JONATHAN PHIPPS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
Phipps v. People
HODGE, Chief Justice; CABRET, Associate Justice; and. SWAN, Associate Justice. SWAN, Associate Justice, concurring.
JONATHAN PHIPPS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
JONATHAN PHIPPS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
S. Ct. Crim. No. 2008-0032
Supreme Court of the Virgin Islands
February 14, 2011
Leslie Levi Payton, Esq., St. Thomas, USVI, George H. Hodge, Jr., Esq., St. Thomas, USVI, Attorneys for Appellant.
Tiffany V. Monrose, Esq., Assistant Attorney General, St. Thomas, USVI, Attorney for Appellee.
HODGE, Chief Justice; CABRET, Associate Justice; and. SWAN, Associate Justice. SWAN, Associate Justice, concurring.
OPINION OF THE COURT
(February 14, 2011)
Hodge, C.J.
Appellant Jonathan Phipps seeks, on numerous grounds, reversal of his convictions for assault in the third degree and using or possessing a dangerous weapon during a crime of violence. Since the Superior Court committed plain error when it improperly instructed the jury on self-defense, this Court reverses Phipps's convictions and remands the matter for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
At approximately 4:30am on June 5, 2006, Phipps, after several hours of socializing with friends in the downtown Charlotte Amalie, St. Thomas area, visited the Skyhigh Nightclub for the second time that night. At the nightclub, Phipps observed his girlfriend get into a fight with Yudelkys Belliard Mateo Davis. Eventually, this altercation escalated into a fight between Phipps and Davis's boyfriend, Edwin Rosario. Phipps subsequently went to his car and returned with a machete, which he began to swing at Rosario and others. Thomas Esquerdo, a security guard, attempted to break up the fight by spraying mace at both Phipps and Rosario, but Phipps continued to swing his machete. Leroy Donovan, an off-duty police officer, ordered Phipps to stop swinging the machete and, after Phipps refused, shot him several times. Phipps lost his leg as a result of the shooting.
The Virgin Islands Police Department arrested Phipps without a warrant on June 6, 2006. The People of the Virgin Islands subsequently filed an information on June 27, 2006, which charged Phipps with three counts of assault in the third degree and three counts of use or possession of a dangerous weapon during a crime of violence, with each count relating to Phipps's interactions with Davis, Rosario, and Donovan. Phipps's trial occurred from November 27, 2007 to November 28, 2007, and at trial Phipps testified that although he swung the machete at Rosario, he had acted in self-defense because Rosario had chased him from the bar to his car. The jury, however, convicted Phipps of one count of assault in the third degree and one count of use or possession of a dangerous weapon during a crime of violence — both with respect to Rosario — even though it acquitted him on all other charges.
The Superior Court held a sentencing hearing on January 10, 2008, and Phipps timely filed his notice of appeal on January 14, 2008. On January 29, 2008, the Superior Court entered a written judgment and commitment sentencing Phipps to seven years and six months incarceration on the dangerous weapon charge and one year on the assault charge, with the sentences to run concurrently.
II. DISCUSSION
A. Jurisdiction and Standard of Review
"The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law." V.I. Code Ann. tit. 4 § 32(a). Because the Superior Court's January 29,2008 Judgment and Commitment constitutes a final judgment, this Court possesses jurisdiction over Phipps's appeal.
Ordinarily, the standard of review for this Court's examination of the Superior Court's application of law is plenary, while the Superior Court's factual findings are only reviewed for clear error. See St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007). Moreover, unless its decision involves application of a legal precept — in which case this Court would exercise plenary review — this Court only reviews the Superior Court's jury instructions for abuse of discretion. Phillips v. People, 51 V.I. 258, 269 (V.I. 2009). Nevertheless, when a criminal defendant fails to object to a Superior Court decision or order — as was the case here — this Court ordinarily only reviews for plain error, provided that the challenge has been forfeited rather than waived. Francis v. People, 52 V.I. 381, 390 (V.I. 2009). For this Court to reverse the Superior Court under the plain error standard of review, "there must be (1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights.' " Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997)). However, even "[i]f all three conditions are met," this Court will exercise its discretion to reverse the Superior Court "only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id at 390-91.
B. The Superior Court Committed Plain Error In its Self-Defense Jury Instruction
Phipps, as one of several issues raised in his appellate brief, contends that this Court should reverse his convictions because the Superior Court purportedly provided jury instructions that impermissibly shifted the burden of proof for self-defense. We agree.
When reviewing a self-defense jury instruction under a plain error standard, this Court must "look on a case-by-case basis to such factors as the obviousness of the error, the significance of the interest protected by the rule that was violated, and the seriousness of the error in the particular case, and the reputation of judicial proceedings if the error stands uncorrected — all with an eye toward avoiding manifest injustice." Gov't of the VI. v. Smith, 949 F.2d 677, 681, 27 V.I. 332 (3d Cir. 1991) (quoting United States v. Thame, 846 F.2d 200, 205 (3d Cir. 1988)). In this case, the Superior Court first instructed the jury that it may only convict Phipps of a charge if it finds him guilty beyond a reasonable doubt with respect to all elements of a crime, and informed the jury that to convict Phipps of assault in the third degree it had to find that the People proved beyond a reasonable doubt that Phipps used "unlawful violence" against Rosario. Afterwards, the Superior Court instructed the jury with respect to self-defense as follows:
Any person about to be injured may make reasonable — I'm sorry, may make resistance sufficient to prevent an illegal attempt by force to take or injure property in his lawful possession, or an offense against his person or his family or some member thereof. Any person in aide or defense of the person about to be injured may make resistance sufficient to present — prevent the offense....
If a person reasonably believes that force is necessary to protect himself or another person from what he reasonably believes to be unlawful physical harm about to be inflicted by another and uses such force, then he is said to have acted in self-defense or defense of another. . Self-defense which involves using force likely to cause death or great bodily harm is justified only if the person reasonably believe[s] that such force is necessary to protect himself or a third party from what he reasonably believes to be a substantial risk of death or great bodily harm.
(Trial Tr., vol. 2 at 62-63 ,) Afterwards, the Superior Court informed the jury that
Defendant had pleaded not guilty of each of the charges contained in the Information. This plea of not guilty puts in issue each and every of the essential elements of the offenses charged in the Information, and imposes on the People the burden of establishing each of these elements by proof beyond a reasonable doubt. Moreover, defendant contends that he is not guilty of the crimes charged because he was acting in self-defense.
(Id. at 64.) At no point, however, did the Superior Court expressly instruct the jury that the People possessed the burden of disproving Phipps's self-defense claim beyond a reasonable doubt.
Although at least one appellate court has found that a virtually identical jury instruction is not so "fundamentally unfair" as to require reversal notwithstanding a defendant's failure to object to the instruction, see Paprocki v. Foltz, 869 F.2d 281, 285-86 (6th Cir. 1989), we agree with the majority of appellate courts that have found that jury instructions that do not explicitly state that the government bears the burden of disproving self-defense — absent some exceptions that are not applicable here — require reversal under the plain error standard of review even if the jury was instructed that the government must prove beyond a reasonable doubt that the violence was unlawful. See, e.g., Smith, 949 F.2d at 682-86; Guthrie v. Warden, Maryland Penitentiary, 683 F.2d 820, 824 (4th Cir. 1982); People v. Janes, 982 P.2d 300, 302-04 (Colo. 1999); Raines v. State, 79 Haw. 219, 900 P.2d 1286, 1292 (1995); State v. Evans, 278 Md. 197, 362 A.2d 629, 637 (1976); State v. Garcia, 18 P.3d 1123, 1129, 2001 UT App 19 (2001). First, it is well-established, under prior precedents construing Virgin Islands law which are binding on the Superior Court, that "when self-defense has been placed in issue, the jury must be instructed separately regarding the burden of proof on that issue." Smith, 949 F.2d at 681 (citing United States v. Corrigan, 548 F.2d 879 (10th Cir. 1977)). Thus, the Superior Court's error in this case was plain. See Murrell v. People, S.Ct. Crim. No. 2009-0064, 2010 V.I. Supreme LEXIS 27, *48 (V.I. Sept. 13, 2010) (holding error is "plain" when prior precedent directly resolves the issue). Moreover, we agree with the Third Circuit that the error affects substantial rights and could adversely affect the integrity of judicial proceedings because "a juror could reasonably have concluded that it was not necessary for the prosecution to prove the absence of self-defense beyond a reasonable doubt, and that the defendant bore the burden of proving the justification of self-defense instead," which "could have been critical to the outcome of the case" given that "[t]he question of self-defense was central to the defendant's case." Smith, 949 F.2d at 681-82. Accordingly, this Court reverses the Superior Court's January 29, 2008 Judgment and Commitment and remands this matter to the Superior Court for a new trial.
C. The Superior Court Did Not Err When it Refused a Simple Assault Instruction
Given this Court's holding that Phipps is entitled to a new trial due to the Superior Court's erroneous self-defense jury instruction, it would ordinarily not be necessary for this Court to consider any of the other errors Phipps has raised in his appellate brief, including Phipps's claim that the Superior Court should have also instructed the jury that it could find him guilty of the lesser-included offense of simple assault rather than assault in the third degree. "However, it is well established that an appellate court, when ordering a remand to a trial court for further proceedings based on its disposition of one issue may, in the interests of judicial economy, nevertheless consider other issues that, while no longer affecting the outcome of the instant appeal, are 'likely to recur on remand.' " Smith v. Turnbull, S.Ct. Civ. No. 2007-0104, 2010 V.I. Supreme LEXIS 34, *8 (V.I. Sept. 14, 2010) (quoting Rivera-Flores v. P.R. Tel. Co., 64 F.3d 742, 749 (1st Cir. 1995)). Accordingly, given the likelihood that Phipps will also seek such an instruction on remand, this Court, in the interests of judicial economy, shall exercise its discretion to address this additional issue as part of this appeal.
To be convicted of simple assault under section 299(1) of title 14, a defendant must commit an "assault," which is defined as "any unlawful violence upon the person of another with intent to injure him, whatever be the means or degree of violence used," 14 V.I.C. § 292, while to obtain a conviction for assault in the third degree, the People are required to prove the additional element that the assault was "with a deadly weapon." 14 V.I.C. §297(2). Because the People must prove every element of simple assault in order to obtain a conviction under section 297(2), courts have recognized that simple assault is typically a lesser included offense of third degree assault. See, e.g., Gov't of the V.I. v. Brown, 685 F.2d 834, 841 (3d Cir. 1982); Jadooram v. Gov't of the V.I., No. D.C. Crim. App. 2002, 2004 U.S. Dist. LEXIS 10055, *3 n.l (D.V.I. App. Div. Mar. 8, 2004) (unpublished); Gov't of the V.I. v. Williams, 23 V.I. 125, 127 (D.V.I. 1987) (unpublished). Nevertheless, for a jury to convict a defendant on a lesser included offense that is not charged in the information, there must be "a reasonable ground of doubt" for the jury to find that the defendant committed the lesser offense but not the higher offense. 5 V.I.C. § 3635.
As the Superior Court correctly observed when it denied Phipps's requested jury instruction, the issue of whether Phipps possessed a machete during the incident was never in dispute since Phipps had admitted this fact during his trial testimony. (Trial Tr., vol. 1, 218; 232; 237-38.) Consequently, a rational jury could only acquit Phipps of third degree assault, yet still find him guilty of simple assault, if it found that a machete is not a deadly weapon. We agree with other appellate courts that the remote possibility that a jury may find a machete is not a deadly weapon is not a reasonable ground for a judge to instruct the jury on a lesser include offense. See State v. Gamboa, 137 Wn. App. 650, 154 P.3d 312, 314 (2007) (rejecting argument that lesser included offense instruction was warranted because jury could not reasonably conclude that machete was not a deadly weapon). Thus, Phipps was not entitled to a lesser included offense jury instruction and, accordingly, the Superior Court did not abuse its discretion when it denied the requested instruction.
III. CONCLUSION
Under Virgin Islands law, the People possessed the burden of disproving beyond a reasonable doubt Phipps's claim that he acted in self-defense. Thus, the Superior Court's failure to instruct the jury on the burden of proof not only constituted plain error, but affected Phipps's substantial rights and places the fairness of Phipps's trial into question. Accordingly, even though the Superior Court did not err when it declined to instruct the jury on the lesser-included offense of simple assault, this Court reverses Phipps's convictions and remands this matter to the Superior Court for a new trial.
"A notice of appeal filed after the announcement of a decision, sentence, or order — but before entry of the judgment or order — is treated as filed on the date of and after the entry of judgment." V.I.S.CT.R. 5(b)(1).
Because the parties' Joint Appendix does not contain any page numbers, all citations to the record are exclusively to the trial transcript.
See, e.g., Gov't of the V.I. v. Rosa, 399 F.3d 283, 295 (3d Cir. 2005) (holding that erroneous jury instruction did not constitute plain error because jury's acquittal on some counts and conviction on other counts demonstrated it correctly understood that government had burden of proof on issue of proving malice); State v. Garcia, 18 P.3d 1123, 1129, 2001 UT App 19 (2001) ("The law... requires a trial court to adequately instruct the jury about the burden of proof for self-defense when the defendant presents the quantum of evidence necessary to assert self-defense); Latalladi v. People, 51 V.I. 137, 143-44 (V.I. 2009) (applying invited error doctrine to jury instructions).
Although Phipps was acquitted on four counts of the six part information — those relating to his altercations with Davis and Donovan — those acquittals had no relation to self-defense because self-defense was only asserted with respect to Rosario. Furthermore, because it was uncontroverted that Rosario had been the initial aggressor in the bar, and Phipps testified that Rosario chased him from the bar to his car and that he had to swing the machete to get away from him, a quantum of evidence existed for the jury to acquit Phipps based on self-defense. Finally, after holding oral arguments in this matter, this Court required the parties to submit copies of their proposed jury instructions to this Court, which revealed that Phipps had not invited the error by requesting that the Superior Court instruct the jury in such a manner.
"[DJecisions rendered by the Third Circuit... are binding upon the Superior Court even if they would only represent persuasive authority when this [C]ourt considers an issue." In re People of the V.I., 51 V.I. 374, 389 n.9 (V.I. 2009).
In his appellate brief, Phipps also contends that the Superior Court (1) committed error when it allowed his case to proceed to trial even though he was arrested without a warrant; (2) erred when it denied his pre-trial motion to compel disclosure of Donovan's internal affairs file; (3) admitted a photograph of Rosario in violation of the Confrontation Clause and Federal Rule of Evidence 403; (4) entered an illegal sentence; and (5) denied his motion for a new trial. However, it is not necessary for this Court to determine whether the Superior Court erred in allowing Phipps ' s prosecution to proceed because, even if Phipps' s allegations are correct, United States Supreme Court precedent would preclude voiding his conviction as a remedy, but only authorize suppression of any evidence obtained as the "fruit" of the illegal arrest as the remedy, which did not occur in this case. See Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 865, 43 L. Ed. 2d 54 (1975) (citing Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S. Ct. 225, 30 L. Ed. 421 (1886)); see also McDonald v. State, 10 Md. App. 258, 269 A.2d 193, 195 (1970) (collecting cases). Moreover, because of this Court's decision to grant Phipps a new trial, it is not nec essary for this Court to address any alleged errors with his sentence or with the Superior Court's denial of his motion for a new trial. In addition, the Superior Court's admission of Rosario's photograph and — to the extent it has not been mooted by Phipps' s acquittals with respect to all counts relating to Donovan — its denial of Phipps's motion to compel cannot be reviewed by this Court because Phipps has failed to include all necessary documents in the Joint Appendix or to develop a complete record in the Superior Court. Finally, this Court's recent decision in Rivera v. People, 53 V.I. 589 (V.I. 2010), conclusively established that a photograph that contains no markings or statements by the alleged declarant is not "testimonial" and thus admissible notwithstanding the Confrontation Clause.