Government of Virgin Islands v. Forte

• Decision Date: 26 November 1986
• Docket Number: No. 86-3262,86-3262
• Citation: 806 F.2d 73
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Frederick FORTE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 73

806 F.2d 73

GOVERNMENT OF the VIRGIN ISLANDS v. Frederick FORTE, Appellant.

No. 86-3262.

United States Court of Appeals Third Circuit.

Argued Oct. 16, 1986.

Decided Nov. 26, 1986.

Alan Ellis, David M. McGlaughlin, Ellis and Newman, P.C., Philadelphia, Pa., Michael A. Joseph, Christiansted, St. Croix, U.S. Virgin Islands, for appellant; Peter Goldberger, (argued), Philadelphia, Pa., of counsel.

James W. Diehm, U.S. Atty., D. Virgin Islands, Louis M. Fischer (argued), Atty., Dept. of Justice, Washington, D.C., for appellee.

Before GIBBONS and BECKER, Circuit Judges and FULLAM, District Judge. ^*

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Frederick Forte appeals from a judgment of sentence imposed after his conviction at a jury trial in the District Court of the Virgin Islands. He was convicted on two counts of aggravated rape, in violation of 14 V.I.C. 1700(c) (1984); one count of unlawful sexual contact in the first degree, in violation of 14 V.I.C. 1700(c) (1984); and one count of possessing a dangerous weapon during the commission of those crimes, in violation of 14 V.I.C. 2251(a)(2) (1974). Forte contends that the judgment should be vacated and the case remanded because the government's exercise of its peremptory challenges to remove all white persons from the petit jury was plain error. Alternatively he urges that his trial attorney's failure to challenge the government's exercise of its peremptory challenges denied him effective assistance of counsel and that failure requires remand. We find his contentions without merit, and thus we affirm.

I.

On November 25, 1985 Forte drove to the campus at the College of the Virgin Islands on St. Thomas and stopped to ask directions of Petula Stephens, a student who was waiting for her boyfriend to pick her up after her classes at the campus bus stop. According to Stephens, after she gave Forte the requested directions, he got out of his car, approached her and at knifepoint forced her into his car. He then drove to a secluded area of St. Thomas known as Brewer's Bay where he forced Stephens to perform oral sex, then raped her and attempted sodomy as well. Afterwards, Forte drove Stephens back to the campus bus stop. Because Stephens was able to give the police a description of Forte's car and his license plate number, Forte was arrested shortly thereafter and charged with two counts of aggravated rape, one count of unlawful sexual contact in the first degree, one count of possessing a dangerous weapon, and one count of kidnapping.

During jury selection, the trial court excused several venire members who knew either Stephens or her family, and one panel member who said that he could not disregard the pre-trial publicity of the case. After consulting with counsel, the district judge then told the prospective jurors that Stephens was the niece of St. Thomas' chief of police and found that none of them would be influenced by that relationship. Additionally, the court inquired about the venire members' relationship to the witnesses or familiarity with them and excused any juror whose objectivity might have thereby been influenced. The trial court also pointed out that Stephens was a black woman who was a native of St. Thomas while Forte was a white nonresident and asked if any prospective juror felt he or she could not be impartial because of the differences between Stephens and Forte in age, race or residency. No juror responded. The court questioned the panel about attendance or employment at the college and excused one juror whose wife attended classes with Stephens. The court also excused four prospective jurors who had been victims of sexual assaults and one whose son was charged with such a crime. Finally, the trial court asked whether any venire member felt that, for any reason, he or she could not be impartial, and excused the one person who so indicated. Thereafter, both counsel exercised their peremptory challenges. Defense counsel did not object or claim that the prosecutor had stricken all the white venire members nor did Forte himself say anything.

Although Forte raised consent as a defense, after hearing all the evidence the jury found him guilty of all charges except kidnapping. Subsequently, Forte retained new counsel who for the first time at Forte's sentencing hearing attacked the prosecutor's use of her peremptory challenges. In response, the district judge reminded counsel that he had conducted a careful examination of possible prejudices and had given the prospective jurors an opportunity to state any reason they had for not serving on the jury. The district judge further stated that he had not kept a record of whether the government had challenged white jurors but that, in any event, such removal did not prejudice Forte's right to a fair trial. In a later bail hearing, the trial judge said that he had checked his notes of the voir dire proceedings and found that the government had exercised four of its six peremptory challenges to remove white persons from the jury.

II.

Forte contends that the government's exclusion of all members of his race from the jury was unlawful: 1) under the fourteenth amendment as violative of equal protection; 2) under the sixth amendment's guarantee of the right of trial by a fairly selected jury; 3) under the Jury Selection and Service Act of 1968; and 4) under the court's broad supervisory powers to ensure the fairness of juries at trials. He urges that although he failed to make a contemporaneous objection to the prosecutor's use of her peremptory challenges, he nevertheless did not waive his objection. Alternatively, Forte argues that such use of peremptories was plain error which may be noticed on appeal without having been preserved below. Fed.R.Crim.P. 52(b). Even if barred from raising the peremptory issue directly, Forte urges that trial counsel's failure to challenge the government's use of its peremptories denied him effective assistance of counsel.

A. Waiver

We turn first to the question of whether Forte waived his objection to the prosecutor's use of her peremptory challenges by failing to make a contemporaneous objection during jury selection. While Forte concedes that he did not raise an objection at the time the peremptories were used, he nonetheless argues that his objection was still timely since it was raised at the earliest opportunity by his new counsel, albeit post-trial. We find this contention without merit. Forte's failure to object at the time the alleged error was made is in violation of the contemporaneous objection rule. In United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39, 60 S.Ct. 811, 851-52, 84 L.Ed.2d 1129 (1940), the Supreme Court held that "counsel for the defense cannot as a rule remain silent, interpose no objections, and after a verdict has been returned seize for the first time" on a claim of error. That rule serves several important functions. A timely objection allows the trial court and the prosecutor to reconsider and perhaps change their course of conduct while still possible. If the defendant is successful, he avoids prejudicial error. Even if he is convicted, his timely objection delineates the points that may be appealed and avoids unnecessary reversals because of errors that could have been averted at trial. See United States v. Somers, 496 F.2d 723, 742 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974). Raising a timely objection also aids review on appeal because the trial court makes a timely record of the claim while the parties' recollections are still fresh. See Gass v. United States, 416 F.2d 767, 775-76 (D.C.Cir.1969); United States v. Indiviglio, 352 F.2d 276, 280 (2d Cir., 1965) (en banc ), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). Indeed, if Forte had made a timely objection in the present case, we would have an accurate account of the racial composition of the jury. ¹

We have stated that "[d]uring trial, the court and opposing parties are justified in expecting litigants to raise their objections at the procedurally correct moment, and in assuming that objections not so raised have been waived." United States v. Baylin, 696 F.2d 1030, 1036 (3d Cir.1982). Thus we find that because Forte failed to make any objection at the close of voir dire, he waived his present claim.

B. Plain Error

As Forte correctly argues, despite his failure to preserve his objection, we may notice on appeal the use of the peremptories as plain error under Rule 52(b). Rule 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." Fed.R.Crim.P. 52(b). As the Supreme Court in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) explained, "[t]he plain error doctrine of Federal Rule Criminal Procedure 52(b) tempers the blow of a rigid application of the contemporaneous objection requirement." Id. at 15, 105 S.Ct. at 1047. (footnote omitted). The Court, however, went on to define plain error as "only 'particularly egregious errors' ... that 'seriously affect the fairness, integrity or public reputation of judicial proceedings' " and cautioned that "the plain-error exception to the contemporaneous-objection rule is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.' " Id. (quoting United States v. Frady, 456 U.S. 152, 163 & n. 14, 102 S.Ct. 1584, 1592, & n. 14, 71 L.Ed.2d 816 (1982); United States v. Atkinson, 297 U.S. 157, 160 (1936)).

In light of these principles, the prosecutor's use of peremptories in this case does not indicate "plain error." While Forte intimates the possibility of racial bias among the jurors, there is no reason to believe that any such prejudice interfered with the fundamental fairness of his trial. The trial court conducted a careful examination of the venire members and in fact addressed the issue of racial...