People of the Virgin Islands v. Micaiah Cozier

Opinion

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

PEOPLE OF THE VIRGIN ISLANDS ) ) Plaintiff ) v ) CASE NO ST 21 CR 380 ) MICAIAH COZIER ) ) Defendant ) Cite as 2022 V 1 Super 94U )

ANNA B SCOTT Esq NICOLE LYNN KING RICHARDSON Esq ASSISTANT ATTORNEY GENERAL KING & KING LAW P C Department of Justice 5043 Norre Gade, Suite 201 34 38 Kronprindsens Gade St Thomas V I 00802 GERS Building, 2“d Floor Attorney for Defendant Micaiah Cozier St Thomas V I 00802 Attorney for the People of the Virgin Islands

CARTY RENEE GUMBS Judge

MEMORANDUM OPINION

1]] THIS MATTER is before the Court on the Motion to Dismiss filed on March 22 2022 by

Defendant, Micaiah Cozier (“Cozier’), pursuant to Virgin Islands Rules of Criminal Procedure

l2(b)(3)(B)(ii) and 47 Defendant moves this Court to dismiss eleven counts two (2), four (4), six

(6) eight (8) ten(10) twelve(12) fourteen(l4) sixteen(l6) eighteen(l8) twenty (20) and twenty

two (22) or in the alternative, to consolidate the counts into one charge The People of the Virgin

Islands (“the People ’) filed their Opposition on March 29, 2022 For the reasons that follow,

Defendant’s motion will be granted in part and denied in part

I FACTUAL AND PROCEDURAL BACKGROLND

1|2 The People allege that on the morning of December 4, 2021, a black Honda Odyssey van

entered Havensight Shopping Center, St Thomas, Virgin Islands, and parked across Glitters jewelry People ofthe Vtrgm Islands v Mzcazah ( ozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opini0n

store with the vehicle angled to face the exit At approximately 1 1 00 a m , three (3) men wearing all

black and masks exited the van and ran into the jewelry store Two (2) of the men carried guns and

one (1) carried an empty bag One of the patrons attempted to leave but was dragged back into the

store against her will by one of the gunmen The men stole approximately eighteen thousand dollars

($18,000) worth of jewelry, including a “gold byzantine necklace and “Gucci earrings ” Seconds

later, the three males vacated the store and ran into the van Before entering the van, one of the gunmen

turned and discharged several rounds in the storefront’s direction The security officer was shot in the

abdomen and taken to Roy Lester Schneider Hospital Gregorianna Julien who was pulled back into

the store moments earlier by a gunman, was shot in the shoulder, and subsequently passed away on

January 2 2022

113 Virgin Islands police officers were immediately dispatched to Glitters jewelry store where,

upon arrival, they interviewed witnesses and collected multiple spent castings as part of their

investigation On December 15, 2021 officers interviewed a witness who claimed he observed four

men and identified three of the four men by familiarity and clothing description, including the

Defendant On December 16, 2021, Cozier was brought in for questioning, however, he denied any

association with the robbery Nevertheless, the officers advised Defendant ofhis constitutional rights,

arrested him, and remanded him to the Bureau of Corrections

{4 On February 2, 2022, the People formally charged Cozier with twenty eight counts in the

Information

i Count One Murder in the First Degree (Aiding and Abetting) tit 14 V I C §§ 921 922(a)(2) § 1 1(3) ii Count Two Use of a Firearm During the Commission of Murder in the First Degree (Aiding and Abetting) tit 14 V I C § 2253(a) § 1 1(a)

2 People ofthe Virgin Islands v Micatah Cozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

iii Count Three Assault in the First Degree (Aiding and Abetting) tit 14 V I C § 295(3)

§ ll(a) iv Count Four Use of a Firearm During the Commission of Assault in the First Degree (Aiding and Abetting) tit 14 V I C § 2253(a) § ll(a) v Count Five Assault in the Third Degree (Aiding and Abetting) tit 14 VIC §

297(1)(2)(4) § 11(3) vi Count Six Use of a Firearm During the Commission of Assault in the Third Degree (Aiding and Abetting) tit 14 V I C § 2253(a) § ll(a) vii Count Seven Attempted Murder in the First Degree (Aiding and Abetting), tit 14 V I C §§ 921 922(a)(2)' § 331 § ll(a) viii Count Eight Use of Firearm During the Commission of Attempted Murder in the First Degree (Aiding and Abetting) tit 14 V I C § 2253(a) § 1 1(a)‘ ix Count Nine Assault in the First Degree (Aiding and Abetting) tit 14 V I C § 295(3)

§ 11(8)‘ x Count Ten Use of a Firearm During the Commission of Assault in the First Degree (Aiding and Abetting) tit 14 V I C § 2253(a) § 1 1(a) xi Count Eleven Assault in the Third Degree (Aiding and Abetting) tit 14 V I C §

297(l)(2)(4) § I1(a) xii Count Twelve Use of a Firearm During the Commission of Assault in the Third Degree (Aiding and Abetting) tit 14 V I C §2253(a) § ll(a) xiii Count Thirteen Kidnapping for the Purpose of Robbery (Aiding and Abetting), tit 14 VIC §1052(a) §ll(a) xiv Count Fourteen Use of a Firearm During the Commission of Kidnapping for the Purpose of Robbery (Aiding and Abetting) tit 14 V I C § 2253(a) § 1 1(a) xv Count Fifteen Robbery in the First Degree (Aiding and Abetting) tit 14 V I C §§ 1861 l862(l)(2) § ll(a) xvi Count Sixteen Use of a Firearm During the Commission of Robbery in the First Degree (Aiding and Abetting) tit 14 V I C § 2253(a) § 1 1(a) xvii Count Seventeen Robbery in the Second Degree (Aiding and Abetting), tit 14 V I C §§ 1861 1863(l)(2) § ll(a)

3 People ofthe Virgin Islands v Micazah ( ozler Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

xviii Count Eighteen Use of a Firearm During the Commission of Robbery in the Second Degree (Aiding and Abetting) tit 14 V I C § 2253(a) § 1 Ma) xix Count Nineteen Unlawful Entry (Aiding and Abetting) tit 14 V I C § 445' § 1 1(a) xx Count Twenty Use ofa Firearm During the Commission of Unlawfill Entry (Aiding and Abetting) tit 14 V I C § 2253(a) § 11(a)‘ xxi Count Twenty One Grand Larceny (Jewelry) (Aiding and Abetting) tit 14 V I C §§ 1081' 1083(a)(1)'§ ll(a) xxii Count Twenty Two Use of a Firearm During the Commission of Grand Larceny (Aiding and Abetting) tit 14 V I C § 2253(a) § ll(a) xxiii Count Twenty Three Reckless Endangerment in the First Degree (Aiding and Abetting), tit 14 V I C §625(a) §ll(a) xxiv Count Twenty Four Unauthorized Possession of Ammunition ( 40 S&W) (Aiding and Abetting) tit 14 V I C §2256(a)(4) § ll(a) xx» Count Twenty Five Unauthorized Possession of Ammunition (9mm) (Aiding and Abetting) tit 14 V I C § 2256(a)(4) § 1 1(a)' xxvi Count Twenty Six Grand Larceny (Auto) (Aiding and Abetting) tit 14 V I C §§ 1081' 1083(a)(l) § ll(a) xxvii Count Twenty Seven Unauthorized Use of a Vehicle (Aiding and Abetting), tit of 14 V I C § 1382 § 1 1(a) xxviii Count Twenty Eight Conspiracy tit 14 V I C § 551(1)

The other three co defendants were also charged with twenty eight (28) counts each of

the identical information and formally joined in the above captioned matter '

115 In his motion, Cozier moves for the Court to dismiss counts 2, 4 6, 8, 10, 12, 14, 16, 18, 20,

and 22 on the grounds that they are multiplicitous ’ In the alternative, he seeks to consolidate these

counts into a single charge of use of a firearm during the commission of a crime of violence Id

' The People filed a Motion for Joinder of Defendants on March 17, 2022, and since the filing of the Motion to Dismiss, all four cases were consolidated on September 2 2022 I Defendant‘s Motion to Dismiss, p l 4 People ofthe Virgin Islands v Mzcaxah ( o Ier Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

Cozier asserts that the People overcharged him with use of a firearm by fail[ing] to identify that

although there may be more than one statutory crime of violence involved in the single underlying

criminal incident, the elements [of the firearms charges that he seeks to consolidate or dismiss] remain

the same ”3 Defendant further states that irrespective of any of the crimes enumerated, he is accused

of possessing only one firearm Cozier concluded that there are no additional facts supporting an

allegation that he possessed any other weapon

116 In their opposition the People contend that the charges are not multiplicitous as each charge

is associated with a predicate crime of violence ’ which includes different elements 4 The Pe0ple also

aver that there were at least two guns involved during the commission of the crimes charged in the

Infomation Id at 1] 9 Finally, the People argue that the Superior Court cases that the Defendant

relied upon are not only non binding, but were applied in the context of sentencing, not charging As

such, Defendant s motion to dismiss should be denied

[1 LEGAL STANDARD

1|7 Title 14, § 104 of the Virgin Islands Code prevents multiple punishments for an act or

omission that can be charged under several different counts 5 This rule provides

“An act or omission which is made punishable in different ways by different provisions of this Code may be punished under any of such provisions, but in no case may it be punished under more than one An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other ”

1|8 Thus, [t]he plain language of § 104 indicates that despite the fact that an individual can be

charged and found guilty of violating multiple provisions in different ways arising from a single act

or omission, that individual can ultimately only be punished under one offense Galloway v People,

3 Defendant 5 Motion to Dismiss, p 6 4 People 3 Opposition to Defendant 5 Motion to Dismiss pp 3 4, at *3 5 14 V I C § [04 see also People v Prmgle No ST 2020 CR 00262 2021 VI Super 94U at1| l6 5 People 0/the Virgin Islands v Mtcazah ( 021er Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

57 V I 693 712 (2012) (quoting Wzlliams v People 56 V I 821 832 (V I 2012)) see also Tyson v

People 59 V I 391 428 (V I 2013) The Court in I ’mted States v Pollen 978 F 2d 78 83 (3d Cir

1992) held that ‘a multiplicitous indictment charges the same offense in two or more counts and may

lead to multiple sentences for a single violation, 3 result prohibited by the Double Jeopardy Clause

'9 In determining whether an indictment is multiplicitous, this Court looks to whether “separate

and distinct prohibited acts ’ have been committed Umted States v Planck, 493 F 3d 501, 503 (5th

Cir 2007) Where the same act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are two offenses or only one is whether

each provision requires proof of a fact which the other does not Blockburger v Umted States 284

U S 299 304 52 S Ct 180 76 L Ed 306 (1932) lmted States v Hodge 211 F 3d 74 78 (3d Cir

2000) (using the test set forth in Blockburger to determine whether certain offenses grew out of the

same occurrence) I S v Liotard 817 F 2d 1074 1077 1078 (3d Cir 1987) Titre v People 70 V I

797 803 2019 V I 3 (2019) Iannellz v Umted States 420 U S 770 785 n 17 95 S Ct 1284 43

L Ed 2d 616 (1975) (explaining that the Blockburger test serves the fimction of identifying

congressional intent to impose separate sanctions for multiple offenses arising in the course of a single

act or transaction ’)

$10 This test, however, is a rule of statutory construction, and because it serves as a means of

discerning [legislative] purpose the rules should not be controlling where, for example, there is a clear

indication of contrary legislative intent See thre at 803 (2019) Under Blockburger, a court is

expressly required to consider whether the offenses all arose from a single act or omission Id

However, even if a court finds that two statutes forbid the same conduct under the Blockburger test,

the government may still endeavor to impose cumulative punishment under two statutes in the same

trial if the legislature specifically authorized cumulative punishment Missouri v Hunter, 459 U S

6 People ofthe Virgin Islands v Micatah Cozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

359 368 369 103 S Ct 673 74 L Ed 2d 535 (1983) see also Albernaz v United States 450 U S

333 337 101 S Ct 1137 67 L Ed 2d 275 (1981) In other words the Blockburger test examines

‘ whether the legislature intended to make separately punishable the different types of conduct referred

to in the various counts ’ United States v Stanfa, 685 F 2d 85, 87 (3d Cir 1982)

1|ll With respect to legislative intent, the United States Supreme Court has noted that “[b]ecause

the substantive power to prescribe crimes and determine punishments is vested with the legislature,

the question under the Double Jeopardy Clause of the Fifth Amendment [of] whether punishments

are multiple’ is essentially one of legislative intent ” Ohio v Johnson, 467 U S 493, 499, 104 S Ct

2536 81 L Ed 2d 425 (1984) (citing Hunter at 678 679) As a result the sentencing discretion of the

judicial branch is limited by the legislative branch in that courts must ensure that the punishment

imposed upon a defendant does not surpass that prescribed by the legislature See Hunter at 366, see

also I ’mted States v Hodge 870 F 3d 184 193 94 (3d Cir 2017)

'12 The Virgin Islands firearms statute criminalizes the unauthorized possession, bearing,

transporting, or carrying of a firearm It imposes additional penalties if the defendant also commits or

attempts to commit a “crime of violence Id Section 2253(a) of Title 14 of the Virgin Islands Code

provides

Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either, actually or constructively, openly or concealed any firearm, as defined in Title 23, section 451(f) of this code, loaded or unloaded, may be arrested without a warrant, and shall be sentenced to imprisonment of not less than ten years and shall be fined not less than $10,000 nor more than $15,000 or both the fine and imprisonment, except that or if such firearm or an imitation thereof was had, possessed, home, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be fined $25 000 and imprisoned not less than fifteen (15) years nor more than twenty (20) years The foregoing applicable

7 People ofthe Vzrgm Islands v Mtcatah ( ozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

penalties provided for violation of this section shall be in addition to the penalty provided for the commission of, or attempt to commit, the felony or crime of violence

aunt:

((1) As used in this chapter ( 1) “Crime of violence” shall have the same definition as that contained in Title 23, section 451(g) of this Code ”6 [4 V I C § 2253

Title 23, section 451(g) states that a ‘ crime of violence means the crime of, or the attempt to

commit, murder in any degree, voluntary manslaughter rape, arson, discharging or aiming firearms,

mayhem, kidnapping, assault in the first degree, assault in the second degree, assault in the third

degree, robbery, burglary, unlawful entry or larceny 23 V I C § 451

1113 The latter portion of section 2253(a) regarding a crime of violence is structured as a sentencing

enhancement and attaches to the underlying offense in a separate charge Hodge at 198 (2017) In

effect, the latter portion of section 2253(a) cannot stand alone and must be associated with an

underlying violent offense Because § 2253(a) serves as an enhancement to each underlying charge

and each crime ofviolence varies in punishment, it stands to reason that the enhancement is applicable

to each respective underlying charge Use of a firearm only enhances the underlying sentence and

cannot serve as the basis for another prosecution for a firearm possession offense under section

2253(a) Untied States v Xavzer 2 F 3d 1281 1291 (3d Cir 1993) ( [Section 2253] provides

punishment for use or possession except that’ a greater punishment applies for a defendant convicted

of possessing a weapon during a crime of violence ”), see also I ’mted States v Fontame, 697 F 3d

221 at 229 (‘ It is thus the lack of authorization to have a firearm that stands as a prerequisite to

criminal liability [under section 2253(a)] ) Also, section 2253(a) unequivocally provides in the last

6 14 V I C § 2253(a) (d) 8 People ofthe Virgin Islands v Micalah Co (er Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

sentence that the punishment imposed is in addition to the sentence imposed for the underlying

charge Hence, the Virgin Islands Legislature intended this charge to be separate and apart, and in

addition to each and any of the specified crimes of violence under § 451(g)

III LEGAL DISCUSSION

'|l4 In his motion, Cozier relies heavily upon Connor v People, 59 VI 286, 310 (VI 2013)

(citing Blockburger which states that multiplicity occurs where criminal charges have identical

statutory elements, or one is a lesser included offense of the otheg Cozier applies this standard to

his case and asserts that the People improperly charged him with eleven excessive counts in the

Information under § 2253(a) because each count shares identical elements, to wit (1) defendant

possessed a firearm; and (2) during the commission or attempted commission of a crime of violence

Next, Cozier argues that the People exceeded the limits set by the legislature s constitutionally valid

definition of chargeable offenses ’7 because they linked § 2253(a) to every underlying crime of

violence charged in the Information Cozier rationalizes his argument using the standard set forth in

People v Colon, 60 V I 149, 163 (2014) by arguing that the use of the indefinite article “a” under §

2253(a) in “a crime of violence” should be interpreted as a single charge because the legislature of

the Virgin Islands did not intend for there to be separate units of prosecution” for each ofthe pertinent

crimes of violence alleged in a single case Quoting Colon, he further argues that ‘ if the legislature

wants to refer to something particular, not general, it uses the word ‘ the rather than “a” or “an” Id

Additionally, Cozier argues that the ‘ Legislature 5 use of disjunctive conjunction or at the end of

the definition of “a crime ofviolence” supports the legislative intent to include various types of crimes

of violence ” Id

7 Defendant 5 Motion to Dismiss p 5 9 People ofthe Virgin Islands v MlLaIah ( 0218!” Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

‘|15 Cozier concludes that irrespective of whether it was murder, attempted murder, assault, or any

other type of crime of violence, if there was one possession of a firearm that arose from a single act,

it violates the Double Jeopardy Clause of the Fifth Amendment Cozier also draws this inference from

People v Prmgle No ST 2020 CR 00262 2021 V 1 Super 94U which provided that it is

multiplicitous to charge someone for possession of the same weapon multiple times for multiple

underlying crimes when the same weapon is used and the crimes are a part of the same ongoing

criminal activity ’

‘ 16 In response, the People contend that the charges are each linked to a specific predicate crime

of violence with distinct elements that need to be established They argue that the Virgin Islands

Legislature intended for a defendant who uses a weapon, whether it is a gun or other dangerous

weapon, during the commission of a crime of violence, face two charges one for the underlying

crime of violence and another for the use of the weapon The People further assert that there were two

firearms used during the commission of the underlying felonies 8 “How the weapons were used or

carried pursuant to 14 V I C § 2253(a) is different and specifically linked to the crime of violence it

was used in the commission of 1d The People also argue the supporting facts to prove use of the

firearm is distinct from each charge In addition to that, the People assert that each of the underlying

crimes of violence require separate distinct elements to prove Id

#17 Finally, the People admitted that although there is a constitutional prohibition against

cumulative punishment under the Double Jeopardy Clause, there is no prohibition from being charged

in multiple ways Id at 1] 8 Hence, there is no legal justification for narrowing prosecutonal discretion

in charging in a manner inconsistent with the legislative intent or pursuits ofjustice The Court

a People 5 Opposition to Defendant 5 Motion to Dismiss, p131 9 People ofthe Virgin Islands v Micazah Cozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

agrees with the People in some respects Thus, some charges are multiplicitous and others are not

A Counts Two, Four, and Six are multiplicitous and consolidation of them is appr0priate

1|18 Analyzing counts two (2), four (4), and six (6) (use of a firearm during the commission of the

underlying crimes of violence murder and assault), this Court finds them multiplicitous because

they stem from one act of discharging projectiles in a single shooting incident Each count of use of

a firearm is paired with felony murder, assault in the first degree and assault in the third degree The

underlying crimes of violence charged in counts one, three, and five arise from the killing of

Gregorianna Julien, as a result, the assault charges addressed in counts three and five are subsumed

into the murder charge contained in count one For the reasons elucidated below, it is in interest of

justice to consolidate them into one count

i Underlying crimes of violence and their relation to the respective gun charges

$9 Since a homicide generally results from the commission of an assault, every felonious assault

ending in death automatically would be elevated to murder in the event a felonious assault could serve

as the predicate felony for purposes of the felony murder doctrine Government ofthe Virgin Islands

v Vergzle 50 V I 127 139 (2008) Felony murder is defined in 14 V I C § 922(a)(2) which provides

All murder which is committed in the perpetration or attempt to perpetrate arson, burglary, kidnapping, rape, robbery or mayhem, assault in the first degree, assault in the second degree, assault in the third degree and larceny is murder in the first degree

With respect to assault in the first degree 14 V I C § 295(3) provides in the pertinent part

“Whoever (3) with intent to commit rape, sodomy mayhem robbery or larceny, assaults another;”

Il People ofthe Vzrgm Islands v Micazah ( ozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

Assault in the third degree is defined in 14 V I C (3‘ 297(a)(l)(2)(4), which provides in its pertinent

parts

“(21) Whoever, under circumstances not amounting to an assault in the first or second degree (1) assaults another person with intent to commit a felony, (2) assaults another with a deadly weapon, (4) assaults another and inflicts serious bodily injury upon the person assaulted; or whoever under any circumstances, ’

1120 Some elements of 14 V I C § 297(a)(2) differ from the elements of § 295 as they are mutually

exclusive of each other, hence, it is important to clarify the relationship between the two sections

The language in 14 V I C § 297(a) provides for circumstances not amounting to an assault in the

first or second degree” However, as addressed in Daws v People, 69 V I 619, 632 33 (V I 2018),

the language under circumstances not amounting to an assault in the first or second degree” does not

establish an additional element of the offense, but rather constitutes a condition precedent to the

sentencing range prescribed in section 297 Mbbs v People 73 VI 617, 622, 2020 V I 18, at 12

Moreover, § 297(a)(1) is effectively the same as § 295(3) except that § 295(3) is inclusive of all

felonies whereas section 297 specifies five categories of felonies Consequently, § 297 is not subject

to the Blockburger analysis with respect to comparable section 295(3) Therefore, 14 V I C § 297(a)

shall be considered in tandem with assault in the first degree

1|21 Here, Cozier is charged with felony murder in count one of the Information When utilizing

the Blockburger test, elements of both assault charges overlap with the elements of the murder charge

The core distinction between the assault under § 297(a)(l)(2) and (4) § 295(3) and § 922 is that

ultimately, the person died Thus, the People do not have to prove additional elements in assault

charges beyond those required to prove under murder They just need to prove the assault charges

resulted in the death of the person Since the assault charges fall under the umbrella of the murder 12 People ofthe Virgin Islands v Mzcazah Cozier Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

charge, the respective firearm charges are lesser included offenses 0f the firearm charge associated

with murder Therefore, counts four and six are both lesser included offenses of count two, in that the

People are not required to prove any additional element to obtain convictions for counts four and six

that are not required to obtain a conviction under count two Consequently, the Blockburger test is

satisfied

1122 Cozier allegedly possessed a handgun as a co defendant carried a long gun when they entered

the store The People allege that when Cozier and the other co defendants exited the jewelry store

and ran to the Honda Odyssey van, the accomplice with the long gun allegedly discharged multiple

rounds of firearm ammunition into the store One of the bullets struck Gregorianna Julien in her

shoulder causing her death Therefore, the resulting death is a direct consequence of the serious bodily

injury that was caused by the felonious assault

ii Prosecutorial discretion with respect to application of 14 V I C § 2253(a)

1|23 As this Court noted above, Defendant is arguing that the People exceeded their prosecutorial

charging discretion when they charged him with eleven counts of 14 V I C § 2253(a) This Court

disagrees The Third Circuit concluded that prosecutors enj 0y a great amount of discretion in charging

a defendant United States v Pungztore 910 F 2d 1084 1112 (3d Cir 1990) As other courts have

pointed out, “prosecutors have traditionally enjoyed discretion in deciding which of multiple charges

against a defendant are to be prosecuted or whether they are all to be prosecuted at the same time ’

[d (citing l mted States v Cardall 885 F 2d 656 666 (10th Cir 1989) see also United States v

Becker, 892 F 2d 265 269 (3d Cir 1989) (successive prosecutions of two separate drug conspiracies

did not constitute harassment) United States v Partyka 561 F 2d 118 124 (8th Cir 1977) cert

denied 434 U S 1037 98 S Ct 773 54 L Ed 2d 785 (1978)

13 People ofthe Virgin Islands v Mzcatah Cozter Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

1124 Defendant’s reasoning for supplanting the word “the ’ for the word “a” within “a crime of

violence’ is implausible because it misinterprets the legislative intent behind 14 V I C § 2253(a) The

indefinite articles of “a” or “an” are a reference to any of the fourteen specific crimes of violence

named in Title 23, section 451(g) of the VI Code that the government may choose from when it

exercises its prosecutorial discretion Title 23, section 451(g) of the V I Code provides

Crime of violence means the crime of, or the attempt to commit, murder in any degree, voluntary manslaughter, rape arson, discharging or aiming firearms, mayhem, kidnapping, assault in the first degree, assault in the second degree, assault in the third degree, robbery, burglary, unlawfiil entry or larceny

A reading of § 2253(a) with Cozier’s interpretation reads as follows

“[Ilf such firearm or an imitation thereof was had, possessed, home, transported or carried by or under the proximate control of such person during the commission or attempted commission of the crime of violence, as defined in subsection (d) hereof, then such person shall be

This interpretation implies that the legislature intended the government to charge only one

count of a firearm as an enhancement charge despite any number of violent crimes charged Choosing

to follow Defendant’s position in narrow application of the definite article “the” before “crime of

violence” would result in substantial contradiction with the legislative intent and obstruct the very

purpose of the section Defendant’s reading leads to an absurd result because it suggests the

prosecutor lacks discretion and must select which underlying offense the firearm charge must be made

applicable to This perspective renders the interpretation of section 451(g) unsound Each

enhancement charge is specifically tied to a distinct crime of violence As a result, following this

restricted view would significantly limit prosecutorial charging discretion and undermine its role to

prosecute crimes Consequently, it is the not in interest ofjustice to limit the prosecutorial arm of the

l4 People ofthe Virgin Islands v Micatah Cozmr Cite as 2022 V 1 Super 94U Case No ST 21 CR 380 Memorandum Opinion

government in fulfilling its role Therefore, the People did not exceed their limits of prosecutorial

discretion bestowed upon them by the statutes

1|25 Defendant’s next argument is that the Virgin Islands Legislature intended to include various

types of crimes of violence when it used the disjunctive conjunction “or” at the end of the definition

of “a crime of violence” in section 451(g) This argument is meritless The disjunctive conjunction

or ’ serves the purpose to conclude the number of limited violent crimes named in section 451(g)

that the government may choose from when executing its prosecutorial discretion in charging a

defendant with § 2253(a) Defendant s reasoning also contradicts the legislative intent anchored in §

104 that allows the People to prosecute a single act or omission that violates several different laws

‘|26 In addition to the reasons stated above, this Court finds that Cozier misapplies § 104 during

his argument with respect to multiplicity of charges under § 2253(a) As already stated above, section

104 provides in pertinent part

“An act or omission which is made punishable in different ways by different provisions of this Code may be punished under any of such provisions, but in no case may it be punished under more than one An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other ”

Hence, the plain language of section 104 explains that despite the fact that an individual can be

charged and found guilty of violating multiple provisions of the Virgin Islands Code arising from a

single act or omission, that individual can ultimately only be punished for one offense See Galloway

at 712, see also Tyson at 428

‘27 Defendant failed to recognize that 14 V I C § 104 carries rather a permissive character with

respect to multiple charging Section 104 allows the government to impose multiple charges against

a defendant as a part of their prosecutorial discretion however, it forbids multiple punishments for

the same act In Titre, the Virgin Islands Supreme Court addressed the issue of sentencing in

15 People ofthe Virgin Islands v Micalah Comer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

compliance with § 104 The Court held the trial court 3 sentencing decision to the standard developed

in Rutledge v United States 517 U S 292 116 S Ct 1241 134 L Ed 2d 419 (1996) Pursuant to

the Rutledge decision, the Superior Court was required to announce a sentence for only a single

conviction of each group of offenses, and then to vacate rather than merge or stay the remaining

offenses within that group ’ Titre at 807 Consequently, the Court concluded that the Superior Court

should have imposed sentences for the underlying crime of violence (murder in the second degree)

and its corresponding firearm charge under § 2253(a) and vacated the convictions for lesser included

offenses (assault in the first degree and assault in the third degree) and their respective firearm charges

under § 2253(a) Id In its Opinion, the Court explained that its reasoning stems from an observation

that other courts have exercised their supervisory powers to replace merger with vacatur as the remedy

for violations of state double jeopardy protections Id at 809 (citing State v Polanco, 61 A 3d 1084,

1087 (Conn 2013) (“[T]he vacatur approach shall replace the use of the merger of convictions

approach when a defendant is convicted of greater and lesser included offenses ”)) The Court

concluded that vacatur shall be the remedy in cases in which section 104 is implicated, just as is the

case with violations of the Fifih Amendment's Double Jeopardy Clause 1d at 809

'28 Following the Virgin Islands Supreme Court 3 considerations with respect to sentencing in

accord with 14 V I C § 104, this Court recognizes the importance to abide by this rule at the

sentencing stage Given the early stage of the proceedings in this case, the People are not prohibited

by the law to execute their charging discretion at this time

729 Lastly, Cozier argues that single use of a firearm cannot support multiple prosecutions under

section 2253(a) This Court disagrees In United States v Hodge 870 F 3d 184 188 (3d Cir 2017)

the Court of Appeals considered a defendant who shot a man holding a bag of cash, in an attempt to

steal the bag When the victim resisted, defendant shot him twice more Id He then shot the man s

16 People ofthe Virgin Islands v Micaiah Cozier Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

companion and fled with the bag Id Defendant was charged, Inter aha, with three counts under 18

U S C § 924(c) Two were premised on the attempted murder of each of the two men, and one

premised on the robbery 1d The Defendant argued that 18 U S C § 924(c) can be read to mean that

single use carrying, or possession of a firearm cannot support multiple prosecutions Id at [96

Therefore, the predicate offenses one for robbery and one for attempted murder are both based on

a single use of his firearm in shooting a man [d at 196 In rejecting Hodge’s contention, the Court

stated as follows “[c]rimes occurring as a part of the same underlying occurrence may constitute

separate predicate offenses if properly charged as separate crimes It follows that each may be a

separate predicate for a section 924(c)(1) conviction ’ Id at 196 (quoting Untied States v Caszano,

113 F 3D 420 426 (3d Cir 1997)) (citations omitted) The Court fimher opined that the statutory

text of § 924(c) is “susceptible of differing interpretations” with the relevant unit of prosecution being

either (1) the underlying predicate offense, or (2) each individual instance in which a defendant uses

or carries a firearm throughout the duration of an underlying predicate offense Id at 196 97

'I30 In Hodge the Court observed that Defendant engaged in multiple uses of a firearm to commit

multiple crimes, albeit all during the same criminal episode 1d at 197 The Court s observation was

not based on the way the firearm was employed but rather the fact that it was used to further several

different crimes Thus, the case at bar resonates with Hodge because Cozier is alleged to have

employed a firearm multiple times to commit multiple predicate offenses during the incident

iii Judicial economy, risk of prejudice, totality and severity of the charges

1131 Cozier relies on the reasoning of Prmgle inter aha, which provides that courts should

consider factors such as “judicial economy, risk of prejudice, the totality of the charges against the

defendant, and the severity of those charges when addressing multiplicitous charges This Court

finds this argument unavailing In United States v Bowers, 495, F 3d 362 (3d Cir 2020), Defendant 17 People ofthe Virgin Islands v Micalah Cozier Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

contended that multiple counts charging violations of section 924(c) and (j) are multiplicitous in

violation of the Eighth Amendment and the Federal Death Penalty Act He asserted that the nature of

charges against him may render a jury determination of punishment unreliable due to juror confusion

and the risk of double counting both charges and aggravated circumstances Id In that vein, Defendant

expressed concerns that jurors may be under the impression that just because there are multiple

counts, the crime is worse and the Defendant more culpable Id The Court disagreed and opined that

Defendant 3 concerns can be addressed through appropriate instructions to the jury and conscientious

management of the trial and evidence presented Id

1|32 Returning to the present case, there is no reason for this Court to believe that a jury will be

unwilling to properly carry out their jury duty Therefore, Cozier is not at risk of unfair prejudice or

jury confusion created by the multiple charges in the People 5 Information It is in the interest of

justice to allow the government to exercise its discretion in fulfilling its role as a prosecutorial body

As already stated above, limiting the People in their charging discretion will undermine the legislative

intent behind § 104 that allows for acts or omissions to be “made punishable” Therefore, Cozier’s

concerns (10 not outweigh interests ofjustice and public concerns

iv Aiding and Abetting with respect to multiple charges for use of a firearm

1133 Defendant argues that although there were two victims, it was only one possession of a firearm

during the commission of the alleged crimes of violence, thus, it is multiplicitous to charge him with

multiple counts for the same possession He draws parallels from the Virgin Islands Supreme Court

decision in Tyson In Tyson, the Court held that the trial court failed to comply with § 104 when it

imposed separate sentences for two counts of use of a firearm under § 2253 for two different murders

The Court reasoned that the crime of possession under the facts was a single act because Tyson

l8 People ofthe Virgin Islands v Mzcazah ( ozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

possessed the same firearm throughout the duration of the shooting incident 9 In conclusion, the Court

held that it is multiplicitous to charge someone for possession of the same weapon multiple times for

multiple underlying crimes when the same weapon is used and the crimes are a part of the same

ongoing criminal activity

1134 This case resonates with Tyson because it involves use of one firearm during criminal acts that

resulted in the death of one person and physical injury of another However, Tyson acted as a sole

perpetrator whereas Cozier acted with confederates who, allegedly, possessed two different firearms

amongst them Cozier is charged with aiding and abetting under each offense The Supreme Court of

the Virgin Islands has held that in order to establish the offense of aiding and abetting, the

Government must prove that the substantive crime has been committed and that the defendant knew

of the crime and attempted to facilitate it Brown v People 54 V I 496 505 (V I 2010) (quoting

United States v Frorup 963 F 2d 41 43 (3d Cir 1992)) Additionally the Court requires proof that

the defendant had the specific intent to facilitate the crime Id United States v Mercado, 610 F 3d

841 846 (3d Cir 2010) see also Merrlfield v People ofthe Vzrgm Islands 56 V I 769 775 (2012)

$35 Here, there were two firearms used The police collected approximately twenty Spent castings

from two different caliber firearms Following the reasoning of the cases outlined above, the Tyson

reasoning does not exculpate Cozier simply because he allegedly possessed one weapon The

presence and alleged participation of three other co conspirators who had another gun in their

possession extend to Cozier Unlike Tyson, where defendant was charged with multiple firearm

charges in perpetration of felony murder that stemmed from a single act of shooting, Cozier is alleged

to have committed separate acts of criminal conduct that laid foundation for separate prosecutorial

9 Tyson v People 59 VI 391 at 428 (2013) I9 People ofthe Virgin Islands v MlLaIah ( 0 (er Cite as 2022 V 1 Super 94U Case No ST 21 CR 380 Memorandum Opinion

units of distinct crimes of violence with their own unique elements Therefore, since Cozier allegedly

partook in a series of different acts that resulted in murder robbery, grand larceny and other crimes

named in the Information the Tyson reasoning that targets only one criminal conduct would not apply

here

'l36 Summarizing the discussion above, this Court finds that under the Blockburger test, the

charges for use of a firearm during the commission of a crime of violence must stay within one

prosecutorial unit of the underlying crime of violence and its lesser included offenses In other words,

since assault in the first degree and assault in the third degree charges are lesser included offenses of

murder in the first degree under the Blockburger test it is reasonable to view these three charges as

one prosecutorial unit Accordingly, the respective charges for use of a firearm are within one

prosecutorial unit of the underlying charges and must be consolidated into one count

B Counts Eight, Ten, and Twelve are multiplicitous and consolidation of them is appropriate

T37 With respect to counts eight (8) ten (10) and twelve (12) (each charging use of a firearm

during the commission of the underlying crimes of violence attempted murder and assault), the

same reasoning applies to the attempted murder of the security officer All three counts charge Cozier

with use of a firearm in furtherance of the underlying crimes of attempted murder in the first degree,

assault in the first degree and assault in the third degree that are charged in counts seven, nine, and

eleven, respectively For the reasons articulated below it is appropriate to consolidate counts eight,

ten, and twelve into one count

1138 In Connor the Virgin Islands Supreme Court rejected the defense 5 arguments that the assault

with a deadly weapon charge under § 297 is the same as {5 2251(a)(2)(B), the enhancement charge

The Court rejected that argument based on the rationale that an assault committed with a deadly

20 People ofthe Virgin Islands v Micatah ( 021er Cite as 2022 v1 Super 94U Case No ST 21 CR 380 Memorandum Opinion

weapon constitutes the offense of assault in the third degree, and because it is a crime of violence, it

is also one of the crimes for which the possessor of a firearm may be convicted under § 2251(a)(2)(B)

The Supreme Court followed the Third Circuit 3 reasoning that provides “because the Legislature

was punishing the corresponding crime of possession of a deadly weapon during the commission of

the crime of violence, along with the primary offense of committing the crime of violence itself, its

intention to punish two offenses from the same act was clear Id at Fn 3 (citing Government of Virgin

Islands 1 Soto 718 F 2d 72 78 (3d Cir 1983)) Under Fontame v People of the VI 62 V I 643

654 (2015) the same legislative intent exists for § 2253 The Court held that the charge for

unauthorized possession of a firearm and the underlying crime of violence are “not multiplicitous

because the legislature clearly intended for additional sentencing where unauthorized firearms are

involved Id Compared to § 2251, § 2253(a) more narrowly proscribes unlawfiJI possession of a

firearm during the commission of a crime of violence Virgin Islands v Commisszong, 706 F Supp

1172 1989 (D V I 1989)

1139 Similar to first degree murder, an assault is a lesser included offense of an attempted murder

in the first degree Attempted murder in the first degree is defined in 14 V I C § 922(a)(2) and §

331(1) Section 331(1) provides

“Whoever unsuccessfully attempts to commit an offense, shall, unless otherwise specially prescribed by this Code or other law be punished by (l) imprisonment for not more than 25 years, if the offense attempted is punishable by imprisonment for life, or

Cozier is charged with attempted murder in the first degree in count seven of the Information

and with assault in the first degree and assault in the third degree in counts nine and eleven,

reSpectively Since an assault is a lesser included offense of attempted murder, the Pe0ple do not have

21 People 0fthe Virgin Islands v Micatah C OZIer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

to prove additional elements in assault charges beyond those required to prove under attempted

murder in the first degree Furthermore because the assault charges fall within an attempted murder

charge, the respective firearm charges are lesser included offenses of the identical charge associated

with the attempted murder Therefore, counts ten and twelve are both lesser included offenses to count

eight, in that the People are not required to prove any additional elements to obtain convictions for

counts ten and twelve that are not required to obtain a conviction under count eight The firearm

charges in counts eight, ten, and twelve are similar to counts two, four, and six, consequently, the

Blockburger test is satisfied Therefore, consolidation is appropriate

C Count Fourteen stands alone as a single charge to Count Thirteen

1|40 With respect to count fourteen (14) (kidnapping), Cozier seeks to dismiss or consolidate this

charge into a single charge for all the underlying crimes of violence charged The kidnapping charge

arises from the defendant(s) forcing Gregorianna Julien back into the jewelry store by pulling her

back against her will prior to the robbery and shooting incidents For the reasons set forth below, this

Court finds that the kidnapping charge should stand in isolation from other underlying offenses

because kidnapping is a distinct charge and is not a lesser included offense of any of the underlying

offenses charged

1141 14 V I C § 1052(a) reads as follows

‘ Any person who seizes, confines, inveigles, entices, decoys abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from any person or entity any money or valuable thing, or any person who kidnaps or carries away any individual to commit robbery, or any person who aids or abets any such act is guilty of kidnapping for ransom and shall be imprisoned for life ”

22 People ofthe Virgin Islands v Micazah ( ozwr Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

The People must prove completely different elements in the kidnapping charge that are

substantially distinct from those required to prove under murder or attempted murder Kidnapping is

not a lesser included offense of murder therefore, it comes with a separate prosecutorial classification

from murder and remains in exclusive association with count thirteen Therefore, since the kidnaping

charge is an independent offense with its own characteristic elements that require a different analysis,

this Court will not consolidate its corresponding firearm charge with the identical charges associated

with the other crimes of violence alleged in the Information that are distinct from the kidnapping

charge The People are within their prosecutorial discretion to charge this count separately in one

prosecutorial unit as neither judicial economy nor concerns of prejudice and justice demand its

dismissal at this stage Consequently, the Blockburger test is inapplicable here because all elements

of the crime are different

D Counts Sixteen, Eighteen, Twenty, and Twenty Two are not multiplicitous

1142 As it pertains to counts sixteen (16) eighteen (18), twenty (20), and twenty two (22), Cozier

also seeks to consolidate these charges into a single charge with the prior counts To determine

whether the respective counts must be consolidated or dismissed, this Court analyzed each underlying

offense separately and finds that counts l6, 18, 20, and 22 are not multiplicitous Count sixteen is

linked to the underlying crime of robbery in the first degree, count eighteen is linked to the underlying

crime of robbery in the second degree, count twenty is attached to the underlying crime of unlawful

entry, and count twenty two is attached to the underlying crime of grand larceny

"43 Robbery in the first degree is defined in 14 V I C § 1862 which provides

“A person is guilty ofrobbery in the first degree when in the course of the commission of the crime or of immediate flight therefrom, he or another perpetrator of the crime (1) Causes physical injury which is incapacitating in any way to any person who is not a perpetrator of the crime; or

23 People ofthe Virgin Islands v Micazah Cozier Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

(2) Displays, uses or threatens the use of a dangerous weapon ”

Robbery in the second degree is defined in 14 V I C § 1863 which provides in the pertinent part “A person is guilty of robbery in the second degree when he forcibly steals property and when (1) He is aided by another person actually present or (2) In the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime causes physical injury to any person who is not a participant in the crime

The crime of unlawful entry is defined under 14 V I C § 445 that provides

“Whoever, under circumstances or in a manner not amounting to burglary, enters a building or any part thereof, with intent to commit an offense, shall be imprisoned not more than 1 year ”

Finally grand larceny is defined in 14 V I C § 1083(a)(1)

“(a) Whoever takes property (1) which is of $500 or more in value commits grand larceny and shall be imprisoned for not more than 10 years ”

‘|44 Applying the Blockburger test, the charge of robbery in the first degree has its own unique

elements from robbery in the second degree Namely the elements of this crime as charged, require

that the People prove that Cozier or another perpetrator mcapacztated their victim by physically

injuring another person or, in the alternative, displayed, used, or threatened the use of a dangerous

weapon On the other hand, the charge of robbery in the second degree requires that the People

establish that a perpetratorforczbly steals property and that he is aided by another person actually

present or, in the alternative, that Cozier or another perpetrator, during the crime or during flight

therefrom, caused physical injury to any person who is not a participant in the crime All the elements

of robbery in the first degree are completely different from the elements of robbery in the second

degree Robbery in the first degree requires an additional element of physical incapacitation resulting

24 People ofthe Virgin Islands v Mu azah C ozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

from physical injury or, in the alternative, display, use, or threats with a firearm These are different

from elements from forceable stealing with the help of another person actually present or, in the

alternative, causing a physical injury to a victim that does not rise to the level of physical

incapacitation Thus, elements of both robbery in the first and in the second degree do not overlap as

robbery in the second degree is not a lesser included offense of robbery in the first degree Therefore,

the People would have to prove two separate offenses Consequently, both counts of use of a firearm

that are attached to the underlying crimes of robbery in the first degree and robbery in the second

degree serve as their enhancement Accordingly, the charges must remain

1145 The elements ofunlawful entry require that a defendant enters a building with intent to commit

an offense These elements are distinct from those that the People must prove under any of the other

underlying charges, including robbery In other words, one does not have to unlawfully enter premises

in order to rob another person The crime of unlawful entry is predicated on lack of permission to

enter the premises of another or any part thereof while having the intent to commit a crime As a

result, the People would have to prove that Cozier lacked permission from the store operator to enter

the premises and committed a felony Considering the analysis above, elements of unlawful entry do

not merge into any of the underlying offenses Therefore the respective count of use of a firearm

during the commission of unlawful entry should remain in place as an enhancement, as intended by

the Virgin Islands Legislature

$46 The elements of grand larceny require that a defendant unlawfully takes property in an amount

of $500 or more The elements of grand larceny are distinct from those that the People must prove

under any of the underlying charges discussed above For instance, grand larceny elements do not

imply the use of force and/or violence to deprive someone of their property When charging a suspect

with the crime of grand larceny, the People are required to establish that the suspect took property 25 People ofthe Virgin Islands v Micazah ( o zer Cite as 2022 V 1 Super 94U Case No ST 21 CR 380 Memorandum Opinion

in an amount of $500 or more The elements of this crime are distinct from those charged under 14

V I C §§ 1862 1863 Therefore the charge of use of a firearm should remain as an enhancement to

the underlying crime of grand larceny

1147 Considering the analysis above, the Blockburger test is inapplicable here because all elements

of the crimes listed are different from each other Consequently count sixteen, eighteen, twenty, and

twenty two remain in an exclusive relationship with their respective underlying crimes of violence

named in counts fifteen seventeen, nineteen, and twenty one as individual units of prosecution

Therefore, since robbery in the first degree, robbery in the second degree, unlawfiil entry, and grand

larceny charges are all independent offenses with their own unique elements that require separate

analysis, the Court will not consolidate their corresponding charges for use of a firearm into one

charge For the reasons stated above, the People are within their prosecutorial discretion to charge

counts sixteen, eighteen, twenty, and twenty two as enhancements and separately as neither judicial

economy nor concerns of prejudice and justice warrant their dismissal at this stage

E Distinction between “multiplicity of charges” and “multiplicity of sentences”

1|48 This Court recognizes that Defendant is concerned about potential risks of prejudice or

confusion of jury instructions that may be caused by multiple charging However, strong

consideration is given to the Court’s interpretation of the legislative intent behind section [04 that

allows for multiple charging of criminal conduct as means of prosecutorial charging discretion

Defendant 5 concern, therefore, lacks merit because multiple charging does not imply multiple

sentencing or punishments While the Double Jeopardy Clause “protects criminal defendants against

multiple prosecutions or punishments for a single offense, section 104 speaks to multiple

punishments for the same act Castillo v People 59 V I 240 284 n 1 (2013) (Hodge C J

concurring) Section 104 thus provides greater protections than the Double Jeopardy Clause’ and

26 People ofthe Vzrgm Islands v Micazah Comer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

“dictates that despite the fact that an individual can be charged and found guilty of violating multiple

provisions of the Virgin Islands Code arising from a single act or omission, that individual can

ultimately be punished for only one offense Estzck v People, 62 V I 604, 620 21 (2015); Williams

at 821 n 9 (2012) Hodge 870 at 199 (2017) The purpose of the constitutional protection against

duplicative punishment is “to ensure that the sentencing discretion of courts is confined to the limits

established by the legislature See Untied States v Kennedy 682 F 3d 244 255 (3d Cir 2012) (citing

Ohio v Johnson 467 U S 493 499 104 S Ct 2536 81 L Ed 2d 425 (1984)) In other words

multiple charging” is not identical to “multiple sentencing” because the consequence of “multiple

charging” does not ultimately result in multiple punishments and violations of the Fifth Amendment

as a result This Count views “multiple charging” as one of the means given to the government within

the spectrum of their prosecutorial discretion Therefore, it is within prosecutorial discretion to charge

a defendant with multiple counts in the Information as long as the government performs within the

framework of the legislative intent behind a charge in question and while balancing constitutional

considerations

IV CONCLUSION

1|49 For the reasons elucidated above, this Court finds that it is in the interest of justice to

consolidate charges of use of a firearm during the commission of a crime of violence into one count

of the prosecutorial unit that charges the crime of felony murder Therefore, counts four and six shall

be consolidated into count two The same reasoning applies to attempted murder, therefore, counts

ten and twelve shall be consolidated into count eight as a part of the prosecutorial unit that charges

the crime of attempted murder Since the remaining counts of the use of a firearm for the underlying

crimes of kidnapping, robbery in the first degree robbery in the second degree, unlawfiil entry and

27 PeopIe ofthe Vtrgm Islands v Mzcalah Cozzer Cite as 2022 V I Super 94U Case No ST 21 CR 380 Memorandum Opinion

grand larceny are distinct crimes with distinct elements, it is proper for their respective firearm

charges to remain Hence, counts fourteen, sixteen, eighteen, twenty, and twenty two shall remain as

charged in the Information An appropriate order of even date follows

Dated Novemberfl, 2022 ( Renee bs Carty & Judge of the perior Court of the Virgin Islands ATTEST Tamara Charles Clew C a urt / // 4 / M By / 2,14% Latoya C acho ’fl Court Cl rk Supervi r /// /9/ @fl‘

28 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

PEOPLE OF THE VIRGIN ISLANDS )

Plaintiff ; v ) CASE NO ST 21 CR 380

MICAIAH COZIER ;

Defendant ; Cite as 2022 V I Super 94U )

ORDER

THIS MATTER is before the Court upon the “Motion to Dismiss” filed on March 22,

2022, by Defendant Micaiah Cozier (“Defendant”) Defendant moves this Court to dismiss eleven

counts two (2), four (4), six (6), eight (8), ten (10), twelve (12), fourteen (14), sixteen (16),

eighteen (18), twenty (20), and twenty two (22) or in the alternative, to consolidate the counts into

one charge The People of the Virgin Islands (“the People”) filed their Opposition on March 29,

2022 Consistent with the Memorandum Opinion of even date it is hereby

ORDERED that Defendant 5 Motion to Dismiss is GRANTED in part and DENIED in

part, and it is fithher

ORDERED that Counts 4 and 6 are CONSOLIDATED into count 2 and it is further

ORDERED that Counts 10 and 12 are CONSOLIDATED into count 8' and it is further

ORDERED that firearm charges under Counts l4, 16, 18, 20, and 22 shall remain, and it

is fithher

ORDERED that within one week of the date of entry of this Order the People SHALL file

the First Amended Information consolidating the respective counts and the same shall be done for

the other three co defendants, and it is further People ofthe Virgin Islands v Mrcatah Comer Cite as 2022 V 1 Super 94U Case No ST 21 CR 380 Order

ORDERED that copies of the Memorandum Opinion and this Order shall be directed to

Assistant Attorney General Anna B Scott, Esquire, Nicole Lynn King Richardson, Esquire, Carl

R Williams, Esquire, David J Cattie, Esquire, and Marital A Webster, Sr , Esquire

/ Dated November /( 2 , 2022 enee Gu s Carty Judge of the Sn erior Court of the Virgin Islands ATTEST Tamara Charles Clerk of the Court

By / 7‘: Latoya macho Court Clerk Superv or [K / /fl Jfléfl