                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2002

Govt of VI v. Simmons
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-4184




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"Govt of VI v. Simmons" (2002). 2002 Decisions. Paper 358.
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                                                    NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                           ___________

                           No. 00-4184
                           ___________

                 GOVERNMENT OF THE VIRGIN ISLANDS

                                v.

                          KEVIN SIMMONS,

                                                   Appellant
                            ___________

On Appeal from the District Court of the Virgin Islands -- Appellate Division

                                              District Court Judges:   Raymond L. Finch, Chief
                               Thomas K. Moore, District Judge
                               Brenda J. Hollar, Territorial Judge

                    (D.C. Crim. No. 98-cr-00139)
                            ___________

           Submitted Under Third Circuit L.A.R. 34.1(a)
                           May 13, 2002

       Before:   AMBRO, FUENTES, and GARTH, Circuit Judges.

                   (Opinion Filed: June 13, 2002)
                      ________________________

                       OPINION OF THE COURT
                     ________________________FUENTES, Circuit Judge:
     Defendant Kevin Simmons was convicted of murder in the first degree and of
possession of a firearm during the commission of a crime of violence. The trial court
sentenced him to life without parole on the first-degree murder conviction and to five
years on his firearm conviction. Simmons appeals from the Order of the District Court of
the Virgin Islands Appellate Division affirming his conviction, claiming the trial court
erred by improperly instructing the jury, by misinterpreting the jury’s verdict, and by not
informing the parties of a note from the jury attached to the verdict form at the time the
verdict was accepted by the court. Because we conclude that the defendant’s arguments
are without merit, we will affirm his conviction.

                               I.
     As the facts of this case are well-known to the parties, we state them only in
summary. Early in the afternoon of January 26, 1996, Kevin Simmons and two other
men fired multiple gunshots at sixteen-year-old Ajamu Williams at the Ludvig Harrigan
Court in Frederiksted, St. Croix. As the assailants retreated, Williams called out to a
friend to ask if the men had left. The defendant heard Williams, returned to the area, and
shot him in the head. Soon thereafter, Williams was pronounced dead on arrival at the
Governor Juan Luis Hospital.
     Simmons, Rodney Greenidge, and Andy Peters were arrested for the murder of
Williams. At his trial, Simmons asserted a defense of "acute stress disorder," allegedly
brought about by earlier incidents in which he had been shot at and threatened. Most
notably, approximately twelve hours before Simmons and his friends shot and killed
Williams, three gunshots had ripped through Simmons’ home while he and his family
were inside. Because Simmons suspected that young men from the Harrigan Housing
Community were behind the shooting, he and his friends retaliated against Williams, a
resident of Harrigan.
     On October 12, 1996, a jury found the defendant guilty of both charges. Together
with their verdict, the jurors submitted a note to the judge, which read:
                                             Your Honor                         10-12-96

          In consideration of our verdict, we the Jury would like to
          recommend that in your decision to the Defendant Kevin
          Simmonds [sic], you make some mandatory Psycological
          [sic] treatment as part of his rehabilitation[.]

          [Twelve jurors affixed their signatures here.]

The trial judge neither informed counsel about the note nor responded to it. On
November 2, 1998, the defendant was sentenced to life without parole on the first-degree
murder conviction to be served concurrently with a sentence of five years on his
conviction for possession of a firearm during the commission of a crime of violence.
     The defendant appealed to the Appellate Division of the District Court of the
Virgin Islands, claiming that the trial court erred in failing to instruct the jury on the
consequences of a not guilty by reason of insanity ("NGI") verdict, that the jury note
given to the judge constituted ex parte communication violative of defendant’s right to be
present at all critical stages of his trial, and that the trial court erred in failing to give
defendant’s proposed instruction on voluntary manslaughter. The Appellate Division
affirmed his conviction, finding that, because the defendant did not give proper notice of
his intent to assert an insanity defense pursuant to Federal Rule of Criminal Procedure
12.2(a), he was not entitled to the insanity instruction that he received and, accordingly,
was not entitled to an instruction on the consequences of an NGI verdict. Further, the
Appellate Division deemed the trial judge’s failure to share the jury’s note to be irrelevant
since the defendant was never entitled to assert an insanity defense. Finally, the
Appellate Division reviewed the trial judge’s jury instruction for voluntary manslaughter
and found that it fully apprised the jury of the applicable law and, thus, did not constitute
plain error. This appeal followed.

                              II.
     The Appellate Division of the District Court of the Virgin Islands had jurisdiction
over this case pursuant to 4 V.I. Code Ann. 33. We exercise jurisdiction under 28
U.S.C. 1291.

               A.   The Jury Instructions
     The defendant claims that the trial judge erred by failing to instruct the jury as to
the consequences of an NGI verdict. Because Simmons did not object to the court’s
instructions on an NGI verdict, "a new trial can be granted only if the failure of the [trial]
court to provide a specific instruction constitutes ’plain error.’" Gov’t of the Virgin
Islands v. Smith, 949 F.2d 677, 681 (3d Cir. 1991) (citing Fed.R.Crim.P. 52(b)). Plain
errors can be described as those that "undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice." Id. at 681 (quoting United States v. Young, 470
U.S. 1, 16 (1985)).

     Rule 12.2(a) of the Federal Rules of Criminal Procedure provides:
          Defense of Insanity. If a defendant intends to rely upon the
          defense of insanity at the time of the alleged offense, the
          defendant shall, within the time provided for the filing of
          pretrial motions or at such later time as the court may direct,
          notify the attorney for the government in writing of such
          intention and file a copy of such notice with the clerk. If
          there is a failure to comply with the requirements of this
          subdivision, insanity may not be raised as a defense. The
          court may for cause shown allow late filing of the notice or
          grant additional time to the parties to prepare for trial or make
          such other order as may be appropriate.

Fed.R.Crim.P. 12.2(a). The record reflects that Simmons never gave notice of an
insanity defense. Further, he failed to request an instruction on the consequences of an
NGI verdict. He merely gave notice, pursuant to Rule 12.2(b), that he intended to show
a lack of intent to commit the crime due to some mental disability. Because he failed to
comply with the requirements of Rule 12.2(a), Simmons was not entitled to raise insanity
as a defense. Thus, we agree with the Appellate Division’s conclusion that the trial judge
did not commit error by not instructing the jury as to the consequences of an NGI verdict.
We further note that, even if Simmons had given proper notice under Rule 12.2(a) and
had requested an instruction on the consequences of an NGI verdict, the decision to
provide such an instruction ordinarily "should be left to the sound discretion of the trial
judge." United States v. Fisher, 10 F.3d 115, 121 (3d Cir. 1993).
     Simmons next argues that the trial court erred by not instructing the jury that
extreme emotional disturbance is a basis for a finding of voluntary manslaughter.
Because Simmons failed to preserve this objection to the jury instructions, we again
review the instructions for plain error. See Gov’t of the Virgin Islands v. Knight, 989
F.2d 619, 630 (3d Cir. 1993).
     As defined by the law of the Virgin Islands, voluntary manslaughter is the
"unlawful killing of a human being without malice aforethought" that is committed
"upon a sudden quarrel or heat of passion." 14 V.I.C. 924. Having reviewed the
record, we find that the instructions administered by the trial judge on voluntary
manslaughter, as well as on first-degree and second-degree murder, fully and adequately
explained the applicable law to the jury and, thus, did not constitute plain error.

                B.  The Jury’s Note
     We turn next to the issues raised by the jury’s note to the judge submitted together
with the verdict form. Simmons describes the note as part of the "global results" of the
jury deliberations, demonstrating that the jury had a reasonable doubt as to whether the
defendant had the specific intent to commit first-degree murder. Accordingly, Simmons
claims that the trial judge misinterpreted the jury’s verdict and should have granted a
judgment of acquittal as to the charge of murder in the first degree. The government
responds that the note constituted mere surplusage and did not affect the legality of the
guilty verdict.
     We note that we exercise plenary review over the trial court’s interpretation of the
law and its application of the law to the facts of a case. See United States v. Boynes, 149
F.3d 208, 211 (3d Cir. 1998).
     When a jury submits a plea for mercy together with a guilty verdict, we have held
that, generally, "such a recommendation does not affect the validity of the verdict and
may be disregarded as surplusage." United States v. Lee, 532 F.2d 911, 914 (3d Cir.
1976). In this case, the jury’s note explained that it "would like to recommend" that
Simmons receive "mandatory Psycological [sic] treatment as part of his rehabilitation."
The jury’s note does not reflect a plea for mercy as much as a recommendation to the
judge that part of the defendant’s sentence include psychological treatment.
     As the Fifth Circuit recently observed, "[f]ederal courts have long held that
additional jury notations that are not directly responsive to the jury charge and verdict
form are surplusage, and are to be ignored." Great Pines Water Co., Inc. v. Liqui-Box
Corp., 203 F.3d 920, 924 (5th Cir. 2000). An exception to this general rule exists,
however, when "the circumstances of the jury’s recommendation cast doubt upon the
unqualified nature of the verdict." United States v. Ailsworth, 138 F.3d 843, 846 (10th
Cir. 1998) (citing United States v. McCoy, 429 F.2d 739, 742 (D.C.Cir.1970); Cook v.
United States, 379 F.2d 966, 970 (5th Cir. 1967)).
     Because we find that the content of the jury’s note and the circumstances
surrounding it do not cast doubt upon the unqualified nature of the jury’s guilty verdict,
we hold that the exception to the general rule does not apply in this case. The note
merely constituted a "recommendation" from the jury that the trial court properly
regarded as surplusage. Accordingly, we find that the trial court did not err by
concluding that the jury found Simmons to be guilty of murder in the first degree.
     Simmons also argues that the trial judge’s failure to share the jury note with
counsel prior to the discharge of the jury violated his right to be present at all critical
stages of his trial, as required by Federal Rule of Criminal Procedure 43. In light of our
conclusion that the jury note constituted mere surplusage and did not cast doubt upon the
unqualified nature of the jury’s verdict, we find that the trial court’s failure to share the
note immediately with counsel did not result in a violation of the defendant’s right to be
present at all critical stages of his trial.
     We have carefully considered Simmons’ remaining arguments in this appeal and
conclude that they are without merit.

                              III.
     For the reasons stated above, we will affirm the Order of the District Court of the
Virgin Islands Appellate Division affirming defendant’s conviction.



_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.


                                        /s/ Julio M. Fuentes
                                        Circuit Judge
