Government of Virgin Islands v. Charleswell

• Decision Date: 20 May 1994
• Docket Number: No. 93-7391,93-7391,No. 93-7372,Nos. 93-7372,93-7372,s. 93-7372
• Citation: 24 F.3d 571
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, Appellant in, v. Juniel CHARLESWELL, Appellant in
• Court: U.S. Court of Appeals — Third Circuit

Page 571

24 F.3d 571

29 Fed.R.Serv.3d 195

GOVERNMENT OF the VIRGIN ISLANDS, Appellant in No. 93-7372, v. Juniel CHARLESWELL, Appellant in No. 93-7391.

Nos. 93-7372, 93-7391.

United States Court of Appeals Third Circuit.

Argued April 21, 1994.

Decided May 20, 1994.

Rosalie Simmonds Ballentine, Atty. Gen., Paul L. Gimenez, Sol. Gen., Frederick Handleman (argued) Asst. Atty. Gen., and Darlene C. Grant, Office of the Atty. Gen., St. Thomas, U.S. VI, for the Government of the Virgin Islands.

Rhys S. Hodge (argued), St. Thomas, U.S. VI, for Juniel Charleswell.

Before: STAPLETON, ALITO, and WEIS, Circuit Judges.

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 violation of 14 V.I.C. Sec. 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. Sec. 2251(a)(2)(B); (count III) drawing and exhibiting a deadly weapon, in violation of 14 V.I.C. Sec. 621(1); and (count IV) destruction of personal property, in violation of 14 V.I.C. Sec. 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.

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 discussion concerning the need for and the phrasing of curative instructions (see App. at 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 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 the appellant's purported diminished capacity. It was entirely inappropriate to discuss appellant's choice of plea and to predict that an acquittal would serve to deny appellant 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. Sec. 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. Sec. 1291.

In this case, however, our jurisdiction over the Government of the Virgin Islands' appeal is not dependent on 28 U.S.C. Sec. 1291. Instead, we have jurisdiction over that appeal under 18 U.S.C. Sec. 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. Sec. 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. Sec. 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 (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:

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)...