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

PEOPLE OF THE VIRGIN ISLANDS,
Case No. ST-16-CR-377

)
)
Plaintiff, )
vs. )
)
TRESON STEPHENS, )
)
Defendant. )
+i)

MEMORANDUM OPINION

{1 THIS MATTER is before the Court on Plaintiff People of the Virgin Island’s
(the “People”) Motion to Dismiss without Prejudice (“Motion to Dismiss”) filed on
March 22, 2019. The motion is fully briefed. For the reasons set forth herein, the
People’s Motion to Dismiss without prejudice will be denied to the extent they seek

dismissal without prejudice, as the matter will be dismissed with prejudice.

I. Facts
2 Defendant Treson Stephens is charged with first degree murder, 14 V.I.C. §§
921, 922(a)(1) and 14 V.LC. § 11(a), unauthorized use of a firearm during the
commission of a first degree murder, 23 V.LC. § 451(d), 23 V.I.C. § 451{e), 14 V.L.C. §
2253(a) and 14 V.I.C. § 11(a), first degree assault, 14 V.LC. § 295(1) and 14 VLC. §
11(a), unauthorized use of a firearm during the commission of a first degree assault,

23 V.I.C. § 451(d), 23 V.I.C. § 451(e), 14 V.LC. § 2253(a) and 14 V.I.C. § 11(a), two
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counts of third degree assault, 14 V.I.C. § 297(a)(2) and 14 V.LC. § 11(a), two counts
of unauthorized use of a firearm during the commission of a third degree assault, 23
V.1L.C. § 451(d), 23 V.I.C. § 451(e), 14 V.LC. § 2253(a) and 14 V.I.C. § 11(a), using a
deadly weapon, 14 V.I.C. § 621(2) and 14 V.I.C. § 11(a), and reckless endangerment
in the first degree, 14 V.I.C. § 625(a) and 14 V.LC. § 11(a), in the shooting death of
Shacoi Benjamin on October 19, 2014.!

q3 Stephens was arrested in Tennessee on November 18, 2016. He waived
extradition and was advised of his rights on December 12, 2016 and arraigned on
January 5, 2017. The original Scheduling Order scheduled jury selection for
November 13, 2017, but it was moved to October 23, 2017 after a judge reassignment.
The People sought and received multiple continuances, which included moving the
trial from January 2018 to May 2018 to September 2018 to November 2018.

44 The People’s sole witness that implicates Stephens’ participation in the murder
of Benjamin (“Witness #1”) has remained undisclosed during the duration of court
proceedings. Although Stephens requested the People identify Witness #1 beginning
February 6, 2017, the Court agreed with the People, in an order entered May 31,
2018, that the People have the privilege to withhold a witness’ name to protect the
witness. Therefore, to balance the People’s privilege and Stephens’ “ability to prepare
an adequate defense”, the Court ordered the People to disclose Witness #1’s identity

no later than seven calendar days before trial.

| Stephens had two co-defendants. Both co-defendants accepted plea offers prior to March 22, 2019.
Thus, Stephens was the only defendant still scheduled for trial.
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q5 As of March 18, 2019, jury selection was scheduled for Friday, March 22,
2019, with trial to begin on Monday, March 25, 2019. Therefore, the deadline for the
People to disclose the identity of Witness #1 was March 18, 2019. The People failed
to disclose the identity of Witness #1. The People also failed to move for any
extension of the deadline or otherwise request that the Court allow the People to
withhold the identity of the witness for longer. On the morning of March 21, 2019,
Stephens filed a motion to dismiss the case with prejudice, or in the alternative, to
exclude Witness #1 from testifying at trial since the People had not disclosed the
identity of Witness #1. During the Pretrial Conference on March 21, 2019, the
People orally requested that jury selection be continued to March 25, 2019, with
trial to start immediately after, and for Witness #1’s identity to be disclosed on
March 25, 2019 due to alleged threats directed at the witness. The Court granted
the People’s request for a continuance despite Stephens’ objections. Additionally,
the Court denied Stephens’ motion to dismiss with prejudice, finding that it was too
severe a sanction. However, the Court ruled that the appropriate sanction was to
bar Witness #1 from testifying at trial. After this ruling, the People filed a motion to
dismiss without prejudice. Stephens filed an opposition to the People’s Motion to
Dismiss without Prejudice, arguing that fundamental fairness dictates the matter

be dismissed with prejudice because otherwise the People would be rewarded for not
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abiding by the Court’s orders. The trial date was canceled, and the Court now

decides whether the case should be dismissed with or without prejudice.2

II. Legal Standard
96 In deciding whether the People’s Motion to Dismiss should be granted with or
without prejudice, the Court considers relevant portions of the Virgin Islands Rules
of Criminal Procedure, below, and case law.
V.I. R. CRIM. P. 48(a)
(a) By the Government. The government may file a dismissal or nolle prosequi

of an information. Such a dismissal is without prejudice unless otherwise

stated.

III. Discussion
{7 The issue before this Court is whether the People’s Motion to Dismiss should
be granted with or without prejudice. Although the default view is to dismiss without
prejudice motions initiated by the People, the dismissal power of the People is not
absolute. See Phillip v. People, 

 (V.I. 2013); People v. Sealey, Case
No. SX-11-CR-883, 

, at *1, *4 (V.I. Super. Ct. Sept. 15, 2014)

(unpublished).

2 Upon cancellation of the trial date, and in consideration of the People’s motion to dismiss, Stephens
was released from custody on an unsecured bond.
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{8 In Phillip v. People, the Supreme Court of the Virgin Islands discussed
circumstances that would make it appropriate to grant, with prejudice, a
government’s motion to dismiss:

Pursuant to [Federal Rules of Criminal Procedure 48(a)], the trial
court may deny a motion to dismiss, or may grant the dismissal but with
prejudice only, to protect a defendant from harassment by a prosecutor
acting in bad faith, to protect “the public interest in the fair
administration of criminal justice and ... to preserve the integrity of the
courts. ... [Consequently,] [a] court is generally required to grant a

prosecutor's Rule 48(a) motion to dismiss unless dismissal is ‘clearly

77

contrary to manifest public interest.

Phillip, 

 (alterations in original) (citations omitted) (quoting United
States v. Carrigan, 

 (10th Cir. 1985)). The court in Phillip also
stated that “the trial court should refuse to grant 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 criminal prosecution.” Id. at 599, 600
(citing In re Richards, 

 (8d Cir. 2000) (“[Flew 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” (quoting Newman v.
United States, 

 (D.C. Cir. 1967) (Burger, J.))).

99 According to the court in Phillip, there was “no indication that the People were
acting in bad faith, or were attempting to harass the defendant” because the People

“did not dismiss the case for altogether no reason, nor did they appear to gain any
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real tactical advantage that they would not have otherwise had if the court had been
able to reschedule the trial date.” 

 (citations omitted). The court explained
that it would “not presume bad faith” where “none [was] apparent from the record.”

 (first citing Rinaldi v. United States, 

 (1977); then citing United
States v. Jacobo-Zavala, 

 (8th Cir. 2001); and then citing United
States v. Salinas, 

 (5th Cir. 1982)).

410 The Court notes that Phillip was interpreted using FED. R. CRIM. P. 48(a), and
that this rule and V.I. R. CRIM. P. 48(a) are not identical. Specifically, FED. R. CRIM.
P. 48(a) states, in relevant part, “[t]he government may, with leave of court, dismiss
an indictment, information, or complaint,” while V.I. R. CRIM. P. 48(a) states, in
relevant part, “[t]he government may file a dismissal or nolle prosequi of an
information. Such a dismissal is without prejudice unless otherwise stated.”
However, the Court finds that the two rules are sufficiently similar so that Phillip
also applies to an analysis of V.I. R. CRIM. P. 48(a).

411 In the present case, the Court finds that a dismissal without prejudice would
provide the People with an improper tactical advantage to use and call the previously
barred Witness #1 if charges are refiled against Stephens. See Phillip, 

-
02; People v. Scatliffe, Case No. ST-15-CR-389, 

, at *4 (V_I. Super.
Ct. July 13, 2016) (unpublished). This advantage partly arises because there is no
statute of limitations for filing first degree murder charges in the Virgin Islands, see

V.I. CODE ANN. tit. 5, § 3541. Additionally, the People flagrantly violated the Court’s
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order setting a deadline for the release of Witness #1’s identity and only dismissed
the case after the Court barred Witness #1 from testifying at trial.

{12 The record shows that on September 12, 2018 the Court granted Stephens’
Motion To Compel The Government To Reveal The Deal, and ordered the People to
reveal to Stephens, a minimum of seven days before trial, the identity of any witness
the People planned to call at trial, along with the witness’ criminal history and any
pertinent plea agreement and benefits tendered to the witness and/or the witness’
family. Subsequently, on February 20, 2019, the Court denied the People’s motion to
continue the trial, which was scheduled for the three-week trial period beginning
March 11, 2019. Additionally, the Court ordered the People to notify the Court, by no
later than March 1, 2019, on whether the People were going to dismiss the case or
proceed to trial, and if the People intended to dismiss the case, to do so by March 1,
2019. On March 1, 2019, the People filed an informational motion notifying the Court
they intended to proceed with jury selection on March 25, 2019, which was the last
week of the jury period.

$13 Ultimately, the Court scheduled jury selection for March 22, 2019 and trial for
March 25, 2019. Therefore, the People had a duty to disclose the witness’ identity by
no later than March 18, 2019. However, the People did not disclose the identity of
Witness #1 by March 18, 2019. Neither did they submit a motion or request notifying
the Court of any impediments, nor ask that the identity of Witness #1 be withheld
until closer to trial due to threats. The People only addressed their failure to disclose

the identity of Witness #1 during the Pretrial Conference on March 21, 2019, after
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Stephens advised the Court he had not received the identify of Witness #1 and had
filed a motion to dismiss with prejudice, or in the alternative, to exclude Witness #1
from testifying. The People attempted to excuse their failure to disclose the identity
of Witness #1 by claiming that the witness was receiving increased threats. However,
the People offered no credible proof.2 By Order dated March 22, 2019, the Court
barred the People from calling Witness #1 during trial. That same day, the People
responded by filing a motion to dismiss the case without prejudice. The Court can
deduce no other reason for the People filing the Motion to Dismiss besides the
exclusion of Witness #1.4

{14 This move on the part of the People concerns the Court. If the People decide to
refile the case against Stephens sometime in the future, in 10 years for example, none
of the original members of the court, e.g., the judge, prosecutor or defense counsel,
may be available to call attention to the March 22, 2019 Order barring Witness #1
from testifying at trial due to the People’s failure to disclose the witness’ identity. If
this occurs, the only person who could argue that Witness #1 should not be allowed
to testify would be Stephens. Even if Stephens did remember to call attention to the

order, it would be difficult for the order to be enforced because the identify of Witness

3 The People proffered a copy of several text messages that contained no dates or times, nor the phone
numbers of the sender or receiver of the texts.

4 The People did ask that jury selection be moved from Friday, March 22, 2019 to Monday, March 25,
2019, the day trial was slated to start, with trial to begin immediately after. However, the People
stated this request was to protect the identify of Witness #1 until the start of trial, since the witness
had allegedly been receiving increased threats the week prior to the trial start date. The Court
reluctantly granted the request. Although jury selection was moved to March 25, 2019, the duty to
disclose the identity of Witness #1 had already lapsed and remained lapsed—even with the new start
date.
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#1 was never disclosed, not even to the Court. Consequently, if the Court dismisses
this matter without prejudice, it would permit the People to circumvent the order
requiring them to disclose the identity of Witness #1 seven days prior to trial and
allow them to refile the case and call Witness #1 at trial. Simply put, if the Court
were to dismiss this matter without prejudice, the People would gain an improper
tactical advantage at trial.

415 Thecourt in Phillip noted two reasons that likely led to the People filing a Rule
48(a) motion to dismiss: “[T]he attorney handling the case had resigned and... the
replacement attorney needed additional time to familiarize himself with the case,”
and subsequently, “the prosecuting attorney had a [scheduling conflict].” Phillip, 

. The People in Phillip filed continuances for these two reasons, but both
motions were denied. 

416 Asa final determining factor, the Phillip court found that “the public interest
weighs against dismissing a first-degree murder case... under these circumstances.”

.5 This Court does not have similar apprehension about dismissing the case
with prejudice. First, Witness #1 is the only witness that incriminates Stephens.
Second, plea deals had already been accepted by Stephens’ two co-defendants, one of
whom admitted to shooting Shacoi Benjamin. Third, the People chose to violate the

order setting a deadline for the disclosure of Witness #1’s identity. The Court is very

5 When addressing the public interest factor, the Phillip court discussed “the initial dismissal of the
prior case, and... subsequent refusal to dismiss the new case”, i.e., “a singular dismissal”; time and
costs associated with the initial dismissal; and speedy trial rights. Phillip, 

.
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conscious of the gravity of first-degree murder charges being dismissed with prejudice
but finds that dismissal with prejudice is appropriate in this case.

417 Besides Phillip, there are additional Virgin Islands cases that strengthen the
assertion that the government does not have an “unfettered and unreviewable” right
to have a case either dismissed without prejudice, or not dismissed at all. See
Seatliffe, 

, at *3; See also Sealey, 

, at *1, *4;
VL. v. Diaz, 

 (V.I. Super. Ct. 1998).

418 For instance, the court in People v. Scatliffe® stated that “[t]he determination
of whether to prosecute a criminal case and what charges to bring generally rests in
the prosecutor’s discretion. From a constitutional perspective, the prosecution’s
discretion is virtually unfettered and unreviewable.” Scatliffe, 

, at
*3. However, the court also quoted the rule in Phillip, and determined that the
defendant had not presented any evidence that “establish[ed] . . . the People ha[d]
engaged in selective prosecution”, were “pursuing thle] case in bad faith, in a
vindictive manner, or for other improper purposes,” nor “that the fair administration
of criminal justice or the integrity of the [c]ourt would be endangered by dismissal

without prejudice.” Jd. at *4.

6 In Scatliffe, “the People filed a [m]otion for [cJontinuance or in the [a]lternative for [a]dministrative
[djismissal with [s]tatute of [limitations [t]olled,” and “the [d]efendant . . . filed an [o]pposition to
[mJotion for [c]lontinuance and... [a] [mJotion to [d]ismiss with [p]rejudice.” Scatliffe, 2016 V.1.
LEXIS 91, at *2. Defendant claimed “the People were obligated to procure the presence of
fdjefendant for trial.” 

 After analysis, the Court granted the People’s motion to dismiss without
prejudice. 

.
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919 In People v. Sealey, the court noted that the “burden is on a defendant who
seeks dismissal [with prejudice] to prove that the People acted in bad faith.” Sealey,

, at *1. In VI. v. Diaz, the court stated that “although the
Government is willing to stipulate to a dismissal, without prejudice, it is well within
the [c]ourt’s authority to dismiss the action with prejudice where the Government is
found to have acted in bad faith.” Diaz, 

. The Diaz court ultimately found
that the government had vindictively violated the defendant’s due process rights and
dismissed the case with prejudice. 

420 The Court notes that there is Virgin Islands case law that states “[iJf a Brady
violation occurs prior to trial, a trial court has the discretion to grant a mistrial, a
short continuance or parse another avenue of relief other [emphasis added] than
dismissal.” People v. Ward, 

 (V.I. Super. Ct. 2009) (citations omitted)
(citing VI. vu. Fahie, 

 (D.V.I. App. Div. 2004), aff'd, 

 (3d Cir. 2005)). This rule derives from decisions in V.I. v. Fahie and Gov't of the
V.I. v. Ubiles. See Gov't of the V.I. v. Ubiles, 

 (D.V.L. App.
Div. 2004); Fahie, 

. However, the Court finds it
unnecessary to elaborate on or analyze these cases because such a stringent rule has
been impliedly dismissed by the V.I. Supreme Court in Phillip. See Phillip, 

. Additionally, Ward, Fahie and Ubiles discuss Brady and/or 16(d) discovery
violations, not a Rule 48(a) motion. See generally Ubiles, 

; Fehie,

; Ward, 

.
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{21 Although there is no firm finding of bad faith, the People certainly defied the
Court’s order and unilaterally decided not to disclose the identity of Witness #1 until
jury selection. The Court previously found that identifying a witness on the morning
of jury selection would not give Stephens sufficient time to investigate the witness
because defense counsel would be in jury selection and trial and unable to conduct
any meaningful investigation. To now allow the People to dismiss the case without
prejudice and possibly refile the case at some future date and call the very witness
they refused to timely identify, would allow the People to outmaneuver the Court.
While the People have great discretion to dismiss cases without prejudice, it is not
unfettered. In this rare instance, fundamental fairness dictates that the Court

dismiss with prejudice.?

VI. Conclusion
{22 In Phillip, the court stated that “[i]n a case with different facts — where the
record demonstrates that the People were acting in bad faith, or were attempting to
harass the defendant or gain some advantage, or where the record does not so clearly
demonstrate the strength of the public interest in the reviving of the case — we would
exercise our power and require a dismissal requested by the People to be with

prejudice.” Phillip, 

. In this case, the Court finds the People will gain an

? Had the People moved to dismiss on March 1, 2019, or even before March 18, 2019, such a motion
to dismiss without prejudice would likely have been granted.
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improper tactical advantage “that they would not [ ]otherwise [have]”, if the case is
dismissed without prejudice; that the record reflects this notion; and that the public
interest is not hindered by this decision. Phillip, 

; See also Scatliffe,

, at *4.

An Order consistent with this Memorandum Opinion will immediately follow.

I

DATED: January “5 , 2020 EA CZ Aefei CC oe
Kathleen Mackay .
Judge of the Superior Court
of the Virgin Islands

ORI BOYNES T¥SON
of Deputy Cle Lf By oa 019