ready to go forward. The trial was continued without date. By Order dated July 14, 2010, a calendar call was set for September 24, 2010 with jury selection and trial to follow on October 4, 2010. At the September 24, 2010 calendar call, Defendant represented that discovery had been received but that a couple items remained missing. The People stated that they were not ready for trial on October 4, 2010, and that discovery would be completed by November 5, 2010. The Court set the matter for calendar call on November 5, 2010. The Court’s file contains no information concerning People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order the November 5, 2010 calendar call, but reflects that by Order dated January 26, 2011, the case was set for Readiness Call on March 10, 2011 (later continued on account of the prosecutor’s illness to March 24, 2011), and for jury selection and trial on April 4, 2011. When the matter came before the Court on March 24, 2011, counsel advised that Defendant was not ready to go forward with the trial on April 4, 2011. The Court scheduled calendar call for June 3, 2011. At that calendar call, Defendant requested a continuance, which the Court granted, until July 18, 2011. The Court sua sponte rescheduled the calendar call, first to July 19, 2011, and subsequently to August 11, 2011. On that date, Defendant requested a trial date in January, 2012; the People declared that they would be ready for trial and the Court ordered a calendar call for November 17, 2011. On November 17, 2011, Defendant advised that discovery had not been received, and the Court ordered another calendar call for January 30, 2012, which subsequently moved to February 7, 2012. On that date, Defendant represented that the matter might be disposed of by agreement, and requested a disposition date after February 15, 2012. The Court advised that a date would be scheduled for disposition following the parties’ submission of the appropriate documentation. The parties submitted nothing following the February 7, 2012 calendar call, and the matter languished until the Court sua sponte by Order entered December 21, 2012 set the matter for disposition and/or change of plea hearing scheduled for January 24, 2013. On January 24, 2013, Defendant’s counsel stated that the People will tender a last offer, and requested a continuance on the understanding that the matter was to be resolved. That same day, a new disposition hearing date was set for February 22, 2013. On February 22, 2013, defense counsel advised that a plea offer had been tendered and requested another change of plea hearing. The People People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order requested that the change of plea hearing be rescheduled for February 28, 2013 and the Court so ordered. On February 28, 2013, Defendant indicated that the plea offer had been tendered, but requested a trial date. The People indicated that they had no problem with the rejection of the plea offer, and were ready for trial. Defendant’s counsel advised that he had been unable to fully explain the plea offer to his client. The People requested a date certain, and the Court orally scheduled a status conference for May 20, 2013 and jury selection and trial for October 21, 2013. The Court’s written Order entered March 18, 2013 confirmed the trial date, set the status conference for May 21, 2013, set interim dates for motions and pretrial briefs and set a final pretrial conference for September 26, 2013. For reasons not clear from the record, the pretrial conference date was rescheduled to October 8, 2013. At the October 8, 2013 pretrial conference, counsel for Defendant requested a continuance of the pretrial conference to October 22, 2013, one day after the date previously set for trial. The People did not object, and the Court rescheduled the pretrial conference to October 22, 2013. At the October 22, 2013 pretrial conference, defense counsel informed the Court of the deterioration of the attorney-client relationship, as the result of which he orally moved to be relieved as counsel. The Court informed Defendant directly of the ramifications of the withdrawal of his counsel, including the delay of the case with the need to appoint new counsel. With Defendant’s approval, the Court granted counsel’s motion and relieved the Office of Territorial Public Defender from the representation of Defendant in this case. The Court continued the matter to December 13, 2013. By Order entered October 29, 2013, the Court appointed Thomas Alkon, Esq. to represent People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order Defendant. By Order entered November 22, 2013, the Court granted Attorney Alkon’s November 13, 2013 Motion to be Relieved as Counsel. By Order dated November 27, 2013, John K. Dema, Esq. was appointed to represent Defendant. By Order dated December 9, 2013, the Court granted Attorney Dema’s December 9, 2013 Motion to be Relieved as Counsel. Concurrently, the Court continued the December 13, 2013 status conference without new date. By Order dated December 19, 2013, the Court appointed Beverly Edney, Esq. to represent Defendant. On January 7, 2014, Attorney Edney filed a Motion to Withdraw, which was denied by Order entered May 14, 2014, signed a day earlier, the same day that Attorney Edney filed her Renewed Motion to Withdraw.! By Order entered June 20, 2014, this matter was scheduled for jury selection and trial on September 8, 2014, which trial date remains in effect. DISCUSSION Defendant bases his Motion on his lengthy period of incarceration (a five year delay between his arraignment and his upcoming trial date), claiming a violation of his Sixth Amendment right to a speedy trial as set out by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Motion, at 2; 6. Defendant claims that "[e]ach time the matter was scheduled for trial, it has been continued either because of the People’s failure to make discovery disclosure, conflict in its trial schedule or the Court’s administrative problems.” Motion, at 2. As a result of Defendant’s alleged excessive post- 1 The Court confirmed on the record at July 16, 2014 status conference that Attorney Edney’s renewed Motion to Withdraw was also denied. People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order arrest delay, Defendant experienced “...prejudice in the form of incarceration or anxiety” (Motion, at 7 (citing Moore v. Arizona, 414 U.S. 25, 26 (1973)) as well as the “...possibility that his defense to these serious charged is impaired and there is a loss of exculpatory evidence.” Motion, at 7. For these reasons, Defendant seeks dismissal of this action due to excessive post-indictment delay.” Defendant’s Sixth Amendment Right to a Speedy Trial Has Not Been Violated The Court concludes that Defendant’s Sixth Amendment right to a speedy trial has not been violated. The federal Speedy Trial Act (18 U.S.C. § 3161) does not apply to the U.S. Virgin Islands. See Government v. Bryan, 818 F.2d 1069, 1072 (3d Cir.1987). Instead, the Superior Court applies the U.S. Supreme Court’s analysis in Barker v. Wingo to determine whether Defendant’s Sixth Amendment right to a speedy trial was violated by the post-arrest delay. A court must examine the “(1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) prejudice to the defendant.” Virgin Islands v. Jones, 2010 WL 7371474* 2 (V.I. Super. 2010) (citing Barker, 407 U.S. at 530). “None of these four factors are either necessary or sufficient, individually, to support a finding that a defendant's speedy trial right has been violated.” Barker, 407 U.S. at 533. If Defendant’s Sixth Amendment rights have been violated, the sole remedy is to dismiss the Information against him. See Strunk y. U.S. 412 U.S. 434 (1973). The length of delay is measured from either the date of arrest or the date a defendant is indicted, whichever is earlier. See U.S. v. Battis, 589 F.3d 673, 678 (3d Cir. 2009). See also U.S. v. Velasquez, 749 F.3d 161 (3d Cir. 2014); U.S. v. Claxton, 2014 WL 4056561 (3d Cir. August 18, ? Defendant claims that his Fifth Amendment right to due process has also been violated. Motion, at 7. However, Defendant fails to articulate how alleged excessive post-arrest delay constitutes a deprivation of due process, and cites no case law in support of his assertion. The Court analyzes Defendant’s Motion pursuant to his Sixth Amendment speedy trial right, appropriate for Defendant’s claim that excessive time has passed between the date of his arrest and the date of trial. People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order 2014). In the Third Circuit, a post-accusation delay in excess of fourteen months has been considered prejudicial and requires a court to analyze the three remaining Barker factors. Battis, 589 F.3d at 678. (1) Length of the delay. In this case, Defendant was arrested on August 15, 2009. Defendant’s trial is currently set to begin on September 8, 2014, a period of over five years between arrest and trial. The length of delay between arrest and trial is so substantially long as to necessarily trigger an evaluation of the three remaining Barker factors. (2) Reasons for the delay. This second Barker factor examines whether primary responsibility for the delay lies with the People or with the Court. If so, this factor is deemed satisfied and the Court proceeds to complete the Barker analysis. In examining reasons for delay: Evidence of a deliberate attempt to hamper the prosecution must be weighed heavily against the Government. A more neutral reason like institutional dysfunction (i.e., overcrowded docket) or neglect “should be weighed less heavily but nevertheless be considered the ultimate responsibility of the Government.” U.S. v. Benjamin, 28 V.I. 133, 149 (D.V.L. 1993) citing Barker, 407 U.S. at 530. The record in this case reveals that Defendant himself, on multiple occasions, requested that the Court continue the trial date, or took other affirmative steps to remove the case from the trial track to pursue plea negotiations.’ In total, Defendant requested that his trial be continued three times, and moved for additional continuances of scheduled pre-trial matters. These delays attributed to Defendant total approximately 30 months. The People, by comparison, only requested one trial continuance which resulted in a delay of approximately five months, attributable directly to the People in the Barker analysis. The People and Defendant mutually agreed to the first trial continuance (May 3 May 31, 2010 - October 4, 2010 (approximately five months); April 4, 2011 - August 11, 2011 calendar call (more than four months); February 7, 2012 - January 24, 2013 (almost twelve months, while promised documentation related to an announced plea agreement was never submitted); January 24, 2013 - October 21, 2013 (almost nine months elapsed after tender of plea offer that counsel was unable to fully explain to Defendant and the scheduled trial date). People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order 31-2010 - October 4, 2010). The Court was not responsible for any significant delay.’ In fact, the Court acted on its own accord, following Defendant’s February 7, 2012 request for a date for disposition, which the Court indicated would be set following the parties’ submission of the appropriate documentation. When no documentation was filed, on December 21, 2012, the Court sua sponte ordered the matter set for disposition and/or change of plea hearing on January 24, 2013. On that date, Defendant’s counsel stated again that the matter would be resolved and a new disposition date of February 22, 2013 was scheduled, then postposed at the parties’ request to February 28, 2013. On that date, Defendant indicated that there would be no plea, and demanded a trial date, scheduled at that time for October 21, 2013. None of this delay can be attributed against the People, who had first indicated a readiness for trial at the August 11, 2011 calendar call. The October 8, 2013 pretrial conference was continued at Defendant’s request to October 22, 2013, at which hearing counsel noted the deterioration of the attorney-client relationship and sought to be removed from Defendant’s representation. New counsel was promptly appointed. The additional period of delay between October 22, 2013 and the present September 8, 2014 trial date included the appointment and withdrawal of two attorneys for Defendant (and two denied motions to be relieved by Defendant’s present counsel). This period also cannot be attributed against the People who have maintained a trial ready status for more than the past three years. The Court finds that Defendant bears responsibility for approximately 30 months of delay, the People bear responsibility of approximately five months of delay, and the Court is responsible for “The Court is deemed responsible for approximately one month of delay resulting from the sua sponte rescheduling of two pretrial hearings: July 19, 2011 status conference moved to August 11, 2011; January 30, 2012 status conference moved to February 7, 2012. Neither instance of rescheduling affected the trial date. People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order approximately one month of the total delay of approximately five years. As such, the second Barker factor weighs against the Defendant. (3) Defendant’s assertion of his right to speedy trial. In analyzing this third Barker factor, the Court looks to how and when Defendant asserted his right to a speedy trial. A defendant can demonstrate his assertion of the right by referencing a motion formally containing such an assertion. See Battis, 589 F.3d at 681. In this case, Defendant asserted his right to a speedy trial at the outset of the case — at his arraignment on September 2, 2009. Yet, nowhere else in the record has Defendant asserted his right to trial. In fact, for an extended period, from at least February 7, 2012 to January 24, 2013, Defendant actively pursued a plea agreement with the People, before seeking and obtaining a trial date when resolution by plea agreement did not materialize. While it cannot be said that Defendant waived his right to speedy trial, he was, at best, inconsistent in his assertion of the right, such that this third Barker factor also does not weigh in favor of Defendant. (4) Prejudice to Defendant. Finally, the Court examines this most critical Barker factor: whether Defendant experienced actual prejudice as a result of the post-accusation delay. See Wells v. Petsock, 941 F.2d 253, 258 (3d Cir. 1991). Defendant states that “...there is a possibility that his defense to these serious charges is impaired and there is a loss of exculpatory evidence.” See Motion, at 6. When considering prejudice, courts consider three interests of the defendant: (1) 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. See Doggett, 505 U.S. at 655. The latter interest is People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order most important because “the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Jd. The defendant has the burden of proving prejudice. See Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir. 1986). Defendant argues that the delay in bringing the matter to trial has been “unquestionably burdensome and prejudicial,” especially in light of the “sub-standard conditions and or other oppressive factors beyond those that necessarily attend imprisonment” at the Golden Grove Correctional Facility. Motion, at 9. The Third Circuit has held the amount of time a Defendant is detained is not the dispositive question. Defendant quotes the standard of proof required of a defendant, who must offer “proof of sub-standard conditions or other oppressive factors beyond those that necessarily attend imprisonment.” Hakeem v. Beyer, 990 F.2d. 750, 762 (3d Cr. 1993) (citing Wells v. Petsock, 941 F.2d 253, 258 (3d Cir. 1991)). Length of time detained pretrial is not dispositive as “...credit for time served mitigates the potential oppressive effects of ... incarceration.” Hakeem, 990 F.2d. at 762 (citing Gray v. King, 724 F.2d 1199, 1204 (Sth Cir.), cert. denied, 469 U.S. 980 (1984)). Citing no specific instances that prejudiced Defendant personally and directly, he states that he has been detained “in a prison atmosphere where contrabands were often brought into the prison, sexual activity between prisoner and correction officer, inmates brutally stabbed and above all defendant is incarcerated in a prison that is under federal consent decree because of the prisoners violation of their constitutional rights guaranteeing their safety and treatment at the prison.” The result of this “atmosphere” is that these “prison conditions further swing the balance of prejudice in Mr. Hakim’s favor.” Motion, at 9. Without any indication of specific prejudice, the Court is compelled to find that Defendant’s People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order pretrial detention, while lengthy, was not unconstitutionally oppressive. Consideration of several factors results in that finding. First, Defendant was charged with the most serious crime codified in the Virgin Islands: first degree murder. Second, aside from Defendant’s August 18, 2009 oral motion to be released on an unsecured bond and electronic monitoring, Defendant has not filed any motions to secure his release pending trial. Third, and most importantly in light of Third Circuit case law, Defendant has failed to allege any specific instances of the substandard or oppressive conditions he alleges relative to his detention. By way of comparison, the defendant in Carty v. People, 56 V.I. 345 (V.I. 2012), alleged that he was abused by prison guards. Here, Defendant has made no such specific allegations of abuse or other burdensome conditions that could warrant a finding of oppressiveness. As such, the Court does not find that Defendant’s five year period of pretrial incarceration was oppressive. Defendant also claims that his lengthy pretrial incarceration has subjected him to anxiety. However, the Third Circuit held that “[v]ague allegations of anxiety are insufficient to state a cognizable claim.” Hakeem, 990 F.2d. at 762. In United States v. Dreyer, 533 F.2d 112 (3d Cir.1976), the Court held that “a defendant must show that his anxiety extended beyond that which is inevitable in a criminal case.” Jd. at 116 (internal citations omitted). In Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991), the Court “weighed the petitioner's unrebutted testimony that he suffered from loss of sleep, loss of appetite and interference with personal relationships that were severe enough to have resulted in physical manifestations of emotional distress.” Hakeem, 990 F.2d. at 762 (citing Burkett, 951 F.2d at1443-44). In Burkett, the court concluded that the petitioner’s “imprisonment angst rises above the level of anxiety indigenous to any term of incarceration....” Burkett, 951 F.2d at 1444. For an incarcerated person to establish that People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order he or she experienced unreasonable levels of anxiety as a result of extensive pretrial incarceration, “the petitioner must produce evidence of psychic injury.” Dreyer, 533 F.2d at 115-16. In this case, while it is reasonable to assume that any period of pretrial incarceration will induce some level of anxiety, the threshold set out by the Court in Hakeem, Dreyer, and Burkett requires the Defendant to produce specific evidence that his condition has been directly affected by his excessive pretrial incarceration, and that his condition is serious enough to warrant medical concern. Defendant has not done this and, therefore, the Court will not make a finding that his pretrial incarceration resulted in unreasonable anxiety. Defendant alleges that his pretrial detention has prejudiced him. Yet, he has failed to specify how he has been prejudiced by the delay, aside from a generalized reference to the possibility of prejudice. While the passage of time may have impaired Defendant’s access to certain witnesses, Defendant has not alleged that he has lost access to any witnesses or is otherwise unable to present a sufficient defense.° Therefore, the Court cannot find that Defendant suffered actual prejudice as a result of the post-arrest delay before trial. The Court must also examine the possibility of presumptive prejudice. Courts have found that, even when a defendant is unable to show actual prejudice, excessive post-indictment delay can trigger the presumption of prejudice. See Doggett, 505 U.S. at 655-656. Post-indictment delays of forty-five months have been held to be presumptively prejudicial despite the inability of the defendant to demonstrate actual prejudice. See Battis, 589 F.3d at 675-676. In this case, while the delay of five years from arrest to trial may well raise a presumption of 5 It would appear that the lengthy pretrial delay would be more prejudicial to the case of the People, who bear the ultimate burden of proving beyond a reasonable doubt every element of each crime charged. People of the Virgin Islands v. Jonathan Hakim SX-09-CR-435 Memorandum Opinion and Order prejudice, absent some showing by Defendant of actual prejudice, specifically an inability to muster a defense, the Court cannot conclude that Defendant has been unconstitutionally prejudiced by the post-arrest delay. See Petsock, 941 F.2d at 253, 258 (citing Marion, 404 U.S. at 320). Therefore, the fourth Barker factor also does not weigh in favor of Defendant. “None of these four factors are either necessary or sufficient, individually, to support a finding that a defendant's speedy trial right has been violated.” Barker, 407 U.S. at 533. These factors are related and must be considered together. Jd. Here, after examining the Barker factors, the Court determines that Defendant’s Sixth Amendment right to a speedy trial has not been violated. None of the final three Barker factors weigh in favor of dismissal of the case against Defendant. Importantly, Defendant has failed to allege and establish the existence of most compelling factor - that the delay in bringing this matter to trial has resulted in actual prejudice to Defendant. As such, Defendant’s Motion must be denied. The premises being considered, it is hereby ORDERED that Defendant’s Motion to Dismiss Because of Post-Accusation Delay is DENIED. It is further DOUGLAS A. BRADY Judge of the Superior Court ATTEST: