IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX PEOPLE OF THE VIRGIN ISLANDS SX 2022 CR 00043 Plaintiff, vs TYLEY SMITH a k a ‘ TYLER SMITH , CITE AS 2022 VI SUPER 72 Defendant Appearances Amie M Simpson, Esq Virgin Islands Department of Justice St Croix, U S Virgin Islands For Plamtgff Ramiro Orozco, Esq Office of the Territorial Public Defender St Croix, U S Virgin Islands For Defendanl MEMORANDUM OPINION AND ORDER WILLOCKS, Judge 1] 1 THIS MATTER came before the Court on Defendant Tyley Smith a k a Tyler Smith s (heleinafter “Defendant”) motion to dismiss, filed on June 17, 2022 BACKGROUND '2 On February 18, 2022 the People of the Virgin Islands (hereinafter “People”) filed an information against Defendant for the events that allegedly took place on or about June 2, 2021 as set forth in the affidavit of police detective Raheem Benjamin dated February 18, 2022 Subsequently, on April 25, 2022, the People filed an amended information The amended information charged Defendant with the following counts Count I murder in the first degree Tyley Smith, acting with malice aforethought, did willfully, deliberately and with premeditated design, kill Nancy Nieves, by beating and strangling her in violation of Title 14 V I C § 922(a)(1) SIth v People ofthe V I SX 2022 CR 043 Memorandum Opinion and Order 2022 VI SUPER 72 Page 2 of 7 Count II murder in the first degree Tyley Smith, while in the perpetration or attempted perpetration of assault in the first degree and/or assault in the third degree, killed Nancy Nieves by beating and strangling her in violation of Title 14 V I C § 922(a)(2); Count III assault in the first degree Tyley Smith, with intent to commit murder, did assault Nancy Nieves, by beating and strangling her, in violation of Title 14 V I C § 295(1), and Count IV assault in the third degree Tyley Smith, did assault Nancy Nieves with premeditated design and by use of means calculated to inflict great bodily harm by strangling her in violation of Title 14 V I C § 297(a)(3) (Amended Information ) 1] 3 On June 17, 2022, Defendant filed a motion to dismiss pursuant to Rule 12(b)(3)(B)(ii) of the Virgin Islands Rules of Criminal Procedure The deadline for the People to file an opposition has since passedI and as of the date of this Memorandum Opinion and Order, the People has not filed an opposition in response On August 1, 2022, the parties appeared before the Court for oral arguments on the motion to dismiss STANDARD OF REVIEW f4 Rule 12(b)(3)(B) of the Virgin Islands Rules of Criminal Procedure allows a party to challenge the defect in the charging document such as “charging the same offense in more than one count (multiplicity) VI R CRIM P 12(b)(3)(B)(ii) Multiplicity occurs when an information charges a single crime in several different counts ” People ofthe V] v Colon, 60 V I 149, 158 (VI Super Ct 2014) “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not ”’ People ‘ According to the scheduling order entered on April 27, 2022, “[m]otions shall be filed within thirty (30) days of arraignment with oppositions due fifteen (l5) days thereafier, and replies due within seven (7) days of any opposition (Scheduling Order ) Smith v People ofthe V I SX 2022 CR 043 Memorandum Opinion and Order 2022 V1 SUPER 72 Page 3 of 7 v Verglle 50V1 127 I34 35 (VI Super Ct Nov 13 2008) (citing Blockburgerv UnitedStaIes 284U S 299 304 (1932)) 1] 5 Most cases involving the issue of multiplicity focus on whether a defendant has been punished in multiple ways for committing the same criminal act or offense in violation of Title 14 V 1 C § 1042 or the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution Id However, there are also cases involving the issue of multiplicity based on multiplicitous charges in an information or indictment, which raises other significant concerns 1d , 60 V I at 158 59 “In particular, a multiplicitous charge may leave a prejudicial impression on a jury at the commencement of trial that a defendant is alleged to have committed several crimes when, as a matter of law, he or she is only being accused of committing one crime ” Id , 60 V I at 159 When determining the appropriate remedy for multiplicitous charges in the information to wit, whether it is proper to leave the charges in place and exercise the appropriate remedy should the need arise at sentencing, or whether the Court should proactively dismiss or consolidate the charges” “[tlhis decision should be made on a case by case basis, considering such factors as judicial economy, risk of prejudice, the totality of the charges against the defendant, and the severity of those charges People ofthe V! v Prmgle 2021 VI LEXIS 74 1] 25 (V1 Super Ct Sept 22 2021) DISCUSSION 1! 6 In his motion Defendant argued that Count 11, Count 111 and Count 1V should be dismissed Defendant made the following assertions in support of his argument (i) “[B]y not dismissing Counts 2 4, pursuant to Rule 12(b)(3)(B)(ii) VI R CRIM P and in violation of 14 2 Title 14 V l C § 104 provides that [a]n act or omission which is made punishable in different ways by different provisions of this Code may be punished under any of such provisions, but in no case may it be punished under more than one‘ and “[a]n acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other Title 14 V l C § l04 Smuh v People ofthe V I SK 2022 CR 043 Memorandum Opinion and Order 2022 VI SUPER 72 Page 4 of 7 V I C §104 14 V I C §295(12) [sic] the Fifth Sixth and Fourteenth Amendments to the United State Constitution in that it would create a prejudicial impression on a jury at the commencement of trial [and] create a danger that the Defendant may receive more than one sentence for a single offense ” (Motion 1 2); (ii) ‘ A review of 14 V I C §295(12) [sic] clearly states that in a similar matter where a defendant was convicted of ‘second degree murder’ the subsequent convictions of first degree assault under 14 V I C §295(1) and third degree assault under 14 V I C §297(2) violated the Double Jeopardy Clause and 14 V I C §104 3 (Id , at 2); and (iii) “The, ‘ test for determining whether the same act or transaction constitutes two offenses or only one is whether conviction under each statutory provision requires proof of an additional fact which the other does not" [and] [t]he fact that the respective Count Two, Count Three and Count [sic] allege the same acts, on the same date, against the same victim, means that multiplicity has occurred ” (Id ) While Defendant’s argument to dismiss Count II, Count III, and Count IV in his motion were perfunctory and made without any analysis, only conclusory statements that they must be dismissed “pursuant to Rule 12(b)(3)(B)(ii) VI R CRIM P and in violation of 14 V I C §104 14 V I C §295(12) [sic], the Fifth, Sixth and Fourteenth Amendments to the United State Constitution, ’ Defendant expanded on his arguments at the August 1, 2022 hearing 11 7 At the August 1, 2022 hearing, the People opposed Defendant’s motion to dismiss After hearing Defendant’s arguments, the People agreed to withdraw Count III, assault in the first degree 32(l))lezfendant referenced Title 14 V I C § 295(l2) citing Williams v People ofthe Virgin Islands 56 VI 82 | (V I ‘ Degendant referenced United States v Buchanan, 485 F 3d at 278 & n 7, citing United States v Reedy, 304 F 3d 358 363 (51h Cir 2002) (quoting UnitedStates v Nguyen 28 F 3d 477 482 (5th Cir 1994) 5mm v People ofthe V I SX 2022 CR 043 Memorandum Opinion and Order 2022 Vi SUPER 72 Page 5 of7 1] 8 The Court will accept the People’s withdrawal of Count 111 and deny as moot Defendant’s motion to dismiss as to Count III The Court will discuss the remaining counts in turn 1 Count II 1,} 9 As noted above, Count 1 charged Defendant with the offense of murder in the first degree in violation of Title 14 V I C § 922(a)(1), which provides that “[a]|l murder which is perpetrated by means of poison, lying in wait torture, detonation of a bomb or by any other kind of willful, deliberate and premeditated killing” and Count II charged Defendant with the offense of murder in the first degree in violation of Title 14 V I C § 922(a)(2), which provides that ‘ [a]ll murder which is committed in the perpetration or attempt to perpetrate arson, burglary, kidnapping, rape, robbery or mayhem, assault in the first degree, assault in the second degree assault in the third degree and larceny ” In this instance, the People did not charge Defendant with two separate killings; instead, the People charged Defendant for the same conduct of killing Nancy Nieves in Count I and Count 11 As such, Count II is multiplicitous and redundant of Count I As such, the Court will grant Defendant’s motion as to Count II and dismiss Count II 2 Count IV 1] 10 As noted above, Count IV charged Defendant with the offense of assault in the third degree in violation of Title 14 V I C § 297(a)(3), which provides that “[w]hoever, under circumstances not amounting to an assault in the first or second degree assaults another with premeditated design and by use of means calculated to inflict great bodily harm” commits third degree assault Title 14 V I C § 297(a)(3) In Davis v People of the V] the Virgin Islands Supreme Court explained Both subsections 297(a) and 297(b) address assaults, and the elements of the crime of Third Degree Assault must be framed in terms of the definition provided in section 291 of title 14 Subsections (l) (4) of section 297 provide for, in addition to the elements as 8/19/2022 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix People of the Virgin Islands v. Case Number: SX-2022-CR-00043 Tyley D. Smith Charges: 14 V.I.C. 922(a) - Murder 1st Degree 14 V.I.C. 922(a) - Murder 1st Degree 14 V.I.C. 295(1) - Assault 1st. Degree With Intent To Commit Murder 14 V.I.C. 297(3) - Assaults W/Premeditated Design NOTICE of ENTRY of Memorandum Opinion and Order To: Amie Marie Simpson, Esq. Ramiro Orozco, Esq. Please take notice that on August 19, 2022 a(n) Memorandum Opinion and Order dated August 19, 2022 was/were entered by the Clerk in the above-titled matter. Dated: August 19, 2022 Tamara Charles Clerk of the Court By: Iris Cintron Court Clerk Supervisor