Alexander v. Government of the Virgin Islands

For Publication

IN THE SUPREME COURT OF THE VIRGIN ISLANDS

JENSEN KEN ALEXANDER ) S Ct Civ No 2021 0004
Appellant/Defendant ) Re Super Ct Misc No ST 2018 MC 0008]
) (3”)
v )
)
GOVERNMENT OF THE VIRGIN ISLANDS )
and WYNNIE TESTAMARK in her capacity as )
Director of the VIRGIN ISLANDS BUREAU
OF CORRECTIONS
Appellee/Plaintiff

On Appeal from the Superior Court of the Virgin Islands
Division of St Thomas & St John
Superior Court Judge Hon Denise Francois

Considered July 13 2021
Filed March 26 2024

Cite as 2024 VI 16

BEFORE RHYS S HODGE Chief Justice MARIA M CABRET Associate Justice and
IVE ARLINGTON SWAN Associate Justice

APPEARANCES
Jensen K Alexander
Big Stone Gap, Va
Pro Se

Michael R Francisco, Esq
Assistant Attorney General
St Thomas U S V]
Attorneyfor Respondent
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OPINION OF THE COURT

CABRET, Associate Justice

1} I Jensen Alexander (“Alexander”) appeals from the Superior Court’s November 23, 2020,

order which denied his petition for writ of habeas corpus For the reasons that follow, this Court

affirms the Superior Court’s order denying Alexander s petition, because the Superior Court

correctly ruled that Alexander’s right to a speedy trial was not violated

I FACTUAL AND PROCEDURAL BACKGROUND

1f 2 Alexander was arrested on October 14, 2009, for rape and murder, among other crimes

The People (“Prosecution”) filed charges against Alexander in the Superior Court the following

day At his arraignment on October 22, 2009, Alexander pled not guilty and requested a trial by

jury He did not request a speedy trial

1] 3 The initial judge in the case recused herself on November 3, 2009 The case was reassigned

to a second judge, who also recused himself The Superior Court then assigned Judge Michael

Dunston to the case on November 23, 2009 On November 25, 2009, Judge Dunston scheduled a

pretrial conference for Januaxy 11, 2010, with jury selection to begin on February 16, 2010

1] 4 On January 7, 2010, Alexander’s codefendant, Katanio Peets (“Peets”), filed a motion and

memorandum of law opposing the joinder of his case and Alexander’s case for trial The following

day, Alexander filed a motion for leave to hire an investigator

1| 5 The Superior Court held a pretrial conference as scheduled on January 11, 2010 During

the hearing, the Superior Court asked the parties whether they were ready for jury selection on

February 16, 2010 The Prosecution informed the Superior Court that it was not ready for trial
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because DNA testing being conducted by the FBI was not completed In addition, the Prosecution

stated that it needed time to respond to Peets’s recently filed motion to sever The Superior Court

then scheduled a second pretrial conference for March 15, 2010, and scheduled jury selection for

April 12, 2010 The Prosecution filed a motion opposing Peets’ motion to sever on January 14,

2010 Then, on January 26, 2010, Alexander filed a motion to modify the conditions of his bail

1| 6 On January 29, 2010, the Superior Court denied without prejudice Alexander’s motion for

leave to hire an investigator The Superior Court denied Peets’ motion to sever on February 19,

2010 On March 15, 2010, the Superior Court held its second scheduled pretrial conference, where

it granted Alexander’s motion to hire an investigator During the conference, the Prosecution

informed the Superior Court that it was still waiting for the DNA analysis test results from the FBI

but expected to receive the test results by May 2010 Four days later, on March 19, 2010, the

Superior Court scheduled a third pretrial conference for May 10, 2010, jury selection for June 7,

2010 and trial to begin during the week of June 14 18 2010

f7 On April 6, 2010, Alexander filed a motion for modification of the conditions of pretrial

release On April 13, 2010, the Superior Court ordered the Prosecution to respond to Alexander’s

motion no later than Apri120, 2010 At the third pretrial conference, held as scheduled on May 10,

2010, the Prosecution informed the Superior Court that the FBI wanted to perform additional

testing which would not be completed until mid July 2010 The attorneys for Peets and Alexander

indicated to the Superior Court they would require additional time to allow their own experts to

examine any forensic reports produced by the FBI A fourth pretrial conference was then set for

August 30 2010 with jury selection to begin September 27 2010
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'8 The August 30, 2010, pretrial conference was canceled due to Hurricane Earl, and

rescheduled for September 8, 2010 The Superior Court, at the September 8, 2010, conference,

granted Alexander’s motion for modification of his conditions of pretrial release

T. 9 On September 14, 2010, the Prosecution filed a motion to continue jury selection and trial

due to the unavailability of the territory’s medical examiner On September 20, 2010, the Superior

Court scheduled a fifth pretrial conference for February 28, 2011, and rescheduled jury selection

from September 27 2010 to March 14 2011

‘1] 10 On February 24, 2011, Alexander’s counsel filed a motion for discovery At the February

28, 2011, pretrial conference the Superior Court ordered discovery to be completed by March 7,

2011 so that jury selection could begin on March 14, 2011 Trial was scheduled for March 28 30,

201 1 On March 2, 201 1, Alexander filed a pro se motion to change counsel, alleging a breakdown

in communication On March 14, the Superior Court conducted the jury vozr dire On that day,

Alexander’s counsel filed a motion to continue the jury selection and the trial ' The Superior Court

denied Alexander’s motion for new counsel without prejudice and kept the trial scheduled for

March 28, 2011 Nevertheless, on March 18, 2011, Alexander filed a motion to hire a forensic

pathologist On March 23, 2011, the Superior Court granted Alexander s motion and discharged

the jury selected on March 14 2011 The Superior Court then set its sixth pretrial conference for

May 2 2011 with jury selection scheduled for July 5 2011

fi 11 Alexander filed a motion for additional discovery on April 26, 2011 The Superior Court,

on May 16, 2011, reaffirmed that jury selection would begin on July 5, 2011, with trial

1 The reason for this filing is not noted in the record
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commencing the following day But on June 23, 201 1, Alexander filed another motion to continue

On July 1, 2011, the Superior Court, in response to Alexander’s motion, continued jury selection

to August 29, 2011, and set its seventh pretrial conference for August 5, 201 1 On August 3, 201 1,

two days before the pretrial conference, Alexander filed a motion in limine to exclude Peets’

testimony and outstanding discovery At the pretrial conference on August 5, 201 l, the Prosecution

indicated it would need time to respond to the motion in limine The Prosecution also noted it was

still waiting for DNA evidence from the FBI The Superior Court then continued jury selection to

October 24, 2011, citing its concern that neither side was fully ready for trial, and set the eighth

pretrial conference for October 5, 2011 The Superior Court received the Prosecution’s response

to Alexander’s motion in limine on August 29, 201 1, and Alexander’s reply on September 7, 201 1

1] 12 At the October 5, 2011, pretrial conference, Alexander filed a motion to dismiss under the

federal Speedy Trial Act 18 U S C § 3161 On October 19 2011 the Superior Court denied

Alexander’s motion to dismiss and the motion in limine The Superior Court, at the same

conference, granted the Prosecution’s request for a continuance The Superior Court required all

DNA evidence to be obtained from the FBI by October 28, 2011 The Superior Court continued

jury selection to January 23, 2012,2 and set a pretrial conference for December 5, 201 l The pretrial

conference and jury selection both took place as scheduled Alexander’s case was tried from

January 30 to February 3, 2012 Alexander was found guilty of First Degree Murder, First Degree

Aggravated Rape, First Degree Assault, and Carrying or Using a Dangerous Weapon During the

Commission or Attempted Commission of a Crime of Violence Rape He was sentenced to life

2 Jury selection was originally set for January 9 2012, but was rescheduled for unknown reasons
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in prison without the possibility of parole This Court affinned Alexander’s convictions in

Alexander v People 60VI 486 (VI 2014)

1] 13 On November 21, 2018, Alexander filed a petition for writ of habeas corpus in the Superior

Court, alleging a violation of his speedy trial rights 5 V I C § 1301 The Superior Court reviewed

and granted the writ on June 26 2020 See Blyden v Gov (ofthe VI 64 V I 367 375 (V I 2016)

(5 V I C § 1304 directs the Superior Court “to grant the writ without delay, if it appears that the

writ ought to issue ”) The Superior Court required the Prosecution to file a retum, which responds

to the allegations in the petition for habeas corpus and becomes the principal pleadings in the

proceedings; then required Alexander to file a traverse, which equates to an answer of the

Prosecution sreturn 5 V I C § 1308 Rivera Moreno v Govtofthe VI 61 V I 279 312 13 (V I

2014), V I H C R 2(e) (t) Generally, “the Virgin Islands habeas corpus statutes require that

the Superior Court hold an evidentiary hearing after it has concluded that a petitioner has

established a prima facie case for relief and the respondent has filed a return ” Rivera Moreno, 61

V I at 314 (citing 5 V I C § 1311) see also V I H C R 2(d) However the Superior Court denied

Alexander an evidentiary hearing without prejudice as it did not find a hearing necessary In the

Virgin Islands, “the right to an evidentiary hearing is not absolute” and holding an evidentiary

proceeding “is not necessary if the submissions before the Court reveal no factual disputes that

are material to disposition of the issues raised in the petition, and the court makes a written finding

to that effect Cascen v Gov (ofthe VI 74 VI 512 517 (VI 2022) On November 23 2020

the Superior Court denied habeas corpus relief by memorandum opinion and order and closed the

case without an evidentiary hearing, after determining that Alexander failed to show that he was

prejudiced by the delays in holding his trial The Superior Court further found that “the reasons
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for the delay weigh against Petitioner and Petitioner not only did not make a showing that he

was prejudiced in any way by the delay[s], but in fact may have benefitted from [the delays] ”

Alexander v People Super Ct Crim No ST 2018 MC 00081 2020 VI Super 97U at 8 (VI

Super Ct Nov 23, 2020) (unpublished) Alexander timely filed his notice of appeal on December

17 2020

[I JURISDICTION AND STANDARD OF REVIEW

1] 14 This Court hasjurisdiction over Alexander's appeal pursuant to title 4, § 32(a) of the Virgin

Islands Code, which provides, in pertinent part, that “[t]he Supreme Court shall have jurisdiction

over all appeals arising from final judgments, final decrees or final orders of the Superior Court,

or as otherwise provided by law ” “An order denying a petition for a writ of habeas corpus is a

final order from which an appeal may lie ” Rivera Moreno, 61 V I at 292 (quoting Suarez v

Gov t ofthe VI 56 V I 754 758 (V I 2012)) Because the Superior Court 3 November 23 2020

memorandum opinion and order denied Alexander’s habeas corpus petition, this Court possesses

jurisdiction over this appeal See szera Moreno, 61 V I at 293

11 15 This Court exercises plenary review over the dismissal of a habeas corpus petition Id

(citing Mendez v Gov? ofthe VI 56 V I 194 199 (V I 2012)) We engage in plenary review of

‘all constitutional questions of law ’” Francls v People, 63 V I 724, 733 (V I 2015) (citing Carry

v People 56 V I 345 354 (V I 2012)) This Court reviews the factors implicated in an alleged

Sixth Amendment speedy trial violation de novo, and we review the Superior Court 3 findings of

fact for clear error Franczs, 63 V I at 746
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11] DISCUSSION

1| 16 On appeal, Alexander argues the Superior Court erred when it denied his petition for habeas

corpus The Superior Court denied the petition because it found that (l) Alexander’s arguments

regarding the Speedy Trial Act, 18 U S C § 3161, failed because the statute is inapplicable to the

Virgin Islands, and (2) Alexander’s detention did not violate his Sixth Amendment rights under

the Barker factors

1| 17 As a preliminary matter, “[t]he Virgin Islands Legislature has not adopted the federal

Speedy Trial Act and there is no speedy trial plan in place in the local court system ” Francis, 63

V I at 745 46 For this reason the Speedy Trial Act only applies in federal courts of the Virgin

Islands, and “criminal defendants appearing before the Superior Court have a right to a speedy

trial only under the Sixth Amendment ” Therefore, this Court will summarily dispose of

Alexander’s federal Speedy Trial Act arguments See United States v Ward, 211 F 3d 356, 360

(7th Cir 2000) (“The Sixth Amendment right to a speedy trial is similar to, but separate from, the

right created by the Speedy Trial Act ) (citing United States v Koller 956 F 2d 1408 1413 (7th

Cir 1992)) Thus, the focus of this appeal is upon whether Alexander’s right to a speedy trial under

the Sixth Amendment was violated

A Sixth Amendment Rights to Speedy Trial

11 18 The Sixth Amendment of the United States Constitution mandates that in all criminal

prosecutions, “the accused shall enjoy the right to a speedy and public trial ” U S Const amend

VI In the Virgin Islands, a defendant’s Sixth Amendment right to a speedy trial is applicable

through § 3 of the Revised Organic Act Carty 56 V I at 364 The right to a Speedy trial protects
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“the rights of the defendant which may be hampered by undue and oppressive incarceration prior

to trial, anxiety and concern accompanying public accusation, and the possibility that a long delay

will impair the ability of an accused to present a defense ” Id at 361 (citing Klopfer v North

Carolina 386 U S 213 221 22 (1967)) We apply a four factor balancing test to determine

whether there is a violation of the Sixth Amendment right to a speedy trial “(1) the length of the

delay; (2) the reason for the delay, (3) the defendant's assertion of his rights, and (4) and prejudice

to the defendant ” Franczs, 63 V I at 746 (citing Carry 56 V I at 364); see Barker v ngo, 407

U S 514, 530 (1972) On appeal, we analyze each of these factors de novo but review the Superior

Court's findings of fact only for clear error Franny, 63 V I at 746 (citing Farrmgton v People

55 V I 644 649 (V I 2011)) Prejudice to the defendant is the most important of these factors

Brown v People 55 VI 496 503 (V I 2011) (citing Doggelt v Umted States 505 U S 647 657

(1992))

' 19 Because the time between Alexander’s arrest and trial was approximately 27 months, the

Superior Court found this length of delay to be presumptively prej udicial The Superior Court then

identified each delay and determined to which party each delay should be attributed Of the 11

delays outlined by the court, two were attributed to the court, three were attributed to the

Prosecution, and six were attributed to Alexander Finding that none of the delays attributed to the

Prosecution were deliberate attempts to delay the trial, the Superior Court concluded that the

second Barker factor weighed against Alexander The Superior Court did find that the third factor

weighed in favor of Alexander because he filed a motion to dismiss on speedy trial grounds

However, the Superior Court also concluded that Alexander did not prove that he was prejudiced

by the delays Accordingly, the Superior Court held that Alexander was not entitled to the habeas
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relief he was seeking and denied his petition Because we engage in de novo review of the Superior

Court's application of facts to the law, we now conduct our own Barker analysis See Carry, 56

V I at 364

1 Length of Delay

1| 20 The first step in this Coun’s review ofthe Superior Court’s ruling is to determine the length

of the delay The length of delay is measured “from the earlier period of the date of an arrest or

the filing of an [information, or complaint],” until the start of trial See Carly, 56 V I at 365 This

factor acts as a threshold in the Sixth Amendment inquiry because “there must be a delay long

enough to be presumptively prejudicial United States v Loud Hawk 474 U S 302 314 (1986)

(quoting Barker, 407 U S at 530) The longer the delay, the more “presumptively prejudicial” to

the rights of a defendant, and the more that weighs in favor of examining the remaining three

Barker factors Doggett 505 U S at 651 52' szera v People 64 V I 540 582 (V I 2016) In

Carry, this Court recognized that a delay of over twelve months is ‘presumed to be sufficiently

prejudicial to require evaluation of the three remaining factors ” Franczs, 63 V I at 748 (quoting

Carly 56 V I at 365)

1| 21 In this case, Alexander was arrested on October 14, 2009 and his trial began on January

30 2012 a delay of approximately 838 days or 27 5 months The length of delay exceeds the

length of delay that this Court found to be "presumptively prejudicial" in Carty and is therefore

sufficient to trigger an analysis of the three remaining Barker factors Carry, 56 V I at 365; see

also Dagger! 505 U S at 652 & n 1 (post accusation delay is presumptively prejudicial as it

approaches one year) Franczs 63 V I at 748 (an approximately 15 month delay required

examination of remaining Barker factors)
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2 Reason for the Delay

11 22 Now that we have determined that the delay is sufficiently lengthy to trigger a speedy trial

analysis, we must determine which party is “responsible for [the] delay[s] and why [because]

‘the reason for the delay impacts the weight given a particular delay ”’ Franczs, 63 VI at 748

(quoting Doggett, 505 U S at 657) Delays attributed to the Prosecution weigh in favor of

Alexander’s speedy trial claim, while delays attributed to Alexander, do not szera, 64 V I at 582

(citing Francxs, 63 V I at 748) However, as explained by the Supreme Court in Barker, different

reasons for the delay must be weighed differently Barker, 407 U S at 531 In our evaluation,

deliberate attempts by the Prosecution to delay the trial in order to hamper the defense weigh

heavily against the Prosecution Rodriguez, 71 V I at 596 (citing Loud Hawk, 474 U S at 315)

But neutral reasons such as negligence or overcrowded courts weigh less heavily against the

Prosecution, and a valid reason, such as tracking down a missing witness, need not be given any

weight at all 1d Of course, the Prosecution bears the burden of justifying the delays Rodriguez,

71 VI at 596

‘ 23 The trial court record in this case includes 18 pages of docket entries and demonstrates that

the Superior Court held at least 9 pretrial conferences and granted numerous continuances “We

must therefore review the procedural history of this case in detail to understand the nature and

context of each continuance ” See Carry, 56 V I at 361—64 (analyzing the “protracted procedural

history’ of the case) The Superior Court identified 11 individual delays and we analyze each

below Where there are multiple delays, caused by both parties or the Superior Court itself, this

Court will list the delays and assign weight to each accordingly See Franas, 63 V I at 748
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1] 24 The first delay was 22 days long and occurred here because two judges had to recuse

themselves from the case 3 Considering that a judge must recuse himself when it is made to appear

probable that a fair and impartial trial could not be had due to bias and prejudice, 4 V I C § 284,

“Disqualifications of judge”, In re M R , 64 V I 333 (V I 2016), and that “[t]he touchstone of

recusal is the integrity of the judiciary,” United States v Antar, 53 F 3d 568, 573 n 7 (3d Cir

1995) (overruled on other grounds), we agree with the Superior Court that this minor

administrative delay should not be given any weight at all in the Coun’s assessment Rodriguez,

71 V I at 596 (citing Loud Hawk 474 U S at 315' Barker 407 U S at 531' United States v Frye

489 F 3d 201, 210 (5th Cir 2007)) The recusals were calculated to ensure a fair and impartial trial

and are valid reasons for a delay by the Superior Court Cf Keller v State, 84 P 3d 1010, 1012

(Alaska Ct App 2004) (three judges’ sua sponte recusals did not weigh in favor of defendant

under their state speedy trial rule )

T. 25 The second delay was 55 days Jury selection and trial were originally scheduled for

February 16, 2010 On January 7, 2010, Alexander’s co defendant filed a motion to sever their

cases and, on that same day, Alexander filed a motion for leave to hire an investigator At a

preliminary hearing on January 1 l, 2010, the Prosecution informed the Superior Court that it was

not ready for trial as it was awaiting the results of DNA testing by the FBI, and that the DNA

results would be ready by April 2010 Alexander’s attorney also informed the court that the defense

was still awaiting discovery from the Prosecution The court then rescheduled jury selection to

April 12, 2010, and directed the Prosecution to inform the FBI of the jury selection date Despite

3 From October 26, 2009, when the jury trial division received the case until November 23 2009, two judges
recused themselves from the case before Judge Dunstan received it
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the motions filed by Alexander and Peets, it appears that the court rescheduled jury selection to

accommodate the Prosecution’s anticipated date for receiving the DNA testing results, as

evidenced by the court’s instruction that the Prosecution inform the FBI of the upcoming trial date

We agree with the Superior Court that this delay can be attributed to the Prosecution, however, it

only weighs slightly in favor of Alexander See Taylor v State 162 So 3d 780 785 (Miss 2015)

(“[D]elay due to wait for DNA evidence from FBI crime lab ‘weigh[ed] very slightly, if at all, in

favor of the defendant (quoting Gray v State 728 So 2d 36 48 (Miss 1998))

'5 26 The third delay was 63 days At the March 15, 2010, pretrial conference the Prosecution

informed the Court that it had received the fingerprint and hair analysis from the FBI but was still

waiting for the DNA analysis and did not expect to receive those results until May 2010 On the

same day, Alexander filed a renewed motion for leave to hire an investigator, which the Superior

Court granted on April 19, 2020 Considering both the Prosecution’s need for more time to secure

the DNA evidence and Alexander’s need for time to allow his investigator to investigate, the

Superior Court judge rescheduled jury selection and trial for June 7, 2010, and June 14, 2010,

respectively We disagree with the Superior Court’s conclusion that this delay should be attributed

to Alexander and instead find that “this delay should not be attributed to either party, as neither

was prepared to move forward with trial ” Francis, 63 V I at 749

1! 27 The fourth delay was 112 days At the pretrial conference on May 10 2010 the Court

rescheduled jury selection for September 27 2010 The Prosecution informed the court that the

FBI found some unidentified hairs that they wished to process but that testing would not be

complete until mid July 2010 Alexander s co defendant orally renewed his motion for bail, and

the Prosecution stated that it had no objection Alexander s attorney made a motion to modify the
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conditions of his release by requesting the use of Alexander’s bail monies to fund his electronic

monitoring fees and was instructed to file a written motion The Superior Court attributed this

delay to Alexander, but we disagree Considering that the Prosecution informed the court that it

did not object to the co defendant's bail motion and Alexander never actually filed a motion, this

delay is solely attributable to the Prosecution and its still outstanding DNA evidence from the FBI

This weighs slightly in favor of Alexander

Ti 28 The fifth delay was 168 days On September 1 2010 the scheduled August 30 2010

pretrial conference was rescheduled to September 8, 2010, to accommodate court closures due to

Hurricane Earl On September 8, 2010, the Superior Court granted Alexander’s pre trial release

For Sixth Amendment speedy trial purposes, delay due to a hurricane or other natural disaster in

the Virgin Islands is not attributable to the defense, nor the Prosecution, nor the court See State v

Thomas 54 So 3d 1 27 28 (La Ct App 2010) (Under the second Barker factor the delay caused

by [hurricane] Katrina is not attributable to the defense or to the State ”)' Ussery v State, 596

S W 3d 277, 286 (Tex Crim App 2019), petition for discretionary review refused (Mar 25,

2020) cert denied 141 S Ct 915 (2020) (additional delay following damage caused by Hurricane

Harvey was “[a] valid delay that should not weigh against the State at all ”) (quoting State v We:

447 S W 3d 549 554 (Tex Crim App 2014))

1] 29 On September 14, 2010, the Prosecution filed a motion to continue because its witness, the

medical examiner, was on leave and would not return until after Jan 1, 2011 The Court granted

the Prosecution’s continuance and rescheduled jury selection for March 14, 2011 We agree with

the Superior Court that this 5 5 month delay was caused by the Prosecution's inability to secure its

own witness and must therefore be attributed to it See People v Blash, 2019 WL 856307, at *4
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(V I Super Ct 2019) (placing responsibility for delay on the prosecution when medical examiner

unavailable) Brannen v State 553 S E 2d 813 814 15 (Ga 200]) (delays due to the unavailability

of the state’s medical examiners attributable to the Prosecution), but see Bowling v State, 673

S E 2d 194, 197 (Ga 2009) (continuance due to “the deployment of one of the State's key witnesses

to Iraq in 2007 ’ found to be of “neutral” weight) But in assigning weight to this delay, we “note

the absence of any deliberate attempt on the part of the [Prosecution] ‘to delay the trial in order to

hamper the defense ’” Brannen, 553 S E 2d at 814 (quoting Barker, 407 U S at 531), accord

Rodrzguez, 71 V I at 596 Although a 5 5 month delay may be significant, we must also analyze

the reasons the Prosecution gives for the delay See Brannen, 553 S E 2d at 814 (citing Barker,

407 U S at 53]) A deliberate attempt to hamper the defendant should weigh heavily against the

Prosecution Id However, where the Prosecution has a valid reason for the delay, the weight placed

on the delay is reduced See id Here, the unavailability of the Prosecution’s medical examiner was

the cause of the delay, and this was a valid reason Therefore, this delay weighs against the

Prosecution, but only slightly, as there is no evidence the Prosecution was negligent and no

evidence of any deliberate attempt by the Prosecution to delay the trial in order to hamper the

defense Id at 815 (quoting Barker 407 U S at 531)

‘ 30 The Superior Court incorrectly identified the sixth delay On March 2, 201 1, 10 days before

the start of trial, Alexander filed a pro se motion for new counsel and on March 14 2011, the day

scheduled for jury selection, Alexander filed a motion to continue jury selection and trial Jury

selection went forward as scheduled and was followed by a hearing during which the Superior

Court denied Alexander’s motion for new counsel The Superior Court considered that

adjournment period until March 28, 2011 a delay However on February 28, 2011, the Superior
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Court had previously established March 28, 2011 as the date the trial was to begin 4 Therefore,

there was no delay and neither party should be held responsible

‘ 31 The seventh delay identified by the Superior Court was 99 days On March 18, 2011,

Alexander filed an ex parte motion to hire a forensic pathologist in which he indicated that he

would not be prepared for trial until at least April The Superior Court granted Alexander's motion

on March 23, 201 1, discharged the jury that had been selected on March 14, 201 1, and rescheduled

the trial for July 5, 2011 We agree that this delay is attributable to Alexander and does not weigh

in his favor

i. 32 The eighth delay was 55 days On June 23, 201 1, Alexander filed a motion for continuance,

which was granted on July 1, 2011, and resulted in the courts rescheduling of jury selection to

August 29, 2011 This delay is again attributable to Alexander and does not weigh in his favor 5

1| 33 The ninth delay was 56 days On August 3, 2011, Alexander filed a motion in limine At

the August 5, 201 l, pretrial conference the Prosecution indicated that it would need time to respond

to Alexander’s motion and that it was not ready for trial as it was still waiting on DNA evidence

from the FBI Alexander indicated that if the motion in limine was granted he would be ready for

trial, but that he would not be ready if the motion was denied The court then rescheduled jury

selection for October 24 2011 The Superior Court concluded that this delay should not be

4 The Superior Court mentions the February 23 201 1, motion for discovery as contributing to the “delay” However,
that motion was heard and decided on February 28, 201 l and the court set the dates going forward with jury
selection on the previously decided March 14, 201 1, date
5 On April 26, 201 1 Alexander filed a motion for additional discovery At the pretrial conference on May 16, 2001,
the court ordered that the matter would remain scheduled for jury selection on July 5, 201 l, with trial to begin on
July 6, 201 l The Superior Coutt included this motion in its delay analysis but it seemingly did not affect the date of
the trial
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attributed to either party, as neither was prepared to move forward with trial We disagree

Alexander could not properly assess his readiness for trial or determine what verification was

needed without the long awaited FBI testing results Any lack of readiness on the part of Alexander

was attributable to the Prosecution’s inability to obtain its FBI results Therefore, this delay is

solely attributable to the Prosecution and its still outstanding DNA evidence from the FBI, and it

weighs slightly in favor of the defendant See Gray v State 728 So 2d 36 48 (Miss 1998) (delay

due to waiting for FBI crime lab backlog “weigh[ed] very slightly, if at all, in favor of the

defendant )(citing Hull v State 687 So 2d 708 730 (Miss 1996))

1} 34 The tenth delay was 77 days On October 5, 2011, Alexander filed a motion to dismiss

claiming a violation of his right to a speedy trial At the pretrial conference on the same day, the

Superior Court ruled on this motion to dismiss and Alexander’s pending motion in limine

requesting a full briefing regarding outstanding discovery matters mainly the DNA test results

The court then rescheduled jury selection to January 9, 2012, and gave strict instructions to the

Prosecution to obtain all necessary DNA material by October 28, 201 l The Superior Court had to

again postpone the trial because the Prosecution still did not have the DNA evidence back from

the FBI, so this delay must be attributed to the Prosecution Although a delay caused by outstanding

DNA results is generally weighed only slightly, see Taylor, 162 So 3d at 785, “‘the weight we

assign to official negligence compounds over time [t]hus, our toleration of such negligence

varies inversely with its protractedness ”’ Brannen, 553 S E 2d at 817 (quoting Doggett, 505 U S

at 657) The Prosecution's inability to secure the DNA analysis necessary for trial contributed in

some part to five delays over 2 years So in this instance, “the reason for the delay is [] weighted

[moderately] against the [Prosecution] because of the length of the delay ’ Id
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f 35 The eleventh and final delay was 17 days On October 19, 2011, the trial court issued an

order setting forth its instructions and deadlines for the Prosecution’s acquisition of DNA evidence

and continuing the trial to January 23, 2012 The record is unclear as to whyI this change was made,

but as no additional filings were made, this delay appears to be administrative in nature The

Superior Court held that this minor institutional delay should not be attributed to either party

However, in the Virgin Islands, “where delay remains unexplained on the record, we weigh it

against the prosecution ” Rodriguez 71 V I at 596 97 Accordingly, this short delay is weighed

against the Prosecution

11 36 The delays in this case can be attributed to both patties at varying times with the largest

share of the 27 5 month delay being attributed to the Prosecution However, most of the delays

attributable to the Prosecution arose from events outside of its control, excusable conduct, or at

worst negligent conduct but none of the delays were the result of “deliberate conduct intended

to hamper [Alexander’s] defense ” Rodriguez, 71 V I at 607 (citing Barker, 407 U S at 531, Frye

II, 489 F 3d at 211) Therefore, the delays attributable to the Prosecution should be given less

weight Rodriguez, 71 V I at 607 Additionally, on more than one occasion neither Alexander nor

the Prosecution were ready to proceed with trial and, as a result, both jointly caused the delay

Overall, both Alexander and the Prosecution caused delays of varying weight however, this factor

does not weigh heavily against the Prosecution because the delays attributable to it lacked any

deliberate conduct intended to hamper Alexander’s defense See 1d

3 Alexander’s Assertion 0f Speedy Trial Rights

fi 37 The third Barker factor requires us to determine “whether the defendant asserted his speedy

trial rights evidencing a deprivation of his constitutional rights ( arty, 56 V I at 366 In assessing
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this factor, we consider the defendant’s responsibility to assert the right to a speedy trial Barker,

407 U S at 528 30 In other words, this factor requires a showing that the defendant “manifest[ed]

his desire to be tried promptly ’ Frye 489 F 3d at 212 (internal quotation marks omitted) When

represented by counsel, “[a] defendant shows that he has asserted his [speedy trial rights] when

he can identify a motion or evidence of direct instructions to his counsel to assert that right at a

time when a formal assertion of his rights would render some chance of success Rodriguez, 71

V I at 608 (quoting Franas 63 V I at 752) Barker 407 U S at 531 32 [A]n assertion of speedy

trial rights can also be demonstrated in the fonn of an obj ection to a continuance Untied States v

Harris 566 F 3d 422 432 (5th Cir 2009)

1[ 38 Although Alexander was arrested on October 14, 2009, and arraigned on October 22, 2009,

his only mention of speedy trial considerations was made in an October 5, 201 1, motion to dismiss

The Superior Court held that although Alexander’s motion to dismiss the case was filed more than

12 months after his arrest it was still made at an appropriate time, as it was well within the realm

of possibility that the trial court could have granted the motion However, the Superior Court failed

to consider that the substance of a motion to dismiss is relevant to whether it can be considered an

assertion of one’s right to a speedy trial See Gov (ofthe V] v Pemberton, 813 F 2d 626, 628 29

(3d Cir 1987) (finding that the defendant 3 motion to dismiss did not relieve him of his duty “to

make a reasonable assertion of his speedy trial right”) In his motion to dismiss, Alexander only

alleged a violation of his right to a speedy trial under the federal Speedy Trial Act In addition,

Alexander’s motion to dismiss alleged a failure to prosecute, complained of discovery problems,

addressed issues with his pre trial release conditions, and questioned the fairness of the

proceedings, but the motion never requested a speedy trial Instead the motion requested that the
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Prosecution “decide on which set of facts it’s basing its case” and that the court dismiss the matter

and release Alexander until ‘ the government gets its act together ’ In fact, the words “speedy trial”

are only used once in Alexander’s motion to dismiss, and that was in the context of naming the

Speedy Trial Act Nonetheless, the Superior Court found that this motion qualified as a motion

attempting to assert Alexander’s speedy trial rights “at a time when a formal assertion of his rights

would render some chance of success ” Franczs, 63 V I at 752 We disagree Alexander was

represented by counsel and hence, in that circumstance, a motion to dismiss for violation of the

right to a speedy trial is not the equivalent of a demand for a speedy trial E g Stark v State, 911

So 2d 447 452 (Miss 2005) (Analyzing Barker factors This Court has previously held that a

demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for

speedy trial Such a motion seeks discharge not trial ”’) (quoting Perry v State, 637 So 2d 871,

875 (Miss 1994)) State v Turner 70 A 3d 1027 1032 (Vt 2013) ( [a] motion to dismiss based

on an alleged violation of the right to a speedy trial is not the equivalent of a demand for an

immediate trial ”) A demand for a speedy trial gives the State the opportunity to promptly schedule

a trial, while a motion to dismiss only offers the “unsatisfactorin severe remedy of dismissal ’

Barker, 407 U S at 522 Here, Alexander’s conduct does not strongly demonstrate a desire to

assert the right to a speedy trial Because Alexander made no motion asserting his right to a speedy

trial or otherwise pointing the Superior Court to any evidence showing an assertion of his speedy

trial rights, the third Barker factor must weigh against him Id

4 Prejudice to the Defendant

1| 39 Lastly, we consider whether the more than 2 year delay prejudiced Alexander in any way

This factor prejudice caused by the delay "is the most important of the four and must be
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demonstrated by the defendant ” Rodriguez, 7] V I at 610 “In evaluating prejudice, we consider

the three interests the right to speedy trial is designed to protect “(i) to prevent oppressive pretrial

incarceration, (ii) to minimize anxiety and concern of the accused, and (iii) to limit the possibility

that the defense will be impaired ” Franczs, 63 V I at 753; Barker, 407 U S at 532 Ofthese three

interests, the most important is limiting the possibility that the defense will be impaired 1d

11 40 Here Alexander argues that he was prejudiced because the delays gave his co defendant

Peets time to become a witness for the prosecution 6 Alexander contends that the delays ensured

that Peets had access to discovery information that he then used to falsely testify against Alexander

during the trial However, every defendant has a right to discovery information and even an earlier

trial date could not have precluded Alexander’s co defendant from obtaining discovery

Additionally, co defendants can choose to become witnesses for the prosecution at any time before

trial Cf. United States v Vassell 970 F 2d 1162 1165 (2d Cir 1992) (a delay in a case is not

transfonned into a Sixth Amendment violation just because the government used the delay to get

a co defendant to testify against a party) Thus, we agree with the Superior Court that Alexander

is unable to point to a particular prejudice that impacted his ability to receive a fair trial and has

therefore not met his burden to prove prejudice on this issue

1] 41 Although more than 27 months passed between Alexander’s arrest and trial, a significant

portion of the Prosecution s delays can be attributed to not having the necessary DNA evidence

6 Alexander also argues he was prejudiced because the delays caused an alibi witness to be unavailable for his trial
However this argument is waived because Alexander did not raise this issue before the Superior Court See
Fontame v People 62 V l 643, 652 (2015) (issues not raised before the Superior Court are deemed waived on
appeal) citing [V l R APP P 4(h)] ( Only issues and arguments fairly presented to the Superior Court may be
presented for review on appeal ’); [V l R APP P 22(m)]( issues that were not raised or objected to before the
Superior Court are deemed waived )
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from the FBI, which at most weighs only moderately against it The Prosecution’s other delays

were not intended to harm Alexander 3 defense and therefore are weighed less heavily against it

Alexander failed to show that he asserted his right to a speedy trial and failed to show that he was

prejudiced due to the delays Thus, after balancing the four Barker factors we agree with the

Superior Court that Alexander’s Sixth Amendment right to a speedy trial was not violated

IV CONCLUSION

Y 42 The delay of more than 27 months between Alexander’s arrest and trial was presumptively

prejudicial and warranted further analysis of the three remaining Barker factors Although the

Prosecution was responsible for many ofthe delays, none of the delays were deliberate or intended

to hamper Alexander’s defense Moreover, Alexander did not assert his right to a speedy trial, and

he failed to show that the 27 month delay prejudiced him For these reasons, we affirm the Superior

Court’s order denying habeas relief

Dated this 27‘“ day of March, 2024 b

{THE CM

/ A M CAB T
As ociate Ju
ATTEST V
VERONICA J HANDY ESQ
Clerk of the Court

By /s/ Jahkyda Coakley
Deputy Clerk

Dated 27 2024
March 27,