IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS )
Plaintiff 3 CASE NO ST 2019 CR 00078 v )
)
)
ALLAN E STEVENS )
Defendant i h‘__)
Cite as 2021 VI Super 25
MEMORANDUM OPINION
1} 1 THIS MATTER is before the Court on the People 5 Motion to Dismiss Without Prejudice ( motion to dismiss )1 filed by the plaintiff the People of the Virgin Islands ( the People ) Defendant, Allan E Stevens( Stevens ) responded by filing a Motion to Dismiss With Prejudice Stevens urges the Court to dismiss the matter with prejudice because the People did not timely disclose DNA evidence, and allowing them to refile would permit them to use evidence that would have been excluded had the matter proceeded to trial {12 For the reasons set forth below, the People 5 motion to dismiss without prejudice will be granted and Stevens motion to dismiss with prejudice will be denied However, because the Court finds that the People would gain an unfair tactical advantage if permitted to refile and use DNA evidence that was untimely disclosed, the Court will bar the People from using the DNA evidence from use at a future trial
1 The motion to dismiss was filed February 5, 2020
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I FACTS
‘13 Stevens was arrested on March 17, 2019 and charged with third degree assault in Violation of V I CODE ANN tit 14 § 297(a)(2); use of an unlicensed firearm during the commission of a third degree assault in violation of V I CODE ANN tit 14 § 2253(a); unauthorized possession of a firearm in violation of V 1 CODE ANN tit 14 § 2253(a); possession of stolen property in violation of V 1 CODE ANN tit 14 § 2101(a) and unauthorized possession of ammunition V 1 CODE ANN tit 14 § 2256(a) The original scheduling order issued April 4, 2019, set jury selection for November 18 2019 with trial to commence during the three week trial period beginning thereon, and running through December 6, 2019 $14 Immediately following arraignment on April 5, 2019 Stevens submitted a discovery request that requested, inter alia all results of reports of physical or mental examination scientific tests or experiments or copies thereof, and all documents referring or relating to such reports, that were conducted in connection with any investigation on the charges On June 17, 2019, Stevens made a similar supplemental request, which specifically requested DNA and fingerprint reports The People responded to the discovery 1equests, but none of the discovery nor responses included DNA reports or requests for same or any indication that DNA results were outstanding 115 On Octobel 29 2019 during a pretrial conference, Stevens 1equested that this matter be placed on last call so that he could consider the plea offer that had been presented The Court granted Stevens request, but noted that the matter would remain on the Novemberjury trial period The case was then set for jury selection on December 2, 2019 116 On November 25, 2019, the People filed a motion to continue the December 2 2019 jury selection date because one of its witnesses was on a preapproved leave and would not return to
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work until December 9, 2019 Over Stevens objection, the Court granted the People 5 motion for a continuance and rescheduled jury selection for January 7 2020 with trial to commence during the two week period beginning thereon 117 On December 11, 2019, during a pretrial conference, both parties stated that they were ready for jury selection on January 7, 2020, and the matter was scheduled for final pretrial conference on December 30, 2019 flOn December 30, 2019 the People moved for a continuance 0n the grounds that the victim was hesitant to testify Stevens opposed the motion The Court granted the continuance and moved jury selection to February 10, 2020, with trial to commence during the three week period beginning on February 10 2020, but ordered that no further continuances would be granted to the People absent extenuating circumstances $18 On January 31, 2020 the People filed a motion to continue jury selection and trial on the grounds that the day prior they had received the DNA Labs International Certificate Analysis ( the DNA report ) dated J anuary 14 2020 and they could not obtain a DNA expert by Februaiy 10 2020 Stevens filed a written opposition arguing that he had 1equested all discovery as early as April 5, 2019 and that the People had never advised him that they were awaiting any DNA analysis, even though he had specifically requested all DNA reports on June 17, 2019 Stevens also argued that the DNA evidence had been received by the lab via FedEx on December 5, 2019 as evidenced by the DNA report, which was three days after the December 2 2019 jury selection date To this point, Stevens argued that the People should not be able to obtain a continuance to benefit from evidence that was not timely obtained nor disclosed On February 4, 2020, Stevens filed a motion to exclude the DNA evidence, arguing that it prejudiced his ability to prepare for trial This motion was deemed moot when the People filed a motion to dismiss the matter
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119 During the final pretrial conference on February 5, 2020, the People moved to dismiss the matter without prejudice on the grounds that the victim was uncooperative 2 Specifically, the People alleged that the victim had refused to come into the office to speak with either the prosecutor or case agent because he feared for his life and as such, the People would file a written motion for dismissal without prejudice The People also argued that there was no bad faith in failing to timely disclose the DNA report because the prosecutor did not know that the DNA evidence had been sent to the lab for testing 3 1110 Stevens opposes the People’s motion and moves this Court to dismiss with prejudice or alternatively, to dismiss without prejudice so long as the DNA evidence is excluded
II LEGAL STANDARD
1111 Under Virgin Islands Rule of Criminal Procedure 48(a) [t]he government may file a dismissal or nolle prosequi of an information Such a dismissal is without prejudice unless otherwise stated ” VI CRIM P R 48(a) The court is generally required to grant a prosecutor's Rule 48(a) motion to dismiss unless dismissal is ‘cleaily contrary to manifest public inteiest ’” Phillip v People 58 VI 569 599 (VI 2013) 4 see also US v Gallant!) No 2012 020 2013 WL 4712042 at *5 (D V 1 Aug 30 2013) (unpublished) (citation omitted) Under such
’ Stevens alleges that, at the February a conference, the People attempted to move forward with their request for a continuance and when the continuance was not successful, the People immediately elected orally to move to dismiss the case without prejudice 3 The Court accepts the prosecutor’s explanation that she had no personal knowledge that evidence was sent for testing 4 1n Phllllp, the Virgin Islands Supieme Couit analyzed Fedeial Rule of Climinal Piocedure 48(a), whereas the case subjudzce implicates its local counterpait The federal rule provides, in relevant part, [t]he government may, with leave of court dismiss an indictment, information, or complaint, whereas the Virgin Islands mle provides that [t]he government may file a dismissal or nolle piosequi of an information Such a dismissal is without prejudice unless otherwise stated The federal rule 5 language is not identical to the Virgin Islands rule, but this Coufl finds that both are sufficiently similar to one another that the Phillip analysis is informative
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circumstances, a court may deny dismissal, or grant dismissal with prejudice thllzp, 58 V I at 599 (citing United States 1 Carrzgcm 778 F 2d 1454 1463 (10th Cir 1985) then citing Rmaldz 1 Untied States 434 U S 22 30 (1977)“ In re chhards 42 V I 469 487 (3d Cir 2000)) A court should deny dismissal or grant dismissal with prejudice only when it is necessary to protect a defendant from harassment by a prosecutor acting in bad faith, protect the public interest in the fair administration of justice,” or preserve the integrity of courts ’ A court should not presume bad faith if no evidence of it exists in the record Phllllp, 58 V I at 601 (citing Rmaldz 434 U S at 30 Jacobo Zavala 241 F 3d at 1012 United States 1 Salmas 693 F 2d 348 352 (5th Cir 1982)) As such, a court should deny the People's dismissal request ‘ only in the ‘rarest of cases, for it is the People who are presumed to be the best judge of where the public interest lies with respect to a criminal prosecution Phillip, 58 V I at 600 (citing [n 1e chhara’s, 213 F 3d at 786 ( [F]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought”); United States v Jacobo Zavala, 241 F 3d 1009 1012 (8th Cir 2001))
III ANALYSIS
1112 There are two issues before this Court First the Court must decide whether to grant dismissal with or without prejudice Second if the Court decides to grant dismissal without prejudice, the Court must then decide whether to exclude the People 3 DNA evidence from use at a later trial
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1113 The People move this Court to dismiss without prejudice because the People have been unable to confer with the Victim The People allege that they have made ‘ innumerable attempts to locate and contact the Victim without success because the victim is afraid to come forward 1114 Stevens opposes the People’s motion and moves this court to dismiss the matter with prejudice because the People acted in bad faith However, if the Court should grant dismissal without prejudice Stevens requests that it exclude DNA evidence from future use 1115 Stevens does not challenge the People 5 failure to locate and contact the victim Indeed, in his opposition to the People 3 January 31 motion to continue, Stevens acknowledged that he did not know whether the People had located the victim As such, the Court accepts the People s representation Rather, Stevens challenges the People 3 grounds for requesting dismissal without prejudice He argues that the People 3 motion is a means to ‘ tactically outmaneuver [the] rules of discovery and that if the People are permitted to refile, they would use DNA evidence that would have been excluded from trial had it continued as scheduled 5 Stevens argues that the People were aware of the DNA evidence before they disclosed their awareness of the evidence to the Court on January 31, 2020 because the People moved for a continuance to ensure that the DNA expert would be present at trial Stevens argues that the People 3 failure to timely disclose the DNA evidence to him amounts to an act of bad faith warranting dismissal with prejudice 1116 [I]t is well within the court's authority to dismiss [an] action with prejudice where the Government is found to have acted in bad faith Gov I 0fV.I v Dzaz, 40 V I MO, 121 (V 1 Super Ct 1998) (dismissing cases against a criminal defendant with prejudice because the government acted in bad faith) The burden is on the defendant who seeks dismissal with prejudice to prove
3 The People concede that the DNA evidence would have been excluded at trial in February 2020
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that the People acted in bad faith People 1 8tephens N0 ST 2016 CR 177 2020 WL 806592 at *4 (VI Super Ct Jan 15 2020) (quoting People 1 Settle) No SX 11 CR 883 2014 VI LEXIS 75 at *1 (VI Super Ct Sept 15 2014))“ see also Rzieiai People 64 VI 540 570 80 (VI 2016) (requiring that the defendant prove that he suffered substantial prejudice by the government 5 charging delay); cf. Galloway, 2013 WL 4712042, at *5 (collecting cases) ( A presumption of good faith attaches to the Government 5 decision to seek dismissal under Rule 48(a) ) Actions that constitute bad faith include those through which the government intentionalIy attempts to unfairly gain a tactical advantage by prejudicing the defendant See szera 64 V I at 570 (discussing bad faith delays by the government to gain a tactical advantage) People v Velasquez 59 VI 197 207 (VI Super Ct 2013) (citing US v Marlon 404U S 307 324 (1971)) (contextualizing a delay made in bad faith as being for the purpose of gaining a tactical advantage) cf Ponce i People 72 V I 828 837 38 (V I 2020) (finding a lack ofbad faith where the government 5 non disclosure of discovery was not intentional) Stephens, 2020 WL 806592, at *5 (iecognizing that the government would gain a tactical advantage if allowed to refile, even without a firm finding of bad faith) Evidence of bad faith acts may include, but is not limited to, instances where the government harasses the defendant,6 acts vindictively to violate a defendant 5 constitutional or statutory rights,7 or dismisses a case in order to later use evidence that would have been excluded had the matter gone forward to trial 8 Cf. thllzp, 58 V I at 601 (citing Untied States v szlh 55 F 3d 157 159 (4th Cir 1995) (examples of bad faith include acceptance of a bribe
6 Phillip 58 V I at 599 (recognizing that a Court may deny a motion to dismiss without piejudice or grant dismissal with prejudice where theie is evidence that the prosecutor acted in bad faith by harassing the defendant) 7 Gov I ofl 1 t Dza 40 VI 110 121 (VI Super Ct 1998) (finding evidence of bad faith in the government 5 violation of a defendant 5 constitutional right to bail) 8 Stephens 2020 WL 806592 at *5 (dismissing with prejudice upon finding that the People would gain an impioper tactical advantage if allowed to refile and use evidence from a witness that would have been excluded at trial)
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personal dislike of the victim or accuser, or dissatisfaction with the empaneled jury); Untied States v S‘almas 693 F 2d 348 353 (5th Cir 1982) (finding bad faith where the government dismissed the case to obtain a better jury, a jury more to its liking ); Hoskzns v Marzcle, 150 S W 3d 1, 21 (K Y 2004) (indicating that wishing to attend a social event rather than trial would be bad faith»; but see Rivera, 64 V I at 570 (declining to find bad faith in a ten year charging delay where the defendant was arrested for first degree murder); Gov r of V] v szles 317 F Supp 2d 605, 609 (D V I 2004) (finding no evidence of bad faith in the government 5 delay in turning over a forensics report because it was unwilling or unable to coordinate with the police department in retrieving the report form a condemned storage room) 1117 Importantly the Court cannot presume the existence of bad faith where the defendant fails to provide evidence of it See Gallon ay, 2013 WL 4712042 at *2 (finding that the defendant presented no evidence to suggest that the government acted in bad faith in seeking dismissal after it was unable to produce at trial a witness whose testimony would be critical for prosecution) People t Scatlsze No ST 15 CR 389 2016 V1 LEXIS 91 *5 (V 1 Super Ct July 13 2016) (unpublished) (‘Nothing presented by [d]efendant establishes that the People engaged in selective prosecution[,] pursu[ed] th[e] case in bad faith in a vindictive manner, or for other improper purposes ) If the defendant fails to establish his burden the Court must grant the People 5 motion to dismiss without prejudice so long as it is not contrary to the public interest Phlllzp 58 V I at 599 1118 Stevens argues that this mattei should be dismissed with prejudice because the People have acted in bad faith by harassing him with the threat of repeated prosecution and attempting to
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tactically outmaneuver the rules of discovery to prejudice his case The People reject both arguments as does the Court 1119 Under Phillip, evidence that the prosecutor is harassing the defendant may constitute an act of bad faith See Phllllp, 58 VI at 599 However, harassment is not evidenced by a single motion for dismissal In Phlllzp the Court also noted that a singular dismissal, rather than a cycle of repetitively dismissing and refiling the case weighs against a finding that the dismissal interfere[s] with the administration of justice or otherwise unduly harass[es] [the defendant] ’ thllzp 58 V I at 602 (citation omitted) 1120 In View of thllzp, the Court finds that a single request for dismissal is insufficient, on its own, to demonstrate harassment by the prosecution Moreover, the Court finds that the People 5 grounds for dismissal which they argue is their inability to contact and confer with the Victim, also weighs against finding that Stevens was harassed As such in light of Phillip, the People 8 alleged grounds for dismissal and the absence of any other evidence the Court finds that the prosecution has not harassed the defendant 1121 Stevens also argues that the People have acted in bad faith by first delaying trial, and then by attempting to gain a tactical advantage in future prosecution Stevens argues that he has been prejudiced in the current matter by the delay in the People 3 disclosure and in their repeated requests to continue and delay trial To this point, Stevens argues that the government has a constitutional duty to provide a prompt trial and that the People breached their duty by repeatedly requesting continuances See Dickey v Florida 398 U S 30, 37 38 (1970) Stevens also argues that the People are using dismissal as a means to refile the case and use the DNA evidence in a later trial, since the DNA evidence would have been excluded had the matter proceeded to trial in
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February 2020 Stevens argues that the People 5 attempt to outmaneuver the rules of discovery demonstrates that they are attempting to gain an unfair tactical advantage indicative of bad faith He also argues that he will be prejudiced in the future if the People are permitted to refile and use the DNA evidence in future prosecution As such, Stevens moves the Court to enter dismissal with prejudice to ensure that the Court, its processes, and its rules regarding discovery are not abused 722 The Court agrees that the People have a constitutional duty to provide a prompt trial See Dickey, 398 U S at 37 38 However, after reviewing the facts the Court does not find that the People failed to fillle their duty Stevens was arrested on March 17, 2019 and the People moved to dismiss on February 5, 2020 The Court finds no evidence that Stevens case was unfairly delayed Rather, the Court finds that the People 5 use of continuances to gain more time to locate and confer with the Victim constitutes good cause S'ee Lee v Kenna, 534 U S 362, 392 (2002) (Where a witness is not available a continuance may be appropriate if the movant makes certain required representations demonstrating good cause to believe the continuance would make a real difference to the case ) Therefore, the Court finds no evidence to demonstrate that the People’s delays were made in bad faith or prejudiced the defendant See Rivera, 64 V I at 570 80; Velasquez 59 VI at 207 Scallzfle 2016 VI LEXIS 91 *5 1123 The Court finds that Stevens has also failed to present evidence that demonstrates that the People are acting in bad faith in requesting dismissal without prejudice The People have stated that their motion to dismiss without prejudice is the result of their inability to locate and confer with the Victim In a memorandum of law submitted in support of his motion, Stevens acknowledges that he is aware that the People have been unable to locate the Victim Stevens states that the People conveyed this information at the pre trial status conference on December 30, 2019
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and directly to Stevens in a VIPD report dated February 7, 2020 Stevens does not present evidence to challenge the People’s asserted grounds for dismissal, and therefore the Court finds that he has not successfully rebutted the People 3 presumption of good faith See Galloway, 2013 WL 4712042, at *5 The Court accepts the People 5 representation that their grounds for dismissal is an inability to locate and confer with the Victim Moreover, the Court finds no bad faith in the People 3 request to dismiss the matter without prejudice 1124 However, the Court agrees that in granting a dismissal without prejudice the People may have the opportunity to refile the case and use the DNA evidence at trial that would have been barred had the matter gone to trial in February 2020 The Court finds that the People would gain a tactical advantage that they would not have otherwise had had the matter proceeded to trial as scheduled because, as the People concede the DNA evidence would have been excluded See thllzps 58 V I at 601 (citations omitted) 9 fl25 The People 5 obligation to disclose material evidence that is favorable to the accused and known by those acting on the government 3 behalf includes an obligation to timely disclose evidence obtained by the police department See Brady v Maryland 373 U S 83 (1963); see also Kyles v Whitley 514 U S 419 437 (1995) Stucklel \ Greene 527 U S 263 275 (1999) John v People, 63 V I 629 642 (VI 2015) '0 In John v People the Vlrgm Islands Supreme Court held that knowledge possessed by the Virgin Islands Police Department (VIPD) can be imputed to
9 Although the Couit did not xeduce its ruling to wtiting it did not find any extenuating ciicumstances necessary to justify a continuance, and it had previously ruled no further continuances would be g1 anted unless 1’01 extenuating ciicumstances 1° Even though this duty of disclosure is tightly tetheied to constitutional guaiantees of due process, the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense Rather, the piosecution's failure to disclose evidence rises to the level of a due piocess violation “only if the govemment's evidentiaiy suppression undeimines confidence in the outcome of the tiial Gov I of V I v Fahze 45 V I 475 481 (D V I 2004) (quoting Smith 1 Holt 210 F 3d 186 195 197 (3d Cir 2000))
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the Office of the Attorney General of the Virgin Islands such that the Court may presume that the knowledge possessed by the police is also knowledge possessed by the prosecution John, 63 V I at 642 Thus under John, the VIPD 3 actual knowledge is presumed knowledge possessed by the prosecution Here, the Court finds that VIPD knew, by December 5, 2019 at the latest, that it had collected and sent a DNA sample for testing because, according to the DNA report, the DNA evidence was received by the lab on December 5 2019 ” Therefore, applying John, the Court presumes that knowledge possessed by the VIPD was knowledge possessed by the prosecution, and finds that the People were aware of the DNA evidence, by no later than December 5 2019 The Court rejects the People 5 claim that they only became aware of the DNA evidence on January 30 2020 1126 While the People a1 gue that the prosecutor did not know that the DNA evidence had been sent to the lab for testing and the Court accepts that the mdn 1dual prosecutor did not have personal knowledge of the DNA evidence, or personal knowledge that it was sent for testing, the Court finds that the People of the Virgin Islands did possess knowledge of the DNA evidence prior to January 30, 2021, as VIPD certainly possessed that knowledge 1127 However absent evidence from Stevens that clearly demonstrates that the People acted intentionally in failing to disclose the existence of DNA evidence for the purposes of prejudicing his case, the Court cannot presume that the People 3 untimely disclosure was made in bad faith See Ponce 72 V I at 838 (affirming the trial court 3 finding that the People did not act in bad faith because the nondisclosure was not intentional, but rather was the result of sloppy work on the
“ It is uncleai if the DNA sample was taken from a weapon or othei evidence in the custody of VIPD, but certainly VIPD knew it had shipped offa sample for testing as ofthe date of shipment This occuried me: the first continuance
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side of the prosecution ) Moreover the People have conceded that the DNA evidence would have been excluded had the matter proceeded to trial and thus the Court finds that Stevens was not prejudiced by the untimely disclosure See Ponce, 72 V I at 838 (finding that minimal prejudice that is easily cured is insufficient to demonstrate bad faith) Therefore, the Court finds that Stevens has failed to present evidence to clearly demonstrate that the People acted in bad faith in failing to timely disclose the DNA evidence, but that the People would gain an unfair tactical advantage if permitted to use untimely disclosed DNA evidence at a future trial ‘7 For these reasons, the Court will grant dismissal without prejudice, but will also exclude the untimely disclosed DNA evidence and direct that it not be use in a future trial
IV CONCLUSION
1128 The Court finds that, under the Virgin Islands Supreme Court 5 analysis in Phillip, the People s motion to dismiss without prejudice is not cleaily contrary to manifest public interest
’7 The Court distinguishes this case from its holding in People v Stephens No ST 2016 CR 177 2020 WL 806592 at *1 4 (V I Super Ct Jan 15 2020) on the facts In Stephens the People unilateially decided not to disclose the identity of a witness until jun! selection Importantly, the defendant was facing a charge of fiist degree murdei which carries no statute of limitations Thetefoxe the Conn found that if the matte: weie dismissed without prejudice the People could refile the case against the defendant in the distant future and none of the original members of the court would be available to call attention to the COUlt 5 order baning the witness from testifying at tiial In addition, the identity of the witness nevei hax ing been disclosed not even the defendant could bring attention to the Court 3 Older Even if the defendant in Stephens called attention to the Older, it would be difficult f01 anothei comm in the distant future to enforce the order because the identity of the witness was nevei disclosed not even to the Court Consequently, if the Court dismissed the matter without piejudice the People would have gained an improper tactical advantage at a futme tiiaI The risk of piejudice to the defendant along with the Couit s finding of bad faith in the People 3 nondisclosuie was the basis of the Court 3 dismissal with prejudice
Here, howevex Stevens has failed to piesent evidence to clearly demonstrate that the People acted intentionally in failing to timely disclose the existence of DNA evidence and thus the Court cannot make a finding of bad faith Since dismissal with prejudice should only be used in the rarest of circumstances, Phillip 58 V I at 600, absent a finding of bad faith, the Court must grant dismissal without prejudice In addition, the chaiges pending against Stevens axe subject to a thiee year statute of limitations
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There is no evidence that the People intentionally failed to timely disclose the existence of DNA evidence for the purposes of prejudicing Stevens case, and thus the Court cannot make a finding of bad faith As such, the Court will grant the People 5 motion to dismiss without prejudice And the Defendant s motion to dismiss with prejudice will be denied However, given that the People would gain an unfair tactical advantage if permitted to use the untimely disclosed DNA evidence at a later trial, the Court will direct that the People are barred from using DNA evidence at a future trial An order consistent with this opinion will immediately follow
DATED March 2 2021 éfflé’ ééj/fg :
Kathleen Mackay
Judge of the Superior Court of the Virgin Islands
ATTEST TAMARA CHARL S Clelk t Court
BY M 0
L0 I M BOYNE a Chef Deputy Clerk 3/ fix