On Appeal from the District Court of the Virgin Islands. (D.C. No. 93-cr-00103).
Before: Sloviter, Chief Judge, Scirica and Cowen, Circuit Judges.
Samuel Isaac appeals his conviction for voluntary manslaughter imposed after jury trial in the District Court of the Virgin Islands. We will vacate the conviction and remand for a new trial because, upon reviewing the evidence presented at trial, we conclude that the court erred in refusing to instruct on justifiable homicide and offering resistance to prevent injury.
Defendant Samuel Isaac worked as a helper and occasional bartender at the Super Pool Bar and Restaurant in St. Thomas. On May 24, 1993 Frederick Barry, also known and commonly referred to as Soca, spent several hours at the Super Pool Bar where he met his friends Theodore Barzey, Richard Fahie, Julien Cline, and Gilbert Smith. During that time Soca bought and drank at least three drinks. At trial, Fahie testified that they were talking about the "olden days, who could throw down who, and . . . who was the strongest." App. at 52.
Isaac arrived at the Super Pool Bar for work around 7:00 p.m. He had come from his day job as a mechanic at an auto repair shop. When Isaac arrived, Soca had been there for a few hours and, according to Isaac, was arguing loudly. Isaac had seen Soca in the bar before. Isaac had never had any trouble with Soca in the past, but testified he knew that Soca had a general reputation for being a violent person. App. at 259. Isaac testified that while he was working he heard Soca say that he had a gun and threaten to take out anyone who "messed" with him.
Eventually a physical altercation broke out between Soca and Isaac, leading to Soca's death by stabbing. The events leading up to the death were hotly contested at trial. What is not in dispute is that Soca received a fatal, two-inch stab wound on his right chest, and that Isaac was responsible. There was no exterior blood and apparently Soca died from internal bleeding. A pathologist called by the prosecution testified that it was likely that Soca did not even realize he had been stabbed because the alcohol would have deadened his senses.
By the time the police arrived at the scene, Soca was dead. Isaac immediately identified himself to a police officer as the "one involved" in the stabbing and did not try to flee the scene. Isaac testified that he must have dropped the knife, but it was never recovered.
At trial four of the witnesses for the prosecution were long-time friends of the deceased. Theodore Barzey, a friend of Soca's for over thirty years, testified that he was at the Super Pool Bar drinking with Soca and other men on the evening of May 24th. Barzey testified that he left the Super Pool Bar for another club with Fahie. Both men testified that when they left, Soca was outside leaning on the porch. Within a few minutes they heard bottles breaking and returned to find Soca lying on the floor stabbed.
Julien Cline, another friend of Soca's, arrived at the Super Pool Bar around 8:20 p.m. and noticed that Soca was drinking and had "had a little bit too much" although he did not believe Soca was causing any trouble in the bar. App. at 68. Cline observed Soca going back and forth between the bar and an outside balcony and saw Soca talking to a food server at the bar. Then Cline saw Soca raise his hand to the bartenders at the bar though he could not tell if Soca touched Isaac. Cline testified that Isaac pulled down a knife from a high shelf and swung at Soca's neck. Cline could not tell whether the knife touched Soca. Soca backed up away from the bar, picked up bottles off of a table, and threw them at Isaac. At that point Cline fled the bar and returned minutes later to find Soca lying on the ground.
Much of Cline's testimony at trial directly contradicted a statement he gave police immediately after the incident in which Cline said that Soca had been "messing" with everyone in the bar, that Soca pushed the bartender and said, "You want something with me;" and that Soca "reached down to his foot, pretending that he was reaching for something." Trial Transcript at 131-42. At trial, Cline denied having made these statements. The police statement was signed by Cline.
Gilbert Smith, a friend of Soca's for over thirty years, testified he observed Isaac and Soca come in from the balcony and approach the bar. Smith saw Isaac pull down a knife from above the bar. Smith said to Soca, "Soka, bring your scunt over here. Come sit down. Soka, bring your scunt and come over." Then, Smith heard Soca say to Isaac, "You have a knife. I will show you what I have" and saw Soca reach down around his foot. Trial Transcript at 170. Smith testified "I don't know whether it was a gun or what. . . . I see [Isaac] passing with a knife across [Soca's] throat . . . [and] that is where Soka was getting up from bending down to get what he had." Trial Transcript at 170. Isaac tried to get out from behind the bar "and Soka took some dishes . . . [and] went in the cooler and was throwing beers at [Isaac]." Trial Transcript at 171-72. At that point, Smith fled the bar. Trial Transcript at 173. Smith did not know what caused Isaac to pull the knife or if the two men had argued on the balcony.
Albata Woods, the owner of the Super Pool Bar and a cousin of Soca's, was outside the bar at an ice cooler when the stabbing occurred. He met Soca in the entrance way and, lifting Soca's shirt, found the stab wound. Woods testified that Soca had a reputation for violence when he drank and that Isaac had never caused any problems in the bar.
Charlesworth Richards, the bartender at the Super Pool Bar, testified that Soca was loud, intoxicated, and cursing. Richards watched Soca hit another bar patron several times in the chest. App. at 158. The other patron left the bar and, at that point Soca approached the bar, pushed Isaac, and hit Isaac in the chest. App. at 160. Isaac walked away from Soca and said "he ain't want no trouble." App. at 160. Soca "reached after [Isaac] and started beating him," App. at 161, and came around the bar and chased Isaac. App. at 163. Isaac tried to run outside and Richards himself ran away from the bar.
Isaac testified in his own defense. When he arrived at the bar Soca was already there arguing loudly with "fight talk." Isaac stated that he heard Soca say that he had a gun, that he "would take all of you one by one," and, saying on the phone that, "I kill two already and one more going to die tonight." App. at 240-41. Sometime thereafter he was standing behind the bar cleaning dishes when Soca came up to him and said, "You want something" and Isaac said "No." Then Soca reached over the counter, pushed Isaac, and hit him hard in the chest with the back of his hand. App. at 242-43. Isaac told Soca to "behave himself," and Soca said, "I don't give a fuck about you." App. at 243. Soca started throwing bottles and plates and came around the counter making Isaac back up away from the bar. App. at 244.
Isaac testified that Soca then reached down at his ankle and said "You want to see something? I have something for you." App. at 245. Isaac testified that "I reached back with the knife, and lunge like that, because he was coming forward. And I lunge like that." App. at 245. Isaac testified that he picked up the knife "because he reach down at the ankle to get a gun to shoot me. I was scared. I thought he was going to kill me." App. at 245-56. Isaac testified that he never intended to kill Soca. App. at 246.
Isaac was charged with second degree murder. The court gave instructions on self-defense and the lesser included offense of voluntary manslaughter but refused the defense's request to instruct on excusable homicide, V.I. Code Ann., tit. 14, § 926, justifiable homicide in resisting any attempt to commit a felony, id. § 927(2)(A) or offering resistance by a party to be injured, id. § 41(2). The jury acquitted Isaac of second degree murder and found him guilty of voluntary manslaughter. The court sentenced Isaac to five years imprisonment. This appeal followed.
On appeal, Isaac argues three grounds for reversal: that the evidence was insufficient to sustain the conviction; that the prosecutor's comments on summation denied Isaac his due process right to a fair trial; and that the district court erred in refusing to instruct the jury on the defenses of excusable homicide, justifiable homicide in ...