                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2009

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Precedential or Non-Precedential: Precedential

Docket No. 07-2136




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Govt of VI v. Davis" (2009). 2009 Decisions. Paper 1614.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1614


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                          PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 07-2136


    GOVERNMENT OF THE VIRGIN ISLANDS

                          v.

                   JIMMY DAVIS,

                            Appellant


On Appeal from the District Court of the Virgin Islands
    Division of St. Thomas – Appellate Division
               (D.C. No. 02-cr-00085)
   District Judges: Honorable Raymond L. Finch
           and Honorable Curtis V. Gomez
 Superior Court Judge: Honorable Maria M. Cabret


              Argued December 9, 2008
           Before: FISHER, JORDAN and
            STAPLETON, Circuit Judges.

               (Filed: March 27, 2009 )
Brett G. Sweitzer (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
       Attorney for Appellant

Matthew C. Phelan (Argued)
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
Charlotte Amalie
St. Thomas, VI 00802
       Attorney for Appellee




                 OPINION OF THE COURT


FISHER, Circuit Judge.

       Jimmy Davis appeals from an order entered by the
Appellate Division of the District Court of the Virgin Islands
affirming his conviction for four counts of first-degree assault,
one count of first-degree reckless endangerment, and one count
of unauthorized possession of a firearm during a crime of
violence. Davis argues on appeal that the prosecutor’s


                               2
references during trial to his post-arrest, post-Miranda 1 silence
violated his right to due process and that, because this error
cannot be considered harmless on this record, he is entitled to a
new trial. We agree and therefore will reverse and remand.

                                I.

        On December 23, 2001, a drive-by shooting occurred at
the intersection of Estate Whim Road and Queen Mary Highway
on St. Croix in the United States Virgin Islands. Davis was
arrested on January 3, 2002. The Government issued an
information in which it alleged that Davis fired gun shots at
Shawn Francis, Sean Petrus, Erica Parrilla, and the daughter of
Francis and Parrilla, Shanadalis, with the intent to commit
murder. A jury trial commenced in the Territorial Court of the
Virgin Islands on April 15, 2002.2




       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).
       2
        When this case was tried, the trial court was known as
the Territorial Court and appeals were reviewed by the
Appellate Division. However, since then, the Virgin Islands
Legislature has changed the trial court’s name to the Superior
Court of the Virgin Islands and established the Supreme Court
of the Virgin Islands. Nonetheless, pending decisions of the
Appellate Division may be reviewed by this Court. See
generally Edwards v. HOVENSA, LLC, 497 F.3d 355, 358-59 &
n.2 (3d Cir. 2007).

                                3
        During trial, the Government introduced the testimony of
Francis, Petrus, and Parrilla, each of whom had prior
relationships with Davis. The three witnesses gave a similar
account of the shooting. Specifically, they were traveling in
Francis’s pickup truck, with Francis driving, Parrilla and
Shanadalis in the front seat, and Petrus in the back of the truck.
While Francis’s vehicle was idling at the intersection another
pickup truck approached. Davis was riding in the back of the
second truck and was the only passenger in the truck bed.
Suddenly, multiple gunshots were fired from the passing truck
at Francis’s vehicle. Parrilla testified that she ducked and
covered Shanadalis and heard three shots, but admitted that she
did not see who fired the shots. Petrus and Francis both
identified Davis as the shooter. Three bullets hit the driver’s
area of Francis’s truck, one bullet striking the windshield and
the other two bullets striking the door, though none of the four
individuals in Francis’s truck was injured. After the shooting,
the witnesses returned to Francis’s house and viewed the
damage to the truck, but did not report the incident to the police
until the next day.

        Following the Government’s case-in-chief, Davis took
the witness stand and provided a different account of the
shooting. On direct examination, Davis admitted that he was
riding in the truck from which the shots were fired, but testified
that an individual named “Goofy,” whom he insisted was in the
back of the truck with him, had pulled the trigger. According to
Davis, “Bugsy” was driving the truck, Davis’s brother Hector
was in the passenger seat, and Davis and Goofy were in the back
of the truck. When the truck approached Francis’s vehicle,
Goofy fired the first shot at Francis but Francis then pulled a

                                4
gun and returned fire, at which point Davis ducked for cover.
Davis stated that he saw only Francis and Petrus in the other
truck, and that Petrus was riding in the passenger seat, not in the
back.

       During cross-examination, the prosecutor questioned
Davis about whether he had told the police this version of the
story after his arrest:

       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?

Defense counsel objected, but the Territorial Court overruled the
objection. The prosecutor continued:

       Q:     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.

                                5
              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?

Defense counsel again objected and argued at sidebar that the
prosecutor’s line of questioning was fundamentally unfair. The
Territorial Court overruled the objection and, after allowing the
court reporter to read back the previous question, permitted the
prosecutor to proceed:


                                6
      Q:    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.

On redirect, defense counsel addressed the prosecutor’s
questioning about Davis’s post-arrest silence:

      Q:    Now, [the prosecutor] asked you whether
            or not you had any contact with the police
            officers between the time you were
            arrested and today’s date; you remember
            that question?

      A:    Yes.

      Q:    Sir, when       you   were   arrested   what
            happened?

      A:    The police – how you mean?

      Q:    When you[] were arrested you were taken
            to jail?



                              7
       A:     Straight to jail. I went to fingerprint and
              straight to jail.

       Q:     You have not been released since?

       A:     No.

       Q:     When you were arrested did the police not
              tell you, you have a right to remain silent?

       A:     Yes.

       Q:     And you understand that to mean you
              didn’t have to talk to any police?

       A:     Until attorney present.

       Q:     Now, since that time no police has come to
              talk to you?

       A:     No.

        During summation, the prosecutor focused on Davis’s
failure to inform the police that another individual ostensibly
fired the shots. Most notably, the prosecutor stated to the jury:

       As you retire into your jury room I want you to
       think about the credibility of all the witnesses that
       put their credibility in issue and took the stand
       here during this trial. I want you to ask yourself
       can I believe this person? Why should I believe

                                8
       this person? Is there a reason why I should
       disbelieve this person? . . . 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? . . . [I]f the truth was really the
       truth there was a guy named Goofy and somebody
       else fired 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 . . . .

The jury found Davis guilty on all counts and the Territorial
Court entered judgment and sentence on August 14, 2002.

        Davis appealed the judgment to the Appellate Division,
arguing, inter alia, that the prosecutor’s references to his post-
arrest, post-Miranda silence violated his constitutional right to
due process under Doyle v. Ohio, 426 U.S. 610 (1976). The
Appellate Division agreed that the references constituted a due
process violation, but found this error to be harmless and
affirmed the judgment. See Davis v. Gov’t of V.I., No. 2002-
085, 2007 WL 1574402, at *3-7 (D.V.I. Apr. 3, 2007).

       Davis timely appealed the Appellate Division’s order to
this Court. We have jurisdiction under 48 U.S.C. § 1613a(c).
See Gov’t of V.I. v. Hodge, 359 F.3d 312, 317 (3d Cir. 2004).

                                9
We will exercise plenary review over the constitutional question
presented in this appeal. See Tyler v. Armstrong, 365 F.3d 204,
208 (3d Cir. 2004) (“In reviewing the Appellate Division’s
orders, this Court ‘should review the trial court’s determination
using the same standard of review applied by the first appellate
tribunal.’” (quoting Semper v. Santos, 845 F.2d 1233, 1235 (3d
Cir. 1988))); United States v. Barnhart, 980 F.2d 219, 222 (3d
Cir. 1992) (“Our standard of review for [a defendant’s] due
process claim is plenary.”).

                               II.

       Davis argues on appeal that although the Appellate
Division correctly concluded that the prosecutor’s references to
his post-arrest, post-Miranda silence violated his right to due
process under Doyle, this constitutional violation amounts to
reversible error. The Government responds by arguing that the
prosecutor’s references were constitutionally permissible and,
even were they impermissible, the error would be harmless
given the evidence presented against Davis. Having reviewed
the record, we conclude that the prosecutor’s references violated
Davis’s right to due process and that the violation in this case
cannot be considered harmless beyond a reasonable doubt.

                               A.

        We begin with the facts of Doyle. In that case, two
criminal defendants who had received Miranda warnings
testified at trial that they had been framed by another individual
and, on cross-examination, the prosecutor questioned them
about whether they had told their exculpatory story to the police

                               10
when they were arrested. After the trial court overruled defense
counsel’s objections to this line of questioning, the defendants
answered that they had not done so.

       On certiorari to the Supreme Court, the government
argued that such questioning was a proper means of impeaching
the defendants’ exculpatory testimony. The Court rejected this
argument, holding that “the use for impeachment purposes of [a
defendant’s] silence, at the time of arrest and after receiving
Miranda warnings, violate[s] the Due Process Clause of the
Fourteenth Amendment.” Doyle, 426 U.S. at 619. The Court
explained that the Miranda warnings are “a prophylactic means
of safeguarding Fifth Amendment rights” and that “[s]ilence in
the wake of these warnings may be nothing more than the
arrestee’s exercise of these Miranda rights.” Id. at 617.
Further, the Court stated that although “the Miranda warnings
contain no express assurance that silence will carry no penalty,
such assurance is implicit to any person who receives the
warnings.” Id. at 618. Therefore, it is “fundamentally unfair
and a deprivation of due process to allow the arrested person’s
silence to be used to impeach an explanation subsequently
offered at trial.” Id.3


       3
       Although decided under the Fourteenth Amendment,
Doyle applies to federal prosecutions under the Fifth
Amendment as well. United States v. Agee, 597 F.2d 350, 354
n.11 (3d Cir. 1979) (en banc). The Virgin Islands’ Revised
Organic Act of 1954 makes clear that the protections of the Fifth
Amendment and the Due Process Clause of the Fourteenth
Amendment extend to the Virgin Islands. 48 U.S.C. § 1561;

                               11
       In the Court’s post-Doyle jurisprudence, it has
emphasized that the due process violation stems from the
government’s breach of its implicit assurance that the
defendant’s “silence will carry no penalty.” Wainwright v.
Greenfield, 474 U.S. 284, 290-91 (1986). Thus, in defining
some of the boundaries of what due process permits, the Court
has held that Doyle is not violated where the prosecutor
impeaches a defendant with his pre-arrest silence, Jenkins v.
Anderson, 447 U.S. 231, 240 (1980), uses a defendant’s
voluntary statements to the police following Miranda warnings,
Anderson v. Charles, 447 U.S. 404, 408 (1980), or uses a
defendant’s post-arrest silence before Miranda warnings have
been given, Fletcher v. Weir, 455 U.S. 603, 605-07 (1982). In
addition, there may be no Doyle violation where the trial court
sustains an objection to the improper question and provides a
curative instruction to the jury, thereby barring the prosecutor
from using the silence for impeachment. Greer v. Miller, 483
U.S. 756, 764-65 (1987).

       Turning to the matter before us, we agree with the
Appellate Division that the prosecutor’s references to Davis’s
silence violated his right to due process. The record shows that
the prosecutor attempted “to elicit the precise inferences that the
[Government] is prohibited from exploiting under Doyle.”
Hassine v. Zimmerman, 160 F.3d 941, 948 (3d Cir. 1998). As
described above, Davis received Miranda warnings and at no


accord Hendrickson v. Reg O Co., 657 F.2d 9, 13 n.2 (3d Cir.
1981) (“[T]he Organic Act requires the same due process
analysis that would be utilized under the federal constitution.”).

                                12
point did he provide a statement to the police.4 During trial, the
prosecutor sought to impeach Davis’s credibility by highlighting
the fact that he had not advanced his exculpatory version of the
shooting to the police from the time he was arrested to the time
of trial. And the Territorial Court took no action to cure this
constitutional error, overruling defense counsel’s objections.

        We find the Government’s reliance on Raffel v. United
States, 271 U.S. 494 (1926), to be misplaced. In Raffel, a case
decided decades before both Miranda and Doyle, the Supreme
Court concluded that Fifth Amendment “immunity from giving
testimony is one which the defendant may waive by offering
himself as a witness” and, consequently, “[h]e may be examined
for the purpose of impeaching his credibility.” Id. at 496-97.
The Government, in characterizing Doyle as an exception to
Raffel, argues that Doyle only limits a prosecutor from
referencing at trial a defendant’s post-Miranda silence at the


       4
        Even though the Government did not attempt to meet its
burden of establishing that Davis did not receive Miranda
warnings prior to using his post-arrest silence for impeachment,
defense counsel during redirect examination established for the
record that Davis received the warnings upon his arrest. See
United States v. Cummiskey, 728 F.2d 200, 202, 206 (3d Cir.
1984) (indicating “[a]t no time during trial did the government
or either defendant establish the time at which the defendants
had been given the warning prescribed by Miranda” and
remanding for a post-trial hearing on whether warnings had been
issued); see also Appellee’s Br. at 24 (acknowledging that the
prosecutor asked Davis “about his post-Miranda silence”).

                               13
time of his arrest, and that Raffel thus permits impeachment at
trial on the defendant’s silence during any other time prior to
trial.5 However, in addition to the obvious distinction that Raffel
speaks only to the privilege against self-incrimination rather
than due process, the Government’s position on this point fails
to account for our decision in Hassine, where we found a Doyle
violation based on prosecutorial questioning of a defendant
about his silence during the months of his incarceration period
up until trial, and which controls our decision here. Hassine,
160 F.3d at 947-49 (exercising plenary review over whether the
prosecutor violated Doyle, noting that the case was not subject
to the Antiterrorism and Effective Death Penalty Act of 1996);
cf. United States v. Balter, 91 F.3d 427, 439 (3d Cir. 1996) (“A
defendant might well remain silent for such a period in reliance
on the belief, engendered by the warnings, that his silence could
not in any way be used against him.”).6 Accordingly, we


       5
         The Government hinges its argument on a footnote in
Doyle, in which the Court found it “unnecessary” to determine
the constitutionality of prosecutorial inquiry into silence beyond
the initial arrest time frame. 426 U.S. at 616 n.6.
       6
         And, in any event, the Government does not dispute that
the prosecutor focused on Davis’s silence at the time of his
arrest, bringing those references within even its narrow
conception of Doyle. Appellee’s Br. at 24 (“The prosecutor
asked the defendant about his post-Miranda silence at the time
of arrest, and the defendant responded. The prosecutor in
closing and rebuttal did point out that the defendant didn’t speak
at his arrest.”).

                                14
conclude that the prosecutor’s comments regarding Davis’s
post-arrest, post-Miranda silence violated Doyle and reject the
Government’s argument to the contrary.

                              B.

        Having found a due process violation, we examine
whether this constitutional trial error was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18, 24
(1967) (“[B]efore a federal constitutional error can be held
harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.”); see also Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993) (characterizing a Doyle
violation as a “trial error” subject to harmless error inquiry
(citing Arizona v. Fulminante, 499 U.S. 279, 307 (1991))). In
making this determination, the Government must “prove beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Chapman, 386 U.S. at 24;
accord United States v. Korey, 472 F.3d 89, 96 (3d Cir. 2007).
The question “‘is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was
surely unattributable to the error.’” Korey, 472 F.3d at 96
(quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)
(emphasis omitted)). We have previously determined that Doyle
error may be held harmless beyond a reasonable doubt in cases
where there is overwhelming evidence against the defendant.
See Balter, 91 F.3d at 440; United States v. Dunbar, 767 F.2d
72, 76 (3d Cir. 1985); cf. Harrington v. California, 395 U.S.
250, 254 (1969) (concluding that because “the case against [the


                              15
defendant] was so overwhelming” the error “was harmless
beyond a reasonable doubt”).

        The Appellate Division concluded that the testimony of
Francis, Petrus, and Parrilla was “significant evidence from
which the jury could have found guilt” and therefore the error
“could not have affected the outcome of the trial.” Davis, 2007
WL 1574402, at *7. As an initial matter, we are unsatisfied with
this conclusion insofar as the Appellate Division focused on
whether the evidence was sufficient to convict despite the error,
as opposed to whether there was a reasonable possibility that the
error contributed to the jury verdict. See Satterwhite v. Texas,
486 U.S. 249, 258-59 (1988) (“The question, however, is not
whether the legally admitted evidence was sufficient . . . but
rather, whether the [Government] has proved ‘beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained.’” (quoting Chapman, 386 U.S. at 24)).

       But more importantly, we are unable to conclude that the
Government presented overwhelming evidence against Davis.
As the Appellate Division indicated, it was undisputed that
someone shot at Francis’s vehicle from the truck in which Davis
was riding. The physical evidence presented at trial, which
included one of the bullets and Francis’s truck, certainly
supported that someone had shot at the vehicle, but favored
neither side’s specific account of the incident or the identity of
the shooter. Consequently, the Government’s case against Davis
depended largely upon the credibility of its three eyewitnesses.

      Although Francis, Petrus, and Parrilla provided similar
accounts of the shooting, the three witnesses also indicated that

                               16
they had close associations – Francis and Parrilla were
romantically involved and had a child, and Francis and Petrus
were neighbors and friends – and the testimony of each
suggested, to varying degrees, a prior antagonistic relationship
with Davis. Additionally, Francis and Petrus gave inconsistent
testimony about what happened on the morning of the shooting;
Francis testified that Petrus was with him at a local store that
morning (where they appeared to have some sort of altercation
with Davis and his brother), but Petrus indicated that he was not
there. Further, despite their prior statements to the police
indicating that about four shots had been fired, Francis and
Petrus testified during trial that Davis fired three shots. Finally,
the witnesses acknowledged that they delayed reporting the
shooting to the police until a day after the incident.

        Compared to the instances in which we have considered
Doyle error harmless based on overwhelming evidence against
a defendant, the Government’s case against Davis falls short of
the mark. For example, in Balter, we concluded that any Doyle
violation was harmless because the government presented ample
evidence that the defendant agreed to and took part in a plan to
murder another individual; indeed, the defendant’s co-
conspirator in that case provided comprehensive testimony
about “every aspect of [the defendant’s] involvement,” which
was largely corroborated by taped conversations between the
defendant and other co-conspirators. 91 F.3d at 440. And in
Dunbar, we determined that the evidence was overwhelming
where two bank tellers identified the defendant from a
photographic display after a surveillance camera captured
pictures of the defendant robbing a bank, and one of the
defendant’s friends testified that the defendant had confessed to

                                17
robbing the bank and had shown him the stolen money. 767
F.2d at 73. Here, in contrast, our review of the record leaves us
unconvinced that the evidence against Davis was so
overwhelming that the jury’s verdict “was surely unattributable
to the error.” Korey, 472 F.3d at 97 (internal quotation marks
omitted).

        Moreover, the severity of the Doyle violation weighs in
favor of reversal. In this case, because of the conflicting
versions of the shooting, the credibility of the witnesses was
crucial to the jury’s verdict. Consequently, the prosecutor’s
impermissible comments about Davis’s failure to provide his
exculpatory version of the shooting to the police went to the
core of his theory of defense and, as a result, his credibility. See
United States v. Cummiskey, 728 F.2d 200, 204 (3d Cir. 1984)
(finding that Doyle error could not be held harmless where “the
issue of whether [the defendant] had in fact related a similar
story to police when he was arrested was crucial to the theory of
the defense” and the prosecutor’s statements about the
defendant’s silence during cross-examination and closing
argument “attacked the heart of [the defendant’s] case” (internal
quotation marks omitted)). Nor was this an instance of an
isolated or ambiguous reference to a defendant’s silence. See
United States v. Curtis, 644 F.2d 263, 270-71 (3d Cir. 1981)
(finding that where the trial court allowed cross-examination on
post-arrest silence and the prosecutor later referenced the silence
during closing argument, the references were “neither isolated
nor ambiguous” and the “errors, cumulative in effect,” were not
harmless). The prosecutor repeatedly highlighted to the jury that
Davis failed to offer his explanation to the police, directly
undermining the plausibility of his defense. See United States

                                18
v. Agee, 597 F.2d 350, 359 (3d Cir. 1979) (en banc) (stating that
even assuming Doyle error, it was harmless because this case
was not one “in which repetitive questioning focused the jury’s
attention on the defendant’s silence,” the “question was
ambiguous,” and the “question did not directly link [the
defendant’s] purported silence with his exculpatory testimony”);
cf. Marshall v. Hendricks, 307 F.3d 36, 76 (3d Cir. 2002)
(analyzing for harmlessness and stating that the attack against
the defendant was “indirect,” unlike in Doyle where “the
prosecutor attacked the defendant directly”).

        Further, the absence of a curative instruction by the
Territorial Court likely left the jury with the false impression
that the prosecutor’s references to Davis’s silence, including any
adverse credibility inferences to be drawn from such silence,
were appropriate. Cf. Dunbar, 767 F.2d at 76 (stating that, even
assuming Doyle was violated, the error was harmless, noting
that there was overwhelming evidence against the defendant and
the trial court “gave an adequate curative instruction”). We
disagree with the Government’s assertion that the Territorial
Court’s “presumption of innocence” jury instruction sufficiently
cured the Doyle error. To the contrary, the Territorial Court
likely compounded the unchecked due process violation here by
instructing the jury that, when weighing the credibility of a
witness, it should determine whether the witness’s testimony
was contradicted by what that witness had said or done at
another time. Cf. Gov’t of V.I. v. Mujahid, 990 F.2d 111, 117
(3d Cir. 1993) (finding that the trial court’s failure to give a
curative instruction compounded the prejudice caused by the
error).


                               19
        The Government relies on our decision in Hassine in
arguing that the Doyle violation was harmless in this case. But
the harmless error analysis in that case is of limited value here
because it involved an appeal from the denial of habeas corpus
relief, which generally triggers a different, less demanding legal
standard than Chapman for assessing harmless error. See
Brecht, 507 U.S. at 622-23, 637-38 (holding that the “substantial
and injurious effect or influence” standard, as opposed to the
“harmless beyond a reasonable doubt” standard, “applies in
determining whether habeas relief must be granted because of
constitutional error of the trial type” (citing Kotteakos v. United
States, 328 U.S. 750, 776 (1946))); see also O’Neal v.
McAninch, 513 U.S. 432, 438 (1995) (stating that “the more
lenient Kotteakos harmless-error standard, rather than the
stricter Chapman standard, normally governs cases of habeas
review of constitutional trial errors”). Indeed, we explicitly
noted in Hassine that, in applying the less onerous habeas
harmless error standard, we did not reach the issue of whether
the error would pass muster under Chapman. 160 F.3d at 952,
955 n.14.

       In addition, the prosecution in Hassine introduced
significantly more evidence against the defendant than the
Government presented here, including the testimony of thirty-
four witnesses, many of whom testified consistently about the
defendant’s plan to commit murder. The prosecution in that
case also presented a considerable amount of evidence regarding
the defendant’s suspicious conduct during and after the time of
the incident, and the defendant’s own testimony was largely
undermined by the weight of the evidence against him. Further,
in regard to the Doyle violation in Hassine, the trial court

                                20
sustained all three objections to the prosecutor’s improper
questioning, which prevented the defendant from answering the
questions. This stands in stark contrast to the circumstances
here, where the Territorial Court overruled defense counsel’s
objections and allowed the prosecutor to unfairly utilize Davis’s
answers to the Doyle-violative questioning to attack his
credibility before the jury.

        Accordingly, considering the lack of overwhelming
evidence in this case along with the prosecutor’s repetitive
references to Davis’s post-arrest, post-Miranda silence directed
at the theory of his defense, we cannot say beyond a reasonable
doubt that this violation of Doyle did not contribute to the jury’s
verdict.

                               III.

       Although we conclude that a reversal is necessary, we
believe it prudent to address Davis’s challenge to the Territorial
Court’s jury instruction regarding transferred intent, given the
likelihood of this issue’s reoccurrence at a new trial. Over
Davis’s objection, the Territorial Court included the following
instruction in its charge to the jury:

       If you find that the defendant assaulted Shawn
       Francis with the intent to murder him and by
       mistake or accident assaulted Sean Petrus, Erica
       Parrilla an[d] 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

                                21
       transfers the intent from the original victim to any
       unintended victims.

On appeal, Davis argues that the doctrine of transferred intent
does not apply to first-degree assault as defined under Virgin
Islands statutory law. Exercising plenary review over this
challenge to the legal propriety of the instruction, we agree.
United States v. Zehrbach, 47 F.3d 1252, 1260 (3d Cir. 1995)
(en banc).

       The information charged Davis, inter alia, with four
counts of first-degree assault in violation of subsection (1) of
section 295, which states: “Whoever . . . with intent to commit
murder, assaults another . . . shall be imprisoned not more than
15 years.” V.I. Code Ann. tit. 14, § 295(1). While we have not
previously had occasion to decide whether the transferred intent
doctrine applies to subsection (1) of section 295, our precedent
interpreting the similar subsection (3)7 is instructive in this
regard. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809
(1989) (“[T]he words of a statute must be read in their context
and with a view to their place in the overall statutory scheme.”).

      We interpreted subsection (3) of section 295 in
Government of Virgin Islands v. Greenidge, 600 F.2d 437 (3d
Cir. 1979). In that case, the defendant was convicted of


       7
        Subsection (3) of section 295 states: “Whoever . . . with
intent to commit rape, sodomy, mayhem, robbery or larceny,
assaults another . . . shall be imprisoned not more than 15
years.” V.I. Code Ann. tit. 14, § 295(3).

                               22
assaulting an individual with the intent to commit rape. The
evidence, however, demonstrated that the man whom the
defendant assaulted was not the same person the defendant
intended to rape – the defendant pointed a gun at the man,
grabbed a woman with whom the man was walking, and
subsequently raped her – and we reversed the conviction,
finding that “a necessary element of the crime of assault with
intent to commit rape is that the assault have been committed on
the same person whom the defendant intended to rape.” Id. at
439-40. We reaffirmed this interpretation of subsection (3) in
Government of Virgin Islands v. Brown, 685 F.2d 834 (3d Cir.
1982), in which the defendant was charged with several counts
of assault with the intent to commit robbery. Although the trial
court in that case instructed the jury that the prosecution was
required to prove that the defendant “had the specific intent to
commit robbery,” we concluded that the instruction misstated
the law, explaining that the defendant’s multiple convictions for
first-degree assault could “be sustained only if the evidence
showed beyond a reasonable doubt that the defendants not only
assaulted their victims but intended to commit robbery on each
of them specifically.” Id. at 841.

       The only apparent distinction between subsections
(1) and (3) of the first-degree assault statute is the nature of the
underlying selection of crimes which the defendant must have
the specific intent to commit during the perpetration of the
assault; both provisions state that the specific intent to commit
an underlying crime be directed against the individual assaulted.
Cf. United States v. Lanier, 520 U.S. 259, 266 (1997) (“[T]he
canon of strict construction of criminal statutes, or rule of lenity,
ensures fair warning by so resolving ambiguity in a criminal

                                 23
statute as to apply it only to conduct clearly covered.”). Thus,
in light of our interpretation of subsection (3), we consider it
appropriate to extend the teachings of Greenidge and Brown to
subsection (1) of section 295. Cf. United States v. Nader, 542
F.3d 713, 717 (9th Cir. 2008) (stating that “statutes dealing with
similar subjects should be interpreted harmoniously” (internal
quotation marks omitted)); Bundens v. J.E. Brenneman Co., 46
F.3d 292, 305 n.28 (3d Cir. 1995) (“[N]o one subsection of a
statute should be read in isolation.”). The transferred intent
instruction here relieved the Government of its burden of
proving beyond a reasonable doubt that Davis had the specific
intent to commit murder against each individual on whom the
assault was committed. See Brown, 685 F.2d at 841 (“The jury
should have been instructed that in addition to the other essential
elements, the government had to prove beyond a reasonable
doubt that the defendants intended to rob the particular victim
on whom the assault was perpetrated.”). As a result, we agree
with Davis that it was error to give the transferred intent
instruction. Because we have already determined that the Doyle
violation is reversible error, however, we need not decide
whether this error constitutes a separate ground for reversal.8




       8
         Davis raises one additional issue on appeal, arguing that
the trial court committed reversible error in striking one of the
venire members during voir dire. However, unlike the question
involving the transferred intent instruction, which may reemerge
during a new trial, we see no reason to address this issue.

                                24
                             IV.

      For the foregoing reasons, we will reverse the order of
the Appellate Division, vacate the judgment of conviction, and
remand for further proceedings, including a new trial.




                             25
