Gov't of the Virgin Islands v. Charles ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
12-26-1995
Gov't of the Virgin Islands v. Charles
Precedential or Non-Precedential:
Docket 94-7638
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"Gov't of the Virgin Islands v. Charles" (1995). 1995 Decisions. Paper 317.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-7638
GOVERNMENT OF
THE VIRGIN ISLANDS
vs.
DALE CHARLES,
Appellant
On Appeal From the Appellate Division of the United States
District Court of the Virgin Islands, Division of St. Thomas
(D.C. Crim. Action No. 89-cr-00083)
Argued August 16, 1995
BEFORE: STAPLETON, LEWIS and WEIS, Circuit Judges
(Opinion Filed December 26, l996)
W. Ronald Jennings
United States Attorney
Audrey Thomas-Francis (Argued)
Assistant U.S. Attorney
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802
Attorneys for Appellee
Thurston T. McKelvin
Federal Public Defender
Stephen A. Brusch (Argued)
Assistant Federal Public Defender
P.O. Box 1327
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00804
Attorneys for Appellant
1
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Dale Charles appeals from his convictions for murder in
the first degree and for possession of a knife with intent to use
it unlawfully. He raises three challenges to his convictions.
First, Charles argues that he did not voluntarily and
intelligently waive his right to counsel when the district court,
after a hearing, granted Charles' request to represent himself at
trial. Second, Charles asserts that the district court should
have dismissed the information against him because the government
conceded during plea negotiations that Charles was insane when
the acts in question occurred. Third, Charles claims that there
was insufficient evidence of deliberation and premeditation. We
will affirm.
I.
In May 1989, Charles stabbed Dale Francois to death in
an alley on the Island of St. Thomas in the Virgin Islands.
Francois was unarmed. Apparently, when Francois entered the
alley, Charles rushed Francois without provocation and stabbed
him several times. The government of the Virgin Islands filed an
information that charged Charles with first degree murder under
14 V.I.C. § 922(a)(1) and with possession of a knife with intent
2
to use it unlawfully against Francois during the commission of a
crime of violence under 14 V.I.C. § 2251(a)(2).
In May 1990, after the defense persuaded the district
court to allow Charles to withdraw a guilty plea, a defense
expert, Arthur Stillman, M.D., undertook a psychiatric evaluation
of Charles. Dr. Stillman concluded that "it seems doubtful that
[Charles] could adequately assist his attorney in the preparation
and presentation of his defenses [and i]t is quite clear that he
cannot differentiate reality from fantasy. . . ." (App. at 51-
52.) In addition, regarding Charles' state of mind when he
stabbed Francois, Stillman opined that Charles "was suffering
from a psychotic paranoid state and is considered to have been
insane at that time." (App. at 52.) In November 1990, Michael
W. Morrison, Ph.D., a court appointed expert, agreed:
Mr. Charles is suffering from a mental
illness that renders him unable to understand
the nature and consequences of the
proceedings against him and unable to assist
properly in his defense. . . . Mr. Charles
was severely mentally ill on [the day of the
offense] and his use of a dangerous weapon to
commit murder that day was a consequence of
his mental illness.
(App. at 65-66.)1
In March 1991, the district court found Charles
mentally incompetent to stand trial. By December 1992, Bruce
Burger, M.D., of the Federal Bureau of Prisons found that
Charles' condition had stabilized and that Charles was competent
1
Under Virgin Islands law, "[a]ll persons are capable of
committing crimes and offenses except . . . persons who are
mentally ill and who committed the act charged against them in
consequence of such mental illness . . . ." 14 V.I.C. § 14(4).
3
to stand trial. In March 1994, Leighman Lu, M.D., a court
appointed expert, and in June 1994, Michael Chiappetta, Psy. D.,
a defense expert, agreed that Charles was competent to stand
trial. Lu also found that Charles was not suffering from any
disorder at the time of the offense. Dr. Burger reevaluated
Charles in June 1994, and once again found Charles competent to
stand trial. After a hearing on September 26, 1994, the district
court found Charles competent to stand trial. Jury selection was
completed that afternoon and the trial began the next day.
Apparently, at some point before the September 26
hearing, the prosecution and the defense had reached an
agreement. Both parties would consent to a bench trial and would
stipulate to all of the facts including the findings of Dr.
Morrison, namely that Charles' actions were the result of his
mental illness. Presumably, what the parties had in mind was a
finding by the district court of not guilty by reason of
insanity, followed by automatic commitment to a psychiatric
institution under 5 V.I.C. § 3637. Had the government dropped
the charges without the stipulation, Charles could have been
involuntarily committed only in a proceeding under the general
civil commitment statute. That statute requires clear and
convincing proof that the individual is a danger to society, and
that treatment is likely to be beneficial. 19 V.I.C. § 723.
The agreement fell apart, however, when Charles decided
that he did not want to raise the defense of insanity. Rather,
he decided to claim self defense and demand a jury trial. The
prosecution, which had no burden to produce evidence regarding
4
Charles' sanity at the time of the offense until Charles first
presented some evidence of insanity, see Government of Virgin
Islands v. Webbe, 821 F.2d 187, 189 (3d Cir. 1987), decided to
proceed to trial. Charles' attorney, Stephen Brusch, convinced
that he could not, on behalf of Charles, agree to the stipulation
of insanity or raise the defense of insanity at trial without
Charles' consent, moved to dismiss the information on the ground
that the prosecution had effectively conceded that Charles was
insane at the time of the offense. The district court concluded
that Charles' mental state at the time of the offense was an
issue for the jury and denied the motion.
At that point, Charles also decided that he no longer
wanted Brusch to represent him. He wanted to represent himself
at trial. Charles was convinced that Brusch was hostile to the
idea of arguing self defense and Charles was concerned that
Brusch, as an employee of the local government, had conflicting
loyalties. At the hearing on September 26, 1994, after finding
Charles to be competent to stand trial and after an extensive
colloquy with Charles, the district court determined that Charles
knowingly and intelligently waived his right to counsel. The
district court granted Charles' motion to proceed pro se and
appointed Brusch as stand-by counsel to assist Charles.
Charles presented his case to the jury during a two day
trial. The jury convicted him on both counts and the district
court sentenced him to life in prison without parole. The
district court had jurisdiction under 48 U.S.C. § 1612. We have
jurisdiction to hear this appeal under 28 U.S.C. § 1291.
5
II.
First, Charles argues that he did not knowingly and
intelligently waive his right to counsel. The Sixth and
Fourteenth Amendments guarantee the assistance of counsel to
anyone accused of a serious criminal offense. See Government of
the Virgin Islands v. James, 934 F.2d 468, 470 (3d Cir. 1991).
Because a defendant who asks to represent herself is waiving the
benefits associated with this important constitutional right, and
because "courts [must] indulge in every reasonable presumption
against waiver" of important constitutional rights, Brewer v.
Williams, 430 U.S. 387, 404 (1977), a court cannot grant such a
request unless the record shows that the relinquishment is
"knowing and intelligent[]." Faretta v. California, 422 U.S.
806, 835 (1975) (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65
(1938)).
In James, this Court provided some details regarding
the scope of the Faretta inquiry that a court should undertake in
response to a defendant's request to proceed pro se. First, the
court must make an inquiry regarding the defendant's reasons for
the request. James, 934 F.2d at 470-71. Second, the court
should make sure that the defendant is aware of the dangers of
self-representation. Specifically, the court should make a
thorough and penetrating inquiry to determine whether the
defendant understands the nature of the charges, the range of
possible punishment, potential defenses, technical problems that
the defendant may encounter, and any other facts important to a
6
general understanding of the risks involved. Id. at 471, 473.
There is no rote speech that the court must recite. Rather, the
proper inquiry depends on the particular facts and circumstances
of the case, including the background, experience, and conduct of
the accused. Id. at 473-74.
In order for a waiver of the right to counsel to be
valid, the court must first assure itself that the defendant is
competent to waive the right. Godinez v. Moran, 113 S. Ct. 2680,
2685 (1993). The competency necessary to waive the right to
counsel is identical to the competency necessary to stand trial.
Id. at 2685-86. The defendant must be able to consult with
counsel and must have a rational and factual understanding of the
proceedings. United States v. Renfroe, 825 F.2d 763, 766 (3d
Cir. 1977). Since a competent defendant is entitled to make his
or her own decision with respect to representation, it is
irrelevant whether the defendant is capable of representing
himself or herself effectively. Godinez, 113 S. Ct. at 2687.
We decide de novo whether the record demonstrates a
knowing and intelligent waiver. United States v. Velasquez, 885
F.2d 1076, 1085 (3d Cir. 1989). However, regarding a colloquy
between the defendant and the court, the issue of whether the
defendant misunderstood what the court said, despite the
defendant's unambiguous answers indicating comprehension, is a
pure question of fact which depends primarily on the demeanor,
conduct, and intonations of the defendant. We review a finding
on this underlying factual issue under a clearly erroneous
standard. See Miller v. Fenton, 474 U.S. 104, 112 (1985). We
7
review the district court's findings regarding the competency of
the defendant for clear error. United States v. Velasquez, 885
F.2d 1076, 1089 (3d Cir. 1989).
Charles concedes that the district court conducted a
sufficient inquiry. Indeed, the district court's inquiry was
thorough and probing. However, Charles argues that he was not
competent to waive the right to counsel and that his answers
demonstrate that he did not understand the trial court's
admonitions.
A. Charles' Competency
At the outset of the hearing on September 26, the day
before the trial began, the district court determined that
Charles was competent to stand trial and thus to make all of the
important decisions associated with trial. That decision was not
clearly erroneous.
The district court based its finding of competence on
the testimony and conduct of Charles at the September 26, 1994
hearing and on a July 11, 1994 report written by Dr. Burger. Dr.
Burger saw Charles on a regular basis during his prior
hospitalization and after he was readmitted for study on June 14,
1994. Dr. Burger concluded that Charles was capable of
understanding the proceedings and the charges against him and had
the ability to consult meaningfully with his counsel. Dr.
Burger's report indicated that Charles "evidenced an excellent
understanding of the roles and responsibilities of court officers
as well as his own obligations and rights in a court situation."
8
(App. at 145.) He was alert and fully oriented at all times. His
cognitive abilities were in the low average range for an adult.
Charles suffered from chronic paranoid schizophrenia and had
experienced intermittent severe psychotic episodes in the past,
but his schizophrenia was currently in remission. Charles showed
no symptoms of schizophrenia and was not taking medication. When
the district court asked each side whether it wished to contest
the conclusions reached in Dr. Burger's report, neither Charles
nor his counsel sought to do so.
We are mindful that Dr. Burger's report was two and one
half months old when the September 26, 1994 hearing took place
and that some of Charles' responses at the hearing were
rambling.2 We cannot say, however, that Charles' responses as a
2
For example:
THE COURT: Now, why do you think you are more
competent than counsel . . . ?
CHARLES: Your Honor, you might think I'm
incompetent, if I tell you that.
THE COURT: Pardon?
CHARLES: I said, for what I might say to you,
right, you might consider me incompetent.
THE COURT: I didn't say that. I said, why do you
think you are more competent than counsel.
CHARLES: I said, my answer to you would maybe
make you think that I am incompetent.
THE COURT: Well, let me hear your answer.
CHARLES: Well, your Honor, growing up, my family,
and there was, you know, fightings and things like
that, where people of Mr. Brusch's descendants -- once
a fourteen year old child or a sixteen year old child
fight with my mother's husband, and no one tried to
assist us, call the police, do anything, which in they
were also the ones removed the gun from the place.
So I don't, I don't know for sure what I am going
through, what I am going through, and why Mr. Brusch is
not in favor of me exposing all of these things that
9
whole were inconsistent with Dr. Burger's observations and
opinions. The district court observed Charles first-hand at the
hearing the day before the trial began and was in the best
position to observe Charles, evaluate his mental state, and
determine whether a follow-up evaluation was necessary. We
decline to second guess the district court's determination.
B. Charles' Responses Concerning
the Assistance of Counsel
Charles' responses to the district court's questions
were sufficient to demonstrate that his waiver of the right to
has happened here in The Islands, because of the
government's inconcern [sic], unconcern, you know.
And I have been pushed to the point where now
someone is hurt by me having to protect me, and all
criminal activities, the Police Department might be
saying I've been involved in, that I would be framed,
and the witnesses would say I did things that I did not
do.
* * *
THE COURT: In other words, you don't want the
stipulation [of insanity]. You want to go to trial.
That's what you are telling me.
CHARLES: I want the stipulation, too, but still I
want to make them pay. I mean, to anything to get out,
if I don't out by winning, and I get out by going to
North Carolina, I be in the United States, even if I
have to live the rest of my life in prison, that's okay
with me. But I want them to punish, you know, because
they are supposed uphold the law now, not favoring
nobody. Everything is the white man --
(App. at 232-33, 248-48a.)
Although rambling, when read in context, even these
responses were not incoherent. As Charles expressed throughout
the hearing, he felt that the police and government had
mistreated him and his family in the past, and he wanted to "make
them pay" by exposing this at trial. Charles wanted to tell his
side of the story despite the risks: "[E]ven if I have to spend
the rest of my life in prison, that's okay with me." (App. at
248-48a.)
10
assistance of counsel was knowing and intelligent. Considering
Charles' history of mental illness and limited education, the
district court appropriately conducted an inquiry that was
especially thorough and probing.
First, the court made sure that Charles understood the
purpose of the hearing:
THE COURT: Now, I am going through a procedure
here to determine whether or not you fully understand
the consequences of your expressed desire to proceed
with the representation of yourself --
CHARLES: Yes, sir.
THE COURT: -- and that you are doing that
voluntarily and intelligently. Do you understand that?
CHARLES: Yes, sir, very intelligently.
(App. at 227.)
Next, the court asked Charles why he was dissatisfied
with his appointed counsel. Charles made clear that he was
concerned that his appointed counsel was hostile to the idea of
arguing self defense and that he wanted the public to know that
he was not insane:
CHARLES: Your Honor, my dissatisfaction is based
upon being in the United States and speaking with
doctors and prison officials and other people that has
heard the nature of the offense and why it was
committed, and they are totally in disagreement with
Mr. Brusch's way of handling it, that I cannot win.
They are stating that based upon my defense, they don't
see why any attorney would resist presenting it. And
that is what it is based upon.
Also, to the interest of the public, who I don't
owe no explanation, but I still think I do, you know. I
went to school here, and teachers and things like that,
I have heard, "Well, Mr. Charles is charged with
murder, and they think Mr. Charles is crazy and" --this
and that. I think I owe them an explanation to clear
their mind of any doubt that I am anybody different to
who they have known before.
* * *
CHARLES: [My attorney] has never seen my side of
the case.
11
THE COURT: Well, I understand that's what you're
saying. But apparently, from what I also understand
you are saying, was that he, in the course of
representing you, made the observation to you that the
procedure you are willing to follow, in his opinion,
could not be in your best interest. Isn't that what
you are telling me?
CHARLES: Yes. . . . It might be, it might hurt -
- it might hamper me, it might hurt me in the long run,
but it's in the best of my interest, what I want to
present.
(App. at 227-29.)
Next the court made sure that Charles understood that
he was not as competent as an attorney:
THE COURT: Well, certainly, you realize that you
are not as competent as a lawyer would be, insofar as
the rules of procedure --
CHARLES: Yes.
THE COURT: -- and in terms of meeting issues
raised by the government. Do you agree with that
statement?
CHARLES: Yes, but that's what I would like [Mr.
Brusch] to sit there for.
THE COURT: Pardon?
CHARLES: Any issue that the government raises
that I don't understand, that's what I'm going to have
him there for. He is going to work for me.
THE COURT: In other words, you're the lawyer, but
you are going to turn to him to assist you --
CHARLES: When I don't understand something.
(App. at 231.)
Next the court established that Charles understood the
government's burden of proof at trial:
THE COURT: . . . It's the government's obligation
and responsibility to prove you guilty beyond a
reasonable doubt and, therefore, you are not required
to prove or disprove anything. Do you understand that?
CHARLES: Yes I understand that. I think I do.
(App. at 234.)
Next the court made sure that Charles understood the
nature of the charges against him and of his defense:
12
THE COURT: All right. Now, do you understand the
nature of the charges against you?
CHARLES: Yes, sir.
THE COURT: What are you charged with?
CHARLES: First degree murder.
THE COURT: Of whom?
CHARLES: Mr. Dale Francois.
THE COURT: And your defense to that is?
CHARLES: My actions was done in self-defense.
THE COURT: All right. And you understand what
self-defense means?
CHARLES: Yes. Preservation comes first.
THE COURT: Pardon?
CHARLES: Preservation, self-preservation comes
first.
THE COURT: All right. Now, have you done any
reading of the law in this area?
CHARLES: What I have been with paralegals in the
United States and I have learned a little bit, but I
haven't done much reading about it.
THE COURT: But you have discussed the case with
them?
CHARLES: Yes, sir.
THE COURT: Have you read any legal decisions or
any cases on the subject?
CHARLES: Well, not really. A little bit of
investigation here and there, that, you know, it was
pertinent in presenting my case. But I don't even
think I have to go through those books to win this
case.
(App. at 234-35.)
Next the court made sure that Charles was aware of the
possibility of pleading insanity:
THE COURT: Now, you recognize, too, that Mr.
Brusch has talked with you with respect to asserting an
insanity or a mental illness defense?
CHARLES: Yes, sir.
THE COURT: And you have rejected that?
CHARLES: Yes, sir.
THE COURT: And you also understand, too, that
there have been discussions, as you heard in the
argument earlier today, that would -- could have
brought about an agreement or a stipulation to present
the matter to the Court for findings?
CHARLES: Yes, sir.
THE COURT: And those are not acceptable, that is
not acceptable to you; is that correct?
13
CHARLES: Not on the grounds they are presenting
them with.
THE COURT: The only thing that you would accept
would be a dismissal of the case with prejudice?
CHARLES: Yes sir.
(App. at 238-39.)
Next the court made sure that Charles understood that
he would have to conduct the case in conformity with the Federal
Rules of Evidence and the Federal Rules of Criminal Procedure,
and that he understood the court's role regarding evidentiary
issues:
THE COURT: . . . You also realize that you are
going to have to conduct your defense in the course of
the Federal Rules of Evidence and Criminal Procedure?
Do you understand that?
CHARLES: Well, I really know about that part.
THE COURT: Well, you are going to have to do
that.
CHARLES: Well, being that you are the judge, you
know --
THE COURT: Don't turn the tables on me. I'm just
telling you.
CHARLES: All right. I --
THE COURT: These are your responsibilities. I'll
take care of my responsibilities.
CHARLES: Yes, sir.
THE COURT: You have to assume your
responsibilities. I want to make you aware of them.
CHARLES: The only thing I don't -- I am aware of
what you are saying, but what I am saying is, you know,
what might be inadmissible to the prosecution, right,
might be pertinent to my defense. So then, you would
be the one would be left with the decision there.
THE COURT: No, I will only rule, if the
government goes ahead and enters certain evidence, if
there is an objection to it, I will make a ruling.
CHARLES: All right.
THE COURT: If there is no objection, I will not
make a ruling.
CHARLES: All right, sir.
(App. at 239-40.)
14
Next, in a telling colloquy, Charles demonstrated that
he understood that he lacked the knowledge of an attorney and
that he was aware that this might hurt his case. However, he was
willing to take that risk:
THE COURT: Now, in order to make an objection,
you certainly have to have some understanding of the
Federal Rules of Criminal Procedure. Now, you may be
hampered in presenting your best defense by your lack
of knowledge of the law, and certainly the
effectiveness of your defense may well be diminished by
your dual role as a lawyer and the accused. Do you
understand that?
CHARLES: Yes. That's the chance I going to have
to take. Those are the chances.
* * *
THE COURT: All right. So that you are well aware
of all these problems, when you tell the Court that you
want to proceed and conduct your own defense.
CHARLES: Yes, sir.
THE COURT: And you full understand the problems
that will arise?
CHARLES: No, sir.
THE COURT: You don't understand the problems?
CHARLES: All the problems, fully understand? Not
fully, but --
THE COURT: Well -- go ahead.
CHARLES: -- basically, I do understand the
proceedings. But I cannot understand fully of thinks
[sic] that I know nothing about.
THE COURT: Well, I certainly tell you, sir, that
you are better off having counsel represent you fully.
But you seem to be intent on representing yourself; is
that correct?
CHARLES: Yes, sir.
THE COURT: And that Mr. Brusch's only
position will be that of standby counsel --
CHARLES: Yes, sir.
THE COURT: -- is that correct?
CHARLES: Due to the fact that he does not want to
present the defense that I want to present.
(App. at 240-43.) When Charles explained that he did not fully
understand all of the problems that could arise at trial, he was
not, as Charles argues, demonstrating a lack of understanding of
15
the risks of representing himself. On the contrary, his
explanation showed a lucid understanding of the fact that he was
not an attorney and could not anticipate every single problem
that could arise. Faretta does not require a defendant to be
able to anticipate the details of every single problem that self-
representation could cause. Were this the standard, it would all
but preclude anyone without a law degree from waiving the right
to counsel.
Finally, the court made sure that Charles understood
the penalty if he were convicted:
THE COURT: All, right. Now, you recognize, too,
do you not, that the penalty here is, if the jury does
find you guilty of first degree murder, the Court has
no choice, no leeway, the Court is compelled to
sentence you to life in prison without parole? Do you
understand that?
CHARLES: Yes, sir. And I hope that the Court
will also send me to an American prison, where I can
further my education, get out of St. Thomas, due to the
fact that I can't trust no one here, not even to
represent me in court.
THE COURT: Well, I can't do that, because in
sentences here, if you are found guilty, you will be
sentenced to the custody of the Bureau of Corrections,
for whatever sentence is determined. It is up to the
Bureau of Corrections to determine what it wants to to
[sic] in terms of where you will serve your sentence. I
don't control that.
CHARLES: I am a United States citizen, not a
Virgin Islander.
THE COURT: It doesn't make any difference. You
could be in Yugoslavia and found guilty of murder
there, if you were so found, you would be sent to
prison under the laws of Yugoslavia.
CHARLES: Yes, sir.
THE COURT: Just as you are here, you are sent to
a prison under the laws of the Government of the Virgin
Islands.
(App. at 244-45.)
16
Charles' responses indicate that Charles made his
decision to represent himself with his eyes wide open. Despite,
a few rambling answers, Charles unambiguously indicated that he
understood the risks of self-representation as well as we could
expect of him. He was aware that his lack of legal knowledge
could hurt his case. He was aware that if convicted he would be
sentenced to life in prison. Yet, he wanted to tell his side of
the story. He believed that Mr. Brusch would not because Mr.
Brusch wanted to argue insanity.
The district court believed that Charles comprehended
what he was being told. It observed Charles first-hand and was
in a far better position than we to evaluate his answers,
including the ones in which he rambled. Its evaluation was not
clearly erroneous. Even from our vantage point, however, given
the questions and answers we have quoted above, we believe one
could not conclude that Charles failed to understand unless one
were prepared to conclude that he was incapable of understanding.
As we have indicated, however, the district court credited Dr.
Burger's opinion that Charles was able to understand the
proceedings against him and that finding was not clearly
erroneous.
C. Knowing and Intelligent Waiver
We accordingly accept the district court's factual
findings that Charles was competent to stand trial and that he
understood the information conveyed to him by the court. Based
on those findings and independent review of the record, we
17
conclude that Charles' waiver of his right to counsel was knowing
and intelligent.
III.
Next, Charles argues that we should reverse the
conviction and dismiss the information against him because the
government conceded that he was insane at the time of the
offense. As we understand Charles' argument, with the exception
of the issue of premeditation which we address below, Charles
acknowledges that there was sufficient evidence for the jury to
return a verdict of guilty. Nonetheless, in light of the
government's alleged concession, Charles asks us to set aside the
government's inherently discretionary decision to continue with
the prosecution.
"In our system, so long as the prosecutor has probable
cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute . . . generally
rests in his discretion." Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978). Only in rare cases can a court interfere with the
government's decision to prosecute. For example, where a
decision to prosecute is based on a defendant's race, religion,
or decision to exercise a constitutional right, the courts must
intercede. See e.g., Blackledge v. Perry, 417 U.S. 21, 27 (1974)
(reversing a conviction due to retaliatory prosecution); United
States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974) (setting
out the elements of a claim of discriminatory prosecution).
18
There is no claim of discriminatory or retaliatory
prosecution here, and we see nothing else that would warrant our
intervention. While Charles claims that the government conceded
that he was insane at the time of the offense, this
mischaracterizes the record. It is true that at one point during
negotiations, the government was prepared to stipulate to Dr.
Morrison's conclusion that Charles was insane at the time of the
offense. However, this stipulation was conditioned on Charles
consenting to a bench trial and raising the insanity defense,
thus exposing himself to a commitment under 5 V.I.C. § 3637.
Because Charles refused to consent to the agreement, the
government was not bound by the proposed stipulation.
Essentially what Charles is asking us to do is to
prevent the government from prosecuting him because the
prosecuting attorney may have subjectively believed that he was
innocent by reason of insanity. Charles cites no authority,
however, for the proposition that an otherwise valid criminal
conviction may be overturned based on the prosecuting attorney's
subjective belief regarding the guilt of the accused. Our own
search has revealed none, and we decline to endorse that novel
proposition.3
IV.
3
It is, of course, not clear that the prosecuting attorney had
an affirmative belief that Charles was insane at the time of the
crime. She may well have believed that this was a litigable
issue that might be lost and that, given the fact that the
stipulation would result in Charles' commitment, the government's
resources were better invested elsewhere.
19
Finally, Charles asserts that there was insufficient
evidence for the jury to conclude that he committed a deliberate
and premeditated killing. We review a claim of insufficiency of
the evidence under a substantial evidence standard. We determine
whether there is substantial evidence that, when viewed in the
light most favorable to the government, would allow a rational
trier of fact to convict. United States v. Aguilar, 843 F.2d
155, 157 (3d Cir.), cert. denied, 488 U.S. 924 (1988).
Section 992 of Title 14 of the Virgin Islands Code
distinguishes between first and second degree murder in the
following manner: "All murder which . . . is perpetrated by means
of poison, lying in wait, torture or by any other kind of
willful, deliberate and premeditated killing . . . is murder in
the first degree. . . . All other kinds of murder are murder in
the second degree." As this court explained in Government of the
Virgin Islands v. Roldan, 612 F.2d 775, 781 (3d Cir. 1979), a
brief moment of deliberation can suffice:
To premeditate a killing is to conceive the design or
plan to kill. . . . A deliberate killing is one which
has been planned and reflected upon by the accused and
is committed in a cool state of the blood, not in
sudden passion engendered by just cause of provocation.
. . . It is not required, however, that the accused
shall have brooded over his plan to kill or entertained
it for any considerable period of time. Although the
mental processes involved must take place prior to the
killing, a brief moment of thought may be sufficient to
form a fixed, deliberate design to kill. . . .
In addition, as a practical matter, premeditation can generally
be proved only by circumstantial evidence:
[S]ince [the defendant's mental processes] are wholly
subjective it is seldom possible to prove them
directly. If premeditation is found it must ordinarily
20
be inferred from the objective facts. Every sane man
is presumed to intend all the natural and probable
consequences flowing from his deliberate acts. . . .
Accordingly, if one voluntarily does an act, the direct
and natural tendency of which is to destroy another's
life, it may fairly be inferred, in the absence of
evidence to the contrary, that the destruction of that
other's life was intended.
Id.In this case, there was ample evidence from which the
jury could have inferred deliberation and premeditation. An
eyewitness testified that (1) Charles was sitting in the alley
when Francois entered it; (2) Charles rose and rushed at
Francois, grabbed Francois by his dreadlocks, and stabbed him
repeatedly with a knife; and (3) preceding the attack there was
no provocation by the victim or conversation between the two.
Charles admitted that Francois was unarmed. The coroner's report
indicated three stab wounds including a fatal stab wound to the
chest. There was no evidence suggesting that the attack was
initiated in the heat of passion.
The fact that Charles rushed at Francois immediately
after Francois entered the alley does not preclude a finding of
deliberation and premeditation. A brief moment of thought can be
sufficient. Based on the use of a knife and the absence of any
provocation or display of emotion by Charles, the jury could
reasonably infer that Charles, in this brief moment, formulated a
deliberate intent to kill Francois.
V.
21
For the foregoing reasons, we will affirm the judgment
of the district court.
22
Government of the Virgin Islands v. Dale Charles
No. 94-7638
LEWIS, Circuit Judge, concurring.
This difficult case presents us with a window through which to view the r
world effects of the Supreme Court's decision in Godinez v. Moran, 125 L.Ed.2d 321and it is not a pretty sight. Charles' behavior at a hearing before the district c
left little doubt that he was prone to paranoid delusions and was unstable. Howeve
because the Supreme Court has determined that the competency standard required to
knowingly and voluntarily waive one's right to counsel is the same as that required
defendant to stand trial and to represent him or herself, I am compelled to concur
the judgment of the majority. I write separately to explain why I disagree with th
reasoning we are bound by in this case.
At the heart of the Supreme Court's holding in Godinez is the conclusion
defendant's competence to conduct his or her own defense is "not relevant" to a
determination of whether such a person is competent to knowingly and intelligently
his or her right to counsel. The rationale supporting this conclusion presupposes
reality in which persons who may be marginally sane and barely competent to get thr
waiver of counsel hearing are nonetheless capable of trying their own cases. Justi
Blackmun, in an insightful dissent, questioned the wisdom of the Godinez majority's
conclusion regarding the irrelevance of a defendant's competence to defend him or h
It is obvious that a defendant who waives counsel must represent
himself . . . And a defendant who is utterly incapable of conducting
his own defense cannot be considered "competent" to make such a
1
decision, any more that a person who chooses to leap out of a window
in the belief that he can fly can be considered competent to make such
a choice.
Godinez, 125 L.Ed.2d at 343 (Blackmun, J., dissenting).
In this case, it is abundantly clear from the record that Charles was not
competent to conduct his own defense. This man has had a well documented history o
mental illness. Indeed, it appears that Charles' decision to waive counsel, reject
possibly valid defense and proceed on his own may itself have been the product of m
illness. In November 1990, a court appointed expert found Charles "unable to under
the nature and consequences of the proceedings against him and unable to assist pro
in his defense . . . " App. at 65-66. He remained hospitalized, under observation
continued to receive treatment. Four years later, two experts separately concluded
Charles was mentally competent to stand trial. One expert concluded that Charles su
from chronic paranoid schizophrenia, but was in remission. This expert also determ
that Charles showed no signs of schizophrenia and was not taking medication. App.
Nevertheless, at the district court's colloquy to determine whether Charles was awa
he was "voluntarily and knowingly" waiving his right to counsel, Charles repeatedly
indicated that he was afraid that the Government of the Virgin Islands, the citizen
the Virgin Islands, and his defense attorney were conspiring against him.4 His para
4
For example, when the district court asked Charles whether he understood that
agreed to the defense of not guilty by reason of insanity on stipulated facts, the
might find him not guilty by reason of mental illness and commit him for evaluation
the possibility of a return to society, Charles responded:
Your honor, the whole thing with all of them, right, they afraid
of me for what they have done to me . . . The whole thing about the
government, the prosecutor, they all -- not the prosecutor, really,
they haven't physically done me anything -- but the government, of
itself, is afraid of me.
2
behavior at this critical juncture revealed that he is an individual who remains pr
periods of incoherent, delusional thought. It is true, as Judge Stapleton points o
that at times Charles was lucid and coherent in his responses to the district court
questions. However, his delusional statements demonstrate that his seemingly cohe
responses to the court's questions were hardly indicative of his overall mental cap
Certainly, at the very least, his delusional tendencies exposed the sad fact that h
utterly incompetent to effectively conduct his own defense.
I cannot agree that merely because a defendant is competent to waive coun
fortiori, he or she is also competent to act as counsel and to try the case, for it
obvious to me that a prerequisite to a determination of competence to waive counsel
searching evaluation of the degree to which one actually is capable of and competen
try one's case. The Supreme Court in Godinez suggests that a knowing and intellige
waiver ends the inquiry, as if everything else that follows is logical, rational,
reasonable and presumed. I think, again, that whether a person is, in fact, compet
waive counsel depends in part upon whether he or she is competent to represent him
herself, and that these are two distinct issues which must be separately evaluated.
latter is obviously relevant to the former, and there are any number of issues uniq
different types of cases which prove this point.
Let's assume, for example, that Charles was charged with a series of intr
and complex tax fraud counts which had taken three years to investigate, had involv
hundred thousand pages of documents, and had required the appointment of a special
App. at 246.
3
prosecutor with considerable expertise in this area. Under the Godinez Court's reas
all of this is "not relevant" to whether Charles was competent to waive counsel. I
words, it doesn't matter that Charles obviously is not competent to actually repres
himself; the only question is whether he is lucid enough to make it through a collo
to waive his right to counsel. So long as he is, according to the Court, he is rea
able to try his case. There is no need to look any deeper because, after all, duri
colloquy Charles was able to punctuate his random incoherences with a few moments o
apparent lucidity and to answer the right questions satisfactorily. This, accordin
the Court, automatically renders him fit to try his murder case and, presumably, wo
have rendered him fit to try the hypothetical tax fraud case, too. The end result
almost always preordained. It is hardly surprising, then, that Charles and many ot
similarly situated -- some of whom might have reasonable insanity defenses or other
avenues of defense to pursue -- usually wind up either on death row or serving life
sentences.
In cases such as these, I believe that the trial judge should be required
further; to conduct another competency evaluation to determine a defendant's capaci
represent him or herself, including weighing various characteristics unique both to
defendant and to the case. A defendant who waives his or her Sixth Amendment right
counsel should not be left naked and unprotected by the Constitution. The Due Proc
Clause of the Fourteenth Amendment is supposed to prevent the government from obtai
criminal conviction through a procedure that fails to meet the standards of due pro
law. The Supreme Court has recognized that "[u]nless a defendant charged with a ser
offense has counsel able to invoke the procedural and substantive safeguards that
4
distinguish our system of justice, a serious risk of injustice infects the trial it
When a State obtains a criminal conviction through such a trial, it is the State th
unconstitutionally deprives the defendant of his liberty." Evitts v. Lucey, 469 U.
396 (1985), quoting, Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). The fact that a
defendant acts as his or her own counsel does not alter the nature of his or her du
process rights.
But it would appear that the Court in Godinez ignored the fundamental due
process protections afforded to a defendant at trial, regardless of whether he or s
waived his or her Sixth Amendment right to counsel. After Godinez, defendants like
Charles, who have knowingly and voluntarily waived their right to counsel, are left
in their efforts to defend themselves, regardless of their competency to do so.
Nevertheless, because I am bound to follow Godinez, I must vote with the majority.
district court determined that Charles was competent to stand trial and that he kno
and voluntarily waived his right to counsel. The district court was in a better po
to evaluate Charles' mental state and to discern whether Charles understood the
implications of presenting his own defense. The court conducted its colloquy in
accordance with the requirements of Faretta v. California, 422 U.S. 806 (1975), and
that Charles met the Godinez standard for competence. There is simply not enough i
record to disturb this finding.
This case highlights the immense responsibility placed upon a district co
conducting a Faretta hearing. In Government of the Virgin Islands v. James, 934 F.
471-73 (3d Cir. 1991), we determined that a court conducting a Faretta hearing must
a thorough and penetrating inquiry to determine whether the defendant understands t
5
nature of the charges, the range of possible punishment, potential defenses, techni
problems that the defendant may encounter, and any other facts important to a gener
understanding of the risks involved." Given that the Supreme Court has determined
defendant's competency to conduct his or her own defense is not relevant to whether
defendant has knowingly and voluntarily waived his or her right to counsel, distric
courts ought to be particularly vigilant in assuring that a defendant understands e
what he or she is waiving in a Faretta hearing. The Faretta hearing, in this case
many future cases, was and will be the last procedural safeguard available to a men
unstable but "competent" defendant who mistakenly believes he or she can effectivel
his or her own case.
The Supreme Court has long recognized that the Sixth and Fourteenth Amend
guarantee that a person brought to trial in any state or federal court must be affo
the right to the assistance of counsel before he or she can be validly convicted an
punished by imprisonment. See Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v
Zerbst, 304 U.S. 458 (1938); Powell v. Alabama, 287 U.S. 45 (1932). Through its ho
in Faretta and Godinez, the Court has defined this right in such a way that require
allow a paranoid, delusional defendant to elect to represent himself at trial, purs
ill-advised defense, and ultimately be sentenced to life imprisonment. That this r
is constitutionally permissible is deeply disturbing and ultimately "impugns the in
of our criminal justice system." Godinez, 125 L.Ed.2d at 344 (Blackmun, J., dissen
6