Government of the Virgin Islands v. Fonseca

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

12-12-2001

Govt of VI v. Fonseca

Precedential or Non-Precedential:

Docket 00-3628

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"Govt of VI v. Fonseca" (2001). 2001 Decisions. Paper 290.

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Filed December 12, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 00-3628/3877/3878

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

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)

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

Appellate Division of the District Court for the

Virgin Islands

(D.C. Criminal. APP. Nos. 96-00247 and 96-00249)

District Judges, App. Div.: Hons. Finch, Moore, and Steele

Argued May 18, 2001

BEFORE: MCKEE, RENDELL, and BARRY, Circuit Jud ges

(Opinion Filed December 12, 2001)

Maureen P. Cormier (Argued)

Assistant Attorney General

Department of Justice

48B-50C Kronprindsens Gade

GERS Bldg., 2nd Floor

St. Thomas, USVI 00802

Attorney for Appellant/Cross-

Appellee the Government of the

Virgin Islands

2

Treston E. Moore (Argued)

P.O. Box 310, E.G.S.

14A Norre Gade

Charlotte Amalie

St. Thomas, USVI 00804-0310

Attorney for Appellee/Cross-

Appellant Blanche Finney

Ariel M. Smith (Argued)

P.O. Box 1498

Palm Passage, Suite B-22

Charlotte Amalie

St. Thomas, USVI 00804-1498

Attorney for Appellee/Cross-

Appellant Frank Fonseca

OPINION OF THE COURT

MCKEE, Circuit Judge:

The Government of the Virgin Islands asks us to reverse

a decision of the Appellate Division of the District Court of

the Virgin Islands vacating the murder convictions of

Blanche Finney and Frank Fonseca and remanding for a

new trial. We are also asked to review that court's

conclusion that the Attorney General of the Virgin Islands

is not empowered to issue subpoenas in a criminal

investigation after a defendant has been arrested and

charged with a criminal offense.

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 trial 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

3

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 Fonseca, 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, 4 V.I.C. S 601.

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

4

the trial court sustained a defense objection to this evidence.1

Although the court precluded the government from using

this evidence in its case-in-chief, the court allowed the

government to use it in rebuttal if Blanche testified.

However, Blanche did not testify, and the records were

never admitted into evidence.

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 (14 V.I.C. SS 42

and 43), justification with regard to self-defense (14 V.I.C.

S 927(2)), lawful violence (14 V.I.C. S 293(a)), and a private

citizen's right to arrest and remove a trespasser. App. IV,

pp. 1067-74. The court agreed to charge on self-defense

and defense of another, but expressed some concerns about

the remaining requests. The court was concerned because,

although "lawful violence" negates criminal liability for

assault and battery, the defendants were charged with

murder. App. IV, p. 1106. After weighing the defense

request, the trial court stated that it would only give the

self-defense and justifiable homicide instructions, and

instructed the jury on those two defenses after closing

arguments.

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 4 V.I.C.S 293(a)

as Moore had requested during the charge conference. Co-

counsel Bornn had been present for the entire charge, but

she did not object to the charge the court gave.

_________________________________________________________________

1. Defense counsel argued that under 4 V.I.C.S 601, the Attorney

General can only issue subpoenas before a person is arrested. Blanche's

medical records were subpoenaed after she had been arrested. Defense

counsel also argued that the medical evidence was privileged.

5

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 S 293(a) was reversible error. That court also

agreed with the defendants' claim that Virgin Islands law

did not empower the Attorney General to subpoena

Blanche's medical records after her arrest. This appeal by

the Government of the Virgin Islands followed.

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 of 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 28 U.S.C.S 1291. They

note that 48 U.S.C. S 1493 -- authorizing appeals from

prosecutions in a territory -- does not authorize the

government to appeal a grant of a new trial in a criminal

case.

48 U.S.C. S 1493 provides:

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. . .

6

(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.

48 U.S.C. S 1493 (1999). The defendants also argue that the

jurisdictional grant contained in 4 V.I.C. S 39(c) does not

apply. That statute states, "the Government of the Virgin

Islands may appeal an order dismissing an information or

otherwise terminating a prosecution in favor of a defendant

or defendants as to one or more counts thereof, except

where there is an acquittal on the merits." Finally,

defendants argue that although 48 U.S.C. S 1613a(c) (1993)

grants us jurisdiction to review "final decisions" of the

District Court for the Virgin Islands, the other provisions of

Virgin Islands law set forth establish that a remand for a

new trial in a criminal case is not a "final order" as is

required for our jurisdiction under 28 U.S.C. S 1291.

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 28

U.S.C. S 1291. Rather, it arises from 18 U.S.C. S 3731. See

Charleswell, 24 F.3d at 574. Section 3731 provides in part:

"In a criminal case an appeal by the United States shall lie

to a court of appeals from a decision, judgment, or order of

a district court dismissing an indictment or information or

granting a new trial after verdict or judgment, as to any one

or more counts. . . ." We held that the phrase,"the United

States," also applies to the government of the Virgin

Islands. See Charleswell, 24 F.3d at 574, citing Gov't of the

Virgin Islands v. Christensen, 673 F.2d 713, 716 (3d Cir.

1982).

We also concluded that our jurisdiction was not affected

by whether the appeal was from the Appellate Division of

the District Court, or the district court, itself, as "the

language of 18 U.S.C. S 3731 provides no basis for holding

that our jurisdiction varies depending on the capacity in

which the district court sat." Charleswell , 673 F.2d at 574-

7

75, citing Gov't of the Virgin Islands v. Mills , 935 F.2d 591,

595-97 (3d Cir. 1991). Accordingly, we have jurisdiction,

and will address the merits.

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 power in issuing the subpoena afer 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 (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.

8

The Appellate Division concluded that the defendants were

entitled to that instruction under relevant provisions of 4

V.I.C. S 293(a). That statute in part defines as lawful,

violence used for:

. . .

(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.

14 V.I.C. S 293(a) (2000).2 The trial judge refused to give a

specific lawful violence instruction under S 293(a), and the

parties now dispute whether Blanche's attorney made a

timely objection. Consequently, the parties disagree about

the appropriate standard of review. The government states

that we must review for plain error. The defendants argue

that our review is plenary.

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, 949 F.2d 677, 681 (3d

_________________________________________________________________

2. The omitted subsections of S 293(a) are not relevant to this appeal.

They address parental violence administered in disciplining children

(S 293(a)(1)), violence used "for the preservation of order in a meeting

for

religious or other lawful purposes, in the case of obstinate resistance to

the person charged with the preservation of order" (S 293(a)(2)), and

violence used in making a lawful arrest pursuant to"lawful orders of a

magistrate or court," (S 293(a)(5)).

9

Cir. 1991), quoting United States v. Young, 470 U.S. 1, 16

(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 The Appellate Division concluded

that Moore's inquiry was sufficient to preserve an objection

to the charge and afforded the jury instructions plenary

review as to Blanche's appeal. However, inasmuch as

Fonseca's lawyer did not object, the court reviewed his

challenge to the jury instruction for "plain error." Fonseca,

119 F.Supp. 2d at 535.

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

_________________________________________________________________

3. Where "the question is whether the jury instructions failed to state

the

proper legal standard, this court's review is plenary." Isaac, 50 F.3d at

1180.

4. The following exchange occurred:

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 section 293, not 393

of Title 4. See, 4 V.I.C. S 293(a)). The court no doubt did believe that

it

had adequately addressed that charge and (as we discuss below), we

believe the charge that was given was sufficient to inform the jury about

the lawful use of deadly force.

10

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 S 293(a), was

reversible error. The court stated:

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

impact 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 (1988). So long as the evidence

presented at trial reveals a basis for the defense, a court

may not refuse a defendant's request for an instruction on

11

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 (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": 14 V.I.C.

S 293(a) ("lawful violence"), 14 V.I.C.SS 41 and 43 ("self-

defense"), 14 V.I.C. S 926 ("excusable homicide"), 14 V.I.C.

SS 927(2)(A) & (B) ("justifiable homicide"). See Isaac, supra

(discussing distinctions between various defenses to

homicide prosecution under Virgin Islands law). The

Appellate Division, however, limited its discussion to

instructions on lawful violence under 14 V.I.C.S 293(a),

and that is all the defendants have argued on appeal.

Accordingly, we need only consider the "lawful violence"

instructions that may be required under that statute. That

inquiry requires that we review each of the arguably

applicable subdivisions of S 293(a) in context with the

evidence produced at trial. In doing so, "we consider the

totality of the instructions and not a particular sentence or

paragraph in isolation." United States v. Coyle, 63 F.3d

1239, 1245 (3d Cir. 1995). The instructions will be upheld

if "the charge as a whole fairly and adequately submits the

issues in the case to the jury." United States v. Thayer, 201

F.3d 214, 221 (3d Cir. 1999), quoting United States v.

Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995).

1. S 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

12

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," 14 V.I.C. S 293(a)(3). As noted above, the trial

court indicated that it was not inclined to charge on lawful

violence because the defendants were charged with

homicide, not assault and battery. 14 V.I.C. S 293(a) is

contained in Chapter 13 of the Virgin Islands Code.

Chapter 13 is, in turn, captioned: "Assault and Battery."

On the other hand, 14 V.I.C. S 927 is contained in Chapter

45 of the Virgin Islands Code which is captioned:

"Homicide." 14 V.I.C. S 927 establishes the defense of

"justifiable homicide," and states that such justification

includes resisting any attempt to murder any person, or to

commit a felony, or to do some great bodily injury upon any

person"14 V.I.C. S 927(2)(A) (emphasis added).

The distinction between these two defenses is readily

apparent. Section 293(a)(3) allows one to use violence to

preserve the peace or prevent "commission of offenses,"

without further defining the offenses that justify resort to

violence. However, S 927 restricts the offenses that justify

resort to deadly force to felonies. Common sense, as well as

the statutory scheme and headings, therefore suggest that

one can only use the kind of deadly force at issue here to

prevent the commission of a felony. A contrary reading

would mean that someone could employ deadly force to

thwart a petty theft, or even a summary offense. We do not

believe that to have been the intent of the legislature in

enacting S 293(a)(3).

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

S 293(a)(3) is relevant in this context, the charge that the

trial court gave adequately explained the governing legal

principles and guided the jury's deliberations. The jury was

13

informed that the defendants had the right to use

reasonable force to resist force being used against them. As

we discuss below, the court's instructions correctly

informed the jury of the circumstances in which the

defendants could use deadly force, even if they were the

initial aggressors.

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 defendants 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 danger or death or

serious bodily harm and the objective reasonableness

of that belief.

. . .

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

14

assault or aggression on the part of Tariq and, on this

record, that is all that S 293(a)(3) required. 5

2. 14 V.I.C. S 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. . . ." 14

V.I.C. S 293(a)(4). However, defendants never contended

that Tariq attempted to enter Finney's home. The

undisputed evidence, including the testimony of defendant

Fonseca, is that Tariq knocked on the door, and Jesse

opened it. Jesse then did retreat back into the room to call

Fonseca, but Tariq remained outside, and he stayed outside

in the hallway during the entire altercation. There is no

evidence to suggest that Tariq tried to get inside.

Accordingly, it was not an abuse of discretion to refuse to

give a charge under subsection (4) of the lawful violence

instruction. It was simply not supported by the testimony.

3. 14 V.I.C. S 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 property" under S 293(a)(6). That does not, of

course, mean that the defendants were entitled to a

formulation of subsection (6) of their choosing."A court errs

in refusing a requested instruction only if the omitted

instruction is correct, is not substantially covered by other

instructions, and is so important that its omission

prejudiced the defendant." United States v. Davis, 183 F.3d

231, 250 (3d Cir. 1999) (emphasis added).

In agreeing with the defendants' assertion that the trial

court erred in not instructing under S 293(a), the Appellate

Division failed to carefully consider the charge that the trial

court actually gave. As set forth above, that charge

_________________________________________________________________

5. To the extent that the defendants are arguing that they had a right to

use deadly force to keep the peace underS 293(a)(3), we reject the

argument outright.

15

accurately and adequately explained defense of self and

property on this record. In their cross-appeal, the

defendants argue that the self-defense charge that was

given was itself erroneous because "the Court erroneously

imposed a duty to retreat on the Defendants and[this]

must also be corrected on retrial." Appellees' Br. at 29,

n.12. However, we do not believe that the instructions

imposed such a duty, and the Appellees have not cited any

specific language in the charge to support that assertion.

The trial court did instruct the jurors:

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 necessary 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 circumstances.

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.

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Generally, the right to use deadly force in self-

defense is not available to one who is the aggressor or

provokes the conflict. However, if one who provokes a

conflict thereafter withdraws from it in good faith and

informs his adversaries by words or action that he

desires to end the conflict, and he's thereafter pursued,

he is justified in using deadly force to save himself or

others from imminent danger or death or serious bodily

harm.6

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

_________________________________________________________________

6. The jury was therefore correctly informed of the limited circumstances

in which the defendants could resort to deadly force to defend

themselves even if they were the initial aggressors.

7. We do not intend to infer anything about whether Virgin Islands law

imposes a duty to retreat before using deadly force. Our research has

not disclosed any reported cases from the Virgin Islands discussing the

duty to retreat in the context of using deadly force. In Isaac, we noted

that "the Virgin Islands definition of excusable homicide restates the

common law and is similar to excusable homicide statutes in Florida,

California, and Mississippi." 50 F.3d at 1183. We also noted the

similarity between justifiable homicide and excusable homicide in the

Virgin Islands. See id. However, there is no uniform rule regarding the

duty to retreat in the common law states we referred to.

The Florida Supreme Court has recognized a duty"to retreat to the

wall" if one can do so safely before using deadly force unless one is in

his or her own home. See Weiand v. State, 732 So. 2d 1944, 1049 (Fl.

1999) (explaining the common law origins of the"castle doctrine"). In

Mississippi there is no duty to retreat so long as the one using deadly

force is in a place where he or she has a right to be and was not the

aggressor. "[I]n such [a] case, he may stand his ground and resist force

by force, taking care that his resistance be not disportioned to the

attack." Wade v. State, 724 So. 2d 1007, 1010 (Miss. App. 1998).

California courts long ago rejected the common law principles underlying

a duty to retreat. See People v. Zuckerman, 132 P. 2d 545, 549-0 (Cal.

1942) ("California courts have definitely rejected the antiquated doctrine

that a defendant will be justified in killing his assailant in self-

defense

only after he has used every possible means of escape by fleeing,

[including] `retreating to the wall.' ").

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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-defense substantially and adequately

included the lawful violence specified in 14 V.I.C.

S 293(a)(6), if it applies in the context of deadly force.

Therefore, the trial court did not err in failing to give the

"lawful violence" charge as requested.

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 Appellate 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.

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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