Filed: Jul. 19, 1994
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 7-19-1994 Gov't of the Virgin Islands v. Robinson Precedential or Non-Precedential: Docket 93-7675 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Gov't of the Virgin Islands v. Robinson" (1994). 1994 Decisions. Paper 85. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/85 This decision is brought to you for free and open access by the
Summary: Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit 7-19-1994 Gov't of the Virgin Islands v. Robinson Precedential or Non-Precedential: Docket 93-7675 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994 Recommended Citation "Gov't of the Virgin Islands v. Robinson" (1994). 1994 Decisions. Paper 85. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/85 This decision is brought to you for free and open access by the O..
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Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
7-19-1994
Gov't of the Virgin Islands v. Robinson
Precedential or Non-Precedential:
Docket 93-7675
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Gov't of the Virgin Islands v. Robinson" (1994). 1994 Decisions. Paper 85.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/85
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0. 93-7675
GOVERNMENT OF THE VIRGIN ISLANDS
v.
ROBINSON, JACKSON, a/k/a
HUGHES, LAUREN LEWELL
Jackson Robinson,
Appellant
On Appeal From the District Court of the Virgin Islands
Division of St. Thomas and St. John
(D.C. Crim. Action No. 93-00066)
Argued April 21, 1994
BEFORE: STAPLETON, ALITO and WEIS, Circuit Judges
(Opinion Filed July 19, 1994)
Thurston T. McKelvin
Federal Public Defender
Stephen A. Brusch (Argued)
Asst. Federal Public Defender
P. O. Box 1327
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00804-1327
Attorneys for Appellant
Hugh P. Mabe, III
U.S. Attorney
James A. Hurd (Argued)
1st Asst. U.S. Attorney
U.S. Courthouse
5500 Veterans Drive, Suite 260
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802-6924
Attorneys for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Jackson Robinson killed Stedley Joseph on March 10,
1993 with a two-by-four he picked up while they were fighting.
Robinson was tried in the District Court of the Virgin Islands
for first degree murder. The jury convicted Robinson of the
lesser included offense of voluntary manslaughter. On appeal,
Robinson argues that the district court erroneously refused to
instruct the jury regarding the defenses of self-defense and
excusable homicide. Upon reviewing the evidence presented at
trial, we believe the district court should have instructed the
jury regarding the self-defense defense. We do not think the
district court erred, however, in refusing to instruct the jury
regarding excusable homicide.
I.
Robinson lived with his girlfriend Christabelle Joseph.
Christabelle was married to Stedley Joseph, the homicide victim,
but had been separated from him for two years and had filed for
divorce. Robinson and Christabelle had a newborn baby daughter
named Talicia. Robinson and Christabelle jointly cared for and
financially supported Talicia as well as three older children of
Christabelle's whom Stedley had fathered. Stedley did not
contribute to the care or support of his three children.
The unrebutted defense testimony established that
Stedley had a reputation for being violent and dangerous, and
that Robinson was aware of Stedley's reputation. Before
Christabelle and Stedley separated, Stedley had beaten
Christabelle. A 1990 domestic violence complaint Christabelle
filed against Stedley was entered into evidence, as was a 1991
restraining order against Stedley by the Territorial Court of the
Virgin Islands. The 1991 restraining order prohibited Stedley
"from having any further contact with [Christabelle] and from
going to or entering [Christabelle's] residence," and also
enjoined Stedley from "harassing, molesting, abusing, assaulting,
contacting or intimidating [Christabelle], or subjecting her to
any form of violence, including but not limited to assault and
battery." App. at 180-81.
The unrebutted testimony of Robinson, Christabelle, and
one of their neighbors also established that after Christabelle
became pregnant with Robinson's child, Stedley came continually
to the yard outside Robinson's and Christabelle's residence and
verbally harassed and threatened them. Stedley would try to
incite Robinson to argue or fight with him, but Robinson ignored
him. Stedley threatened to kill Robinson. Robinson stopped
walking the street at night because he feared Stedley. According
to Robinson: "Christabelle's mother and father tell me to stay
away from the man, because if he met me at night, he can do
anything." App. at 136. The latest Robinson would travel
outside was 7:00 p.m., and only on days when he performed
Christabelle's part-time job cleaning a dentist's office.
Christabelle had experienced birth-related health complications,
and, while she was recovering, Robinson performed her job after
finishing his own day job as a construction worker.
On Monday March 8, 1993, fifteen days after
Christabelle had given birth to Talicia, Stedley came to
Christabelle's and Robinson's residence while Robinson was not
home, and told Christabelle that he was going to kill her when he
met her on the road. Christabelle believed that Stedley would
try to carry out his threat. When Robinson came home, she and
Robinson went to the local police station, and filed a complaint
against Stedley.
Two days later, on Wednesday March 10, at 5:30 p.m.,
after Robinson completed his construction job, he set out to do
Christabelle's job at the dentist's office. Robinson took
Christabelle's and Stedley's seven-year-old daughter, Elaine,
with him. As Robinson and Elaine were walking, they met Stedley,
whom Robinson described as a much larger man than he. Robinson
testified that the following events then occurred.
Stedley spoke to his daughter Elaine, and told her to
come with him to Robinson's and Christabelle's residence.
Robinson told Stedley to leave Christabelle alone. Stedley then
said "I'm not in your place" and pushed Robinson with two hands
on Robinson's chest. Robinson understood Stedley's statement
"I'm not in your place" to mean that Stedley "was not at my yard
where he normally comes to make trouble." App. at 133.
Robinson moved back, but Stedley followed and pushed
him again the same way. Stedley put his hand near Robinson's
face, and Robinson was afraid that Robinson was going to "chock
in my eye." Robinson said "Don't jack [push] me," and grasped
Stedley's hand, "guiding" it "so he wouldn't chock in my face."
Robinson then turned to get away from Stedley, and Stedley
"grabbed" at him and "burst my watch off my hand." App. at 134.
Robinson stooped to pick up his watch, and while he was
standing back up, Stedley "jack[ed] [Robinson] again with his
left hand in [Robinson's] chest," causing Robinson to stumble.
Id. According to Robinson:
Where I was stumbling to fall, there was a
piece of stick. I took the stick, swing it
at the man to keep him off.
He didn't stop. He keep coming. This
time he dive to grab me on my waist. When I
swing again it hit him somewhere on his head,
on his shoulder, and he went down. That was
it.
. . . .
When I see the man fall, I drop the
wood. He didn't move. I drop the wood. A
police officer run down -- I was walking
away. The police officer tell me he is a
cop, lean up against a van.
. . . .
I only hit Mr. Joseph twice. He block
it once. I swing at him and he block. Mr.
Joseph figure he couldn't get on top of me
from blocking, so he dive to grab in my
waist, when I swing that way, and he come
down low, and the wood hit him on his head
and shoulder.
App. at 134-36.1
1
Robinson's trial testimony was consistent with a sworn statement
he dictated to an investigating police officer, Roy Moorehead, on
the night of the fight, and which Moorehead read aloud at trial.
Robinson's testimony that Stedley was the only one
doing any pushing, and Robinson's testimony that he hit Stedley
twice and then, after Stedley fell, that he dropped the two-by-
four and walked away, was contradicted by two government
witnesses. Reginald Francis testified that he saw the fight from
a distance of fifty-yards at a bar where he was having a
cocktail. Francis testified that he saw the two men pushing one
another. Francis also testified that after Robinson hit Stedley
twice and Stedley fell to the ground, Robinson stood over the
prone Stedley, hit him three more times in the head, and then ran
away. Francis, a health inspector and an auxiliary police
officer, then ran after Robinson and arrested him.
Lisa Babb, a high-school student who had been walking
to "fraternity stepping practice" also saw the fight. According
to Babb, both men had "pushed off each other." App. at 93. Babb
also testified that Robinson hit Stedley with the two-by-four
three times while Stedley was standing -- "really hard" the third
time on the back of Stedley's head. Stedley then fell and "hit
on the concrete." After falling, Stedley "didn't move at all.
. . . He couldn't move," but Robinson hit him two or three times
more around the neck and shoulder area. Robinson then "threw the
stick and . . . ran." App. at 88-89.
After the fight, Stedley was taken to St. Thomas
Hospital where he remained unconscious due to brain swelling. The
Moorehead testified that the sworn statement Robinson dictated to
him also was consistent with an account Robinson had given
Moorehead during an earlier discussion.
attending neurologist testified that it appeared that Stedley had
been struck at least once in the head and once in the shoulder.
"It is possible that he may have been struck more than once"
either on the head or the shoulder, the neurologist testified,
"but I would not be able to tell that." Stedley also was
bleeding from his nose and left ear, and had a "big scratch or
small cut, depending on how you want to look at it" on his left
leg. After three days, the neurologist determined that Stedley
was brain dead. With permission from Christabelle, the
neurologist tapered off Stedley's medication. After twenty-four
days, Stedley's heart stopped, and he was pronounced dead.
According to the neurologist, "[t]he blow to the head is what
caused him to die." App. at 39-42.
At Robinson's trial, the district court instructed the
jury that if it found that Robinson was not guilty of first
degree murder, it might still find him guilty of either of the
lesser-included offenses of second-degree murder or voluntary
manslaughter.2 Robinson had requested that the district court
2
Virgin Islands law defines murder as "the unlawful killing of a
human being with malice aforethought." V.I. Code Ann. tit. 14, §
921 (1964). First degree murder is
All murder which--
(1) is perpetrated by means of poison,
lying in wait, torture or by any other kind
of willful, deliberate and premeditated
killing; or
(2) is committed in the perpetration or
attempt to perpetrate arson, burglary,
kidnapping, rape, robbery or mayhem . . . .
instruct the jury regarding self-defense and excusable homicide,
but the district court did not give either of these instructions
to the jury. We have not found in the record an indication of
the district court's reasons for refusing to give the self-
defense instruction; it also appears that Robinson's request for
the instruction was not opposed by the prosecution at trial. We
think it likely that the district court refused to give the
excusable-homicide instruction because it believed a two-by-four,
as used by Robinson, was a "dangerous weapon" within the meaning
of the excusable-homicide statute and that this precluded that
statute's application.
II.
A defendant "is entitled to [a jury] instruction as to
any recognized defense for which there exists evidence sufficient
for a reasonable jury to find in his favor." Matthews v. United
States,
485 U.S. 58, 63 (1988). The government agrees with this
proposition, but contends that Robinson failed to present
evidence sufficient to justify either a self-defense or
excusable-homicide instruction under the laws of the Virgin
Islands.
A.
Virgin Islands law specifies that killing in self-
defense is lawful and justifiable homicide, and that self-defense
Id. § 922(a). Second degree murder is "All other kinds of
murder."
Id. § 922(b) (1964). Voluntary manslaughter is the
"unlawful killing of a human being without malice aforethought
. . . upon a sudden quarrel or heat of passion."
Id. § 924
(1964).
is a statutory right. Government of the Virgin Islands v. Smith,
949 F.2d 677, 680 (3d Cir. 1991); V.I. Code Ann. tit. 14,
§§927(2)(C), 928, 43 (1964). According to V.I. Code Ann. tit.
14, § 927:
Homicide is justifiable when committed by--
. . . .
(2) any person--
. . . .
(C) when committed in the lawful
defense 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, . . . if
he was . . . engaged in mortal combat, must
really and in good faith have endeavored to
decline any further struggle before the
homicide was committed.
Whether or not a defendant acted in self-defense hinges on the
defendant's subjective beliefs and the objective reasonableness
of these beliefs.
Smith, 949 F.2d at 684.
If the defendant had a reasonable ground to
believe and actually did believe that he was
in imminent danger of death or serious bodily
harm, and that deadly force was necessary to
repel such danger, he would be justified in
using deadly force in self defense, even
though it may afterwards have turned out that
the appearances were false.
Id. at 684-85. The right of self-defense, however, "does not
extend to the infliction of more harm than is necessary for the
purpose of defense." V.I. Code Ann. tit. 14, § 43 (1964).
Thus, self-defense is a recognized defense under Virgin
Islands law, and the court may not refuse a defendant's request
for a self-defense instruction when the evidence reveals a basis
for the defense.
Smith, 949 F.2d at 681 (citing Government of
the Virgin Islands v. Salem,
456 F.2d 674 (3d Cir. 1972)); see
also Smith at 684 ("[W]e believe that a fair reading of the
evidence reveals a plausible case for self-defense which,
combined with the possibility that the jury misallocated the
burden of proof [on the self-defense issue], requires that Smith
be accorded a new trial.").3
In Robinson's case, we think the record contained
evidence from which a reasonable jury could find that Robinson
acted in self-defense when he killed Stedley. Stedley had a
reputation for violence of which Robinson was aware. Stedley had
beaten Christabelle at least twice. Apparently angered by
Christabelle's pregnancy, he had continually come to Robinson's
residence, and harassed and threatened Robinson and his family,
even threatening to kill Robinson. Robinson refrained from
walking the streets at night for fear of Stedley. Two days
earlier, two weeks after Christabelle had given birth, Stedley
had threatened to kill Christabelle if he met her "on the road."
When Robinson met Stedley on the road, Stedley pushed
Robinson and told him "we are not at your place." In context,
Stedley's statement could reasonably be taken to imply that at
that moment Stedley felt less restrained about acting violently
3
As with other affirmative defenses in criminal cases, under
Virgin Islands law, once a defendant introduces evidence from
which the jury could find the elements of self-defense, the
prosecution has the burden of proving its absence beyond a
reasonable doubt.
Smith, 949 F.2d at 680.
than when he usually spoke to Robinson at Robinson's residence.
Robinson backed away, but Stedley pushed him again. Stedley put
his hand near Robinson's face in such a manner that Robinson
feared Stedley would "chock" him in his eye. Robinson tried to
get away from Stedley but Stedley grabbed him in such a manner
that Robinson's watch "burst" off his wrist. While Robinson was
picking up his watch, Stedley pushed him again, causing him to
stumble and fall. Robinson picked up a two-by-four near where he
fell and swung it at Stedley to keep him away. Stedley blocked
the two-by-four and kept coming. He dove at Robinson's waist,
and Robinson swung the two-by-four again, this time striking a
fatal blow.
If the jury believed Robinson's story, as it was
entitled to do, it reasonably could find that when Robinson
delivered the fatal "second-and-final blow" with the two-by-four,
he believed the blow was necessary to prevent Stedley from
causing him great bodily harm. It could also conclude that
Robinson's belief was reasonable under the circumstances.
The government offers three arguments why a self-
defense instruction would not have been appropriate.4 First, the
4
The government also cites four opinions upholding murder
convictions in trial courts that had refused to give self-defense
instructions. None of the cases is remotely comparable to this
one.
Whipple v. Duckworth,
957 F.2d 418 (7th Cir. 1992),
cert. denied,
113 S. Ct. 218 (1992), involved a juvenile who
killed his parents. Although the juvenile had suffered a
lifetime of daily abuse at his parents' hands, he did not claim
to have been in immediate danger when he killed them.
government argues that the testimony of Francis and Babb tended
to rebut Robinson's assertion that Stedley was the initial
aggressor, and also that Francis and Babb testified that Robinson
continued to strike Stedley with deadly force even after Stedley
no longer posed an imminent threat. We think the government is
correct that if things happened the way Francis and Babb said
they happened, a reasonable jury could not find that Robinson
killed Stedley in self-defense. But, whether things happened the
way Robinson said they did, or the way Francis and Babb said they
did, was for a properly instructed jury to decide.
In Government of the Virgin Islands v. Salem,
456 F.2d
674 (3d Cir. 1972), Salem was tried and convicted for criminal
assault and battery for shooting and wounding two people. Salem
requested a jury instruction based on the Virgin Islands Code
provisions on self-defense and lawful violence, but the district
In United States v. Garcia,
625 F.2d 162 (7th Cir.
1980), cert. denied,
449 U.S. 923 (1980), the three defendants
testified that the victim started a fight with them. However, as
their testimony is recounted in the Court of Appeals' opinion,
the defendants apparently did not dispute eyewitness accounts and
medical evidence that after the initiation of the altercation,
the defendants chased the victim down a hallway, caught him, held
him down, and stabbed him forty-seven
times. 625 F.2d at 165,
169.
In United States v. Crowder,
543 F.2d 312 (D.C. Cir.
1976), cert. denied,
429 U.S. 1062 (1977), the defendant did not
testify that he shot the victim in self-defense; rather, he
denied shooting the victim at all.
United States v. Wagner,
834 F.2d 1474 (9th Cir. 1987),
denial of post-conviction relief aff'd,
5 F.3d 544 (9th Cir.
1993), cert. denied,
114 S. Ct. 1110 (1994), involved a defendant
who had "steadfastly" claimed that his killing of a fellow prison
inmate was an accident that occurred while the defendant was
unlawfully resisting a prison
guard. 834 F.2d at 1486-87.
court refused his request. At trial, Salem had presented an
"amorphous
defense." 456 F.2d at 675. Nonetheless, we were
"persuaded that if the jury accepted [Salem's] testimony, the
self-defense and lawful violence provisions of the Code would
have been relevant."
Id.
Although other witnesses contradicted
[Salem's] version of the shooting, [Salem's]
credibility nevertheless was for the jury,
United States v. Barber,
442 F.2d 517, 522
(3d Cir. 1971), and there being a basis in
his testimony for the application of the
self-defense doctrine, the instructions
should have been submitted as requested.
Under such circumstances, "it is not the
province of the court to accept or reject
testimony tending to establish self-defense,"
United States ex rel. Crosby v. Brierly,
404
F.2d 790, 801 (3d Cir. 1968).
Id.
The government's second argument is that even if
Robinson's account is assumed to be true, his account could not
convince a reasonable jury that he actually believed he was in
imminent danger of serious bodily harm. The government belittles
the seriousness of Stedley's behavior, stating that Stedley's
pushing Robinson, grabbing his arm, and trying to tackle him were
"hardly life-threatening actions." V.I. Br. at 10. The
government, however, ignores the context of Stedley's actions.
Specifically, it ignores: (1) that Stedley had a reputation for
violence and had previously beaten Robinson's girlfriend, (2)
that Stedley had previously threatened to kill Robinson, (3) that
Robinson would not go out at night for fear of meeting Stedley,
(4) that two days earlier Stedley had threatened to kill
Robinson's girlfriend if he met her "on the road," (5) that
Robinson and his girlfriend had taken the threat seriously and
had reported it to the police, and (6) that Robinson had just met
Stedley "on the road" and that Stedley had threateningly reminded
him that they "were not at Robinson's place."
The government also contends that a self-defense
instruction would have been inappropriate because "[a]t no time
. . . did [Robinson] ever indicate that he was in fear of death
or serious bodily injury during the incident." V.I. Br. at 10
(emphasis in original). We disagree. According to the trial
transcript, Robinson testified that he was afraid that Stedley
was going to "chock" him in the eye. While he did not explain
specifically what he meant by "chock,"5 we think a reasonable
jury could conclude from the context that Robinson feared being
gouged in the eyes with sufficient force to cause them
substantial injury.
More importantly, we cannot agree with the government
that an instruction on self-defense should be given only where
the defendant expressly states on the witness stand that he
possessed a fear of serious bodily injury. We think Robinson's
testimony that Stedley had threatened to kill him, that Robinson
took the threat seriously enough to stop walking the streets at
night, that Stedley was much larger than Robinson, and that
Stedley had suddenly come upon Robinson, pushed him, prevented
5
A glossary of Virgin Islands dialect states that the verb
"chook," pronounced choke, means "to puncture, jab, pierce, prod,
or prick" or "to receive an injection." Lito Valls, What a
Pistarckle!: A Glossary of Virgin Islands English Creole (lst ed.
1981).
his withdrawal and was lunging in an effort to tackle him,
provides a sufficient basis for a jury to find that Robinson was
in fear of serious bodily injury during the attack.
Third, the government argues that even assuming
Robinson's account were true, and even assuming Robinson feared
serious injury, Robinson's use of the two-by-four when both men
were unarmed was "unreasonable and excessive and invalidated his
self defense claim under Virgin Islands law." V.I. Br. at 10,
citing Government of the Virgin Islands v. Frett,
14 V.I. 315
(1978). The government is correct that under Virgin Islands law
no more force may be used in self-defense than is reasonably
necessary to repel imminent danger. However, as the case cited
by the government correctly states, "[w]hether the force used
. . . is excessive is a question of fact and depends upon the
circumstances of each case."
Frett, 14 V.I. at 323. We think a
reasonable jury could find that Robinson's use of the two-by-four
was reasonably necessary under the circumstances.
Robinson testified that he backed away from the much
larger Stedley but that Stedley kept coming. When Stedley pushed
Robinson and Robinson fell, the two-by-four was the only means at
hand by which Robinson could keep Stedley away. After Robinson
swung the two-by-four at Stedley the first time, Stedley blocked
it and tried to tackle Robinson. A reasonable jury might well
think that the failure of Robinson's first blow to deter
Stedley's continuing advance demonstrated the necessity of his
second, apparently fatal, blow.6
B.
6
We do not understand the government to urge that use of a deadly
weapon against an unarmed assailant necessarily precludes a self-
defense instruction. Since serious bodily injury and even death
can be inflicted by an unarmed assailant, the law of self-defense
recognizes that use of a deadly weapon to deter such an assailant
is justified where there is a reasonable fear of such injury. As
the court put it in People v. Estes,
469 N.E.2d 275 (Ill. App.
Ct. 1984):
[T]he law does not require that the aggressor
be armed in order that the use of a deadly
weapon in self-defense be justified. Where
it is clear that the aggressor is capable of
inflicting serious bodily harm on the
defendant without the use of a deadly weapon,
and it appears that he intends to, then it is
not necessary that the aggressor be armed for
the defendant to employ deadly force in self-
defense. . . .
. . . .
. . . When one is threatened by a person
who carried out his threats on a previous
occasion, he does not have much time to
reason out his response or judge precisely
how much force is necessary to repel the
threatened attack. . . . The question in a
case such as this is whether on the basis of
quickly unfolding events the defendant's
response was reasonable under the exigencies
that existed at the moment.
Id. at 283-84 (citations and quotations omitted).
The Virgin Islands statutory definition of excusable
homicide reads as follows:
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.
V.I. Code Ann. tit. 14, § 926 (1964). Because the undisputed
facts of Robinson's case are inconsistent with paragraph (1) and
because we think Robinson admitted using a "dangerous weapon"
within the meaning of this statute, we conclude that the trial
evidence provided no basis for a jury instruction regarding
excusable homicide.
The Virgin Islands excusable-homicide statute does not
define "dangerous weapon," nor does any judicial precedent give
further content to the term as it is used in that section. We
find assistance, however, in the fact that the Virgin Islands'
statutory definition of excusable homicide, as well as its
definition of justifiable homicide, appear to be a restatement of
the common law. See Richard Singer, The Resurgence of Mens Rea:
II-Honest But Unreasonable Mistake of Fact in Self Defense, 28
B.C. L. Rev. 459, 472 (1987). Not surprisingly, therefore, the
Virgin Islands' excusable-homicide statute is quite similar to
excusable-homicide statutes in several states, some of whose
courts have addressed the meaning of "dangerous weapon" in those
statutes.
The states of California, Florida, and Mississippi, for
example, have statutory definitions of excusable homicide
identical or virtually identical to that of the Virgin Islands.
See Cal. Penal Code § 195 (West 1988); Fla. Stat. Ann. § 782.03
(West 1992); Miss. Code Ann. § 97-3-17 (1972). The Florida
Supreme Court construes "dangerous weapon" as it is used in
Florida's statute to mean "any weapon that, taking into account
the manner in which it is used, is likely to produce death or
great bodily harm." State v. Smith,
573 So. 2d 306, 310 (Fla.
1990). Similarly, the Mississippi Supreme Court has construed
the term "dangerous weapon" in a predecessor to the current
Mississippi statute to mean a weapon "used with such violence as
would ordinarily result in the infliction of serious injury."
Ayers v. State,
60 Miss. 709, 713 (1883) (ruling that a "billet
of wood" was a dangerous weapon when used to strike the deceased
in the head and therefore precluded an excusable-homicide jury
instruction). See also People v. Dugger,
4 Cal. Rptr. 388, 393
(Cal. Dist. Ct. App. 1960) (bar stool was "dangerous weapon" as
used, and precluded excusable-homicide instruction). The Florida
and Mississippi definitions also comport with the common law
definition of a deadly weapon in the related context of the
"deadly weapon doctrine." See Wayne R. LaFave & Austin W. Scott,
Jr., Handbook on Criminal Law (1972).
A deadly weapon is one which, from the manner
used, is calculated or likely to produce
death or serious bodily injury. Thus whether
a weapon is deadly depends upon two factors:
(1) what it intrinsically is and (2) how it
is used. If almost anyone can kill with it,
it is a deadly weapon when used in a manner
calculated to kill. Thus the following items
have been held to be deadly weapons in view
of the circumstances of their use: . . . iron
bars, baseball bats, bricks, rocks, ice
picks, automobiles, and pistols used as
bludgeons.
Id. at 537 (footnotes and quotation omitted).
We think it is reasonable and appropriate in construing
the term "deadly weapon" in the Virgin Islands' excusable-
homicide statute to adopt the Florida and Mississippi courts'
construction of their states' excusable-homicide statutes.
Adopting their definitions, we do not think it is difficult to
determine whether Robinson's use of the two-by-four constituted
use of a "deadly weapon." When Robinson picked up the two-by-
four and swung it at Stedley, it became a weapon which was likely
to cause death or serious bodily injury. Therefore, we hold that
the district court did not err in refusing to instruct the jury
regarding the defense of excusable homicide.
III.
We will reverse the judgment of the district court and
remand the case for a new trial.