2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-12-2001

Govt of VI v. Fonseca

Precedential or Non-Precedential:

Docket 00-3628

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Recommended Citation

"Govt of VI v. Fonseca" (2001). 2001 Decisions. Paper 290.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/290
Filed 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. 00-3877 
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) 

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 

 2 
 Treston 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 reverse 

a decision of the Appellate Division of the District 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 and 

charged with a criminal offense. 

In their cross-appeal, the defendants argue that the trial 

court erred in failing to instruct the jury on the legal use of 

force to: evict a trespasser, preserve the peace, and perform 

a citizen's arrest. For the reasons that follow, we hold that 

the Appellate Division erred in granting a new trial based 

upon the trial court's purported failure to give a lawful 

violence instruction. Accordingly, we need not reach 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 

 3 
Blanche were at one time married, but divorced at the time 

of the stabbing. A detailed account of the circumstances 

surrounding that killing is set forth in the opinion of the 

Appellate Division of the Virgin Islands that is the subject 

of this appeal. See Fonseca v. Government of the Virgin 

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, Jesse 

Finney. Jesse and Blanche were both security guards at the 

hotel where they resided. Sometime during the evening 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 during 

which Tariq was repeatedly stabbed. The stabbing occurred 

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 murder. 

Six months after the stabbing, Blanche was admitted to a 

local hospital for treatment of serious physical injuries 

unrelated to the stabbing of Tariq. During the course of her 

hospitalization, she made incriminating statements to her 

doctor. Those statements were transcribed in her medical 

record, and her doctor later related them to the prosecutor 

who issued an Attorney General's subpoena for the medical 

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 initially appointed 

Edith Bornn to represent Blanche at trial. Although Ms. 

Bornn was "an eminently qualified and well respected 

lawyer," Fonseca, 119 F.Supp. 2d at 535, she had not 

previously handled a criminal case, let alone a homicide. 

Therefore, the court appointed Treston Moore to serve as 

co-counsel. 

During the course of the ensuing trial, the government 

sought to introduce the subpoenaed medical records 

arguing that they contained various admissions that were 

inconsistent with the defendants' claim of self-defense, but 

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

Although the court precluded the government from using 

this evidence in its case-in-chief, the court allowed the 

government to use it in rebuttal if Blanche testified. 

However, Blanche did not testify, and the records were 

never admitted into evidence. 

At the conclusion of the trial, defense counsel asked the 

court to instruct the jury on the law of self-defense, the 

right to resist, and the defense of habitation. Moore 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)), and a private 

citizen's right to arrest and remove a trespasser. App. IV, 

pp. 1067-74. The court agreed to charge on self-defense 

and defense of another, but expressed some concerns about 

the remaining requests. The court was concerned because, 

although "lawful violence" negates criminal liability for 

assault and battery, the defendants were charged with 

murder. App. IV, p. 1106. After weighing the defense 

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 closing 

arguments. 

Attorney Moore had to appear in another courtroom on 

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 given that 

instruction. In reality, however, the court had given 

instructions on self-defense, and justifiable homicide, 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 charge, but 

she did not object to the charge the court gave. 

_________________________________________________________________ 

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 privileged. 

 5 
The jury convicted both defendants of murder, and they 

appealed to the Appellate Division of the district court. The 

Appellate Division ruled that failure to give a lawful violence 

charge under S 293(a) was reversible error. That court also 

agreed with the defendants' claim that Virgin Islands law 

did not empower the Attorney General to subpoena 

Blanche's medical records after her arrest. This appeal by 

the Government of the Virgin Islands followed. 

The government argues that the Appellate Division erred 

in stating that Virgin Islands law does not allow the 

Attorney General to subpoena evidence after an arrest, and 

in holding that the jury charge was erroneous. In their 

cross appeal, the defendants challenge "the [Appellate 

Division's] failure to charge the jury on the several theories 

of defense," requested at the conclusion of the trial. 

Appellants' Br. at 25. The defendants also ask us to 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 jurisdiction. 

Defendants argue that the government is not appealing a 

"final order" as is required under 28 U.S.C.S 1291. They 

note that 48 U.S.C. S 1493 -- authorizing appeals from 

prosecutions in a territory -- does not authorize the 

government to appeal a grant of a new trial in a criminal 

case. 

48 U.S.C. S 1493 provides: 

 The prosecution in a territory or Commonwealth is 

 authorized--unless precluded by local law--to seek 

 review or other suitable relief in the appropriate local 

 or Federal appellate court, or where applicable, in the 

 Supreme Court of the United States from-- 

 (a) a decision, judgment, or order of a trial court 

 dismissing an indictment or information as to any one 

 or more counts. . . 

 6 
 (b) a decision or order of a trial court suppressing or 

 excluding evidence or requiring the return of 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 information or 

otherwise terminating a prosecution in favor of a defendant 

or defendants as to one or more counts thereof, except 

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 provisions of 

Virgin Islands law set forth establish that a remand 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 1291. 

We have, however, previously addressed this issue and 

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 on 28 

U.S.C. S 1291. Rather, it arises from 18 U.S.C. S 3731. 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 information 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 Virgin 

Islands. See Charleswell, 24 F.3d at 574, citing Gov't of the 

Virgin Islands v. Christensen, 673 F.2d 713, 716 (3d Cir. 

1982). 

We also concluded that our jurisdiction was not affected 

by whether the appeal was from the Appellate Division 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 capacity in 

which the district court sat." Charleswell , 673 F.2d at 574- 

 7 
75, citing Gov't of the Virgin Islands v. Mills , 935 F.2d 591, 

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

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 evidence after 

a defendant has been arrested and charged, but the court 

did not reverse the trial court on that basis. Rather, in 

reversing the trial court, the Appellate Division stated: 

"Although the Court finds that the government did abuse 

its power in issuing the subpoena afer Finney's arrest, we 

do not reach the issue of whether Finney suffered any 

prejudice as a result, since we reverse on other grounds." 

Fonseca, 119 F. Supp. 2d at 534 (emphasis added). The 

discussion of the Attorney General's subpoena power is, 

therefore, obiter dicta. It is not part of the holding, and not 

precedential. Inasmuch as we are reversing the Appellate 

Division's holding regarding the jury instructions, we need 

not review the Appellate Division's conclusion regarding the 

limitations on the Attorney General's subpoena power. 

Furthermore, Blanche did not testify at trial. Accordingly, 

she has waived any claim she may otherwise have had that 

her medical records were privileged. See Luce v. United 

States, 469 U.S. 38, 41 (1984) (finding harm to defendant 

"wholly speculative" where defendant chose not to testify to 

avoid impeachment from his prior convictions); United 

States v. Moskovits, 86 F.3d 1303, 1305 (3d Cir. 1996) 

(finding harm speculative where defendant, acting as his 

own counsel, elected not to testify to avoid conditions 

imposed by the trial judge on how to conduct his direct 

examination); United States v. Furst, 886 F.2d 558, 578 (3d 

Cir. 1989) (finding harm "entirely speculative" where 

defendant limited the scope of his direct examination of 

witnesses to avoid government's possible improper crossexamination of witnesses). 

C. Jury Instructions 

As noted above, the Appellate Division concluded that the 

trial court erred in not giving a lawful violence instruction. 

 8 
The Appellate Division concluded that the defendants were 

entitled to that instruction under relevant provisions of 4 

V.I.C. S 293(a). That statute in part defines as lawful, 

violence used for: 

 . . . 

 (3) the preservation of peace, or to prevent the 

 commission of offenses; 

 (4) in preventing or interrupting an intrusion upon 

 the lawful possession of property, against the will of 

 the owner or person in charge thereof; 

 . . . 

 (6) in self-defense or in defense of another against 

 unlawful violence offered to his person or property. 

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 disagree 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 discretion. 

See Gov't of the Virgin Islands v. Isaac, 50 F.3d 1175, 1180 

(3d Cir. 1995); Cooper Distr. Co. v. Amana Refrigeration Inc., 

180 F.3d 542, 549 (3d Cir. 1999). In the absence of a 

timely objection, we review only for plain error. See Cooper, 

180 F.3d at 549. Under the latter standard, only those 

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 relevant to this appeal. 

They address parental violence administered in disciplining 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)). 

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

(1985).3 

The disagreement over the appropriate standard of review 

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 trial court 

if it had given the lawful violence instruction, and the court 

assured him that it had.4 The Appellate Division concluded 

that Moore's inquiry was sufficient to preserve an objection 

to the charge and afforded the jury instructions plenary 

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 from the 

court on whether the lawful violence instruction was given 

during his absence. The court assured him that it had 

been. These attempts to preserve the issue can not be 

negated by the fact that his co-counsel heard the charge 

_________________________________________________________________ 

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

the 

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

1180. 

4. The following exchange occurred: 

 ATTORNEY MOORE: Your Honor, in the lawful violence, 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 doubt did believe that 

it 

had adequately addressed that charge and (as we discuss below), we 

believe the charge that was given was sufficient to inform the jury about 

the lawful use of deadly force. 
 10 
and did not object. After all, Moore was appointed precisely 

because his co-counsel lacked experience in criminal 

matters. There is an obvious unfairness in recognizing that 

Ms. Bornn did not have sufficient experience to adequately 

represent Blanche and appointing Moore as co-counsel 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 we 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 concluded the 

trial court's failure to give one under S 293(a), was 

reversible error. The court stated: 

 The lawful violence instruction in this instance was 

 crucial to both appellants' defenses. With the 

 appellants having raised the argument that their 

 actions were committed in self-defense, the government 

 had the burden of disproving beyond a reasonable 

 doubt their claims of self-defense. By not including 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 were violated. 

 Without question, the error had an unfair prejudicial 

 impact that seriously affected the . . . integrity of the 

 trial. The Court finds that the trial court's failure to 

 give the lawful violence instruction was plain error, 

 which inclusively indicates that the trial court's 

 omission does not survive plenary review. Accordingly, 

 the Court will vacate the convictions of both 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 evidence 

presented at trial reveals a basis for the defense, a court 

may not refuse a defendant's request for an instruction on 

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

F.3d 878, 882 (3d Cir. 1994); Gov't of the Virgin Islands v. 

Salem, 456 F.2d 674, 675 (3d Cir. 1972). Conversely, a trial 

court need not instruct the jury on any principle that 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 distinct, 

defenses to a homicide prosecution. For example, any and 

all of the following statutes define conduct that can 

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 Isaac, supra 

(discussing distinctions between various defenses to 

homicide prosecution under Virgin Islands law). The

Appellate Division, however, limited its discussion to 

instructions on lawful violence under 14 V.I.C.S 293(a), 

and that is all the defendants have argued on appeal. 

Accordingly, we need only consider the "lawful violence" 

instructions that may be required under that statute. That 

inquiry requires that we review each of the arguably 

applicable subdivisions of S 293(a) in context with the 

evidence produced at trial. In doing so, "we consider the 

totality of the instructions and not a particular sentence 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 submits the 

issues in the case to the jury." United States v. Thayer, 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 have 

been entitled to a lawful violence instruction on this 

record," but argues: "the only part of that instruction that 

was requested, was supported by the evidence, and was not 

covered by other instructions was [subsection (3)], and the 

failure to instruct on this one clause was not plain error." 

Appellant's Br. at 44. However, as noted above, our review 

is not restricted to plain error. Inasmuch as Blanche 

preserved the objection, we must review for abuse of 

 12 
discretion as to her appeal, but review for plain error as to 

Fonseca. 

Subsection 3 defines lawful violence to include violence 

for "the preservation of peace, or to prevent the commission 

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 Battery." 

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 justification 

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 readily 

apparent. Section 293(a)(3) allows one to use violence to 

preserve the peace or prevent "commission of offenses," 

without further defining the offenses that justify resort to 

violence. However, S 927 restricts the offenses that justify 

resort to deadly force to felonies. Common sense, as well as 

the statutory scheme and headings, therefore suggest that 

one can only use the kind of deadly force at issue here to 

prevent the commission of a felony. A contrary reading 

would mean that someone could employ deadly force to 

thwart a petty theft, or even a summary offense. We do not 

believe that to have been the intent of the legislature in 

enacting S 293(a)(3). 

Nevertheless, the evidence here established that one or 

both of the defendants assaulted Tariq with a "billy club" 

and possibly chemical mace before he was stabbed. 

Therefore, there may well have been an issue in a juror'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 force 

against Tariq. Nevertheless, assuming arguendo that 

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 

 13 
informed 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 correctly 

informed the jury of the circumstances in which the

defendants could use deadly force, even if they were the 

initial aggressors. 

The defense's evidence at trial raised a classic issue of 

self-defense. The defendants attempted to show that Tariq 

had a propensity for violence; that he was the aggressor 

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. The trial 

court instructed the jury accordingly. The court stated: 

 Ladies and Gentlemen of the Jury, also, if the 

 defendant had a reasonable ground to believe and 

 actually did believe that they were in imminent danger 

 of death or serious bodily harm and deadly force was 

 necessary to repel such danger, they would be justified 

 in using deadly force in self-defense, even though it 

 may thereafter have turned out that the appearances 

 were false. The defense hinges on the defendants' 

 subjective belief in imminent danger or death or 

 serious bodily harm and the objective reasonableness 

 of that belief. 

 . . . 

 You will note, too, that the defendants have raised 

 not only the issue of self-defense, but defense of 

 another or a third person. If a person reasonably 

 believes that force is necessary to protect another 

 person from what that person reasonably believes 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 whether 

Finney's and Fonseca's actions were legally justified at each 

step of the confrontation. The jurors knew that the

defendants had a right to defend themselves against an 

 14 
assault 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 also 

appropriate when there is evidence that the defendant used 

violence in the course of "preventing or interrupting an 

intrusion upon the lawful possession of property. . . ." 14 

V.I.C. S 293(a)(4). However, defendants never contended 

that Tariq attempted to enter Finney's home. The 

undisputed evidence, including the testimony of defendant 

Fonseca, is that Tariq knocked on the door, and Jesse 

opened it. Jesse then did retreat back into the room 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 refuse to 

give a charge under subsection (4) of the lawful violence 

instruction. It was simply not supported by the testimony. 

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 offered to 

his person or property" under S 293(a)(6). That does 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 omitted 

instruction is correct, is not substantially covered 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 that the trial 

court actually gave. As set forth above, that charge 

_________________________________________________________________ 

5. To the extent that the defendants are arguing that they had a right to 

use deadly force to keep the peace underS 293(a)(3), we reject the 

argument outright. 

 15 
accurately 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 erroneously 

imposed a duty to retreat on the Defendants and[this] 

must also be corrected on retrial." Appellees' Br. at 29, 

n.12. However, we do not believe that the instructions 

imposed such a duty, and the Appellees have not cited any 

specific language in the charge to support that assertion. 

The trial court did instruct the jurors: 

 If the defendants had a reasonable ground to believe 

 and actually did believe that they were in imminent 

 danger of death or serious bodily harm, and that 

 deadly force was necessary to repel such danger, 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 the 

 Defendant could have safely retreated but did not do 

 so, their failure to retreat is circumstances under 

 which you may consider, together with all the other 

 circumstances, in determining whether they went 

 further in repelling the danger, real or apparent, than 

 they were justified in doing under the circumstances. 

 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 greater force than 

 they had reasonable grounds to believe and actually 

 did believe to have been necessary under the

 circumstances to save their lives or avert serious harm. 

 In determining whether the defendants used 

 excessive force in defending themselves, you may 

 consider all the circumstances under which they acted. 

 The claim of self-defense is not necessarily defeated if 

 greater force than would have seemed necessary 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 heat of 

 passion. 

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 Generally, the right to use deadly force in self- 

 defense is not available to one who is the aggressor or 

 provokes the conflict. However, if one who provokes a 

 conflict thereafter withdraws from it in good faith and 

 informs his adversaries by words or action that he 

 desires to end the conflict, and he's thereafter pursued, 

 he is justified in using deadly force to save himself or 

 others from imminent danger or death or serious bodily 

 harm.6 

App. IV, pp. 1254-1260. 

Thus, the court mentioned "retreating" only to inform the 

jury that it could consider the defendants' ability to safely 

retreat along with all of the other circumstances in deciding 

if the defendants' use of deadly force was reasonable under 

the circumstances.7 The defendants ignore the fact that the 

_________________________________________________________________ 

6. The jury was therefore correctly informed of the limited circumstances 

in which the defendants could resort to deadly force 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 Islands discussing the 

duty to retreat in the context of using deadly force. In Isaac, we noted 

that "the Virgin Islands definition of excusable homicide restates the 

common law and is similar to excusable homicide statutes in Florida, 

California, and Mississippi." 50 F.3d at 1183. We also noted the 

similarity between justifiable homicide and excusable homicide in the 

Virgin Islands. See id. However, there is no uniform rule regarding the 

duty to retreat in the common law states we referred to. 

The Florida Supreme Court has recognized a duty"to retreat to the 

wall" if one can do so safely before using deadly force unless one is in 

his or her own home. See Weiand v. State, 732 So. 2d 1944, 1049 (Fl. 

1999) (explaining the common law origins of the"castle 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 ground and resist force 

by force, taking care that his resistance be not disportioned 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 assailant in selfdefense 

only after he has used every possible means of escape by fleeing, 

[including] `retreating to the wall.' "). 

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trial court specifically stated: "[the defendants] 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." App. IV p. 1257 (emphasis 

added). Accordingly, we hold that the trial court's

instruction on self-defense substantially and adequately 

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 to give the 

"lawful violence" charge as requested. 

4. The Defendants' Cross-Appeal 

In granting the defendants a new trial, the Appellate 

Division stated: 

 The issue raised by both Finney and Fonseca that 

 requires a new trial is the inadequate instructions 

 given to the jury by the trial court on the defenses of 

 self-defense and justifiable homicide. Appellants argue 

 that they were entitled to additional instructions 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 instruction on 

 justifiable homicide. (See App. at 1254). Of the 

 remaining allegations raised by the appellants, the 

 court's failure to include the instruction on 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 they claim 

the Appellate Division did not resolve. However, we decline 

to address any additional arguments in the first instance. 

Rather, we will remand to the Appellate Division so that it 

can address any additional claims of error. See Charleswell, 

24 F.3d 571, 577 (3d Cir. 1994). 

III. CONCLUSION 

For the reasons set forth herein, we will reverse the 

judgment of the Appellate Division and remand for 

proceedings consistent with this opinion. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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