IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PEOPLE OF THE VIRGIN ISLANDS SX 2022 CR 034
Plaintiff,
vs
CITE AS 2023 VI SUPER 8
LYNDON TYSON
Defendant
Appearances
William A Appleton, Jr Esq
Virgin Islands Department of Justice
St Croix, U S Virgin Islands
For the People ofthe Vzrgm Islands
Leslie E Davis, Esq
Office of the Public Defender
St Croix, U S Virgin Islands
For Lyndon Tyson
MEMORANDUM OPINION AND ORDER
WILLOCKS, Senior Sitting Judge
11 1 THIS MATTER is before the for review sua sponte
BACKGROUND
112 On February 3, 2022 the People of the Virgin Islands (hereinafier ‘ People ) filed an
information against Defendant Lyndon Tyson (hereinafter “Defendant ) and the affidavit of Police
Detective Ellery C Qualley dated February 3 2022 On February 14 2022 the People filed a first
amended information The first amended information charged Defendant with the following
counts
Count I LYNDON TYSON, did perpetrate an act or acts of sexual intercourse against S P
who was at that time under the age of thirteen, by slightly penetrating her vagina with his
penis, in violation of Title 14 V I C § 1700 (a)(l) (aggravated rape in the first degree);
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Count II LYNDON TYSON did engage in unlawful sexual contact with S P , who was at
that time under thirteen years of age, by touching her vagina with his hand and/or penis for
the purpose of sexual gratification, in violation of Title 14 V I C § 1708 (a)(2) (unlawful
sexual contact in the first degree),
Count III LYNDON TYSON did abuse S P by having sexual contact with her and thereby
inflicting upon her great mental and or emotional harm in violation of Title 14 V I C
§506(2) (aggravated child abuse)
(First Amended Information )
1] 3 On April 13 2022 Defendant filed a motion for a bill of particulars In response, the People
filed an opposition and Defendant filed a reply thereafier
11 4 On October 24, 2022, the People filed a motion to amend the first amended infomation
The People attached a copy of the proposed second amended information and a copy Police
Detective Ellery C Qualley s affidavit as exhibits to their motion In response, Defendant filed an
opposition and the People filed a reply thereafter
DISCUSSION
1| 5 The amendment proposed by the People in its motion to amend the first amended
information included additional conduct for which Defendant is being charged with in Count I and
Count II, the amendment proposed did not address the specific information requested by Defendant
in his motion for a bill of particulars Thus, the Court will address Defendant s motion for a bill of
particulars and the People 3 motion to amend in turn
I Defendant’s motion for a bill of particulars
1] 6 In his motion, Defendant requested, pursuant to Federal Rules of Criminal Procedure 7(t)
the Court ‘ to order the People to provide a Bill of Particulars to the Defendant ’ as follows
State SPECIFICALLY when including but not limited to time date and place that the
Defendant allegedly perpetrated the acts alleged in Count I of the Infon'nation ;
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Memorandum Opinion and Order 2023 VI SUPER 1 i
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State SPECIFICALLY when, including but not limited to time, date, and place that the
Defendant allegedly perpetrated the acts alleged in Count 2 0f the Information Describe
with specificity the conduct for which Defendant is being charged , and
“State SPECIFICALLY when including but not limited to, time, date and place that the
Defendant allegedly perpetrated the acts alleged in Count 3 of the Information Describe
with specificity the conduct for which Defendant is being charged ”
(Motion 1 3 )
Defendant made the following assertions in support of his request (i) ‘ Each of the matters
requested herein is absolutely essential to enable the defense (1) to prepare for trial (2) prevent
surprise at the time of trial, and (3) to interpose a plea of double jeopardy in the event of a
subsequent prosecution for the same offense ” (Id ); (ii) “The particulars requested are also
necessary because the allegations set forth in the indictment are wholly, conclusory vague,
overbroad and further, fail to set for the with specificity, time, place, and manner it is alleged that
the defendant engaged in criminal activity (Id ); (iii) It is submitted that each of the items
requested herein comes well within the scope of Rule 7(0 particularly in view of the fact that
defendant request those facts; therefore, any argument that the requests are evidentiary in nature
is unfounded (Id ) (iv) “Defendant is accused of these charges taking place within a timeframe
that is overbroad, namely, between 2014 and 202] with no specified location in some instances
[and] [w]ithout answers to the requests for specifics in this case it is impossible to determine
whether any defenses are available or whether he has an alibi for these instances ’ (Id , at l 2)
and (v) The 1966 amendment of Rule 7(t) eliminated the requirement of a showing of cause,
thereby encouraging a more liberal attitude by the courts towards bills of particulars ' (Id , at 2 )
' Defendant referenced Untied Slates v Smith 16 F R D 372 (W D M0 1954)’ United States v Bormovsky 820
F 2d 572 (2d Cir 1987)
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‘1 7 In its Opposition the People argued that the Court should deny Defendant 8 request The
People made the following assertions in support of its argument (i) ‘ Defendant did not sufficiently
demonstrate or indicate how the Information was so lacking that the Court should grant the motion
and direct the People to file a bill of particulars” to wit, “Defendant’s Motion is comprised of
multiple boilerplate assertions in that it states the Information is conclusory, vague, overboard and
fails to set forth with specificity, time place, and manner the Defendant engaged in criminal
activity (Opp 3); (ii) ‘ A motion for a bill of particulars should be granted only when (1) the
charging document fails to adequately inform the defendant of the nature of the charges against
him such that he cannot adequately prepare a defense, or (2) when necessary to avoid or minimize
surprise at trial, or (3) when the information fails to set forth sufficient facts to enable the defendant
plead double jeopardy at a subsequent trial ”° (Id )' (iii) ‘ [T]he Information in this case adequately
informs the Defendant of the nature of the charges against him to wit, “[e]ach charge follows
the relevant wording of the statute and specifically references every element of the crime alleged
[and] specifically describes how the crime was committed “[t]he Information sets forth the
approximate dates and jurisdiction of the incident, the identity of the victim, which is initialed due
to being a minor, and includes a detailed signed affidavit in support of the Information,” and “[t]he
Defendant was also provided with a video statement fr0m the minor victim, S P , to put him on
notice of whom that person is and the specific nature of the allegations (Id , at 4); (iv) ‘ The
Information is sufficient to minimize and avoid surprise at trial ’ to wit, “[t]he People have
provided defense through discovery an abundant amount of information, more than that required
by Brady v Maryland 373 U S 83 (1963) the Jencks Act and Rule 16 of the Federal Rules of
’ The People referenced Untied states v Addomzzo,
451 F 2d 49 63 65 (3rd Cir 1972) Umted States v Cuesta,
597
F 2d 903 920 (5th Cir 1979)‘ United States L Gtese
597 F 2d 1 170 1 I80 (9th Cir 1979)
People ofthe V I v Tyson
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Memorandum Opinion and Order 2023 VI SUPER 2
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Criminal Procedure (Id at 4 5) (v) The Information sets for the sufficient facts so that the
Defendant could claim double jeopardy at any future trial” to wit, ‘ [t]he Information and
supporting affidavit describe what criminal acts are alleged to have occurred, with reference to a
specifically identified victim, and their approximate dates ’ and “[a]ccording to the police reports
provided to the defense, the victim has stated that the acts were ongoing over the course of several
years ’ (Id , at 5), and (vi) “Defendant attempts to disguise a discovery motion under the heading
of a bill of particulars (Id ) (emphasis omitted )
11 8 In his reply, Defendant reiterated his prior assertions and included the following new
assertions (i) “Defendant is from St Thomas and has many family members there” and [he] visits
the island of St Thomas on a frequent basis ’ (Reply 1); (ii) “More specific information about the
dates when these events allegedly occurred will enable Defendant to better defend himself ’ (Id )
(iii) Granting a Bill of Particulars in this case will aid the Defendant in preparing for trial, eliminate
surprise at trial, and protect him against double jeopardy 3 (1d , at 1 2); and (iv) ‘ [C]lose issues
should be resolved in favor of additional disclosure ’4 (Id , at 2 )
1| 9 The Court must note at the outset that Defendant erroneously cited to Rule 7(1) of the
Federal Rules of Criminal Procedure, which has not applied to proceedings in the Superior Court
since the promulgation of the Virgin Islands Rules of Criminal Procedure in 2017 5 Defendant is
reminded to cite to the applicable legal authority in future filings The Court must fimher note that
3 Defendant referenced United States i Burt
765 F 2d 1364 1367 (9th Cir 1985)
4 Defendantreferenced UnitedStateSi Manet"
323 F Supp 683 (D Del 1971)
5 The previous version of Superior Court Rule 7 made the Federal Rules of Criminal Procedure applicable in the
Superior Court Effective December 1, 2017 the Virgin Islands Rules of Criminal Procedure became operative and
were subsequently amended on December 19 2017 S Ct Prom Orders 2017 010 (Dec 1 & 19 2017)
Further Promulgation Order 2017 0006 amended Superior Court Rules 1 and 7 and repealed rules 12, 27, 29, 31 36
38 29 and 50 Toussamli Stewart
67 VI 931 943 n6 (VI 2017) M Davtsv People
69 VI 619 652 n24 2018
V I Supreme LEXIS 23 *48 n 24
2018 WL 3695089 at *18 n 24 (V I 2018) Gonsalves v People 0fthe VI 70
V1812 827 n4 (VI 2019)
People ofthe VI 1 Tyson
SX 2022 CR 034
Memorandum Opinion and Order 2023 VI SUPER 3_
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Defendant cited to United States v Smith, a case from the United States District Court for the
Western District of Missouri, and Lmted States v Bormovsky, a case from the United States Court
of Appeals for the Second Circuit in his motion, and cited to United States v Burt, a case from the
bnited States Court of Appeals for the Ninth Circuit, and L mted States v Manem, a case from the
United States District Court for the District of Delaware in his reply but Defendant failed to
explain why these cases constitute binding legal precedent on this Court as to the legal issues
involved in this instance Defendant is reminded that if Defendant cites to non binding legal
authority, he should explain why the Court should follow the reasoning “It is not the Court's job
to research and construct legal arguments open to parties In order to develop a legal argument
effectively, the facts at issue must be bolstered by relevant legal authority- a perfunctory and
nude» eloped assertion is inadequate ’ V 1 Tax: Assoczatzon v West Indian Company Lzmlted,
2016VI LEXIS 170 *4 (Super Ct Oct 18 2016) (citing Charlesv CBIAcqutsxtzonS LLC 2016
V I LEXIS 62, *27 n 66) The Court declines to make such argument on the People’s
behalf See Joseph v Joseph 2015 V I LEXIS 43 *5 (V I Super Ct Apr 23 2015) ( [I]n
general the Court will not make a movant's arguments for him when he has failed to do so ’)
Upon review of the first amended complaint, the Court finds that it provided “a plain, concise, and
definite written statement of the essential facts constituting the offense” and that for each count,
the information gave ‘ the official or customary citation of the statute rule, regulation, or other
provision of law that the defendant is alleged to have violated” as required under Rule 3 of the
Virgin Islands Rules of Criminal Procedure V I R CRIM P 3(b) As such the Court will deny
Defendant’s motion for bill of particulars 6
6 Under Rule 3(e) of the Virgin Islands Rules of Criminal Procedure the decision to grant a request for a bill of
particulars is within the discretion of the Court See V I R CRJM P 3(e) ( The court may direct the government to
file a bill of particulars ')
People ofthe V1 1 Tyson
SK 2022 CR 034
Memorandum Opinion and Order 2023 V1 SUPER 5%
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[l Plaintiffs motion to amend the first amended information
1] 10 In its motion the People argued that the Court should permit the following amendment (in
bold) to Count I and Count [I of the first amended complaint
Count I aggravated rape in the first degree LYNDON TYSON, did perpetrate an act or
acts of sexual intercourse or sodomy against S P who was at that time under the age of
thirteen, by slightly penetrating her vagina with his penis; and/or engaging in acts of
cunnilingus and/or fellatio with S P 3 in violation of Title 14 V I C § l700(a)(1);
Count [I unlawful sexual contact in the first degree LYNDON TYSON did engage in
unlawful sexual contact with S P who was at that time under thirteen years of age, by
touching her vagina, and/or lips, and/or breast“), and/or buttocks with his hand Wm
penis, for the purpose of arousing or gratifying the sexual Memoir; desire of any
gerson, or by engaging in acts of cunnilingus and/or fellatio with S P , in violation of
Tit1e14 V I C § l708(a)(2)
(Motion )
The People made the following assertions in support of its motion (i) “There are no additional or
different offenses being charged and the substantial rights of the defendant are not prejudiced
because the Defendant was put on notice of all the allegations set forth in both Count One and
Count Two through discovery and the detailed probable cause Affidavit supporting the original
lnfonnation ”7 (Motion 2), and (ii) [T]he number of counts and the applicable penalties are not
increased in any way by the amendments to the existing Amended Information ” (Id )
11 11 In his opposition, Defendant argued that the Court should deny the People 5 motion
Defendant made the following assertions in support of his argument (i) [T]he added language
will serve to inflame the jury and puts Defendant at a serious disadvantage on the eve of trial as it
forces him to defend against other accusations that previously were not charged and were not in
his trial strategy (Opp 1); (ii) These allegations [in the language of the proposed amended
The People referenced V I R CRIM P 3(d)' Gonsalxes v People ofthe V1 70 VI 812 848 (VI 2019)
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Page 8 of 11
amendment] expand the circumstances under which Lyndon Tyson can be found guilty without
stating on what dates this conduct alleged occurred (Id , at 2); (iii) These allegations [in the
language of the proposed amendment] also parrot the statute without stating what the exact conduct
Lydon Tyson performed nor provide dates so that he may mount a defense to this conduct and
should be considered additional offenses that would violate [Rule 3(d)] ’ (Id ); (iv) ‘ Defendant
had filed a Motion for Bill of Particulars on April 13, 2022 asking for more dates and eludicating
[sic] information and such amended could have been filed then but was not (Id ); (v) “[A]llowing
such an amendment encourages ‘trial by ambush and flouts the rules of criminal procedure 8 (Id ,
at 3 )
1] 12 In its reply the People reiterated its prior assertions and included the following new
assertions (i) ‘ During witness and trial preparation, the People realized the facts and testimony
anticipated at trial will detail illegal conduct within the existing charges not included in the “to
wit" charging language of the original or amended information ’ (Reply 2); (ii) ‘ The original
charging document filed by the People on February 3, 2022, included by reference the signed
Affidavit dated same setting forth in detail every act of sexual misconduct alleged by the victim
and set forth in the proposed Second Amended Information and therefore, Defendant ‘has
formally been on notice since February 3, 2022, that he is accused of committing all the acts set
forth in the Second Amended Information, which are varying modes of committing the crime 9
(Id , at 3) (iii) ‘ [T]he People tendered original discovery to defense on February 28, 2022 which
included, among other items the Information and Affidavit, arrest reports, VIPD Offense Report,
VIPD Supplemental Report and the video and audio statements of the victim [and] [t]he victim’s
3 Defendant referenced State v Robinson 2013 Ohio Misc LEXIS 31379 (Ohio 20l3)
9 The People referenced Ramirez v People 56 V I 409 426 (V I 2012)
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video and audio statements specifically allege every single act of sexual misconduct as set forth in
the Second Amended Information and therefore any claim of trial by ambush or secreting of
evidence is disingenuous and not consistent with the facts before the Court ” (Id ), (iv) “[I]t is
necessary to present the entire picture to the jury and that needs to be done before the Information
is read to the jury at the onset of the trial ’ (Id )
a Standard of Review
1| 13 Rule 3(d) of the Virgin Islands Rules of Criminal Procedure (hereinafter “Rule 3(d) )
provides that [u]n1ess an additional or different offense is charged or a substantial right of the
defendant is prej udiced, the court may permit an information to be amended at any time before the
verdict or finding V l R CRlM P 3(d)
b Analysis
11 14 ‘ A charge in an information generally provides sufficient notice to a defendant if the
offense is alleged ‘in the very terms of the statute Gonsalves, 70 V I at 844 (quoting United
States v Goodmg 25 U S (12 Wheat ) 460 474 6 L Ed 693 (1827)) In Gonsalves the Virgin
Islands Supreme Court explained that [i]n determining whether a defendant had been put
on notice of the charges, sources in the information extrinsic to the specific count can be used to
determine whether the defendant was sufficiently apprised of the offense charged ” Id (internal
quotation marks omitted) “Generally, an information provides sufficient notice if it sets forth the
offense in the words of the statute itself, as long as those words of themselves fully, directly and
expressly, without any uncertainty or ambiguity, set forth all the element necessary to constitute
the offense intended to be punished and must be accompanied with such a statement of the facts
and circumstances as will inform the accused of the specific offence, coming under the general
description, with which he is charge 1d , at n 21 (internal quotation marks omitted)
People ofthe VI 1 Tyson
xiiiiniin233pinion and Order 2023 V] SUPER E
Page 10 of I!
1] 15 In this instance, the Court finds that Defendant had been put on sufficient notice of the
language of the proposed amendment to Count I and Count II of the first amended complaint
Police Detective Ellery C Qualley s affidavit, filed contemporaneously with the information that
initiated this prosecution, explicitly described Defendant’s alleged sexual conducts which
included (i) S P stated that she remembers licking and sucking [Defendant’s] penis when she
was five years old (1" 3B), (ii) “S P stated that she sucked Mr Tyson’s penis” in December of
2021 (1| 3C D), (iii) “S P stated that Mr Tyson on prior occasions, has squeezed and sucked her
breasts ’ (11 3G); and (iv) “S P stated that Mr Tyson has rubbed his fingers on the top and bottom
of her vagina S P also stated that he has put his mouth on her vagina ’ (Id) These explicit
languages in Police Detective Ellery C Qualley’s affidavit provided notice to Defendant that the
People were going to rely on these alleged sexual conducts to prove its case against Defendant
See Gonsalves 70 V I at 848 (finding the original information and the probable cause affidavit
attached thereto together provided the defendant with adequate notice of the charges) The Court
must remind Defendant that he, himself, had requested in his motion for a bill of particulars that
the People [d]escribe with specificity the conduct for which Defendant is being charged, and
that is what the People have done with the proposed amendment '0 Furthermore, the Court finds
that no additional or different offenses were charged, and the substantial rights of Defendant were
not prejudiced However, the Court finds that the language of the proposed amendment to Count
11 of the first amended complaint does not track the language of the relevant statute Title 14
V I C § 1708(a)(2) " As such, the Court will not approve the pr0posed second amended
1° See supra ‘ I Defendant’s motion for a bill of particulars
1' Title 14 v I c § l708(a)(2) defines unlawful sexual contact in the first degree as follows [a] person who engages
in sexual contact with a person when the other person is under thirteen years of age
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Memorandum Opinion and Order 2023 VI SUPER
Page 11 of 11
information attached as an exhibit to their motion, but grant the People’s motion and order the
People to file a revised proposed second amended information
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Defendant s motion for a bill of particulars, filed on April 13, 2022, is
DENIED It is fimher
ORDERED that the People 5 motion to amend the first amended information, filed on
October 24 2022 is GRANTED It is further
ORDERED that the People’s proposed second amended information attached as an exhibit
to the People’s motion to amend the first amended information filed on October 24, 2022, is NOT
APPROVED And it is further
ORDERED that within ten (10) days from the date of entry of this Order the People
shall file (i) a redline copy of the revised proposed second amended complaint reflecting the changes made
to the first amended complaint and (ii) a clean copy of the revised proposed second amended complaint
3&\
DONE and so ORDERED this 5 3 day of March 2023
ATTEST MUM
Tamara Charles HAROLD W L WILLO KS
Clerk of the Court Senior Sitting Judge of the Superior Court
‘ )2- I
By_ 7 go (4,; “'4;
”Court C] k 1:4/
Dated =99 /