JIMMY DAVIS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee
Davis v. Government of the Virgin Islands
GOMEZ, Chief Judge, District Court of the Virgin Islands; FINCH, Judge of the District Court of the Virgin Islands; and HOLLAR, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.
JIMMY DAVIS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee
JIMMY DAVIS, Appellant v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee
D.C. Crim. App. No. 2002/085
District Court of the Virgin Islands Division of St. Croix
April 3, 2007
STEPHEN Brusch, Esq., St. Croix, U.S.V.I., Attorney for Appellant.
GABRIELLA HALEY, AAG, St. Thomas, U.S.V.I., Attorney for Appellee.
GOMEZ, Chief Judge, District Court of the Virgin Islands; FINCH, Judge of the District Court of the Virgin Islands; and HOLLAR, Judge of the Superior Court of the Virgin Islands, Sitting by Designation.
MEMORANDUM OPINION
(April 3, 2007)
Ei this appeal, we are asked to decide:
1) Whether the prosecutor violated the appellant's rights to due process guaranteed under the Fifth Amendment to the United States Constitution "by denigrating Appellant's credibility because of Appellant's post -Miranda failure to tell the police that "Goofy" had fired the shots," requiring reversal of the appellant's conviction.
2) Whether the appellant was denied his right to a fair and impartial jury when the court sua sponte excused a potential juror "Simply Because the Juror's Brother Was a Former Police Officer, Who, According to the Court, 'Was in a Lot of Trouble for Writing Bad Checks,' and When the Court Excused Another Juror Without Making a Proper Inquiry of the Juror," requiring a new trial.
3) Whether the doctrine of transferred intent is inapplicable to the offense of assault with intent to commit murder, requiring reversal of the appellant's conviction on Counts I through 4.
[See Br. of Appellant at 2].
Although the prosecutor's cross-examination of the appellant seriously impinged on rights guaranteed under the Fifth and Fourteenth Amendments to the U.S. Constitution, such error was harmless and does not warrant reversal. Having fully considered the appellant's remaining arguments, we further determine they also present no grounds for reversal. Accordingly, for the reasons herein stated, we will affirm the appellant's conviction.
I. STATEMENT OF FACTS AND PROCEDURAL POSTURE
Facts of Crime
On the afternoon of December 23, 2001, Shan Francis ("Francis") was driving a small truck and approached the intersection of Estate Whim Road and the Queen Maiy Highway (Centerline Road) on St. Croix, preparing to turn eastward onto the Queen Mary Highway. Francis' female companion, Erica Parilla ("Parilla") and their infant daughter, Shanadalis Francis ("Shanadalis"), rode in the cabin with Francis. Sean Petrus ("Petrus") rode alone in the bed of the truck. [Appendix ("App.") Vol. I at 145; 187-88]. The traffic was heavy in the area at the time. [Id. at 194],
As Francis' truck came to a stop and prepared to turn right onto the highway, multiple gunshots were fired from the back of another truck traveling past Francis, from east to west on the Queen Mary Highway. Francis, Petrus, and Parilla, who all previously knew the appellant, identified Davis as the only individual in the back of that truck. [App. Vol I. at 99-100, 190, 146-47, 278]..Francis and Parilla both knew Davis from childhood — Parilla knew him from the time she was a young child, as her aunt was married to Davis' father, and Francis attended elementary school with Davis. [Id. at 98-99; Vol. II at 422-23], Davis' brother, Hector Davis, rode in the front cabin, along with the driver, Luis Rivera or "Bugsy".
Both Francis and Petrus said they saw Davis holding a gun; Francis saw Davis take aim and fire those shots. [See App. Vol. I. at 190-92; 144-47]. Although Parilla testified that Davis was the only person in the truckbed, she took cover as the shots rang out and did not see who fired the shots. [Id. at 100-01].
Multiple shots were fired, at least three of which struck Francis' vehicle in the windshield and door on the driver's side. [Id. at 103-05]. However, none of the four individuals were struck. The jury was permitted to view the truck at trial.
Several days after the shooting, Davis was arrested and charged with four counts of assault with intent to kill each of the occupants of Francis' truck: Francis, Parilla, Shanadalis, and Petrus. See 14 V.I.C. § 295(1) (assault first degree). He was additionally charged with reckless endangerment and unauthorized possession of a firearm during a crime of violence, in violation of 14 V.I.C. § 625 and 2253(a).
Exculpatory Testimony
At trial, Davis took the stand and admitted he was riding in the back of the truck from which shots were fired, but said another man, whom he knew only as "Goofy," had fired those shots. [App. Vol. II at 420-21]. He also testified that Francis had engaged in a "shootout" with Goofy and that Davis had simply taken cover. [Id. at 421-22]. Neither the Government nor the defense called to the stand any of the occupants of the truck carrying Davis.
Davis admitted knowing Francis and Parilla but testified he had no ill-feelings toward them. [Id. at 432-34]. He also testified he saw only Petrus in the truck with Francis at the time of the shooting and was unaware of Shanadalis or Parilla. [Id. at 423].
On cross-examination, the Government attempted to impeach Davis with the fact that he had never told police about Goofy, despite the fact that the information would tend to exculpate him of the crimes. [Id. at 449-55]. The trial court overruled the defense's objections to such cross-examination and permitted the questioning, as well as several additional references to the appellant's silence by the prosecutor in closing arguments.
Assault with Intent to Kill
Davis was charged with having assaulted all four victims with the specific intent to kill each one. The jury was instructed on the elements of intent and specific intent. The trial court, at the government's behest and over the appellant's objections, also instructed the jury on the alternative theory of transferred intent for the charge of assault with intent to kill the occupants of Francis' vehicle. [App. Vol. II at 374-79; Supplemental App. at 674-76].
The jury returned guilty verdicts oh all counts. Davis received concurrent sentences for his assault convictions under Counts I through IV. He was sentenced to a total of 15 years on the two. remaining counts. This timely appeal followed.
II. DISCUSSION
A. Jurisdiction and Standards of Review
This Court has jurisdiction to review final judgments and orders of the Superior Court. See The Omnibus Justice Act of 2005, Act No. 6730, § 54 (amending Act No. 6687 (2004) which repealed 4 V.I.G. § 33-40, and reinstating appellate jurisdiction in this Court); Revised Organic Act of 1954 § 23A; 48 U.S.C. § 1613a. We afford plenary review to constitutional claims and generally review the court's factual determinations for clear error. See Quetel v. Gov't of V.I., 178 F. Supp. 2d 482, 484-85 (D.V.I. App. Div. 2001) (citations omitted); Gov't of V.I. v. Albert, 89 F. Supp. 2d 658, 663, 42 V.I. 184 (D.V.I. App. Div. 2001).
B. Whether the Prosecutor's References to Appellant's Post-Arrest Silence Violated the Appellant's Right to Due Process.
1. References to Appellant's Post-Arrest Silence Was Constitutional Error.
The most concerning and, indeed, most meritorious, issue raised by the appellant surrounds the prosecutor's cross-examination regarding Davis' post-arrest silence. Such cross-examination to impeach' his exculpatory testimony that another person nicknamed "Goofy" was the actual shooter, Davis contends, trampled on his constitutional due process right to a fair trial. In light of the well-established precedent on this issue, we determine that it did.
Impeachment through use of a defendant's post-arrest and post-Miranda silence has been held to violate the defendant's constitutional right against self-incrimination and right to due process, for it is the antithesis of the implicit assurances of Miranda v. Arizona and the protections against self-incrimination. See United States v. Hale, 422 U.S. 171, 177-80, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975) (determining such questioning improper in federal prosecutions under Fifth Amendment); Doyle v. Ohio, 426 U.S. 610, 617-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976) (holding questioning impermissible in state prosecutions under Fourteenth Amendment); see also, Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986). The impermissible boundaries of this questioning go to the defendant's failure at the time of arrest to discuss the facts of the crime, after having been given Miranda warnings. See Doyle, 426 U.S. at 619 (noting, however, that post-arrest statements may be used for impeachment if inconsistent with trial testimony); see also, United States v. Agee, 597 F.2d 350, 353-55 (3d Cir. 1979) (no violation where defendant does not invoke his Fifth Amendment privilege to remain silent after arrest and then offers inconsistent testimony at trial).
This type of questioning to refute a defendant's exculpatory version of events, courts have repeatedly held, goes to the very heart of the defendant's defense and is, additionally, inconsistent with the spirit of the Miranda warnings, which caution arrestees of their right to remain silent. See Hale, 422 U.S. at 177; United States v. Harp, 536 F.2d 601, 602-03 (5th Cir. 1976) (noting that such errors rarely harmless); United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir. 1984) (due process violated where references to silence strikes at heart of defense). This is particularly the case when the questioning is prolonged, arid where the focus of the questions directly attack the defendant's exculpatory testimony at trial, suggesting that his prior silence supports an inference of a belated fabrication. See Hale, 422 U.S. at 180; see also, Harp, 536 F.2d at 602-03 (noting repetitive remarks and emphasis on silence); Williams v. Zahradnick, 632 F.2d 353, 361-62 and n. 13 (4th Cir. 1980) (noting that, "One reference is less damaging than four; a lengthy colloquy is more prejudicial than a brief one.") (citations omitted); compare, Phelps v. Duckworth, 772 F.2d 1410 (7th Cir. 1985) (noting single, brief reference coupled with curative instruction militated against reversal).
The rationale for precluding such references to a defendant's post-Miranda silence is the absence of any probative value of post-arrest silence, given the' fact that there could be innumerable reasons for a defendant's silence following an arrest and Miranda warnings, rendering such silence necessarily ambiguous. Doyle, 426 U.S. at 619-20. As the Court enunciated in Doyle,
The warnings mandated by [the Miranda decision], as a prophylactic means of safeguarding Fifth Amendment rights, require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights'. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.
Id. at 617-18 (citing Hale, 422 U.S Tat 177) (internal citation omitted).
The following factors are "considered in assessing alleged Doyle violations: 1) the use to which the prosecution puts the post-arrest silence; 2) whether the defendant or the prosecution initiated reference to the post-arrest silence, the latter being more egregious; 3) other evidence indicative of defendant's guilt, including whether the evidence against the defendant was overwhelming; 4) the intensity and frequency of the reference; and 5) whether a curative instruction was given. See, e.g., Greer v. Miller, 483 U.S. 756, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987) (noting no Doyle violation where curative instructions given); United States v. Johnson, 302 F.3d 139, 148 (3d Cir. 2002) (no violation where only one question asked and objections sustained); United States v. Massey, 687 F.2d 1348, 1353-54 (10th Cir. 1982); Phelps v. Duckworth, 772 F.2d 1410 (7th Cir. 1985).
In this instance, after taking the stand and offering testimony that there was another man, to whom he referred as "Goofy," in the bed of the truck with him and who fired the shots, [App. at 421-22, 430-32], Davis was impeached with repetitive and lengthy questioning regarding his failure to report those purportedly exculpatory facts to police both pre- and post-arrest, as reflected in the following colloquy:
Q And after hearing all of the evidence that you have heard, you come in here today and you say there were some guy named Goofy in your car in the back with you and he was the one that fired the shots?
A Not my car. I was paying them to carry me to buy a water pump.
Q But you come in here and you said it was a guy named Goofy in the back of that truck and Goofy who fired the shots. Is that what you are saying . Where is Goofy today?
A Me ain't know. I am in jail....
Q Is it also your testimony that you were unable to find Goofy in order to help you here in Court today?
A Yes.
Q You were arrested, sir, were you not approximately a week after this incident, December 23; is that correct?
A Afterward.
Q After you were arrested in this case, sir, you did not make any statements to the police. Did you concern yourself whether or not Goofy, and not you, fired the shots on December 23?
MR. MEADE: Objection, Your Honor.
THE COURT: Overruled.
Q (MR. GEOCARIS) Mr. Davis, do you understand the question?
A Repeat.
Q After you were arrested in this case you never made any statement to the police. Did you concern yourself that it was Goofy, and not you, that fired the shots on December 23?
A The police never asked me for no statement.
Q You understand my question?
A Yes. They say they don't have a warrant for my arrest.
Q My question was, did you ever make any statements to the police that it was Goofy, and not you, that fired the shots; yes or no?
A No.
Q And since the time of your arrest up until the present time, now April, have you ever supplied any information to the police about who Goofy is; where he can be found in relation to what you said happen here; yes or no?
[App. Vol. II at 426-27, 449-51]. At that juncture, defense counsel again objected, arguing at sidebar that the line of questioning was impinging on rights protected under the Fifth Amendment. [Id. at 451]. The court having overruled that objection, the prosecutor persisted in the same line of questioning:
MR. GEOCARIS: May I have the court reporter read back the last question please.
THE COURT: Court reporter will read back the last question.
(Reporter read back the last question.)
Q (MR. GEOCARIS) Mr. Davis, answer the question please.
A No. I didn't give no statement to the police.
Q About Goofy?
A About nobody. The police never ask me.
Q I understand. .
[452]. On redirect, defense counsel elicited testimony from Davis that, after he was arrested he was told of his right to remain silent and understood that to mean that he did not have to talk to police unless an attorney was- present. [App. at 455-56]. He also testified that he has remained imprisoned since his arrest.
In closing argument, however, the Government again drew emphasis from Davis' failure to discuss the facts of the crime with police prior to trial and inferred that this failure evidenced his guilt or, at minimum, a fabricated story:
I want to talk a little bit about the defendant's testimony. The defendant said it wasn't him that shot at Mr. Francis' car that day with his baby in the car; with his girlfriend in the cab; it wasn't him. It was Goofy. It was the Goofy defense claims. It was this Goofy guy. Goofy person that did it . It's up to you whether you believe what they say or not. You can take what you know and your ways of the world to decide whether the people who testify before you are telling the truth. Who have a motive in here to lie? Mr. Jimmy Davis does. He have a motive to lie, ves. He does, ladies and gentlemen, because he's brought up on charges. So for the first time we hear Goofy: don't know the person named Goofy. The only person Goofy I know is in Disney World. Goofy did the shooting . Goofy defense doesn't fly.
[Id. at 493-94] (emphasis added). The Government again continued with this tact in its rebuttal argument, telling the jury:
What does [Jimmy Davis] have to lose by inventing some person named Goofy notwithstanding the fact Erica, Shawn and Sean testified it was only Jimmy in the back of the truck. . Jimmy has nothing to lose by inventing a character named Goofy and saying it was Goofy who fired the shots.
Consider your own common experiences and common sense when thinking about on cross-examination. I asked Mr. Davis between January and April, now, have you ever supplied the police with any information concerning where Goofy can be found so the police can arrest him? Where Goofy can be located? Have you ever given? No. no. no. Can you believe that? Do you really feel if. God forbid, one of you all were in the same situation and if the truth was really the truth there was a guv named Goofy and somebody else fires the shots, would you not use everything within your power if it was the truth to notify the police to at least give them a statement that would exonerate yourself. No he didn't do it. but it's a fantom. [sicl. Goofy doesn't exist. I hate to use that word again, but more than that let's forget about that character....
He has nothing to lose by inventing a couple of characters putting him in the back of the truck . and have you think maybe there is a guy named Goofy.
[App. at 521-523] (emphasis added).
The prosecutor's repetitive questioning directly attacked the defendant's exculpatory story that there was another person who was the shooter in the truck with him. These repetitive and emphatic references expressly invited the jury to draw an adverse inference of guilt and recent fabrication from Davis' post-arrest silence and were constitutionally impermissible under Doyle and its progeny. That questioning, and the continued onslaught in closing and rebuttal arguments, went unchecked and without a cautionary instruction from the court. Moreover, the prosecutor's line of questioning was not done in response to inconsistent testimony by the defendant regarding his post-arrest conduct and, therefore, was not proper impeachment under Doyle. We accordingly find that the prosecutor's references to the appellant's post-arrest silence, both in cross examination and closing arguments, violated the appellant's right to due process. We must now decide whether that error was harmless.
2. Harmless Error
A Doyle violation warrants reversal only if it was not harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Marshall, 307 F.3d at 72-73. Under this standard, the reviewing court must satisfy itself that there is no reasonable possibility that the error, viewed in the context of all the evidence presented, contributed to the guilty verdict, undermining confidence in the trial. See Chapman, 386 U.S. at 23; Marshall, 307 F.3d at 73-75 (considering weight of evidence at trial in determining error was harmless); see also, United States v. Hasting, 461 U.S. 499, 510-11, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (noting it must be determined whether, "absent the prosecutor's allusion to [the defendant's] silence and demeanor, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty"); United States v. Balter, 91 F.3d 427, 440 (3d Cir. 1996) (noting that "Doyle violations are harmless beyond a reasonable doubt where the evidence against the defendant is 'overwhelming'") (quoting United States v. Dunbar, 767 F.2d 72, 76 (3d Cir. 1985)); cf. Hassine v. Zimmerman, 160 F.3d 941, 958 (3d Cir. 1998) (noting that harmless error would not be found, "notwithstanding the weight of the evidence presented by the prosecution . if, apart from the violation, the phase of the trial most directly impacted, namely, [the defendant's] testimony, presented a strong counter to the state's evidence").
In the case sub judice, there was no dispute several shots were fired into the small truck carrying the four victims, and no dispute that Davis was in the back of the truck from which those shots emanated. The only dispute raised by the appellant was whether he was the person who fired those shots. Three of the victims testified to seeing only Davis in the back of the truck. Both Francis and Petrus also testified they saw Davis pointing the gun in their direction. Francis testified he subsequently saw Davis pull the trigger. Significantly, the victims all knew Davis prior to the incident; two of them knew him from childhood. There was, therefore, no issue of mistaken identity, and the reliability of the eyewitnesses' identification was not called into doubt.
This eyewitness identification testimony, by victims who had prior knowledge of Davis is, we think, significant evidence from which the jury could have found guilt. See Balter, 91 F.3d at 440 (finding that a-Doyle error was not harmless beyond a reasonable doubt where sufficient evidence in support of the guilty verdict was presented at trial); United v. Dunbar, 767 F.2d 72, 76 (3d Cir. 1985); Lieberman v. Washington, 128 F.3d 1085, 1096 (7th Cir. 1997) (noting evidence of guilt was "so persuasive" that it was almost impossible to conceive how the Doyle violation could have contributed significantly to the jury's determination of guilt"). In the face of this unimpeached eyewitness evidence, we conclude the Doyle violation could not have affected the outcome of the trial. See, e.g., Hassine, 160 F.3d at 958 (finding harmless error, in habeas context, where error occurred in context of testimony that was, on its own, not likely to be viewed as credible and where defendant's story did not present a strong, counter to prosecution's evidence).
C. Discharge of Jury Members
The appellant additionally raises two challenges to the selection of his jury.
We review the trial court's actions during the voir dire process, as well as its response to allegations of jury misconduct, for abuse of discretion. See United States v. Console, 13 F.3d 641, 666 (3d Cir. 1993); United States v. Vega, 285 F.3d 256, 265-66 (3d Cir. 2002); United States v. Howell, 231 F.3d 615, 627 (9th Cir. 2000); see also, Mu'Min v. Virginia, 500 U.S. 415, 427, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) (noting broad discretion of court in inquiry to ferret out jury bias). In that regard, we note that voir dire is designed to assist in determining the ability of a venire person to fairly and objectively participate in the process as a juror, and that determination includes an assessment of "demeanor and credibility that are peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S. 412, 428, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). A venire person's failure to answer, or to accurately answer, a question on voir dire also may properly factor into the trial court's assessment of credibility and may suggest bias. See, e.g, McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 558, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984) (Brennan, J. and Marshall, J., concurring) ("Because the bias of a juror will rarely be admitted by the juror himself . it necessarily must be inferred from surrounding facts and circumstances . . Whether the juror answered a particular question on voir dire honestly or dishonestly, or whether an inaccurate answer was inadvertent or intentional, are simply factors to be considered" in determining bias).
The trial court, in conducting voir dire, "must rely largely on [its] immediate perceptions, and its voir dire determinations are entitled to deference on direct review." Wainwright, 469 U.S. at 428 (noting that a trial court is not required to enter express findings prior to excluding juror); see also United States v. Salamone, 800 F.2d 1216, 1223-24 (3d Cir. 1986) (discretion limited only by demand of fairness).
With these precepts in mind, we turn to the appellant's argument that the court's exclusion of a venire member and a juror deprived him of a fair trial.
1. Discharge of venire member
Appellant first contends the trial court erred in sua sponte excusing a member of the venire panel merely because her brother was a former police officer who had found himself in problems with the law.
As it neared completion of the voir dire process, the Court called venire member No. 24 to the bench and questioned her about her brother, who was a former police officer. [App. at 81-82]. During such questioning, the venire member denied any knowledge of her brother's legal troubles. Thereafter, the court struck the venire member over the appellant's objection. [App. at 84].
The record does not bear out the appellant's assertion that No. 24, identified as Ms. Roberts in the record, was excluded merely because her brother was a former police officer. Indeed, as the appellant acknowledges, several venire members had similar relationships and were not similarly excluded. [App. 66-82]. Rather, from the record, it is apparent the court was concerned with Ms. Roberts' failure to respond to relevant questions on voir dire, her failure, upon further questioning, to disclose her brother's legal troubles, and her denial of any knowledge of those circumstances. Indeed, the court, without objection from the appellant, also excused another panel member for failing to give a candid response regarding her relationship to a police officer. [See Supplemental App. at 631-32].
Obviously, the record before us cannot paint a picture [of] Ms. Roberts' demeanor as the trial court conducted its questioning, or other factors bearing on the court's credibility determination. Accordingly, we will defer to the trial court's determination in that regard. See United States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985); McDonough, 464 U.S. at 558.
2. Discharge of Juror No. 2
Appellant next argues the court erred in striking Juror No. 2, identified on the record as Mrs. Sarauw, for sleeping. The defense objected at trial.
We note initially that the juror was not stricken merely for sleeping, as the appellant asserts. At trial, the government moved to strike Juror No. 2, after she was seen at the end of the day having a conversation with the appellant's father. The government further brought to the court's attention the fact that the juror had previously disclosed that she knew the appellant's father and that they resided in the same area, compounding its concerns regarding their interaction. The trial court also raised a concern that it had observed the juror sleeping throughout a substantial portion of the final jury instructions. The court then further inquired of that juror, who contended there was only a brief exchange when the appellant's father offered her a ride home.
During that inquiry, the juror singled out the prosecutor as the person who walked by as she spoke with the appellant's father and asserted that she had expressly delayed answering the' appellant's father and had spoken loud enough to ensure the prosecutor heard the substance of their exchange. [App. at 475-76], She further strenuously asserted that she had done nothing wrong and expressed strong sentiments about others suggesting that she had. Additionally, when questioned about how she was feeling during the time the court observed her prolonged slumber, the juror also revealed that she had been feeling ill with a flu and had taken medication. [App. at 475-76, 478].
In the arguments following the voir dire of Juror No. 2, the prosecutor expressed concerns that the combative demeanor of that juror during the voir dire suggested that she believed the prosecutor had reported her interaction with Appellant's father and that the juror harbored prejudice against the government as a result. [App. at 481]. The court agreed and struck Juror No. 2, noting:
I am striking her for two reasons. One, she was seen communicating with a relative of Jimmy Davis. Two, she slept throughout my entire delivery of the first portion of the jury instructions. Now, I can understand why. She was not feeling well and had taken medicine which was making her feel sleepy and actually; third reason, I do agree with the Government that she seemed very defensive and may now harbor a bias against the Government. For those reasons she is stricken.
[App. at 482]. Flaving reviewed the lengthy voir dire and the court's findings based on its observation of demeanor and credibility evidence, we determine the court did not abuse its discretion in striking Juror No. 2. See, e.g., United States v. Vega, 285 F.3d 256, 266 (3d Cir. 2002) (discussing presumptive prejudice arising from private communication, contact, or tampering, directly or indirectly, with a juror during a trial); Console, 13 F.3d at 666 ("[T]he trial judge has discretion . to decide how to deal with a situation in which there is an allegation of jury misconduct . [and] [t]his discretion extends to the determination of whether prejudice has been demonstrated.") (citation omitted); United States v. Bradley, 173 F.3d 225, 230-31 (3d Cir. 1999) (noting that a sleeping juror may properly be stricken under Federal Rule of Criminal Procedure 24(c), based on inability to perform their duties); see also United States v. Freitag, 230 F.3d 1019, 1023-24 (7th Cir. 2000).
D. Whether the doctrine of transferred intent was improperly applied.
Under the common law, the transferred intent theory may be used to impose like criminal- culpability where an intended act directed at another resulted in inadvertent harm to an unintended victim. See e.g. United States ex rel. Jackson v. Follette, 462 F.2d 1041, 1047 n.10 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 496 (1972); Yates v. Evatt, 500 U.S. 391, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991); State v. Fekete, 120 N.M. 290, 901 P.2d 708 (1995) (noting doctrine generally applied in "bad aim" situations and also protects the unintended victim in cases where the criminal statute matches the required specific intent with the specific victim); State v. Wilson, 71 Wash. App. 880, 863 P.2d 116, 121 (1993) ("The doctrine of transferred intent was created to avoid the specific intent requirement and thus hold the defendant accountable for the consequences of his behavior when he injures an unintended victim."), rev'd in part, 125 Wash. 2d 212, 883 P.2d 320 (1994). That doctrine was found necessary to avoid the absurd result of absolving from criminal culpability crimes for which it would otherwise be impossible to establish specific intent to harm the unintended victim.
Appellant contends the doctrine of transferred intent cannot be applied to the crime of assault with the intent to murder, because conviction for that crime requires that the assault must be committed upon the intended murder victim. Thus, Davis argues that in the absence of evidence he expressly shot at or intended to murder Petrus, Parilla or Shanadalis, his conviction may not lie.
Davis was convicted of assault with intent to commit murder as to each victim, under title 14, section 295(1). The V.I. Code defines "assault" as any "attempt^ to commit a battery; or . a threatening gesture showing in itself an immediate intention coupled with an ability to commit a battery." 14 V.I.C. § 291. Accordingly, conviction for assault in the first degree, under section 295(1), requires proof that the defendant: willfully attempted or threatened to inflict bodily harm upon another, while having the present ability to inflict such an injury; that the attempt or threat to inflict injury was accompanied by an intentional display of force which gave the person reason to fear immediate bodily harm, and; that the defendant did so with the specific intent to kill the victim. See Rivera v. Gov't of V.I., 42 V.I. 203, 210, *4 (D.V.I. App. Div. 2000) (noting that "intent to commit murder" has been construed to mean that "the defendant acted for the specific purpose of unlawfully killing").
The element of intent presents a question of fact. See Drew v. Drew, 971 F. Supp. 948, 951, 37 V.I. 61 (D.V.I. App. Div. 1997) (citing Gov't of the V.I. v. Frett, 14 V.I. 315, 325 (Terr. Ct. 1978)); see also Rosa v. Gov't of the V.I., D.C. Crim. App. No. 2001/068, 2006 U.S. Dist. LEXIS 76255, at 7 (D.V.I. App. Div. Sept. 22, 2006). As we have repeatedly explained, and as is by now hornbook law, the state of mind of the actor often cannot be shown through direct evidence and must, instead, be discerned from the facts and circumstances of the defendant's conduct. See Rosa, supra, 2006 U.S. Dist. LEXIS 76255, at 7 (citing Gov't of V.I. v. Roldan, 612 F.2d 775, 16 V.I. 683 (3d Cir. 1979), cert. denied, 446 U.S. 920, 100 S. Ct. 1857, 64 L. Ed. 2d 275 (1980); Gov't of V.I. v. Lanclos, 477 F.2d 603, 9 V.I. 579 (3d Cir. 1973); Gov't of V.I. v. Lake, 362 F.2d 770, 776 (3d Cir. 1966)). Therefore, although the actor's intent cannot be inferred from the mere fact of the assault, it is well-settled that the nature or character of an assault, and the use of a deadly weapon or other manner reasonably likely to result in death are factors that may support a jury inference of intent. See id.; see also Lake, 362 F.2d at 776 (noting that "every sane man is presumed to intend all the natural and probable consequences flowing from his deliberate acts") (citing Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896)).
Here, it was shown that Davis fired multiple shots at the small truck in which all four victims rode. At least three of those shots struck that truck, one of which lodged in the windshield. Given the use of a deadly weapon and the manner of the assault, which could have reason ably resulted in the death of all four occupants, the element of intent to kill as to each of the occupants was sufficiently established.
Moreover, the jury was instructed on the elements of the crime and that it was required to find that Davis acted with specific intent as to each victim:
Before the defendant maybe [sic] found guilty of a crime the Government must prove beyond a reasonable doubt that the defendant committed the act which the law declares to be a crime and that the defendant intentionally committed the acts . An act is intentionally done if done deliberately, purposefully, and consciously, rather the product of a mistake or accident.
Now, intent maybe proved by circumstantial evidence. Indeed, it can rarely be established by any other means. We simply cannot look into the head or the mind of another person. It is physically impossible to do that. So while witnesses may see and hear and so be able to give direct evidence of what a defendant does or fails, to do, they cannot give an account of the state of mind with which the acts were done or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit the particúlar offense charged.
In deciding the issue of what a person knew or what a person intended at a particular time, you may consider any statement made or acts done by that person and all other facts and circumstances received in evidence which may help you to determine that person's knowledge or intent.
You may infer, but you are certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted .
The crimes charged in this case are serious crimes which require proof of specific intent before the defendant can be convicted. Specific intent as the term implies means more thán the general intent to commit the act. To establish specific intent, the Government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all of the facts .and circumstances surrounding the case.
[App. at 530-32], The court then instructed the jury that, as to each victim, it was required to find that Davis assaulted the victims with the specific intent to murder each and, additionally, that it could consider culpability under the lesser-included offense only if such specific intent was not proven. [App. at 534-36] (separately outlining elements of the crime as to each victim). The court further instructed:
If you find that the defendant assaulted Shawn Francis with the intent to murder him and by mistake or accident assaulted Sean Petrus, Erica Parilla [and] Shanadalis Francis, the element of intent is satisfied even though the defendant did not assault, with the intent to murder Sean Petrus, Erica Parrilla and Shanadalis Francis. The law transfers the intent from the original victim to any unintended victims.
[App. at 532].
In light of the trial evidence establishing the appellant's direct intent as to each victim, we need not resolve the broader issue whether the transferred intent doctrine is applicable to the charged crimes or where neither the intended nor unintended victim is harmed. Even assuming the trial court's instruction on that theory constituted error, however, such error would be harmless in light of the evidence pointing to a direct intent as to each victim, as outlined above. See e.g., Al Qaadir v. Gallegos, 56 F.3d 70 (Table), 1995 U.S. App. LEXIS 13607 (9th Cir. June 2, 1995) (declining to reach issue of whether transferred intent instruction violated due process and finding that if erroneous, it was nonetheless harmless, where defendant's act of firing multiple shots into a truck in which his intended victim was riding was sufficient to support finding of intent to kill all the victims, even without resorting to transferred intent doctrine); Affinito v. Hendricks, 366 F.3d 252, 262 (3d Cir. 2004) (noting that, "Overwhelming evidence that a defendant acted with intent may also render an erroneous jury instruction harmless.") (citing Kontakis v. Beyer, 19 F.3d 110, 118 (3d Cir. 1994)); Czahara, 203 Cal. App. 3d 1468, 250 Cal. Rptr. 836 (holding resort to transferred intent doctrine was unnecessary where the conduct of defendant established intent to kill all individuals); Ford, 625 A.2d at 994-95 (holding convictions sustainable based on specific intent as to multiple individuals, although transferred intent inapplicable where crime is complete even before instrument of assault reaches its intended target); State v. Brady, 745 So.2d 954, 957-58 (Fla. 1999) (noting that action of intentionally firing weapon in close proximity to two individuals established intent element, though only one was the intended target, and transferred intent instruction was unnecessary; jury did not rely on transferred intent doctrine where it convicted defendant of lesser-included offense, for which no such instruction was given); Miles v. State, 88 Md. App. 248, 594 A.2d 634, 639 (holding that transferred intent does not apply when there is no "unintended victim"), cert. denied, 325 Md. 95, 599 A.2d 447 (1991). We will accordingly affirm.
III. CONCLUSION
In light of the foregoing, we will affirm the appellant's conviction. An appropriate order follows.
Our jurisdiction in this regard was previously provided under 4 V.I.C. § 33.
The complete Revised Organic Act of 1954 is found at 48 U.S.C. § 1541-1645 (1995 & Supp. 2000), reprinted in V.I. Code Ann. 73-177, Historical Documents, Organic Acts, and U.S. Constitution (1995 & Supp. 2003) (preceding V.I. Code Ann. tit. !)•
Miranda v. Arizona, 384 U.S. 436, 467-473, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Doyle is generally applicable only where Miranda warnings are given, and it is the Government's burden to establish that no Miranda warnings were given and that Doyle protections are, therefore, applicable. See United States v. Cummiskey, 728 F.2d 200, 205-206 (3d Cir. 1984) (remanding for determination); see also, United States v. Johnson, 302 F.3d 139, 146 (3d Cir. 2002) (noting Hale-Doyle protections applicable only to post-Miranda silence).
The Government has not raised that issue in its brief, nor was evidence offered at trial to refute the defendant's testimony that he was, in fact, given Miranda warnings at the time of his arrest. Therefore, there being no dispute that Davis was given Miranda warnings and that the prosecutor's references were to his post-Miranda conduct, we apply the principles stated in Doyle. Id.
Contrary to the government's assertions, the standard instruction regarding burden of proof and presumption of innocence would not suffice to cure the error, because it did not specifically direct the jury not to improperly consider the appellant's silence as evidence of guilt or to infer from the prior silence that the exculpatory testimony was a fabrication.
But see U.S. v. Wiley, 29 F.3d 345, *349 (C.A.8 (Minn.), 1994) noting that harmless error analysis based on consideration of the following factors: [1] whether the government made repeated Doyle violations, [2] whether any curative effort was made by the trial court, [3] whether the defendant's exculpatory evidence is 'transparently frivolous,' and [4] whether the other evidence of the defendant's guilt is 'otherwise overwhelming.') (citations omitted; United States v. Dixon, 593 F.2d 626 (5th Cir. 1979) (weighing various non-exclusive actors, including the use to which the Doyle reference was put; curative instructions, frequency of references; what party originated the reference, and weight of evidence, in determining harmless error); Williams v. Zahradnick, 632 F.2d 353, 361-65 (4th Cir. 1980) (weighing factors, including plausibility of the defendant's exculpatory testimony, in determining harmless error); Harp, 536 F.2d 601 (applying apparent per se harmful error test where Doyle reference attacks defendant's exculpatory story).
Compare, Com. v. Hunter, 434 Pa. Super. 583, 644 A.2d 763, 763-64 (1994) (rejecting argument that intent to injure under aggravated assault not shown where actor fired shots into home, from car and holding that intent shown as to each individual from act of discharging shots into occupied home where there exists great probability that any occupants would be harmed) (citing Commonwealth v. Eaddy, 419 Pa. Super. 48, 614 A.2d 1203 (1992) (finding intent to do serious bodily harm, under assault statute, where defendant, while targeting a specific individual, fired shots through window of home and struck another person inside the home)); California v. Czahara, 250 Cal. Rptr. 836, 203 Cal. App. 3d 1468 (1988) (where the conduct of defendant is such that it creates a "killing zone" or zone of harm, jury may reasonably infer direct intent to kill all individuals within that zone); Ford v. Maryland, 330 Md. 682, 625 A.2d 984, 994-95 (1992) (holding that conviction for throwing large rocks unto highway as vehicles passed may be had for multiple specific intent crimes from one act when it can be inferred that defendant intended to so harm each victim; intent shown by such widespread conduct that was reasonable likely to cause injury to both drivers and' passengers); see also Ruffin v. United States, 642 A.2d 1288 (D.C. Cir. 1994) (upholding conviction for assault with intent to kill, holding that act of spraying a car with a hail of bullets permitted jury finding that the defendant had the intent to kill everyone in the path of bullets and all occupants); Com. v. Rosado, 454 Pa. Super. 17, 684 A.2d 605, 610 (1996) (defendant's act of firing shots into upper windows of building established intent to injure occupants, notwithstanding his assertions that he was unaware the victims used the second floor of their grocery business as their residence); State v. Brady, 745 So. 2d 954, 957-58 (Fla. 1999) (noting that act of firing deadly weapon toward several individuals supports finding of intent as to either ope); Ruffin v. United States, 642 A.2d 1288 (D.C. Cir. 1994) (upholding conviction for assault with intent to kill, holding that act of spraying a car with a hail of bullets permitted jury finding that the defendant had the intent to kill everyone in the path of bullets and all occupants).