Government of Virgin Islands v. Smith

• Decision Date: 22 November 1991
• Docket Number: No. 90-3652,90-3652
• Citation: 949 F.2d 677
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Louis SMITH, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 677

949 F.2d 677

GOVERNMENT OF the VIRGIN ISLANDS v. Louis SMITH, Appellant.

No. 90-3652.

United States Court of Appeals Third Circuit.

Argued April 25, 1991.

Decided Nov. 22, 1991.

David Rudovsky (argued), Kairys & Rudovsky, Philadelphia, Pa., for appellant.

Azekah E. Jennings (argued), U.S. Attorney's Office, Charlotte Amalie, St. Thomas U.S. Virgin Islands, for appellee.

Before BECKER, SCIRICA and ALITO, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This case comes to us from the District Court of the Virgin Islands. Louis Smith was convicted of first degree murder, V.I.Code Ann. tit. 14, § 922(a)(1), ¹ and unlawful possession of a firearm during the commission of a crime of violence, V.I.Code Ann. tit. 14, § 2253(a). He was sentenced to life imprisonment on the murder count, and five years' imprisonment on the firearm count. Smith now appeals, contending that the district court committed "plain error" in failing to instruct the jury on the burden of proof on self-defense, and challenging the denial of a motion for a new trial based upon the recantation of testimony by a witness. Alternatively, Smith argues that his counsel's actions with respect to these events deprived him of his right to effective assistance of counsel. We will vacate the convictions and remand for a new trial because we believe the failure to give complete jury instructions constitutes plain error on the facts of this case. ²

I.

Smith was charged with the shooting death of Dean Thomas. On the evening of November 7, 1988, Smith and Thomas argued over some money and a piece of crystal that Thomas allegedly had stolen from Smith. The trial testimony offered differing versions of what ensued next. Darryl Callwood, a defense witness, and Ira Callwood, a prosecution witness, gave accounts that were basically consistent with each other. Darryl Callwood testified that during the argument, Thomas threatened to shoot Smith and that Thomas pulled a gun from his waist. Smith and Thomas then began struggling, and the gun dropped to the ground. The two fought over the gun and one shot was fired. Ira Callwood characterized the altercation as an argument rather than a struggle. He heard the first shot, but did not note whether Thomas produced the gun initially, or whether the two fought over it. Smith obtained possession of the gun, and Thomas ran and hid behind a car. Smith was at the other end of the car, about 15 feet from Thomas. Smith then fired a shot at Thomas as Thomas was looking up from behind the car. The shot hit Thomas in the head and caused his death. Both Callwoods agreed that approximately ten seconds elapsed between the first and second shots.

Yelmo Chinnery, a prosecution witness, and Eustace Riley, a defense witness, contradicted these accounts. Chinnery testified that Smith took the gun from a nearby maroon car belonging to Darryl Callwood, and fired three direct shots at Thomas, missing with the first two. He stated that Smith chased Thomas with the gun for an extended period of time, saying "I am going to kill you." Riley corroborated the Callwoods' testimony that the gun fell to the ground during the initial altercation. But he testified that no shot was fired during that struggle and that Smith instead fired two direct shots at Thomas after retrieving the gun. However, Riley later recanted that testimony in chambers before the trial judge. Riley's in-chambers testimony corroborated that of the Callwoods. He stated that the first shot was fired during the struggle, and that he did not know who pulled the trigger. But he did not recant his testimony that Smith fired the fatal shot as Thomas looked up from behind the car.

Smith testified on his own behalf. He generally corroborated the testimony of the Callwoods with respect to the events surrounding the first shot. But he provided a somewhat different account of the circumstances surrounding the fatal shot. Smith testified that he shot Thomas as Thomas was moving toward him, in the belief that Thomas was reaching down for a weapon. He stated that Thomas "swung around the car and dive for something in his side like going for something and, you know, I been in the street most of my life. I know how people be fumbling to get some kind of a weapon." He never saw a weapon, however. Smith's trial testimony was consistent with the statement that he had provided the police shortly after the incident. In that statement, Smith stated that "I just fired it at him because I thought it was either him or me, I believe he was going to shoot me." Darryl Callwood testified that Thomas did not have a gun in his hand when Smith fired the fatal shot, and that Thomas tried to run away after Smith picked up the gun. Chinnery testified that Thomas always carried a knife, and was carrying it in the back of his waist at the time of the shooting. Ira Callwood testified that he saw a knife underneath Thomas after the shooting, and that Chinnery took something from Thomas's person that he presumed was the knife. There is no testimony that any weapon was found at the scene.

II.

Smith contends that the district court committed plain error when it failed to instruct the jury on the burden of proof on self-defense. The district court properly instructed the jury that "[t]he government always has the burden of proof in a criminal trial and must prove the defendant's guilt beyond a reasonable doubt." The court also noted that "the defendant never has a burden of proving anything." Similarly, the court's opening instructions to the jury stated that "the burden of proof is on the government until the end of the case."

In addition, the court instructed the jury that the prosecution must prove each and every element of the crime beyond a reasonable doubt. On the charge of first degree murder, the jury was told that it must find beyond a reasonable doubt that Smith "unlawfully" killed Thomas. After setting forth the elements of each crime charged, the court stated that "[i]f all the elements of each count are established beyond a reasonable doubt, then it is your duty to find the defendant guilty." In its next sentence, the court stated that "[t]he defendant in the presentation of his evidence has raised, as a matter of defense what the law calls self defense." The court set forth the elements of self-defense, and instructed the jury that it could find self-defense only "if these requirements are met." But the court did not give a separate instruction regarding the burden of proof on this issue.

The parties apparently agree that when self-defense is raised by a defendant, Virgin Islands law requires the prosecution to prove its absence beyond a reasonable doubt. The Virgin Islands defines murder as the "unlawful" killing of another with malice aforethought. V.I.Code Ann. tit. 14, § 921 (1964). Killing in self-defense is defined as lawful and justifiable homicide, and self-defense is a statutory right. See id. §§ 927(2)(C), 43; see also id. § 928 (acquittal mandated when homicide is justified). Federal law also requires the prosecution to prove the absence of self-defense beyond a reasonable doubt. See, e.g., United States v. Alvarez, 755 F.2d 830, 842 (11th Cir.), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985); United States v. Corrigan, 548 F.2d 879, 883 (10th Cir.1977). Among the states, only Ohio and South Carolina place the burden of proving self-defense on the defendant. See Martin v. Ohio, 480 U.S. 228, 236, 107 S.Ct. 1098, 1103, 94 L.Ed.2d 267 (1987). The remainder require the prosecution to prove the absence of self-defense.

We exercise plenary review over the interpretation of Virgin Islands law. See, e.g., Saludes v. Ramos, 744 F.2d 992, 993-94 (3d Cir.1984). Under Virgin Islands law, murder is defined as an unlawful killing of another, V.I.Code Ann. tit. 14, § 921 (1964); self-defense is a statutory right; and killing in self-defense is "lawful." Id. §§ 927(2)(C), 43. We hold that in a murder prosecution under Virgin Islands law, once the defendant has properly placed self-defense in issue, the prosecution must prove its absence beyond a reasonable doubt. ³ Cf. Government of the Virgin Islands v. Frett, 14 V.I. 315, 330 (Terr.Ct.1978) (in assault case, prosecution has burden of disproving self-defense beyond a reasonable doubt). This holding is in accord with other cases in which we have held that Virgin Islands law requires the government to disprove affirmative defenses once some evidence has been presented on the issue. See Government of the Virgin Islands v. Bellott, 495 F.2d 1393, 1397 (3d Cir.1974) (insanity defense); Government of the Virgin Islands v. Smith, 278 F.2d 169 (3d Cir.1960) (epileptic seizure).

We have held that it is reversible error for a district court to refuse to give a general instruction on self-defense when the evidence reveals a basis for the defense. Government of the Virgin Islands v. Salem, 456 F.2d 674 (3d Cir.1972). We have not ruled upon whether the court must include a separate instruction on the burden of proving self-defense. In United States v. Corrigan, 548 F.2d 879 (10th Cir.1977), the Court of Appeals for the Tenth Circuit held that when self-defense has been placed in issue, the jury must be instructed separately regarding the burden of proof on that issue. However, we are not faced with the situation presented in Corrigan, because in that case the defendant had properly objected to the court's instruction.

Here, Smith's counsel did not object at trial to the jury instructions on the grounds now raised. Consequently, a new trial can be granted only if the failure of the district court to provide a specific instruction constitutes "plain error." Fed.R.Crim.P. 52(b). Rule 52(b) provides that "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Plain errors are those that "undermine the fundamental fairness of the trial and...