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

PEOPLE OF THE VIRGIN ISLANDS                           )

                        Plaintiff                      3   CASE NO ST 2019 CR 00078
        v                                              )
                                                       )
                                                       )
ALLAN E STEVENS                                        )

                        Defendant                      i
h‘__)

                                     Cite as 

                                    MEMORANDUM OPINION

1} 1    THIS MATTER is before the Court on the People 5 Motion to Dismiss Without Prejudice

( motion to dismiss )1 filed by the plaintiff the People of the Virgin Islands ( the People )

Defendant, Allan E Stevens( Stevens ) responded by filing a Motion to Dismiss With Prejudice

Stevens urges the Court to dismiss the matter with prejudice because the People did not timely

disclose DNA evidence, and allowing them to refile would permit them to use evidence that would

have been excluded had the matter proceeded to trial

{12     For the reasons set forth below, the People 5 motion to dismiss without prejudice will be

granted and Stevens motion to dismiss with prejudice will be denied However, because the Court

finds that the People would gain an unfair tactical advantage if permitted to refile and use DNA

evidence that was untimely disclosed, the Court will bar the People from using the DNA evidence

from use at a future trial



1 The motion to dismiss was filed February 5, 2020
Peoplev Allan E Stevens
Case No ST 2019 CR 00078                 Cite as 2021 V1 Super 25
Memorandum Opinion
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                                               I FACTS

‘13     Stevens was arrested on March 17, 2019 and charged with third degree assault in Violation

of V I CODE ANN tit 14 § 297(a)(2); use of an unlicensed firearm during the commission of a

third degree assault in violation of V I CODE ANN tit 14 § 2253(a); unauthorized possession of a

firearm in violation of V 1 CODE ANN tit 14 § 2253(a); possession of stolen property in violation

of V 1 CODE ANN tit 14 § 2101(a) and unauthorized possession of ammunition V 1 CODE ANN

tit 14 § 2256(a) The original scheduling order issued April 4, 2019, set jury selection for

November 18 2019 with trial to commence during the three week trial period beginning thereon,

and running through December 6, 2019

$14     Immediately following arraignment on April 5, 2019 Stevens submitted a discovery

request that requested, inter alia   all results of reports of physical or mental examination scientific

tests or experiments or copies thereof, and all documents referring or relating to such reports, that

were conducted in connection with any investigation on the charges                 On June 17, 2019,

Stevens made a similar supplemental request, which specifically requested DNA and fingerprint

reports The People responded to the discovery 1equests, but none of the discovery nor responses

included DNA reports or requests for same or any indication that DNA results were outstanding

115     On Octobel 29 2019 during a pretrial conference, Stevens 1equested that this matter be

placed on last call so that he could consider the plea offer that had been presented The Court

granted Stevens request, but noted that the matter would remain on the Novemberjury trial period

The case was then set for jury selection on December 2, 2019

116      On November 25, 2019, the People filed a motion to continue the December 2 2019 jury

selection date because one of its witnesses was on a preapproved leave and would not return to
People v Allan E Stevens
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work until December 9, 2019 Over Stevens objection, the Court granted the People 5 motion for

a continuance and rescheduled jury selection for January 7 2020 with trial to commence during

the two week period beginning thereon

117     On December 11, 2019, during a pretrial conference, both parties stated that they were

ready for jury selection on January 7, 2020, and the matter was scheduled for final pretrial

conference on December 30, 2019 flOn December 30, 2019 the People moved for a continuance

0n the grounds that the victim was hesitant to testify Stevens opposed the motion The Court

granted the continuance and moved jury selection to February 10, 2020, with trial to commence

during the three week period beginning on February 10 2020, but ordered that no further

continuances would be granted to the People absent extenuating circumstances

$18     On January 31, 2020 the People filed a motion to continue jury selection and trial on the

grounds that the day prior they had received the DNA Labs International Certificate Analysis ( the

DNA report ) dated J anuary 14 2020 and they could not obtain a DNA expert by Februaiy 10

2020 Stevens filed a written opposition arguing that he had 1equested all discovery as early as

April 5, 2019 and that the People had never advised him that they were awaiting any DNA analysis,

even though he had specifically requested all DNA reports on June 17, 2019 Stevens also argued

that the DNA evidence had been received by the lab via FedEx on December 5, 2019 as evidenced

by the DNA report, which was three days after the December 2 2019 jury selection date To this

point, Stevens argued that the People should not be able to obtain a continuance to benefit from

evidence that was not timely obtained nor disclosed On February 4, 2020, Stevens filed a motion

to exclude the DNA evidence, arguing that it prejudiced his ability to prepare for trial This motion

was deemed moot when the People filed a motion to dismiss the matter
People v Allan E Stevens
Case No ST 2019 CR 00078                      Cite as 2021 VI Supei 25
Memorandum Opinion
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119      During the final pretrial conference on February 5, 2020, the People moved to dismiss the

matter without prejudice on the grounds that the victim was uncooperative 2 Specifically, the

People alleged that the victim had refused to come into the office to speak with either the

prosecutor or case agent because he feared for his life and as such, the People would file a written

motion for dismissal without prejudice The People also argued that there was no bad faith in

failing to timely disclose the DNA report because the prosecutor did not know that the DNA

evidence had been sent to the lab for testing 3

1110     Stevens opposes the People’s motion and moves this Court to dismiss with prejudice or

alternatively, to dismiss without prejudice so long as the DNA evidence is excluded



                                           II LEGAL STANDARD

1111     Under Virgin Islands Rule of Criminal Procedure 48(a)                    [t]he government may file a

dismissal or nolle prosequi of an information Such a dismissal is without prejudice unless

otherwise stated ” VI CRIM P R 48(a) The court is generally required to grant a prosecutor's

Rule 48(a) motion to dismiss unless dismissal is ‘cleaily contrary to manifest public inteiest ’”

Phillip v People 

 (VI 2013) 4 see also US v Gallant!) No 2012 020 

 at *5 (D V 1 Aug 30 2013) (unpublished) (citation omitted) Under such


’ Stevens alleges that, at the February a conference, the People attempted to move forward with their
request for a continuance and when the continuance was not successful, the People immediately
elected orally to move to dismiss the case without prejudice
3 The Court accepts the prosecutor’s explanation that she had no personal knowledge that evidence
was sent for testing
4 1n Phllllp, the Virgin Islands Supieme Couit analyzed Fedeial Rule of Climinal Piocedure 48(a), whereas the case
subjudzce implicates its local counterpait The federal rule provides, in relevant part, [t]he government may, with
leave of court dismiss an indictment, information, or complaint, whereas the Virgin Islands mle provides that [t]he
government may file a dismissal or nolle piosequi of an information Such a dismissal is without prejudice unless
otherwise stated The federal rule 5 language is not identical to the Virgin Islands rule, but this Coufl finds that both
are sufficiently similar to one another that the Phillip analysis is informative
People» AllanE Stevens
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circumstances, a court may deny dismissal, or grant dismissal with prejudice thllzp, 58 V I at

599 (citing United States 1 Carrzgcm 

 (10th Cir 1985) then citing Rmaldz 1

Untied States 434 U S 22 30 (1977)“ In re chhards 42 V I 469 487 (3d Cir 2000)) A court

should deny dismissal or grant dismissal with prejudice only when it is necessary to protect a

defendant from harassment by a prosecutor acting in bad faith,    protect the public interest in the

fair administration of justice,” or preserve the integrity of courts ’ A court should not presume

bad faith if no evidence of it exists in the record Phllllp, 58 V I at 601 (citing Rmaldz 434 U S

at 30 Jacobo Zavala 241 F 3d at 1012 United States 1 Salmas 

 (5th Cir

1982)) As such, a court should deny the People's dismissal request ‘ only in the ‘rarest of cases,

for it is the People who are presumed to be the best judge of where the public interest lies with

respect to a criminal prosecution   Phillip, 58 V I at 600 (citing [n 1e chhara’s, 213 F 3d at 786

( [F]ew subjects are less adapted to judicial review than the exercise by the Executive of his

discretion in deciding when and whether to institute criminal proceedings, or what precise charge

shall be made, or whether to dismiss a proceeding once brought”); United States v Jacobo Zavala,

241 F 3d 1009 1012 (8th Cir 2001))




                                         III ANALYSIS

1112     There are two issues before this Court     First the Court must decide whether to grant

dismissal with or without prejudice Second if the Court decides to grant dismissal without

prejudice, the Court must then decide whether to exclude the People 3 DNA evidence from use at

a later trial
People v Allan E Stevens
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1113    The People move this Court to dismiss without prejudice because the People have been

unable to confer with the Victim The People allege that they have made ‘ innumerable attempts

to locate and contact the Victim without success because the victim is afraid to come forward

1114    Stevens opposes the People’s motion and moves this court to dismiss the matter with

prejudice because the People acted in bad faith However, if the Court should grant dismissal

without prejudice Stevens requests that it exclude DNA evidence from future use

1115    Stevens does not challenge the People 5 failure to locate and contact the victim Indeed, in

his opposition to the People 3 January 31 motion to continue, Stevens acknowledged that he did

not know whether the People had located the victim As such, the Court accepts the People s

representation Rather, Stevens challenges the People 3 grounds for requesting dismissal without

prejudice He argues that the People 3 motion is a means to ‘ tactically outmaneuver [the] rules of

discovery and that if the People are permitted to refile, they would use DNA evidence that would

have been excluded from trial had it continued as scheduled 5 Stevens argues that the People were

aware of the DNA evidence before they disclosed their awareness of the evidence to the Court on

January 31, 2020 because the People moved for a continuance to ensure that the DNA expert would

be present at trial Stevens argues that the People 3 failure to timely disclose the DNA evidence to

him amounts to an act of bad faith warranting dismissal with prejudice

1116     [I]t is well within the court's authority to dismiss [an] action with prejudice where the

Government is found to have acted in bad faith         Gov I 0fV.I v Dzaz, 40 V I MO, 121 (V 1 Super

Ct 1998) (dismissing cases against a criminal defendant with prejudice because the government

acted in bad faith) The burden is on the defendant who seeks dismissal with prejudice to prove



3 The People concede that the DNA evidence would have been excluded at trial in February 2020
People v Allan E Stevens
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that the People acted in bad faith       People 1 8tephens N0 ST 2016 CR 177 

at *4 (VI Super Ct Jan 15 2020) (quoting People 1 Settle) No SX 11 CR 883 2014 VI

LEXIS 75 at *1 (VI Super Ct Sept 15 2014))“ see also Rzieiai People 

 570 80

(VI 2016) (requiring that the defendant prove that he suffered substantial prejudice by the

government 5 charging delay); cf. Galloway, 

, at *5 (collecting cases) ( A

presumption of good faith attaches to the Government 5 decision to seek dismissal under Rule

48(a) )    Actions that constitute bad faith include those through which the government

intentionalIy attempts to unfairly gain a tactical advantage by prejudicing the defendant See

szera 64 V I at 570 (discussing bad faith delays by the government to gain a tactical advantage)

People v Velasquez 

 (VI Super Ct 2013) (citing US v Marlon 404U S 307

324 (1971)) (contextualizing a delay made in bad faith as being for the purpose of gaining a tactical

advantage) cf Ponce i People 72 V I 828 837 38 (V I 2020) (finding a lack ofbad faith where

the government 5 non disclosure of discovery was not intentional) Stephens, 

,

at *5 (iecognizing that the government would gain a tactical advantage if allowed to refile, even

without a firm finding of bad faith) Evidence of bad faith acts may include, but is not limited to,

instances where the government harasses the defendant,6 acts vindictively to violate a defendant 5

constitutional or statutory rights,7 or dismisses a case in order to later use evidence that would have

been excluded had the matter gone forward to trial 8 Cf. thllzp, 58 V I at 601 (citing Untied States

v szlh 55 F 3d 157 159 (4th Cir 1995) (examples of bad faith include acceptance of a bribe



6 Phillip 58 V I at 599 (recognizing that a Court may deny a motion to dismiss without piejudice or grant dismissal
with prejudice where theie is evidence that the prosecutor acted in bad faith by harassing the defendant)
7 Gov I ofl 1 t Dza 

 (VI Super Ct 1998) (finding evidence of bad faith in the government 5
violation of a defendant 5 constitutional right to bail)
8 Stephens 

 at *5 (dismissing with prejudice upon finding that the People would gain an impioper
tactical advantage if allowed to refile and use evidence from a witness that would have been excluded at trial)
Peop1e v Allan E Stevens
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personal dislike of the victim or accuser, or dissatisfaction with the empaneled jury); Untied States

v S‘almas 

 (5th Cir 1982) (finding bad faith where the government dismissed

the case to obtain a better jury, a jury more to its liking ); Hoskzns v Marzcle, 150 S W 3d 1,

21 (K Y 2004) (indicating that wishing to attend a social event rather than trial would be bad

faith»; but see Rivera, 64 V I at 570 (declining to find bad faith in a ten year charging delay where

the defendant was arrested for first degree murder); Gov r of V] v szles 

 (D V I 2004) (finding no evidence of bad faith in the government 5 delay in turning over a

forensics report because it was unwilling or unable to coordinate with the police department in

retrieving the report form a condemned storage room)

1117    Importantly the Court cannot presume the existence of bad faith where the defendant fails

to provide evidence of it See Gallon ay, 

 at *2 (finding that the defendant

presented no evidence to suggest that the government acted in bad faith in seeking dismissal after

it was unable to produce at trial a witness whose testimony would be critical for prosecution)

People t Scatlsze No ST 15 CR 389 2016 V1 LEXIS 91 *5 (V 1 Super Ct July 13 2016)

(unpublished) (‘Nothing presented by [d]efendant establishes that the People             engaged in

selective prosecution[,]     pursu[ed] th[e] case in bad faith in a vindictive manner, or for other

improper purposes ) If the defendant fails to establish his burden the Court must grant the

People 5 motion to dismiss without prejudice so long as it is not contrary to the public interest

Phlllzp 58 V I at 599

1118    Stevens argues that this mattei should be dismissed with prejudice because the People have

acted in bad faith by harassing him with the threat of repeated prosecution and attempting to
People v Allan E Stevens
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tactically outmaneuver the rules of discovery to prejudice his case The People reject both

arguments as does the Court

1119    Under Phillip, evidence that the prosecutor is harassing the defendant may constitute an

act of bad faith See Phllllp, 

 However, harassment is not evidenced by a single

motion for dismissal In Phlllzp the Court also noted that     a singular dismissal, rather than a cycle

of repetitively dismissing and refiling the case         weighs against a finding that the dismissal

interfere[s] with the administration of justice or otherwise unduly harass[es] [the defendant] ’

thllzp 58 V I at 602 (citation omitted)

1120    In View of thllzp, the Court finds that a single request for dismissal is insufficient, on its

own, to demonstrate harassment by the prosecution Moreover, the Court finds that the People 5

grounds for dismissal which they argue is their inability to contact and confer with the Victim,

also weighs against finding that Stevens was harassed As such in light of Phillip, the People 8

alleged grounds for dismissal and the absence of any other evidence the Court finds that the

prosecution has not harassed the defendant

1121    Stevens also argues that the People have acted in bad faith by first delaying trial, and then

by attempting to gain a tactical advantage in future prosecution Stevens argues that he has been

prejudiced in the current matter by the delay in the People 3 disclosure and in their repeated

requests to continue and delay trial    To this point, Stevens argues that the government has a

constitutional duty to provide a prompt trial and that the People breached their duty by repeatedly

requesting continuances See Dickey v Florida 398 U S 30, 37 38 (1970) Stevens also argues

that the People are using dismissal as a means to refile the case and use the DNA evidence in a

later trial, since the DNA evidence would have been excluded had the matter proceeded to trial in
People v Allan E Stevens
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February 2020 Stevens argues that the People 5 attempt to outmaneuver the rules of discovery

demonstrates that they are attempting to gain an unfair tactical advantage   indicative of bad faith

He also argues that he will be prejudiced in the future if the People are permitted to refile and use

the DNA evidence in future prosecution As such, Stevens moves the Court to enter dismissal with

prejudice to ensure that the Court, its processes, and its rules regarding discovery are not abused

722     The Court agrees that the People have a constitutional duty to provide a prompt trial See

Dickey, 398 U S at 37 38 However, after reviewing the facts the Court does not find that the

People failed to fillle their duty Stevens was arrested on March 17, 2019 and the People moved

to dismiss on February 5, 2020 The Court finds no evidence that Stevens case was unfairly

delayed Rather, the Court finds that the People 5 use of continuances to gain more time to locate

and confer with the Victim constitutes good cause S'ee Lee v Kenna, 534 U S 362, 392 (2002)

(Where a witness is not available   a continuance may be appropriate if the movant makes certain

required representations demonstrating good cause to believe the continuance would make a real

difference to the case ) Therefore, the Court finds no evidence to demonstrate that the People’s

delays were made in bad faith or prejudiced the defendant See Rivera, 64 V I at 570 80;

Velasquez 

 Scallzfle 2016 VI LEXIS 91 *5

1123    The Court finds that Stevens has also failed to present evidence that demonstrates that the

People are acting in bad faith in requesting dismissal without prejudice The People have stated

that their motion to dismiss without prejudice is the result of their inability to locate and confer

with the Victim In a memorandum of law submitted in support of his motion, Stevens

acknowledges that he is aware that the People have been unable to locate the Victim Stevens states

that the People conveyed this information at the pre trial status conference on December 30, 2019
People v Allan E Stevens
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and directly to Stevens in a VIPD report dated February 7, 2020 Stevens does not present evidence

to challenge the People’s asserted grounds for dismissal, and therefore the Court finds that he has

not successfully rebutted the People 3 presumption of good faith See Galloway, 

, at *5 The Court accepts the People 5 representation that their grounds for dismissal is

an inability to locate and confer with the Victim Moreover, the Court finds no bad faith in the

People 3 request to dismiss the matter without prejudice

1124     However, the Court agrees that in granting a dismissal without prejudice the People may

have the opportunity to refile the case and use the DNA evidence at trial that would have been

barred had the matter gone to trial in February 2020 The Court finds that the People would gain a

tactical advantage that they would not have otherwise had had the matter proceeded to trial as

scheduled because, as the People concede the DNA evidence would have been excluded See

thllzps 58 V I at 601 (citations omitted) 9

fl25      The People 5 obligation to disclose material evidence that is favorable to the accused and

known by those acting on the government 3 behalf includes an obligation to timely disclose

evidence obtained by the police department See Brady v Maryland 373 U S 83 (1963); see also

Kyles v Whitley 514 U S 419 437 (1995) Stucklel \ Greene 527 U S 263 275 (1999) John

v People, 63 V I 629 642 (VI 2015) '0 In John v People the Vlrgm Islands Supreme Court

held that knowledge possessed by the Virgin Islands Police Department (VIPD) can be imputed to



9 Although the Couit did not xeduce its ruling to wtiting it did not find any extenuating ciicumstances necessary to
justify a continuance, and it had previously ruled no further continuances would be g1 anted unless 1’01 extenuating
ciicumstances
1° Even though this duty of disclosure is tightly tetheied to constitutional guaiantees of due process, the Constitution
is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the
defense Rather, the piosecution's failure to disclose evidence rises to the level of a due piocess violation “only if the
govemment's evidentiaiy suppression undeimines confidence in the outcome of the tiial Gov I of V I v Fahze 45
V I 475 481 (D V I 2004) (quoting Smith 1 Holt 210 F 3d 186 195 197 (3d Cir 2000))
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the Office of the Attorney General of the Virgin Islands such that the Court may presume that the

knowledge possessed by the police is also knowledge possessed by the prosecution John, 63 V I

at 642 Thus under John, the VIPD 3 actual knowledge is presumed knowledge possessed by the

prosecution Here, the Court finds that VIPD knew, by December 5, 2019 at the latest, that it had

collected and sent a DNA sample for testing because, according to the DNA report, the DNA

evidence was received by the lab on December 5 2019 ” Therefore, applying John, the Court

presumes that knowledge possessed by the VIPD was knowledge possessed by the prosecution,

and finds that the People were aware of the DNA evidence, by no later than December 5 2019

The Court rejects the People 5 claim that they only became aware of the DNA evidence on January

30 2020

1126    While the People a1 gue that the prosecutor did not know that the DNA evidence had been

sent to the lab for testing and the Court accepts that the mdn 1dual prosecutor did not have

personal knowledge of the DNA evidence, or personal knowledge that it was sent for testing, the

Court finds that the People of the Virgin Islands            did possess knowledge of the DNA evidence

prior to January 30, 2021, as VIPD certainly possessed that knowledge

1127    However absent evidence from Stevens that clearly demonstrates that the People acted

intentionally in failing to disclose the existence of DNA evidence for the purposes of prejudicing

his case, the Court cannot presume that the People 3 untimely disclosure was made in bad faith

See Ponce 72 V I at 838 (affirming the trial court 3 finding that the People did not act in bad faith

because the nondisclosure was not intentional, but rather was the result of sloppy work on the




“ It is uncleai if the DNA sample was taken from a weapon or othei evidence in the custody of VIPD, but certainly
VIPD knew it had shipped offa sample for testing as ofthe date of shipment This occuried me: the first continuance
People v Allan E Stevens
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Memorandum Opinion
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side of the prosecution ) Moreover the People have conceded that the DNA evidence would have

been excluded had the matter proceeded to trial and thus the Court finds that Stevens was not

prejudiced by the untimely disclosure See Ponce, 72 V I at 838 (finding that minimal prejudice

that is easily cured is insufficient to demonstrate bad faith) Therefore, the Court finds that Stevens

has failed to present evidence to clearly demonstrate that the People acted in bad faith in failing to

timely disclose the DNA evidence, but that the People would gain an unfair tactical advantage if

permitted to use untimely disclosed DNA evidence at a future trial ‘7 For these reasons, the Court

will grant dismissal without prejudice, but will also exclude the untimely disclosed DNA evidence

and direct that it not be use in a future trial




                                              IV CONCLUSION

1128     The Court finds that, under the Virgin Islands Supreme Court 5 analysis in Phillip, the

People s motion to dismiss without prejudice is not cleaily contrary to manifest public interest



’7 The Court distinguishes this case from its holding in People v Stephens No ST 2016 CR 177 

at *1 4 (V I Super Ct Jan 15 2020) on the facts In Stephens the People unilateially decided not to disclose the
identity of a witness until jun! selection Importantly, the defendant was facing a charge of fiist degree murdei which
carries no statute of limitations Thetefoxe the Conn found that if the matte: weie dismissed without prejudice the
People could refile the case against the defendant in the distant future and none of the original members of the court
would be available to call attention to the COUlt 5 order baning the witness from testifying at tiial In addition, the
identity of the witness nevei hax ing been disclosed not even the defendant could bring attention to the Court 3 Older
Even if the defendant in Stephens called attention to the Older, it would be difficult f01 anothei comm in the distant
future to enforce the order because the identity of the witness was nevei disclosed not even to the Court
Consequently, if the Court dismissed the matter without piejudice the People would have gained an improper tactical
advantage at a futme tiiaI The risk of piejudice to the defendant along with the Couit s finding of bad faith in the
People 3 nondisclosuie was the basis of the Court 3 dismissal with prejudice

Here, howevex Stevens has failed to piesent evidence to clearly demonstrate that the People acted intentionally in
failing to timely disclose the existence of DNA evidence and thus the Court cannot make a finding of bad faith Since
dismissal with prejudice should only be used in the rarest of circumstances, Phillip 58 V I at 600, absent a finding of
bad faith, the Court must grant dismissal without prejudice In addition, the chaiges pending against Stevens axe
subject to a thiee year statute of limitations
People v Allan E Stevens
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There is no evidence that the People intentionally failed to timely disclose the existence of DNA

evidence for the purposes of prejudicing Stevens case, and thus the Court cannot make a finding

of bad faith As such, the Court will grant the People 5 motion to dismiss without prejudice And

the Defendant s motion to dismiss with prejudice will be denied However, given that the People

would gain an unfair tactical advantage if permitted to use the untimely disclosed DNA evidence

at a later trial, the Court will direct that the People are barred from using DNA evidence at a future

trial

        An order consistent with this opinion will immediately follow


DATED March 2              2021                         éfflé’ ééj/fg :
                                                                Kathleen Mackay
                                                             Judge of the Superior Court
                                                                of the Virgin Islands

ATTEST
TAMARA CHARL S
Clelk t Court

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        Chef Deputy Clerk     3/        fix