Jensen Alexander v. Government of the VI and Wynnie Testamark

• Court: Superior Court of The Virgin Islands
• Decided: November 23, 2020
• Docket: ST-18-MC-81
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN ************‘k

JENSEN ALEXANDER ) CASE NO ST 2018 MC 00081 ) (Super Ct Case No ST 2009 CR 00526) Petitioner, ) ) vs ) PETITION FOR WRIT OF ) HABEAS CORPUS GOVERNMENT OF THE VIRGIN ISLANDS ) and WYNNIE TESTAMARK in her capacity ) as Director of the VIRGIN ISLANDS BUREAU ) OF CORRECTIONS ) ) Respondents )

Cite as 2020 VI Super 97U

MEMORANDUM OPINION & ORDER

I INTRODUCTION

111 THIS MATTER is before the Court on pro se Petitioner Jensen Alexander s Writ of Habeas Corpus Pursuant to a Sixth Amendment Violation of Speedy Trial Act The Writ was granted by Order entered June 26, 2020 Subsequent to Respondent 3 Return, dated July 22, 2020, Petitioner filed a Traverse to Respondent 3 Return ( Traverse ) which was received by the Court on August 13, 2020 The Petitioner is pro se and, therefore, the Court will liberally construe his pleadings 1 Petitioner alleges in his Traverse that

1) The Government failed to try the accused within the statutory time frame (70 Days) of the federal Speedy Trial Act' and

2) The 27 month delay between arrest and trial violates Petitioner 5 Sixth Amendment constitutional right to a speedy trial

112 This matter is fully briefed and the Court has necessarily reviewed the record of proceedings in People ofthe Virgm Islands v Jensen Ken Alexander, Case No ST 2009 CR 526 Pursuant to Rule 2(g)(l) 0f the Virgin Islands Habeas Corpus Rules, the Court finds that an evidentiary hearing is not necessary in this matter because the submissions before Court reveal absolutely no factual disputes that are material to the disposition of the issues raised in the Petition

1 See Can 1110 v CItIMOItgage Inc 63 V I 670 679 (VI 2015) (quoting Etzennev Etienne 56 V I 686 691 n 5 (V I 2012)) Donovan v VIrgm Islands 2013 VI LEXIS 21 at *7 (V I Super Ct 2013) Alexander v Government of the Virgin Islands er a! 2020 VI Super 97U Case No ST 2018 MC 00081 Memorandum Opinion & Order Page 2 of 9

II ANALYSIS

A Alleged violation of statutory time frame

113 As to the first allegation, Alexander 5 Petition relies upon the federal Speedy Trial Act 2 However, the Speedy Trial Act applies to federal district courts and not to proceedings in the Superior Court of the Virgin Islands 3 The Virgin Islands Supreme Court has stated that

Rather than precise time limits established by typical statutory Speedy Trial Acts, a violation of the Sixth Amendment right to a speedy trial is determined by a four factor balancing test (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 ’4

114 Thus, Petitioner s first allegation must necessarily fail, as the seventy day period outlined in 18 U S C § 3161 is inapplicable to the Superior Court of the Virgin Islands 5

B Alleged Sixth Amendment Violation

115 As to Petitioner 5 second claim resting on constitutional grounds, the Court reviews this claim under the four part test listed above 6 The United States Supreme Court stated in Barker v ngo,7 [w]e regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial 8

1 Length of Delay

116 The length of the delay is considered to be a triggering mechanism 9 The Virgin Islands Supreme Court has previously stated that a delay over 12 months is presumed to be sufficiently prejudicial to require evaluation of the three remaining factors "0

218 U s C §§ 3161 3174 3 anczs v People 63 V I 724 (V I 2015) 4 FlanCIs v People 63 V I 724 746 (V I 2015) (citing Calty v People 56 V I 345 364 (V I 2012)) 5 1d Petitioner also states in the Traverse that Attorney Judith Boume had hundreds of days to file a motion to dismiss because of speedy trial violation, which she failed to do Trav 2 Even libeially construing this statement as a claim of ineffective assistance of counsel such a claim must also necessarily fail because the federal Speedy Trial Act does not apply here Further, this assertion is not supported by the record Attorney Boume did in fact file a Motion to Dismiss on October 5, 201 1 6 [d 7407 U s 514 (1972) 8 Id at 533 9 Barkel , at 530 ( The length of the delay is to some extent a triggering mechanism Until there is some delay which Alexander v Government of the Vtrgm Islands e! a] 2020 VI Super 97U Case No ST 2018 MC 00031 Memorandum Opinion & Order Page 3 of 9

fl7 Alexander was arrested on October 14, 2009, and subsequently charged with several crimes including rape and murder arising from events that occurred on October 14, 2009 Jury selection started on January 23, 2012, and the first day of trial was January 30, 2012 The trial continued on January 31, February 1, 2 and 3, 2012 This is a period of 837 days This is a substantial time amount of time and therefore triggers the Court to consider the other three factors

2 Reason for the Delay

118 For the second factor, the Court must consider which party is primarily responsible for the delay and why whether it is the Court, the People, or the Defendant H Delays attributed to the People weigh in favor of the Petitioner 3 claim 12 Further, the reason for the delay impacts the weight given to a particular delay 13 For example, a deliberate attempt by the People to hamper the case should be weighed heavily, while neutral or institutional reasons, like an overcrowded docket, should be weighed less heavily ‘4

{[9 The first set of delays can be attributed to the Court On November 3, 2009, November 10, 2009, and November 18, 2009, three different judges had to recuse themselves from the case Jury selection was then scheduled for February 16, 2010 These delays were both short and a result of institutional reasons and therefore considered minor

{[10 The next set of delays was a result of pending motions by the other defendant in the case to sever and a renewed bail motion, as well as outstanding discovery namely the results of DNA testing from the FBI On January 25 2010 the Court rescheduled jury selection to April 12 2010 with a pretrial conference on March 15, 2010 The issue of the outstanding discovery can be attributed as a delay of the People, although seemingly not deliberate as they were awaiting a response from the FBI, but the delay caused by the other defendant cannot be attributed to them

1111 At a March 15, 2010 pretrial conference, the People indicated that hair and fingerprint analysis was complete, but they were still waiting on other DNA testing which they expected would be completed by the end of May Petitioner filed a Renewal of his Ex Parte Motion for Leave to Hire Investigator The Court granted Petitioner s motion and indicated they would need to file a proposed order allocating funds for the investigation Thus, the Court moved jury selection from April 12, 2010, to June 7, 2010 Here it was Petitioner s desire to further investigate which delayed proceedings, thus this delay can be attributed to Petitioner

is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance ) ‘0 Rive/a v People 64 v1 540 (VI 2016) (citing szy 56 v1 at 365) H See F1anc1s v People 63 V I 724 748 49 (2015) (analyzing delays attributed to the People the public defender and the Superior Court itself) 121d at 748 ‘3 Id (citing Doggettv UmredStates 505 U s 647 651 52 (1992)) 14 United States v Benjamin 816 F Supp 373 382 (D V I 1993) (citing Barker 407 U S at 530) Aleumder v Government of the Virgin Islands et a1 2020 VI Super 97U Case No ST 2018 MC 0008] Memorandum Opinion & Order Page 4 0f 9

1112 On May 10, 2010 at a pretrial conference, Petitioner made an oral motion that a portion of Defendant s bail be used for electronic monitoring and the other defendant made a Motion for Alternative Modification of Conditions of Release The Court indicated that Petitioner should file a written motion and moved jury selection from June 7, 2010, to September 27, 2010, with a pretrial conference set for August 30, 2010 Petitioner s desire for electronic monitoring and the need to file a written motion resulted in this delay and can be attributed to Petitioner

1113 Hurricane Earl caused the cancelation of the August 30, 2010 pretrial conference, which was moved to September 8, 2010 On September 8, 2010 Petitioner s pre trial release was granted Because the Medical Examiner, Dr Landron, was on leave until after January l, 2011, Respondents filed for a continuance on September 14, 2010 The Court then continued the trial from September 27, 2010, to March 14, 201 1, with a pretrial conference set for February 28, 201 1 This delay can be attributed to the People

1114 On February 23, 201 1, Petitioner filed a Motion for Discovery and on March 2, 201 1, Petitioner filed, pro se, a Motion to Change Counsel On March 14, 201 1, Petitioner filed a Motion to Continue Jury Selection and Trial, while on the same day the Court conducted jury selection and vozr dire The Court also conducted a hearing regarding Petitioner spro se motion to change counsel and denied it Trial was moved to March 28, 201 1 These delays can be attributed to the Petitioner

1115 On March 16, 201 1, Petitioner Filed an Ex Parte Motion to Hire Forensic Pathologist, indicating he would not be prepared for trial until at least April This motion was granted on March 23, 2011 A pretrial conference was scheduled for May 2, 2011 Because of the expiration of the term for the jurors new jury selection was made for July 5, 2011, with the possibility of moving it up to May 9 2011 or May 27 201 1 depending on Court scheduling This delay may be attributed to the Petitioner

1116 Petitioner filed a Motion for Additional Discovery on April 26, 201 1 At a pretrial conference on May 2 201 l the Court ordered that the July 5 201 1 jury selection date be kept and all discovery be finished by the end of the month Petitioner filed another Motion for Continuance of Trial on June 23, 2011, which was granted on July 1, 201 1 Jury selection was rescheduled for August 29, 201 1, with a pretrial conference on August 5, 2011 This delay may be attributed to the Petitioner

1117 At the pretrial conference on August 5, 2011, the Petitioner indicated that he had filed a Motion in Limine on August 3, 2011 The People indicated that they would both need time to respond to the Motion in Limine and that they were not ready for trial as they were still waiting on DNA evidence from the FBI The Petitioner indicated that if the Motion in Limine were granted he would be ready for trial but would not be if it were denied The Court noted its concern with how long the Petitioner had been incarcerated but moved jury selection to October 24, 2011, with a pretrial conference on October 5, 201 1 Here both parties indicated they may not be ready for trial, Alexander v Government of the Virgin Islands e! a] 2020 VI Super 97U Case No ST 2018 MC 00081 Memorandum Opinion & Order Page 5 0f 9

and Petitioner s filing date of his Motion in Limine gave the People little time to respond before the conference

1118 On October 5, 201 1, at the pretrial conference, Petitioner indicated he had filed a Motion to Dismiss for violation of his speedy trial right The Court expressed concern that should Defendant be released, his presence could not be secured should the People refile, but also noted concern for the length of time Petitioner had been incarcerated The Court ordered the People to notify the FBI that the matter would go to jury selection on January 9, 2012, and scheduled a pretrial conference for December 5, 2011, with jury selection on January 9, 2012 This delay may be weighed against the People

1119 On October 19, 201 1, the Court issued an order pushing jury selection back from January 9, 2012 to January 23, 2012 It is not clear from the record why this change in date occurred as no motions or hearings occurred in between October 5 and October 19 However, this is a relatively minor and institutional delay This trial date was confirmed at the December 5 pretrial conference, jury selection was held on January 23, 2012, and the trial began on January 30, 2012

1120 Many of the resulting delays were due to Petitioner s motions and, on two occasions including once when jury selection had already begun continuances requested by the Petitioner A few delays of relatively minor time can be attributed to the Court and neutral institutional reasons, and once due to a hurricane, a completely neutral reason Fewer reasons for delay can be attributed to the People, but they include one continuance and delays in receiving and providing DNA evidence from the FBI These delays by the People do not appear deliberate This Barker factor weighs in favor of the People

1121 Petitioner asserts that because the People were represented at times by different Assistant Attorney Generals that this delayed his case ‘5 There is no evidence on the record that any delay or continuance was due to the inability of the People 5 counsel to get up to speed before a scheduled conference or hearing Finally, Petitioner asserts that no delays can be attributed to him He states in his Traverse that he had an attorney and the attorney 5 actions cannot be imputed to him ‘6 As the United States Supreme Court stated in Lmk v Wabash Railroad Co ,‘7 each party is deemed bound

‘5 Trav 3 ( The Government of the V I forgot to mention that because when they appoint a new attorney general on the case that sets back the case for several weeks because the new prosecutor now have [sic] to learn and study the case ) 16 Trav 2 3 ( The facts [sic] is Jensen had an attorney who was responsible for all of the filings to the court

All actions taken by Jensen appointed attorney was not Jensen responsibility, or his fault

The burden of the delays rest on appointed counsel Judith Boume actions at no point was Jensen ever responsible for what was being filed in court ) ‘7 370 U s 626 (1962) Alexander v Government of the Virgin Islands et a1 2020 VI Super 97U Case No ST 2018 MC 00081 Memorandum Opinion & Order Page 6 of 9

by the acts of his lawyer agent 18 The Court recognizes Petitioner 5 attempts to change his attorney after a year and a half due to an alleged breakdown in communication, however this motion was heard by the judge and denied without prejudice While the Court is mindful of the plight of the indigent defendant, Petitioner chose to exercise his constitutional right to an attorney19 and not to proceedpro se This does not change the attorney client agent relationship and Petitioner 5 choice to exercise his constitutional right cannot later be used to laterally attack his conviction

3 The Petitioner’s Assertion of His Right to Speedy Trial

1122 The third Barker factor the Court considers is whether the Petitioner here asserted his rights to a speedy trial 20 As the Supreme Court of the Virgin Islands stated in Carly v People,21 the defendant shows he has asserted his right when he is represented by counsel and he can identify a motion or evidence of 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 22 Further, a defendant 3 claim that the right is being violated provides strong evidence that it actually was violated 23

1123 The Petitioner was arraigned on October 22, 2009 While the record indicates Petitioner requested a jury trial, it does not indicate whether Petitioner at that time asserted his right to a speedy trial On October 5, 2011, Petitioner filed with the Court a Motion to Dismiss for violation of his speedy trial right This motion was filed nearly two years after Petitioner s arraignment and can be considered as having had some chance of success for that reason Although the motion was denied, Petitioner here can satisfy this Barker factor by pointing to this motion, and it weighs in favor of the Petitioner

4 Prejudice to the Defendant

1124 The fourth Barker factor requires the Court to assess prejudice to the defendant caused by a speedy trial Violation 24 Whether the defendant experienced actual prejudice as a result of a speedy trial violation is the most important factor 25 Prejudice here is determined by looking at the three interests the speedy trial right was created to protect (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 ’26

18 [d at 634 (citing Smith v Aye) 101 U S 320 (1879)) 19U S Const amend VI 2" Flanc1s v People 63 v I 724 752 (2015) (citing Carly 56 V 1 at 366) 2‘ 56 VI 345 (VI 2012) 22 Id 23 UmtedStates v Barns 589 F 3d 673 681 (3d Cir 2009) (citing Baikel 407 U s at 531 32) 24 ancts 63 V I at 753 25 anczs 63 V I at 746 26 Id (quoting Cally 56 V I at 367) Aleumder v Government of the Virgin Islands er a! 2020 VI Super 97U Case No ST 2018 MC 00081 Memorandum Opinion & Order Page 7 0f 9

1125 As for the first interest, the Third Circuit has recognized that though time alone may, in some cases, rise to the level of oppressive pretrial incarceration, credit for time served mitigate[s] the potential oppressive effects of incarceration 27 In terms of the second interest, the Third Circuit recognized in Untied States v Dreyer28 that a certain amount of anxiety is inevitable in a criminal case 29 Further, [V]ague allegations of anxiety are insufficient 30 The United States Supreme Court has recognized that the third interest is the most serious because the inability of a defendant to adequately prepare his case skews the fairness of the entire system 31 Lastly, the burden of proving prejudice lies with Petitioner 32

1126 The Petitioner here was granted pre trial release on January 28, 2010, upon the posting of a $ 150,000 cash bail, although the Petitioner did not end up posting bail Petitioner received credit for the full time he spent detained prior to trial Nor was the length of time here excessively oppressive 33 As for the second interest, at no point in Petitioner 3 initial Petition or Traverse does he assert any level of anxiety beyond a generalized assertion in his Petition that inordinate delay may create anxiety in him, his family and his friends 34 This assertion, while not only vague, is utterly lacking in any evidence or circumstance, let alone those severe enough to warrant a finding in Petitioner s favor 35

1127 The third interest runs against the Petitioner Petitioner asserts that he suffered prejudice because his co defendant took a plea deal ’36 and that the delay gave his co defendant enough time to fabricate a bogus story against Jensen 37 These reasons are not impairments to Petitioner s defense caused by delay That a co defendant may find it in his or her interest to negotiate a plea with the prosecution is a separate issue entirely from a defendant 5 pre trial detention That an adversarial witness may be untruthful or had the time and ability to fabricate false testimony is also

27 Hakeem v Beyer 990 F 2d 750 762 (3d Cir 1993) (quoting 07a) v ng 724 F 2d 1199 1204 (5th Cir 1984)) 28 533 F 2d 112 (3d Cir 1976) 29 Id at 1 16 In D; eyer, the Third Circuit recognized that the defendant 5 feelings of helplessness anxiety, depression, and isolation culminating in a suicide attempt was beyond the inevitable anxiety a criminal defendant feels Id at11617 3° Hakeem 990 F 2d at 762 31 Doggett v United States 505 U S 653 (citing Barkei 407 U S at 532) 32 Cally 56 V I at 367 (citing Hakeem 990 F 2d at 760) 33 See People v Hakim Super Ct Case No SX 2009 CR 00435 VI 2014 V I LEXIS 67 at *14 17 (VI Super Ct Aug 21 2014) (finding a period of five year pretrial detention to not be oppressive incarceration) cf UmredStates v Akmola Crim Action No 11 310 (ILL) 2017 U S Dist LEXIS 2947 at *5 7 (D NJ Jan 9 2017) (finding a period of five years prejudicial because a witness would not cooperate anymore, not because of the pretrial detention) (unpublished) 3“ Pet 6 35 See sup) a note 29 36 Trav 4 371d at 5 Alexander v Government of the Virgin Islands er a1 2020 VI Super 97U Case No ST 2018 MC 00081 Memorandum Opinion & Order Page 8 of 9

unrelated to Petitioner s pre trial detention court rules and the judicial process are fashioned to ferret out falsity and bias Rather, the third interest the speedy trial right is meant to protect serves to aid the defendant by attempting to preserve exculpatory evidence that the memories of beneficial witnesses may be fresh and not fade, that witnesses not die or disappear in the delay, that helpful evidence not decay in the interim 38 These are not the sort of reasons Petitioner gives

1128 Finally, here, several delays were due to Petitioner s desire to hire an investigator and a forensic pathologist The continuance on the day of the first jury selection was made by Petitioner so that evidence could be further examined by experts Rather than impair, these delays enhanced Petitioner’s position going into trial There is no indication by Petitioner that his ability to put on a defense was hampered by the loss of existing evidence or the muddying effects of time Petitioner bears the burden of proving prejudice and has not met his burden here

III CONCLUSION

While Petitioner s assertion that his detention was unlawful because it exceeded the seventy day statutory time frame of the federal Speedy Trial Act must fail as inapplicable, the Court analyzes his assertion that his detention violates his Sixth Amendment rights under the Barker factors The Court recognizes that none of the Barker factors are either a necessary or sufficient condition, and the factors must be considered together with such other circumstances as may be relevant 39 The Court finds that the length of time of the detention was lengthy enough to warrant further analysis under Barker, and that Petitioner did assert his right to a speedy trial by filing a motion with some chance of success However, the Court also finds that the reasons for the delay weigh against Petitioner, and, most importantly, Petitioner not only did not make a showing that he was prejudiced in anyway by the delay, but that on the Court 8 analysis Petitioner in fact may have benefitted from this delay

Based upon the foregoing, the Petitioner is not entitled to the relief sought in his Petition

Accordingly, it is hereby

ORDERED that Jensen Alexander 5 Petition for Writ of Habeas Corpus is DENIED; and it is further

ORDERED that this matter is CLOSED and it is further

38 See Ca; ty, 56 V l at 367( If witnesses die or disappear during a delay the prejudice is obvious There is also prejudice if defense witnesses are unable to recall accurately events of the distant past ) 39 United States v Bums 589 F 3d 673 678 (3d Cir 2009) (quoting Barker 407 U s at 533) Alexander v Government of the Virgin Islands e! a! 2020 VI Super 97U Case No ST 2018 MC 00081 Memorandum Opinion & Order Page 9 0f 9

ORDERED that a copy of this Memorandum Opinion and Order shall be mailed to Petitioner Jensen Alexander, #1473921, Wallens Ridge State Prison, P O Box 759, Big Stone Gap, Virginia 24219, with the following notation on the envelope LEGAL MAIL please open in presence of inmate only; and a copy thereof directed to Wynnie Testamark, Director of the Virgin Islands Bureau of Corrections and to Assistant Attorney General Aysha R Gregory

DATED ll/é{3{309~0 W 2)0u,ufl<_) DENISE M FRANCOIS Judge of the Superior Court of the Virgin Islands

ATTEST

TAMARA CHARLES Cle e Cou

B . - DO A D DONO AN Cou Clerk Sup lsor 1' /a\5 / £90