                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-1995

Gov't of VI v Isaac
Precedential or Non-Precedential:

Docket 93-7821




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 93-7821



                GOVERNMENT OF THE VIRGIN ISLANDS

                                  v.

                         SAMUEL ISAAC,
                                           Appellant



     On Appeal from the District Court of the Virgin Islands
                      (D.C. No. 93-cr-00103)

                    Argued December 6, 1994

             Before: SLOVITER, Chief Judge, SCIRICA
                    and COWEN, Circuit Judges

                     (Filed March 9, 1995)




Stephen A. Brusch (Argued)
Office of Federal Public Defender
Charlotte Amalie, St. Thomas, USVI     00804-1327

          Attorney for Appellant

Kim L. Chisholm (Argued)
Office of United States Attorney
Charlotte Amalie, St. Thomas, USVI 00802-6924

          Attorney for Appellee
                         OPINION OF THE COURT

SLOVITER, Chief Judge.

            Samuel Isaac appeals his conviction for voluntary

manslaughter imposed after jury trial in the District Court of

the Virgin Islands.    We will vacate the conviction and remand for

a new trial because, upon reviewing the evidence presented at

trial, we conclude that the court erred in refusing to instruct

on justifiable homicide and offering resistance to prevent

injury.

                                  I.
                                FACTS

            Defendant Samuel Isaac worked as a helper and

occasional bartender at the Super Pool Bar and Restaurant in St.

Thomas.   On May 24, 1993 Frederick Barry, also known and commonly

referred to as Soca, spent several hours at the Super Pool Bar

where he met his friends Theodore Barzey, Richard Fahie, Julien

Cline, and Gilbert Smith.    During that time Soca bought and drank

at least three drinks.    At trial, Fahie testified that they were
talking about the "olden days, who could throw down who, and . .

. who was the strongest."    App. at 52.

            Isaac arrived at the Super Pool Bar for work around

7:00 p.m.    He had come from his day job as a mechanic at an auto

repair shop.    When Isaac arrived, Soca had been there for a few

hours and, according to Isaac, was arguing loudly.    Isaac had

seen Soca in the bar before.    Isaac had never had any trouble
with Soca in the past, but testified he knew that Soca had a

general reputation for being a violent person.    App. at 259.

Isaac testified that while he was working he heard Soca say that

he had a gun and threaten to take out anyone who "messed" with

him.

            Eventually a physical altercation broke out between

Soca and Isaac, leading to Soca's death by stabbing.    The events

leading up to the death were hotly contested at trial.    What is

not in dispute is that Soca received a fatal, two-inch stab wound

on his right chest, and that Isaac was responsible.    There was no

exterior blood and apparently Soca died from internal bleeding.

A pathologist called by the prosecution testified that it was

likely that Soca did not even realize he had been stabbed because

the alcohol would have deadened his senses.

            By the time the police arrived at the scene, Soca was

dead.    Isaac immediately identified himself to a police officer

as the "one involved" in the stabbing and did not try to flee the

scene.    Isaac testified that he must have dropped the knife, but

it was never recovered.

            At trial four of the witnesses for the prosecution were

long-time friends of the deceased.    Theodore Barzey, a friend of

Soca's for over thirty years, testified that he was at the Super

Pool Bar drinking with Soca and other men on the evening of May

24th.    Barzey testified that he left the Super Pool Bar for

another club with Fahie.    Both men testified that when they left,
Soca was outside leaning on the porch.    Within a few minutes they

heard bottles breaking and returned to find Soca lying on the

floor stabbed.

           Julien Cline, another friend of Soca's, arrived at the

Super Pool Bar around 8:20 p.m. and noticed that Soca was

drinking and had "had a little bit too much" although he did not

believe Soca was causing any trouble in the bar.    App. at 68.

Cline observed Soca going back and forth between the bar and an

outside balcony and saw Soca talking to a food server at the bar.

Then Cline saw Soca raise his hand to the bartenders at the bar

though he could not tell if Soca touched Isaac.    Cline testified

that Isaac pulled down a knife from a high shelf and swung at

Soca's neck.    Cline could not tell whether the knife touched

Soca.   Soca backed up away from the bar, picked up bottles off of

a table, and threw them at Isaac.    At that point Cline fled the

bar and returned minutes later to find Soca lying on the ground.

           Much of Cline's testimony at trial directly

contradicted a statement he gave police immediately after the

incident in which Cline said that Soca had been "messing" with

everyone in the bar, that Soca pushed the bartender and said,

"You want something with me;" and that Soca "reached down to his

foot, pretending that he was reaching for something."      Trial

Transcript at 131-42.    At trial, Cline denied having made these

statements.    The police statement was signed by Cline.
           Gilbert Smith, a friend of Soca's for over thirty

years, testified he observed Isaac and Soca come in from the

balcony and approach the bar.    Smith saw Isaac pull down a knife

from above the bar.   Smith said to Soca, "Soka, bring your scunt

over here.   Come sit down.   Soka, bring your scunt and come

over."   Then, Smith heard Soca say to Isaac, "You have a knife.

I will show you what I have" and saw Soca reach down around his

foot.    Trial Transcript at 170.   Smith testified "I don't know

whether it was a gun or what. . . .     I see [Isaac] passing with a

knife across [Soca's] throat . . . [and] that is where Soka was

getting up from bending down to get what he had."     Trial

Transcript at 170.    Isaac tried to get out from behind the bar

"[a]nd Soka took some dishes . . . [and] went in the cooler and

was throwing beers at [Isaac]."     Trial Transcript at 171-72.   At

that point, Smith fled the bar.     Trial Transcript at 173.   Smith

did not know what caused Isaac to pull the knife or if the two

men had argued on the balcony.

           Albata Woods, the owner of the Super Pool Bar and a

cousin of Soca's, was outside the bar at an ice cooler when the

stabbing occurred.    He met Soca in the entrance way and, lifting

Soca's shirt, found the stab wound.     Woods testified that Soca

had a reputation for violence when he drank and that Isaac had

never caused any problems in the bar.

           Charlesworth Richards, the bartender at the Super Pool

Bar, testified that Soca was loud, intoxicated, and cursing.
Richards watched Soca hit another bar patron several times in the

chest.    App. at 158.    The other patron left the bar and, at that

point Soca approached the bar, pushed Isaac, and hit Isaac in the

chest.    App. at 160.    Isaac walked away from Soca and said "he

ain't want no trouble."      App. at 160.   Soca "reached after

[Isaac] and started beating him," App. at 161, and came around

the bar and chased Isaac.      App. at 163.   Isaac tried to run

outside and Richards himself ran away from the bar.

            Isaac testified in his own defense.     When he arrived at

the bar Soca was already there arguing loudly with "fight talk."

Isaac stated that he heard Soca say that he had a gun, that he

"would take all of you one by one," and, saying on the phone

that, "I kill two already and one more going to die tonight."

App. at 240-41.   Sometime thereafter he was standing behind the

bar cleaning dishes when Soca came up to him and said, "You want

something" and Isaac said "No."      Then Soca reached over the

counter, pushed Isaac, and hit him hard in the chest with the

back of his hand.    App. at 242-43.   Isaac told Soca to "behave

himself," and Soca said, "I don't give a fuck about you."         App.

at 243.    Soca started throwing bottles and plates and came around

the counter making Isaac back up away from the bar.       App. at 244.

            Isaac testified that Soca then reached down at his

ankle and said "You want to see something?       I have something for

you."    App. at 245.    Isaac testified that "I reached back with

the knife, and lunge like that, because he was coming forward.
And I lunge like that."      App. at 245.   Isaac testified that he

picked up the knife "[b]ecause he reach down at the ankle to get

a gun to shoot me.    I was scared.    I thought he was going to kill

me."   App. at 245-56.    Isaac testified that he never intended to

kill Soca.    App. at 246.

            Isaac was charged with second degree murder.     The court

gave instructions on self-defense and the lesser included offense

of voluntary manslaughter but refused the defense's request to

instruct on excusable homicide, V.I. Code Ann., tit. 14, § 926,

justifiable homicide in resisting any attempt to commit a felony,

id. § 927(2)(A) or offering resistance by a party to be injured,

id. § 41(2).    The jury acquitted Isaac of second degree murder

and found him guilty of voluntary manslaughter.       The court

sentenced Isaac to five years imprisonment.       This appeal

followed.

            On appeal, Isaac argues three grounds for reversal:

that the evidence was insufficient to sustain the conviction;

that the prosecutor's comments on summation denied Isaac his due

process right to a fair trial; and that the district court erred

in refusing to instruct the jury on the defenses of excusable

homicide, justifiable homicide in resisting any attempt to commit

a felony, and offering resistance by a party to be injured.
                                II.

                             DISCUSSION

                                A.
                      Sufficiency of Evidence

          Isaac claims that the evidence adduced at trial was

insufficient for a rational jury to find him guilty beyond a

reasonable doubt of voluntary manslaughter.     The standard of

review for a claim of insufficiency of evidence is whether there

is substantial evidence, when viewed in the light most favorable

to the government, to support the jury's verdict.    Government of

the Virgin Islands v. Williams, 739 F.2d 936, 940 (3d Cir. 1984).

          To convict Isaac of voluntary manslaughter the

government must prove 1) that Isaac unlawfully caused Soca's

death, 2) without malice aforethought, 3) that the killing was

upon a sudden quarrel or in the heat of passion, and 4) that the

act was done either with an intent to kill or an intent to

inflict serious or grievous bodily injury that would likely cause

or result in death.   See V.I. Code. Ann. tit. 14, § 924 (defining

manslaughter as "the unlawful killing of a human being without

malice aforethought," "voluntary" is defined as "upon a sudden

quarrel or heat of passion"); see also Government of the Virgin
Islands v. Knight, 764 F. Supp. 1042, 1049 (D.V.I. 1991)

(defining the four essential elements of voluntary manslaughter).

          Once Isaac properly placed self-defense in issue, the

government bore the burden of proving beyond a reasonable doubt
that Isaac did not act in self-defense.   See Government of the

Virgin Islands v. Smith, 949 F.2d 677, 680 (3d Cir. 1991); see

also Government of the Virgin Islands v. Robinson, 29 F.3d 878,

882 n.3 (3d Cir. 1994).   Isaac would be entitled to an acquittal

on the ground of self-defense if he reasonably believed that he

was in imminent danger of death or serious bodily harm from which

he could only save himself by using deadly force.   See V.I. Code.

Ann. tit. 14, § 43.

          Isaac's argument on the insufficiency of the evidence

focuses on the contradictory testimony over whether Soca hit

Isaac first, the many inconsistencies in Cline's and Smith's

testimony to the police and then at trial, whether Soca

reasonably appeared to be reaching for a gun, and whether there

was evidence of an intent to kill or to do grievous harm in light

of the fact that the stab wound was only two inches.   Isaac

emphasizes the undisputed testimony that Soca could have been

saved if he had immediately applied pressure to the area and

gotten medical help, arguing that this negates the requisite

intent.

          In reviewing the sufficiency of the evidence, an

appellate court must ascertain whether the record, when viewed in

the light most favorable to the government, contains substantial

evidence to support the jury's verdict.   Glasser v. United

States, 315 U.S. 60, 80 (1942).   This evidence must be such that

a rational trier of fact could find guilt beyond a reasonable
doubt.    United States v. Brown, 3 F.3d 673, 680 (3d Cir.), cert.

denied, 114 S. Ct. 615 (1993).   We will reverse for insufficient

evidence only where the failure of the prosecution is clear.

Burks v. United States, 437 U.S. 1, 17 (1978).   The evidence need

not be inconsistent with every conclusion save that of guilt so

long as the jury can find guilt beyond a reasonable doubt.

United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992).

           The fact that the testimony is contradictory does not

mean the evidence is insufficient, only that the jury must make

credibility determinations.    See United States v. Janotti, 673

F.2d 578, 598 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106

(1982).   Although Richards and Isaac testified that Soca hit

Isaac first, some of the government's witnesses testified that

Isaac pulled the knife before Soca threw bottles, that Soca did

not have a gun, and that Isaac may have swiped at Soca before any

bottles were thrown.   Isaac did testify that he never saw Soca

with a gun.   App. at 266.   If the jury credited the testimony of

the government's witnesses that Isaac pulled the knife before

Soca reached down to his leg or that Soca never even reached down

to his leg, it could have inferred an intent to inflict harm from

Isaac's action of pulling down the knife from the shelf and

lunging and "flick[ing]" the knife.   App. at 254.   Even if the

jury believed Soca was acting loud and perhaps even threatening,

it could have found that Isaac's response was excessive.    Under

these facts, we cannot hold as a matter of law that the evidence
was insufficient for a reasonable jury to find beyond a

reasonable doubt that Isaac did not act in self-defense.

                                B.
                         Jury Instructions

           We turn next to Isaac's assertion that the district

court erred when it declined to instruct the jury on excusable

homicide under V.I. Code Ann., tit. 14, § 926, justifiable

homicide in resisting any attempt to commit a felony under V.I.

Code Ann., tit. 14, § 927(2)(A), or offering resistance by a

person about to be injured under V.I. Code Ann., tit. 14 § 41(2).

Generally, we review the district court's refusal to give certain

jury instructions on an abuse of discretion basis.   However,

where, as here, the question is whether the jury instructions

failed to state the proper legal standard, this court's review is

plenary.   See Savarese v. Agriss, 883 F.2d 1194, 1202 (3d Cir.

1989).   In its initial brief filed with us, the government argued

that there was insufficient evidence to support the elements of

those defenses.   In its supplemental brief, the government argues

primarily that these other defenses were duplicative of the self-

defense instruction and therefore not required.

           At Isaac's request, the district court did give the

jury instructions on self-defense.1   The relevant portion of the

self-defense charge read:

1
.   The Virgin Islands code defines self-defense:

                The right of self-defense does not extend to the
           infliction of more harm than is necessary for the
               Now, this defendant, Mr. Isaac, contends that he
          acted in self-defense when he stabbed [Soca].2 The law
          of the Virgin Islands says as follows: The right to
          self-defense does not extent [sic] to the infliction of
          more harm than necessary for the purpose of defense.
          To justify a stabbing on the grounds of self-defense,
          there must be not only the belief, but also a
          reasonable ground for believing, that at the time of
          the stabbing Samuel Isaac, the party stabbing [Soca],
          was in imminent or immediate danger of his life or
          great bodily harm.

               The defense of self-defense is limited to this
          definition and to these circumstances. If you find
          that the defendant was the aggressor at the time of
          stabbing, then self-defense is not available to him and
          you may not consider it.

          . . . .

               The issue is whether the defendant acted
          reasonably, and whether his belief was reasonable under
          the facts as you find them to have been at the time,
          not whether the victim actually was about to kill or do
          serious bodily harm to the defendant.

               In considering whether this defendant used
          excessive force in defending himself, you may consider
          all the circumstances under which he acted. The claim
          of self-defense is not necessarily defeated if greater
          force than would have seemed necessary in cold blood
          was used by the defendant in the heat of passion
          generated by an assault upon him.

(..continued)
          purpose of defense. To justify a homicide on the
          ground of self-defense, there must be not only the
          belief but also reasonable ground for believing that at
          the time of killing the deceased, the party killing was
          in imminent or immediate danger of his life or great
          bodily harm.

V.I. Code Ann., tit. 14, § 43.
2
 . The district court used the victim's formal name, Frederick
Barry. Because the witnesses generally referred to Barry as
Soca, we do so throughout this opinion.
App. at 400-02.

           As a general proposition, "a defendant is entitled to

an instruction as to any recognized defense for which there

exists evidence sufficient for a reasonable jury to find in his

favor."   Mathews v. United States, 485 U.S. 58, 63 (1988); see

also Robinson, 29 F.3d at 882; Government of the Virgin Islands

v. Salem, 456 F.2d 674, 675 (3d Cir. 1972).    In Mathews, the

Supreme Court held that this entitlement to an instruction

applies even when the defenses are inconsistent, in that case a

not guilty plea and a claim of entrapment.    See 485 U.S. at 62.

In this case the issue is not that of inconsistent defenses.

Instead, we must decide first whether, as a matter of law, the

defenses of excusable homicide, justifiable homicide and

resistance by a person about to be injured are encompassed in

self-defense and were therefore covered by the self-defense

charge.   If not, we must decide whether the separate requested

charges were warranted on the basis of the evidence presented.

           Each of the defenses for which an instruction was

sought is covered by a separate section of the Virgin Islands

Code.   Section 926 provides that homicide is excusable
           (1) when committed by accident and misfortune, or in
           doing any lawful act by lawful means, with usual and
           ordinary caution, and without any unlawful intent; or
           (2) when committed by accident and misfortune, in the
           heat of passion, upon any sudden and sufficient
           provocation, or upon a sudden combat, when no undue
           advantage is taken, nor any dangerous weapon used, and
           when the killing is not done in a cruel or unusual
           manner.
          Section 927 defines homicide as justifiable, in

relevant part, when committed by any person
          (2)(A) when resisting any attempt to murder any person,
          or to commit a felony, or to do some great bodily
          injury upon any person; [or]

          . . .

          (C) when committed in the lawful defense of such
          person, or of a wife or husband, parent, child, master,
          mistress, or servant of such person, when there is
          reasonable ground to apprehend a design to commit a
          felony, or to do some great bodily injury, and imminent
          danger of such design being accomplished; but such
          person, or the person on whose behalf the defense was
          made, if he was the assailant or engaged in mortal
          combat, must really and in good faith have endeavored
          to decline any further struggle before the homicide was
          committed . . . .3


          Section 41(2) states that any person about to be

injured "may make resistance sufficient to prevent . . . (2) an

offense against his person."

          No case that has been called to our attention considers

the interrelationship between any of these defenses and self-


3
 . Section 927(2)(B), not applicable here, defines justifiable
homicide:

          when committed in defense of habitation,
          property, or person, against one who
          manifestly intends or endeavors, by violence
          or surprise to commit a felony, or against
          one who manifestly intends and endeavors, in
          a violent, riotous or tumultuous manner, to
          enter the habitation of another for the
          purpose of offering violence to any person
          therein.

V.I. Code Ann., tit. 14, § 927(2)(B).
defense.   Nor have we uncovered any informative legislative

history on that issue.   Thus we are faced with four separate

statutory provisions, each detailing an ostensibly independent

defense that on its face intersects to some extent with one or

more of the others.

           Isaac argues that the defenses are not duplicative of

self-defense and that each applies in a separate situation.      He

argues that even if a jury was not convinced that a defendant

reasonably believed s/he was in imminent or immediate danger of

his or her life or great bodily harm from the victim (the

elements of self-defense under section 43), it might find that

the killing occurred through accident and misfortune and without

defendant's unlawful intent (the elements of excusable homicide

under section 926(1)) or that the killing occurred on sudden

combat where no dangerous weapon was used (the elements of

excusable homicide under section 926(2)).

           We agree that in light of the statutory definition of

excusable homicide, it is not duplicative of self-defense.     We

note that recently in Robinson, this court considered an appeal

by a Virgin Islands defendant charged with first degree murder

and convicted of voluntary manslaughter who argued that the

district court erred in refusing to instruct the jury regarding

self-defense and excusable homicide.   29 F.3d at 879.   After

deciding that the court should have instructed on self-defense,

we proceeded to consider whether the court should also have
instructed on excusable homicide.    Id. at 885.   If an excusable

homicide defense was encompassed within a self-defense

instruction, it is likely we would have ended our discussion.

The fact that we did not leads us to conclude that we regarded

excusable homicide as separate from self-defense.

          It is true that in Government of the Virgin Islands v.

Commissiong, 706 F. Supp. 1172 (D.V.I. 1989), the district court

held that a rational jury that rejected self-defense could not

acquit the defendant by finding excusable homicide.     Id. at 1189.

We do not read that holding, even if it were binding on us, to

suggest that a requested charge of excusable homicide is always

encompassed in a self-defense charge.    Instead, it was a holding

fact-specific to that case.   Nor do we hold today that a

defendant is entitled as a matter of law to an excusable homicide

charge irrespective of whether that defendant has sought and

received a self-defense charge.   We merely reject the suggestion

that an excusable homicide instruction is necessarily encompassed

within a self-defense instruction.

          We have held that it is not reversible error for the

district court to refuse to instruct on excusable homicide if an

element of that defense is missing.     See Government of the Virgin
Islands v. Knight, 989 F.2d 619, 632-33 (3d Cir.), cert. denied,

114 S. Ct. 556 (1993).   Therefore, the district court's failure

to instruct on excusable homicide in this case will be upheld if
there was no basis in the evidence from which a reasonable jury

could have found that defense.

           In Knight the defendant intentionally and repeatedly

hit the victim's head with a loaded .357 magnum pistol.

The defendant specifically requested the district court not to

instruct the jury regarding self-defense.   Id. at 632 n.7.

Instead, the defendant contended that the district court should

have instructed the jury on excusable homicide based on

defendant's testimony that the victim had grabbed his hand, which

held the pistol, and squeezed it, causing the gun accidentally to

discharge.   This court rejected the claim of error.   After

parsing the statutory definition of excusable homicide, we found

that even if the jury believed all of the defendant's testimony,

there was no evidence that he possessed a lawful intent as

required by the statute since he admitted that he was

intentionally assaulting the victim when the gun discharged.   Id.

at 632.   We rejected the contention that the defendant's intent

was lawful because he believed he was in danger, noting that it

was undisputed that the defendant initiated the confrontation.

We thus concluded, "[n]o evidence supports the conclusion that

Knight reasonably believed he was in imminent danger of harm when

he assaulted Miller."   Id. at 633.4

4
 . Isaac argues that self-defense and excusable homicide are not
the same defense because for self-defense a jury would have to
find, inter alia, that Isaac's fear of Soca was reasonable, that
the degree of force he used given the perceived threat was
reasonable and not excessive, and that he intended to use such
force to prevent imminent death or great bodily harm, whereas for
           In Isaac's case, the district court considered both

prongs of the excusable homicide defense and rejected the need

for an instruction on either.   The court reasoned that subsection

1 of section 926 (homicide "committed by accident and misfortune

. . .   and without any unlawful intent") was unavailable because

a jury that believed Isaac was committing a lawful act without

unlawful intent would find him not guilty under self-defense.     We

need not decide whether the district court's analysis was

correct.   But see Knight, 989 F.2d at 632 n.7 (noting the

"striking[]" similarity between defendant's argument that his

intent was lawful because he believed he was in danger and a

self-defense theory).   Instead, we conclude that there was

insufficient evidence of "accident and misfortune" to justify a

charge along those lines.   Isaac hypothesizes that as Soca was

coming towards him he could have "accidently [sic] and by

misfortune lost his balance and fell unto a knife that . . .

Isaac lawfully had in his hand."   Appellant's Supplemental

Memorandum at 5.   There is no evidence that the stab wound was

inflicted in this manner.   Instead, the pathologist testified

(..continued)
excusable homicide under V.I. Code Ann. tit. 14, § 926(1) all the
jury need find was that Isaac stabbed Soca by accident and
misfortune and had no unlawful intent. To the extent Isaac may
be suggesting that his intent could have been lawful even if his
perception of a threat was unreasonable, we note that in Knight
we specifically referred to a defendant's "reasonable" belief.
Because we conclude that Isaac was not entitled to the excusable
homicide instruction on other grounds, we need not decide whether
only a reasonable belief will support a finding of no unlawful
intent.
that the wound "went from front to back, and slightly downward."

App. at 214.   The district court is not required to give an

instruction based merely on speculation.

           The district court also held that Isaac was not

entitled to an excusable homicide instruction under subsection 2

because Isaac had caused Soca's death by use of a "dangerous

weapon," i.e. a knife.   In Robinson this court held that a

defendant who was convicted of voluntary manslaughter was not

entitled to an excusable homicide instruction because he had

struck the victim with a two-by-four plank, which we

characterized as a "dangerous weapon."    29 F.3d at 885-86.    We

noted that the Virgin Islands definition of excusable homicide

restates the common law and is similar to excusable homicide

statutes in other states, such as Florida, California and

Mississippi.   Id. at 885.   In those states "dangerous weapon" is

defined to mean any weapon that will ordinarily produce death or

serious injury, taking into account the manner in which it is

used.   Our decision in Robinson was filed after Isaac's original

brief in this case, and in light of that decision he concedes

that the knife used in this case may also be considered a

dangerous weapon and he was therefore not entitled to an

excusable homicide instruction under subsection 2.

           Turning to justifiable homicide, Isaac claims error in

the court's refusal to instruct under section 927(2)(A).       The

district court explained merely that a justifiable homicide
instruction would have been duplicative of and was contained

within the self-defense instruction.    In support of this ruling,

the government argues that self-defense under section 43 and

justifiable homicide under section 927(2)(C) are used

interchangeably by the Virgin Islands courts and do not differ as

applied to a homicide case.

            The government cites our decision in Government of the

Virgin Islands v. Smith, 949 F.2d 677 (3rd Cir. l991), as support

for the proposition that a trial court in the Virgin Islands is

not required to give separate instructions on self-defense and

justifiable homicide.     In Smith, we held that it was plain error

for the district court not to have instructed the jury that it

was the government's burden of proof to show absence of self-

defense.    Id. at 680.   In the course of reaching that holding we

commented that "[k]illing in self-defense is defined as lawful

and justifiable homicide" and cited both sections 927(2)(C) and

43.   Id.   We also cited section 928 which makes acquittal

mandatory when a homicide is justified.     Id.   See also Robinson,

29 F.3d at 882 (defining killing in self-defense as justifiable

homicide and citing both sections 927(2)(C) and 43).      We do not

read those passing references as dispositive of the issue before

us.   Smith did not consider the need for an instruction on
justifiable homicide as a statutory defense, since its discussion

was confined to the need to instruct on the burden of proof as to

self-defense.
          To be sure, there is considerable overlap between

self-defense and justifiable homicide.   Both entail a homicide

committed by the defendant when resisting action by the victim.

Isaac argues, however, that a plain reading of self-defense under

section 43 and justifiable homicide under section 927(2)(A)

demonstrates that they contain different elements.   He notes that

section 927(2)(A) states in the disjunctive that a homicide is

justifiable if committed by a defendant "when resisting any

attempt to murder . . ., or to commit a felony, or to do some

great bodily injury . . . ." (emphasis added).   Therefore, he

concludes that even if the defendant did not have reasonable

grounds for believing that the victim had put the defendant in

imminent or immediate danger to his or her life or great bodily

harm (the elements of self-defense), the jury could find that the

victim merely may have attempted to commit a different felony,

such as an assault.

          Although we do not agree with all of Isaac's suggested

distinctions between self-defense and justifiable homicide, it is

clear from the statutory language that some distinctions exist.5

On the one hand, we attribute to legislative oversight the fact

that section 927(2)(A) does not expressly require, as does


5
 . Compare, for example, the explicit requirement in section 43
that "[t]o justify a homicide on the ground of self-defense,
there must not be only the belief but also reasonable ground for
believing that at the time of killing the deceased, the party
killing was in imminent or immediate danger of his life or great
harm."
section 43, that the defendant have had "reasonable ground" for

believing that s/he was in imminent or immediate danger to be

relieved from responsibility for the homicide.    Nothing but

oversight could account for the fact that the comparable

provision in section 927(2)(C) specifies that the defendant is

relieved from responsibility only "when there is reasonable

ground to apprehend a design to commit a felony, or to do some

great bodily injury."   Moreover, the comparable California

justifiable homicide provision has been construed to require

reasonable belief by the victim of the threat.    See People v.

Ceballos, 526 P.2d 241, 246 (Cal. 1974).   We also hold that a

requirement of reasonable apprehension must be read into section

927(2)(A).

           On the other hand, certain differences in the scope of

self-defense and justifiable homicide in the Virgin Islands Code

remain.   We need note only two differences for this purpose.     The

self-defense provision applies only when a defendant was in

danger of his or her life or great bodily harm.   In contrast,

sections 927(2)(A) and 927(2)(C) are also available when the

defendant resisted any attempt or a design "to commit a felony."

Even if the felony referred to in sections 927(2)(A) and

927(2)(C) is construed as a violent felony,6 that provision is

6
 . Although Isaac discusses the "felony" which the defendant can
be resisting as if it must be an assault, nothing in the
statutory language confines the "felony" which can justify
homicide to a violent felony, an issue we do not have to resolve
under the facts of this case but which only magnifies our concern
about a broad interpretation of section 927. We note that in
plainly not as restrictive as is self-defense.   The other evident

difference is that the self-defense provision of section 43

applies only when the danger is to the party doing the killing

whereas section 927(2)(A) applies when the danger was to "any

person" and section 927(2)(C) applies when it was to certain

specified persons.

          We can see no reason why the Virgin Islands legislature

would have broadened the justifiable homicide defense far beyond

that of self-defense, to the point that some of the limiting

features of self-defense become nullities when compared with the

breadth of the justifiable homicide defense.   However, in light

of the clear statutory language we have no alternative but to

hold that a charge on self-defense is not in itself sufficient to

meet the district court's obligation to charge on each defense

requested.   Thus, we turn to an examination of the record to see

if there was a basis for the jury to find justifiable homicide

under section 927.

          Isaac argues that even if the jury did not believe that

he had a reasonable belief that he was in imminent or immediate

(..continued)
People v. Ceballos, 526 P.2d 241 (Cal. 1974), the court limited
the definition of "felony" in California's justifiable homicide
defense to resistance of "forcible and atrocious crimes,"
following the common law. Id. at 245. See Wharton's Criminal
Law § 129, at 200 (1994) ("It is justifiable to kill, if
reasonably necessary, to prevent the commission of a felony by
violence or surprise. Illustrative of the type of felonies
included are murder, rape, robbery, burglary and arson."). We
have previously noted that the Virgin Islands criminal code also
draws upon the common law. See Robinson, 29 F.3d at 885.
danger of his life or great bodily harm from Soca so as to

satisfy section 43 it still could have found that Isaac held the

reasonable belief that he was resisting an attempt by Soca to

commit the felony of assault under section 927(2)(A).    We agree.

It is not our function nor that of the district court to make

credibility determinations.   It follows that the court erred in

declining to instruct the jury on the availability of the

justifiable homicide defense.

            Isaac's requested instruction on V.I. Code Ann., tit.

14, § 41, resistance by a party to be injured (also called

"lawful violence"), stands in the same position as justifiable

homicide.   However, we have more directly applicable authority

for a holding as to the independent nature of defenses under

sections 41 and 43 of the Virgin Islands Code.   In Salem, a

defendant convicted of various assault charges alleged on appeal

that the district court erred in refusing his request to instruct

the jury on both self-defense and lawful violence under the

Virgin Islands Code provisions.   456 F.2d at 675.   This court

agreed, holding that if the jury accepted the defendant's

testimony that he did not intentionally fire at either of his

victims and that he made no effort to use his pistol until after

other shots were fired, both the self-defense and lawful violence

provisions of the Code would have been relevant to his defense.

Id.   We noted that other witnesses contradicted the defendant's
version of the shooting, but because there was a basis for the

requested instruction, it was error not to have given it.   Id.

          In this case, the testimony was sharply conflicting.

The jury could have believed the testimony of Isaac and Richards

that Soca punched Isaac before Isaac swung the kitchen knife or

the testimony of Soca's friends that Soca made no assaultive move

before the stabbing.   It follows that Isaac was entitled to a

jury instruction on both justifiable homicide and lawful

resistance to prevent an offense against his person.7




7
 . Isaac also contends that the prosecutor's summation
improperly impugned defense counsel and counsel's role at trial
and inflamed the jury's emotions. The government rejects the
characterization of the summation as improper and argues that
even if it were, it was not so extreme as to amount to reversible
error because of the context of the whole argument, the evidence
of guilt was otherwise strong, and the court's curative
instruction removed any prejudice. See United States v.
Zehrbach, Nos. 93-7477 & 93-7493, 1995 U.S. App. LEXIS 1304, at
*40 (3d Cir. Jan. 23, 1995) (three-part test for assessing
prejudice of prosecutorial misconduct). The government also
urges that its comments were made as an "invited response" to
defense counsel's style of cross-examination of witnesses and
comments on summation. The law is clear that a prosecutor must
not make unfounded and inflammatory attacks on the opposing
advocate. United States v. Young, 470 U.S. 1, 9 (1985). Because
of our decision to remand for a new trial, we need not decide
whether the comments were improper when evaluated in light of the
closing argument as a whole. See Government of the Virgin
Islands v. Joseph, 770 F.2d 343, 350 (3d Cir. 1985). We are
confident that the trial court will not permit any improprieties
on retrial.
                              III.

                           CONCLUSION

           For the reasons set forth, we will vacate the judgment

of conviction and remand for a new trial.
Government of the Virgin Islands v. Isaac, No. 93-7821


SCIRICA, Circuit Judge, concurring.


          It appears that in this type of case, in which the

defendant used deadly force in response to an attack or threat by

the victim,    the Virgin Islands statutory scheme on culpability -

- particularly the defense of justification -- renders a nullity

the limitations contained in the defense of self-defense.

Nevertheless, I agree that we must follow the statutory language

and reverse.

          Evidence that the victim was attempting to commit a

felony, pursuant to the justification defense, seemingly would

track the danger to life or great bodily harm requirement of

self-defense.8   Yet, self-defense requires that the defendant

reasonably believe he was in "imminent or immediate danger of his

life or great bodily harm" and that he not use more force than

8
 . The court's opinion suggests that a jury could find the
victim here was attempting to commit a felony other than an
attempt to murder or cause great bodily harm, such as an assault.
Yet, the definitions of those assaults classified as felonies in
the Virgin Islands Code bear a striking resemblance to attempts
to murder or cause great bodily harm. See V.I. Code. Ann. tit.
14, § 295 (1964) (defining assault in the first degree as
requiring "intent to commit murder," "intent to kill," or intent
to commit various other often-violent felonies); id. § 296
(defining assault in the second degree as attempts to injure by
poisoning or disfiguring another); id. § 297 (Supp. 1993)
(defining assault in the third degree as assaults, inter alia,
with intent to commit a felony, or with a deadly weapon, or by
means calculated to inflict great bodily harm, or which inflict
serious bodily injury).
necessary, V.I. Code Ann. tit. 14, § 43 (1964).   Because the

broader justifiable homicide defense does not so require, id. §§

927-28, the limitations on self-defense are left meaningless in

this type of case.   Although such a result seems incongruous, I

am hesitant to write in these restrictions to the statutory

definition of justifiable homicide.   Instead, I believe these are

policy decisions properly left to the legislature.9




9
 . See, e.g., Model Penal Code and Commentaries, art. 3
(Introduction), at 4 (1985) ("[T]here often was, and in some
states there still is, internal inconsistency of policy, as when
limitations on the privilege to kill in self-defense or in
defense of others are nullified by the breadth of the
justification recognized for crime prevention."); see also id. §
3.04, at 34, 37.
