1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-26-1995

Gov't of the Virgin Islands v. Charles

Precedential or Non-Precedential:

Docket 94-7638

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Gov't of the Virgin Islands v. Charles" (1995). 1995 Decisions. Paper 317.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/317
1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 94-7638

 GOVERNMENT OF 

THE VIRGIN ISLANDS 

vs. 

DALE CHARLES, 

Appellant 

 

On Appeal From the Appellate Division of the United States 

District Court of the Virgin Islands, Division of St. Thomas 

(D.C. Crim. Action No. 89-cr-00083) 

 

Argued August 16, 1995 

BEFORE: STAPLETON, LEWIS and WEIS, Circuit Judges

(Opinion Filed December 26, l996) 

 

 

W. Ronald Jennings 

United States Attorney 

Audrey Thomas-Francis (Argued) 

Assistant U.S. Attorney 

5500 Veterans Building, Suite 260 

Charlotte Amalie, St. Thomas 

U.S. Virgin Islands 00802 

 Attorneys for Appellee 

Thurston T. McKelvin 

Federal Public Defender 

Stephen A. Brusch (Argued) 

Assistant Federal Public Defender 

P.O. Box 1327 

Charlotte Amalie, St. Thomas 

U.S. Virgin Islands 00804 

 Attorneys for Appellant 
2 

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge: 

 Dale Charles appeals from his convictions for murder in 

the first degree and for possession of a knife with intent to use 

it unlawfully. He raises three challenges to his convictions. 

First, Charles argues that he did not voluntarily and 

intelligently waive his right to counsel when the district court, 

after a hearing, granted Charles' request to represent himself at 

trial. Second, Charles asserts that the district court should 

have dismissed the information against him because the government 

conceded during plea negotiations that Charles was insane when 

the acts in question occurred. Third, Charles claims that there 

was insufficient evidence of deliberation and premeditation. We 

will affirm. 

I. 

 In May 1989, Charles stabbed Dale Francois to death in 

an alley on the Island of St. Thomas in the Virgin Islands. 

Francois was unarmed. Apparently, when Francois entered the 

alley, Charles rushed Francois without provocation and stabbed 

him several times. The government of the Virgin Islands filed an 

information that charged Charles with first degree murder under 

14 V.I.C. § 922(a)(1) and with possession of a knife with intent 
3 

to use it unlawfully against Francois during the commission of a 

crime of violence under 14 V.I.C. § 2251(a)(2). 

 In May 1990, after the defense persuaded the district 

court to allow Charles to withdraw a guilty plea, a defense 

expert, Arthur Stillman, M.D., undertook a psychiatric evaluation 

of Charles. Dr. Stillman concluded that "it seems doubtful that 

[Charles] could adequately assist his attorney in the preparation 

and presentation of his defenses [and i]t is quite clear that he 

cannot differentiate reality from fantasy. . . ." (App. at 51-

52.) In addition, regarding Charles' state of mind when he 

stabbed Francois, Stillman opined that Charles "was suffering 

from a psychotic paranoid state and is considered to have been 

insane at that time." (App. at 52.) In November 1990, Michael 

W. Morrison, Ph.D., a court appointed expert, agreed: 

Mr. Charles is suffering from a mental 

illness that renders him unable to understand 

the nature and consequences of the 

proceedings against him and unable to assist 

properly in his defense. . . . Mr. Charles 

was severely mentally ill on [the day of the 

offense] and his use of a dangerous weapon to 

commit murder that day was a consequence of 

his mental illness. 

(App. at 65-66.)1

 In March 1991, the district court found Charles 

mentally incompetent to stand trial. By December 1992, Bruce 

Burger, M.D., of the Federal Bureau of Prisons found that 

Charles' condition had stabilized and that Charles was competent 

 

1

 Under Virgin Islands law, "[a]ll persons are capable of 

committing crimes and offenses except . . . persons who are 

mentally ill and who committed the act charged against them in 

consequence of such mental illness . . . ." 14 V.I.C. § 14(4). 
4 

to stand trial. In March 1994, Leighman Lu, M.D., a court 

appointed expert, and in June 1994, Michael Chiappetta, Psy. D., 

a defense expert, agreed that Charles was competent to stand 

trial. Lu also found that Charles was not suffering from any 

disorder at the time of the offense. Dr. Burger reevaluated 

Charles in June 1994, and once again found Charles competent to 

stand trial. After a hearing on September 26, 1994, the district 

court found Charles competent to stand trial. Jury selection was 

completed that afternoon and the trial began the next day. 

 Apparently, at some point before the September 26 

hearing, the prosecution and the defense had reached an 

agreement. Both parties would consent to a bench trial and would 

stipulate to all of the facts including the findings of Dr. 

Morrison, namely that Charles' actions were the result of his 

mental illness. Presumably, what the parties had in mind was a 

finding by the district court of not guilty by reason of 

insanity, followed by automatic commitment to a psychiatric 

institution under 5 V.I.C. § 3637. Had the government dropped 

the charges without the stipulation, Charles could have been 

involuntarily committed only in a proceeding under the general 

civil commitment statute. That statute requires clear and 

convincing proof that the individual is a danger to society, and 

that treatment is likely to be beneficial. 19 V.I.C. § 723. 

 The agreement fell apart, however, when Charles decided 

that he did not want to raise the defense of insanity. Rather, 

he decided to claim self defense and demand a jury trial. The 

prosecution, which had no burden to produce evidence regarding 
5 

Charles' sanity at the time of the offense until Charles first 

presented some evidence of insanity, see Government of Virgin 

Islands v. Webbe, 821 F.2d 187, 189 (3d Cir. 1987), decided to 

proceed to trial. Charles' attorney, Stephen Brusch, convinced 

that he could not, on behalf of Charles, agree to the stipulation 

of insanity or raise the defense of insanity at trial without 

Charles' consent, moved to dismiss the information on the ground 

that the prosecution had effectively conceded that Charles was 

insane at the time of the offense. The district court concluded 

that Charles' mental state at the time of the offense was an 

issue for the jury and denied the motion. 

 At that point, Charles also decided that he no longer 

wanted Brusch to represent him. He wanted to represent himself 

at trial. Charles was convinced that Brusch was hostile to the 

idea of arguing self defense and Charles was concerned that 

Brusch, as an employee of the local government, had conflicting 

loyalties. At the hearing on September 26, 1994, after finding 

Charles to be competent to stand trial and after an extensive 

colloquy with Charles, the district court determined that Charles 

knowingly and intelligently waived his right to counsel. The 

district court granted Charles' motion to proceed pro se and 

appointed Brusch as stand-by counsel to assist Charles. 

 Charles presented his case to the jury during a two day 

trial. The jury convicted him on both counts and the district 

court sentenced him to life in prison without parole. The 

district court had jurisdiction under 48 U.S.C. § 1612. We have 

jurisdiction to hear this appeal under 28 U.S.C. § 1291. 
6 

II. 

 First, Charles argues that he did not knowingly and 

intelligently waive his right to counsel. The Sixth and 

Fourteenth Amendments guarantee the assistance of counsel to 

anyone accused of a serious criminal offense. See Government of 

the Virgin Islands v. James, 934 F.2d 468, 470 (3d Cir. 1991). 

Because a defendant who asks to represent herself is waiving the 

benefits associated with this important constitutional right, and 

because "courts [must] indulge in every reasonable presumption 

against waiver" of important constitutional rights, Brewer v. 

Williams, 430 U.S. 387, 404 (1977), a court cannot grant such a 

request unless the record shows that the relinquishment is 

"knowing and intelligent[]." Faretta v. California, 422 U.S. 

806, 835 (1975) (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65 

(1938)). 

 In James, this Court provided some details regarding 

the scope of the Faretta inquiry that a court should undertake in 

response to a defendant's request to proceed pro se. First, the 

court must make an inquiry regarding the defendant's reasons for 

the request. James, 934 F.2d at 470-71. Second, the court 

should make sure that the defendant is aware of the dangers of 

self-representation. Specifically, the court should make a 

thorough and penetrating inquiry to determine whether the 

defendant understands the nature of the charges, the range of 

possible punishment, potential defenses, technical problems that 

the defendant may encounter, and any other facts important to a 
7 

general understanding of the risks involved. Id. at 471, 473. 

There is no rote speech that the court must recite. Rather, the 

proper inquiry depends on the particular facts and circumstances 

of the case, including the background, experience, and conduct of 

the accused. Id. at 473-74. 

 In order for a waiver of the right to counsel to be 

valid, the court must first assure itself that the defendant is 

competent to waive the right. Godinez v. Moran, 113 S. Ct. 2680, 

2685 (1993). The competency necessary to waive the right to 

counsel is identical to the competency necessary to stand trial. 

Id. at 2685-86. The defendant must be able to consult with 

counsel and must have a rational and factual understanding of the 

proceedings. United States v. Renfroe, 825 F.2d 763, 766 (3d 

Cir. 1977). Since a competent defendant is entitled to make his 

or her own decision with respect to representation, it is 

irrelevant whether the defendant is capable of representing 

himself or herself effectively. Godinez, 113 S. Ct. at 2687. 

 We decide de novo whether the record demonstrates a 

knowing and intelligent waiver. United States v. Velasquez, 885 

F.2d 1076, 1085 (3d Cir. 1989). However, regarding a colloquy 

between the defendant and the court, the issue of whether the 

defendant misunderstood what the court said, despite the 

defendant's unambiguous answers indicating comprehension, is a 

pure question of fact which depends primarily on the demeanor, 

conduct, and intonations of the defendant. We review a finding 

on this underlying factual issue under a clearly erroneous 

standard. See Miller v. Fenton, 474 U.S. 104, 112 (1985). We 
8 

review the district court's findings regarding the competency of 

the defendant for clear error. United States v. Velasquez, 885 

F.2d 1076, 1089 (3d Cir. 1989). 

 Charles concedes that the district court conducted a 

sufficient inquiry. Indeed, the district court's inquiry was 

thorough and probing. However, Charles argues that he was not 

competent to waive the right to counsel and that his answers 

demonstrate that he did not understand the trial court's 

admonitions. 

A. Charles' Competency 

 At the outset of the hearing on September 26, the day 

before the trial began, the district court determined that 

Charles was competent to stand trial and thus to make all of the 

important decisions associated with trial. That decision was not 

clearly erroneous. 

 The district court based its finding of competence on 

the testimony and conduct of Charles at the September 26, 1994 

hearing and on a July 11, 1994 report written by Dr. Burger. Dr. 

Burger saw Charles on a regular basis during his prior 

hospitalization and after he was readmitted for study on June 14, 

1994. Dr. Burger concluded that Charles was capable of 

understanding the proceedings and the charges against him and had 

the ability to consult meaningfully with his counsel. Dr. 

Burger's report indicated that Charles "evidenced an excellent 

understanding of the roles and responsibilities of court officers 

as well as his own obligations and rights in a court situation." 
9 

(App. at 145.) He was alert and fully oriented at all times. His 

cognitive abilities were in the low average range for an adult. 

Charles suffered from chronic paranoid schizophrenia and had 

experienced intermittent severe psychotic episodes in the past, 

but his schizophrenia was currently in remission. Charles showed 

no symptoms of schizophrenia and was not taking medication. When 

the district court asked each side whether it wished to contest 

the conclusions reached in Dr. Burger's report, neither Charles 

nor his counsel sought to do so. 

 We are mindful that Dr. Burger's report was two and one 

half months old when the September 26, 1994 hearing took place 

and that some of Charles' responses at the hearing were 

rambling.2 We cannot say, however, that Charles' responses as a 

 

2

 For example: 

 THE COURT: Now, why do you think you are more 

competent than counsel . . . ? 

 CHARLES: Your Honor, you might think I'm 

incompetent, if I tell you that. 

 THE COURT: Pardon? 

 CHARLES: I said, for what I might say to you, 

right, you might consider me incompetent. 

 THE COURT: I didn't say that. I said, why do you 

think you are more competent than counsel. 

 CHARLES: I said, my answer to you would maybe 

make you think that I am incompetent. 

 THE COURT: Well, let me hear your answer. 

 CHARLES: Well, your Honor, growing up, my family, 

and there was, you know, fightings and things like 

that, where people of Mr. Brusch's descendants -- once 

a fourteen year old child or a sixteen year old child 

fight with my mother's husband, and no one tried to 

assist us, call the police, do anything, which in they 

were also the ones removed the gun from the place. 

 So I don't, I don't know for sure what I am going 

through, what I am going through, and why Mr. Brusch is 

not in favor of me exposing all of these things that 
10 

whole were inconsistent with Dr. Burger's observations and 

opinions. The district court observed Charles first-hand at the 

hearing the day before the trial began and was in the best 

position to observe Charles, evaluate his mental state, and 

determine whether a follow-up evaluation was necessary. We 

decline to second guess the district court's determination. 

B. Charles' Responses Concerning 

 the Assistance of Counsel 

 Charles' responses to the district court's questions 

were sufficient to demonstrate that his waiver of the right to 

 

has happened here in The Islands, because of the 

government's inconcern [sic], unconcern, you know. 

 And I have been pushed to the point where now 

someone is hurt by me having to protect me, and all 

criminal activities, the Police Department might be 

saying I've been involved in, that I would be framed, 

and the witnesses would say I did things that I did not 

do. 

 * * * 

 THE COURT: In other words, you don't want the 

stipulation [of insanity]. You want to go to trial. 

That's what you are telling me. 

 CHARLES: I want the stipulation, too, but still I 

want to make them pay. I mean, to anything to get out, 

if I don't out by winning, and I get out by going to 

North Carolina, I be in the United States, even if I 

have to live the rest of my life in prison, that's okay 

with me. But I want them to punish, you know, because 

they are supposed uphold the law now, not favoring 

nobody. Everything is the white man -- 

(App. at 232-33, 248-48a.) 

 Although rambling, when read in context, even these 

responses were not incoherent. As Charles expressed throughout 

the hearing, he felt that the police and government had 

mistreated him and his family in the past, and he wanted to "make 

them pay" by exposing this at trial. Charles wanted to tell his 

side of the story despite the risks: "[E]ven if I have to spend 

the rest of my life in prison, that's okay with me." (App. at 

248-48a.) 
11 

assistance of counsel was knowing and intelligent. Considering 

Charles' history of mental illness and limited education, the 

district court appropriately conducted an inquiry that was 

especially thorough and probing. 

 First, the court made sure that Charles understood the 

purpose of the hearing: 

 THE COURT: Now, I am going through a procedure 

here to determine whether or not you fully understand 

the consequences of your expressed desire to proceed 

with the representation of yourself -- 

 CHARLES: Yes, sir. 

 THE COURT: -- and that you are doing that 

voluntarily and intelligently. Do you understand that? 

 CHARLES: Yes, sir, very intelligently. 

(App. at 227.) 

 Next, the court asked Charles why he was dissatisfied 

with his appointed counsel. Charles made clear that he was 

concerned that his appointed counsel was hostile to the idea of 

arguing self defense and that he wanted the public to know that 

he was not insane: 

 CHARLES: Your Honor, my dissatisfaction is based 

upon being in the United States and speaking with 

doctors and prison officials and other people that has 

heard the nature of the offense and why it was 

committed, and they are totally in disagreement with 

Mr. Brusch's way of handling it, that I cannot win. 

They are stating that based upon my defense, they don't 

see why any attorney would resist presenting it. And 

that is what it is based upon. 

 Also, to the interest of the public, who I don't 

owe no explanation, but I still think I do, you know. I 

went to school here, and teachers and things like that, 

I have heard, "Well, Mr. Charles is charged with 

murder, and they think Mr. Charles is crazy and" --this 

and that. I think I owe them an explanation to clear 

their mind of any doubt that I am anybody different to 

who they have known before. 

 * * * 

 CHARLES: [My attorney] has never seen my side of 

the case. 
12 

 THE COURT: Well, I understand that's what you're 

saying. But apparently, from what I also understand 

you are saying, was that he, in the course of 

representing you, made the observation to you that the 

procedure you are willing to follow, in his opinion, 

could not be in your best interest. Isn't that what 

you are telling me? 

 CHARLES: Yes. . . . It might be, it might hurt -

- it might hamper me, it might hurt me in the long run, 

but it's in the best of my interest, what I want to 

present. 

(App. at 227-29.) 

 Next the court made sure that Charles understood that 

he was not as competent as an attorney: 

 THE COURT: Well, certainly, you realize that you 

are not as competent as a lawyer would be, insofar as 

the rules of procedure -- 

 CHARLES: Yes. 

 THE COURT: -- and in terms of meeting issues 

raised by the government. Do you agree with that 

statement? 

 CHARLES: Yes, but that's what I would like [Mr. 

Brusch] to sit there for. 

 THE COURT: Pardon? 

 CHARLES: Any issue that the government raises 

that I don't understand, that's what I'm going to have 

him there for. He is going to work for me. 

 THE COURT: In other words, you're the lawyer, but 

you are going to turn to him to assist you -- 

 CHARLES: When I don't understand something. 

(App. at 231.) 

 Next the court established that Charles understood the 

government's burden of proof at trial: 

 THE COURT: . . . It's the government's obligation 

and responsibility to prove you guilty beyond a 

reasonable doubt and, therefore, you are not required 

to prove or disprove anything. Do you understand that? 

 CHARLES: Yes I understand that. I think I do. 

(App. at 234.) 

 Next the court made sure that Charles understood the 

nature of the charges against him and of his defense: 
13 

 THE COURT: All right. Now, do you understand the 

nature of the charges against you? 

 CHARLES: Yes, sir. 

 THE COURT: What are you charged with? 

 CHARLES: First degree murder. 

 THE COURT: Of whom? 

 CHARLES: Mr. Dale Francois. 

 THE COURT: And your defense to that is? 

 CHARLES: My actions was done in self-defense. 

 THE COURT: All right. And you understand what 

self-defense means? 

 CHARLES: Yes. Preservation comes first. 

 THE COURT: Pardon? 

 CHARLES: Preservation, self-preservation comes 

first. 

 THE COURT: All right. Now, have you done any 

reading of the law in this area? 

 CHARLES: What I have been with paralegals in the 

United States and I have learned a little bit, but I 

haven't done much reading about it. 

 THE COURT: But you have discussed the case with 

them? 

 CHARLES: Yes, sir. 

 THE COURT: Have you read any legal decisions or 

any cases on the subject? 

 CHARLES: Well, not really. A little bit of 

investigation here and there, that, you know, it was 

pertinent in presenting my case. But I don't even 

think I have to go through those books to win this 

case. 

(App. at 234-35.) 

 Next the court made sure that Charles was aware of the 

possibility of pleading insanity: 

 THE COURT: Now, you recognize, too, that Mr. 

Brusch has talked with you with respect to asserting an 

insanity or a mental illness defense? 

 CHARLES: Yes, sir. 

 THE COURT: And you have rejected that? 

 CHARLES: Yes, sir. 

 THE COURT: And you also understand, too, that 

there have been discussions, as you heard in the 

argument earlier today, that would -- could have 

brought about an agreement or a stipulation to present 

the matter to the Court for findings? 

 CHARLES: Yes, sir. 

 THE COURT: And those are not acceptable, that is 

not acceptable to you; is that correct? 
14 

 CHARLES: Not on the grounds they are presenting 

them with. 

 THE COURT: The only thing that you would accept 

would be a dismissal of the case with prejudice? 

 CHARLES: Yes sir. 

(App. at 238-39.) 

 Next the court made sure that Charles understood that 

he would have to conduct the case in conformity with the Federal 

Rules of Evidence and the Federal Rules of Criminal Procedure, 

and that he understood the court's role regarding evidentiary 

issues: 

 THE COURT: . . . You also realize that you are 

going to have to conduct your defense in the course of 

the Federal Rules of Evidence and Criminal Procedure? 

Do you understand that? 

 CHARLES: Well, I really know about that part. 

 THE COURT: Well, you are going to have to do 

that. 

 CHARLES: Well, being that you are the judge, you 

know -- 

 THE COURT: Don't turn the tables on me. I'm just 

telling you. 

 CHARLES: All right. I -- 

 THE COURT: These are your responsibilities. I'll 

take care of my responsibilities. 

 CHARLES: Yes, sir. 

 THE COURT: You have to assume your 

responsibilities. I want to make you aware of them. 

 CHARLES: The only thing I don't -- I am aware of 

what you are saying, but what I am saying is, you know, 

what might be inadmissible to the prosecution, right, 

might be pertinent to my defense. So then, you would 

be the one would be left with the decision there. 

 THE COURT: No, I will only rule, if the 

government goes ahead and enters certain evidence, if 

there is an objection to it, I will make a ruling. 

 CHARLES: All right. 

 THE COURT: If there is no objection, I will not 

make a ruling. 

 CHARLES: All right, sir. 

(App. at 239-40.) 
15 

 Next, in a telling colloquy, Charles demonstrated that 

he understood that he lacked the knowledge of an attorney and 

that he was aware that this might hurt his case. However, he was 

willing to take that risk: 

 THE COURT: Now, in order to make an objection, 

you certainly have to have some understanding of the 

Federal Rules of Criminal Procedure. Now, you may be 

hampered in presenting your best defense by your lack 

of knowledge of the law, and certainly the 

effectiveness of your defense may well be diminished by 

your dual role as a lawyer and the accused. Do you 

understand that? 

 CHARLES: Yes. That's the chance I going to have 

to take. Those are the chances. 

 * * * 

 THE COURT: All right. So that you are well aware 

of all these problems, when you tell the Court that you 

want to proceed and conduct your own defense. 

 CHARLES: Yes, sir. 

 THE COURT: And you full understand the problems 

that will arise? 

 CHARLES: No, sir. 

 THE COURT: You don't understand the problems? 

 CHARLES: All the problems, fully understand? Not 

fully, but -- 

 THE COURT: Well -- go ahead. 

 CHARLES: -- basically, I do understand the 

proceedings. But I cannot understand fully of thinks 

[sic] that I know nothing about. 

 THE COURT: Well, I certainly tell you, sir, that 

you are better off having counsel represent you fully. 

But you seem to be intent on representing yourself; is 

that correct? 

 CHARLES: Yes, sir. 

 THE COURT: And that Mr. Brusch's only 

position will be that of standby counsel -- 

 CHARLES: Yes, sir. 

 THE COURT: -- is that correct? 

 CHARLES: Due to the fact that he does not want to 

present the defense that I want to present. 

(App. at 240-43.) When Charles explained that he did not fully 

understand all of the problems that could arise at trial, he was 

not, as Charles argues, demonstrating a lack of understanding of 
16 

the risks of representing himself. On the contrary, his 

explanation showed a lucid understanding of the fact that he was 

not an attorney and could not anticipate every single problem 

that could arise. Faretta does not require a defendant to be 

able to anticipate the details of every single problem that selfrepresentation could cause. Were this the standard, it would all 

but preclude anyone without a law degree from waiving the right 

to counsel. 

 Finally, the court made sure that Charles understood 

the penalty if he were convicted: 

 THE COURT: All, right. Now, you recognize, too, 

do you not, that the penalty here is, if the jury does 

find you guilty of first degree murder, the Court has 

no choice, no leeway, the Court is compelled to 

sentence you to life in prison without parole? Do you 

understand that? 

 CHARLES: Yes, sir. And I hope that the Court 

will also send me to an American prison, where I can 

further my education, get out of St. Thomas, due to the 

fact that I can't trust no one here, not even to 

represent me in court. 

 THE COURT: Well, I can't do that, because in 

sentences here, if you are found guilty, you will be 

sentenced to the custody of the Bureau of Corrections, 

for whatever sentence is determined. It is up to the 

Bureau of Corrections to determine what it wants to to 

[sic] in terms of where you will serve your sentence. I 

don't control that. 

 CHARLES: I am a United States citizen, not a 

Virgin Islander. 

 THE COURT: It doesn't make any difference. You 

could be in Yugoslavia and found guilty of murder 

there, if you were so found, you would be sent to 

prison under the laws of Yugoslavia. 

 CHARLES: Yes, sir. 

 THE COURT: Just as you are here, you are sent to 

a prison under the laws of the Government of the Virgin 

Islands. 

(App. at 244-45.) 
17 

 Charles' responses indicate that Charles made his 

decision to represent himself with his eyes wide open. Despite, 

a few rambling answers, Charles unambiguously indicated that he 

understood the risks of self-representation as well as we could 

expect of him. He was aware that his lack of legal knowledge 

could hurt his case. He was aware that if convicted he would be 

sentenced to life in prison. Yet, he wanted to tell his side of 

the story. He believed that Mr. Brusch would not because Mr. 

Brusch wanted to argue insanity. 

 The district court believed that Charles comprehended 

what he was being told. It observed Charles first-hand and was 

in a far better position than we to evaluate his answers, 

including the ones in which he rambled. Its evaluation was not 

clearly erroneous. Even from our vantage point, however, given 

the questions and answers we have quoted above, we believe one 

could not conclude that Charles failed to understand unless one 

were prepared to conclude that he was incapable of understanding. 

As we have indicated, however, the district court credited Dr. 

Burger's opinion that Charles was able to understand the 

proceedings against him and that finding was not clearly 

erroneous. 

C. Knowing and Intelligent Waiver 

 We accordingly accept the district court's factual 

findings that Charles was competent to stand trial and that he 

understood the information conveyed to him by the court. Based 

on those findings and independent review of the record, we 
18 

conclude that Charles' waiver of his right to counsel was knowing 

and intelligent. 

 III. 

 Next, Charles argues that we should reverse the 

conviction and dismiss the information against him because the 

government conceded that he was insane at the time of the 

offense. As we understand Charles' argument, with the exception 

of the issue of premeditation which we address below, Charles 

acknowledges that there was sufficient evidence for the jury to 

return a verdict of guilty. Nonetheless, in light of the 

government's alleged concession, Charles asks us to set aside the 

government's inherently discretionary decision to continue with 

the prosecution. 

 "In our system, so long as the prosecutor has probable 

cause to believe that the accused committed an offense defined by 

statute, the decision whether or not to prosecute . . . generally 

rests in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 

364 (1978). Only in rare cases can a court interfere with the 

government's decision to prosecute. For example, where a 

decision to prosecute is based on a defendant's race, religion, 

or decision to exercise a constitutional right, the courts must 

intercede. See e.g., Blackledge v. Perry, 417 U.S. 21, 27 (1974) 

(reversing a conviction due to retaliatory prosecution); United 

States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974) (setting 

out the elements of a claim of discriminatory prosecution). 
19 

 There is no claim of discriminatory or retaliatory 

prosecution here, and we see nothing else that would warrant our 

intervention. While Charles claims that the government conceded 

that he was insane at the time of the offense, this 

mischaracterizes the record. It is true that at one point during 

negotiations, the government was prepared to stipulate to Dr. 

Morrison's conclusion that Charles was insane at the time of the 

offense. However, this stipulation was conditioned on Charles 

consenting to a bench trial and raising the insanity defense, 

thus exposing himself to a commitment under 5 V.I.C. § 3637. 

Because Charles refused to consent to the agreement, the 

government was not bound by the proposed stipulation. 

 Essentially what Charles is asking us to do is to 

prevent the government from prosecuting him because the 

prosecuting attorney may have subjectively believed that he was 

innocent by reason of insanity. Charles cites no authority, 

however, for the proposition that an otherwise valid criminal 

conviction may be overturned based on the prosecuting attorney's 

subjective belief regarding the guilt of the accused. Our own 

search has revealed none, and we decline to endorse that novel 

proposition.3

IV. 

 

3

 It is, of course, not clear that the prosecuting attorney had 

an affirmative belief that Charles was insane at the time of the 

crime. She may well have believed that this was a litigable 

issue that might be lost and that, given the fact that the 

stipulation would result in Charles' commitment, the government's 

resources were better invested elsewhere. 
20 

 Finally, Charles asserts that there was insufficient 

evidence for the jury to conclude that he committed a deliberate 

and premeditated killing. We review a claim of insufficiency of 

the evidence under a substantial evidence standard. We determine 

whether there is substantial evidence that, when viewed in the 

light most favorable to the government, would allow a rational 

trier of fact to convict. United States v. Aguilar, 843 F.2d 

155, 157 (3d Cir.), cert. denied, 488 U.S. 924 (1988). 

 Section 992 of Title 14 of the Virgin Islands Code 

distinguishes between first and second degree murder in the 

following manner: "All murder which . . . is perpetrated by means 

of poison, lying in wait, torture or by any other kind of 

willful, deliberate and premeditated killing . . . is murder in 

the first degree. . . . All other kinds of murder are murder in 

the second degree." As this court explained in Government of the 

Virgin Islands v. Roldan, 612 F.2d 775, 781 (3d Cir. 1979), a 

brief moment of deliberation can suffice: 

To premeditate a killing is to conceive the design or 

plan to kill. . . . A deliberate killing is one which 

has been planned and reflected upon by the accused and 

is committed in a cool state of the blood, not in 

sudden passion engendered by just cause of provocation. 

. . . It is not required, however, that the accused 

shall have brooded over his plan to kill or entertained 

it for any considerable period of time. Although the 

mental processes involved must take place prior to the 

killing, a brief moment of thought may be sufficient to 

form a fixed, deliberate design to kill. . . . 

In addition, as a practical matter, premeditation can generally 

be proved only by circumstantial evidence: 

[S]ince [the defendant's mental processes] are wholly 

subjective it is seldom possible to prove them 

directly. If premeditation is found it must ordinarily 
21 

be inferred from the objective facts. Every sane man 

is presumed to intend all the natural and probable 

consequences flowing from his deliberate acts. . . . 

Accordingly, if one voluntarily does an act, the direct 

and natural tendency of which is to destroy another's 

life, it may fairly be inferred, in the absence of 

evidence to the contrary, that the destruction of that 

other's life was intended. 

Id. 

 In this case, there was ample evidence from which the 

jury could have inferred deliberation and premeditation. An 

eyewitness testified that (1) Charles was sitting in the alley 

when Francois entered it; (2) Charles rose and rushed at 

Francois, grabbed Francois by his dreadlocks, and stabbed him 

repeatedly with a knife; and (3) preceding the attack there was 

no provocation by the victim or conversation between the two. 

Charles admitted that Francois was unarmed. The coroner's report 

indicated three stab wounds including a fatal stab wound to the 

chest. There was no evidence suggesting that the attack was 

initiated in the heat of passion. 

 The fact that Charles rushed at Francois immediately 

after Francois entered the alley does not preclude a finding of 

deliberation and premeditation. A brief moment of thought can be 

sufficient. Based on the use of a knife and the absence of any 

provocation or display of emotion by Charles, the jury could 

reasonably infer that Charles, in this brief moment, formulated a 

deliberate intent to kill Francois. 

V. 
22 

 For the foregoing reasons, we will affirm the judgment 

of the district court. 

 

 

 
1 

Government of the Virgin Islands v. Dale Charles

No. 94-7638 

LEWIS, Circuit Judge, concurring. 

This difficult case presents us with a window through which to view the r

world effects of the Supreme Court's decision in Godinez v. Moran, 125 L.Ed.2d 321 

and it is not a pretty sight. Charles' behavior at a hearing before the district c

left little doubt that he was prone to paranoid delusions and was unstable. Howeve

because the Supreme Court has determined that the competency standard required to 

knowingly and voluntarily waive one's right to counsel is the same as that required 

defendant to stand trial and to represent him or herself, I am compelled to concur 

the judgment of the majority. I write separately to explain why I disagree with th

reasoning we are bound by in this case. 

 At the heart of the Supreme Court's holding in Godinez is the conclusion 

defendant's competence to conduct his or her own defense is "not relevant" to a 

determination of whether such a person is competent to knowingly and intelligently 

his or her right to counsel. The rationale supporting this conclusion presupposes 

reality in which persons who may be marginally sane and barely competent to get thr

waiver of counsel hearing are nonetheless capable of trying their own cases. Justi

Blackmun, in an insightful dissent, questioned the wisdom of the Godinez majority's 

conclusion regarding the irrelevance of a defendant's competence to defend him or h

It is obvious that a defendant who waives counsel must represent 

himself . . . And a defendant who is utterly incapable of conducting 

his own defense cannot be considered "competent" to make such a 
2 

decision, any more that a person who chooses to leap out of a window 

in the belief that he can fly can be considered competent to make such 

a choice. 

Godinez, 125 L.Ed.2d at 343 (Blackmun, J., dissenting). 

In this case, it is abundantly clear from the record that Charles was not 

competent to conduct his own defense. This man has had a well documented history o

mental illness. Indeed, it appears that Charles' decision to waive counsel, reject 

possibly valid defense and proceed on his own may itself have been the product of m

illness. In November 1990, a court appointed expert found Charles "unable to under

the nature and consequences of the proceedings against him and unable to assist pro

in his defense . . . " App. at 65-66. He remained hospitalized, under observation

continued to receive treatment. Four years later, two experts separately concluded 

Charles was mentally competent to stand trial. One expert concluded that Charles su

from chronic paranoid schizophrenia, but was in remission. This expert also determ

that Charles showed no signs of schizophrenia and was not taking medication. App. 

Nevertheless, at the district court's colloquy to determine whether Charles was awa

he was "voluntarily and knowingly" waiving his right to counsel, Charles repeatedly 

indicated that he was afraid that the Government of the Virgin Islands, the citizen

the Virgin Islands, and his defense attorney were conspiring against him.4 His par

 

4

For example, when the district court asked Charles whether he understood that 

agreed to the defense of not guilty by reason of insanity on stipulated facts, the 

might find him not guilty by reason of mental illness and commit him for evaluation 

the possibility of a return to society, Charles responded: 

 Your honor, the whole thing with all of them, right, they afraid 

of me for what they have done to me . . . The whole thing about the 

government, the prosecutor, they all -- not the prosecutor, really, 

they haven't physically done me anything -- but the government, of 

itself, is afraid of me. 
3 

behavior at this critical juncture revealed that he is an individual who remains pr

periods of incoherent, delusional thought. It is true, as Judge Stapleton points o

that at times Charles was lucid and coherent in his responses to the district court

questions. However, his delusional statements demonstrate that his seemingly cohe

responses to the court's questions were hardly indicative of his overall mental cap

Certainly, at the very least, his delusional tendencies exposed the sad fact that h

utterly incompetent to effectively conduct his own defense. 

 I cannot agree that merely because a defendant is competent to waive coun

fortiori, he or she is also competent to act as counsel and to try the case, for it 

obvious to me that a prerequisite to a determination of competence to waive counsel 

searching evaluation of the degree to which one actually is capable of and competen

try one's case. The Supreme Court in Godinez suggests that a knowing and intellige

waiver ends the inquiry, as if everything else that follows is logical, rational, 

reasonable and presumed. I think, again, that whether a person is, in fact, compet

waive counsel depends in part upon whether he or she is competent to represent him 

herself, and that these are two distinct issues which must be separately evaluated. 

latter is obviously relevant to the former, and there are any number of issues uniq

different types of cases which prove this point. 

Let's assume, for example, that Charles was charged with a series of intr

and complex tax fraud counts which had taken three years to investigate, had involv

hundred thousand pages of documents, and had required the appointment of a special 

 

App. at 246. 
4 

prosecutor with considerable expertise in this area. Under the Godinez Court's reas

all of this is "not relevant" to whether Charles was competent to waive counsel. I

words, it doesn't matter that Charles obviously is not competent to actually repres

himself; the only question is whether he is lucid enough to make it through a collo

to waive his right to counsel. So long as he is, according to the Court, he is rea

able to try his case. There is no need to look any deeper because, after all, duri

colloquy Charles was able to punctuate his random incoherences with a few moments o

apparent lucidity and to answer the right questions satisfactorily. This, accordin

the Court, automatically renders him fit to try his murder case and, presumably, wo

have rendered him fit to try the hypothetical tax fraud case, too. The end result 

almost always preordained. It is hardly surprising, then, that Charles and many ot

similarly situated -- some of whom might have reasonable insanity defenses or other 

avenues of defense to pursue -- usually wind up either on death row or serving life 

sentences. 

 In cases such as these, I believe that the trial judge should be required 

further; to conduct another competency evaluation to determine a defendant's capaci

represent him or herself, including weighing various characteristics unique both to 

defendant and to the case. A defendant who waives his or her Sixth Amendment right 

counsel should not be left naked and unprotected by the Constitution. The Due Proc

Clause of the Fourteenth Amendment is supposed to prevent the government from obtai

criminal conviction through a procedure that fails to meet the standards of due pro

law. The Supreme Court has recognized that "[u]nless a defendant charged with a ser

offense has counsel able to invoke the procedural and substantive safeguards that 
5 

distinguish our system of justice, a serious risk of injustice infects the trial it

When a State obtains a criminal conviction through such a trial, it is the State th

unconstitutionally deprives the defendant of his liberty." Evitts v. Lucey, 469 U.

396 (1985), quoting, Cuyler v. Sullivan, 446 U.S. 335, 343 (1980). The fact that a 

defendant acts as his or her own counsel does not alter the nature of his or her du

process rights. 

 But it would appear that the Court in Godinez ignored the fundamental due 

process protections afforded to a defendant at trial, regardless of whether he or s

waived his or her Sixth Amendment right to counsel. After Godinez, defendants like 

Charles, who have knowingly and voluntarily waived their right to counsel, are left 

in their efforts to defend themselves, regardless of their competency to do so. 

Nevertheless, because I am bound to follow Godinez, I must vote with the majority. 

district court determined that Charles was competent to stand trial and that he kno

and voluntarily waived his right to counsel. The district court was in a better po

to evaluate Charles' mental state and to discern whether Charles understood the 

implications of presenting his own defense. The court conducted its colloquy in 

accordance with the requirements of Faretta v. California, 422 U.S. 806 (1975), and 

that Charles met the Godinez standard for competence. There is simply not enough i

record to disturb this finding. 

 This case highlights the immense responsibility placed upon a district co

conducting a Faretta hearing. In Government of the Virgin Islands v. James, 934 F.

471-73 (3d Cir. 1991), we determined that a court conducting a Faretta hearing must 

a thorough and penetrating inquiry to determine whether the defendant understands t
6 

nature of the charges, the range of possible punishment, potential defenses, techni

problems that the defendant may encounter, and any other facts important to a gener

understanding of the risks involved." Given that the Supreme Court has determined 

defendant's competency to conduct his or her own defense is not relevant to whether 

defendant has knowingly and voluntarily waived his or her right to counsel, distric

courts ought to be particularly vigilant in assuring that a defendant understands e

what he or she is waiving in a Faretta hearing. The Faretta hearing, in this case 

many future cases, was and will be the last procedural safeguard available to a men

unstable but "competent" defendant who mistakenly believes he or she can effectivel

his or her own case. 

The Supreme Court has long recognized that the Sixth and Fourteenth Amend

guarantee that a person brought to trial in any state or federal court must be affo

the right to the assistance of counsel before he or she can be validly convicted an

punished by imprisonment. See Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v

Zerbst, 304 U.S. 458 (1938); Powell v. Alabama, 287 U.S. 45 (1932). Through its ho

in Faretta and Godinez, the Court has defined this right in such a way that require

allow a paranoid, delusional defendant to elect to represent himself at trial, purs

ill-advised defense, and ultimately be sentenced to life imprisonment. That this r

is constitutionally permissible is deeply disturbing and ultimately "impugns the in

of our criminal justice system." Godinez, 125 L.Ed.2d at 344 (Blackmun, J., dissen