Government of Virgin Islands v. Parrilla, 92-7046

Citation7 F.3d 1097
Decision Date12 October 1993
Docket NumberNo. 92-7046,92-7046
PartiesGOVERNMENT OF the VIRGIN ISLANDS v. Luis PARRILLA, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Terry M. Halpern, U.S. Atty., Wanda K. Robinson, Asst. U.S. Atty. and Carl F. Morey, (argued), Sp. Asst. U.S. Atty., Office of the U.S. Atty., Christiansted, VI, for appellee.

Thurston T. McKelvin, Federal Public Defender and Patricia Schrader-Cooke (argued), Asst. Federal Public Defender, Christiansted, VI, for appellant.

Before: BECKER, COWEN and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

The appellant, Luis Parrilla, was convicted in the District Court of the Virgin Islands on five counts, including armed robbery, assault with a deadly weapon, and assault with intent to commit mayhem. 1 He appeals solely his conviction on Count VII, assault with intent to commit mayhem. He brings his appeal pursuant to 28 U.S.C. § 1291. He contends on appeal that the statutory definition of mayhem in the Virgin Islands Code, 14 V.I.C. § 1341(b), is facially unconstitutional because it creates a mandatory presumption on the required element of intent to commit mayhem. He also contends that the jury instructions were flawed because the trial judge charged the jurors that they could rely on the statutory presumption of intent. Because we find that section 1341(b) does create an impermissible mandatory presumption, we will reverse Parrilla's conviction on Count VII.

I.

On the evening of August 11, 1991, Luis Parrilla, together with Wendell Semeina, Pierre Larichere, and five others, went on a robbery spree in and around Christiansted, St. Croix. The particular assault, which gave rise to the mayhem count, was directed at one Joseph Duggan. Duggan related that, while riding his motor scooter, he was run off the road by a group of masked men in a car. Larichere admitted that he was driving the car during the attack on Duggan. Wendell Semeina testified that the group had decided to rob Duggan and tried to block his path with the stolen car in which they were riding. Parrilla was seated in the back seat of the car, behind the passenger seat. Duggan attempted to flee, but in the process he fell off the bike and into the bushes next to the road. While Duggan was trying to roll through the bushes, Parrilla and one of his companions, Papito, fired shots at him. One bullet hit Duggan in the foot. The assailants fled but were subsequently chased by the police and arrested. As a consequence of the shooting, Duggan now walks with a limp.

II.

Parrilla was charged with assault with intent to commit mayhem as a result of the attack on Duggan and the injury to his foot. The Virgin Islands statute defines mayhem as follows:

(a) Whoever willfully and with intent to commit a felony or to injure, disfigure or disable, inflicts upon the person of another any injury which--

(1) seriously disfigures his person by any mutilation thereof;

(2) destroys or disables any member or organ of his body; or

(3) seriously diminishes his physical vigor by the injury of any member organ--

shall be imprisoned not more than 15 years.

(b) The infliction of injury is presumptive evidence of the intent required by subsection (a) of this section.

14 V.I.C. § 1341 (1992) (emphasis added). The companion code provision involved in this case, 14 V.I.C. § 295(3), under which Parrilla was charged with first degree assault for the attack on Duggan, provides in relevant part:

Whoever--

(3) with intent to commit rape, sodomy, mayhem, robbery or larceny, assaults another--shall be imprisoned not more than 15 years.

At the trial, the district judge gave the following instructions to the jury on the dispositive element of intent to commit mayhem:

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 104A-105A (emphasis added).

A.

Because Parrilla did not object to the statute's application or to the jury instructions at trial, we review them for "plain error." Federal Rule of Criminal Procedure 52(b) states that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." "Plain error" analysis requires a case-by-case determination that includes examining factors such as "the obviousness of the error, the significance of the interest protected by the rule that was violated, the seriousness of the error in the particular case, and the reputation of judicial proceedings if the error stands uncorrected--all with an eye toward avoiding manifest injustice." United States v. Thame, 846 F.2d 200, 205 (3d Cir.1988).

Parrilla must show that the error seriously affected substantial rights or compromised the fairness of the trial. United States v. Bey, 736 F.2d 891, 895 (3d Cir.1984). The error must be of constitutional dimensions or produce a miscarriage of justice. United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 (1982). Moreover, under the "plain error" doctrine, especially in criminal cases, we may notice errors if they are "obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936).

The Supreme Court has held that the Due Process clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). "Where intent of the accused is an ingredient of the crime charged, its existence is a question that must be submitted to the jury." Morissette v. United States, 342 U.S. 246, 274, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952). "[T]he trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act." Id. 2 A statutory presumption that requires the jury to infer from proof of injury a necessary element of the crime charged, i.e., that the defendant intended to commit mayhem upon his victim, is the type of error encompassed by Fed.R.Crim.P. 52(b) because it allows his "conviction upon insufficient proof" of intent. Leary v. United States, 395 U.S. 6, 37, 89 S.Ct. 1532, 1549, 23 L.Ed.2d 57 (1969) (warning that courts must scrutinize statutes creating presumptions in criminal cases). Therefore, our review of such an issue in this case is properly exercised.

B.

The task we must first address then is to determine whether the presumption of intent to commit mayhem is permissive or mandatory. The prosecution argues that the presumption in section 1341(b) is an entirely permissive one because the section allows, but does not require, the trier of fact to infer the attacker's intent to "injure, disfigure or disable" from proof of the infliction of injury on the victim. Parrilla contends to the contrary that the presumption is mandatory because the language of the statute compels the finder of fact to find intent without deliberation thereon. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

The Supreme Court has instructed us on the methods to employ in evaluating a presumption to determine whether it is permissive or mandatory. In County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Court considered a facial attack upon a New York statute on the grounds that it impermissibly shifted the burden of proof onto the defendant. In its opinion reversing the grant of habeas corpus, the Court noted that the Court of Appeals for the Second Circuit improperly analyzed the statute on its face as if it were a mandatory presumption, while failing to observe that the New York Court of Appeals had, in fact, determined earlier, People v. Lemmons, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 100-101, 354 N.E.2d 836, 840 (1976), that the statute created a permissive presumption. 442 U.S. at 160, 99 S.Ct. at 2226. The Court distinguished between permissive and mandatory presumptions and mandated that the constitutionality of the two should be analyzed differently. 442 U.S. at 156-63, 99 S.Ct. at 2224-28.

The entirely permissive inference or presumption is one which "allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant." Id. at 157, 99 S.Ct. at 2224. In reviewing permissive presumptions, the Court requires the challenger to demonstrate the presumption's invalidity "as applied to him." Id. The Court explained that a facial attack to a statute on grounds of a permissive presumption will fail if the statute creates only a "permissive inference," leaving the trier of fact free to credit or reject the inference. The application of the statute to a particular case, however, can be successfully challenged if there is no rational way the trier of fact could have made the connection permitted by the inference. Id. If such an irrational result were evident in the verdict, that result might be the product of an improper reliance on the presumption by the jury, without the jury having been convinced beyond a reasonable doubt of the existence of the presumed fact. Such an outcome, a verdict arrived at without satisfactory proof of every element of the offense charged, is a constitutionally impermissible conclusion. See Winship, 397 U.S. at 364, 90 S.Ct. at 1072-73.

With mandatory presumptions, on the other hand, we are faced...

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