                                                                                                                           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Precedential or Non-Precedential: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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                  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 321

and 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




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