Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
5-20-1994
Gov't of the Virgin Islands v. Charleswell
Precedential or Non-Precedential:
Docket 93-7372
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"Gov't of the Virgin Islands v. Charleswell" (1994). 1994 Decisions. Paper 24.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 93-7372 and 93-7391
____________
GOVERNMENT OF THE VIRGIN ISLANDS,
Appellant in No. 93-7372
v.
JUNIEL CHARLESWELL,
Appellant in No. 93-7391
____________________
ON APPEAL FROM THE APPELLATE DIVISION OF
THE DISTRICT COURT OF THE VIRGIN ISLANDS
Division of St. Thomas and St. John
(D.C. Criminal No. 91-00056)
____________________
Argued: April 21, 1994
Before: STAPLETON, ALITO, and WEIS, Circuit Judges
(Opinion Filed: May 20, l994 )
____________________
ROSALIE SIMMONDS BALLENTINE
Attorney General
PAUL L. GIMENEZ
Solicitor General
FREDERICK HANDLEMAN (Argued)
Assistant Attorney General
DARLENE C. GRANT
Office of the Attorney General
8050 Kronprindsens Gade, Ste. 1
St. Thomas, U.S.V.I. 00803
Attorneys for the Government of the Virgin Islands
RHYS S. HODGE, ESQ. (Argued)
19 Norre Gade
P. O. Box 6520
St. Thomas, U.S.V.I. 00804
1
Attorney for Juniel Charleswell
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
Juniel Charleswell was convicted on various criminal
charges in the Territorial Court of the Virgin Islands, but the
Appellate Division of the District Court of the Virgin Islands
reversed and held that he was entitled to a new trial. The
Appellate Division concluded that the Territorial Court committed
plain error because it gave a curative instruction, instead of
declaring a mistrial sua sponte, when the prosecutor made
improper remarks during rebuttal summation. The Government of
the Virgin Islands has appealed this decision, and Charleswell
has cross-appealed. We hold that the Territorial Court did not
commit plain error in failing to grant a mistrial sua sponte
based on the prosecutor's comments. We do not reach the
arguments raised in Charleswell's cross-appeal because those
arguments, although raised before the Appellate Division, were
not addressed by that court. We therefore reverse the decision
of the Appellate Division and remand to that court so that it can
consider Charleswell's remaining arguments.
I.
In 1990, Charleswell was charged by information with
(count I) assault on a peace officer with a deadly weapon, in
2
violation of 14 V.I.C. § 297(5); (count II) possession of a
deadly weapon with intent to use it during the commission of a
crime of violence, in violation of 14 V.I.C. § 2251(a)(2)(B);
(count III) drawing and exhibiting a deadly weapon, in violation
of 14 V.I.C. § 621(1); and (count IV) destruction of personal
property, in violation of 14 V.I.C. § 1266.
Charleswell was tried on these charges before a jury in
the Territorial Court. The evidence showed the following. At
about 2:00 or 3:00 a.m. on the morning of September 24, 1990,
Charleswell, an off-duty police officer, called the police
dispatcher in St. Thomas and stated, using code, that the police
station at Four Winds Plaza was under attack. Charleswell then
drove to that station armed with his service revolver. According
to Officer Milton Petersen, who was on duty at the time,
Charleswell pointed the revolver at Petersen's chest. Petersen
stated that he pushed Charleswell's hand away just before
Charleswell pulled the trigger. As a result, the bullet was
fired into the ceiling. Charleswell told Petersen that he did
not want to hurt him, and Petersen left the station. Charleswell
then went upstairs and obtained a shotgun. After telephoning
Central Command and demanding that the dispatcher send more
officers to the Four Winds Plaza station, Charleswell fired
several shotgun blasts into the wall. He then walked downstairs
and outside, where he fired the shotgun once into the ground.
After speaking with the officers assembled outside, he entered
his vehicle and drove to Central Command.
3
When Charleswell arrived, Central Command had been
evacuated. Charleswell entered the building and fired rounds
into the walls. At about 6:00 a.m., after speaking with several
officers, he surrendered.
At trial, the "primary thrust" of Charleswell's defense
was that, because of diminished capacity, he lacked the specific
intent necessary to commit the offenses charged in counts I and
II. App. Div. Op. at 4. Charleswell took the stand and
testified that he had been mistreated on the job because he had
arrested the son of the chief of police. This mistreatment, he
said, had caused great stress and had induced him to "do a lot of
drinking," to attempt suicide, and to obtain psychiatric
counseling. App. 246-47. He testified that the stress had built
up on him for two days and had then "somewhat exploded." Id. at
249. He also testified that he had consumed "a couple of beers"
before driving to the Four Winds Plaza station. Id. at 251.
During rebuttal summation, the prosecutor made the
following comments:
We know he's [Charleswell] not crazy
otherwise he would have pleaded insanity. So,
what is this? It's just -- he's asking
"excuse me for what I did." Now, if the
defendant does need help to cope with stress,
then acquitting him, finding him not guilty
of all of those charges is not going to get
him that help. It's just not.
App. at 386.
Defense counsel did not object when the prosecutor made
these comments but instead waited until the court had instructed
the jury. The court and both attorneys then engaged in a lengthy
4
discussion concerning the need for and the phrasing of curative
instructions (see App. 436-44), and the court gave detailed
curative instructions. With respect to the prosecutor's
reference to the defendant's failure to raise an insanity
defense, the court stated: "I just want to remind you that the
defendant has no obligation to raise any particular defense or to
produce any evidence or even call any witnesses," and the court
therefore instructed the jury "to disregard that comment." Id.
at 445. With respect to the prosecutor's statement regarding the
defendant's alleged need for help to cope with stress, the court
stated: "Now, that might lead to the wrong conclusion, that you
have to find him guilty to get him help. Okay, and we didn't
want to leave you with that impression." Id. The court then
reminded the jurors that if they did not find that all of the
elements of the offenses had been established beyond a reasonable
doubt, they were required to find the defendant not guilty. Id.
at 446. After giving these instructions, the court stated: "All
right, Attorney Hodge [Charleswell's counsel] and Miss Counts
[the prosecutor]?" Id. Charleswell's counsel responded: "Yes."
Id. At no time did Charleswell's attorney request that the court
grant a mistrial based on the prosecutor's remarks.
The jury found Charleswell guilty on all four counts.
After sentencing, Charleswell appealed to the Appellate Division
of the District Court, contending that he was entitled to
judgment of acquittal on counts I and II and that the Territorial
Court had erred in refusing to grant a continuance, in excluding
certain expert testimony, and in failing to declare a mistrial
5
based on the prosecutor's remarks in rebuttal summation. Without
reaching Charleswell's other arguments, the Appellate Division
held that the prosecutor's comments had resulted in plain error.
The court explained:
The prosecutor's remarks pertained to a
central issue at trial, namely appellant's
purported diminished capacity. It was
entirely inappropriate to discuses
appellant's choice of plea and to predict
that an acquittal would serve to deny
appellant's the psychiatric treatment he
needs. We hold that these comments severely
prejudiced appellant's right to a fair trial
and that the curative instructions were
insufficient to remedy this particularly
egregious misconduct.
The Government of the Virgin Islands subsequently filed
a notice of appeal to this court, and Charleswell then filed
notice of cross-appeal.
II.
Before reaching the merits of the appeal or cross-
appeal, we must decide whether we have appellate jurisdiction.
A. Charleswell argues that we lack jurisdiction over
the Government of the Virgin Islands' appeal because the
Appellate Division's decision granting a new trial was not a
"final" decision under 28 U.S.C. § 1291. Charleswell relies on
In the Matter of Alison, 837 F.2d 619 (3d Cir. 1988), in which we
held that a particular order of the Appellate Division remanding
a civil case for trial in the Territorial Court was not "final"
under 28 U.S.C. § 1291.
6
In this case, however, our jurisdiction over the
Government of the Virgin Islands' appeal is not dependent on 28
U.S.C. § 1291. Instead, we have jurisdiction over that appeal
under 18 U.S.C. § 3731, which provides in pertinent 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 . . . granting a new trial
after verdict or judgment, as to any one or
more counts . . . .
While this provision refers to an appeal by "the United
States," we have held that it applies to appeals taken by the
Government of the Virgin Islands. Government of the Virgin
Islands v. Christensen, 673 F.2d 713, 716 (3d Cir. 1982).
Moreover, in Government of the Virgin Islands v. Mills, 935 F.2d
591, 595-97 (3d Cir. 1991), we specifically held that this
provision authorizes the Government of the Virgin Islands to
appeal a district court order granting a new trial. Although the
district court in Mills had sat in its capacity as a trial court,
rather than in its capacity as an appellate tribunal reviewing
decisions of the Territorial Court, the language of 18 U.S.C.
§3731 provides no basis for holding that our jurisdiction varies
depending on the capacity in which the district court sat. Thus,
we conclude that we have jurisdiction over the Government of the
Virgin Islands' appeal pursuant to 18 U.S.C. § 3731.
B. We also hold that the Government of the Virgin
Islands' notice of appeal was timely. The Federal Rules of
Appellate Procedure govern appeals to our court from the District
Court of the Virgin Islands. Vasquez v. Fleming, 617 F.2d 334
7
(3d Cir. 1980).1 Therefore, the time limits for the filing of a
notice of appeal in a criminal case are those set out in Fed. R.
App. P. 4(b). At the time in question here,2 this provision
stated in relevant part:
1
In Vasquez we relied on language in 48 U.S.C. § 1615 (1982)
(amended 1984) stating that such appeals were subject to "[t]he
rules of practice and procedure" promulgated by the Supreme Court
pursuant to the Rules Enabling Act, 28 U.S.C. § 2072. We wrote
(617 F.2d at 335):
The Federal Rules of Appellate Procedure were
promulgated under section 2072 and thus by
the text of section 1615 would appear to
apply to appeals from the District Court of
the Virgin Islands.
After the Vasquez decision, this language was deleted from 48
U.S.C. § 1615, and similar language was placed in 48 U.S.C.
§1614(b), which provides in pertinent part as follows:
Where appropriate . . . the rules of practice
heretofore or hereafter promulgated and made
effective by the Congress or the Supreme
Court of the United States pursuant to Titles
11, 18, and 28 shall apply to the district
court and appeals therefrom . . . .
Under this language, it remains clear, in our view, that the
Federal Rules of Appellate Procedure apply to appeals to our
court from the District Court of the Virgin Islands.
2
By amendment effective on December 1, 1993, Rule 4(b) was
reworded to provide in pertinent part as follows:
In a criminal case, a defendant shall file
the notice of appeal in the district court
within 10 days after the entry either of the
judgment or order appealed from, or a notice
of appeal by the Government. . . . When an
appeal by the government is authorized by
statute, the notice of appeal must be filed
in the district court within 30 days after
the entry of (i) the entry of the judgment or
order appealed from or (ii) the filing of a
notice of appeal by any defendant.
8
In a criminal case, the notice of appeal by a
defendant shall be filed in the district
court within 10 days after the entry of (i)
the judgment or order appealed from, or (ii)
a notice of appeal by the Government. . . .
When an appeal by the government is
authorized by statute, the notice of appeal
shall be filed in the district court within
30 days after the entry of (i) judgment or
order appealed from or (ii) a notice of
appeal by any defendant.
We conclude for two reasons that the references to the
"government" in this rule applies to the Government of the Virgin
Islands. First, we believe that circuit precedent weighs in
favor of this interpretation. In Christensen, as previously
noted, we held that an appeal by the Government of the Virgin
Islands is an appeal by "the United States" under 18 U.S.C.
§3731. An appeal under 18 U.S.C. § 3731 is, in the language of
Fed. R. App. P. 4(b), an instance in which "an appeal by the
government is authorized by statute." Consequently, Christensen
suggests that the term "government" in Fed. R. App. P. 4(b)
should be interpreted to include the Government of the Virgin
Islands. Second, if the term "government" in Fed. R. App. P.
4(b) is not interpreted to include the Government of the Virgin
Islands, then Rule 4(b) does not seem to provide any time period
for the filing of a notice of appeal by the Government of the
Virgin Islands. Rule 4(b) sets out only two time periods: 10
days for the "defendant" and 30 days for the "government" -- and
the Government of the Virgin Islands is certainly not the
Even if this version of Rule 4(b) were applicable to this case,
the rewording would not affect our disposition of the issues
presented in this appeal.
9
"defendant." Accordingly, we hold that, in an appeal to our
court from the Appellate Division in a criminal case, the
Government of the Virgin Islands must file its notice of appeal
within 30 days after the entry of the order from which the appeal
is taken.
The Government of the Virgin Islands complied with this
requirement here. The order of the Appellate Division was
entered on April 21, 1993, and the Government of the Virgin
Islands filed its notice of appeal 28 days later, on May 19.
C. The remaining jurisdictional question that we must
consider concerns Charleswell's cross-appeal. At the time in
question here, Fed. R. App. P. 4(b) stated that a defendant in a
criminal case was required to file notice of appeal "within 10
days after the entry of (i) the judgment or order appealed from,
or (ii) a notice of appeal by the Government" (emphasis added).3
In this case, since the "Government" filed a notice of appeal,
Charleswell was required to file his notice of appeal "within ten
days after the entry" of the Government's notice of appeal -- in
other words, within ten days after the filing of the Government
of the Virgin Islands' notice of appeal was entered on the
district court docket. See United States v. Cantero, 995 F.2d
1407, 1408 n.1 (7th Cir. 1993) (entry of order means entry on
docket); United States v. Cooper, 876 F.2d 1192, 1195 (5th Cir.
1989) (same); United States v. Zuleta-Molina, 840 F.2d 157, 158
3
As previously noted, Rule 4(b) has now been reworded, but this
change would not alter our decision. See page 9, footnote 2,
supra.
10
n.1 (1st Cir. 1988) (same). Charleswell complied with this
requirement. The Government of the Virgin Islands' notice of
appeal was entered on the district court docket on May 26, 1993,
and Charleswell filed his notice of appeal seven days later, on
June 2, 1993. Accordingly, Charleswell's notice of appeal was
timely.
III.
We now turn to the merits of the Government of the
Virgin Islands' appeal. We agree with the Territorial Court and
the Appellate Division that the challenged remarks made by the
prosecutor during rebuttal summation were improper. Neither
Charleswell's decision not to raise an insanity defense nor his
likelihood of obtaining help for stress if acquitted had any
bearing on the issues before the jury. However, the Territorial
Court's failure to grant a mistrial sua sponte was not "plain
error" under Fed. R. Crim. P. 52(b).
Even if Charleswell's attorney had moved for a
mistrial, we could not reverse Charleswell's convictions based on
the prosecutor's remarks, unless those remarks, "taken in the
context of the trial as a whole, were sufficiently prejudicial to
have deprived [him] of his right to a fair trial." United States
v. DiPasquale, 740 F.2d 1282, 1297 (3d Cir. 1984), cert. denied,
469 U.S. 1228 (1985); see also, e.g., United States v. Gambino,
926 F.2d 1355, 1365 (3d Cir.), cert. denied, 112 S. Ct. 415
(1991). Among the factors that must be considered in assessing
prejudice are the nature of the comments in question and the
11
effect of curative instructions. See, e.g., United States v.
Homer, 545 F.2d 864, 867-68 (3d Cir. 1976), cert. denied, 431
U.S. 954 (1977). Here, the challenged comments, while
inappropriate, do not appear to us highly prejudicial. In
addition, these remarks were apparently "not so shocking as to
suggest to the defense that it seek curative instructions
immediately. Moreover, in response to the defendant's subsequent
complaint, the trial judge admonished the jury" to disregard
these comments. Homer, 545 F.2d at 868.
In any event, even if the defense would have been
entitled to a mistrial upon request, the trial court's failure to
grant a mistrial on its own initiative was not plain error. The
"plain error" doctrine "is to be used sparingly, solely in those
circumstances in which a miscarriage of justice would otherwise
result." United States v. Frady, 456 U.S. 152, 163 & n.14
(1982). Its proper role is "to correct particularly egregious
errors" and to "redress . . . miscarriages of justice." Id. at
163. It is intended to correct errors that are "obvious" or that
"otherwise seriously affect the fairness, integrity or public
reputation of judicial proceedings." United States v. Atkinson,
297 U.S. 157, 160 (1936). "By its terms, recourse may be had to
[Rule 52(b)] only on appeal from a trial infected with error so
`plain' the trial judge [was] derelict in countenancing it, even
absent the defendant's timely assistance in detecting it." Frady,
456 U.S. at 163; see also United States v. Young, 470 U.S. 1, 15
(1985); Government of Virgin Islands v. Knight, 989 F.2d 619,
630-31 (3d Cir.), cert. denied 114 S. Ct. 556 (1993); Government
12
of Virgin Islands v. Smith, 949 F.2d 677, 681 (3d Cir. 1991);
United States v. Wright, 921 F.2d 42, 46 (3d Cir. 1990), cert.
denied 111 S. Ct. 2803; United States v. Sandini, 888 F.2d 300,
309 (3d Cir. 1989), cert. denied, 494 U.S. 1089.
In this case, the trial judge was not "derelict" in
failing to grant a mistrial. As we have said, it is far from
clear that the prosecutor's remarks were so prejudicial that they
could not be remedied by curative instructions. Furthermore,
since the defense requested curative instructions rather than a
mistrial, the trial judge was entitled to assume that the defense
did not want a mistrial. Under such circumstances, the test for
granting a mistrial is "manifest necessity." See, e.g., Oregon
v. Kennedy, 456 U.S. 667, 672 (1982); Arizona v. Washington, 434
U.S. 497, 509 (1978). There was no "manifest necessity" here.
Consequently, we hold that the Territorial Court did not commit
plain error in failing to declare a mistrial sua sponte.
IV.
We turn finally to Charleswell's cross-appeal. The
arguments that Charleswell raises in his cross-appeal4 were
4
If accepted, Charleswell's argument that he was entitled to
judgment of acquittal on counts I and II would result in
alteration of the district court's judgment. It is therefore a
proper subject for cross-appeal. Charleswell's remaining
arguments, if accepted, would merely provide alternative grounds
for affirming the district court's order granting a new trial,
and consequently Charleswell could have raised them without
cross-appealing. See 15A Charles A. Wright et al., Federal
Practice and Procedure § 3904 (1992 & Supp. 1994). (citing
cases). In any event, since the district court did not reach any
of these arguments, we find it appropriate to remand so that that
court can consider them in the first instance.
13
raised before the Appellate Division, but they were not addressed
by that court, and we decline to address these arguments in the
first instance. Instead, we will remand so that they can be
decided initially by the Appellate Division.
For these reasons, the order of the Appellate Division
of the District Court is reversed, and the case is remanded for
further proceedings consistent with this opinion.
14