*1 THE VIRGIN ISLANDS OF GOVERNMENT OF: IN THE INTEREST A.M., A Minor 92-7575 No. Appeals Court of United States Third Circuit 16, 1994 August *3 Defender, (Argued), Territorial Public Charlotte BRENDA Scales Thomas, V.I., appellant Ainalie St. for General; Attorney L. Ballentine, Paul Gim- Rosalie Simmonds General; (Argued), DEANA M. Solicitor énez, BORNHOLT ROBERT General, Justice, Department of Attorneys Assistant BOLLING, Virgin Thomas, V.I., Charlotte Amalie St. Government for Islands STAPLETON,ALITO, Judges BEFORE: and WEIS Circuit OF THE
OPINION COURT ALITO, Judge Circuit pros- transferring
This concerns an order a for appeal subject ecution an adult. a order is as Wehold that such transfer doctrine, reject order and we pretrial appeal under the collateral juvenile's argument transferring court committed errors, hearsay procedural including various admission therefore affirm process Virgin violation of due Islands law. We Court, which Appellate the decision of the Division of the District sustained the transfer.
I 1991, complaint In was filed juvenile delinquency November A.M., alleged against years complaint who was then old. The 16 that, that, on the A.M. had in conduct previous day, engaged adult, committed would have constituted the of first- felonies contact, unlawful sexual as- degree rape, first-degree sault, first-degree In for December conspiracy, kidnapping rape. early 1991, the Government of the Islands filed a motion Virgin request- that A.M. be transferred for as an adult. After a ing prosecution 1992, Division of the Territorial Court hearing May issued an order that motion. In October granting Appel- order, late Division of the District Court affirmed that and A.M. then took this to our court. appeal
II.
Before
we will first
addressing
arguments,
explain
we have
to entertain his
Under 28 U.S.C.
why
jurisdiction
appeal.
1613a(c),2
48 U.S.C.
we have
over all "final
§
jurisdiction
§
Islands,
decisions" of the District
Court
"all
including
final decisions of the district court on
from
courts
estab
appeal
1613a(c).
law,"
lished
local
U.S.C.
Although
Appellate
§
Division order from which this
was taken is not a "final
appeal
sense,
order" in the
four other courts of
have held
ordinary
appeals
that district court orders
transferring juveniles
prosecution
statute,
adults under
the federal
18 U.S.C.
fall
within the collateral order doctrine and are therefore appealable
(D.C.
Case,
1990);
before
In
trial.
re Sealed
court's final decision question question, of the denial of the and that the merits from prosecution, separate as adult has been tried until after the review juvenile appellate loss of some of the cause the would statutory protec- irreparable offenders, from dis- such as offered to tions protection in the reasons of court records. For closure explained essentially decisions, or- that the Division's are these Appellate persuaded thus order doctrine is der this falls within the collateral in case appealable. of Dis hold Division the
We likewise Appellate from decision had to hear A.M.'s trict Court appeal jurisdiction Under 48 U.S.C. of Division of the Territorial Court. the Family 1613a(a), has District Court "such jurisdic currently appellate § law," local courts of the Islands established tion over the Virgin 2508(d) 5, that a Ann. Tit. and V.I. Code specifically provides juve § or is a "final nile order Division appealable Moreover, of the District der." jurisdiction general appellate of "final" decisions of the Terri extends at least to review Court Court,3 order in this case and the Territorial Court's transfer torial discussed, was, within the as "final" meaning previously collateral order doctrine. issue such as the one at we thus hold that transfer orders
While review, we must case to two levels of this are appellate subject that such our concern about the delay appeals express potential future, or- In we believe that of transfer appeals may produce. orders. See much like of detention ders should be treated appeals 3145(c). The should alert the Division 18 U.S.C. Appellate parties § and our court to the nature of request expedited appeal 4, 33, has V.I. Arm. tit. that the district court appellate jurisdic Code provides § the territorial court all juve tion to review the and orders" of "judgments cases, "all as in "all civil cases" and relations well nile domestic convicted, been other than on a plea criminal cases in which the defendant has refer Court Islands has this The District Virgin interpreted guilty." and orders." and orders" as "final meaning (D.V.I. 1979) judgments ence "judgments Roebuck, 225, See v. in original). 16 V.I. Creque (emphasis also, Civ. No. Islands v. D.C. deJongh, App. Government e.g., Virgin 92-214, 1993 (1993); Corp., LEXIS Archer v. Aero Islands U.S. Dist. (D.V.I. 28, 1992). for the sake of argu Civ. No. 92-18 Assuming D.C. Sept. limitation, tit. we nevertheless ment that V.I. Code Ann. hold, contains *5 text, order was that the Territorial Court's the reasons explained appealable.
446 The disposition. parties required should then be with comply deadlines; briefing granted short extensions should be in ex- situations; treme and such cases should be given priority on the docket.
III. Turning appeal, to the merits of this we first argu- address A.M.'s Family ment that the judge properly Division did not consider the likelihood of his if rehabilitation he was found to have committed alleged here, provision offenses. Under the transfer applicable 2508(a), 5, § V.I.Code Ann. tit. Family Division "may" transfer a juvenile for adult if the prosecution juvenile was at least years 16 offense, alleged old at the time alleged and the offense would constitute a felony committed an adult. provision While this commits the transfer decision to the sound discretion of the 2509(d), Division,4 5, another provision, V.I.Code Ann. pro- tit. vides that evidence specified of seven factors "shall be considered determining transfer." These factors are:
(1)the seriousness of alleged offense to the community and waiver; whether the protection of the community requires (2) alleged whether the offense was committed in aggres- sive, violent, premeditated manner; or willful (3) whether the alleged offense was against property, greater weight being given against to offenses persons, especially if resulted; personal injury
(4) whether probable there is cause to believe that the offense charged has been committed and that the child has committed it;
(5) the sophistication maturity of the child as determined home, pattern consideration of his emotional attitude and living;
(6) previous history
record and
of the juvenile, including
Administration,
previous contacts with the Youth Services
law
courts,
agencies
enforcement
and prior periods of proba-
prior
institutions;
tion or
commitments to residential
4
(8th
1993) (federal
G.T.W.,
Cf. United States v.
992 F.2d
Cir.
statute);
(4th
Romulus,
1991),
United States v.
949 F.2d
Cir.
cert. de
(1992);
(5th
Doe,
1248, 1252
Cir.),
nied.
(7) the the for of the adequate protection public prospects child, have the rehabilitation likelihood reasonable if of found of the charged. committed alleged offenses added). Id. (emphasis transferred, Division the
In that A.M. should Family deciding factors, the factor all of these discussed including judge specifically wit- that the her oral she noted of rehabilitation. In findings, a worker rehabilitation was social testified ness who concerning Human Services named Islands of from the Virgin Department testified without contra- A. and that had Vaughn Walwyn Walwyn sexual offenders in that were no diction there programs juvenile thus that there Islands. 123. The concluded the judge Virgin App. to the [had] or at least that come was available" "nothing "nothing reha- that created a likelihood of reasonable attention" Court's and was found for A.M. if he was treated bilitation" juvenile Id. have committed the offenses charged. reha- addressed the
The Division again question Family judge There, made the follow- in her written transfer orden she bilitation finding: ing that there is the elicited at the disclosed
That hearing testimony Islands for minors of rehabilitation no Virgin program Which the minor is are of the crime with who found delinquent charged. Division, A.M.
In decision of the sug Family attacking he not whether the court erred because it did consider gests to a outside could be rehabilitated sent Virgin facility with ar at We Islands. See Br. 17-18. disagree Appellant's Di The transfer statute Islands Family gument. Virgin required "the likelihood vision to consider evidence concerning A.M. if he was found have commit reasonable rehabilitation" of 2509(d)(7). offense, This lan Ann. tit. ted the V.I. Code alleged the court does not survey guage expressly require facilities in other of suitable rehabilitation jurisdictions, availability Islands and we see no reason to that the Virgin Legislature suppose If A.M.'s attor such inflexible intended any requirement. impose Is facilities outside the was aware suitable Virgin ney lands, specific, attention. In that she have called them to the could judge's event, Division could have considered whether judge sending any A.M. represented of these facilities a "reasonable circumstances, plan including rehabilitation" under all cost to the Government of the Islands. It does not Virgin appear, however, attorney any particular facility that A.M.'s identified out- Islands, side the do consequently not believe that judge erred in limiting pro- her consideration to the facilities and *7 grams that App. had "come to the attention." Court's 123. argument, suggest
In a related A.M. seems to that the Family Division should not have his likelihood of reha considered light juvenile bilitation in of the facilities that the Government the Virgin Islands has chosen to create but should have instead considered his likelihood of rehabilitation in of the juvenile light facilities that he believes the have created. Government should We disagree with this argument unlikely as well. It seems most that the Islands, Legislature Virgin when it provided in V.I. Code 2509(d)(7), 5, § Ann. tit. Family that the Division must consider a rehabilitation," juvenile's "likelihood of reasonable meant to re quire Family or authorize the Legis Division to whether the decide lature provided had for the creation adequate juvenile facilities. Rather, we Legislature require Family that the meant to believe Division to consider juvenile's the likelihood of a rehabilitation in Here, light of the and programs Family facilities then available. judge responsibility. Division carried out that
IV. argues complaint A.M. next delinquency that the did not 2510(a), 5, with the comply requirements § V.I. Code Ann. tit. provides "[c]omplaints may which that such shall be verified and signed by any person knowledge alleged." who has of the facts case, Wade, In this the complainant, per- Detective Merlin did not Instead, sonally sign complaint either the or the verification. both 32, are signed by person another "for M. Wade." question signing We do not reach the mode of whether this or verification statutory requirements satisfied the because we do complaint not believe that the formal correctness of the is an issue that is before us in this The sole that we properly appeal. question may consider at this time under the collateral order doctrine con prosecution cerns transfer for as an under V.I. Code adult 2508(b). a 5, in such that must be considered Ann. tit. The factors § Ann. tit. set out in V.I. Code are transfer decision carefully 2509(d), the formal correctness of the juvenile delinquency § A.M. tried and con- them. If is is not ultimately among complaint adult, the form of his victed as an concerning argument of a new is not mooted by filing juvenile delinquency complaint information, con- will be to obtain he able or appellate complaint at that time. sideration of his argument
V. should be overturned that the transfer decision A.M. next argues because the so-called 'Transfer summary" prepared by of Human Services recounted statement Islands Department worker, A. elic- mentioned social Vaughn Walwyn, previously tit. we of V.I. Code Ann. 2512. While ited from him violation statement was not admissible with A.M. against agree him, relief that A.M. was not entitled to the he hold sought Division, of the entire "transfer striking namely, *8 of Human Services submitted the summary" by Department and/ or the denial of transfer. the Islands Police
Prior to a transfer Department hearing, written re- and the of Human Services must submit Department to the factors that the court is the court concerning required ports 2509(e).5 5, must The to consider. V.I. Code Ann. tit. police report § 5, tit. address first four listed in V.I. Code Ann. the factors 2509(d), and all of which to the offense or offenses relate charged, § re- must address the the of Human Services Department report factors, character, the three all of which concern maining juvenile's or "transfer summaries" Such background, reports history. were in this submitted case. the
The the set out submitted summary by police department events its version of the disclosed by investigation. According old, account, D.B., was this a woman named then 16 years young in.a classroom in her school at 11:15 sitting high approximately adult, Mark, A.M. a.m. when A.M. and an entered the room. Jacob 5, 2509(e), Administration, refers to the Youth Services V.I. Code Arm. tit. § 3, 437, V.I.Code Ann. tit. § rather than the of Human Services. Under Department however, of Human Services. is deemed be a reference to the Department this them and to evade "while she tried repeat- fondled D.B. and Mark her then A.M. and Mark 86. dragged told them stop." App. edly door, D.B. and A.M. room and barricaded into a smaller raped down. Id. Mark held her while Human Services
The submitted by Department summary "social A.M.'s contained sections history," discussing properly However, the and court convictions. referrals family, previous out the version several also contained setting paragraphs summary been that had incident in provided allegedly question version, Mark after A.M. and A.M. to According Walwyn. D.B., asked classroom, with A.M. conversed entered eventually intercourse, then her consent. She and secured to have sexual her room, in consen- followed him into they engaged adjacent from the inside. the door while Mark sual intercourse guarded room, what had asked her D.B.'s friends later left When they A.M. broke out tears. and she allegedly speculated happened, her of fear of because D.B. had concocted rape allegation what she had done. learned reaction they parents' 5, 2512, statements to a Code Ann. tit. Under V.I. juvenile's § General, officers, or law enforcement employees Attorney inadmissible Human are Services against Department who does unless, a or other guardian among things, parent adult, child's attor or the an adverse not have friendly position, was statement [the] when was at the interrogation ney present met when A.M. were not These apparently given." requirements made his statement Walwyn. set out with the this failure to
Based on requirements comply a motion to strike filed Ann. tit. V.I. Code attorney Hu- submitted the entire Department summary *9 Services, memorandum that in a and she man supporting argued 46- not be transferred. See A.M. could without summary that the transfer In the summary 50. argued government response, that at most "the not be stricken and remedy" should appropriate of A.M.'s state- account the court to strike would be for Walwyn's however, insist- submitted ments. Id. at 58. reply attorney, transfer of Human Services' entire that the Department ing Later, the con- id. at at be Id. at See also 67. stricken.6 summary when of the transfer A.M/s attorney argued clusion again hearing, that the had obtained and his been that statement improperly stricken," the Division be whole transfer should Family summary stricken?... whole should be "The transfer summary judge replied: the Transfer Tr. authorized statute?" Even [it's] Hearing by though all that asked: does "[WJhat court at 186-87. The subsequently or transfer do with determination ... on whether to have my to insist that the at A.M/s continued not?" Id. 188. When attorney stricken, the be stated: summary judge Well, the stat- is authorized All transfer right. summary stricken, it man- [it's] If move to be when ute. are you going I'm it. . then not strike dated the statute . . going Id. A.M/s and the
Based written submissions of counsel on the summarized, relief that it to us that only colloquy appears was the from the Division A.M/s counsel striking sought Human Serv the entire submitted by Department summary These were ices or denial the transfer motion. requests were, denied. A.M/s and therefore While properly overly^broad V.I. Code Ann. tit. counsel would have been entitled under record, 2512, to her statement stricken from the she have client's § that relief. never narrower requested
Moreover, we see no indication whatsoever that the Family or de Division considered A.M/s statement evidence any judge The rived from that statement her decision. making made the statement or evidence derived no reference to any judge addition, it in her written order. In from her oral or findings believe suggested, previously quoted judge repeatedly demonstrate, she saw connection from the record that no excerpts 6A.M/s it would be insufficient to strike portion contended that attorney of the A.M.'s statement to as the summary recounting Walwyn, government had because A.M.'s statement had also influenced the section of suggested, Evaluation," the servation labelled which contained ob "Impressions summary that not remorse. Id. 67.A.M.'s attor A.M.had shown at by Walwyn stricken, were also then this section ney summary argued (see 2509(d) (e) not V.I.Code Ann. tit. summary would with comply 67), at would have be summary entire App. stricken, consequently Id. at 78. and transfer would have to denied. *10 deter- of and the transfer improper questioning the A.M. between "[W]hat by was her statement: mination. Her view summarized on to my as whether all that have to do with determination does statement, Furthermore, as A.M.'s or since transfer not?" Id. at 188. it car- exculpatory, was summary, entirely in transfer recounted the reasons, that prejudice.7 For hold potential little for these ried of Department the of A.M.'s statement in erroneous inclusion the of the does reversal summary require transfer not Human Services transfer decision.
VI. Family judge is Division erred argument A.M.'s last that testimony Wade, at during his the transfer permitting Detective that hearing, given to relate the accounts of the incident were A.M. that alleged argues victim other witnesses. rape hearsay probable is cause at a transfer not admissible to establish hearing. hearsay of in this suggest
A.M. seems to
that
admission
Due
or
context violates the
Process
Confrontation8 Clauses
dissent
A.M.
have been
because his statement
The
that
argues
might
prejudiced
that
not
As we
led
to observe
A.M. had
shown remorse.
Walwyn
interpret
record, however,
Division
never
asked
Family
attorney
specifically
(as
entire
strike or
this statement
striking
judge
disregard
opposed
(see
Services),
6, su
footnote
of Human
summary
Department
Division
Family
we are reluctant
to overturn
decision
pra),
that
done A.M.'s attorney
to do
the court
well have
might
failing
something
Moreover, A.M.'s
on
does not even
appeal
had
made the
brief
only
request.
remorse, and
ad
A.M.'s lack
this brief
mention
statement about
Walwyn's
"[t]here
no
was
way
rectify
heres
the all-or-nothing position
Br. at
to exclude the entire transfer summary." Appellant's
other than
wrong
Furthermore,
Divi
is
in the record
suggest
Family
there
nothing
and,
A.M.'s lack
remorse
relied- on
observation about
Walwyn's
sion judge
event,
it
not seem
Unless
that observation does
particularly prejudicial.
any
not
one
A.M.
the offenses
would
charged,
is assumed that
committed
actually
D.B.,
had
toward
who
remorseful or
him to be
expect
especially
sympathetic
Thus,
that the
concluding
caused his arrest.
because we see no basis for
Walwyn's
not think that
Division
A.M. was
we do
guilty,
assumed that
judge
observation was
prejudicial.
particularly
to "criminal
The
Clause of the Sixth Amendment applies
Confrontation
held to
criminal
have not been
prosecutions,"
juvenile proceedings
(1976);
See,
U.S.
37-38
Middendorf v.
e.g.,
Henry,
proceedings.
(1971)
Blackmun,
J.);
(opinion
McKeiver
403 U.S.
Pennsylvania,
v.
*11
He relies
U.S.C. 1561.
Islands
48
to the
made
applicable
(1966),
541,
States,
in which
Su
562
v.
383 U.S.
on Kent United
transfer
at a
held that
hearing
Court
juvenile
procedures
preme
and fair treat
of due
the essentials
must "measure
to
process
up
however,
added,
did not mean that
that it
ment." The Kent Court
of a crimi
with "all of
must conform
requirements
hearing
id.
administrative
or even of the usual
Following
nal trial
hearing,"
use of
Kent,
have held that the Constitution
courts
permits
many
Doe,
See,
F.2d at
v.
871
United States
at such hearings.
e.g.,
hearsay
(D.
924,
1989):
E.K,
(5th
471 F.
930
v.
Cir.
United States
1255
Supp.
(Ill. 1979);
366,
1979);
Clemons
v.
391 N.E.2d
372
Or.
People Taylor,
(Ind.
denied,
1974),
859,
cert.
State,
Ct.
v.
317 N.E.2d
863-67
App.
(Iowa
661,
(1975);
N.W.2d
664
v.
456
U.S. 859
State
423
Wright,
(Md.
639,
1990);
277 A.2d
644
Ct.
Hazell v.
Spec. App.
Maryland,
(Mass.
1182,
Watson,
1971);
447
1185
v.
N.E.2d
Commonwealth
(Minn.
137,
T.D.S.,
1983);
140-41
Welfare of
289 N.W.2d
Matter of
(Tex.
1979);
State,
536,
In
1980);
Civ.
v.
581 S.W.2d
538
G.R.L.
App.
(Wash.
Piche,
1212, 1217
1975);
Harbert,
442 P.2d
State v.
re
P.2d
538
(Wash.
(1968),
denied,
632,
1968),
and cert.
cert.
For this Rules of the Federal held that the ered the have provision question is to transfer of Evidence most proceedings closely applies 1101(d)(3), Rules Evidence states that the Federal Rule which ex do not with preliminary (except respect privileges) apply Doe, at v. 871 F.2d in cases. See United States aminations criminal n.2; E.K., with v. F. at We 1255 & United States Supp. agree Federal that under the this and we therefore conclude analysis, Evidence, is establish Rules admissible to hearsay probable Rules virtue Rule of the cause By hearings. Court, was admissible for it follows that Territorial hearsay case. purpose VII. reasons, Divi- affirm decision of the For these Appellate District sion of the Court.
STAPLETON, and J., Concurring Dissenting: V. I Because
I all of the of the court Section except join opinion the al- of A.M. about believe social worker Walwyn's interrogation of, to, his without crime in the absence and notice attorney leged as counsel as well his violated A.M.'s constitutional to rights right the court's under V.I.C. 2512.1 dissent from disposi- respectfully the for on tion of this I would remand further appeal. proceedings an A.M. for trial as adult. motion to transfer government's Wal- A.M. the offense when interviewed about alleged Walwyn was an knew A.M. attorney. represented by Walwyn's wyn on that inter- to the Territorial Court was based primarily report what version of view. In his alter report, Walwyn, reciting offense, the the drew the on following happened day alleged inferences: laid about the entire seems to be back
[A.M.] complacent the not understand affair. the man did Initially, fully young he was made of the him. later extent charges against Although his did not the of the attitude aware of extent change. charges, vic- alleged the what remorse for Additionally, he shows little is fault that that it her He indicated might experiencing. be tim easily told the have her she could things are hard on because truth. Territorial Court to Strike" that asked the filed a "Motion
A.M. in Wal- reported the as not A.M/s version of offense suppress sections the and recommendation wyn's report but also evaluation requested briefs report. The motion and associated of that "both because segments suppressed report latter these As App. 67. alleged lack of remorse." refer the minor's sections court, brief the explained A.M/s or had present at the interview attorney been
Had minor's [not to dis- instructions attorney's [prior] minor heeded the have been elicited anyone], no facts would cuss the case with be dis- presume that the minor should for the caseworker (i.e. inci- view of the minor's playing feelings remorse dent). 67. any portion of Wal- suppress Territorial declined to The Court government's motion report. hearing, granted After a it
wyn's findings Although trial as the court's to transfer A.M. for an adult. alleged of- refer to A.M.'s attitude toward the specifically do not testimony fense, Walwyn's report hearing on the court relied motion concluding government's as for that a denial a basis A.M. would provide prospect rehabilitation of no would public. inadequate protection for afford statute, statute before Islands as under the Under (1966) States, pro- a v. U.S. 541 Ken United Supreme Court in a adult is for trial ceeding on a motion to transfer result, on Id. at As a based "critically important" proceeding. (1967), Gault, that the I conclude teachings In re U.S. attorney present his Process entitled A.M. have Due Clause *14 concerning alleged of- state interrogated by he was when was finding no basis that there provides fense.1Since the record Fifth and Sixth Amend Act of 1954 makes the Section 3 of Revised Organic Islands. in the States Constitution ments United applicable Amend and cites the Sixth Motion Strike claims a to counsel right A.M/s to Amendment, to crimi- limited being It be that the Sixth support. may ment A.M., I can waiver of this right by voluntary knowing of A.M. without his conclude attorney Walwyn's questioning was unconstitutional. As the acknowledges, majority being present it also violated 5 V.I.C. 2512. failure to I am unable to conclude that the
Unlike my colleagues, error or that A.M/s was harmless the motion to grant suppress counsel, from thereafter too much A.M. asking precluded relief^ should have been that less than the entire sup- report maintaining that his It is clear from Walwyn's report testimony pressed. offense A.M.'s attitude toward the conclusion alleged concerning the events of the his of A.M. was based on interrogation regarding fruit of a tree. That conclusion was thus question. poisoned day Further, while it is conceivable to me that the Territorial Court gave attitude, I A.M.'s con- no conclusion weight Walwyn's regarding assume an absence sider that and am unlikely unwilling highly from the Territorial of reliance in the absence of assurance express individual accused or Court. When asked to determine whether an or whether such an indi- convicted of a crime can be rehabilitated vidual a threat to the courts and under- normally represents public, on the available information standably rely regarding individual's attitude towards the events in and I believe it question that the Territorial Court did so here. very likely out that A.M.'s counsel My colleagues correctly point sought However, entire to the extent suppression Walwyn's report. A.M.'s motion was based on the contention that inter- Walwyn's counsel, violated made clear rogation right briefing that A.M.'s concern was about the conclusion that above-quoted reached A.M.'s state of mind. Walwyn concerning I would reverse the order of the Territorial and remand for Court further If the Territorial Court is able to ex- proceedings. provide assurance that evaluation of A.M.'s attitude plicit Walwyn's played transfer, no role in its decision on I would of a new entry permit assurance, transfer order. If the court is unable to a new give another social worker would study report by necessary not, nal is not to a If it is proceedings, applicable proceeding. however, I believe there is a to counsel at that under the Due Proc- right stage ess Clause of the Fifth Amendment. A.M.'s motion made clear to the Terri- counsel, torial Court that he claimed a constitutional and I would hold right that this was sufficient to the issue. preserve *15 government's on the hearing for a new basis untainted provide transfer. motion