IN RE: A.M. ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
8-15-1994
IN RE: A.M.
Precedential or Non-Precedential:
Docket 93-7736
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 93-7736
____________
GOVERNMENT OF THE VIRGIN ISLANDS
IN THE INTEREST OF:
A.M., A Minor,
A.M., A Minor,
Appellant
____________________
ON APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
Division of St. Thomas and St.John
(D.C. Criminal No. 92-00071)
____________________
Argued: April 18, 1994
Before: STAPLETON, ALITO, and WEIS, Circuit Judges
(Opinion Filed: August 16, 1994)
____________________
BRENDA SCALES (Argued)
Territorial Public Defender
8191 Subbase, Ste. 16
P. O. Box 6040
Charlotte Amalie
St. Thomas, VI 00804
Attorney for the Appellant
ROSALIE SIMMONDS BALLENTINE
Attorney General
PAUL L. GIMENEZ
Solicitor General
ROBERT BORNHOLT (Argued)
DEANA M. BOLLING
Assistant Attorney General
DEPARTMENT OF JUSTICE
8050 Kronprindsens Gade, Suite 1
Charlotte Amalie
St. Thomas, VI 00802
Attorney for Government of the Virgin Islands
____________________
OPINION OF THE COURT
____________________
ALITO, Circuit Judge:
This appeal concerns an order transferring a juvenile
for prosecution as an adult. We hold that such a transfer order
is subject to pretrial appeal under the collateral order
doctrine, and we reject the juvenile's argument that the
transferring court committed various procedural errors, including
the admission of hearsay in violation of due process and Virgin
Islands law. We therefore affirm the decision of the Appellate
Division of the District Court, which sustained the transfer.
I.
In November 1991, a juvenile delinquency complaint was
filed against A.M., who was then 16 years old. The complaint
alleged that, on the previous day, A.M. had engaged in conduct
that, if committed by an adult, would have constituted the
felonies of first-degree rape, first-degree unlawful sexual
contact, first-degree assault, conspiracy, and kidnapping for
rape. In early December 1991, the Government of the Virgin
Islands filed a motion requesting that A.M. be transferred for
prosecution as an adult. After a hearing in May 1992, the Family
Division of the Territorial Court issued an order granting that
motion. In October 1992, the Appellate Division of the District
Court affirmed that order, and A.M. then took this appeal to our
court.
II.
Before addressing A.M.'s arguments, we will first
explain why we have jurisdiction to entertain his appeal. Under
28 U.S.C. § 12911 and 48 U.S.C. § 1613a(c),2 we have jurisdiction
over all "final decisions" of the District Court of the Virgin
Islands, including "all final decisions of the district court on
appeal from the courts established by local law," 48 U.S.C. §
1613a(c). Although the Appellate Division order from which this
appeal was taken is not a "final order" in the ordinary sense,
four other courts of appeals have held that district court orders
transferring juveniles for prosecution as adults under the
federal transfer statute, 18 U.S.C. § 5023, fall within the
1
. 28 U.S.C. § 1291 provides in pertinent part:
The courts of appeals (other than the
United States Court of Appeals for the
Federal Circuit) shall have jurisdiction of
appeals from all final decisions of the
district courts of the United States . . .
and the District Court of the Virgin Islands,
except where a direct review may be had in
the Supreme Court.
2
. 48 U.S.C. § 1613a(c) provides in pertinent part:
The United States Court of Appeals for
the Third Circuit shall have jurisdiction of
appeals from all final decisions of the
district court on appeal from the courts
established by local law.
collateral order doctrine and are therefore appealable before
trial. In re Sealed Case, 893 F.2d 363 (D.C. Cir. 1990); United
States v. Smith, 851 F.2d 706 (4th Cir. 1988), cert. denied, 112
S. Ct. 414 (1991); United States v. A.W.J., 804 F.2d 492 (8th
Cir. 1986); United States v. C.G., 736 F.2d 1474 (11th Cir.
1984). Cf. Guam v. Kingsbury, 649 F.2d 740 (9th Cir. 1981),
cert. denied, 454 U.S. 895 (1981) (holding, based on different
reasoning, that transfer order under Guam statute is subject to
pretrial appeal). These four courts of appeals have reasoned
that such orders represent the district court's final decision on
the transfer question, that this question is separate from the
merits of the prosecution, and that the denial of appellate
review until after the juvenile has been tried as an adult would
cause the irreparable loss of some of the statutory protections
offered to juvenile offenders, such as protection from
disclosure of court records. For essentially the reasons
explained in these decisions, we are persuaded that the Appellate
Division's order in this case falls within the collateral order
doctrine and is thus appealable.
We likewise hold that the Appellate Division of the
District Court had jurisdiction to hear A.M.'s appeal from the
decision of the Family Division of the Territorial Court. Under
48 U.S.C. § 1613a(a), the District Court currently has "such
appellate jurisdiction over the courts of the Virgin Islands
established by local law," and V.I. Code Ann. Tit. 5, § 2508(d)
specifically provides that a juvenile transfer order of the
Family Division is a "final appealable order." Moreover, the
general appellate jurisdiction of the District Court extends at
least to review of "final" decisions of the Territorial Court,3
and the Territorial Court's transfer order in this case was, as
previously discussed, "final" within the meaning of the
collateral order doctrine.
While we thus hold that transfer orders such as the one
at issue in this case are subject to two levels of appellate
review, we must express our concern about the potential for delay
that such appeals may produce. In the future, we believe that
appeals of transfer orders should be treated much like appeals of
detention orders. See 18 U.S.C. § 3145(c). The parties should
alert the Appellate Division and our court to the nature of the
appeal and request expedited disposition. The parties should
then be required to comply with short briefing deadlines;
extensions should be granted only in extreme situations; and such
cases should be given priority on the docket.
3
. V.I. Code Ann. tit. 4, § 33, provides that the district court
has appellate jurisdiction to review the "judgments and orders"
of the territorial court in all juvenile and domestic relations
cases, as well as in "all civil cases" and "all criminal cases in
which the defendant has been convicted, other than on a plea of
guilty." The District Court of the Virgin Islands has
interpreted this reference to "judgments and orders" as meaning
"final judgments and orders." Creque v. Roebuck, 16 V.I. 225,
227 (D.V.I. 1979) (emphasis in original). See also, e.g.,
Government of the Virgin Islands v. deJongh, D.C. Civ. App. No.
92-214, 1993 U.S. Dist. LEXIS 9402 (1993); Archer v. Aero Virgin
Islands Corp., D.C. Civ. App. No. 92-18 (D.V.I. Sept. 28, 1992).
Assuming for the sake of argument that V.I. Code Ann. tit. 4, §
33, contains this limitation, we nevertheless hold, for the
reasons explained in text, that the Territorial Court's order was
appealable.
III.
Turning to the merits of this appeal, we first address
A.M.'s argument that the Family Division judge did not properly
consider the likelihood of his rehabilitation if he was found to
have committed the alleged offenses. Under the transfer
provision applicable here, V.I. Code Ann. tit. 5, § 2508(a), the
Family Division "may" transfer a juvenile for adult prosecution
if the juvenile was at least 16 years old at the time of the
alleged offense, and the alleged offense would constitute a
felony if committed by an adult. While this provision commits
the transfer decision to the sound discretion of the Family
Division,4 another provision, V.I. Code Ann. tit. 5, § 2509(d),
provides that evidence of seven specified factors "shall be
considered in determining transfer." These factors are:
(1) the seriousness of the alleged
offense to the community and whether the
protection of the community requires waiver;
(2) whether the alleged offense was
committed in an aggressive, violent,
premeditated or willful manner;
(3) whether the alleged offense was
against property, greater weight being given
to offenses against persons, especially if
personal injury resulted;
(4) whether there is probable cause to
believe that the offense charged has been
committed and that the child has committed
it;
4
. Cf. United States v. G.T.W., 992 F.2d 198, 199 (8th Cir.
1993) (federal transfer statute); United States v. Romulus, 949
F.2d 713, 715 (4th Cir. 1991), cert. denied, 112 S. Ct. 1690
(1992); United States v. Doe, 871 F.2d 1248, 1252 (5th Cir.),
cert. denied, 493 U.S. 917 (1989).
(5) the sophistication and maturity of
the child as determined by consideration of
his home, emotional attitude and pattern of
living;
(6) the record and previous history of
the juvenile, including previous contacts
with the Youth Services Administration, law
enforcement agencies and courts, and prior
periods of probation or prior commitments to
residential institutions;
(7) the prospects for adequate
protection of the public and the likelihood
of reasonable rehabilitation of the child, if
found to have committed the alleged offenses.
Id. (emphasis added).
In deciding that A.M. should be transferred, the Family
Division judge specifically discussed all of these factors,
including the factor of rehabilitation. In her oral findings,
she noted that the only witness who testified concerning
rehabilitation was a social worker from the Virgin Islands
Department of Human Services named Vaughn A. Walwyn and that
Walwyn had testified without contradiction that there were no
programs for juvenile sexual offenders in the Virgin Islands.
App. 123. The judge thus concluded that there was "nothing
available" or at least "nothing that [had] come to the Court's
attention" that created "a likelihood of reasonable
rehabilitation" for A.M. if he was treated as a juvenile and was
found to have committed the offenses charged. Id.
The Family Division judge again addressed the question
of rehabilitation in her written transfer order. There, she made
the following finding:
That the testimony elicited at the
hearing disclosed that there is no program of
rehabilitation in the Virgin Islands for
minors who are found delinquent of the crime
with which the minor is charged.
App. 20.
In attacking the decision of the Family Division, A.M.
suggests that the court erred because it did not consider whether
he could be rehabilitated if sent to a juvenile facility outside
the Virgin Islands. See Appellant's Br. at 13, 17-18. We
disagree with this argument. The Virgin Islands transfer statute
required the Family Division to consider evidence concerning "the
likelihood of reasonable rehabilitation" of A.M. if he was found
to have committed the alleged offense, V.I. Code Ann. tit. 5, §
2509(d)(7). This language does not expressly require that the
court survey the availability of suitable rehabilitation
facilities in other jurisdictions, and we see no reason to
suppose that the Virgin Islands Legislature intended to impose
any such inflexible requirement. If A.M.'s attorney was aware of
specific, suitable facilities outside the Virgin Islands, she
could have called them to the judge's attention. In that event,
the Family Division judge could have considered whether sending
A.M. to any of these facilities represented a "reasonable
rehabilitation" plan under all of the circumstances, including
the cost to the Government of the Virgin Islands. It does not
appear, however, that A.M.'s attorney identified any particular
facility outside the Virgin Islands, and we consequently do not
believe that the judge erred in limiting her consideration to the
facilities and programs that had "come to the Court's attention."
App. 123.
In a related argument, A.M. seems to suggest that the
Family Division should not have considered his likelihood of
rehabilitation in light of the juvenile facilities that the
Government of the Virgin Islands has chosen to create but should
have instead considered his likelihood of rehabilitation in light
of the juvenile facilities that he believes the Government should
have created. We disagree with this argument as well. It seems
most unlikely that the Legislature of the Virgin Islands, when it
provided in V.I. Code Ann. tit. 5, § 2509(d)(7), that the Family
Division must consider a juvenile's "likelihood of reasonable
rehabilitation," meant to require or authorize the Family
Division to decide whether the Legislature had provided for the
creation of adequate juvenile facilities. Rather, we believe
that the Legislature meant to require the Family Division to
consider the likelihood of a juvenile's rehabilitation in light
of the facilities and programs then available. Here, the Family
Division judge carried out that responsibility.
IV.
A.M. next argues that the juvenile delinquency
complaint did not comply with the requirements of V.I. Code Ann.
tit. 5, § 2510(a), which provides that such "[c]omplaints shall
be verified and may be signed by any person who has knowledge of
the facts alleged." In this case, the complainant, Detective
Merlin Wade, did not personally sign either the complaint or the
verification. Instead, both are signed by another person "for M.
Wade." App. 32, 33.
We do not reach the question whether this mode of
signing or verification satisfied the statutory requirements
because we do not believe that the formal correctness of the
complaint is an issue that is properly before us in this appeal.
The sole question that we may consider at this time under the
collateral order doctrine concerns A.M.'s transfer for
prosecution as an adult under V.I. Code Ann. tit. 5, § 2508(b).
The factors that must be considered in such a transfer decision
are carefully set out in V.I. Code Ann. tit. 5, § 2509(d), and
the formal correctness of the juvenile delinquency complaint is
not among them. If A.M. is ultimately tried and convicted as an
adult, and if his argument concerning the form of the juvenile
delinquency complaint is not mooted by the filing of a new
complaint or information, he will be able to obtain appellate
consideration of his argument at that time.
V.
A.M. next argues that the transfer decision should be
overturned because the so-called "transfer summary" prepared by
the Virgin Islands Department of Human Services recounted a
statement that the previously mentioned social worker, Vaughn A.
Walwyn, elicited from him in violation of V.I. Code Ann. tit. 5,
§ 2512. While we agree with A.M. that this statement was not
admissible against him, we hold that A.M. was not entitled to the
relief he sought in the Family Division, namely, the striking of
the entire "transfer summary" submitted by the Department of
Human Services and/or the denial of transfer.
Prior to a transfer hearing, the Virgin Islands Police
Department and the Department of Human Services must submit
written reports to the court concerning the factors that the
court is required to consider. V.I. Code Ann. tit. 5, §
2509(e).5 The police report must address the first four factors
listed in V.I. Code Ann. tit. 5, § 2509(d), all of which relate
to the offense or offenses charged, and the Department of Human
Services report must address the remaining three factors, all of
which concern the juvenile's character, background, and history.
Such reports or "transfer summaries" were submitted in this case.
The summary submitted by the police department set out
the version of the events disclosed by its investigation.
According to this account, a young woman named D.B., then 16
years old, was sitting in a classroom in her high school at
approximately 11:15 a.m. when A.M. and an adult, Jacob Mark,
entered the room. A.M. and Mark fondled D.B. "while she tried to
evade them and repeatedly told them to stop." App. 86. A.M. and
Mark then dragged her into a smaller room and barricaded the
door, and A.M. raped D.B. while Mark held her down. Id.
The summary submitted by the Department of Human
Services properly contained sections discussing A.M.'s "social
5
. V.I. Code Ann. tit. 5, § 2509(e), refers to the Youth
Services Administration, rather than the Department of Human
Services. Under V.I. Code Ann. tit. 3, § 437, however, this is
deemed to be a reference to the Department of Human Services.
history," family, and previous referrals and court convictions.
However, the summary also contained several paragraphs setting
out the version of the incident in question that had allegedly
been provided by A.M. to Walwyn. According to this version,
after A.M. and Mark entered the classroom, A.M. conversed with
D.B., eventually asked her to have sexual intercourse, and
secured her consent. She then followed him into an adjacent
room, and they engaged in consensual intercourse while Mark
guarded the door from the inside. When they later left the room,
D.B.'s friends asked her what had happened, and she broke out in
tears. A.M. allegedly speculated that D.B. had concocted the
rape allegation because of fear of her parents' reaction if they
learned what she had done. App. 92.
Under V.I. Code Ann. tit. 5, § 2512, a juvenile's
statements to law enforcement officers, the Attorney General, or
employees of the Department of Human Services are inadmissible
against the juvenile unless, among other things, "a parent or
guardian who does not have an adverse position, a friendly adult,
or the child's attorney was present at the interrogation when
[the] statement was given." These requirements were apparently
not met when A.M. made his statement to Walwyn.
Based on this failure to comply with the requirements
set out in V.I. Code Ann. tit. 5, § 2512, A.M.'s attorney filed a
motion to strike the entire transfer summary submitted by the
Department of Human Services, and she argued in a supporting
memorandum that without this summary A.M. could not be
transferred. See App. 46-50. In response, the government argued
that the transfer summary should not be stricken and that at most
"the appropriate remedy" would be for the court to strike
Walwyn's account of A.M.'s statements. Id. at 58. A.M.'s
attorney, however, submitted a reply insisting that the entire
Department of Human Services' transfer summary be stricken.6 Id.
at 78. See also id. at 67. Later, at the conclusion of the
transfer hearing, when A.M.'s attorney again argued that his
statement had been improperly obtained and that "the whole
transfer summary should be stricken," the Family Division judge
replied: "The whole transfer summary should be stricken? . . .
Even though [it's] authorized by the statute?" Transfer Hearing
Tr. at 186-87. The court subsequently asked: "[W]hat does all
that have to do with my determination . . . on whether to
transfer or not?" Id. at 188. When A.M.'s attorney continued to
insist that the summary be stricken, the judge stated:
All right. Well, the transfer summary is
authorized by the statute. If you are going
to move it to be stricken, when [it's]
mandated by the statute . . . then I'm not
going to strike it.
Id.
6
. A.M.'s attorney contended that it would be insufficient to
strike only the portion of the summary recounting A.M.'s
statement to Walwyn, as the government had suggested, because
A.M.'s statement had also influenced the section of the summary
labelled "Impressions and Evaluation," which contained an
observation by Walwyn that A.M. had not shown remorse. Id. at
67. A.M.'s attorney then argued that if this section of the
summary were also stricken, the summary would not comply with
V.I. Code Ann. tit. 5, § 2509(d) and (e) (see App. at 67), and
that consequently the entire summary would have to be stricken,
and transfer would have to be denied. Id. at 78.
 Based on the written submissions of A.M.'s counsel and
the colloquy summarized above, it appears to us that the only
relief that A.M.'s counsel sought from the Family Division was
the striking of the entire summary submitted by the Department of
Human Services or the denial of the transfer motion. These
requests were overly broad and were therefore properly denied.
While A.M.'s counsel would have been entitled under V.I. Code
Ann. tit. 5, § 2512, to have her client's statement stricken from
the record, she never requested that narrower relief.
Moreover, we see no indication whatsoever that the
Family Division judge considered A.M.'s statement or any evidence
derived from that statement in making her transfer decision. The
judge made no reference to the statement or any evidence derived
from it in her oral findings or her written order. In addition,
the judge repeatedly suggested, as we believe the previously
quoted excerpts from the record demonstrate, that she saw no
connection between the improper questioning of A.M. and the
transfer determination. Her view was summarized by her
statement: "[W]hat does all that have to do with my
determination as on whether to transfer or not?" Id. at 188.
Furthermore, since A.M.'s statement, as recounted in the transfer
summary, was entirely exculpatory, it carried little potential
for prejudice.7 For these reasons, we hold that the erroneous
7
. The dissent argues that A.M. might have been prejudiced
because his statement led Walwyn to observe that A.M. had not
shown remorse. As we interpret the record, however, A.M.'s
attorney never specifically asked the Family Division judge to
strike or disregard this statement (as opposed to striking the
entire transfer summary of the Department of Human Services),
inclusion of A.M.'s statement in the Department of Human Services
transfer summary does not require reversal of the transfer
decision.
VI.
A.M.'s last argument is that the Family Division judge
erred in permitting Detective Wade, during his testimony at the
transfer hearing, to relate the accounts of the incident that
were given by the alleged rape victim and by other witnesses.
A.M. argues that hearsay is not admissible to establish probable
cause at a transfer hearing.
A.M. seems to suggest that the admission of hearsay in
this context violates the Due Process or Confrontation8 Clauses
(..continued)
(see footnote 6, supra), and we are reluctant to overturn a
decision of the Family Division for failing to do something that
that court might well have done if A.M.'s attorney had only made
the request. Moreover, A.M.'s brief on appeal does not even
mention Walwyn's statement about A.M.'s lack of remorse, and this
brief adheres to the all-or-nothing position that "[t]here was no
way to rectify the wrong other than to exclude the entire
transfer summary." Appellant's Br. at 24. Furthermore, there is
nothing in the record to suggest that the Family Division judge
relied on Walwyn's observation about A.M.'s lack of remorse and,
in any event, that observation does not seem particularly
prejudicial. Unless it is assumed that A.M. actually committed
the offenses charged, one would not expect him to be especially
remorseful or sympathetic toward D.B., who had caused his arrest.
Thus, because we see no basis for concluding that the Family
Division judge assumed that A.M. was guilty, we do not think that
Walwyn's observation was particularly prejudicial.
8
. The Confrontation Clause of the Sixth Amendment applies only
to "criminal prosecutions," and juvenile proceedings have not
been held to be criminal proceedings. See, e.g., Middendorf v.
Henry, 425 U.S. 25, 37-38 (1976); McKeiver v. Pennsylvania, 403
U.S. 528, 541 (1971) (opinion of Blackmun, J.); id. at 553
(Brennan, J., concurring); In re Gault, 387 U.S. 1, 30 (1967);
Sadler v. Sullivan, 748 F.2d 820, 824 n.12 (3d Cir. 1984). It
as made applicable to the Virgin Islands by 48 U.S.C. § 1561. He
relies on Kent v. United States, 383 U.S. 541, 562 (1966), in
which the Supreme Court held that procedures at a juvenile
transfer hearing must "measure up to the essentials of due
process and fair treatment." The Kent Court added, however, that
it did not mean that the hearing must conform with "all of the
requirements of a criminal trial or even of the usual
administrative hearing," id. Following Kent, many courts have
held that the Constitution permits use of hearsay at such
hearings. See, e.g., United States v. Doe, 871 F.2d at 1255 (5th
Cir. 1989); United States v. E.K., 471 F. Supp. 924, 930 (D. Or.
1979); People v. Taylor, 391 N.E.2d 366, 372 (Ill. 1979); Clemons
v. State, 317 N.E.2d 859, 863-67 (Ind. Ct. App. 1974), cert.
denied, 423 U.S. 859 (1975); State v. Wright, 456 N.W.2d 661, 664
(Iowa 1990); Hazell v. Maryland, 277 A.2d 639, 644 (Md. Ct. Spec.
App. 1971); Commonwealth v. Watson, 447 N.E.2d 1182, 1185 (Mass.
1983); Matter of Welfare of T.D.S., 289 N.W.2d 137, 140-41 (Minn.
1980); G.R.L. v. State, 581 S.W.2d 536, 538 (Tex. Civ. App.
1979); In re Harbert, 538 P.2d 1212, 1217 (Wash. 1975); State v.
Piche, 442 P.2d 632, 635 (Wash. 1968), cert. denied, 393 U.S. 969
(1968), and cert. denied, 393 U.S. 1041 (1969). Cf. O.M. v.
State, 595 So. 2d 514, 516 (Ala. Crim. App. 1991), cert. quashed,
595 So. 2d 528 (Ala. 1992) (hearsay admissible in juvenile
(..continued)
thus appears that the constitutionality of admitting hearsay in
this case should be judged under principles of due process. See
In re Gault, 387 U.S. at 30; Kent v. United States, 383 U.S. 541,
562 (1966).
transfer hearing except when it violates rights of cross-
examination or confrontation). We agree with the weight of this
authority.
It is settled that the Constitution permits the use of
hearsay to show probable cause in a number of contexts. For
example, it is constitutional to rely on hearsay to establish
probable cause for an arrest. See, e.g., United States v.
Matlock, 415 U.S. 164, 173 (1974); United States v. Ventresca,
380 U.S.102, 107-08 (1965); Brinegar v. United States, 338 U.S.
160, 173-74 (1949). The Constitution also permits a grand jury
to rely on hearsay in finding that there is probable cause to
believe that a defendant committed a criminal offense. Costello
v. United States, 350 U.S. 359, 361-63 (1956). Likewise, Rule
5.1 of the Federal Rules of Criminal Procedure provides that
"[t]he finding of probable cause [at a preliminary examination]
may be based upon hearsay evidence in whole or in part," and we
assume that this provision is constitutional.
A probable cause determination under Fed. R. Cr. P.
5.1(a) is closely analogous to the probable cause determination
made by the Family Division in this case, i.e., that there was
probable cause to believe that A.M. committed the offenses with
which he was charged. To be sure, Rule 5.1(a) applies to
proceedings against adult defendants, whereas transfer
proceedings involve juveniles, but we are not aware of any
decision of the Supreme Court or of this court holding that the
Constitution imposes stricter evidentiary standards in juvenile
than in adult proceedings. On the contrary, the Supreme Court
has stated that juvenile proceedings need not be conducted in
conformity with all of the formal procedural requirements
applicable in criminal trials. In re Gault, 387 U.S. at 30;
Kent, 383 U.S. at 562. Consequently, we are convinced that the
admission of hearsay to establish probable cause in a juvenile
transfer proceeding is constitutionally permissible.
Contrary to A.M.'s argument, we also believe that
Virgin Islands law permits the admission of hearsay in this
context. We have not found any Virgin Islands statute or court
rule that addresses this specific question. However, Rule 7 of
the Rules of the Territorial Court provides that "[t]he practice
and procedure in the territorial court shall conform as nearly as
may be to that in the district court in like causes, except where
there is an express provision in the law or these rules to the
contrary." We therefore examine whether hearsay would be
admissible in a juvenile transfer proceeding in district court.
Rule 1101(a) of the Federal Rules of Evidence provides
that these rules apply to the District Court of the Virgin
Islands, as well as to the federal district courts. Subsections
(b) and (e) of Rule 1101 then list certain proceedings in which
the Federal Rules of Evidence apply in whole or in part, and
subsection (d) lists certain proceedings in which the rules do
not apply, except with respect to privileges. Unfortunately,
neither juvenile proceedings in general nor juvenile transfer
proceedings in particular are listed in any of these
subdivisions. Moreover, while subsection (b) states that the
rules apply generally to all "civil actions and proceedings" and
to all "criminal cases and proceedings," juvenile transfer
proceedings do not fall neatly into either of these categories.
Even a proceeding on the merits of a juvenile delinquency charge
cannot easily be categorized as either "civil" or "criminal."
See McKeiver v. Pennsylvania, 403 U.S. at 541 (Opinion of
Blackmun, J.). More importantly, the proceeding at issue here --
a transfer hearing -- is of a preliminary nature and is
consequently not comparable to a civil or criminal trial.
For this reason, the only federal courts that have
considered the question have held that the provision of the
Federal Rules of Evidence that most closely applies to transfer
proceedings is Rule 1101(d)(3), which states that the Federal
Rules of Evidence (except with respect to privileges) do not
apply to preliminary examinations in criminal cases. See United
States v. Doe, 871 F.2d at 1255 & n.2; United States v. E.K., 471
F. Supp. at 930. We agree with this analysis, and we therefore
conclude that under the Federal Rules of Evidence, hearsay is
admissible to establish probable cause in juvenile transfer
hearings. By virtue of Rule 7 of the Rules of the Territorial
Court, it follows that hearsay was admissible for this purpose in
A.M.'s case.
VII.
For these reasons, we affirm the decision of the
Appellate Division of the District Court.
GOVERNMENT OF THE VIRGIN ISLANDS IN THE
INTEREST OF: A.M., A MINOR, No. 93-7736
STAPLETON, J., Concurring and Dissenting:
I join all of the opinion of the court except Section
V. Because I believe social worker Walwyn's interrogation of
A.M. about the alleged crime in the absence of, and without
notice to, his attorney violated A.M.'s constitutional right to
counsel as well as his rights under 5 V.I.C. § 2512, I
respectfully dissent from the court's disposition of this appeal.
I would remand for further proceedings on the government's motion
to transfer A.M. for trial as an adult.
Walwyn interviewed A.M. about the alleged offense when
Walwyn knew that A.M. was represented by an attorney. Walwyn's
report to the Territorial Court was based primarily on that
interview. In his report, Walwyn, after reciting A.M.'s version
of what happened on the day of the alleged offense, drew the
following inferences:
[A.M.] seems to be complacent and laid back
about the entire affair. Initially, the
young man did not fully understand the extent
of the charges against him. Although he was
later made aware of the extent of the
charges, his attitude did not change.
Additionally, he shows little remorse for
what the alleged victim might be
experiencing. He indicated that it is her
fault that things are hard on her because she
could have easily told the truth.
A.M. filed a "Motion to Strike" that asked the
Territorial Court to suppress not only A.M.'s version of the
offense as reported in Walwyn's report but also the evaluation
and recommendation sections of that report. The motion and
associated briefs requested that these latter segments of the
report be suppressed because "both sections refer to the minor's
alleged lack of remorse." App. 67. As A.M.'s brief explained to
the court,
Had the minor's attorney been present at the
interview or had the minor heeded the
attorney's [prior] instructions [not to
discuss the case with anyone], no facts would
have been elicited for the caseworker to
presume that the minor should be displaying
feelings of remorse (i.e. the minor's view of
the incident).
App. 67.
The Territorial Court declined to suppress any portion
of Walwyn's report. After a hearing, it granted the government's
motion to transfer A.M. for trial as an adult. Although the
court's findings do not specifically refer to A.M.'s attitude
toward the alleged offense, the court relied on Walwyn's report
and hearing testimony as a basis for concluding that a denial of
the government's motion would provide no prospect for
rehabilitation of A.M. and would afford inadequate protection for
the public.
Under the Virgin Islands statute, as under the statute
before the Supreme Court in Kent v. United States, 383 U.S. 541
(1966), a proceeding on a motion to transfer a juvenile for trial
as an adult is a "critically important" proceeding. Id. at 560.
As a result, based on the teachings of In re Gault, 387 U.S. 1
(1967), I conclude that the Due Process Clause entitled A.M. to
have his attorney present when he was interrogated by the state
concerning the alleged offense.9 Since the record provides no
basis for finding that there was a knowing and voluntary waiver
of this right by A.M., I can only conclude that Walwyn's
questioning of A.M. without his attorney being present was
unconstitutional. As the majority acknowledges, it also violated
5 V.I.C. § 2512.
Unlike my colleagues, I am unable to conclude that the
failure to grant the motion to suppress was harmless error or
that A.M.'s counsel, by asking too much relief, precluded A.M.
from thereafter maintaining that less than the entire report
should have been suppressed. It is clear from Walwyn's report
and testimony that his conclusion concerning A.M.'s attitude
toward the alleged offense was based on his interrogation of A.M.
regarding the events of the day in question. That conclusion was
thus fruit of a poisoned tree. Further, while it is conceivable
to me that the Territorial Court gave no weight to Walwyn's
conclusion regarding A.M.'s attitude, I consider that highly
9
. Section 3 of the Revised Organic Act of 1954 makes the Fifth
and Sixth Amendments of the United States Constitution applicable
in the Virgin Islands. A.M.'s Motion to Strike claims a right to
counsel and cites the Sixth Amendment in support. It may be that
the Sixth Amendment, being limited to criminal proceedings, is
not applicable to a juvenile transfer proceeding. If it is not,
however, I believe there is a right to counsel at that stage
under the Due Process Clause of the Fifth Amendment. A.M.'s
motion made clear to the Territorial Court that he claimed a
constitutional right to counsel, and I would hold that this was
sufficient to preserve the issue.
unlikely and am unwilling to assume an absence of reliance in the
absence of express assurance from the Territorial Court. When
asked to determine whether an individual accused or convicted of
a crime can be rehabilitated or whether such an individual
represents a threat to the public, courts normally and
understandably rely on the available information regarding the
individual's attitude towards the events in question and I
believe it very likely that the Territorial Court did so here.
My colleagues correctly point out that A.M.'s counsel
sought suppression of Walwyn's entire report. However, to the
extent A.M.'s motion was based on the contention that Walwyn's
interrogation violated A.M.'s right to counsel, the briefing made
clear that A.M.'s concern was about the above-quoted conclusion
that Walwyn reached concerning A.M.'s state of mind.
I would reverse the order of the Territorial Court and
remand for further proceedings. If the Territorial Court is able
to provide explicit assurance that Walwyn's evaluation of A.M.'s
attitude played no role in its decision on transfer, I would
permit the entry of a new transfer order. If the court is unable
to give that assurance, a new study and report by another social
worker would be necessary to provide an untainted basis for a new
hearing on the government's motion to transfer.