GOVERNMENT OF THE VIRGIN ISLANDS v. FRANK FONSECA (D.C. Criminal No. 96-00247); GOVERNMENT OF THE VIRGIN ISLANDS v. BLANCHE FINNEY (D.C. Criminal No. 96-00249); GOVERNMENT OF THE VIRGIN ISLANDS, Appellant No. 00-3628; BLANCHE FINNEY, Appellant No. 00-3877; GOVERNMENT OF THE VIRGIN ISLANDS v. FRANK FONSECA (D.C. Criminal No. 96-00247); GOVERNMENT OF THE VIRGIN ISLANDS v. BLANCHE FINNEY (D.C. Criminal No. 96-00249); FRANK FONSECA, Appellant No. 00-3878
Nos. 00-3628/00-3877/00-3878
United States Court of Appeals for the Third Circuit
December 12, 2001
TRESTON E. MOORE (Argued), Charlotte Amalie, St. Thomas, United States V.I., Attorney for Appellee/Cross-Appellant Blanche Finney
ARIEL M. SMITH (Argued), Charlotte Amalie, St. Thomas, United States V.I., Attorney for Appellee/Cross-Appellant Frank Fonseca
MCKEE, RENDELL, and BARRY, Circuit Judges
OPINION OF THE COURT
The Government of the Virgin Islands asks us to reverse a decision of the Appellate
In their cross-appeal, the defendants argue that the trial court erred in failing to instruct the jury on the legal use of force to: evict a trespasser, preserve the peace, and perform a citizen‘s arrest. For the reasons that follow, we hold that the Appellate Division erred in granting a new trial based upon the triаl court‘s purported failure to give a lawful violence instruction. Accordingly, we need not reach any additional issues or discuss the Appellate Division‘s dicta regarding the Attorney General‘s subpoena power.
I. FACTS
On the evening of January 23, 1994, Blanche Finney and Frank Fonseca fatally stabbed Khaalid Tariq. Tariq and Blanche were at one time married, but divorced at the time of the stabbing. A detailed account of the circumstances surrounding that killing is set forth in the opinion of the Appellate Division of the Virgin Islands that is the subject of this appeal. See Fonseca v. Government of the Virgin Islands, 119 F. Supp. 2d 531, 532-3 (D.V.I. 2000). For our purposes, it is sufficient to note that at the time of the stabbing, Blanche Finney was romantically involved with Frank Fonseca. Blanche lived with her brother, Jesse Finney. Jesse and Blanche were both security guards at the hotel where they resided. Sometime during the evening of January 23rd, Tariq knocked on Blanche‘s door and demanded to speak with her. An altercation ensued between Tariq, Jesse, Blanche and Frank Fonseca during which Tariq was repeatedly stabbed. The stabbing occurred after some or all of the trio first hit Tariq with a police baton or “billy club,” and tried to spray him with chemical mace.
Thereafter, Blanche and Jesse Finney were arrested along with Frank Fonsecа, and charged with first degree murder. Six months after the stabbing, Blanche was admitted to a local hospital for treatment of serious physical injuries unrelated to the stabbing of Tariq. During the course of her hospitalization, she made incriminating statements to her doctor. Those statements were transcribed in her medical record, and her doctor later related them to the prosecutor who issued an Attorney General‘s subpoena for the medical records. See,
Jesse Finney eventually pled guilty to third degree assault, but Blanche Finney and Frank Fonseca were jointly tried before a jury. The trial court initially appointed Edith Bornn to represent Blanche at trial. Although Ms. Bornn was “an eminently qualified and well respected lawyer,” Fonseca, 119 F. Supp. 2d at 535, she had not previously handled a criminal case, let alone a homicide. Therefore, the court appointed Treston Moore to serve as co-counsel.
During the course of the ensuing trial, the government sought to introduce the subpoenaed medical records arguing that they contained various admissions that were inconsistent with the defendants’ claim of self-defense, but the trial court sustained a defense objection to this evidence.1 Although the court precluded the
At the conclusion of the trial, defense counsel asked the court to instruct the jury on the law of self-defense, the right to resist, and the defense of habitation. Moore also requested instructions on defense of others (
Attorney Moore had to appear in another courtroom on the morning that the charge was to be given. He was therefore absent for part of the closing arguments, and all of the judge‘s jury instructions. When he returned to the courtroom, he asked the court if it had instructed on lawful violence and the court assured him that it had given that instruction. In reality, however, the court had given instructions on self-defense and justifiable homicide, but had not charged on lawful violence under
The jury convicted both defendants of murder, and they appealed to the Appellate Division of the district court. The Appellate Division ruled that failure to give a lawful violence charge under
The government argues that the Appellate Division erred in stating that Virgin Islands law does not allow the Attorney General to subpoena evidence after an arrest, and in holding that the jury charge was erroneous. In their cross appeal, the defendants challenge “the [Appellate Division‘s] failure to charge the jury on the several theories of defense,” requested at the conclusion оf the trial. Appellants’ Br. at 25. The defendants also ask us to affirm the Appellate Division‘s limitation of the Attorney General‘s subpoena power.
II. DISCUSSION
A. Jurisdiction
Before reaching the substance of these appeals, we must address the defendants’ argument that we lack jurisdiction. Defendants argue that the government is not appealing a “final order” as is required under
The prosecution in a territory or Commonwealth is authorized—unless precluded by local law—to seek review or other suitable relief in the appropriate local or Federal appellate court, or where applicable, in the Supreme Court of the United States from—
(a) a decision, judgment, or order of a trial court dismissing an indictment or information as to any one or more counts ... (b) a decision or order of a trial court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding ...
(c) an adverse decision, judgment, or order of an appellate court.
We have, however, previously addressed this issue and resolved it in the government‘s favor. In Gov‘t of the Virgin Islands v. Charleswell, 24 F.3d 571 (3d Cir. 1994) we held that our jurisdiction over the government‘s appeal from an order of remand for a new trial is not predicated on
We also concluded that our jurisdiction was not affected by whether the appeal was from thе Appellate Division of the District Court, or the district court, itself, as “the language of
B. The Attorney General‘s Subpoena Power
As noted above, the Appellate Division agreed with the defendants’ assertion that the Attorney General of the Virgin Islands is not authorized to subpoena evidence after a defendant has been arrested and charged, but the court did not reverse the trial court on that basis. Rather, in reversing the trial court, the Appellate Division stated: “Although the Court finds that the government did abuse its рower in issuing the subpoena after Finney‘s arrest, we do not reach the issue of whether Finney suffered any prejudice as a result, since we reverse on other grounds.” Fonseca, 119 F. Supp. 2d at 534 (emphasis added). The discussion of the Attorney General‘s subpoena power is, therefore, obiter dicta. It is not part of the holding, and not precedential. Inasmuch as we are reversing the Appellate Division‘s holding regarding the jury instructions, we need not review the Appellate Division‘s conclusion regarding the limitations on the Attorney General‘s subpoena power.
Furthermore, Blanche did not testify at trial. Accordingly, she has waived any claim she may otherwise have had that her medical records were privileged. See Luce v. United States, 469 U.S. 38, 41, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984) (finding harm to defendant “wholly speculative” where defendant chose not to testify to avoid impeachment from his prior convictions); United States v. Moskovits, 86 F.3d 1303, 1305 (3d Cir. 1996) (finding harm speculative where defendant, acting as his own counsel, elected not to testify to avoid conditions imposed by the trial judge on how to conduct his direct examination); United States v. Furst, 886 F.2d 558, 578 (3d Cir. 1989) (finding harm “entirely speculative” where defendant limited the scope of his direct examination of witnesses to avoid government‘s possible improper cross-examination of witnesses).
C. Jury Instructions
As noted above, the Appellate Division concluded that the trial court erred in not giving a lawful violence instruction. The Appellate Division concluded that the defendants were entitled to that instruction under relevant provisions of
...
(3) the preservation of peace, or to prevent the commission of offenses;
(4) in preventing or interrupting an intrusion upon the lawful possession of property, against the will of the owner or person in charge thereof;
...
(6) in self-defense or in defense of another against unlawful violence offered to his person or property.
When a party has made a timely objection to jury instructions, we generally review for abuse of discretion. See Gov‘t of the Virgin Islands v. Isaac, 50 F.3d 1175, 1180 (3d Cir. 1995); Cooper Distr. Co. v. Amana Refrigeration Inc., 180 F.3d 542, 549 (3d Cir. 1999). In the absence of a timely objection, we review only for plain error. See Cooper, 180 F.3d at 549. Under the latter standard, only those errors that “undermine the fundamental fairness of the trial and contribute to a miscarriage of justice” will be reversed. Gov‘t of the Virgin Islands v. Smith, 27 V.I. 332, 949 F.2d 677, 681 (3d Cir. 1991), quoting United States v. Young, 470 U.S. 1, 16, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985).3
The disagreement over the appropriate standard of review stems from the circumstances surrounding the court‘s charge. As noted above, Moore had to go to another courtroom during part of the closing arguments and all of the jury charge. Upon his return, he asked the trial court if it had given the lawful violence instruction, and the court assured him that it had.4
We agree that Moore did not waive his objection to the jury charge. He initially requested such a charge, and thereafter clearly attempted to get clarification from the court on whether the lawful violence instruction was given during his absence. The court assured him that it had been. These attempts to preserve the issue can not be negated by the fact that his co-counsel heard the charge and did not object. After all, Moore was appointed precisely because his co-counsel lacked experience in criminal matters. There is an obvious unfairness in recognizing that Ms. Bornn did not have sufficient experience to adequately represent Blanche and appointing Moore as co-counsel on the one hand, and then concluding that Bornn waived an objection despite her more experienced co-counsel‘s efforts to preserve it on the other. However, even though we agree that the objection was not waived, we do not agree that the charge that was given was erroneous.
The Appellate Division reasoned that the evidence supported a lawful violence instruction, and concluded the trial court‘s failure to give one under
The lawful violence instruction in this instance was crucial to both appellants’ defenses. With the appellants having raised the argument that their actions were committed in self-defense, the government had the burden of disproving beyond a reasonable doubt their claims of self-defense. By not including the lawful violence instruction, the trial court did not put the government to its burden before the jury and as a result, the appellants’ due process rights were violated. Without question, the error had an unfair prejudicial impаct that seriously affected the ... integrity of the trial. The Court finds that the trial court‘s failure to give the lawful violence instruction was plain error, which inclusively indicates that the trial court‘s omission does not survive plenary review. Accordingly, the Court will vacate the convictions of both appellants and remand for new trial.
Fonseca, 119 F. Supp. 2d at 535-6 (internal quotation marks and citations omitted).
As a general principle, “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Isaac, 50 F.3d at 1180, quoting Mathews v. United States, 485 U.S. 58, 63, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988). So long as the evidence presented at trial reveals a basis for the defense, a court may not refuse а defendant‘s request for an instruction on that defense. See Gov‘t of the Virgin Islands v. Robinson, 29 F.3d 878, 882 (3d Cir. 1994); Gov‘t of the Virgin Islands v. Salem, 456 F.2d 674, 675 (3d Cir. 1972). Conversely, a trial court need not instruct the jury on any principle that does not have a factual basis in the evidence. See Bird v. United States, 187 U.S. 118, 132-33, 47 L. Ed. 100, 23 S. Ct. 42 (1902).
Virgin Islands law sets forth overlapping, yet distinct, defenses to a homicide prosecution. For example, any and all of the following statutes define conduct that can arguably be referred to as “lawful violence“:
1. § 293(a)(3)
The government concedes that the defendants “may have been entitled to a lawful violence instruction on this record,” but argues: “the only part of that instruction that was requested, was supported by the evidence, and was not covered by other instructions was [subsection (3)], and the failure to instruct on this one clause was not plain error.” Appellant‘s Br. at 44. However, as noted above, our review is not restricted to plain error. Inasmuch as Blanche preserved the objection, we must review for abuse of discretion as to her appeal, but review for plain error as to Fonseca.
Subsection 3 defines lawful violence to include violence for “the preservation of peace, or to prevent the commission of offenses,”
The distinction between these two defenses is readily apparent.
Nevertheless, the evidence here established that one or both of the defendants assaulted Tariq with a “billy club” and possibly chemical mace before he was stabbed. Therefore, there may well have been an issue in a juror‘s mind about the legality of that initial assault by the defendants, and that may have been relevant to the juror‘s view of the defendants’ subsequent right to use force against Tariq. Nevertheless, assuming arguendo that
The defense‘s evidence at trial raised a classic issue of self-defense. The defendants attempted to show that Tariq had a propensity for violence; that he was the aggressor throughout the confrontation; appeared to be hiding a weapon in his rear pocket; and that the defendаnts had a reasonable and justifiable fear of him during this altercation, and took steps to defend themselves. The trial court instructed the jury accordingly. The court stated:
Ladies and Gentlemen of the Jury, also, if the defendant had a reasonable ground to believe and actually did believe that they were in imminent danger of death or serious bodily harm and deadly force was necessary to repel such danger, they would be justified in using deadly force in self-defense, even though it may thereafter have turned out that the appearances were false. The defense hinges on the defendants’ subjective belief in imminent dаnger or death or serious bodily harm and the objective reasonableness of that belief.
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You will note, too, that the defendants have raised not only the issue of self-defense, but defense of another or a third person. If a person reasonably believes that force is necessary to protect another person from what that person reasonably believes to be unlawful physical harm about to be inflicted by another and uses such force, then the person acted in self-defense of another person.
App. IV, pp. 1253-1260.
These instructions guided the jury in deciding whether Finney‘s and Fonseca‘s actions were legally justified at each step of the confrontation. The jurors knew that the defendants had a right to defend themselves against an assault or aggression on the part of Tariq and, on this record, that is all that
2. 14 V.I.C. § 293(a)(4)
As noted above, a lawful violence instruction is also appropriate when there is evidence that the defendant used violence in the course of “preventing or interrupting an intrusion upon the lawful possession of property. ...”
3. 14 V.I.C. § 293(a)(6)
There is, however, ample evidence to justify an instruction regarding the use of violence “in self-defense or in defense of another against unlawful violence offered to his person or propеrty” under
In agreeing with the defendants’ assertion that the trial court erred in not instructing under
If the defendants had a reasonable ground to believe and actually did believe that they were in imminent danger of death or serious bodily harm, and that deadly force was nеcessary to repel such danger, they were not required to retreat or to consider whether they could safely retreat. They were entitled to stand their grounds and use such force as was reasonable under the circumstances to save their lives or to protect themselves from serious harm. However, if the Defendant could have safely retreated but did not do so, their failure to retreat is circumstances under which you may consider, together with all the other circumstances, in determining whether they went further in repelling the danger, real or apparent, than they were justified in doing under the circumstancеs.
Even if the other person was the aggressor and the defendants were justified in using force in self-defense, they would not be entitled to use any greater force than they had reasonable grounds to believe and actually did believe to have been necessary under the circumstances to save their lives or avert serious harm.
In determining whether the defendants used excessive force in defending themselves, you may consider all the circumstances under which they acted. The claim of self-defense is not necessarily defeated if greater force than would have seemed necessary in cold blood was used by the Defendants in the heat of passion generated by an assault upon them. A belief which may be unreasonable in cold blood may be actually and reasonably entertained in the heat of passion.
App. IV, pp. 1254-1260.
Thus, the court mentioned “retreating” only to inform the jury that it could consider the defendants’ ability to safely retreat along with all of the other circumstances in deciding if the defendants’ use of deadly force was reasonable under the circumstances.7 The defendants ignore the fact that the trial court specifically stated: “[the defendants] were not required to retreat or to consider whether they could safely retreat. They were entitled to stand their grounds and use such force as was reasonable.” App. IV p. 1257 (emphasis added). Accordingly, we hold that the trial court‘s instruction on self-dеfense substantially and adequately included the lawful violence specified in
4. The Defendants’ Cross-Appeal
In granting the defendants a new trial, the Appellate Division stated:
The issue raised by both Finney and Fonseca that requires a new trial is the inadequate instructions given to the jury by the trial court on the defenses of self-defense and justifiable homicide. Appellants argue that they were entitled to additional instructions on lawful violence, the right to use reasonable force to remove a trespasser, the powers of arrest by a private person, the right to resist, and the defense of habitation. The court arguably included the instruction on defense of habitation within its instruction on justifiable homicide. (See App. at 1254). Of the remaining allegations raised by the appellants, the
court‘s failure to include the instruction on lawful violence causes the greatest concern.
Fonseca, 119 F. Supp. 2d at 534. The defendants now ask us to address issues in their cross-appeal that they claim the Appellate Division did not resolve. However, we decline to address any additional arguments in the first instance. Rather, we will remand to the Appellatе Division so that it can address any additional claims of error. See Charleswell, 24 F.3d 571, 577 (3d Cir. 1994).
III. CONCLUSION
For the reasons set forth herein, we will reverse the judgment of the Appellate Division and remand for proceedings consistent with this opinion.
Notes
ATTORNEY MOORE: Your Honor, in the lawful violence, 393, Subsection 4, it talks about the ability of a person to use reasonable force to protect property or to—
THE COURT: yes, yes, yes,
ATTORNEY MOORE: Did you give that?
THE COURT: Yes.
ATTORNEY MOORE: Very well, Your Honor.
App. IV, p. 1284 (Moore was apparently referring to