Govt of VI v. RosaGovt of VI v. Rosa
G. Luz A. James (argued), P.O. Box 224469, Christiansted, St. Croix, United States Virgin Islands 00822. Attorney for Appellee.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL AND
This matter comes on before this court on an appeal by the Government of the Virgin Islands from an order of the District Court of the Virgin Islands entered March 11, 2004, reversing Jose Alberto Rosa‘s conviction for first-degree murder at a jury trial in the territorial court. Rosa and Victor Ramos were tried jointly in the territorial court after being charged in a criminal information with committing murder in the first degree and with carrying or using a dangerous weapon during a
The following is a summary of the evidence supporting the charges at the defendants’ joint trial largely drawn from the testimony of two seemingly disinterested eye witnesses.1 Rosa‘s car and a truck
the scene. Rosa had a 2 x 2 stick in his hands, taped at the end to form a grip, with which he was hitting Glasgow. Upon being struck, Glasgow ran to his car, pulled out a machete, and swung errantly at Rosa. Ramos quickly jarred the machete out of Glasgow‘s hand and forced him to the ground. Ramos then picked up the machete and struck Glasgow with its blunt edge, while Rosa hit him with the stick. Even after Ramos ceased hitting Glasgow, Rosa continued to strike him with the stick. According to the eyewitnesses, the beating continued as Rosa hit Glasgow with the club while Ramos kicked him. Glasgow was unable to regain his footing as Rosa continued beating him. The witnesses testified that after Glasgow stopped moving, Rosa hit him several times in the head with the modified 2 x 2. Once Glasgow was unconscious, Rosa and Ramos pilfered through his poсkets, found his wallet, and took his money. Glasgow died at the scene. Rosa and Ramos were apprehended and charged with first-degree murder and carrying a dangerous weapon during a crime of violence.
There were discussions regarding the jury instructions beginning midway through the trial. The court first sifted through jury instructions Ramos proposed.2 These instructions erroneously indicated that to prove first-degree murder the government had to prove that the defendants “had an intent to kill or inflict serious bodily harm against a human being.”3 Appellant‘s br. at 16. This proposed instruction was erroneous to the extent that it allowed the jury to convict the defendants of first-degree murder even if their intent only was to inflict serious bodily harm. Nevertheless when the court asked Rosa‘s attorney, Mr. James, if he had any objections to these instructions the following ensued:
THE COURT: Attorney James, you have looked at Defendant Ramos [sic] proposed instructions?
MR. JAMES: Yes, your Honor, I have.
THE COURT: Do you have any objections to —
MR. JAMES: I have no objections, your Honor.
THE COURT: Any additions, modifications or corrections?
MR. JAMES: No, sir.
THE COURT: So they can apply equally to your client.
MR. JAMES: That‘s correct, sir.
App. at 65-66.
The court then walked through Ramos‘s proposed jury instructions, one by one, allowing the parties to raise any objections or offer any additions. See app. at 66-73.
The court then analyzed the government‘s proposed instructions:
THE COURT: The Government has proposed in its initial instructions, element instructions — murder in the first degree, possession and a flight instruction. Is there any objection to any of those three instructions?
MR. JAMES: No, your honor.
THE COURT: Excuse me?
MR. JAMES: No. I said no, your Honor.
THE COURT: None.
App. at 73. The court then broadly outlined the instructions it would give, see app. at 74-78, and repeated its call for any objections or modifications to the proposed instructions. App. at 78. Mr. James again replied, “I am satisfied, your Honor.” Id.
After the parties made closing arguments and the issue of self-defense was raised, the court suggested that it should instruct the jury on the lesser included offense of involuntary manslaughter. Both defendants agreed to this charge which was to be in addition to a charge on voluntary manslaughter that the court already had determined to give. The court, however, did not instruct the jury until the following morning, a delay that provided the attorneys with an additional opportunity to raise objections or suggest modifications to the jury instructions. The court noted that, “[i]f the parties require to submit any additional instructions they may do so particularly in light of involuntary manslaughter. . . .” App. at 161. The next morning when the court convened no party made any objection to the instructions.
Ultimately when the court instructed the jury on first-degree murder, it incorporated Ramos‘s erroneous instruction into the charge:
Now defendant is . . . defendants are charged in the first count of the amended information with the charge of murder in the first degree, in violation of Title 14, section 922(a)(1). Murder is the unlawful killing of a human being with malice аforethought. For murder to constitute murder in the first degree the additional elements of willfulness deliberateness and premeditation must be established; therefore, murder in the first degree is the unlawful killing of a human being with malice aforethought, with willfulness, deliberateness and premeditation.
Therefore, before you can find the defendants or any of the defendants guilty of the crime of murder in the first
degree you must find that the government has proved each of the following essential elements beyond a reasonable doubt: that the defendants knowingly and intentionally while aiding and abetting each other unlawfully killed a human being, in this case George Glasgow. That the defendants acted with malice aforethought. That the killing was willful, deliberаte and premeditated. That the defendant did not act in self-defense and that the defendant had an intent to kill or to inflict serious bodily harm against a human being and that the acts occurred on November 5, 2000, on St. Croix, Virgin Islands.
Certain terms have been used and I will define a few of them for you now. Malice aforethought: Malice aforethought means an intent at the time of killing willfully to take the life of a human being or an intent willfully to
act in callous and wanton disregard of consequences of human life. But malice aforethought does not necessarily imply any ill will, spite or hatred toward the individual killed. Malice as the term is used here is but another name for a certain state or condition of a person‘s mind or heаrt. Since no one can look into the heart or mind of another the only means of determining whether or not malice existed at the time of the killing is by inferences drawn from the surrounding facts and circumstances as shown by the evidence in the case. Where a killing is shown to have been accomplished by a deadly weapon or other instrument in such a manner as may be naturally
expected and probable to cause death, malice may be inferred from that fact alone.
Premeditation and deliberation are very similar and they mean virtually the same thing. Premeditation and deliberation are typically associated with murder in cold blood and requires a period of time in which the accused coolly deliberates or thinks the matter over before acting.
The necessary duration of that period cannot be arbitrarily fixed. The time required to form a deliberate plan or design varies in the minds and temperament in which they may be made. Any interval of time between the forming of the specific intent to kill and that execution of that intent which is of sufficient duration for the accused to be fully conscious and mindful of what he intended willfully to set about to do is sufficient to justify a finding of premeditation.
App. at 186-89 (emphasis added).
The court then instructed the jury on the lesser included charges of second-degree murder, voluntary manslaughter, and involuntary manslaughter. See app. 190-96. To distinguish between the crimes of first- and second-degrеe murder the court explained:
Murder in the first degree is the unlawful killing of a human being with malice aforethought and willful, deliberate and premeditated. Murder in the second degree does not have deliberation and premeditation, but murder in the first degree and murder in the second degree have malice aforethought.
App. at 191. Following the jury instructions, the court once again invited the attorneys to propose any modifications, additions, or corrections to these instructions. Once again, Rosa‘s attorney replied, “I am satisfied, your Honor.” App. at 211.
The jury found Rosa guilty of first-degree murder and Ramos guilty of voluntary manslaughter on August 1, 2002, and, in addition, found them guilty on the weapons offenses.4 The court sentenced Rosa on September 19, 2001, to life imprisonment without the opportunity for parole. Rosa appealed to the Appellate Division of the District Court of the Virgin Islands, which, in a per curiam opinion, reversed his conviction on the grounds that, “the erroneous jury instruction describing the element of intent-to-kill violated Appellant‘s due process right to a fair trial and constituted plain error.” App. at 29. Ramos, however, did not appeal from his conviction and sentence. Following the reversal in the district court the government filed its timely notice of appeal to this court from the district court. The three-level proceedings in this case have placed us in the unusual position of adjudicating an appeal by the government in a
II. JURISDICTION AND STANDARD OF REVIEW
The Appellate Division of the District Court of the Virgin Islands had jurisdiction in this case under
III. DISCUSSION
A. Forfeiture vs. Waiver
The first issue that we must address is whether Rosa, by failing to object to the erroneous first-degree murder instruction at trial, waived, or merely forfeited, his right to appeal his conviction based upon the inaccurate instruction. The distinction between waiver and forfeiture is critical in the context of
Authority under the auspices of
the rule merely was “fortfeited,”
Though the conceptual distinction between a forfeiture and a waiver is clear, in practice the distinction is sometimes elusive. The Court in Olano, clarifying the distinction, noted that while “forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.‘” 507 U.S. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
The threshold question in deciding whether there is appellate authority to grant relief under
The case before us, however, does not present us with a knowing waiver situation. We do not see any indication that Rosa‘s attorney explicitly stipulated to the erronеous instructions with knowledge of the error in them or refrained from objecting to the jury instructions for tactical reasons.7 Rather, we are satisfied that his failure to object, and moreover his agreement on at least three occasions to the erroneous jury instructions, stemmed from the circumstance that he was unaware of the correct rule of law or, if aware of it, did not realize that the intent instruction misstated it.
The reasoning of the Court of Appeals for the Ninth Circuit in Perez, 116 F.3d at 840, bolsters Rosa‘s claim that he did not waive his right to appellate review by his mere acquiescence to the erroneous jury instructions. In Perez, the appellants contended that the court should reverse their convictions because the district court did not instruct the jury on an essential element of the offense charged, using or carrying a firearm during and in relation to drug trafficking, even though the appellants had submitted the flawed instruction to the court. Id. at 844-45. The court of appeals previously had held that the statute‘s “in relation to” requirement was an essential element of the offense and therefore its submission to the jury was required. See United States v. Mendoza, 11 F.3d 126, 128 (9th Cir. 1993). Though the court had decided Mendoza prior to the trial in Perez, neither the trial court nor
The court in Perez compared the facts before it with those in a previous case, United States v. Baldwin, 987 F.2d 1432, 1436-37 (9th Cir. 1993), in which it had held that a defendant had waived his right to appellate review. In Baldwin a defendant was charged with conspiracy to distribute cocaine. The court‘s proposed jury instruction, however, omitted the required “overt act” element of the conspiracy charge. The government objected to the instruction because of the omission of this element, but the defense attorney
indicated that he did not believe it necessary to instruct about the “overt act” requirement. Id. at 1437. The government then withdrew its opposition, and the court approved the instruction without the “overt act” requirement. The defendant was convicted and ultimately appealed based upon the faulty instruction. The Court of Appeals for the Ninth Circuit held that the defendant waived his right to raise the erroneous jury instruction on appeal and thus was precluded from arguing plain error.
The Perez court, recognizing Baldwin as a prototypical waiver case, stated, “[t]his scenario is an example of waiver because the record reflects that the defendant was aware of the omitted element and yet relinquished his right to have it submitted to the jury.” Perez, 116 F.3d at 845. The court continued, “[w]aiver occurred . . . because the defendant considered the controlling law, or omitted element, and, in spite of being aware of the applicable law, proposed or accepted a flawed instruction.”8 Id.
The court in Perez distinguished the case before it from a “clear” waiver like that in Baldwin by noting that the appellants in Perez had been unaware of the requirement to include the “in relation to” element to the jury.9 Perez, 116 F.3d at 845. The court noted:
[T]here is no evidence that [the appellants] considered submitting the ‘in relation to’ element to the jury, but then, for some tactical or other reason, rejected the idea. Thus, it cannot be said that [the appellants] waived their right to have this element submitted to the jury; waiver occurs only when a defendant relinquishes or abandons a ‘known right.’ Olano, 507 U.S. at 733. To the contrary, the
failure to propose the ‘in relation to’ element was forfeited error: error that is not objected to during trial because the defendant is unaware of a right that is being violated. Here, because neither [of the appellants] knew of the right to have the omitted element submitted to the jury, we must treat the right as forfeited, as opposed to waived.
Guided by the logical underpinnings of Perez, we hold that Rosa did not
B. Plain Error
Because we conclude that Rosa forfeited, as opposed to waived, his right to object to the jury instructions on appeal, we analyze the instructions for “plain error.” See United States v. Retos, 25 F.3d 1220, 1228 (3d Cir. 1994). To demonstrate “plain error” an appellant bears the burden of proving that: (1) the court erred; (2) the error was “plain” at the time of appellate consideration; and (3) the error affected substantial rights, usually meaning that the error “must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734.
v. Gordon, 290 F.3d 539, 543 (3d Cir. 2002) (internal quotation marks omitted).
The presence of the first element, “error,” partially addressed above, is ascertained by inquiring whether there was a deviation from a legal rulе that was not waived. Olano, 507 U.S. at 732-33. Long before the trial in this case we held in Government of the Virgin Islands v. Lake, 362 F.2d 770, 775-76 (3d Cir. 1966), that under Virgin Islands law, a conviction for first-degree murder cannot lie unless the government proves the unlawful killing was accompanied by a clear and deliberate intent to take life. The government concedes that “since first-degree murder requires the homicide to be committed with the specific intent-to-kill, the single reference to the intent to commit ‘serious bodily injury’ in relation to first-degree murder was probably erroneous.” Appellant‘s br. at 22.
The second limitation on appellate authority under
The third limitation on appellate authority under
In the present case, the district court held that the error was prejudicial.10 In reaching this conclusion the court held that the jury
could have found that Rosa acted with malice based on the intent to act willfully in a callous and wanton disregard of consequences of human life, acted with premeditation, and acted with an intent to inflict serious bodily injury.11 See app. at 19. If the jury utilized this
logic it would have found him guilty of first-degree murder with a lower burden of proof than the law requires, and thus run afoul of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Smith v. Horn, 120 F.3d 400, 415 (3d Cir. 1997).12
We reject the district court‘s assessment of the likely prejudicial impact of the faulty instructions. As we recently have noted, “[i]t is a rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” United States v. Gambone, 314 F.3d 163, 182 (3d Cir. 2003); Gordon, 290 F.3d at 545 (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). The standard in analyzing the effect of the
We do not find that there was a reasonable likelihood that the erroneous jury instructions prejudiced Rosa. Indeed, we think it quite clear that the jury, despite the faulty first-degree murder instruction, concluded that Rosa had the specific intent to kill Glasgow. Therefore, there was no “reasonable likelihood” that the jury applied the challenged instructions in a manner that allowеd it to convict Rosa of the crime of first-degree murder without making the findings that the law requires.
The most compelling reason to sustain the conviction is derived from the manner in which the jury disposed of the homicide charges against Ramos as compared to those against Rosa. In the cases of both defendants the court instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter.13 Accordingly, the jury could have acquitted or convicted either defendant of any of these crimes. Moreover, the court gave the jury certain identical instructions applicable for its consideration of each of these offenses, though, of course, it also gаve instructions discrete as to each particular offense. The jury, however, though finding Rosa guilty of first-degree murder, found Ramos not guilty of murder, even in the second degree, and convicted him on the lesser offense of voluntary manslaughter.
The crimes of murder and manslaughter are distinguishable by the burden of demonstrating malice placed upon the government in proving murder. See Stevenson v. United States, 162 U.S. 313, 320 (1896) (“The presence or absence of this malice or mental condition marks the boundary which separates the two crimes of murder and manslaughter.“). The court instructed the jury that, “[m]alice aforethought means an intent at the time of a killing willfully to take the life of a human being or an intent willfully to act in callous and wanton disregard of consequences of human life.”14 App. at 188. We are convinced considering the evidence in the case and the court‘s charge to the jury that, in finding Ramos guilty of voluntary manslaughter but not murder, the jury concluded that he did not intend to kill Glasgow.15 In fact, we do not understand how we could reach a contrary conclusion as
The jury‘s differential trеatment of the two defendants demonstrates its cognizance that the government had the burden to prove that a defendant had the intent to kill if it was to convict him of first-degree murder. Though we think it evident that in convicting Ramos of the lesser offense of voluntary manslaughter the jury concluded that he did not possess malice and accordingly did not possess an intent to kill Glasgow, we are satisfied that in finding Rosa guilty of murder, it concluded that he did act with malice aforethought. In other words, if the jury did not believe that the Rosa had possessed an intent to kill when causing the death of Glasgow, it would not have found him guilty of murder but rather would have treated him as it did Ramos, and accordingly found him guilty of voluntary manslaughter. We are convinced that the jury understood clearly the differing levels of intent necessary to prove voluntary manslaughter and first-degree murder, and found that Rosa possessed malice aforethought.
This conclusion, however, does not end our inquiry into whether the erroneous instruction was prejudicial. Rosa, mirroring the district court‘s opinion, argues that notwithstanding the jury‘s differential treatment between Rosa and Ramos, Rosa may have been convicted on a lesser proof standard than mandated under our jurisprudence. He argues it is reasonably likely that jury found malice not by concluding that Rosa had an intent to kill, but rather by concluding that he had an “intent willfully to act in callous and wanton disregard of consequences оf human life.” See appellee‘s br. at 9; app at 19. Inasmuch as premeditation is an element of first-degree murder, Rosa‘s argument hypothesizes that the jury decided that he acted with premeditation, but convicted him of first-degree murder by following the erroneous instruction regarding “inflict[ing] serious injury.” Id.
The possibility that the jury employed this rationale as its basis to convict Rosa for first-degree murder is not only not “reasonably likely,” it is extremely remote if possible at all. In determining the constitutional validity of jury instructions, a court should not view an individual instruction discretely, but rather should consider the instructions in the context of the overall charge. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). We, therefore, extend our inquiry to the instructions as a whole. Rosa does nоt contend that the court did not instruct the jury correctly on the requirements of finding “premeditation.” See app. 188-89 (“Any interval of time between the forming of the specific intent to kill and that execution of that intent which is of sufficient duration for the accused to be truly conscious and mindful of what he intended willfully to set about to do is to justify a finding of premeditation.“) (emphasis added).16 Moreover, the court told the jury that premeditation is “typically associated with murder in cold blood . . . .” App. at 189. The court, therefore, clearly instructed the jury and correctly indicated that the only manner in
In reaching our cоnclusion, “[w]e must assume that juries for the most part understand and faithfully follow instructions.” Connecticut v. Johnson, 460 U.S. 73, 85 n.14 (1983). Therefore, it is implicit in the jury‘s finding of premeditation that it found that Rosa had a specific intent to kill. Accordingly, it follows that the jury‘s finding of first-degree murder incorporated a conclusion that Rosa possessed a specific intent to kill Glasgow and did not merely intend to injure him seriously, as it would be far fetched to conclude that the jury believed that he had a specific intent to kill for purposes of premeditation but not for the purposes of malice aforethought. We conclude, therefore, that the jury, in fact, did reach the conclusion that Rosa possessed a specific intent to kill when he unlawfully killed Glasgow. Wе therefore cannot agree with the district court‘s holding that there was a reasonable likelihood that the jury convicted Rosa of first-degree murder under a lower burden of proof threshold than the law requires. Overall, therefore, taking into account all of the circumstances that we have described, we hold that the jury instructions, though erroneous, did not result in a plain error.
IV. CONCLUSION
For the foregoing reasons, we will reverse the district court order of March 11, 2004, reversing the conviction and reinstate the judgment of conviction and sentence entered in the territorial court. We are aware, however, that in the district court Rosa argued as an alternative basis to reverse that the evidence was insufficient for the jury to find him guilty of first-degree murder. In view of its disposition of the appeal the district court did not reach this point and inasmuch as Rosa has not argued the insufficiency of the evidence point as an alternative basis to uphold the district court‘s result, the parties’ briefs do not address whether the evidence was sufficient.18 In the circumstances we will remand the case to the district court to allow Rosa to renew the sufficiency of the evidence argument but we do so without prejudice to the government being free to argue that by not raising the evidence issue in this court Rosa has waived it, a point on which we express no opinion. On the remand Rosa also may renew any othеr arguments that he raised in the district court subject again to the government being free to argue that Rosa has waived the contentions.
Notes
Rule 52. Harmless and Plain Error
(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
(b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court‘s attention.
The district court, in finding the erroneous jury instruction prejudicial, stated, “we find it difficult to believe that the error could not have impacted the jury‘s consideration of the case.” App. at 22. The district court noted:
The instruction provided two options for assessing the element of intent. If the jury found the government had proven beyond a reasonable doubt that Rosa intended to inflict serious bodily injury, the government had satisfied its burden with respect to that element. Alternatively, the element could be proven if the government proved intent to kill. Jurors heard eyewitness testimony that Rosa hit the victim so many times with a 2 x 2 stick, which was fitted with а grip, that Glasgow had a massive skull injury. The testimony indicated that a significant portion of these blows were directed at Glasgow after he had fallen to the ground and appeared unconscious. If the jury were in any way uncertain about whether intent to kill had been proven, faced with the breadth of evidence showing the harm done to Glasgow, it would have been not only easy but logical to determine that the Government had met its burden by proving intent to cause serious bodily injury.
App. at 22-23.