APPEAL FROM THE APPELLATE DIVISION OF DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN (D.C. Crim. No. 91-cr-00056)
Before: BECKER, ROTH and WEIS, Circuit Judges.
Defendant appeals the trial court's denial of a continuance. We agree that, in the circumstances here, the limited availability of courtrooms did not outweigh defense counsel's need for additional time, necessitated by a sudden family emergency, to prepare for trial. Accordingly, we will grant a new trial. However, we reject the defendant's argument that the absence of a third judge on a panel of the Appellate Division of the District Court of the Virgin Islands deprived the court of power to decide an appeal.
Defendant was convicted on various counts of assault, possession of a deadly weapon, and destruction of personal property. The Appellate Division of the District Court of the Virgin Islands reversed the judgment because of prosecutorial misconduct. On appeal from that decision, we reversed, finding that, although the prosecution had acted improperly, the trial court's failure to grant a mistrial sua sponte did not amount to plain error. Government of the Virgin Islands v. Charleswell (Charleswell I), 24 F.3d 571, 576 (3d Cir. 1994).
We remanded to the Appellate Division to address three other points that the parties had argued before the district court, which the court had not discussed in its opinion. Charleswell I, 24 F.3d at 577. On remand, a two-judge panel of the Appellate Division addressed the remaining issues and affirmed the judgment. Charleswell v. Government of the Virgin Islands (Charleswell II), 167 F.R.D. 674 (D.V.I. 1996). Defendant has appealed.
The facts are stated in detail in our earlier opinion and need not be repeated at length here. Briefly, defendant was an off-duty police officer who scuffled with a fellow officer and fired several handgun and shotgun blasts in and around two different police stations. He later surrendered without harm to any person.
The status of the defendant's legal representation before trial is somewhat ambiguous. Although the docket showed that the Territorial Court assigned counsel shortly before the scheduled arraignment on October 18, 1990, counsel asserts that he never received notice of the formal appointment, and that allegation is not contradicted. Counsel apparently labored under the assumption that he was not court-appointed because he discussed with defendant the possibility of being retained as a paid attorney.
No agreement on representation had been solidified by December 1990 when the prosecutor submitted an offer of a plea bargain to the defense lawyer. Counsel encountered considerable difficulty in meeting with his client to discuss the offer because on one occasion defendant had been arrested on an unrelated matter and at another time he had been admitted to the mental ward of a hospital. Defendant eventually rejected the plea offer during a chance meeting with the lawyer at the courthouse.
On January 29, 1991, defendant and counsel both appeared at a pretrial conference even though the arrangements to pay a retainer remained incomplete. Counsel notified the court in that meeting that he would be off island beginning Wednesday, February 13, 1991. At that point, seemingly, no one foresaw a problem with setting the trial for February 11 and concluding on February 12, 1991.
On February 5, 1991, counsel went to the mainland because of the sudden death of a family member and did not return to the Islands until Sunday evening, February 10. He requested a continuance on the following morning because the emergency had left him with inadequate time to prepare for trial and, to complicate matters further, he had not been paid. The court appointed him as counsel and refused to delay the trial.
During the trial, in an effort to negate mens rea, defense counsel sought to introduce the testimony of a physician, Dr. Lu, as to the defendant's diminished mental capacity on the day of the charged offense. The trial judge excluded that evidence because the defense had failed to give the prosecution the appropriate written notice of the intention to rely upon expert testimony, as required by Federal Rule of Criminal Procedure 12.2(b).
After his conviction, defendant appealed to the Appellate Division of the district court, citing these rulings in addition to a claim of prosecutorial misconduct. In its initial opinion, the Appellate Division decided only the prosecutorial misconduct issue. Pursuant to our instructions on remand, the Appellate Division reviewed each of the rulings -- the exclusion of the physician's testimony, the denial of a continuance, and the denial of a ...