People of the Virgin Islands v. Timothy Perez

• Court: Superior Court of The Virgin Islands
• Decided: September 19, 2022
• Docket: SX-22-CR-128
• Status: Published

Opinion

[N THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

PEOPLE OF THE VIRGIN ISLANDS SK 2022 CR 128 Plaintiff, vs CITE AS 2022 VI SUPER &

TIMOTHY PEREZ

Defendant

Appearances

William A Appleton, Jr , Esq Virgin Islands Department of Justice St Croix, U S Virgin Islands For PIamtsz

Ramiro Orozco, Esq Office of the Territorial Public Defender St Croix, U S Virgin Islands For Defendant

MEMORANDUM OPINION AND ORDER

WILLOCKS, Administrative Judge

1} 1 THIS MATTER came before the Court on Defendant Timothy Perez 3 (hereinafier

‘ Defendant ’) motion to dismiss, filed on June 17, 2022 In response, the People of the Virgin

Islands (hereinafter “People”) filed an opposition

BACKGROUND

1] 2 On May 27, 2022, the People filed an information against Defendant for the events that

allegedly took place on or about May 7 2022 as set forth in the affidavit of Detective Salim Ross

of the Virgin Islands Police Department, dated May 27 2022 The information charged Defendant

with the following counts Count I murder in the first degree, in violation of Title 14 V I C § People ofthe VI 1 Pen 5X 2022 CR 128 Memorandum Opinion and Order 2022 VI SUPER m Page 2 of9 922(a)(l) Count II assault in the first degree in violation of Title 14 V I C § 295(1) Count [II

assault in the third degree, in violation of Title 14 V I C § 297(a)(2), Count IV reckless

endangerment in the first degree, in violation of Title 14 V I C § 625(a) Count V unauthorized

possession of a firearm during a crime of violence, Count VI discharging or aiming firearms, in

violation ofTitle 23 V I C § 479(a); and Count VII possession of ammunition, in violation ofTitle

14 V I C §2256(a)

I3 On July 20, 2022, Defendant filed this instant motion to dismiss Count II and Count [II

“[p]ursuant to Rule 12(b)(3)(B)(ii) of the Virgin Islands Rules of Criminal Procedure, in violation

of 14 V I C § 104 14 V I C § 295(12) the Fifth Sixth and Fourteenth Amendments to the United

State Constitution " (Motion 1 )

1| 4 On August 3 1, 2022 the parties appeared before the Court for oral arguments on the motion

to dismiss

STANDARD OF REVIEW

1] 5 Rule 12(b)(3)(B) of the Virgin Islands Rules of Criminal Procedure allows a party to

challenge the defect in the charging document such as “charging the same offense in more than

one count (multiplicity) VI R CRIM P 12(b)(3)(B)(ii) Multiplicity occurs when an

information charges a single crime in several different counts ’ People ofthe V! v Colon, 60 V I

149, 158 (V I Super Ct 2014) “‘[W]here 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 ’ ’ People

1 Verglle SOVI 127 134 35 (VI Super Ct Nov 13 2008) (citingBlockburgert UnztedStates

284 U S 299 304 (1932)) People ofIhe V I v Pen: SX 2022 CR 128 Memorandum Opinion and Order 2022 VI SUPER 9‘ Page 3 of 9

116 Most cases involving the issue of multiplicity focus on whether a defendant has been

punished in multiple ways for committing the same criminal act or offense in violation of Title 14

V I C § 104l or the Double Jeopardy Clause of the Fifth Amendment of the United States

Constitution Id However, there are also cases involving the issue of multiplicity based on

multiplicitous charges in an information or indictment, which raises other significant concerns Id ,

60 V I at 158 59 ‘ In particular, a multiplicitous charge may leave a prejudicial impression on a

jury at the commencement of trial that a defendant is alleged to have committed several crimes

when, as a matter of law, he or she is only being accused of committing one crime ’ Id , 60 V I at

159 When detetmining the appropriate remedy for multiplicitous charges in the information to

wit, ‘ whether it is proper to leave the charges in place and exercise the appropriate remedy should

the need arise at sentencing, or whether the Court should proactively dismiss or consolidate the

charges ’ ‘[t]his decision should be made on a case by case basis, considering such factors as

judicial economy, risk of prejudice, the totality of the charges against the defendant, and the

severity of those charges People ofthe V I 1 Prmgle 2021 V I LEXIS 74 1125 (V I Super Ct

Sept 22 2021)

DISCUSSION

1] 7 In his motion, Defendant argued that Count II and Count III should be dismissed

Defendant made the following assertions in support of his argument (i) The information charged

Defendant with, inter alia, murder in the first degree, assault in the first degree, and assault in the

third degree and ‘ alleges that all these acts occurred and arise from a singular event with a common

' Title 14 V I C § 104 provides that “[a]n 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’ and ‘[a]n acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other Title 14 V I C § 104 People ofthe V I i Pere 3X 2022 CR 128 Memorandum Opinion and Order 2022 VI SUPER 8 l Page 4 of 9

nexus ’ (Motion 2); (ii) “[B]y not dismissing Counts 2 and 3, pursuant to Rule 12(b)(3)(B)(ii) V I

R CRIM P and in violation of 14 V I C §104 14 V I C §295(12) [sic] the Fifth Sixth and

Fourteenth Amendments to the United State Constitution in that it would create a prejudicial

impression on a jury at the commencement of trial [and] create a danger that the Defendant may

receive more than one sentence for a single offense ” (Id ), (iii) ‘ Multiplicity occurs when an

information charges a single crime in several different counts ”7 (Id ), (iv) ‘ A review of 14 V I C

§295(12) [sic] clearly states that in a similar matter where a defendant was convicted of ‘second

degree murder the subsequent convictions of “first degree assault under 14 V I C §295(1) and

third degree assault under 14 V I C §297(2) violated the Double Jeopardy Clause and 14 V I C

§lO4 ’3 (Id ); and (iii) ‘ The, ‘ test for determining whether the same act or transaction

constitutes two offenses or only one is whether conviction under each statutory provision requires

proof of an additional fact which the other does not 4 [and] [t]he fact that the respective Count

Two, Count Three and Count [sic] allege the same acts, on the same date, against the same victim,

means that multiplicity has occurred (Id , at 3 ) At the August 31 2022 hearing, Defendant

expanded on his arguments 5

1] 8 In their opposition, the People argued that Count II and Count III should not be dismissed

The People made the following assertions in support of their argument (i) ‘ Count 2 and Count 3

in this Information both require proofof an element not required in the other ’ (Opp 2) (ii) Count

Defendantreferenced People ofthe V I | Colon 60V] 149 158 (2014) 3 Defendant referenced Title [4 V I C § 29502) citing thlmms 1 People of (he lngm Islands 56 VI 821 (VI 2012) ‘ Defendant referenced United States i Buchanan 485 F 3d at 278 & n 7 citing I mted States \ Reed} 304 F 3d 358 363 (5th Cir 2002) (quoting Untied States i Ngu) en 28 F 3d 477 482 (5th Cir 1994) 5 At the August 31, 2022 hearing, the Coun inquired into the issue of the separation of power between the judicial functions and the prosecutorial functions In response, Defendant advised that this was not raised in his motion and he was not prepared to argue this issue People 0fthe V] I Perez SX 2022 CR 128 Memorandum Opinion and Order 2022 VI SUPER A Page 5 of 9

2 requires the intent to commit murder” and the “[i]ntent to commit murder is not an element

necessary to prove Count 3 ’ (Id , at 4); and (iii) ‘ Count 3 requires the defendant assaults another

with a deadly weapon, an element not required to prove Count 2 (Id ) At the August 31 2022

hearing, the People opposed Defendant’s motion to dismiss and expanded on their arguments

1i 9 The Court must note at the outset that Defendant’s arguments in his motion to dismiss

Count 11 (first degree assault) and Count [II (third degree assault) were perfimctory and made

without any analysis as to how Count II and Count II] are multiplicitous charges of Count I (first

degree murder) and no citations to any supporting authority thereto In fact, the lack of analysis

misled the People to oppose Defendant’s motion to dismiss Court I I and Count III by arguing that

Court II and Count [II are not multiplicitous charges of each other rather than Count I, and should

not be dismissed since ‘ both require proof of an element not required in the other ” (Opp 2)

Nevertheless, given that the parties appeared for oral arguments on August 31, 2022, the People

had the opportunity to address Defendant’s arguments that Count II and Count III should be

dismissed because they are multiplicitous charges of Count I Defendant is reminded to be more

diligent and thorough with his motion practice See Antilles Sch Inc v Lembach, 64 V I 400,

428 n 13 (VI 2016) (‘ [T]here is absolutely no basis in any of this Court's precedents for the

proposition that attorneys are not required to fully brief all questions of law relevant to the issues

that are being litigated ’)

1 Whether Count [I and Count [II are multiplicitous charges of Count I

1[ 10 Count I charged Defendant with the offense of murder in the first degree—to wit,

Defendant acting with malice aforethought, did willfiilly, deliberately and with premeditated

design, kill Sean Joseph, by shooting him in violation of Title 14 V I C § 922(a)(l), Count [1

charged Defendant with the offense of assault in the first degree—to wit, Defendant ‘ with intent People ofthe VI 1 Few 5X 2022 CR 128 Memorandum Opinion and Order 2022 VI SUPERfl Page 6 of 9

to commit murder, did assault Sean Joseph, by shooting him, in violation of Title 14 V [C §

2950), and Count [II charged Defendant with assault in the third degree—to wit, Defendant did

assault Sean Joseph with a deadly weapon, by shooting him with a firearm, in violation of Title 14

V I C § 297(a)(2) (Information ) Title 14 V I C § 922(a)(l) provides that [a]ll murder which

is perpetrated by means of poison, lying in wait, torture, detonation of a bomb or by any other kind

of willful deliberate and premeditated killing is murder in the first degree ; Title 14 V I C §

295(1) provides that “[w]hoever, with intent to commit murder, assaults another” commits first

degree assault; Title 14 V I C § 297(a)(2) provides that “[w]hoever, under circumstances not

amounting to an assault in the first or second degree assaults another with a deadly weapon”

commits third degree assault In Woodrup v People ofthe V I , the Virgin Islands Supreme Court

acknowledged that first degree assault and third degree assault are lesser included offenses offirst

degree murder 63 V I 696 710 (V l 2015) ( [T]his evidence [that support Woodrup s conviction

for first degree murder] was also sufficient to support Woodrup's convictions for second degree

murder, first degree assault and third degree assault, which are all lesser included offenses of

first degree murder Since these crimes are lesser included offenses of first degree murder,

Woodrup necessarily completed these offenses in carrying out the first degree murder ”) (citations

omitted)

1] ll Case law provides that the People are permitted to charge Defendant with first degree

murder and the lesser included offenses of first degree assault and third degree assault See

Fontame v People ofthe V I 62 V I 643 650 (V I 2015)( [A]lth0ugh it would be impermissible

for Fontaine to be cumulatively punished for all offenses, he could lawfully be charged and

convicted of first degree murder as well as any lesser included offenses ) Funhemiore, there may

be evidence in this matter to establish that Defendant committed a first degree assault or third People 0fthe V I v Pere SX 2022 CR 128 Memorandum Opinion and Order 2022 VI SUPER%_ Page 7 of 9

degree assault separate from the act required to convict for first degree murder See e g Woodrup,

63 V I at 710 n 4 (noting that there was evidence to establish that the defendant committed a first

degree assault separate from the act required to convict for first degree murder); Phillip v People

of the V I 58 VI 569 592 (V I 2013) ( The jury could have determined that Phillip assaulted

James when he pointed a firearm at him in a threatening manner, and did so with the ability to

injure him and kill him Phillip could, therefore, be guilty of first degree assault regardless of

whether he missed or actually succeeded in killing the target of the assault ”); Simmonds v People

ofthe V I 59 V I 480 489 (V I 2013) ( Based on the testimony of Stevens and Landron the jury

could reasonably find that Simmonds committed first degree assault when he fired his first volley

of shots from a distance resulting in wounds only to Rouse’s arms and buttocks and then

initiated a second first degree assault when he moved closer to Rouse and shot him in the head,

which transformed into a first degree murder once Rouse died from those injuries ’) 6 In this

" In Simmonds, the Virgin Islands Supreme Court explained Simmonds also argues that it is legally impossible to simultaneously convict him of both first degree murder and first degree assault Relying primarily on the common law and decisions of courts in other jurisdictions, Simmonds contends that the People may only charge a defendant with first degree assault pursuant to section 295(1) of title 145 assault with intent to commit murder if the victim does not die from his injuries; according to Simmonds, upon death, the People may only charge a defendant with a homicide crime However, we need not address Simmondss concerns about the propriety of simultaneously charging and convicting a defendant of first degree murder and first degree assault for the same act The information charging Simmonds with these offenses identified shooting Rouse With a firearm as the basis for the first degree assault charge (J A 21 ) As explained above in the context of premeditation, the evidence introduced at trial when viewed in the light most favorable to the People established that Simmonds shot at Rouse two separate times Based on the testimony of Stevens and Landron the jury could reasonably find that Simmonds committed first degree assault when he fired his first volley of shots from a distance resulting in wounds only to Rouse 5 arms and buttocks and then initiated a second first degree assault when he moved closer to Rouse and shot him in the head, which transformed into a first degree murder once Rouse died from those injuries Therefore since the evidence established that Simmonds committed a first degree assault separate and apart from the one that resulted in Rouse's death, we decline to decide, as part of this appeal, the broader question of whether section 295(1) implicitly requires that the victim survive his injuries 6

‘ Section 295 which codifies the offense of first degree assault making it a felony if a person (1) with intent to commit murder, assaults another; People ofthe V] v Perez SX 2022 CR l28 Memorandum Opinion and Order 2022 VI SUPER A Page 8 of 9

instance, the affidavit of Detective Salim Ross stated that the deceased victim “had what appeared

to be multiple gunshot wounds about the body” and several spent shell casings were observed on

his body and cloth and on the western side of the main office (Ross Aff 1] 5A ) Thus, depending

on the evidence presented at trial, the jury could reasonably find that Defendant committed a first

degree assault or third degree assault separate and apart from the one that resulted in the victim’s

death Given that Defendant could be lawfully charged and convicted of both first degree murder

(Count I) and the lesser included offenses of first degree assault (Count II) or third degree assault

(Count 111), the Court finds that the appropriate remedy here is to leave both Count II and Count

111 in place and exercise the appropriate remedy should the need arise at sentencing See Roberts

v People ofthe VI 2022 V I Supreme LEXIS 14 at *3] 32 (V I 2022)( In Titre we abrogated

the former merger and stay rule and decided that vacatur of ancillary convictions as well as their

accompanying sentences, which emanate from crimes completed in a single transaction, was the

best remedy for the Virgin Islands ”)

CONCLL SION

Based on the foregoing, it is hereby

(2) with intent to kill administers or causes to be administered to another, any poison or other noxious or destructive substance or liquid and death does not result (3) with intent to commit rape sodomy, mayhem robbery or larceny, assaults another shall be imprisoned not more than l5 years[] 14 V l C (3‘ 295 Thus the plain language of the statute precludes simultaneously charging and convicting a defendant of both first degree murder and first degree assault if the assault charge is brought pursuant to section 295(2) ° We recognize that the Virgin Islands Code defines assault as ‘attempt[ing] to commit a battery’ or mak[ing] a threatening gesture showing in itself an immediate intention coupled with an ability to commit a battery l4 V I C § 29l' see Ambrose v People 56 V I 99 103 04 (V l 20l2) Thus Simmonds ceuld have also completed an assault simply by pointing the firearm at Rouse Phillip v People 58 V l 569 2013 VI Supreme LEXIS 28 2013 WL 3293904 at *1! (VI 20l3) However the information identified the act of actually shooting at Rouse as the basis for the first degree assault charge (J A 2| ) Simmonds 59 V l at 488 89 People ofthe V I v Pele SX 2022 CR 128 Memorandum Opinion and Order 2022 VI SUPER n Page 9 of 9

ORDERED that Defendant s motion to dismiss filed on June 17 2022 is DENIED

DONE and so ORDERED this 1 q4/2!st of September 2022

Tamara Charles M41 HAR D L WILLOCKS Clerk of the Court Administrative Judge of the Superior Court K

By /W Court Clerk W Dated gz g 9 fig 2 Q IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix

People of the Virgin Islands v. Timothy Perez Case Number: SX-2022-CR-00128 Charges: 14 V.I.C. 922(a) - Murder 1st Degree 14 V.I.C. 295(1) - Assault 1st. Degree With Intent To Commit Murder 14 V.I.C. 297 - Assault Third Degree 14 V.I.C. 625 (a) - Reckless Endangerment In The 1st Degree 14 V.I.C. 2253 - Unauthorized Possession of a Firearm 23 V.I.C. 479(a) - Illegal Discharge of a Firearms 14 V.I.C. 2256(a) - Possession Or Sale Of Ammunition

NOTICE of ENTRY of Memorandum Opinion and Order To: William A. Appleton, Jr. Esq. Ramiro Orozco, Esq.

Please take notice that on September 19, 2022 a(n) Memorandum opinion and Order dated September 19, 2022 was/were entered by the Clerk in the above-titled matter.

Dated: September 19, 2022 Tamara Charles Clerk of the Court By:

Janeen Maranda Court Clerk II