1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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

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"Gov't of the Virgin Islands v. Robinson" (1994). 1994 Decisions. Paper 85.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/85
 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

 

1Robinson'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-byfour 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 

 

2Virgin 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 selfdefense 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 selfdefense 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 

 

3As 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 selfdefense instruction would not have been appropriate.4 First, the 

 

4The 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 

 

5A 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. 

 

6We do not understand the government to urge that use of a deadly 

weapon against an unarmed assailant necessarily precludes a selfdefense 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 selfdefense. . . . 

 . . . . 

 . . . 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' excusablehomicide 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-byfour 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.