Government of the Virgin Islands v. Luis Parrilla

BECKER, Circuit Judge,

dissenting

Although I believe that the Virgin Islands mayhem statute, 14 V.I.C. § 1341, was unconstitutional as applied to the defendant, Luis Parrilla, I would affirm his conviction because I am satisfied beyond a reasonable doubt that this error did not contribute to the verdict. However, because harmless error analysis does not apply unless the statute in question is facially valid, I must first address the majority's conclusion that § 1341 is not. Since I conclude there is a limiting construction of § 1341 that renders the statute constitutional in certain circumstances, I would hold that § 1341 is facially valid. I conclude that the district court's error was harmless because I believe that on this record no reasonable fact finder could decide that Parrilla did not intend to inflict injury on James Duggan.

I.

It is well recognized that a "facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 , 107 S. Ct. 2095, 2100 (1987) (emphasis added). In my view, Parilla's argument that § 1341 is facially void is without merit because there is a limiting construction of § 1341 which creates a permissive rather than a mandatory presumption.

As the majority has explained, Parrilla was convicted of assault with intent to commit mayhem in violation of 14 V.I.C. § 295. Section 295 incorporates the substantive mayhem statute, 14 V.I.C. § 1341, which defines mayhem as the willful act of disfiguring or disabling another with the intent to injure, disfigure, or disable. However, with respect to the intent requirement, § 1341(b) states *368 that "[t]he infliction of injury is presumptive evidence of the intent required by subsection (a) of this section."

The Supreme Court has held that a statute essentially identical to § 1341 is constitutional on its face. In County Ct. of Ulster County v. Allen, 442 U.S. 140 , 99 S. Ct. 2213 (1979), the Court upheld the constitutionality of a New York statute which provided that a defendant's presence in an automobile, other than one that was stolen or a commercial vehicle such as a taxicab, is "presumptive evidence" that any weapons found in the automobile were in the defendant's possession, except when another occupant of the car had the weapon on his or her person. 1 See id. at 142 , 99 S. Ct. at 2217 . The Court held that this statutory presumption was permissive when given the limiting construction read into the statute by the trial court in its jury instructions. See id. at 160-62 & n.20, 99 S. Ct. at 2226 -27 & n.20.

The instructions explained that if the jury found that the defendants were in the car when the weapons were found, this created presumptive evidence of their possession of the weapons. The court instructed the jurors that this meant that they:

may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption ... is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced. The presumption . . . need not be rebutted by affirmative proof or affirmative evidence but may be rebutted by any evidence or lack of evidence in the case.

Id. at 161 n.20, 99 S. Ct. at 2227 n.20 (emphasis added; citations and internal quotations omitted). The Court stated that the construction of the New York statute reflected in the jury charge "gave rise to a permissive inference available only in certain circumstances, rather *369 than a mandatory conclusion of possession, [which] could be ignored by the jury even if there was no affirmative proof offered by the defendants in rebuttal." 442 U.S. at 161 , 99 S. Ct. at 2226-27 . The Court held that the New York statute was not, therefore, unconstitutional on its face. See id. at 162-63 , 99 S. Ct. at 2227 .

Like the statute at issue in County Ct. of Ulster County, § 1341(b) provides that proof of the basic fact is "presumptive evidence" of the elemental fact. See 14 V.I.C. § 1341(b). The difference between the two statutes is only that they deal with different issues — the New York statute with an inference of possession of weapons in a car and the Virgin Islands statute with an inference of intent to maim. In my view, the same limiting construction which made the New York statute facially valid in County Ct. of Ulster County is available to limit § 1341 and thus render it constitutional on its face. More specifically, the "presumptive evidence" created by the government's proof of infliction of the injury under § 1341(b) need not be construed to create an irrebutable presumption that the defendant intended to injure the victim. Rather, as in County Ct. of Ulster County, the statute can and should be construed to create a presumption that may be rebutted by the defendant through the introduction of any evidence or even by pointing to an absence of evidence on the government's behalf. 2

Under such an interpretation, a defendant is under no obligation to introduce affirmative evidence that he or she did not intend or desire to injure the victim. As in County Ct. of Ulster County, such a construction would render § 1341(b) facially constitutional, as it *370 would create only a permissive presumption. It may be that when the presumption created by § 1341(b) is limited by the narrowing construction just described it still establishes what might technically be called a "mandatory" presumption. However, as the Court has made clear in County Ct. of Ulster County, 442 U.S. at 157 n.16, 99 S. Ct. at 2225 n.16, when a mandatory presumption places such a minimal burden on the defendant, it is the functional equivalent of a permissive presumption, and should be analyzed as such.

Because we serve here as the equivalent of a state supreme court (for the Virgin Islands), see 48 U.S.C. § 1612 , we are empowered to impose our own limiting construction upon § 1341 to render it constitutionally valid. In addition, it is our duty to construe a statute as constitutional when such a construction is fairly possible. See, e.g., United States v. Security Indus. Bank, 459 U.S. 70, 78 , 103 S. Ct. 407, 412 (1982); International Ass'n of Machinists v. Street 367 U.S. 740, 749-50 , 81 S. Ct. 1784, 1790 (1961). I therefore believe that the majority incorrectly chooses not to read into § 1341 the limiting construction sanctioned by the Court in County Ct. of Ulster County which would make it facially valid.

Although in my view § 1341 is valid on its face, I conclude that it was unconstitutionally applied to Parrilla. Unlike the trial court in County Ct. of Ulster County, which explained to the jurors that any presumption created by the government's evidence could be easily rebutted by the defendants, the district court here merely recited the bare language of § 1341 in its jury charge. 3 Although at the outset of its instructions, the district court did explain to the jury: (1) the reasonable doubt standard; (2) that the government bore the burden of proof on all elements of each crime charged; and (3) the definition of specific intent, this generalized preliminary discus *371 sion did not suffice to explain to the jury that § 1341 created a permissive presumption only.

Without an explanation that the presumptive evidence of intent could be rebutted by Parrilla, the jurors may have believed either that they were automatically required to presume Parrilla had intended to injure Duggan once the government had established that Parrilla had inflicted the injury, or that the presumption could only be rebutted by the introduction of substantial contrary evidence by Parrilla. See Sandstrom v. Montana, 442 U.S. 510, 517 , 99 S. Ct. 2450, 2455-56 (1979). Under either interpretation, the burden of persuasion on the intent element was effectively shifted to Parrilla due'to the district court's failure to apply a limiting construction to § 1341 in its jury instructions. See Id. at 517-18, 99 S. Ct. at 2454-57. 4

Although I would hold that § 1341 was unconstitutionally applied to Parrilla, I conclude his conviction should be affirmed because the error was harmless. In Rose v. Clark, 478 U.S. 570 , 106 S. Ct. 3101 (1986), the Court held that when jury instructions create an impermissible mandatory presumption, courts must apply harmless error analysis under Chapman v. California, 386 U.S. 18 , 87 S. Ct. 824 (1967). See 478 U.S. at 580-81 , 106 S. Ct. at 3107 .

To the extent there is potentially conflicting language in County Ct. of Ulster County, it is distinguishable. In County Ct. of Ulster County, the Court stated that when a presumption is deemed mandatory, the conviction must be reversed regardless of the record evidence supporting the conviction. See 442 U.S. at 159-60, 99 S. Ct. at 2226. However, a close reading of the case in light of Rose v. Clark reveals that this statement applies only in situations in which the statute under which the defendant was convicted is found facially void due to its imposition of a mandatory presumption. In all other situations in which a defendant is subject to a mandatory presumption, harmless error analysis applies.

As I have explained, see supra Part I, facial unconstitutionality should not present a problem on this appeal. Moreover, based on *372 the record evidence, I believe that no rational jury could have concluded that, although Parrilla caused Duggan's injury by shooting at him, he did not intend to harm him. For this reason, I would hold that the mandatory presumption applied to Parrilla through the district court's jury instruction was harmless.

As a general matter, the evidence adduced at trial along with the jury's unchallenged convictions of Parrilla on the other counts, 5 establish that Parrilla, along with several others, set out on spree of violent armed robberies on the night he shot Duggan. The evidence at trial demonstrated that quite a number of the incidents were violent — e.g., one victim was hit in the head with the butt of a rifle during the robbery — and were often initiated by Parrilla. With respect to the conviction at issue here, assault with intent to commit mayhem, 14 V.I.C. § 295 (incorporating § 1341), the evidence adduced at trial came from the victim, James Duggan, and from a friend of Parrilla's who was involved in the robberies, Wendell Simeina.

Duggan testified that he had pulled over to the side of the road with his motor scooter and that when a car drove up, he got on his scooter and attempted to drive away. However, before he could drive away, according to Simeina, the occupants of the car told him to "freeze)" and Parrilla and another man, Papito, began to shoot at Duggan. Duggan testified that he was hit by a bullet and fell off his bike. He further testified that he then rolled in the grass in an effort to escape his assailants, but as he was rolling away, the shooting continued. At this time, Duggan heard one of the assailants say "Get him" or something to that effect. He was able to roll into a bush where he kept still, hoping to convince the men that he had died. That was the end of Duggan's contact with Parrilla, Simeina, and the others, who eventually left the scene.

In my view, no rational fact finder could have concluded that Parrilla did not intend to injure Duggan. The majority contends that the jury could have believed that Parrilla was only trying to scare Duggan, not to hurt him. See Majority Typescript at 11.1 find this theory implausible given the evidence. The testimony established that Parrilla repeatedly fired at Duggan, even after he had *373 been hit and was rolling away to escape from Parrilla and the others, undermining the claim that Parrilla was merely trying to frighten Duggan. At this point, Duggan was clearly petrified. Given Parrilla's repeated use of deadly force against Duggan, I fail to see how a reasonable fact finder could have concluded that he did not intend to maim Duggan. Thus, in my view, the fact that the jury instructions erroneously imposed a mandatory presumption regarding Parrilla's intent to injure Duggan was harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24 , 87 S. Ct. at 828 .

The majority contends that there was only tenuous evidence that Parrilla's shot caused Duggan's injury because there was testimony that both Parrilla and one of his confederates, Papito, fired shots at Duggan. See Majority Typescript at 11 n.7. The majority thus argues that there was at best weak evidence supporting the basic fact — that Parrilla inflicted Duggan's injury — -which gave rise to the presumption that Parrilla intended to harm Duggan under the unconstitutional application of § 1341. The majority submits that this is another reason why Parrilla's conviction should be reversed.

In my view, it is irrelevant that both Parrilla and Papito shot at Duggan so that we cannot know whose bullet actually injured him. Parrilla was convicted for assault with intent to commit mayhem, which requires proof that Parrilla assaulted Duggan and intended to commit mayhem against him. See 14 V.I.C. § 295. It does not, however, require proof that Parrilla actually injured Duggan.

It is true that the mandatory presumption applied to Parrilla was based on the premise that Parrilla had himself inflicted injury on Duggan, a fact which was not, as the majority contends, established beyond a reasonable doubt. However, harmless error analysis involves a review of the whole record to see whether a rational fact finder could have concluded that Parrilla did not have the requisite intent even if the impermissible mandatory presumption had not been applied. Thus, the fact that the constitutionally infirm presumption applied to Parrilla relied on the unproven fact that Parrilla had injured Duggan is inconsequential to the harmless error analysis. My conclusion that a reasonable jury could not have concluded that Parrilla did not intend to injure Duggan thus stands regardless of whether Parrilla actually hit Duggan or not.

Therefore, although in my view the district court erred when it applied § 1341 in a way that imposed a mandatory presumption on the jury, this error was harmless given the evidence adduced at trial. I thus respectfully dissent.

In relevant part, the statute at issue in County Ct. of Ulster County stated:

The presence in an automobile, other than a stolen one or a public omnibus, of any firearm ... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found, except... (a) if such weapon ... is found upon the person of one of the occupants therein ....

N.Y. Penal Law § 265.15 (3) (McKinney 1967) (emphasis added).

As I discuss below, see infra page 21, the jury instructions here, unlike those at issue in County Ct. of Ulster County, did not provide a limiting construction of the statute. While I consider that fact to be highly relevant to Parilla's as-applied challenge, I do not believe that it renders § 1341 void on its face. The Court in County Ct. of Ulster County instructs courts to look at the trial court's jury instructions in determining whether the defendant was subjected to a mandatory or a permissive presumption. See 442 U.S. at 157 n.16, 99 S. Ct. at 2225 n.16. Given general principles of constitutional analysis with regard to facial challenges, I understand the Court to mean by this statement that courts should look to the jury charge utilized in the case as it may suggest potential limiting constructions of the statute. However, while the failure of the trial court to provide a limiting construction in its jury charge is always relevant to an as-applied challenge, this failure does not by itself render a statute void on its face as there may nonetheless be an available limiting construction. Thus, I do not believe the omission of a limiting construction in the trial court's jury charge to be dispositive with respect to the facial validity issue.

With respect to the conviction Parrilla has challenged, the district court instructed the jury:

Now Count 7, which alleges Assault with Intent to Commit Mayhem, requires that you find:

The defendant used or threatened to use unlawful violence upon the person of Joseph Duggan; and that the defendant seriously disfigured or disabled a member or organ of Joseph Duggan's body, that is, his foot; or that the defendant seriously diminished Joseph Duggan's physical vigor by the injury to his foot. The infliction of injury is presumptive evidence of intent.

[App. at 64]

In addition, even if some jurors did believe that the instructions imposed a permissive presumption, as long as other jurors reasonably may have believed otherwise, the instructions were constitutionally infirm. See Sandstrom, 442 U.S. at 518 , 99 S. Ct. at 2456-57 .

In addition to the conviction Parrilla has challenged on appeal, the jury convicted Parrilla of two counts of assault with a deadly weapon with intent to commit robbery, and one count of armed robbery.