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


PEOPLE OF THE VIRGIN ISLANDS                        )       CASE NO SX 2019 CR 00034
                                                    )
                                     Plaintiff      )       POSSESSION OF A
                                                    )       DANGEROUS WEAPON
                                                    )       DURING A CRIME OF
       vs                                           )       VIOLENCE
                                                    )
                                                    )
KHARY WILLIAMS                                      )       ASSAULT IN THE THIRD
                                                    )       DEGREE
                                     Defendant      )
                                                    )

                                   Cite as 

                                 MEMORANDUM OPINION

1]]    THIS MATTER is before the Court on Defendant 5 Motion to Dismiss, filed June 2, 2020

The People of the Virgin Islands (the People ) filed an Opposition to Motion to Dismiss, on July

2, 2020 The defendant filed Defendant 3 Reply to Opposition to Motion to Dismiss, on July 15,

2020 For the reasons set forth herein, the motion will be denied

                                       BACKGROUND

112    The defendant, Khary Williams ( Williams or Defendant ), is charged with third degree

assault and possession of a dangerous weapon during a crime of violence The People allege that

Williams engaged in an altercation with, and ultimately stabbed, the alleged victim on January 14,

2019, in Christiansted, St Croix, U S Virgin Islands Williams was arrested on February 8, 2019,

had his initial hearing on February 1 1, 2019, and was arraigned on February 27, 2019
People ofthe Virgin Islands v Khan» Williams                                     Cite as 2022 VI Super 43L
Case No SX 2019 CR 00034
Memorandum Opinion Motion to Dismiss
Page 2 of 12


{[3     Williams argues that the charges against him should be dismissed for violation of his Sixth

Amendment right to speedy trial He asserts that the government has failed to provide requested

discovery for fourteen (14) months (as of the date the motion was filed) and that he has been

prejudiced by the delay The People argue that Williams also contributed to the delay by requesting

the matter be moved to a different venue, and thereafter the Court did not set a trial date The

People also argue that they were never made aware that Williams was missing pertinent evidence

                                          LEGAL STANDARD

1l4     The Sixth Amendment to the U S Constitution, applicable to the U S Virgin Islands

through § 3 of the Revised Organic Act of 1954 ' guarantees the right to a speedy trial U S CONST

amend VI

115     To determine whether a defendant’s speedy trial right has been violated, the Court balances

four factors (1) the length of delay, (2) the reasons for the delay, (3) the defendant 5 assertion of

the right, and (4) prejudice to the defendant Carty v People of the Virgin Islands 56 V I 345

364 (VI 2012) (citing Barker v ngo 407 U S 514 (1972)) A delay must be significantly

lengthy to trigger a Barker analysis, and a “longer delay is more ‘presumptively prejudicial to the

rights of the defendant     Franczs v People 63 V I 724 748 (2015) (quoting Doggett v United

States, 505 U S 647, 651 52 (1992))            [N]o one factor is ‘a necessary or sufficient condition to

the finding of a deprivation of the right of speedy trial ”’ Gov I ofthe Virgin Islands v Richardson,

 458 59 (D V I 2009) (quoting Barker 407 U S at 533) However the Virgin Islands

Supreme Court has held that the fourth factor, prejudice to the defendant, is the most important




' Revised Organic Act of 1954 is codified at 48 U S C §§ 1541 1645 and reprinted m V I CODE ANN   Historical
Documents Organic Acts and U S Constitution at 861 (1995 & Supp 2013) (preceding VI CODE ANN tit 1)
People ofthe V1;gm Islands v Khary thllams                                               Cite as 2022 V1 Super 4311
Case No SX 2019 CR 00034
Memorandum Opinion Motion to Dismiss
Page 3 of 12



factor Rodriguez v People ofthe Virgm Islands 

 1| 44‘ Franczs 63 VI at 746 With

this in mind, the Court must balance the four factors to determine whether a defendant 3 speedy

trial right has been violated

                                                  ANALYSIS

      A The delay was sufficiently lengthy to trigger a Barker analysis

116       As a threshold matter, the Court must determine whether the delay was sufficiently lengthy

to trigger a Barker analysis Franczs, 63 V I at 748 The Virgin Islands Supreme Court has held

that a delay over twelve (12) months is presumed sufficiently prejudicial to require evaluation of

the remaining three Barker factors Carry, 56 V I at 365 The speedy trial clock begins to run

“from the date of arrest or indictment, whichever is earlier           People ofthe Virgm Islands v RIvera,

 (VI Super Ct 2010) (hereinafter szera 1’) (quoting I mfed States v Barns

589 F 3d 673 768 (3d Cir 2009))

117       Williams was arrested pursuant to warrant' on February 8, 2019 Although Williams was

released on his personal recognizance as of the date of his initial hearing,3 this matter has been

pending for over three years Therefore, the delay is sufficiently lengthy to trigger a full Barker

analysis

      B   Both parties’ actions contributed to the reason’s for delay

$18       Under the second Barker factor, the Court seeks to determine which party is responsible

for the delay and why Rodrtgue 2019 VI [9 at ‘ 26 (citing Rivera 1 People 64 V I 540 582

(V I 2016) (hereinafter “szera [1”); Franczs, 63 V I at 748) Pretrial delay is often “inevitable



’ The warrant for Williams s arrest was supported by a probable cause affidavit attested and signed by Virgin Islands
Police Officer Jeffrey Nisbett, who was then assigned to School Security Bureau for the District of St Croix
3 On February 11, 2019, Williams was released on his own recognizance with certain conditions
People ofthe Vugm Islands v Khan» Williams                                    Cite as 2022 V1 Super 43v
Case No SX 2019 CR 00034
Memorandum Opinion Motion to Dismiss
Page 4 of 12

and wholly justifiable      Doggett 505 U S at 656 but the People ultimately bear the burden of

justifying delays Rodriguez 

 atfil 26' Barns 589 F 3d at 679 (quoting Barker 407 U S

at 527 (the ‘ultimate responsibility must rest with the government, since it is the [g]ovemment‘s

duty to bring a defendant to trial ))

{[9       Each reason for a delay is assigned a corresponding weight in favor of or against the speedy

trial claim and then balanced against one another Rodriguez, 

 at 1] 26 (citing Barker,

407 U S at 531) Delays caused by the defendant weigh against granting the motion to dismiss,

while delays caused by the People weigh in favor of dismissal Id An unexplained delay should

be weighed against the People, in favor of dismissal [d An action by the People can range from

being done with reasonable diligence” to being done in “bad faith,” with negligent action falling

between the two People v Morton No ST 2010 CR 00164 

 at *2 (V 1 Super

Ct Jan 12 2018) (citing Dagger! 505 U S at 656) If the People have exercised reasonable

diligence in their prosecution, a speedy trial claim will fail, regardless of the length of the delay,

as long as there has been no identifiable prejudice to the defendapt Id (citing Doggett, 505 U S

at 656 United States v Velazquez 748 F 3d 161 175 (3d Cir 2014)) However if the People

caused delay in bad faith, the requested relief is almost automatic Id (citing Velazquez, 749 F 3d

at 175)

1110      Williams argues that because this matter has been delayed absent a good faith reason for

the delay, it must be dismissed with prejudice The People respond that it is the Court 5 job to set

trial dates, which it has not done, and a large reason for the delay was the transfer of the matter

from the District of St Croix due to conflicts of interest The Court will now assess each delay or
People ofthe Vllgm Islands v Khary Williams                                    Cite as 2022 v1 Super 43v
Case No 8X 2019 CR 00034
Memorandum Opinion Motion to Dismiss
Page 5 of 12



subset of delays to determine whether it weighs in favor of or against granting the motion to

dismiss

                 (a) Admmzstratzve and Court Delays

1111      Defendant was arrested on February 8, 2019 Three months later, on May 6, 2019, Williams

filed a motion for change of venue in the interest ofjustice, arguing that because the alleged victim

is the son of a judge in the District of St Croix, the matter must be transferred to the District of St

Thomas and St John The matter was first assigned to Honorable Judge Douglas A Brady who

recused himself on May 15, 2019 The matter was reassigned to Honorable Judge Harold W L

Willocks,‘ and he recused himself on May 22 20l9 The matter was next assigned to Honorable

Judge Jomo Meade on May 28 2019, and he recused himself on May 29, 20l9 The Defendant

then renewed his motion for change of venue on June 3, 2019 The Clerk of the Court transferred

the matter to the District of St Thomas and St John on June 5, 2019 The matter was assigned to

Honorable Judge Renee Gumbs Carty on June 16, 2019, however she recused herself on November

13, 2019 The matter was reassigned to Honorable Judge Michael C Dunston on or around

February 6, 2020 At that time Judge Dunston though retired, was serving as a Senior Sitting

Judge In January 2021, Honorable Judge Sigrid M Tejo succeeded Judge Dunston and his cases

were automatically assigned to her Judge Tejo recused herself on April 21, 2021, and the matter

was reassigned to the undersigned judicial officer on June 7, 2021

1'12    These administrative recusals and reassignments caused a delay of more than two years

The delays include the transfer of venue in the interest ofjustice, the retirement and succession of

a Superior Court judge, and multiple recusals in the interest ofjustice, all of which are reasonable



4 Notably Hon Harold W L Willocks is the father of the alleged victim
People ofthe Vn gm Islands v Khary Williams                                             Cite as 

Case No SX 2019 CR 00034
Memorandum Opinion Motion to Dismiss
Page 6 of 12



and justified causes for delay There is no indication that the People have prosecuted this matter

without reasonable diligence, and delays caused by the trial court are generally not weighed

heavzly against the prosecution       Morton, 

 at *7 (citing Rivera I, 54 V I at 129)

(emphasis added) However, given that the delays were significantly lengthy, and it is the People 8

responsibility to bring a defendant to trial, Barker 407 U S at 527, the Court will weigh the

administrative delays slightly against the People, in favor of dismissal

                 (b) Discovery Delays

1113    On February 27, 2019, Williams was arraigned, and a scheduling order was entered It

ordered the People to provide initial discovery within twenty one (21) days of arraignment,

scheduled a discovery conference for May 22, 2019, and scheduled jury selection for October 7,

2019 On March 7 2019 the People timely served Williams with discovery On May 6 2019

Williams filed a notice of a supplemental discovery request for fifteen (15) items listed in a letter5

attached to the motion and a demand for personnel and internal affairs records of Officer Jeffrey

Nisbett 6 On May 20, 2019, Williams filed two motions one to compel discovery of the

supplemental items and another to compel personnel records and internal affairs files of Officer

Nisbett On July 30, 2019, the People filed a supplemental response to discovery request providing

Williams only with Officer Nisbett’s employee history On September 12 2019, Williams filed a

motion to deem conceded his motion to compel discovery and motion to compel personnel records

and intemal affairs files of Officer Nisbett The People did not respond On February 6, 2020,

Judge Dunston ordered the People respond to Williams’s motions or provide the court with copies


5 See Letter from Kye Walker, Esq to Assistant Attorney General Eric Chancellor dated May 6, 2019
6 At the time of the alleged incident, Officer Nisbett was employed by the Virgin Islands Police Department assigned
to the School Security Bureau Officer Nisbett was present at the scene of the alleged incident, and submitted a
probable cause affidavit on January 22, 2019, detailing the facts of the incident
People ofthe Virgin Islands v Khary Williams                                     Cite as 2022 V1 Super 43U
Case No SX 2019 CR 00034
Memorandum Opinion      Motion to Dismiss
Page 7 of 12



of the previously filed responses by March 6, 2020 and scheduled a motions hearing for May 25,

2020

1114      Williams argues that the absence of any good faith reason for these delays requires

dismissal Williams states that in his May 6, 2019 letter to the People, he raised the inadequacy of

the initial discovery provided, and requested fifteen additional items in his supplemental discovery

request 7 Williams further contends that his motion to compel, filed May 20, 2019, reiterated the

inadequacy of discovery, and the People still had not responded to the supplemental discovery

request nor provided the requested discovery Williams argues that the People ignored both

motions as well as the February 2020 order directing the People to respond to the motion by March

6, 2020 8 In all, Williams argues that the People 5 failure to provide adequate discovery has

significantly inhibited his ability to prepare for trial The People counter that they were unaware

Williams never received or was unable to access the requested surveillance videos (one of the

items listed in the May 6, 2019 letter), and the People provided internal affairs’ records on Officer

Nesbitt on July 30 2019, which Williams never indicated was inadequate The People contend

they have tendered all requested discovery to Defendant

1115      A deliberate attempt to delay trial in order to hamper the defense weighs heavily against

the prosecution, but a more neutral reason such as negligence or overcrowded courts weighs less

heavily     Rodriguez 

 at 11 26 (citing I mted States v Loud Hawk 474 U S 302 315

(1986) Barker 407 U S at 531            United States v Frye 

 (5th Cir 2007))

Ultimately the prosecution bears the burden to justify the delay           Id It is unclear whether the



7 See Letter from Kye Walker Esq to Assistant Attorney General Eric Chancellor dated May 6 2019 at ‘K 1 Re
Surveillance Footage
5 See Order dated Feb 6 2020 signed by Hon Michael C Dunston
People ofthe Virgin Islands v Khary Williams                                            Cite as 

Case No SX 2019 CR 00034
Memorandum Opinion Motion to Dismiss
Page 8 of 12



People were acting with reasonable diligence in providing discovery materials in this matter

Although the People did provide Williams with Officer Nisbett 3 employee history on July 30,

2019, they do not offer justification for failing to provide either the full supplemental discovery

that Williams requested or the response to Williams’s motions ordered by Judge Dunston

However, the Court finds no indication of bad faith in the People 3 preparation and provision of

discovery Nevertheless, because Williams claims that, as of the date of the filing of the motion to

dismiss, he still had not received the requested supplemental discovery,9 the Court finds that

People have not handled the matter as expeditiously as was possible At a minimum, the People's

delay amounts to negligent prosecution and is contrary to the speedy trial guarantee Therefore,

this delay will weigh slightly against the People and in favor of dismissal

                 (c) Delay Due 10 C0v1a' 19 Related Continuance

116     The motions hearing scheduled by Judge Dunston for May 25, 2020 was ultimately

continued “to a date to be determined ’ due to the then new coronavirus disease 2019 (‘ Covid l9”)

pandemic The hearing has not yet been rescheduled, as the case was twice reassigned after Judge

Dunston retired But there is also no indication that the People responded to Williams’s motions

as Judge Dunston ordered in his February 6, 2020 order, nor that they provided any additional

discovery Although delays due to Covid 19 are not attributed to either party,'0 the Court notes

that the People have failed to respond to Williams’s outstanding motions or provide the requested

discovery Therefore, this delay indicates the People have acted with some negligence in the



9 And the docket does not reflect that the People provided any additional discovery since Defendant filed his motion

=3 #11:“lElsirgin Islands Supreme Court promulgated numerous administrative orders regarding ongoing judicial
proceedings amidst the Covid l9 pandemic all of which include language stating that delays resulting from the
5:23,:ng “shall not be attributed to any party for purposes of detennining unnecessary delay ’ in a speedy trial
People ofthe Vugm Islands v Khary Williams                                    Cite as 2022 v1 Super 4311
Case No SX 20l9 CR 00034
Memorandum Opinion     Motion to Dismiss
Page 9 of 12


prosecution of this matter and the Court will weigh it slightly against the People and in favor of

dismissal

1117      The timelines of the court’s administrative delays, the People’s discovery delays, and the

Covid l9 pandemic are significantly intertwined Because all of these delays weigh slightly against

the People, in favor of dismissal, and the delays occurred concurrently throughout the over three

year waiting period, this second Barker factor as a whole will weigh slightly against the People

and in favor of dismissal

       C Defendant asserted his right to speedy trial

1118      The third Barker factor asks the Court to evaluate the extent and frequency with which the

defendant asserted his right to speedy trial See Rodriguez, 20l9 VI 19 at 11 42 A defendant shows

that he has asserted his right to a trial when he is represented by counsel and he can identify a

motion or direct instructions to his counsel to assert that right at a time when a formal assertion of

his rights would render some chance of success       ” Id (quoting Franas, 63 V I at 752; Carly, 56

V I at 366) ‘ Repeated refer[ence] to speedy trial rights indicates a desire to commence trial as

soon as possible     Id at 11 43 (quoting Rivera II, 64 V I at 584)

1119      Williams first asserted his right to a speedy trial at his arraignment on February 27, 2019

Williams formally asserted his right to speedy trial again in the instant motion to dismiss, filed

June 2, 2020 Therefore, given that Williams has asserted his right on two occasions, the Court

finds this factor weighs in his favor, in favor of dismissal

       D The Court does not identify significant prejudice against the Defendant

1120      The Virgin Islands Supreme Court has repeatedly said the final Barker factor, prejudice

against the defendant caused by the delay, is the most important Rodriguez, 

 at 11 44,
People ofthe Virgin Islands v Kinny Williams                                 Cite as 

Case No SX 2019 CR 00034
Memorandum Opinion      Motion to Dismiss
Page 10 of 12



Franczs, 63 V I at 746 To evaluate prejudice, a court considers three interests which the right to

speedy trial is designed to protect (l) to prevent oppressive pretrial incarceration, (2) to minimize

anxiety and concern of the accused; and (3) to limit the possibility that the defense will be

impaired    Rodriguez 

 at 11 44 (citing Franczs 63 V I at 753 Carty 56 V I at 367)

The defendant bears the burden of proving prejudice Morton,» 

, at *7 (citing

Carry 56 V I at 367' Barker 407 U S at 532)

1121    Williams makes no arguments regarding prejudice, so the Court will analyze this factor

with the information in the file and the parties’ respective arguments on the other factors

1122    The first prejudice factor details that the speedy trial right exists to prevent Oppressive

incarceration In the instant matter, Williams was released on his own recognizance at his initial

hearing Therefore, Williams has not been incarcerated, and there is no indication that the period

during which Williams has awaited trial has been oppressive in any way Accordingly, the first

prejudice factor does not weigh in Williams’s favor

1123    The second prejudice factor highlights that the speedy trial right is in place to minimize

anxiety and concern of the accused Williams alludes to some anxiety due to the failure of the

People to provide adequate and requested discovery, though he does not directly address it Absent

a specific articulation of “unusual circumstances suggesting excessive anxiety and concern

impacting his health or finances, this factor will not weigh in a defendant’s favor Rodriguez,

 at 11 45 (quoting WeIs v State 694 S E 2d 350 362 (Ga 2010)) Therefore as Williams

expresses no cognizable anxieties or concerns resulting from the delays, the Court will not weigh

the second prejudice factor in his favor
People ofthe Vngm Islands v Khary Williams                                               Cite as 

Case No SX 2019 CR 00034
Memorandum Opinion Motion to Dismiss
Page 11 of 12



1124     The third prejudice factor says that speedy trial right exists to limit the possibility that the

defense will be impaired Williams argues that the People’s failure to provide the requested

discovery prevented him from being able to properly prepare for his trial He fimher argues that

the People’s failure to provide material information, respond to motions, or actively participate in

litigation has placed him at a disadvantage in his ability to prepare for trial However, Williams’s

statements about the missing discovery are vague, with no argument or indication about how such

evidence would specifically have aided his defense The Virgin Islands Supreme Court has stated

such speculation is insufficient to show cognizable prejudice to one’s defense See Rivera ll, 64

VI at 586 In addition, the trial date was not set, so Williams should have sufficient time to

prepare " Therefore, the Court finds no indication of any impairment to Williams 5 defense and

does not weigh this third prejudice factor in Williams’s favor

125      Defendants have the burden to prove prejudice, Morton, 

, at *7, and this

Court finds Williams has not shown sufficient basis for the Court to conclude that he has been

prejudiced by the delay The Court is not persuaded that Williams has suffered prejudice pursuant

to the relevant standard adopted by the Virgin Islands Supreme Couit Therefore, this factor will

weigh against Williams, and against granting the dismissal

                                               CONCLUSION

1:26     This matter has been delayed for a variety of reasons but much of the delay can be attributed

to the administrative delays of the Court and the Covid 19 related delays of more than two years

In addition, the People’s failure to produce requested discovery contributed to the delay The Court



” Contemporaneous with the issuance of this opinion, the Court will issue a revised scheduling order with a motions
hearing and pretrial conference Jury selection will be scheduled according to the availability of a courtroom in the
District of St Croix
People ofthe Virgin Islands v Khary Williams                                Cite as 

Case No SX 2019 CR 00034
Memorandum Opinion Motion to Dismiss
Page 12 of 12


finds that the Barker factors, when weighed and balanced, do not justify dismissal Although the

delay is sufficiently lengthy, the reasons for the delay weigh only slightly in Williams s favor, and

though Williams has asserted his right to speedy trial on two occasions, the most important

factor   prejudice to the defendant weighs against Williams s motion to dismiss The Court finds

no deliberate attempt by the People to delay the trial in order to hamper the defense, Williams is

not in custody, and there is no cognizable prejudice to his defense Absent a showing of actual

prejudice, the motion must be denied Accordingly, the Court will deny the motion to dismiss, but

will simultaneously order the People to respond to Williams s outstanding motions and will

schedule a new motions hearing and a pretrial conference under separate order

         An order consistent herewith will immediately follow




                                                                               é          ¢
DATED April 02/ 2022                                                        7             3’
                                                                   Kathleen Mackay
                                                             Judge of the Superior Court
ATTEST                                                            of the Virgin Islands
TAMARA CHARLES
Clerk of the Court

BY
 {For           LATOYA CAMACHO
                Court Clerk Supervisor Q3J&l&