IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX

Case No. SX-14-CR-131

PEOPLE OF THE VIRGIN ISLANDS
Charges:

Plaintiff, Murder 29 Degree; Reckless
Endangerment 1; Carrying or
Using a Dangerous Weapon

RONALD HATCHER During the Commission of a
Crime of Violence
Defendant.

Vv.

Cite as: 2020 VI Super U24
Appearances:

Patricia Quinland, Esq.

Assistant Attorney General

Attorney for the People of the Virgin Islands
Department of Justice

St. Croix, V.I. 00820

Yohanna Manning, Esq.
Attorney for Defendant Ronald Hatcher

53A Company Street
Christiansted, St. Croix 00820

Memorandum Opinion
Meade, Judge

41. THIS MATTER is before the Court on Defendant’s Motion to Dismiss
the charge of Voluntary Manslaughter, the People's Response, and the
Defendant's Reply and supplemental submission. For reasons set forth below,
the Defendant’s Motion to Dismiss is DENIED.

Factual and Procedural Background:

12. On or about September 26, 2013, Defendant Ronald Hatcher
(hereinafter “Hatcher” or “Defendant”) shot and killed Jose Berrios. The

People of the Virgin Islands (hereinafter “People”) charged Hatcher with (1)
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Murder Second Degree, (2) Reckless Endangerment First Degree, and (3)
Carrying or Using a Dangerous Weapon During the Commission of a Crime of
Violence. The Information detailing those charges was filed in the Superior
Court on April 22, 2014. The case was tried before a jury on March 19, 2018.
At the end of the People's case, Defendant moved the Court for a Judgment of
Acquittal pursuant to Rule 29 of the Virgin Islands Rules of Criminal
Procedure. The Court permitted arguments by both parties after which it
deferred ruling. Thereafter, the Defendant presented his case. At the end of
the Defendant's case, the Court granted the Defendant’s motion for judgment
of acquittal with respect to Murder Second Degree and permitted the People
to amend the Information to charge the lesser offense of Voluntary
Manslaughter. The case was submitted to the jury, and the jury acquitted
the Defendant of the charges of Reckless Endangerment First Degree and
Carrying or Using a Dangerous Weapon During the Commission of a Crime of
Violence. However, the jury was deadlocked on the charge of Voluntary
Manslaughter. The Court declared a mistrial on that charge.

G3. Subsequently, Hatcher filed a Motion to Dismiss the Voluntary
Manslaughter charge contending that the statute of limitations bars his
prosecution for Voluntary Manslaughter.

The Legal Standard

"14. Statutes of limitation prescribe the time within which criminal
proceedings may be commenced after the occurrence of the conduct that gives
rise to the criminal offense. Virgin Islands law prohibits prosecution on the

charge of Voluntary Manslaughter if criminal proceedings are not commenced
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within three (3) years after the occurrence of the conduct giving rise to the
charge. 5 V.I.C. § 3541{a){2).
Analysis:

A. Summary of the Arguments
915. In his Motion te Dismiss, Hatcher advances two fundamental
arguments. First, Hatcher contends that the filing of the Amended
Information charging Voluntary Manslaughter constitutes a violation of 5
V.LC. § 3541(a)(2) since the Amended Information was filed more than three
years after the occurrence giving rise to the criminal charges. Second, Hatcher
contends that Voluntary Manslaughter is not a “nested” lesser included
offense of the crime of Second-Degree Murder which makes it a new offense
because it was not charged in the Original Information. The Court finds
Hatcher's arguments unpersuasive since the prosecution of the charges
commenced within three years; and under Virgin Islands law and the facts of
this case, Voluntary Manslaughter is a lesser included offense of the crime of
Second-Degree Murder. Therefore, the statute of limitation does not apply to
bar the prosecution of the criminal charge of Voluntary Manslaughter.

B. Commencement of the Criminal Prosecution Was Timely

6. The mere passage of time since the commission of an offense is not the
only factor to consider in determining whether a statute of limitation applies.
Other factors include the nature of the offense, the statutory provisions under
which the offense is prosecuted, the initiation of criminal proceedings and the
tolling of the statute upon the commencement of criminal proceedings. The

application of the limitations period is not always a clear-cut matter: but in
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this case, it is evident that the three- year limitation applies to the charge of
Voluntary Manslaughter.

"7. The Original Information which charged the criminal action against
Hatcher was filed approximately seven (7) months after the incident which
gave rise to the charges. Accordingly, the Original Information was filed about
two years and five months before the statute of limitations on Voluntary
Manslaughter expired. The statute of limitation of all charged and uncharged
lesser included offenses is tolled until the criminal action is dismissed. United
States v. Grady, 544 F. 2d. 598, 601 (24 Cir. 1976). Because the filing of the
Information tolled the statute, the three-year limitation on the Voluntary
Manslaughter charge would not have expired when the Amended Information
was filed on March 26, 2018.

48. Nevertheless, Hatcher insists that the filing of the Amended Information
creates an untimely commencement of a prosecution on the criminal charge
of Voluntary Manslaughter. Neither the Virgin Islands Code nor the Virgin
Islands Rules of Criminal Procedure specifically defines what constitutes the
commencement of a criminal action. From time to time, the Courts of the
Virgin Islands have identified various stages in the criminal justice process
where it may be determined that the criminal action has commenced. These
stages include the return of an indictment, the filing of an information or
complaint or the issuance of a warrant of arrest. The District Court of the
Virgin Islands held that a criminal action commences with the return of an
indictment or the filing of an information under the provisions of 5 V.1.C. §

3541. Government of the Virgin Islands v. Moncayo, 

 (DVI 1994).
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The Superior Court of the Virgin Islands has identified different stages of the
criminal justice process where it may be determined that criminal action has
commenced. Criminal actions are commenced when a grand jury issues an
indictment or when a prosecutor files a complaint or an information. Dennie
v. People of the Virgin Islands, 

 (Super. Ct. 2017). Either the
issuance of a proper warrant or the filing of an information, whichever is
earlier, commences a criminal action for purposes of 5 V.I.C. § 3541. People
of the Virgin Islands v. Correa, 

 (Super. Ct. 2017); People of
the Virgin Islands v. Ayala, 

 (Super. Ct. 2017). Without
finding whether the issuance of a warrant and the return of an indictment are
also proper considerations for the commencement of a criminal action, the
Virgin Islands Supreme Court has stated that the filing date of an information
may be used to determine when a criminal prosecution commences. Miller v.
People of the Virgin Islands, 

 (VI 2010).

G9. Hatcher relies on Miller to support his contention that the filing of the
Amended Information was the commencement of an action on the charge of
Voluntary Manslaughter. Hatcher's reliance on Miller is misplaced. In Miller,
the Court dealt with the issue of whether the statute under which the
defendant was charged and prosecuted was subject to the three-year statute
of limitation. In arriving at its decision, the Court indicated that the filing date
of an information may be used to determine when a criminal action
commenced but did not indicate or suggest that the filing of an amended

information commenced a criminal action.
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G10. Therefore, contrary to Hatcher's argument, the filing of the Amended
Information did not commence the criminal action but was a continuation of
the action that commenced with the filing of the Original Information. The
Amended Information would have raised statute of limitations issues only if
it charged a new offense for which the statute of limitation had expired. The
United States Court of Appeals for the Third Circuit noted that the return of
the superseding indictment prior to the dismissal of the original indictment
does not violate the statute of limitations if the superseding indictment does
not alter the charges. United States v. Friedman, 

 (3*4 Cir.
1981).

C. Lesser Included Offense is not a New Charge

411. Where there has been a prosecution under an information amended
after the expiration of an applicable limitation period, courts in a majority of
jurisdictions have generally held that the amendment is barred only if it
charges a new offense. Therefore, in People v. Chapman, 

{Cal. App. 3d 1975), the Court held that a count alleging unlawful sexual
intercourse with a female under 18 years of age was an amendment which
added a new charge and was done more than three years after the alleged
offense of the original information. The amendment was therefore barred by
the three (3) year statute of limitations. The original information had alleged
forcible rape and assault but had not alleged that the victim was younger than
eighteen (18) years of age. The Court reasoned that since unlawful sexual
intercourse included the element that the victim was under eighteen (18)

years of age, it was not, as a matter of statutory definition, an offense
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necessarily included in the statutory offense of rape. In People v. McKay, 

 (Cal. 1979), the Court held that an information may not be
amended to insert a charge that is not necessarily a lesser included offense
after the statute of limitations had expired. The new charge is barred even
though it relates to the same conduct as was originally charged. In State v.
Rowley, 

 (Conn. 1837) the Court held that the prosecutor could
not amend an information to add a new charge after the statutory period for
that charge had lapsed. Similarly, in State v. Pryor, 

 (Mo.
App. 1989) the Court held that an offense charged in an amended information,
a misdemeanor, was different from the offense charged in the original
information, a felony, which was grounded in an entirely different statute.

{1 12. The Amendment of the Information in Hatcher's case did not give rise
to circumstances where different or new charges were filed. When the Court
permitted the Amendment of the Information, it did so to allow only the lesser
included offense to go to the jury, since the evidence was insufficient to
support the greater charge of Second-Degree Murder. If the evidence was
sufficient for the jury to find a guilty verdict on either offense, the defendant
would have been entitled to a jury instruction on the lesser included offense.
A jury instruction must contain a lesser included offense only if the evidence
adduced at trial could have supported a guilty verdict on either charge. Phipps
v. People of the VI, 

 (VI 2011). The Amendment permitted the
jury to consider the lesser offense without having to consider the greater

offense which was not supported by the evidence. Consequently, the
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Amendment of the Information neither altered the charges nor brought a new
charge.

4 13. Moreover, Hatcher's contention that a lesser include offense not
charged in the original information cannot be charged in an amended
information after the statute of limitations has expired, ignores the
established principles of jurisprudence in the prosecution of criminal matters
which apply to these proceedings. The basic principle is that when an
indictment or information charges a greater offense it also charges all lesser
included offenses. The majority of jurisdictions, including the federal courts,
follow the principle that lesser included offenses need not be set forth as
separate counts in an indictment or information. An indictment or
information charging an offense impliedly charges all lesser included offenses
for which proof would support conviction. U.S. v. Miller, 

 (1985);
State v. Banes, 

 (Tenn. Crim. App. 1993). The Virgin Islands has
also adopted the principle that an indictment or information which charges a
greater offense also charges all lesser included offenses. Fontaine v. People of
the Virgin Islands, 

 (VI 2015). (Finding that the jury may convict
for a lesser included offense even if not charged in the Information).

D. Voluntary Manslaughter is a Lesser Included Offense of Second-
Degree Murder

714. It is generally considered that voluntary manslaughter is a lesser
included offense of the charge of murder. United States ex rel Matthews v.
Johnson, 

 (3 Cir 1974); Price v. Georgia, 

(1970). Virgin Islands Courts follow this general rule. Boston v. Virgin Islands,
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46 V1 520, 526 (DVI 2005); Castillo v. People of the Virgin Islands, 59 V1 240,
253 (V.I. 2013).

4 15. However, Hatcher contends that voluntary manslaughter is not a
“nested” lesser included offense of second-degree murder. The decisions
determining the existence of a lesser included offense appear to vary. Some
courts have found that a lesser included offense exists when the proof
necessary to establish the greater offense will, of necessity, establish the
elements of the lesser offense. This means that the elements of the lesser
offense form a subset of the elements of the greater offense. Smith v. Gov't of
the V.L, 

 (Terr. Ct. 2003). This definition tends to suggest
that it is not possible to commit the greater offense without committing the
lesser offense. To support his contention, Hatcher relies on this definition and
argues that the element of sudden quarrel or passion that is an element of
voluntary manslaughter is not an element of second-degree murder.
Therefore, according to this logic, Hatcher argues that voluntary
manslaughter is not a lesser included offense of second-degree murder since
a defendant may commit the crime of second-degree murder without
committing the offense of voluntary manslaughter.

"16. Rule 31{c)(1) of The Virgin Islands Rules of Criminal Procedure does
not use the term “lesser included” offense but uses the term “necessarily
included offense”. V.I.R.Cr.P. 31(c)(1). It is generally considered that the term
lesser included offense as used by the courts falls within the reach of the rule.
In fact, courts have long used the term lesser included offense to mean the

“necessarily included offense” language of Rule 31. Olais-Castro v. United
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States, 

 (9 Cir. 1969). (Finding that although there was a
theoretical difference between the “necessarily included” offenses and “lesser
included” offenses, the terms are used interchangeably by the court).

G17. Different jurisdictions may define “lesser included” offenses differently
and may apply different formulas and tests to determine what constitutes a
lesser offense necessarily included in the charged offense. Sometimes the
determination of whether a lesser offense constitutes a necessarily included
offense is based on the facts of the case. Generally, the principle arising from
the cases identify the existence of two requirements in order for an offense to
constitute a lesser offense necessarily included in the charged offense. First,
the offense which is claimed to be the lesser included offense must, in fact,
be lesser than the charged offense. This requirement is met where the
included offense is less grave or serious than the charged offense. Secondly,
the two offenses must share common elements, although the lesser offense
has fewer of those elements than the charged greater offense.

4118. Accordingly, courts have found that certain claimed lesser offenses
were not included in the greater offense where one or more of the
requirements did not exist. Usually, the determination as to whether a lesser
offense exists is dependent on the facts in evidence. In Goodall v. United
States, 

 (DC. App. 1950) cert. den. 

 (1950), the Court
affirmed a conviction for first degree murder under a District of Columbia
Statute. The Court acknowledged that the accused could be found guilty of
second-degree murder if the evidence warranted, since Rule 31(c) of the

Federal Rules of Criminal Procedure permitted conviction for necessarily
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included offenses.' However, the Court held that under the particular
circumstances, the offense of second-degree murder was not a lesser included
offense. The defendant was charged with the killing of a druggist in the course
of robbing the drugstore. The defendant contended that because of his
intoxication at the time of the robbery, he was only guilty of second-degree
murder. After reviewing the evidence presented at trial, the Court concluded
that there was no testimony that at the time of the crime, the accused was
drunk or was so incapacitated by intoxication as to be unable to realize what
he was doing. As such, there was no justification for permitting the jury to
consider second degree murder as a lesser included offense.

419. In considering whether second degree murder and manslaughter were
lesser included offenses of the crime of first degree murder under Virgin
Islands law, the Third Circuit Court of Appeals opined that in order for a
crime to constitute a lesser included offense, the lesser offense must be
comprised solely of some, but not all of the elements of the charged offense.
Government of the V.I. v. Carmona, 

 (3'4 Cir. 1970). In
Carmona, the defendant was charged with first degree murder after he had
become drunk and agreed with another to rob a bar. During the robbery, the
proprietor was killed. Noting that Virgin Islands law defined voluntary
manslaughter as the unlawful killing of a human being without malice
aforethought upon a sudden quarrel or passion, the Court reasoned that

voluntary manslaughter was not necessarily included in felony murder, since

' Rule 31(c) of the Federal Rule of Criminal Procedure is identical to Rule 31(c) of the Virgin Islands Rule of
Criminal Procedure.
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felony murder did not necessarily entail a sudden quarrel or heat of passion.

. The Court concluded that there was no evidence of a quarrel or
heat of passion so that a jury could not have properly found the accused guilty
of voluntary manslaughter.

G20. The Ninth Circuit Court of Appeals affirmed a conviction for
manslaughter after the accused was charged with first degree murder under
Alaska law when his gun discharged while he was loading it. In rejecting the
defendant's contention that the offense for which he was convicted was not
necessarily included in the offense charged, the Court held that every
essential element of manslaughter by culpable negligence was necessarily
included in the offense of first-degree murder as charged in the indictment.
Barbeau v. United States, 

 (9 Cir. 1951) cert. den. 

 (1952).

@21. As discussed above, certain factual circumstances may preclude
voluntary manslaughter from being considered as a lesser included offense of
the crime of murder. Under these circumstances, courts tend to consider
whether the evidence presented include facts from which the jury could find
the elements of the lesser offense. Carmona. 422 F 2d. at 100

(122. Nevertheless, the general rule applied by most jurisdictions is that
voluntary manslaughter is a lesser included offense within the crime of
murder. United States v. Quintero, 

 (9th Cir. 1994). See also
United States v. Comer, 42] F. 2d 1149, 1153 (DC App. 1970) ruling that
manslaughter has long been recognized as a lesser included offense of second-

degree murder. De Marias v. United States, 

 (8 Cir. 1973) cert.
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den. 

 (1974) (finding that manslaughter is a necessarily included
offense within the charge of murder so that a defendant could be convicted of
voluntary manslaughter where he was charged with murder). United States v.
Celestine, 

 (9 Cir. 1975) (finding that manslaughter is
recognized as a lesser included offense within second degree murder).

4123. The Virgin Islands Courts have also adopted the basic general rule that
voluntary manslaughter is a lesser included offense of the crime of murder.
Williams v. People of the Virgin Islands, 

 (VI 2016). In Williams,
the defendant argued that sudden quarrel or heat of passion was an element
that must be proved for voluntary manslaughter and was not contained within
the elements to prove second-degree murder. He argued further, that it is
possible to commit second-degree murder without committing voluntary
manslaughter. As a result, voluntary manslaughter is not a necessarily
included offense of second-degree murder. The elements of sudden quarrel
or heat of passion need not always be present to support a voluntary
manslaughter verdict. United States ex rel Matthews v. Johnson, 

 (34 Cir. 1974). The jury has the power to find a defendant guilty of
manslaughter as a lesser included offense even absent evidence of a sudden
quarrel or heat of passion as long as the evidence was sufficient to convict the
defendant of the greater offense. Hughes v. People of the Virgin Islands, 

 (VI 2013) n. 4. It follows, that although sudden quarrel is an element of
voluntary manslaughter which need not be proved as an element of second-

degree murder, that fact does not preclude it from being considered a lesser
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included offense. In United States ex rel Matthews v. Johnson, the Third
Circuit stated:

“While it is considered felonious, voluntary manslaughter is the

least culpable form of homicide within a murder indictment. Thus

when considering the degree of culpability of an individual being

tried under such an indictment, a jury may return a voluntary

manslaughter verdict if it finds that the killing, although

intentional, was committed without malice; that is, the accused may

be shown to have been acting under the influence of sudden passion

which was caused by legally adequate provocation that placed him

beyond the control of reason”.
Conclusion

An indictment or information charges all offenses necessarily included

in the charged offense. The filing of an indictment or information tolls the
statute of limitations which apply to lesser included offenses. An amended
information violates the statute of limitations only if the amendment includes
new charges. The Amendment of the Information to present the charge of
Voluntary Manslaughter is not a new charge since voluntary manslaughter is
a lesser included offense of the charge of Second-Degree Murder.
Consequently, Hatcher was charged with Voluntary Manslaughter upon the

original filing of the Information. Therefore, there are no statute of limitation

issues which warrant dismissal. The Defendant’s Motion to Dismiss is

DENIED.

DONE AND SO ORDERED this ay of February 2020.
ATTEST HONORABLE JOMO MEADE
TAMARA Judge of the Superior Court
Clerk of/#t