Govt of VI v. Davis

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

3-27-2009

Govt of VI v. Davis

Precedential or Non-Precedential: Precedential

Docket No. 07-2136

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2136

GOVERNMENT OF THE VIRGIN ISLANDS

v.

JIMMY DAVIS,

Appellant

On Appeal from the District Court of the Virgin Islands

Division of St. Thomas – Appellate Division

(D.C. No. 02-cr-00085)

District Judges: Honorable Raymond L. Finch

and Honorable Curtis V. Gomez

Superior Court Judge: Honorable Maria M. Cabret

Argued December 9, 2008

Before: FISHER, JORDAN and

STAPLETON, Circuit Judges.

(Filed: March 27, 2009 )

Brett G. Sweitzer (Argued)

Defender Association of Philadelphia

Federal Court Division

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Attorney for Appellant

Matthew C. Phelan (Argued)

Office of Attorney General of Virgin Islands

Department of Justice

34-38 Kronprindsens Gade

GERS Complex, 2nd Floor

Charlotte Amalie

St. Thomas, VI 00802

Attorney for Appellee

OPINION OF THE COURT

FISHER, Circuit Judge.

Jimmy Davis appeals from an order entered by the

Appellate Division of the District Court of the Virgin Islands

affirming his conviction for four counts of first-degree assault,

one count of first-degree reckless endangerment, and one count

of unauthorized possession of a firearm during a crime of

violence. Davis argues on appeal that the prosecutor’s

2

references during trial to his post-arrest, post-Miranda 1 silence

violated his right to due process and that, because this error

cannot be considered harmless on this record, he is entitled to a

new trial. We agree and therefore will reverse and remand.

I.

On December 23, 2001, a drive-by shooting occurred at

the intersection of Estate Whim Road and Queen Mary Highway

on St. Croix in the United States Virgin Islands. Davis was

arrested on January 3, 2002. The Government issued an

information in which it alleged that Davis fired gun shots at

Shawn Francis, Sean Petrus, Erica Parrilla, and the daughter of

Francis and Parrilla, Shanadalis, with the intent to commit

murder. A jury trial commenced in the Territorial Court of the

Virgin Islands on April 15, 2002.2

1

See Miranda v. Arizona, 384 U.S. 436 (1966).

2

When this case was tried, the trial court was known as

the Territorial Court and appeals were reviewed by the

Appellate Division. However, since then, the Virgin Islands

Legislature has changed the trial court’s name to the Superior

Court of the Virgin Islands and established the Supreme Court

of the Virgin Islands. Nonetheless, pending decisions of the

Appellate Division may be reviewed by this Court. See

generally Edwards v. HOVENSA, LLC, 497 F.3d 355, 358-59 &

n.2 (3d Cir. 2007).

3

During trial, the Government introduced the testimony of

Francis, Petrus, and Parrilla, each of whom had prior

relationships with Davis. The three witnesses gave a similar

account of the shooting. Specifically, they were traveling in

Francis’s pickup truck, with Francis driving, Parrilla and

Shanadalis in the front seat, and Petrus in the back of the truck.

While Francis’s vehicle was idling at the intersection another

pickup truck approached. Davis was riding in the back of the

second truck and was the only passenger in the truck bed.

Suddenly, multiple gunshots were fired from the passing truck

at Francis’s vehicle. Parrilla testified that she ducked and

covered Shanadalis and heard three shots, but admitted that she

did not see who fired the shots. Petrus and Francis both

identified Davis as the shooter. Three bullets hit the driver’s

area of Francis’s truck, one bullet striking the windshield and

the other two bullets striking the door, though none of the four

individuals in Francis’s truck was injured. After the shooting,

the witnesses returned to Francis’s house and viewed the

damage to the truck, but did not report the incident to the police

until the next day.

Following the Government’s case-in-chief, Davis took

the witness stand and provided a different account of the

shooting. On direct examination, Davis admitted that he was

riding in the truck from which the shots were fired, but testified

that an individual named “Goofy,” whom he insisted was in the

back of the truck with him, had pulled the trigger. According to

Davis, “Bugsy” was driving the truck, Davis’s brother Hector

was in the passenger seat, and Davis and Goofy were in the back

of the truck. When the truck approached Francis’s vehicle,

Goofy fired the first shot at Francis but Francis then pulled a

4

gun and returned fire, at which point Davis ducked for cover.

Davis stated that he saw only Francis and Petrus in the other

truck, and that Petrus was riding in the passenger seat, not in the

back.

During cross-examination, the prosecutor questioned

Davis about whether he had told the police this version of the

story after his arrest:

Q: You were arrested, sir, were you not

approximately a week after this incident,

December 23; is that correct?

A: Afterward.

Q: After you were arrested in this case, sir,

you did not make any statements to the

police. Did you concern yourself whether

or not Goofy, and not you, fired the shots

on December 23?

Defense counsel objected, but the Territorial Court overruled the

objection. The prosecutor continued:

Q: Mr. Davis, do you understand the

question?

A: Repeat.

Q: After you were arrested in this case you

never made any statement to the police.

5

Did you concern yourself that it was

Goofy, and not you, that fired the shots on

December 23?

A: The police never asked me for no

statement.

Q: You understand my question?

A: Yes. They say they don’t have a warrant

for my arrest.

Q: My question was, did you ever make any

statements to the police that it was Goofy,

and not you, that fired the shots; yes or no?

A: No.

Q: And since the time of your arrest up until

the present time, now April, have you ever

supplied any information to the police

about who Goofy is; where he can be

found in relation to what you said happen

here; yes or no?

Defense counsel again objected and argued at sidebar that the

prosecutor’s line of questioning was fundamentally unfair. The

Territorial Court overruled the objection and, after allowing the

court reporter to read back the previous question, permitted the

prosecutor to proceed:

6

Q: Mr. Davis, answer the question please.

A: No. I didn’t give no statement to the

police.

Q: About Goofy?

A: About nobody. The police never ask me.

Q: I understand.

On redirect, defense counsel addressed the prosecutor’s

questioning about Davis’s post-arrest silence:

Q: Now, [the prosecutor] asked you whether

or not you had any contact with the police

officers between the time you were

arrested and today’s date; you remember

that question?

A: Yes.

Q: Sir, when you were arrested what

happened?

A: The police – how you mean?

Q: When you[] were arrested you were taken

to jail?

7

A: Straight to jail. I went to fingerprint and

straight to jail.

Q: You have not been released since?

A: No.

Q: When you were arrested did the police not

tell you, you have a right to remain silent?

A: Yes.

Q: And you understand that to mean you

didn’t have to talk to any police?

A: Until attorney present.

Q: Now, since that time no police has come to

talk to you?

A: No.

During summation, the prosecutor focused on Davis’s

failure to inform the police that another individual ostensibly

fired the shots. Most notably, the prosecutor stated to the jury:

As you retire into your jury room I want you to

think about the credibility of all the witnesses that

put their credibility in issue and took the stand

here during this trial. I want you to ask yourself

can I believe this person? Why should I believe

8

this person? Is there a reason why I should

disbelieve this person? . . . Consider your own

common experiences and common sense when

thinking about on cross-examination. I asked Mr.

Davis between January and April, now, have you

ever supplied the police with any information

concerning where Goofy can be found so the

police can arrest him? Where Goofy can be

located? Have you ever given? No, no, no. Can

you believe that? . . . [I]f the truth was really the

truth there was a guy named Goofy and somebody

else fired the shots, would you not use everything

within your power if it was the truth to notify the

police to at least give them a statement that would

exonerate yourself. No he didn’t do it . . . .

The jury found Davis guilty on all counts and the Territorial

Court entered judgment and sentence on August 14, 2002.

Davis appealed the judgment to the Appellate Division,

arguing, inter alia, that the prosecutor’s references to his post-

arrest, post-Miranda silence violated his constitutional right to

due process under Doyle v. Ohio, 426 U.S. 610 (1976). The

Appellate Division agreed that the references constituted a due

process violation, but found this error to be harmless and

affirmed the judgment. See Davis v. Gov’t of V.I., No. 2002-

085, 2007 WL 1574402, at *3-7 (D.V.I. Apr. 3, 2007).

Davis timely appealed the Appellate Division’s order to

this Court. We have jurisdiction under 48 U.S.C. § 1613a(c).

See Gov’t of V.I. v. Hodge, 359 F.3d 312, 317 (3d Cir. 2004).

9

We will exercise plenary review over the constitutional question

presented in this appeal. See Tyler v. Armstrong, 365 F.3d 204,

208 (3d Cir. 2004) (“In reviewing the Appellate Division’s

orders, this Court ‘should review the trial court’s determination

using the same standard of review applied by the first appellate

tribunal.’” (quoting Semper v. Santos, 845 F.2d 1233, 1235 (3d

Cir. 1988))); United States v. Barnhart, 980 F.2d 219, 222 (3d

Cir. 1992) (“Our standard of review for [a defendant’s] due

process claim is plenary.”).

II.

Davis argues on appeal that although the Appellate

Division correctly concluded that the prosecutor’s references to

his post-arrest, post-Miranda silence violated his right to due

process under Doyle, this constitutional violation amounts to

reversible error. The Government responds by arguing that the

prosecutor’s references were constitutionally permissible and,

even were they impermissible, the error would be harmless

given the evidence presented against Davis. Having reviewed

the record, we conclude that the prosecutor’s references violated

Davis’s right to due process and that the violation in this case

cannot be considered harmless beyond a reasonable doubt.

A.

We begin with the facts of Doyle. In that case, two

criminal defendants who had received Miranda warnings

testified at trial that they had been framed by another individual

and, on cross-examination, the prosecutor questioned them

about whether they had told their exculpatory story to the police

10

when they were arrested. After the trial court overruled defense

counsel’s objections to this line of questioning, the defendants

answered that they had not done so.

On certiorari to the Supreme Court, the government

argued that such questioning was a proper means of impeaching

the defendants’ exculpatory testimony. The Court rejected this

argument, holding that “the use for impeachment purposes of [a

defendant’s] silence, at the time of arrest and after receiving

Miranda warnings, violate[s] the Due Process Clause of the

Fourteenth Amendment.” Doyle, 426 U.S. at 619. The Court

explained that the Miranda warnings are “a prophylactic means

of safeguarding Fifth Amendment rights” and that “[s]ilence in

the wake of these warnings may be nothing more than the

arrestee’s exercise of these Miranda rights.” Id. at 617.

Further, the Court stated that although “the Miranda warnings

contain no express assurance that silence will carry no penalty,

such assurance is implicit to any person who receives the

warnings.” Id. at 618. Therefore, it is “fundamentally unfair

and a deprivation of due process to allow the arrested person’s

silence to be used to impeach an explanation subsequently

offered at trial.” Id.3

3

Although decided under the Fourteenth Amendment,

Doyle applies to federal prosecutions under the Fifth

Amendment as well. United States v. Agee, 597 F.2d 350, 354

n.11 (3d Cir. 1979) (en banc). The Virgin Islands’ Revised

Organic Act of 1954 makes clear that the protections of the Fifth

Amendment and the Due Process Clause of the Fourteenth

Amendment extend to the Virgin Islands. 48 U.S.C. § 1561;

11

In the Court’s post-Doyle jurisprudence, it has

emphasized that the due process violation stems from the

government’s breach of its implicit assurance that the

defendant’s “silence will carry no penalty.” Wainwright v.

Greenfield, 474 U.S. 284, 290-91 (1986). Thus, in defining

some of the boundaries of what due process permits, the Court

has held that Doyle is not violated where the prosecutor

impeaches a defendant with his pre-arrest silence, Jenkins v.

Anderson, 447 U.S. 231, 240 (1980), uses a defendant’s

voluntary statements to the police following Miranda warnings,

Anderson v. Charles, 447 U.S. 404, 408 (1980), or uses a

defendant’s post-arrest silence before Miranda warnings have

been given, Fletcher v. Weir, 455 U.S. 603, 605-07 (1982). In

addition, there may be no Doyle violation where the trial court

sustains an objection to the improper question and provides a

curative instruction to the jury, thereby barring the prosecutor

from using the silence for impeachment. Greer v. Miller, 483

U.S. 756, 764-65 (1987).

Turning to the matter before us, we agree with the

Appellate Division that the prosecutor’s references to Davis’s

silence violated his right to due process. The record shows that

the prosecutor attempted “to elicit the precise inferences that the

[Government] is prohibited from exploiting under Doyle.”

Hassine v. Zimmerman, 160 F.3d 941, 948 (3d Cir. 1998). As

described above, Davis received Miranda warnings and at no

accord Hendrickson v. Reg O Co., 657 F.2d 9, 13 n.2 (3d Cir.

1981) (“[T]he Organic Act requires the same due process

analysis that would be utilized under the federal constitution.”).

12

point did he provide a statement to the police.4 During trial, the

prosecutor sought to impeach Davis’s credibility by highlighting

the fact that he had not advanced his exculpatory version of the

shooting to the police from the time he was arrested to the time

of trial. And the Territorial Court took no action to cure this

constitutional error, overruling defense counsel’s objections.

We find the Government’s reliance on Raffel v. United

States, 271 U.S. 494 (1926), to be misplaced. In Raffel, a case

decided decades before both Miranda and Doyle, the Supreme

Court concluded that Fifth Amendment “immunity from giving

testimony is one which the defendant may waive by offering

himself as a witness” and, consequently, “[h]e may be examined

for the purpose of impeaching his credibility.” Id. at 496-97.

The Government, in characterizing Doyle as an exception to

Raffel, argues that Doyle only limits a prosecutor from

referencing at trial a defendant’s post-Miranda silence at the

4

Even though the Government did not attempt to meet its

burden of establishing that Davis did not receive Miranda

warnings prior to using his post-arrest silence for impeachment,

defense counsel during redirect examination established for the

record that Davis received the warnings upon his arrest. See

United States v. Cummiskey, 728 F.2d 200, 202, 206 (3d Cir.

1984) (indicating “[a]t no time during trial did the government

or either defendant establish the time at which the defendants

had been given the warning prescribed by Miranda” and

remanding for a post-trial hearing on whether warnings had been

issued); see also Appellee’s Br. at 24 (acknowledging that the

prosecutor asked Davis “about his post-Miranda silence”).

13

time of his arrest, and that Raffel thus permits impeachment at

trial on the defendant’s silence during any other time prior to

trial.5 However, in addition to the obvious distinction that Raffel

speaks only to the privilege against self-incrimination rather

than due process, the Government’s position on this point fails

to account for our decision in Hassine, where we found a Doyle

violation based on prosecutorial questioning of a defendant

about his silence during the months of his incarceration period

up until trial, and which controls our decision here. Hassine,

160 F.3d at 947-49 (exercising plenary review over whether the

prosecutor violated Doyle, noting that the case was not subject

to the Antiterrorism and Effective Death Penalty Act of 1996);

cf. United States v. Balter, 91 F.3d 427, 439 (3d Cir. 1996) (“A

defendant might well remain silent for such a period in reliance

on the belief, engendered by the warnings, that his silence could

not in any way be used against him.”).6 Accordingly, we

5

The Government hinges its argument on a footnote in

Doyle, in which the Court found it “unnecessary” to determine

the constitutionality of prosecutorial inquiry into silence beyond

the initial arrest time frame. 426 U.S. at 616 n.6.

6

And, in any event, the Government does not dispute that

the prosecutor focused on Davis’s silence at the time of his

arrest, bringing those references within even its narrow

conception of Doyle. Appellee’s Br. at 24 (“The prosecutor

asked the defendant about his post-Miranda silence at the time

of arrest, and the defendant responded. The prosecutor in

closing and rebuttal did point out that the defendant didn’t speak

at his arrest.”).

14

conclude that the prosecutor’s comments regarding Davis’s

post-arrest, post-Miranda silence violated Doyle and reject the

Government’s argument to the contrary.

B.

Having found a due process violation, we examine

whether this constitutional trial error was harmless beyond a

reasonable doubt. See Chapman v. California, 386 U.S. 18, 24

(1967) (“[B]efore a federal constitutional error can be held

harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.”); see also Brecht v.

Abrahamson, 507 U.S. 619, 629 (1993) (characterizing a Doyle

violation as a “trial error” subject to harmless error inquiry

(citing Arizona v. Fulminante, 499 U.S. 279, 307 (1991))). In

making this determination, the Government must “prove beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Chapman, 386 U.S. at 24;

accord United States v. Korey, 472 F.3d 89, 96 (3d Cir. 2007).

The question “‘is not whether, in a trial that occurred without

the error, a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in this trial was

surely unattributable to the error.’” Korey, 472 F.3d at 96

(quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)

(emphasis omitted)). We have previously determined that Doyle

error may be held harmless beyond a reasonable doubt in cases

where there is overwhelming evidence against the defendant.

See Balter, 91 F.3d at 440; United States v. Dunbar, 767 F.2d

72, 76 (3d Cir. 1985); cf. Harrington v. California, 395 U.S.

250, 254 (1969) (concluding that because “the case against [the

15

defendant] was so overwhelming” the error “was harmless

beyond a reasonable doubt”).

The Appellate Division concluded that the testimony of

Francis, Petrus, and Parrilla was “significant evidence from

which the jury could have found guilt” and therefore the error

“could not have affected the outcome of the trial.” Davis, 2007

WL 1574402, at *7. As an initial matter, we are unsatisfied with

this conclusion insofar as the Appellate Division focused on

whether the evidence was sufficient to convict despite the error,

as opposed to whether there was a reasonable possibility that the

error contributed to the jury verdict. See Satterwhite v. Texas,

486 U.S. 249, 258-59 (1988) (“The question, however, is not

whether the legally admitted evidence was sufficient . . . but

rather, whether the [Government] has proved ‘beyond a

reasonable doubt that the error complained of did not contribute

to the verdict obtained.’” (quoting Chapman, 386 U.S. at 24)).

But more importantly, we are unable to conclude that the

Government presented overwhelming evidence against Davis.

As the Appellate Division indicated, it was undisputed that

someone shot at Francis’s vehicle from the truck in which Davis

was riding. The physical evidence presented at trial, which

included one of the bullets and Francis’s truck, certainly

supported that someone had shot at the vehicle, but favored

neither side’s specific account of the incident or the identity of

the shooter. Consequently, the Government’s case against Davis

depended largely upon the credibility of its three eyewitnesses.

Although Francis, Petrus, and Parrilla provided similar

accounts of the shooting, the three witnesses also indicated that

16

they had close associations – Francis and Parrilla were

romantically involved and had a child, and Francis and Petrus

were neighbors and friends – and the testimony of each

suggested, to varying degrees, a prior antagonistic relationship

with Davis. Additionally, Francis and Petrus gave inconsistent

testimony about what happened on the morning of the shooting;

Francis testified that Petrus was with him at a local store that

morning (where they appeared to have some sort of altercation

with Davis and his brother), but Petrus indicated that he was not

there. Further, despite their prior statements to the police

indicating that about four shots had been fired, Francis and

Petrus testified during trial that Davis fired three shots. Finally,

the witnesses acknowledged that they delayed reporting the

shooting to the police until a day after the incident.

Compared to the instances in which we have considered

Doyle error harmless based on overwhelming evidence against

a defendant, the Government’s case against Davis falls short of

the mark. For example, in Balter, we concluded that any Doyle

violation was harmless because the government presented ample

evidence that the defendant agreed to and took part in a plan to

murder another individual; indeed, the defendant’s co-

conspirator in that case provided comprehensive testimony

about “every aspect of [the defendant’s] involvement,” which

was largely corroborated by taped conversations between the

defendant and other co-conspirators. 91 F.3d at 440. And in

Dunbar, we determined that the evidence was overwhelming

where two bank tellers identified the defendant from a

photographic display after a surveillance camera captured

pictures of the defendant robbing a bank, and one of the

defendant’s friends testified that the defendant had confessed to

17

robbing the bank and had shown him the stolen money. 767

F.2d at 73. Here, in contrast, our review of the record leaves us

unconvinced that the evidence against Davis was so

overwhelming that the jury’s verdict “was surely unattributable

to the error.” Korey, 472 F.3d at 97 (internal quotation marks

omitted).

Moreover, the severity of the Doyle violation weighs in

favor of reversal. In this case, because of the conflicting

versions of the shooting, the credibility of the witnesses was

crucial to the jury’s verdict. Consequently, the prosecutor’s

impermissible comments about Davis’s failure to provide his

exculpatory version of the shooting to the police went to the

core of his theory of defense and, as a result, his credibility. See

United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir. 1984)

(finding that Doyle error could not be held harmless where “the

issue of whether [the defendant] had in fact related a similar

story to police when he was arrested was crucial to the theory of

the defense” and the prosecutor’s statements about the

defendant’s silence during cross-examination and closing

argument “attacked the heart of [the defendant’s] case” (internal

quotation marks omitted)). Nor was this an instance of an

isolated or ambiguous reference to a defendant’s silence. See

United States v. Curtis, 644 F.2d 263, 270-71 (3d Cir. 1981)

(finding that where the trial court allowed cross-examination on

post-arrest silence and the prosecutor later referenced the silence

during closing argument, the references were “neither isolated

nor ambiguous” and the “errors, cumulative in effect,” were not

harmless). The prosecutor repeatedly highlighted to the jury that

Davis failed to offer his explanation to the police, directly

undermining the plausibility of his defense. See United States

18

v. Agee, 597 F.2d 350, 359 (3d Cir. 1979) (en banc) (stating that

even assuming Doyle error, it was harmless because this case

was not one “in which repetitive questioning focused the jury’s

attention on the defendant’s silence,” the “question was

ambiguous,” and the “question did not directly link [the

defendant’s] purported silence with his exculpatory testimony”);

cf. Marshall v. Hendricks, 307 F.3d 36, 76 (3d Cir. 2002)

(analyzing for harmlessness and stating that the attack against

the defendant was “indirect,” unlike in Doyle where “the

prosecutor attacked the defendant directly”).

Further, the absence of a curative instruction by the

Territorial Court likely left the jury with the false impression

that the prosecutor’s references to Davis’s silence, including any

adverse credibility inferences to be drawn from such silence,

were appropriate. Cf. Dunbar, 767 F.2d at 76 (stating that, even

assuming Doyle was violated, the error was harmless, noting

that there was overwhelming evidence against the defendant and

the trial court “gave an adequate curative instruction”). We

disagree with the Government’s assertion that the Territorial

Court’s “presumption of innocence” jury instruction sufficiently

cured the Doyle error. To the contrary, the Territorial Court

likely compounded the unchecked due process violation here by

instructing the jury that, when weighing the credibility of a

witness, it should determine whether the witness’s testimony

was contradicted by what that witness had said or done at

another time. Cf. Gov’t of V.I. v. Mujahid, 990 F.2d 111, 117

(3d Cir. 1993) (finding that the trial court’s failure to give a

curative instruction compounded the prejudice caused by the

error).

19

The Government relies on our decision in Hassine in

arguing that the Doyle violation was harmless in this case. But

the harmless error analysis in that case is of limited value here

because it involved an appeal from the denial of habeas corpus

relief, which generally triggers a different, less demanding legal

standard than Chapman for assessing harmless error. See

Brecht, 507 U.S. at 622-23, 637-38 (holding that the “substantial

and injurious effect or influence” standard, as opposed to the

“harmless beyond a reasonable doubt” standard, “applies in

determining whether habeas relief must be granted because of

constitutional error of the trial type” (citing Kotteakos v. United

States, 328 U.S. 750, 776 (1946))); see also O’Neal v.

McAninch, 513 U.S. 432, 438 (1995) (stating that “the more

lenient Kotteakos harmless-error standard, rather than the

stricter Chapman standard, normally governs cases of habeas

review of constitutional trial errors”). Indeed, we explicitly

noted in Hassine that, in applying the less onerous habeas

harmless error standard, we did not reach the issue of whether

the error would pass muster under Chapman. 160 F.3d at 952,

955 n.14.

In addition, the prosecution in Hassine introduced

significantly more evidence against the defendant than the

Government presented here, including the testimony of thirty-

four witnesses, many of whom testified consistently about the

defendant’s plan to commit murder. The prosecution in that

case also presented a considerable amount of evidence regarding

the defendant’s suspicious conduct during and after the time of

the incident, and the defendant’s own testimony was largely

undermined by the weight of the evidence against him. Further,

in regard to the Doyle violation in Hassine, the trial court

20

sustained all three objections to the prosecutor’s improper

questioning, which prevented the defendant from answering the

questions. This stands in stark contrast to the circumstances

here, where the Territorial Court overruled defense counsel’s

objections and allowed the prosecutor to unfairly utilize Davis’s

answers to the Doyle-violative questioning to attack his

credibility before the jury.

Accordingly, considering the lack of overwhelming

evidence in this case along with the prosecutor’s repetitive

references to Davis’s post-arrest, post-Miranda silence directed

at the theory of his defense, we cannot say beyond a reasonable

doubt that this violation of Doyle did not contribute to the jury’s

verdict.

III.

Although we conclude that a reversal is necessary, we

believe it prudent to address Davis’s challenge to the Territorial

Court’s jury instruction regarding transferred intent, given the

likelihood of this issue’s reoccurrence at a new trial. Over

Davis’s objection, the Territorial Court included the following

instruction in its charge to the jury:

If you find that the defendant assaulted Shawn

Francis with the intent to murder him and by

mistake or accident assaulted Sean Petrus, Erica

Parrilla an[d] Shanadalis Francis, the element of

intent is satisfied even though the defendant did

not assault, with the intent to murder Sean Petrus,

Erica Parrilla and Shanadalis Francis. The law

21

transfers the intent from the original victim to any

unintended victims.

On appeal, Davis argues that the doctrine of transferred intent

does not apply to first-degree assault as defined under Virgin

Islands statutory law. Exercising plenary review over this

challenge to the legal propriety of the instruction, we agree.

United States v. Zehrbach, 47 F.3d 1252, 1260 (3d Cir. 1995)

(en banc).

The information charged Davis, inter alia, with four

counts of first-degree assault in violation of subsection (1) of

section 295, which states: “Whoever . . . with intent to commit

murder, assaults another . . . shall be imprisoned not more than

15 years.” V.I. Code Ann. tit. 14, § 295(1). While we have not

previously had occasion to decide whether the transferred intent

doctrine applies to subsection (1) of section 295, our precedent

interpreting the similar subsection (3)7 is instructive in this

regard. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809

(1989) (“[T]he words of a statute must be read in their context

and with a view to their place in the overall statutory scheme.”).

We interpreted subsection (3) of section 295 in

Government of Virgin Islands v. Greenidge, 600 F.2d 437 (3d

Cir. 1979). In that case, the defendant was convicted of

7

Subsection (3) of section 295 states: “Whoever . . . with

intent to commit rape, sodomy, mayhem, robbery or larceny,

assaults another . . . shall be imprisoned not more than 15

years.” V.I. Code Ann. tit. 14, § 295(3).

22

assaulting an individual with the intent to commit rape. The

evidence, however, demonstrated that the man whom the

defendant assaulted was not the same person the defendant

intended to rape – the defendant pointed a gun at the man,

grabbed a woman with whom the man was walking, and

subsequently raped her – and we reversed the conviction,

finding that “a necessary element of the crime of assault with

intent to commit rape is that the assault have been committed on

the same person whom the defendant intended to rape.” Id. at

439-40. We reaffirmed this interpretation of subsection (3) in

Government of Virgin Islands v. Brown, 685 F.2d 834 (3d Cir.

1982), in which the defendant was charged with several counts

of assault with the intent to commit robbery. Although the trial

court in that case instructed the jury that the prosecution was

required to prove that the defendant “had the specific intent to

commit robbery,” we concluded that the instruction misstated

the law, explaining that the defendant’s multiple convictions for

first-degree assault could “be sustained only if the evidence

showed beyond a reasonable doubt that the defendants not only

assaulted their victims but intended to commit robbery on each

of them specifically.” Id. at 841.

The only apparent distinction between subsections

(1) and (3) of the first-degree assault statute is the nature of the

underlying selection of crimes which the defendant must have

the specific intent to commit during the perpetration of the

assault; both provisions state that the specific intent to commit

an underlying crime be directed against the individual assaulted.

Cf. United States v. Lanier, 520 U.S. 259, 266 (1997) (“[T]he

canon of strict construction of criminal statutes, or rule of lenity,

ensures fair warning by so resolving ambiguity in a criminal

23

statute as to apply it only to conduct clearly covered.”). Thus,

in light of our interpretation of subsection (3), we consider it

appropriate to extend the teachings of Greenidge and Brown to

subsection (1) of section 295. Cf. United States v. Nader, 542

F.3d 713, 717 (9th Cir. 2008) (stating that “statutes dealing with

similar subjects should be interpreted harmoniously” (internal

quotation marks omitted)); Bundens v. J.E. Brenneman Co., 46

F.3d 292, 305 n.28 (3d Cir. 1995) (“[N]o one subsection of a

statute should be read in isolation.”). The transferred intent

instruction here relieved the Government of its burden of

proving beyond a reasonable doubt that Davis had the specific

intent to commit murder against each individual on whom the

assault was committed. See Brown, 685 F.2d at 841 (“The jury

should have been instructed that in addition to the other essential

elements, the government had to prove beyond a reasonable

doubt that the defendants intended to rob the particular victim

on whom the assault was perpetrated.”). As a result, we agree

with Davis that it was error to give the transferred intent

instruction. Because we have already determined that the Doyle

violation is reversible error, however, we need not decide

whether this error constitutes a separate ground for reversal.8

8

Davis raises one additional issue on appeal, arguing that

the trial court committed reversible error in striking one of the

venire members during voir dire. However, unlike the question

involving the transferred intent instruction, which may reemerge

during a new trial, we see no reason to address this issue.

24

IV.

For the foregoing reasons, we will reverse the order of

the Appellate Division, vacate the judgment of conviction, and

remand for further proceedings, including a new trial.

25