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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 ...

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