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Government of Virgin Islands v. Felix


filed as amended march 28 1978.: January 27, 1978.



Adams, Hunter and Rosenn, Circuit Judges.

Author: Adams


ADAMS, Circuit Judge.

This case arises out of an appeal by the defendant, Charles Felix, who was found guilty by a jury of murder in the first degree.*fn1 On appeal, Felix contends that he is entitled to a new trial because (1) the trial court abused its discretion in conducting the voir dire, (2) the trial court erred in its rulings on the admission of evidence, (3) the trial court erred in denying the prosecution's motion for a psychiatric examination of the defendant, and (4) there was insufficient evidence to support the verdict. After considering these challenges, we have concluded that there is no ground for disturbing the conviction, and thus we affirm the judgment of the district court.


Felix, who was employed as a Corrections Officer by the Department of Public Safety of the Virgin Islands, shot Thomas Industrious on December 24, 1976, and Industrious died shortly thereafter. Felix was charged on December 28, 1976, in a one-count information with first degree murder.

After Felix entered a plea of not guilty, the United States Attorney, on February 24, 1977, filed a motion for a psychiatric examination of the defendant. Felix's counsel, at the request of his client, opposed the motion. The court, treating the motion as directed solely at the question whether the defendant was competent to stand trial, held a hearing on March 3, 1977. At the conclusion of the hearing, the court declared that ". . . this hearing clearly established to my mind that the defendant is competent to stand trial. . ."*fn2 Meanwhile, on February 25, 1977, the prosecution sought to amend the information in order to charge the defendant with illegally possessing a firearm. The motion to amend was also rejected by the trial court.

Trial took place from March 7 to March 10, 1977. At its conclusion, the jury returned a verdict of guilty. After Felix was sentenced, the defense counsel moved for a new trial and sought a directive that the defendant undergo a psychiatric examination. The trial judge denied the new trial motion, but directed that the Commissioner of Public Safety refer the defendant to the Commissioner of Health or his representative for observation and testing in the correctional facility where he was incarcerated.*fn3

The shooting that gave rise to this proceeding took place near the Bridge Bar on the island of St. Thomas. The prosecution's theory was that Felix shot Industrious without provocation, and that Felix then removed a second gun from his trousers and placed it beside Industrious in order to make it appear as though he shot Industrious in self-defense. In response, the defense maintained that Felix, after approaching Industrious, discovered that Industrious had a pistol in his waistband, asked if Industrious had a license for it, and after Industrious went for his gun, shot him in self-defense.


Felix argues, first, that the trial judge abused his discretion in refusing, during the voir dire, to ask each member of the panel to state whether he or she was from the island of Tortola, which is part of the British Virgin Islands. Defense counsel based his request for such an inquiry on the argument that since the deceased was a native of Tortola, whereas the defendant was a native of the United States Virgin Islands, a member of the jury who hailed from Tortola and was a naturalized American citizen could be expected to display toward the defendant the prejudice that is commonly found to exist between so-called "down-islanders" - those from the British, French and Dutch islands of the Antilles - and native United States Virgin Islanders.*fn4

The trial judge declined during the voir dire to ask each member of the venire whether he or she had come from Tortola. Instead, the judge asked the members of the panel whether their judgment regarding the guilt or innocence of the accused would be affected by the fact that the defendant was a native of the U.S. Virgin Islands. He said:

As adults we know that we do have certain prejudices, certain biases, they are for or against a thing or for or against a person or for or against certain types of persons, or persons holding certain status. . . I mention this so that if, in the event we are faced with one of these evidentiary situations in which a citizen shot and killed a noncitizen, as alleged, that the status of the citizenship or alienage would not affect anybody's judgment. If then, if either because you are a U.S. citizen or because you are a U.S. citizen by naturalization or you lived in any of these neighboring islands, you think that the difference in the status between the deceased, a Tortolian, if that's what it turns out to be, and the defendant, a St. Thomian, if this in any way will affect your judgment in the slightest degree, please raise your card. (emphasis added)

On appeal, Felix declares that the inquiry by the trial court was insufficient, for it is "unrealistic" to expect members of the venire to raise their cards when asked if they are potentially biased against a defendant because they had been born or had lived in a different location. The court's failure to inquire specifically whether the veniremen had come from Tortola, Felix urges, deprived him of a basis for exercising his right to make peremptory challenges for cause to members of the jury panel.*fn5

There are several difficulties with this argument. First, the factual underpinning of Felix' contention has not been established.*fn6 In addition, Felix has pointed to no authority which indicates, or even suggests, that in a case such as this the trial court should have inquired about the prior residence of the members of the panel.

At oral argument, defense counsel identified as his "strongest" authority United States v. Segal, 534 F.2d 578 (3d Cir. 1976). But Segal is distinguishable from the present situation. Segal involved a prosecution for bribery of a public official, which arose out of an alleged payment of money by Segal to an agent of the Internal Revenue Service. It was known by the parties that a number of the veniremen had been employed by the government. In such circumstances, the defense counsel asked that the trial court, in conducting the voir dire,*fn7 inquire whether any member of the jury panel, or of his family, had ever been employed by the IRS. The court honored this request, noting that the information was germane because there was a "possibility of lingering loyalty to the service, friendship of persons still employed there, or knowledge of agency procedures. . ." 534 F.2d at 581.

The nature of the alleged prejudice that was of concern in Segal is, by its very nature, rather particularized and concrete, for it involves the question of the specific employer of a member of the jury panel. In contrast, the nature of the alleged bias of which the defense counsel here complained is unfocused and diffuse, for it is said to be relevant to a large portion of the population of the Virgin Islands. Indeed, the prejudice claimed to exist by the defendant is so highly general that it could arguably obtain, if one accepts the unproven premise of the defense, in almost any sort of case arising in the Virgin Islands. Clearly the Segal Court did not conceive of its ruling as reaching so broadly, for it was careful to confine its holding to the circumstances of that case.*fn8

Further, there is a strong policy reason for not holding that the trial court abused its discretion in the present case by refusing to ask each member of the venire about his or her prior place of residence. Such an investigation, carried out in a highly visible criminal trial on the island of St. Thomas, could reasonably be expected to foster polarization in the community. In effect, it could be perceived as representing an official endorsement of the notion that there is deep prejudice between those who are nativeborn citizens and those who are not.*fn9

After weighing these factors, we have concluded that the trial court did not abuse its discretion in refusing to ask the jury panel whether any member had come from Tortola.

Second, Felix maintains that the trial court erred in allowing testimony regarding two subjects collateral to the crime charged in the information: (a) the possession by Felix of a pistol in possible violation of restrictions that had been placed on his license to carry a gun; and (b) an altercation between Felix and Michael Nixon earlier on the day of the shooting of Industrious.

As to the firearm license restriction and its possible violation, in a pretrial discussion with counsel the district court asserted that it would refuse to receive evidence on the subject. At that time the court said that the probative worth of the proffered testimony was outweighed by the prejudice that might result from admitting it. However, at trial, the judge allowed the government to cross-examine Felix about the restrictive firearm license on the ground that, in his direct testimony, Felix had stated that he was acting as a police officer on the occasion of the shooting.*fn10

Counsel for the defendant objected, claiming that the prejudice of such cross-examination would outweigh any probative value "that will be brought out by the fact that the gun was not licensed to carry." (sic) The court ruled that it would permit the cross-examination, and that it would caution the jury that "the only purpose for which they may consider whether he was licensed to carry the gun or not would be in connection with his statement that he stated he was a correction officer and with respect to that impression that he was acting officially."*fn11

In regard to the altercation with Nixon, Felix insists that the government, during his cross-examination, was allowed by the court to probe in greater depth than it should have been permitted to do. Defense counsel conceded that it was he, not the prosecution, who had raised the Nixon matter at trial. However, he argues that even though he had initiated discussion of the subject, the government went much further in its cross-examination of Felix on the subject than the defense went in its direct examination, and thus that the defense's objection to the cross-examination, based upon its prejudicial character, should have been sustained.*fn12

Appellant's contentions with respect both to the firearm restriction and the Nixon altercation rest on the notion that such evidence constituted inadmissible testimony about possible crimes, albeit minor offenses, unrelated to the one on which the defendant was being tried. The starting point for analyzing that claim is the observation of this Court that ". . . the exclusion of such evidence has become the exception to the general rule permitting the admission of evidence of other crimes if it is relevant to a material issue at trial." United States v. Cook, 538 F.2d 1000, 1003 (3d Cir. 1976). What is required in order to permit testimony about other crimes, first of all, is that it be "relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime." United States v. Stirone, 262 F.2d 571, 576-577 (3d Cir.), rev'd on other grounds, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960).

In addition, even when an item of evidence is relevant, Rule 403 of the Federal Rules of Evidence provides that:

And the Advisory Committee's Note to Rule 403 states:

Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.

Pursuant to those provisions, this Court has held that when a Rule 403 problem arises, the trial court should carefully balance the probative value of the proffered testimony against its possible prejudicial effects.*fn13

In applying these principles to the admission of the testimony about the firearm restriction, we find no reversible error on the part of the trial court. Felix testified that he had identified himself to Industrious as a corrections officer, thus raising the issue whether he was acting in an official role. The nature of his firearm restriction does appear to be of relevance to the question of Felix' alleged action in an official capacity.*fn14

Further, it cannot be said on the basis of the record that the trial judge did not balance the probative value of such testimony against the potential prejudice flowing from it. At a pretrial conference where the judge ruled against the admission of the testimony regarding the firearm license, the court specifically took account of its possible prejudicial effect as compared with its probative weight. And at a conference with counsel during trial, after Felix testified that he had acted in an official capacity in his dealings with Industrious, the trial court expressed renewed concern about the possible prejudicial consequences of admitting testimony about the firearm restriction. In such circumstances, we cannot conclude that the trial court abused its discretion in weighing the probative value against the prejudicial effects of such evidence.

The admission of testimony about the details of the Nixon controversy presents a somewhat closer question, although after carefully reviewing the record before us, again we cannot conclude that the trial court committed reversible error. In the first place, in the pre-trial conference, the court directly warned the defense counsel about introducing testimony relating to the Nixon dispute, and thus opening it up to inquiry by the prosecution.*fn15 Yet, the defense counsel went ahead despite the warning by the trial judge and introduced evidence about the altercation.*fn16

Moreover, in answering his counsel's questions, Felix may be said to have raised an issue about his own credibility, for his testimony could be construed as indicating that it was a minor matter. The contrary testimony about the argument elicited by the prosecution thus was relevant to the question of the defendant's credibility.

Also, it should be noted that the trial court gave a limiting instruction to the jury*fn17 regarding the Nixon dispute.*fn18 And it appears from the record as a whole that the trial court did compare the possible prejudicial impact of the testimony against its probative value.

Thus, in light of the discretion of a trial court in ruling on matters of evidence,*fn19 we cannot in this case find a basis for determining that the court abused its discretion in admitting the evidence in question about the conflict between Felix and Nixon on the day of the shooting.*fn20

Third, Felix argues that the government's pre-trial motion for a psychiatric examination should have been granted, even though the defense opposed the motion at the time it was made. Further, even if the district judge did not commit reversible error by declining to grant the government's motion, the appellant contends, it did err in failing to order a complete psychiatric and neurological examination of Felix in connection with the defendant's post-trial motion for a new trial.

One of the fundamental postulates of our system of criminal justice is that a defendant be competent to stand trial.*fn21 The question of a defendant's sanity at the time of the commission of a crime, moreover, is a serious one that must not be handled incautiously. Nevertheless, it is rather inexplicable as an analytical matter for the defense to maintain on appeal that, because there was a risk of the defendant's incompetency or insanity, the government's pre-trial motion for a psychiatric examination should have been granted - when, in fact, the defense vigorously opposed that motion at the time it was entered, and maintained its opposition throughout a hearing on the motion.*fn22

Also, up until the time that the defendant filed his post-trial motion regarding a psychiatric examination, there was no evidence in the record to suggest that Felix was mentally incompetent either at the time of the crime or of trial. And the only support for the post-trial motion itself was an affidavit, dated March 21, 1977, signed by the defendant's attorney. The affidavit states in effect that the attorney had discovered no motive for the killing of Industrious, and that because of this, there is a reasonable basis to believe that the defendant might have been mentally ill at the time of the shooting.

The fundamental weakness of the affidavit is that it does not point to any specific evidence of mental incapacity or illness. It recounts in a summary fashion, inter alia, the defendant's criminal record, his history of disciplinary difficulties as a Corrections Officer with the Department of Public Safety, his appearance of excitation in conferences with counsel, his "obsession" with Gary Gilmore, the convicted killer in Utah who sought his own electrocution, the apparent opinion of a psychiatrist (who did not examine Felix) that the killing of Industrious might have been caused by mental illness, and the embarrassment of counsel when his client engaged in a lengthy "diatribe" in court during the sentencing proceedings. None of these points involves definite medical or psychiatric testimony from one who is professionally qualified to pass judgment on the matter in question, and who personally examined the defendant.

On the basis of the record before us, then, we cannot conclude that the trial court erred in refusing to order a psychiatric examination of Felix.*fn23

Fourth, Felix questions the sufficiency of the evidence supporting the verdict of guilty for first degree murder. We cannot agree with this final defense contention. As this court set forth in Government of Virgin Islands v. Lake, 362 F.2d 770, 776 (3d Cir. (1966)), cited with approval in Government of the Virgin Islands v. Lanclos, 477 F.2d 603, 606 (3d Cir. 1973), regarding the standard of proof required to support a verdict of willful, premeditated and deliberate killing:

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. . .

Although the defense maintains that there is no evidence affirmatively demonstrating that Felix did have a design to kill for an extended period of time prior to the shooting of Industrious, this point does not rule out the possibility that a jury could find that the killing was premeditated and deliberate.

In the context of the present situation - in particular, of the evidence regarding the shooting of Industrious; the testimony that Felix had two guns with him at the time of the shooting, which he did not explain; the fact that, despite his firearm license, he was carrying a gun on the occasion of the shooting; the fact that Felix had had a violent altercation with Nixon earlier on the day of the shooting; and the testimony that Felix had stated on the day of the shooting that he felt like killing somebody - we cannot hold that there is insufficient evidence to support the verdict.


Since we have discerned no basis for concluding that there was reversible error in regard to the contentions raised by the appellant, the judgment of the district court will be affirmed.

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