IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX



THE PEOPLE OF THE VIRGIN ISLANDS



Plaintiff )



CASE NO. SX-11-CR-0000883



)



Vs.



)



ACTION FOR: 14 V.I.C. 2253



)



)



CHARLES SEALEY



Defendant )



NOTICE OF ENTRY OF



MEMORANDUM



OPINION AND ORDER



TO



TAMARA BERMUDEZ, CHIEF DEPUTY



ORDER BOOK, IT, LAW LIBRARY



LAW CLERKS OF THE SUPERIOR COURT



JUDGES AND MAGISTRATES OF THE SUPERIOR COURT



JOSEPH PONTEEN, ESQ



EMILE HENDERSON, ESQ



Please take notice that on September 15, 2014 a(n) MEMORANDUM



OPINION AND ORDER dated September 15, 2014 was entered by the Clerk in



the above-entitled matter



Dated: September 15, 2014



Estrella H. George



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ROXANNE SERRANO



COURT CLERK SUPERVISOR

SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX



PEOPLE OF THE VIRGIN ISLANDS, )

Plaintifr ) CASE NO. SX-11-CR-883

- )

i ) ATTEMPTED MURDER IN FIRST

CHARLES SEALEY, ) DEGREE, ETC.

Defendant. )



MEMORANDUM OPINION AND ORDER



THIS MATTER is before the Court on Defendant Charles Sealey’s Motion to Dismiss with

Prejudice (“Motion”), filed May 15, 2014. The People have not responded. For the reasons that follow,

Defendant’s Motion will be denied.



PROCEDURAL BACKGROUND



The People accuse Defendant, along with two co-defendants, of attempted murder: to wit,

shooting Selwyn Gonzales in the Salt River Bay area of St. Croix, Virgin Islands, on or about December

11, 2011. Defendant tendered an alibi defense, claiming that, when the shooting occurred, he was playing

cards with a number of other individuals and was nowhere near the crime scene. Motion, at 1. As

discovery ensued, Defendant learned that Arawak Inn, a nearby bed and breakfast resort, maintained a

surveillance video system which may have captured the area near the crime scene when the alleged crime

occurred. Motion, at 4. Defendant claims that the owners of the nearby bed and breakfast turned over

some video footage to the Virgin Islands Police Department (“V.I.P.D.”) and that the V.LP.D. retained

possession of said video. Jd.



Defendant served the People with discovery demands, including “...the demand for any video

recordings.” Jd. The People did not provide any video evidence. Defendant then served the People with

a specific request for the video evidence in question; the People did not respond. During a calendar call,

on April 16, 2014, the People indicated in open Court that the surveillance video in question “...had



been destroyed.” Jd.

People of the Virgin Islands v. Charles Sealey SX-11-CR-883

Memorandum Opinion and Order

Page 2 of 5



Defendant claims that the video in question would have definitively shown that Defendant was

not present at the crime scene when Selwyn Gonzales was shot. Defendant now moves to dismiss the

pending charges against Defendant, claiming that the People intentionally destroyed exculpatory

evidence.



DISCUSSION



Defendant argues that the People’s failure to preserve potentially exculpating evidence

constitutes a violation of Defendant’s due process rights pursuant to Brady v. Maryland, 373 U.S. 83

(1963), Kyles v. Whitely 514 U.S. 419 (1995), and Government of the Virgin Islands v. Pellulo 105 F.3d

117 (3d Cir. 1997). Motion, at 3. Defendant urges the Court to find that the People acted in bad faith by

either failing to preserve the video evidence or by actively destroying it in order to hinder Defendant

from obtaining exculpatory evidence. Id.



The Government (V.I.P.D. and the Attorney General’s Office) is obligated to “...preserve

evidence that may be expected to play a significant role in the suspect's defense.” Virgin Islands v. Yhan,

2010 WL 7746389, at *3 (V.I. Super. August 6, 2010)(citing California v. Trombetta, 467 U.S. 479, 488

(1984)(internal quotations omitted). In order to prevail on a due process claim, “a defendant must prove

that the government acted in bad faith when it failed to preserve the evidence.” U.S. v. Deaner, 1 F.3d

192, 200 (3d Cir.1993).



Courts in the Virgin Islands have held that, in order “to determine whether the government acted

in bad faith, the Court must consider whether the exculpatory value of the evidence was apparent at the

time it was lost or destroyed.” Virgin Islands v. Smith, 2011 WL 4703037, at * 2 (V.I. Super. March 23,

2011)(citing Arizona v. Youngblood, 488 U.S. 51, 56 n. 1 (1988) (“The presence or absence of bad faith

by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of



the exculpatory value of the evidence at the time it was lost or destroyed.”). However, it is not enough

People of the Virgin Islands v. Charles Sealey SX-11-CR-883

Memorandum Opinion and Order

Page 3 of 5



for a defendant to show that the police did not follow its normal procedures, or that the government was

negligent in its duty to preserve evidence. Smith, at *2 (citing Deaner, 1 F.3d at 200-01).



The Court in both Yahn and Smith ultimately found that “because the lost video may not have

been exculpatory, and because there is no evidence that the People believed the video was exculpatory

at the time the video was lost, the Court cannot find that the video was ‘constitutionally material to the

defense.’” Yahn, at *4 (citing Trombetta, 467 U.S. at 488 (‘To meet this standard of constitutional

materiality, evidence must both possess an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defense would be unable to obtain comparable evidence by

other reasonably available means.”)); Smith, at *2.



Additionally, both Yahn and Smith reaffirm that burden is on a defendant who seeks dismissal to

prove that the People acted in bad faith: “Importantly, the Defendants presented no evidence that the

police or the Attorney General's Office acted in bad faith in destroying the video. Therefore, the

Defendants' Due Process challenge must fail and the Court will deny their Motion to Dismiss.” Smith, at

*2 (citing Trombetta, 467 U.S. at 488).



The Court notes that Defendant may indeed be prejudiced as a result of the missing video. “Loss

or destruction of relevant evidence by the government not only raises general questions of the

fundamental fairness of a criminal trial, but may also deny a defendant the right to compulsory process.”

Virgin Islands v. Testamark, 15 V.1. 469, 476 (3d Cir. 1978). In this case by Order entered March 26,

2013, the Court ordered the People to disclose specific Kyles and Brady information (which would have

included the video in question). Therefore, the Court must examine if the People’s actions warrant the

ultimate sanction of dismissal.



In light of Defendant’s presentation of the facts in support of his Motion, the Court finds that



dismissal of the Information charging Defendant would constitute an excessive sanction. First, there is

People of the Virgin Islands v. Charles Sealey SX-11-CR-883

Memorandum Opinion and Order

Page 4 of 5



insufficient information to conclude that the lost video was exculpatory. While Defendant claims the

video will show he was not at the crime scene when the shooting occurred, Defendant has not presented

this Court with any information about what exactly the video would have shown (e.g. the area and the

time periods reflected in the lost video). Without evidence as to the contents of the video, it is impossible

to conclude, simply based on Defendant’s alibi defense, that the video would have revealed exculpatory

evidence.



Second, Defendant has not presented any evidence that the People believed the video was

exculpatory at the time the video was lost. See Yahn, at *4. In fact, there is no evidence that the People

even reviewed the video before it was lost. Without anything more in the record, the Court in unable to

conclude that the People knew the video would have had provided exculpatory value to Defendant.



Finally, the Court must examine whether the People acted in bad in destroying the video. See

Trombetta, 467 U.S. at 488. Without knowing more about the circumstances concerning the loss of the

video recording, it cannot be concluded that V.I.P.D. acted in bad faith.! The record lacks any direct

evidence affirmatively establishing that V.I.P.D. ever took possession of the video recording from the

owners of Arawak Inn.



Further, Defendant’s argument suggests that the video recording would prove a negative, i.e.

since his image is not captured in the video recording (and neither he nor the People can confirm that to

be the case), he must not have been at the scene. While video footage of the time and scene of the incident

that did not show an image of Defendant would assist his defense, it obviously does not prove his



innocence, as he may have been out of camera range.



' Defendant states in his Motion that “the People finally advised Defendant and the Court that the video had been destroyed”

at the April 16, 2014 calendar call. Motion, at 4. However, nothing in the Record of Proceedings or the Court’s file confirms

that the People informed the Court that the video recording has been destroyed. The Record of Proceedings does note that an

off-the-record discussion occurred at sidebar.

People of the Virgin Islands v. Charles Sealey SX-11-CR-883

Memorandum Opinion and Order

Page 5 of 5



Defendant’s claims also fails the test of logic. The People have charged three persons with

criminal acts arising from the incident. It would not be in the apparent best interests of the prosecution

to intentionally destroy a potentially probative crime-scene video recording because the image of one of

the Defendants was not shown, for the purpose of trying to enhance its ability to obtain a conviction

against one of the three co-defendants.



On the basis of the record, the Court is unable to find that Defendant has met his burden of

proving that the People acted in bad faith in failing to preserve the video.



CONCLUSION



This Court finds that dismissing the People’s case against Defendant would be an overly severe

sanction in comparison to the People’s failure to obtain and preserve a video recording that may have

contained evidence exculpatory to Defendant. There is insufficient information in the record to conclude

that the lost video contained exculpatory footage. Even if the contents of the video were exculpatory,

there is insufficient evidence to conclude that the People believed it to be exculpatory at the time the

video evidence was lost, or to otherwise conclude that the People acted in bad faith in “destroying” the

video.



The premises being considered, it is hereby



ORDERED that Defendant Charles Sealey’s a) to Dismiss with Prejudice is DENIED.



September / igs 2014



DOUGLAS A. BRADY

Judge of the Superior Court



ATTEST:

ESTRELLA SsEORGE