Government of Virgin Islands v. Blake

• Decision Date: 08 July 1997
• Docket Number: No. 96-7769,96-7769
• Citation: 118 F.3d 972
• Parties: GOVERNMENT OF THE VIRGIN ISLANDS, Appellant, v. Zacchaeas BLAKE; Leon Nisbett.
• Court: U.S. Court of Appeals — Third Circuit

Page 972

118 F.3d 972

GOVERNMENT OF THE VIRGIN ISLANDS, Appellant, v. Zacchaeas BLAKE; Leon Nisbett.

No. 96-7769.

United States Court of Appeals, Third Circuit.

Argued April 8, 1997.

Decided July 8, 1997.

Alva A. Swan, Acting Attorney General, Paul L. Gimenez, Solicitor General, Maureen Phelan Cormier (Argued), Assistant Attorney General, Office of the Attorney General of the Virgin Islands, Department of Justice, Charlotte Amalie, St. Thomas, for Appellant.

Harold W. Willocks (Argued), Chief Territorial Public Defender, Kingshill, St. Croix, Kathryn D. Slade, Territorial Public Defender, Christiansted, St. Croix, for Appellee Nisbett.

Michael A. Joseph, Christiansted, St. Croix, for Appellee Blake.

Before: BECKER, ROTH and WEIS, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

This case requires us to interpret a Virgin Islands statute permitting the government to appeal, during a criminal trial, a ruling "involving a substantial and recurring question of law which requires appellate resolution." 4 V.I.C. § 39(d) (Supp.1996-1997). During the trial of defendants Zacchaeas Blake and Leon Nisbett, who were charged with third degree assault and possession of a firearm during a crime of violence, the Territorial Court of the Virgin Islands excluded certain of the government's evidence. In order to challenge these evidentiary rulings, the government moved for, and the trial court granted, leave for an immediate appeal under 4 V.I.C. § 39(d). The District Court of the Virgin Islands, however, dismissed the appeal for lack of jurisdiction, reasoning that the issues presented on appeal did not come within the ambit of the statute. This appeal presents us with the question whether the trial court's rulings involve a "substantial and recurring question of law which requires appellate resolution" within the meaning of 4 V.I.C. § 39(d). Because we conclude that they do not, we affirm the district court's order and remand the case to the district court for remand to the territorial court.

I. FACTS

According to the government, early in the morning of April 29, 1994, Wilson David and his four-year old son were driving home from David's sister's house. As they got out of their truck, four shots were fired at them. Neither was injured. David identified the man who fired the shots as Zacchaeas Blake and the man who accompanied him as Leon Nisbett, both of whom he knew previously. David's niece, who came out of David's apartment after hearing the gunfire, identified Blake as holding a gun and Nesbitt as sitting inside a maroon Honda. Blake allegedly asked David, before shooting, why David was "looking" at him. Nisbett and Blake were arrested and charged with four counts each of third degree assault under 14 V.I.C. §§ 297(2) and (3)(1996), and one count each of possession of a firearm during the commission of a crime of violence in violation of 14 V.I.C. § 2253(a) (1996).

On the morning of trial, the court asked to hear pretrial motions. The defense moved to exclude some photographs, apparently of the crime scene, that the government had produced for the first time that morning. After some discussion about the motion, but before ruling, the territorial court decided first to select a jury and then to consider the pretrial motions.

The judge selected the jury, had it sworn in, and then recessed for lunch. During the recess the court considered the motions. It first excluded the photographs on the grounds that they were not provided to the defendants before the morning of trial. Defendants also moved to exclude testimony by David, the complaining witness, that Blake "used to hang out with a guy that shot me[David] once." After inquiring whether the statement in question went to a possible motive by Blake for the alleged shooting, the court excluded the evidence because "the prejudice that it will form in the minds of this jury will outweigh the probative value." Nisbett then moved to exclude the introduction of certain physical evidence on the ground that it was not relevant. Blake moved to exclude the same evidence because the government had not produced it during discovery. The evidence--a 9 millimeter live round, knife casings, a projectile, knives, and one billy club--was found in the maroon Honda, which was registered in Joshua Blake's name, but the government had not charged that the evidence was used in the commission of the present offense. The court accordingly concluded that this evidence was "going to unduly prejudice this jury," and excluded it as to Nisbett. The court granted Blake's motion as well. Finally, the court excluded expert testimony by Officer Hitesman because the defense had requested the results of any scientific tests, and the government had identified none.

The government sought an immediate appeal under 4 V.I.C. § 39(d), which provides for appeals by the government during criminal trials if the government certifies that the appeal involves "a substantial and recurring question of law which requires appellate resolution." The court granted the motion and then declared a mistrial. It noted that the statute calls for adjournment of the trial but reasoned that an appeal would last too long to keep the same jury. Counsel for Blake's attorney stated that he had no objection to declaring a mistrial. After the trial, the government submitted written certification, and on November 18, 1994, the court entered a written order that "the Government's Motion for Leave to Appeal from Interlocutory Rulings Suppressing Evidence is hereby GRANTED."

The district court dismissed the appeal for lack of jurisdiction. It reasoned that the case did not involve substantial and recurring questions of law and that the appeal was accordingly not permitted under 4 V.I.C. § 39. The court also noted that it "seriously questions whether a statute allowing the Government such an appeal during a criminal trial after jeopardy attached can withstand constitutional analysis." For these two reasons and because of the "general bias" against interlocutory appeals in criminal cases, the district court concluded that the territorial court erred in giving leave to appeal under 4 V.I.C. § 39, and it dismissed the case. This appeal followed.

II. JURISDICTION

Before exploring the specific jurisdictional question that this case presents, we outline the general jurisdictional framework for appeals from decisions of the district courts of the Virgin Islands.

Federal law provides that this Court has jurisdiction over "appeals from all final decisions of the district court on appeal from the courts established by local law." 48 U.S.C. § 1613a(c); see 28 U.S.C. § 1291. In this case, the decision of the district court was on appeal from a court established by local law; if that decision was "final," this Court has jurisdiction. In In re Alison, 837 F.2d 619 (3d Cir.1988), we considered a decision of the district court which reversed a territorial court's ruling that the plaintiff had failed to state a cause of action. The district court's order was not "final," because that order merely concluded that the plaintiff had stated a cause of action and remanded the case for further proceedings. See generally, Caitlin v. United States, 324 U.S. 229, 233 (1945); Quackenbush v. Allstate, 116 S.Ct. 1712, 1718-1719 (1996).

In this case, however, we are called upon only to decide the scope of the district court's own jurisdiction. The district court did not reach the merits of the dispute, and neither do we. Under these circumstances review is appropriate under the collateral order doctrine. See In re Ford Motor Co., 110 F.3d 954, 959 (3d Cir.1997). The Virgin Islands' legislature explicitly permits appeals during criminal trials, thus the efficiency interests that animate the final judgment rule are not at work here. Id. at 959-61. Moreover, this issue is separable from the merits, was conclusively decided by the district court, is unreviewable on appeal, and involves an unresolved question of law--the scope of § 39(d). The problems that generally accompany application of the collateral order doctrine in criminal cases, see, e.g., United States v. McVeigh, 106 F.3d 325, 330 (10th Cir.1997), are not at work here because we are applying a statute that itself calls for interlocutory appeals. See also, In re A.M., 34 F.3d 153, 156 (3d Cir.1994) (applying the collateral order doctrine in a criminal case in which the district court decision affirmed a territorial court's order that a minor be transferred for prosecution as an adult).

The district court's jurisdiction over the appeal from the territorial court is derived from a federal law providing that the district courts of the Virgin Islands shall have "such appellate jurisdiction over the courts of the Virgin Islands as established by local law to the extent now or hereafter prescribed by local law." 48 U.S.C. § 1613a(a). Turning to the local law, the Virgin Islands Code, in a section entitled "Appellate jurisdiction," states that the "district court has appellate jurisdiction to review the judgments and orders of the territorial court ... in all criminal cases in which the defendant has been convicted, other than on a plea of guilty." 4 V.I.C. § 33 (Supp.1996-1997).

Section 33 would preclude an appeal to the district court in this case, because the defendant has not been convicted. The territorial court relied, however, on section 39 of the Virgin Islands Code, entitled "Appeals by the United States and the Government of the Virgin Islands." 4 V.I.C. § 39. Section 39 provides for appeals in situations where the defendant has not been convicted, but does not explicitly mention to which court the appeal may be taken. We nonetheless conclude that, where applicable, § 39 does grant appellate jurisdiction to the district courts of the Virgin Islands. To conclude otherwise would seriously circumscribe the availability of an appeal under this section. ¹ Moreover before the enactment...