Opinions of the United
2001 Decisions                                                                                                             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Precedential or Non-Precedential: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


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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, 

, 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," 

, 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. Co-
counsel 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, 

(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

. 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 

, citing Gov't of the
Virgin Islands v. Christensen, 

, 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 , 

,
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."

(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, 

, 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, 

, 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, 

, 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 cross-
examination 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, 

, 1180
(3d Cir. 1995); Cooper Distr. Co. v. Amana Refrigeration Inc.,

, 549 (3d Cir. 1999). In the absence of a
timely objection, we review only for plain error. See 

. 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, 

, 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, 

, 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." 

.

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." 

.

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." 

, quoting Mathews v. United
States, 

, 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, 

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

, 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, 

, 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 ("self-
defense"), 14 V.I.C. S 926 ("excusable homicide"), 14 V.I.C.
SS 927(2)(A) & (B) ("justifiable homicide"). See 

(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, 

, 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, 

, 221 (3d Cir. 1999), quoting United States v.
Zehrbach, 

, 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, 

, 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 

. We also noted the
similarity between justifiable homicide and excusable homicide in the
Virgin Islands. See 

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, 

, 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, 

, 1010 (Miss. App. 1998).
California courts long ago rejected the common law principles underlying
a duty to retreat. See People v. Zuckerman, 

, 549-0 (Cal.
1942) ("California courts have definitely rejected the antiquated doctrine
that a defendant will be justified in killing his assailant in self-
defense
only after he has used every possible means of escape by fleeing,
[including] `retreating to the wall.' ").

                               17
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,

, 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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