No. 94-1666

In The Supreme Court of The United States

OCTOBER TERM, 1994

LYNDON B. FREDERICK, PETITIONER

v.

GOVERNMENT OF THE VIRGIN ISLANDS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREW S. DAYS, III
Solicitor General

JO ANN HARRIS
Assistant Attorney General

DEBORAH WATSON
Attorney

Department of Justice
Washington, D.C. 20530
(202)514-2217

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     QUESTIONS PRESENTED

1. Whether the district court was required to sup-
press a loaded firearm that the police found in peti-
tioner's bedroom closet after petitioner called the
police to his home to report a shooting.
2. Whether the prosecutor made improper use
of illegally obtained evidence during his cross-
examination of petitioner.
3. Whether the district court correctly instructed
the jury on excusable homicide under Virgin Islands
law.

(I)

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TABLE OF CONTENTS

Opinion below . . . . 1 
Jurisdiction . . . . 1 
Statement . . . . 1 
Argument . . . . 10 
Conclusion  . . . . 18
   
  TABLE OF AUTHORITIES

Cases:

Arizona V. Hicks, 480 U.S. 321 (1987)  . . . .13 
Government of the Virgin and V. Smith, 949
  F.2d 677 (3d Cir. 1991)  . . . . 17
Horton V. California,  496 U.S. 128 (1990)  . . . .13 
Illinois V. Andreas, 463 U.S. 765 (1983)  . . . . 13    
Maryland V. Buie," 494 U.S. 325 (1990) . . . .13, 14
Murray v. United States, 487 U.S. 544 (1988) . . . . 10, 15
Nix V. Williams, 467 U.S. 431 (1984) . . . .  10
United Mutes V. Boatwright, 822 F.2d 862
  (9th Cir. 1987) . . . . 12
United States V. Buchanan, 910 F.2d 1571 (7th Cir.
  1990) . . . .  11
United States v. Cherry, 759 F.2d 1196 (5th Cir.
  1985) . . . . 11
United States V. Ford, No. 94-3057 (D.C. Cir. June
  9, 1995) . . . . 14
United States V. Herrold, 962 F.2d 1131 (3d Cir.),
  cert. denied, 113 S. Ct. 421 (1992) . . . .12
United States V. Johnson, 22 F.3d 674 (6th Cir.
  1994) . . . . .11
United States V. Lopez, 989 F.2d 24 (lst Cir.), cert.
  denied, 114 S, Ct. 201 (1993) . . . . 13, 14
United States V. Silvestri, 787 F.2d 736 (lst Cir.
  1986) . . . . 11

Constitution and statutes:

U.S. Const. Amend. IV  . . . . 14
V.I. Code Ann. tit. 14 (1964):
   921 . . . . 2

            (III)

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Iv

Statutes-Continued:             Page

 922 (b)  . . . .  2
 1508  . . . .2
 2253 (b) (SUPP. 1994)  . . . . 2
2253 (d) (Supp. 1994) . . . . 2

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

No. 94-1666

LYNDON B. FREDERICK, PETITIONER

      v.

GOVERNMENT OF THE VIRGIN ISLANDS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

       OPINION BELOW

The order of the court of appeals (Pet. App. 3a-5a)
is unpublished, but the judgment is noted at 46 F.3d
1116 (Table).

       JURISDICTION

The judgment of the court of appeals was entered
on December 16, 1994. A petition for rehearing was
denied on January 13, 1995. Pet. App. la-2a, The
petition for a writ of certiorari was filed on April 11,
1995. The jurisdiction of this Court is invoked under
28 U.S.C. 1254 (1).

        STATEMENT

Following a jury trial in the United States District
Court for the District of the Virgin Islands, peti-
      
   (1)

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2

tioner was convicted of second degree murder, in
violation of V.I Code Ann. tit. XIV, 3921, 922(b)
(1964) (Count 1); unlawful possession of a machine
gun (a Glock semi-automatic pistol), in violation of
V.I. Code Ann. tit. XIV, 2253(b) and (d) (Supp.
1994) (Count 2) ; and obstruction of justice, in viola-
tion of V.I. Code Ann. tit. XIV, 1508 (1964)
(Count 5). He was sentenced to 40 years' imprison-
ment. The court of appeals affirmed. Pet. App. 3a-
5a.
 1. In the morning of August 13, 1992, petitioner
telephoned the police to report a shooting at his home
in St. Croix, Virgin Islands. 11/5/93 Tr. 5. 1 When
Officers Benjamin Rios and Darius George arrived at
the scene, petitioner met them outside the house and
told them that he had shot his girlfriend, 1    Tr. 27-29.
Petitioner then led the officers inside the house and
pointed them to the bedroom. Id. at 29, 53. As the
officers walked through the main part of the house
to petitioner's apartment, Officer George saw" a Smith
& Wesson nine-millimeter handgun and a magazine
clip on a table just outside petitioner's bedroom.
12/20/93 Tr. 29, 32, 44, 47.
When the officers entered the bedroom, they saw
petitioner's mother, sitting on the bed and cradling
the head of petitioner's girlfriend, Kemba Hendricks,
who had been shot beneath the left eye. 1 Tr. 29-30,

___________________(footnotes)

1 The suppression hearing was conducted on November 5,
November 8, and December 20, 1993. Trial was conducted
from December 22 to December 27, 1993. Numerical refer-
ences to volumes of the transcript refer to the transcript of
the trial. "3.4 Tr." and `(3B Tr." refer to the transcripts of
the December 22, 1993, morning and afternoon trial proceed-
ings, respectively.

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33-34, 56. Petitioner told the officers that a gun had
accidentally discharged when he leaned over to kiss
Hendricks. Officer Rios asked petitioner what, weapon
had discharged.  Petitioner replied, "with this,"
grabbed the Smith & Wesson handgun from the table
and attempted to throw the gun out the door. Officer
Rios seized the weapon, and Officer George seized
the loaded magazine clip from the table. Petitioner
was taken outside the house and handcuffed. 1 Tr.
30-31,36-37,43-44,46, 48,56-57, 59.
As petitioner was being handcuffed, other officers
arrived and entered the bedroom. 1 Tr. 58-59; 2 Tr.
5-6. Forensic Investigator Jonathan Hitesman found
a spent shell casing from a nine-millimeter weapon
underneath the bed. 11/8/93 Tr. 2, 4. After looking
at the shell casing, Hitesman concluded that it had
been fired from a Glock firearm, and not from peti-
tioner's Smith & Wesson handgun. Hitesman ob-
served that the shell casing had a "dug-in groove"
peculiar to Glock weapons, and not the "smooth round
impression" made by other weapons. Id. at 4-6,
13-14,17.
Officer James Rhymer observed a rifle butt resting
on the shelf of an open closet, about four to five
feet from the bed. The rifle butt was flush with the
edge of the shelf, which was approximately six to
seven feet high. When Rhymer stood on a chair to
inspect the rifle, he saw something underneath a box
on the shelf on the other side of the closet. 11/5/93
Tr. 61-63, 70, 72; 12/20/93 Tr. 3. Rhymer lifted
the box, retrieved a weapon from underneath the box,
and handed the weapon to Hitesman, who saw that
it was a nine-millimeter Glock semi-automatic pistol,
loaded with a magazine clip containing six bullets,

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one of which was in the firing chamber. Id. at 7-11,
13. The police also found a sawed-off shotgun in a
boarded-up cabinet next to the stove in the kitchen
(11/5/93 Tr. 16-18) and ammunition for the shot-
gun in a kitchen drawer (id. at 20-21; 11/8/93
Tr. 18; 12/20/93 Tr. 14).
While the police were present in petitioner's apart-
ment, petitioner's mother went "back and forth"
between the apartment and the main part of the
house, to which the apartment was attached. 11/5/93
Tr. 74-75; 11/8/93 Tr. 11-12, 14-15. Petitioner's
mother was "in and out" of the apartment while the
police were searching but made no objection to the
search. 11/8/93 Tr. 15.
At the police station, petitioner was advised of
his Miranda rights and, after signing a written
waiver, told the police that the gun had discharged
accidentally. He stated that, after dressing on the
morning of August 13, he retrieved his Smith &
Wesson pistol, for which he had a license, from under-
neath the mattress. He then reached over the bed
to give Hendricks a kiss and to tell her that he was
leaving, when the gun accidentally went off. 1 Tr.
70-80. In a subsequent videotaped statement, peti-
tioner told the police that Hendricks had been lying
on her left side facing him when he leaned over to
kiss her. 3A Tr. 80; 3B Tr. 85. Petitioner demon-
strated Hendricks's position, and indicated that her
right hand had been only a few inches from her
head. 2 Tr. 219-.221, 222-223. Petitioner repeated
his earlier statement that he shot Hendricks with the
Smith & Wesson, and he denied owning any other
weapons. 3B Tr. 129-130.

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2. Before trial, petitioner moved to suppress the
weapons and ammunition seized during the search of
his apartment. The district court suppressed the
rifle, the sawed-off shotgun, and the shotgun ammu-
nition, but denied the motion to suppress the Smith
& Wesson, the Glock, and the shell casing found
underneath the bed. Pet. App. 10a-1la, 12a-15a.
The court first found that the police were lawfully
on the scene of the homicide, having been called there
by petitioner, and were therefore entitled to seize
evidence in plain view, including the Smith & Wesson
and the shell casing. Id. at 12a-13a. The court then
ruled that the sawed-off shotgun was not in plain
view, because it had been necessary for the police to
pry off the cover of a recessed compartment to see it
(id. at 13a), and that the rifle found on the closet
shelf, although "borderline," was also not in plain
view because it was necessary to pull it out further
from the shelf to photograph it (ibid.). The court
also held that the Glock was not in plain view, "since
it was hidden under a box and under some clothing
cm top of a closet." Ibid. The court further found
that neither petitioner nor his mother had expressly
or impliedly consented to the search for the weapons,
except for the Smith & Wesson. Id. at 13a-14a.
The district court ruled, however, that the Glock
should not be suppressed, because it inevitably would
have been discovered lawfully. The court reasoned
that, once Officer Hitesman concluded that the Smith
& Wesson tendered by petitioner as the weapon used
in the shooting did not match the spent shell casing
found underneath the bed, the police knew that some
other weapon used in the homicide was still in peti-
tioner's apartment. Pet. App. 14a-15a. Accordingly,
the court concluded, the police "had an open and shut

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motive" for obtaining a warrant, and "would have
had open and shut grounds to be issued a search
warrant." Id. at 15a. The court also noted that, be-
cause the police had secured the crime scene, "it
would not have been possible for anybody to remove
the weapon before they came back with a warrant."
Ibid. Accordingly, the court held that the police
would have inevitably found the Glock pistol during
the course of a search with a warrant. Ibid.
3. a. At trial, the evidence established that Hen-
dricks was killed with a bullet from a nine-millimeter
Glock pistol, and that the bullet casing found under-
neath the bed had come from a nine-millimeter Glock
pistol. 2 Tr. 118-125. Forensic pathologists testified
that Hendricks sustained a gunshot wound on the
left side of her nose, and that the gun was fired from
a distance of approximately two feet from her face.
3A Tr. 27-28, 36-37, 45-46. The evidence also estab-
lished that Hendricks was seated on the bed at the
time she was shot, with her right arm extended for-
ward in f rent of her face, and (based on the soot
marks on Hendricks's palm) that her hand was close
to the muzzle of the gun at the time it was fired-
either hitting the barrel or grabbing and holding it.
2 Tr. 82-83; 3A Tr. 38, 44-45, 49-52, 82-84.
Petitioner testified in his own defense. He claimed
that he had acquired the Glock pistol one week before
the shooting and had hidden it under the mattress.
3B Tr. 120-126, 144. He testified that, on the morn-
ing of the shooting, he rose at approximately 7:30
a.m., showered, and dressed. Because Hendricks ear-
lier had told him that she planned to clean up the
apartment that day, and because he did not want her
to find the Glock while she was cleaning, he removed
it from underneath the mattress of the bed, intending

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to secure it in the closet. Id. at 66-68, 145-146, 147-
148. Before doing so, he leaned over Hendricks, who
was asleep, to kiss her. Id. at 69-71. As he leaned
over the bed, the gun accidentally discharged. Id. at
69-73, 151-156. He stated that, when he realized that
Hendricks had been shot, he moved her to a sitting
position on the bed and telephoned for an ambulance
and the police. Id. at 73-74. He then picked up the
Glock and placed it on the shelf where he had origi-
nally intended to put it. He claimed that he hid the
Glock because he had no license for it. 4 Tr. 20,
24-25.
b. During cross-examination, the prosecutor asked
petitioner whether he had weapons other than the
Glock pistol in his apartment on August 13. 3B Tr.
126. The district court sustained an objection to that
question, Id. at 127. At a sidebar conference, the
prosecutor explained that he intended to impeach
petitioner with evidence of the suppressed rifle and
shotgun if petitioner denied possessing other guns.
Defense counsel objected that he had not touched on
the area during his direct examination of petitioner.
The court again sustained the objection to the prose-
cutor's question, but did not prevent the prosecutor
from cross-examining petitioner concerning his post-
arrest statement to the police. Id. at 127-129.
Petitioner admitted, under cross-examination, that,
in his videotaped statement to the police, he falsely
stated that he had shot Hendricks with his Smith &
Wesson and that he owned no other weapons. 3B Tr.
129. The following exchange occurred:
Q. That wasn't true because you had the Glock;
correct ?
A. It wasn't true because I know when the
police had came to the scene that what I would

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have been getting in trouble for was the Glock,
so, yes it wasn't the Glock I said.
Q. That's not my question. My question is when
you were asked by the police officer, Ramirez, do
you own any other weapons, your answer was
no; correct ?
A. That was in the video statement.
Q. Yes, sir, and your answer was no?
A. Yes.
Q. And it was not true because you did own
other weapons ?
A. Yes.
Q. Weapons other than this Glock at issue right
now?
A. Yes.
Q. What other weapons did you own?
A. I had an antique rifle and an old shotgun.
	*	*	*	*
Q. So when you told Officer Ramirez no, you
had no other weapons beside your  Smith & Wes-
son, in fact you had three other weapons; correct?
A. Yes, I did.

Id. at 129-130, 132. Defense counsel did not object
to that questioning.

c. The district court charged the jury that, to es-
tablish second-degree murder, the government was
required to prove that petitioner unlawfully caused
Hendricks's death, and that he acted willfully and
with malice aforethought. 6 Tr. 95-98. The court
instructed the jury that "malice aforethought" meant
"either an intent, at the time of the killing, willfully
to take the life of a human being, or an intent will-

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9

fully to act in callous and wanton disregard of the
consequences to human life." Id. at 96. The court
further instructed the jury as follows:

Homicide, that is to say, the killing of another
person, is excusable under the law of the Virgin
Islands when committed by accident and mis-
fortune, or in doing any lawful act by lawful
means, with usual and ordinary caution, and
without any unlawful intent.

Id. at 98. Petitioner did not object to that charge: 2 

4. On appeal, petitioner argued, inter alia, that
the Glock should have been suppressed as the fruit of
an illegal search, and that the district court had er-
roneously applied the inevitable discovery exception
to the exclusionary rule; that the district court had
improperly allowed the government to cross-examine
him concerning his possession of the sawed-off shot-
gun and the rifle; and that the district court had
improperly failed to instruct the jury as to the bur-

___________________(footnotes)

2 Petitioner had requested that the district court give the
following charge to the jury (C.A. App. 642-A):

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 provo-
cation, or upon a sudden combat, when no undue advan-
tage is taken, nor any dangerous weapon used, and when
the killing is not done in a cruel or unusual manner.

That instruction was not included in the jury instructions
as proposed by the court. Petitioner's counsel was invited
to comment on the proposed instructions, and, during the
charge conference, expressed satisfaction with them. C.A.
Supp. App. 531.

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den of proof on excusable homicide. The court of
appeals summarily affirmed petitioner's convictions.
Pet. App. 3a-5a.

        ARGUMENT

1. Petitioner contends (Pet. 9-13) that the dis-
trict court should have suppressed the Glock as the
fruit of a warrantless search, and that it erred in
relying on the "inevitable discovery" exception to the
exclusionary rule in ruling that the gun was admis-
sible. Further review of those contentions is not
warranted.
a. The inevitable discovery doctrine permits illeg-
ally seized evidence to be admitted at trial if the
government establishes "that the information ulti-
mately or inevitably would have been discovered by
lawful means." Nix v. William, 467 U.S. 431, 444
(1984) ; see Murray v. United States, 487 U.S. 533,
539 (1988). In this case, the trial court noted that
the police had secured petitioner's apartment after
the murder; that they possesed information indicat-
ing that the weapon used in the murder was still in
that apartment; that they had clear reason to seek
a search warrant, to find the murder weapon; and
that they had sure grounds for obtaining a warrant
upon application. Based on those facts, the district
court held that the discovery of the Glock during a
warrant-authorized search would have inevitably oc-
curred in the course of the investigation. Pet. App.
15a.
 Petitioner challenges that conclusion, arguing
(Pet. 11) that, " [i]f the trial court's logic is accepted
by this Court, [a] law enforcement office [r] will
never have reason to obtain a warrant" whenever he
"has satisfied himself that he has probable cause to

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search." But in affirming the judgment, the court of
appeals did not expressly rely on the inevitable dis-
covery rationale and did not explicate the factors
that entered into its rejection of petitioner's claims
that "the [trial] court (a) erroneously applied the
inevitable discovery exception to the exclusionary rule;
and, (b) impermissible received into evidence * * * a
.9mm semi-automatic Glock pistol recovered during
an illegal search of [petitioner's] apartment." Pet,
App. 4a. Rather, the Third Circuit summarily af-
firmed petitioner's convictions, and its ruling there-
fore does not establish precedent in that circuit on
the inevitable discovery issue.
There is some disagreement among other courts of
appeals about the circumstances in which the inevita-
ble discovery doctrine may be invoked to admit evi-
dence seized during an unlawful, warrantless search
when it is certain that a warrant would have been
issued had it been sought. Compare, e.g., United
States v. Buchanan, 910 F.2d 1571, 1574 (7th Cir.
1990) (affirming admission of evidence under in-
evitable discovery doctrine when warrant could have
been obtained ) with United States v. Johnson, 22
F.3d 674, 683 (6th Cir. 1994) (rejecting applica-
tion of inevitable discovery doctrine). See also
United States v. Cherry, 759 F.2d 1196, 1205-1206
(5th Cir. 1985) ("prosecution must demonstrate
both a reasonable probability that the evidence would
have been discovered in the absence of police miscon-
duct and that the government was actively pursuing
a substantial alternate line of investigation at the
time of the constitutional violation") ; United States
v. Silvestri, 787 F.2d 736, 742-746 (1st Cir. 1986)
(rejecting firm requirements for application of the
inevitable discovery doctrine, but suggesting in dicta

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12

that if no warrant was obtained, active pursuit of
one might be required), cert. denied, 487 U.S. 1233
(1988) ; United States v. Boatwright, 822 F.2d 862,
864-865 (9th Cir. 1987) (suggesting case-by-case
approach to the issue, with background presumption
that "the doctrine requires that the fact or likelihood
that makes the discovery inevitable arise from cir-
cumstances other than those disclosed by the illegal
search itself" ).
The Third Circuit has not spoken to this issue. In
United States v. Herrold, 962 F.2d 1131, cert. denied,
113 S. Ct. 421 (1992), the Third Circuit concluded
that "an inevitable discovery analysis is inappro-
priate" when the police have seized evidence, pur-
suant to a warrant after having previously observed
that evidence during an illegal warrantless search.
962 F.2d at 1139; see also id. at 1143 n.12. Rather,
the court ruled the evidence admissible under the
separate, but related, "independent source" doctrine.
Ibid. It therefore remains unclear how the Third
Circuit. would apply the inevitable discovery doctrine
in a case in which a warrant was not issued after the
initial unlawful search. And because the court did
not provide an analysis of that doctrine here (or
expressly rely upon it), this Court's review of the
issue in this case is not warranted.
b. Review is not warranted in any event because
the warrantless seizure of the Glock did not violate
the Fourth Amendment irrespective of the inevi-
table discovery doctrine, and therefore the district
court did not err in admitting the Glock into evi-
dence. Although the district court rejected the gov-
ernment's argument on this point, the record indi-
cates that the Glock was in plain view. The officers
had been called to the scene to investigate a shooting

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and were lawfully on the premises when Officer
Rhymer observed, in plain view, a rifle resting on the
closet shelf. 3 Rhymer was therefore justified in
standing on a chair to examine and seize the rifle.
See Horton v. California, 496 U.S. 128, 136-137
(1990); Illinois v. Andreas, 463 U.S. 765, 771
(1983). Once he stood on the chair, he was also able
to see something at the other end of the closet, under-
neath a box, that "made [him] lift th[e] box"
(11/5/93 Tr. 72); he observed that "someone had
lifted the box and put [the Glock] under the box"
(id. at 70). Thus, although the Glock was under-
neath a box, Officer Rhymer was able to see it from
his position in the closet, and he properly seized the
Glock under the "plain view" exception to the war-
rant requirement. Arizona v. Hicks, 480 U.S. 321,
326-329 (1987).
Moreover, even accepting the district court's hold-
ing that the Glock was not in plain view, the Fourth
Amendment was not violated because the police were
justified in conducting a limited search of the bed-
room for a loaded firearm that could have presented
a serious danger to their safety. Cf. Maryland v.
Buie, 494 U.S. 325, 327 (1990) ; United States v.
Lopez, 989 F.2d 24, 27 (1st Cir. ), cert. denied, 114
S. Ct. 201 (1993). After Investigator Hitesman
examined the spent shell casing and concluded that
it could not have come from the Smith & Wesson

___________________(footnotes)

 The district court's ruling that the rifle was not in plain
view because it had to be pulled further out from the shelf
to be photographed is plainly erroneous. Officer Rhymer's
testimony established that he saw the butt of a rifle from his
position below the shelf of the open closet in petitioner's
bedroom. 11/5/93 Tr. 69, 70. The rifle was therefore in plain
view, and Officer Rhymer was entitled to stand on a chair to
seize it and examine it further.

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pistol identified by petitioner as the homicide weapon,
the officers became aware of the high probability that
another weapon was in the apartment. In addition,
because the officers found only one shell casing, it
was likely that the missing weapon was still loaded,
which turned out to be the case. See pp. 3-4, supra.
The presence of the loaded weapon presented a seri-
ous danger to the police, and that danger was exacer-
bated by the fact that petitioner's mother still had
access to the apartment and was freely moving back
and forth between her house and the apartment.
Under those circumstances, the police were not re-
quired to obtain a warrant before they looked for a
loaded weapon in the room in which the killing had
taken place. Cf. Buie, 494 U.S. at 334; Lopez, 989
F.2d at 27 (upholding warrantless search for weapon
when "the intrusion, although not minimal, was
limited"; " [t]here was no new entry into a private
residence" because the police were "lawfully" there;
and the object of the search was "a dangerous
weapon in a building where others might gain access
to it"). But cf. United States v. Ford, No. 94-3057
(D.C. Cir. June 9, 1995), slip op. 13 (holding Buie
inapplicable to search for weapons under mattress
and behind window shade).4

___________________(footnotes)

4 Even if the admission of the Glock was error, that error
was clearly harmless on the murder count and the obstruction
of justice count. On the murder charge, the evidence of
Hendricks's seated position, the fact that she was shot from a
distance of two feet, and the soot marks on her hands indicat-
ing that she was grabbing or hitting the barrel of the gun
demonstrated beyond a reasonable doubt that she was not
killed accidentally. The specific weapon used in the killing
was not crucial to the murder case, and the evidence was suffi-
ciently compelling that the jury would have found petitioner

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         15

2. Petitioner also argues (Pet. 13-14) that his
conviction must be reversed because the prosecutor,
on cross-examination, improperly questioned him
about the rifle and shotgun suppressed by `the district
court. That factbound contention is without merit.
Absent an exception, the exclusionary rule pro-
hibits the introduction into evidence of items seized
during an unlawful search and of "testimony con-
cerning knowledge acquired during an unlawful
search." Murray v. United States, 487 U.S. 533, 536
(1988). In this case, the government introduced
neither the suppressed weapons themselves nor testi-
mony concerning their existence or presence at the
murder scene. Rather, the prosecutor cross-examined
petitioner about his post-arrest statement to the
police, in which he asserted that he had shot
Hendricks with a Smith & Wesson and denied owning
any other weapons. Based on that incident, peti-
tioner was charged with obstructing justice by falsely

___________________(footnotes)

guilty beyond a reasonable doubt even if the police had never
recovered the murder weapon. The admission of the Glock
was harmless on the obstruction of justice count because, even
before the police recovered the Glock, they concluded that the
bullet used in the murder and found underneath the bed could
not have come from the Smith & Wesson tendered by petitioner
as the homicide weapon. Petitioner's statements to the police,
both at the house and at the police station, that he used the
Smith & Wesson in the killing, obstructed the investigation
without regard to the fact that the police eventually recovered
the Glock. In addition, although the government's expert
witness at trial was able to state with certainty that the
expended shell came from, a Glock, he could not state conclu-
sively that it came from the Glock found in petitioner's closet.
See 2 Tr. 122-123. Petitioner's" conviction on obstruction of
justice therefore did not rest on the fact that the police re-
covered the Glock used in the murder.

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stating to the police that he shot Hendricks with a
Smith & Wesson. See C.A. App. 5.
The prosecutor properly asked petitioner what he
had told the police following his arrest, and whether
he had told the truth. Petitioner acknowledged that
he told the police that he owned no weapons other
than the Smith & Wesson, and that his statement to
that effect was false. The prosecutor, in turn, asked
whether the statement was false because he owned
weapons other than the Glock, without referring
specifically to any other weapons. Petitioner's coun-
sel did. not object to that question, and petitioner
admitted that he did own other weapons. The prose-
cutor followed up by asking what other weapons
petitioner owned, and petitioner testified in response
that he owned a rifle and shotgun. See 33 Tr. 130.
The questioning of petitioner was permissible. The
exclusionary rule did not preclude the prosecutor
from asking petitioner whether his post-arrest state-
ments to the police were false, or from inquiring why
they were false. The prosecutor carefully avoided
mentioning any specific weapons other than the Glock
or directly confronting petitioner with evidence that
he owned the suppressed weapons.
At the point at which the prosecutor asked peti-
tioner whether his statement was false because he
owned weapons other than the Glock, defense counsel
raised no objection. Even assuming there was any
impropriety in that question, it did not amount to
plain error. The shotgun and rifle were not central
to any of the counts on which petitioner was found
guilty. Neither was used in the killing of Hendricks,
and petitioner's conviction on obstruction of justice
rested on his false statements that he used the Smith

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17

&  Wesson in that shooting, not his possession of the
shotgun or the rifle. Petitioner's admission that he
also owned a shotgun and a rifle therefore had no
appreciable impact on the jury's verdict.
3. Relying on Government of the Virgin Islands
v. Smith, 949 F.2d 677 (3d Cir. 1991), petitioner
argues (Pet. 14-16) that the district court committed
plain error in failing to instruct the jury that the
prosecution has the burden of proof on the "affirma-
tive defense" of excusable homicide. That contention
is incorrect.
In Smith, the Third Circuit held that, in a murder
prosecution under Virgin Islands law, once the de-
fendant has placed the affirmative defense of self-
defense in issue, the government is required to dis-
prove self-defense beyond a reasonable doubt, and
the trial court must so instruct the jury. 949 F.2d
at 680-681. Petitioner's defense in this case was
based on his assertion that his killing of Hendricks
was accidental. It is not clear, however, that, under
Virgin Islands law, petitioner's defense based on acci-
dent would be considered a separate affirmative de-
fense, rather than a contention that he lacked the
necessary mens rea to commit the crime charged.
The court of appeals did not address that issue, and
we are not aware of any case law directly addressing
the point under Virgin Islands law. While we do not
dispute that the government ultimately had the bur-
den of proving beyond a reasonable doubt that the
shooting was not accidental, the failure to give a
separate instruction on that point was not plain error,
since the district court instructed the jury that the
prosecution had the burden of proof on every element
of the offense. See 6 Tr. 74, 76-77.

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The trial court further instructed the jury that, to
convict petitioner of second degree murder under
Virgin Islands law, the government was required to
prove beyond a reasonable doubt that petitioner acted
willfully and with malice aforethought. The court
explained to the jury that "malice aforethought" re-
quired an intent to take the life of a human being
or to act in callous and wanton disregard of the con-
sequences to human life. 6   Tr. 96. The district court
thus adequately instructed the jury that petitioner
could be convicted of murder only if the prosecution
proved beyond a reasonable doubt that he acted with
unlawful intent. Since it was clear that a finding of
malice aforethought would have been incompatible
with petitioner's claim of accident, the court's instruc-
tions effectively conveyed to the jury that the prose-
cution was required to prove that the shooting of
Hendricks was not accidental.

        CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

Jo ANN HARRIS
Assistant Attorney General

DEBORAH WATSON
Attorney

JUNE 1995

* U.S. GOVERNMENT PRINTING OFFICE; 1995    387147   20090