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. e du/thir dc ir c uit_2001/290Filed December 12, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 00-3628/3877/3878

GOVERNMENT OF THE VIRGIN ISLANDS

v.

FRANK FONSECA (D.C. Criminal No. 96-00247)

GOVERNMENT OF THE VIRGIN ISLANDS

v.

BLANCHE FINNEY (D.C. Criminal No. 96-00249)

GOVERNMENT OF THE VIRGIN ISLANDS Appellant No. 00-3628

GOVERNMENT OF THE VIRGIN ISLANDS

v.

FRANK FONSECA (D.C. Criminal No. 96-00247)

GOVERNMENT OF THE VIRGIN ISLANDS

v.

BLANCHE FINNEY (D.C. Criminal No. 96-00249)

BLANCHE FINNEY Appellant No. 00-3877GOVERNMENT OF THE VIRGIN ISLANDS

v.

FRANK FONSECA (D.C. Criminal No. 96-00247)

GOVERNMENT OF THE VIRGIN ISLANDS

v.

BLANCHE FINNEY (D.C. Criminal No. 96-00249)

FRANK FONSECA Appellant No. 00-3878

Appellate Division of the District Court for the Virgin Islands (D.C. Criminal. APP. Nos. 96-00247 and 96-00249) District Judges, App. Div.: Hons. Finch, Moore, and Steele

Argued May 18, 2001

BEFORE: MCKEE, RENDELL, and BARRY, Circuit Jud ges

(Opinion Filed December 12, 2001)

Maureen P. Cormier (Argued) Assistant Attorney General Department of Justice 48B-50C Kronprindsens Gade GERS Bldg., 2nd Floor St. Thomas, USVI 00802 Attorney for Appellant/Cross- Appellee the Government of the Virgin Islands

2Treston E. Moore (Argued)

P.O. Box 310, E.G.S.

14A Norre Gade

Charlotte Amalie St. Thomas, USVI 00804-0310 Attorney for Appellee/Cross- Appellant Blanche Finney

Ariel M. Smith (Argued)

P.O. Box 1498 Palm Passage, Suite B-22

Charlotte Amalie St. Thomas, USVI 00804-1498 Attorney for Appellee/Cross- Appellant Frank Fonseca

OPINION OF THE COURT

MCKEE, Circuit Judge:

The Government of the Virgin Islands asks us to rev erse a decision of the Appellate Division of the Distric t Court of the Virgin Islands vacating the murder convictions of Blanche Finney and Frank Fonseca and remanding for a new trial. We are also asked to review that court's conclusion that the Attorney General of the Virgin Islands is not empowered to issue subpoenas in a criminal investigation after a defendant has been arrested a nd charged with a criminal offense.

In their cross-appeal, the defendants argue that th e trial court erred in failing to instruct the jury on the legal use of force to: evict a trespasser, preserve the peace, a nd perform a citizen's arrest. For the reasons that follow, we hold that the Appellate Division erred in granting a new tria l based upon the trial court's purported failure to give a lawful violence instruction. Accordingly, we need not reac h any additional issues or discuss the Appellate Division 's dicta regarding the Attorney General's subpoena power.

I. FACTS

On the evening of January 23, 1994, Blanche Finney and Frank Fonseca fatally stabbed Khaalid Tariq. Tariq and

3Blanche were at one time married, but divorced at t he time

of the stabbing. A detailed account of the circumst ances surrounding that killing is set forth in the opinio n of the Appellate Division of the Virgin Islands that is th e subject of this appeal. See Fonseca v. Government of the Vi rgin Islands, 119 F. Supp. 2d 531, 532-3 (D.V.I. 2000). For our purposes, it is sufficient to note that at the time of the stabbing, Blanche Finney was romantically involved with Frank Fonseca. Blanche lived with her brother, Jess e Finney. Jesse and Blanche were both security guards at the hotel where they resided. Sometime during the eveni ng of January 23rd, Tariq knocked on Blanche's door and demanded to speak with her. An altercation ensued between Tariq, Jesse, Blanche and Frank Fonseca dur ing which Tariq was repeatedly stabbed. The stabbing oc curred after some or all of the trio first hit Tariq with a police baton or "billy club," and tried to spray him with chemical

mace.

Thereafter, Blanche and Jesse Finney were arrested along with Frank Fonseca, and charged with first degree m urder. Six months after the stabbing, Blanche was admitted to a local hospital for treatment of serious physical in juries unrelated to the stabbing of Tariq. During the cour se of her hospitalization, she made incriminating statements to her

doctor. Those statements were transcribed in her me dical record, and her doctor later related them to the pr osecutor who issued an Attorney General's subpoena for the m edical records. See, 4 V.I.C. S 601.

Jesse Finney eventually pled guilty to third degree assault, but Blanche Finney and Frank Fonseca were jointly tried before a jury. The trial court initia lly appointed Edith Bornn to represent Blanche at trial. Although Ms. Bornn was "an eminently qualified and well respecte d lawyer," Fonseca, 119 F.Supp. 2d at 535, she had no t previously handled a criminal case, let alone a hom icide. Therefore, the court appointed Treston Moore to ser ve as co-counsel.

During the course of the ensuing trial, the governm ent sought to introduce the subpoenaed medical records arguing that they contained various admissions that were inconsistent with the defendants' claim of self-def ense, but

4the trial court sustained a defense objection to th is evidence.1

Although the court precluded the government from us ing this evidence in its case-in-chief, the court allow ed the government to use it in rebuttal if Blanche testifi ed. However, Blanche did not testify, and the records w ere never admitted into evidence.

At the conclusion of the trial, defense counsel ask ed the court to instruct the jury on the law of self-defen se, the right to resist, and the defense of habitation. Moo re also requested instructions on defense of others (14 V.I .C. SS 42 and 43), justification with regard to self-defense (14 V.I.C. S 927(2)), lawful violence (14 V.I.C. S 293(a)), an d a private citizen's right to arrest and remove a trespasser. App. IV, pp. 1067-74. The court agreed to charge on self-def ense and defense of another, but expressed some concerns about the remaining requests. The court was concerned bec ause, although "lawful violence" negates criminal liabili ty for assault and battery, the defendants were charged wi th murder. App. IV, p. 1106. After weighing the defens e request, the trial court stated that it would only give the self-defense and justifiable homicide instructions, and instructed the jury on those two defenses after clo sing
arguments.

Attorney Moore had to appear in another courtroom o n the morning that the charge was to be given. He was therefore absent for part of the closing arguments, and all of the judge's jury instructions. When he returned to the courtroom, he asked the court if it had instructed on lawful violence and the court assured him that it had give n that instruction. In reality, however, the court had giv en instructions on self-defense, and justifiable homic ide, but had not charged on lawful violence under 4 V.I.C.S 293(a) as Moore had requested during the charge conference . Cocounsel Bornn had been present for the entire charg e, but she did not object to the charge the court gave.

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1. Defense counsel argued that under 4 V.I.C.S 601, the Attorney General can only issue subpoenas before a person is arrested. Blanche's medical records were subpoenaed after she had been arrested. Defense counsel also argued that the medical evidence was p rivileged.

5The jury convicted both defendants of murder, and t hey

appealed to the Appellate Division of the district court. The Appellate Division ruled that failure to give a law ful violence charge under S 293(a) was reversible error. That co urt also agreed with the defendants' claim that Virgin Islan ds law did not empower the Attorney General to subpoena Blanche's medical records after her arrest. This ap peal by the Government of the Virgin Islands followed.

The government argues that the Appellate Division e rred in stating that Virgin Islands law does not allow t he Attorney General to subpoena evidence after an arre st, and in holding that the jury charge was erroneous. In t heir cross appeal, the defendants challenge "the [Appell ate Division's] failure to charge the jury on the sever al theories of defense," requested at the conclusion of the tri al. Appellants' Br. at 25. The defendants also ask us t o affirm the Appellate Division's limitation of the Attorney General's subpoena power.

II. DISCUSSION

A. Jurisdiction

Before reaching the substance of these appeals, we must address the defendants' argument that we lack juris diction. Defendants argue that the government is not appeali ng a "final order" as is required under 28 U.S.C.S 1291. They note that 48 U.S.C. S 1493 -- authorizing appeals f rom prosecutions in a territory -- does not authorize t he government to appeal a grant of a new trial in a cr iminal

case.

48 U.S.C. S 1493 provides:

The prosecution in a territory or Commonweal th is authorized--unless precluded by local law--t o seek review or other suitable relief in the appro priate local or Federal appellate court, or where applica ble, in the Supreme Court of the United States from--

(a) a decision, judgment, or order of a tri al court dismissing an indictment or information as t o any one

or more counts. . .

6(b) a decision or order of a trial court su ppressing or

excluding evidence or requiring the return o f seized property in a criminal proceeding. . .

(c) an adverse decision, judgment, or order of an appellate court.

48 U.S.C. S 1493 (1999). The defendants also argue that the jurisdictional grant contained in 4 V.I.C. S 39(c) does not apply. That statute states, "the Government of the Virgin Islands may appeal an order dismissing an informati on or otherwise terminating a prosecution in favor of a d efendant or defendants as to one or more counts thereof, exc ept where there is an acquittal on the merits." Finally

, defendants argue that although 48 U.S.C. S 1613a(c) (1993) grants us jurisdiction to review "final decisions" of the District Court for the Virgin Islands, the other pr ovisions of Virgin Islands law set forth establish that a reman d for a

new trial in a criminal case is not a "final order" as is required for our jurisdiction under 28 U.S.C. S 129 1.

We have, however, previously addressed this issue a nd resolved it in the government's favor. In Gov't of the Virgin Islands v. Charleswell, 24 F.3d 571 (3d Cir. 1994) we held that our jurisdiction over the government's appeal from an order of remand for a new trial is not predicated o n 28 U.S.C. S 1291. Rather, it arises from 18 U.S.C. S 3 731. See Charleswell, 24 F.3d at 574. Section 3731 provides in 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 dismissing an indictment or inform ation or granting a new trial after verdict or judgment, as to any one or more counts. . . ." We held that the phrase,"the United States," also applies to the government of the Virg in Islands. See Charleswell, 24 F.3d at 574, citing Go v't of the Virgin Islands v. Christensen, 673 F.2d 713, 716 (3 d Cir. 1982).

We also concluded that our jurisdiction was not aff ected by whether the appeal was from the Appellate Divisi on of the District Court, or the district court, itself, as "the language of 18 U.S.C. S 3731 provides no basis for holding that our jurisdiction varies depending on the capac ity in which the district court sat." Charleswell , 673 F. 2d at 574-

775, citing Gov't of the Virgin Islands v. Mills , 9 35 F.2d 591,

595-97 (3d Cir. 1991). Accordingly, we have jurisdi ction,

and will address the merits.

B. The Attorney General's Subpoena Power

As noted above, the Appellate Division agreed with the defendants' assertion that the Attorney General of the Virgin Islands is not authorized to subpoena eviden ce after a defendant has been arrested and charged, but the court

did not reverse the trial court on that basis. Rath er, in reversing the trial court, the Appellate Division s tated: "Although the Court finds that the government did a buse its power in issuing the subpoena afer Finney's arr est, we do not reach the issue of whether Finney suffered a ny prejudice as a result, since we reverse on other gr ounds." Fonseca, 119 F. Supp. 2d at 534 (emphasis added). T he discussion of the Attorney General's subpoena power is, therefore, obiter dicta. It is not part of the hold ing, and not precedential. Inasmuch as we are reversing the Appe llate Division's holding regarding the jury instructions, we need not review the Appellate Division's conclusion rega rding the limitations on the Attorney General's subpoena powe r.

Furthermore, Blanche did not testify at trial. Acco rdingly, she has waived any claim she may otherwise have had that her medical records were privileged. See Luce v. Un ited States, 469 U.S. 38, 41 (1984) (finding harm to def endant "wholly speculative" where defendant chose not to t estify to avoid impeachment from his prior convictions); Unit ed States v. Moskovits, 86 F.3d 1303, 1305 (3d Cir. 19 96) (finding harm speculative where defendant, acting a s his own counsel, elected not to testify to avoid condit ions imposed by the trial judge on how to conduct his di rect examination); United States v. Furst, 886 F.2d 558, 578 (3d Cir. 1989) (finding harm "entirely speculative" whe re defendant limited the scope of his direct examinati on of witnesses to avoid government's possible improper c rossexamination of witnesses).

C. Jury Instructions

As noted above, the Appellate Division concluded th at the trial court erred in not giving a lawful violence i nstruction.

8The Appellate Division concluded that the defendant s were

entitled to that instruction under relevant provisi ons of 4 V.I.C. S 293(a). That statute in part defines as la wful,

violence used for:

. . .

(3) the preservation of peace, or to preven t the commission of offenses;

(4) in preventing or interrupting an intrus ion upon the lawful possession of property, against t he will of the owner or person in charge thereof;

. . .

(6) in self-defense or in defense of anothe r against unlawful violence offered to his person or p roperty.

14 V.I.C. S 293(a) (2000).2 The trial judge refused to give a specific lawful violence instruction under S 293(a) , and the parties now dispute whether Blanche's attorney made a timely objection. Consequently, the parties disagre e about the appropriate standard of review. The government states that we must review for plain error. The defendants argue that our review is plenary.

When a party has made a timely objection to jury instructions, we generally review for abuse of disc retion. See Gov't of the Virgin Islands v. Isaac, 50 F.3d 1 175, 1180 (3d Cir. 1995); Cooper Distr. Co. v. Amana Refriger ation Inc., 180 F.3d 542, 549 (3d Cir. 1999). In the absence of a timely objection, we review only for plain error. S ee Cooper, 180 F.3d at 549. Under the latter standard, only th ose errors that "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice" will be reversed. Gov't of the Virgin Islands v. Smith, 949 F.2d 677, 681 (3d

___________________________________________________ ______________

2. The omitted subsections of S 293(a) are not rele vant to this appeal. They address parental violence administered in disc iplining children (S 293(a)(1)), violence used "for the preservation of order in a meeting

for religious or other lawful purposes, in the case of obstinate resistance to the person charged with the preservation of order" (S 293(a)(2)), and violence used in making a lawful arrest pursuant to "lawful orders of a magistrate or court," (S 293(a)(5)).

9Cir. 1991), quoting United States v. Young, 470 U.S . 1, 16

(1985).3

The disagreement over the appropriate standard of r eview stems from the circumstances surrounding the court' s charge. As noted above, Moore had to go to another courtroom during part of the closing arguments and all of the jury charge. Upon his return, he asked the tria l court if it had given the lawful violence instruction, an d the court assured him that it had.4 The Appellate Division co ncluded that Moore's inquiry was sufficient to preserve an objection to the charge and afforded the jury instructions pl enary review as to Blanche's appeal. However, inasmuch as Fonseca's lawyer did not object, the court reviewed his challenge to the jury instruction for "plain error. " Fonseca, 119 F.Supp. 2d at 535.

We agree that Moore did not waive his objection to the jury charge. He initially requested such a charge, and thereafter clearly attempted to get clarification f rom the

court on whether the lawful violence instruction wa s given during his absence. The court assured him that it h ad been. These attempts to preserve the issue can not be negated by the fact that his co-counsel heard the c harge

___________________________________________________ ______________

3. Where "the question is whether the jury instruct ions failed to state

the proper legal standard, this court's review is plena ry." Isaac, 50 F.3d at

1180.

4. The following exchange occurred:

ATTORNEY MOORE: Your Honor, in the lawful vi olence, 393, Subsection 4, it talks about the ability of a person to use

reasonable force to protect property or to --

THE COURT: yes, yes yes,

ATTORNEY MOORE: Did you give that?

THE COURT: Yes.

ATTORNEY MOORE: Very well, Your Honor.

App. IV, p. 1284 (Moore was apparently referring to section 293, not 393 of Title 4. See, 4 V.I.C. S 293(a)). The court no d oubt did believe that

it had adequately addressed that charge and (as we dis cuss below), we believe the charge that was given was sufficient to inform the jury about the lawful use of deadly force.10and did not object. After all, Moore was appointed precisely

because his co-counsel lacked experience in crimina l matters. There is an obvious unfairness in recogniz ing that Ms. Bornn did not have sufficient experience to ade quately represent Blanche and appointing Moore as co-counse l on the one hand, and then concluding that Bornn waived an objection despite her more experienced co-counsel's efforts to preserve it on the other. However, even though w e agree that the objection was not waived, we do not agree that the charge that was given was erroneous.

The Appellate Division reasoned that the evidence supported a lawful violence instruction, and conclu ded the trial court's failure to give one under S 293(a), w as reversible error. The court stated:

The lawful violence instruction in this ins tance was crucial to both appellants' defenses. With t he appellants having raised the argument that t heir actions were committed in self-defense, the government had the burden of disproving beyond a reason able doubt their claims of self-defense. By not i ncluding the lawful violence instruction, the trial court did not put the government to its burden before the jury and as a result, the appellants' due process rights w ere violated. Without question, the error had an unfair pr ejudicial impact that seriously affected the . . . int egrity of the

trial. The Court finds that the trial court' s failure to give the lawful violence instruction was pla in error, which inclusively indicates that the trial c ourt's omission does not survive plenary review. Ac cordingly,

the Court will vacate the convictions of bot h appellants

and remand for new trial.

Fonseca, 119 F.Supp 2d at 535-6 (internal quotation marks and citations omitted).

As a general principle, "a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Isaac, 50 F.3d at 1180, quoting Mathews v. United States, 485 U.S. 58, 63 (1988). So long as the evid ence presented at trial reveals a basis for the defense, a court may not refuse a defendant's request for an instruc tion on

11that defense. See Gov't of the Virgin Islands v. Ro binson, 29

F.3d 878, 882 (3d Cir. 1994); Gov't of the Virgin I slands v. Salem, 456 F.2d 674, 675 (3d Cir. 1972). Conversely , a trial court need not instruct the jury on any principle t hat does

not have a factual basis in the evidence. See Bird v. United States, 187 U.S. 118, 132-33 (1902).

Virgin Islands law sets forth overlapping, yet dist inct, defenses to a homicide prosecution. For example, an y and all of the following statutes define conduct that c an arguably be referred to as "lawful violence": 14 V. I.C. S 293(a) ("lawful violence"), 14 V.I.C.SS 41 and 43 ("selfdefense"), 14 V.I.C. S 926 ("excusable homicide"), 14 V.I.C. SS 927(2)(A) & (B) ("justifiable homicide"). See Is aac, supra (discussing distinctions between various defenses t o homicide prosecution under Virgin Islands law). The Appellate Division, however, limited its discussion to

instructions on lawful violence under 14 V.I.C.S 29 3(a), and that is all the defendants have argued on appea l. Accordingly, we need only consider the "lawful viol ence" instructions that may be required under that statut e. That inquiry requires that we review each of the arguabl y applicable subdivisions of S 293(a) in context with the evidence produced at trial. In doing so, "we consid er the totality of the instructions and not a particular s entence or paragraph in isolation." United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995). The instructions will be upheld if "the charge as a whole fairly and adequately sub mits the issues in the case to the jury." United States v. T hayer, 201 F.3d 214, 221 (3d Cir. 1999), quoting United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995).

1. S 293(a)(3)

The government concedes that the defendants "may ha ve been entitled to a lawful violence instruction on t his record," but argues: "the only part of that instruc tion that was requested, was supported by the evidence, and w as not covered by other instructions was [subsection (3)], and the failure to instruct on this one clause was not plai n error." Appellant's Br. at 44. However, as noted above, our review is not restricted to plain error. Inasmuch as Blanc he preserved the objection, we must review for abuse o f

12discretion as to her appeal, but review for plain e rror as to

Fonseca.

Subsection 3 defines lawful violence to include vio lence for "the preservation of peace, or to prevent the c ommission of offenses," 14 V.I.C. S 293(a)(3). As noted above , the trial court indicated that it was not inclined to charge on lawful violence because the defendants were charged with homicide, not assault and battery. 14 V.I.C. S 293( a) is contained in Chapter 13 of the Virgin Islands Code. Chapter 13 is, in turn, captioned: "Assault and Bat tery." On the other hand, 14 V.I.C. S 927 is contained in Chapter 45 of the Virgin Islands Code which is captioned:

"Homicide." 14 V.I.C. S 927 establishes the defense of "justifiable homicide," and states that such justif ication includes resisting any attempt to murder any person , or to commit a felony, or to do some great bodily injury upon any person"14 V.I.C. S 927(2)(A) (emphasis added).

The distinction between these two defenses is readi ly apparent. Section 293(a)(3) allows one to use viole nce to preserve the peace or prevent "commission of offens es," without further defining the offenses that justify resort to violence. However, S 927 restricts the offenses tha t justify resort to deadly force to felonies. Common sense, a s well as the statutory scheme and headings, therefore sugges t that one can only use the kind of deadly force at issue here to prevent the commission of a felony. A contrary read ing would mean that someone could employ deadly force t o thwart a petty theft, or even a summary offense. We do not believe that to have been the intent of the legisla ture in enacting S 293(a)(3).

Nevertheless, the evidence here established that on e or both of the defendants assaulted Tariq with a "bill y club" and possibly chemical mace before he was stabbed. Therefore, there may well have been an issue in a j uror's mind about the legality of that initial assault by the defendants, and that may have been relevant to the juror's view of the defendants' subsequent right to use for ce against Tariq. Nevertheless, assuming arguendo tha t S 293(a)(3) is relevant in this context, the charge that the trial court gave adequately explained the governing legal principles and guided the jury's deliberations. The jury was

13informed that the defendants had the right to use

reasonable force to resist force being used against them. As we discuss below, the court's instructions correctl y informed the jury of the circumstances in which the defendants could use deadly force, even if they wer e the initial aggressors.

The defense's evidence at trial raised a classic is sue of self-defense. The defendants attempted to show that Tariq had a propensity for violence; that he was the aggr essor throughout the confrontation; appeared to be hiding a weapon in his rear pocket; and that the defendants had a reasonable and justifiable fear of him during this altercation, and took steps to defend themselves. T he trial court instructed the jury accordingly. The court st ated:

Ladies and Gentlemen of the Jury, also, if the defendant had a reasonable ground to believe and actually did believe that they were in immin ent danger of death or serious bodily harm and deadly f orce was necessary to repel such danger, they would b e justified in using deadly force in self-defense, even though it may thereafter have turned out that the appe arances were false. The defense hinges on the defend ants' subjective belief in imminent danger or deat h or serious bodily harm and the objective reason ableness

of that belief.

. . .

You will note, too, that the defendants hav e raised not only the issue of self-defense, but defe nse of another or a third person. If a person reaso nably believes that force is necessary to protect another person from what that person reasonably beli eves to be unlawful physical harm about to be inflicted by another and uses such force, then the person acted in self-defense of another person.

App. IV, pp. 1253-1260.

These instructions guided the jury in deciding whet her Finney's and Fonseca's actions were legally justifi ed at each step of the confrontation. The jurors knew that the defendants had a right to defend themselves against an

14assault or aggression on the part of Tariq and, on this

record, that is all that S 293(a)(3) required. 5

2. 14 V.I.C. S 293(a)(4)

As noted above, a lawful violence instruction is al so appropriate when there is evidence that the defenda nt used violence in the course of "preventing or interrupti ng an intrusion upon the lawful possession of property. . . ." 14 V.I.C. S 293(a)(4). However, defendants never conte nded that Tariq attempted to enter Finney's home. The undisputed evidence, including the testimony of def endant Fonseca, is that Tariq knocked on the door, and Jes se opened it. Jesse then did retreat back into the roo m to call Fonseca, but Tariq remained outside, and he stayed outside in the hallway during the entire altercation. There is no evidence to suggest that Tariq tried to get inside. Accordingly, it was not an abuse of discretion to r efuse to give a charge under subsection (4) of the lawful vi olence instruction. It was simply not supported by the tes timony.

3. 14 V.I.C. S 293(a)(6)

There is, however, ample evidence to justify an instruction regarding the use of violence "in self- defense or in defense of another against unlawful violence off ered to his person or property" under S 293(a)(6). That doe s not, of course, mean that the defendants were entitled to a formulation of subsection (6) of their choosing."A court errs in refusing a requested instruction only if the omi tted instruction is correct, is not substantially covere d by other instructions, and is so important that its omission prejudiced the defendant." United States v. Davis, 183 F.3d 231, 250 (3d Cir. 1999) (emphasis added).

In agreeing with the defendants' assertion that the trial court erred in not instructing under S 293(a), the Appellate Division failed to carefully consider the charge th at the trial court actually gave. As set forth above, that charg e

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5. To the extent that the defendants are arguing th at they had a right to use deadly force to keep the peace underS 293(a)(3) , we reject the argument outright.

15accurately and adequately explained defense of self and

property on this record. In their cross-appeal, the defendants argue that the self-defense charge that was given was itself erroneous because "the Court erron eously imposed a duty to retreat on the Defendants and[thi s] must also be corrected on retrial." Appellees' Br. at 29, n.12. However, we do not believe that the instructi ons imposed such a duty, and the Appellees have not cit ed any specific language in the charge to support that ass ertion. The trial court did instruct the jurors:

If the defendants had a reasonable ground t o believe and actually did believe that they were in i mminent danger of death or serious bodily harm, and that deadly force was necessary to repel such dan ger, they were not required to retreat or to consider whether they could safely retreat. They were entitled to stand their grounds and use such force as was reasonable under

the circumstances to save their lives or to protect themselves from serious harm. However, if th e Defendant could have safely retreated but di d not do so, their failure to retreat is circumstance s under which you may consider, together with all th e other circumstances, in determining whether they w ent further in repelling the danger, real or app arent, than they were justified in doing under the circu mstances.

Even if the other person was the aggressor and the defendants were justified in using force in self-defense, they would not be entitled to use any greate r force than they had reasonable grounds to believe and a ctually did believe to have been necessary under the

circumstances to save their lives or avert s erious harm.

In determining whether the defendants used excessive force in defending themselves, you may consider all the circumstances under which t hey acted. The claim of self-defense is not necessarily defeated if greater force than would have seemed necessa ry in cold blood was used by the Defendants in the heat of passion generated by an assault upon them. A belief which may be unreasonable in cold blood may be actually and reasonably entertained in the h eat of passion.

16Generally, the right to use deadly force in self-

defense is not available to one who is the a ggressor or provokes the conflict. However, if one who p rovokes a conflict thereafter withdraws from it in goo d faith and informs his adversaries by words or action t hat he desires to end the conflict, and he's therea fter pursued, he is justified in using deadly force to sav e himself or others from imminent danger or death or seri ous bodily

harm.6

App. IV, pp. 1254-1260.

Thus, the court mentioned "retreating" only to info rm the jury that it could consider the defendants' ability to safely retreat along with all of the other circumstances i n deciding if the defendants' use of deadly force was reasonab le under the circumstances.7 The defendants ignore the fact that the

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6. The jury was therefore correctly informed of the limited circumstances in which the defendants could resort to deadly forc e to defend themselves even if they were the initial aggressors

.

7. We do not intend to infer anything about whether Virgin Islands law imposes a duty to retreat before using deadly force . Our research has not disclosed any reported cases from the Virgin Is lands discussing the duty to retreat in the context of using deadly forc e. In Isaac, we noted that "the Virgin Islands definition of excusable ho micide restates the

common law and is similar to excusable homicide sta tutes in Florida, California, and Mississippi." 50 F.3d at 1183. We a lso noted the similarity between justifiable homicide and excusab le homicide in the Virgin Islands. See id. However, there is no unifor m rule regarding the duty to retreat in the common law states we referre d to.

The Florida Supreme Court has recognized a duty"to retreat to the wall" if one can do so safely before using deadly f orce unless one is in his or her own home. See Weiand v. State, 732 So. 2 d 1944, 1049 (Fl. 1999) (explaining the common law origins of the"cas tle doctrine"). In Mississippi there is no duty to retreat so long as the one using deadly force is in a place where he or she has a right to be and was not the aggressor. "[I]n such [a] case, he may stand his gr ound and resist force by force, taking care that his resistance be not di sportioned to the attack." Wade v. State, 724 So. 2d 1007, 1010 (Miss . App. 1998). California courts long ago rejected the common law principles underlying a duty to retreat. See People v. Zuckerman, 132 P. 2d 545, 549-0 (Cal. 1942) ("California courts have definitely rejected the antiquated doctrine that a defendant will be justified in killing his a ssailant in selfdefense only after he has used every possible means of esca pe by fleeing, [including] `retreating to the wall.' ").

17trial court specifically stated: "[the defendants] were not

required to retreat or to consider whether they cou ld safely retreat. They were entitled to stand their grounds and use such force as was reasonable." App. IV p. 1257 (emp hasis added). Accordingly, we hold that the trial court's instruction on self-defense substantially and adequ ately included the lawful violence specified in 14 V.I.C. S 293(a)(6), if it applies in the context of deadly force. Therefore, the trial court did not err in failing t o give the "lawful violence" charge as requested.

4. The Defendants' Cross-Appeal

In granting the defendants a new trial, the Appella te

Division stated:

The issue raised by both Finney and Fonseca that requires a new trial is the inadequate instr uctions given to the jury by the trial court on the defenses of self-defense and justifiable homicide. Appel lants argue that they were entitled to additional instru ctions on lawful violence, the right to use reasonable force to remove a trespasser, the powers of arrest by a private person, the right to resist, and the defense of habitation. The court arguably included the instruction

on defense of habitation within its instruct ion on justifiable homicide. (See App. at 1254). Of the remaining allegations raised by the appellan ts, the

court's failure to include the instruction o n lawful violence causes the greatest concern.

Fonseca, 119 F. Supp 2d at 534. The defendants now ask us to address issues in their cross-appeal that the y claim the Appellate Division did not resolve. However, we decline to address any additional arguments in the first in stance. Rather, we will remand to the Appellate Division so that it can address any additional claims of error. See Cha rleswell, 24 F.3d 571, 577 (3d Cir. 1994).

III. CONCLUSION

For the reasons set forth herein, we will reverse t he judgment of the Appellate Division and remand for proceedings consistent with this opinion.

18A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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