GOVERNMENT OF VIRGIN ISLANDS IN INTERESTS OF AA

• Decision Date: 11 June 1996
• Docket Number: D.C.Crim.App. No. 95-105. D.C.Crim. No. 95-119 to 95-121 and 95-138.
• Citation: 931 F. Supp. 1247
• Parties: GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of A.A., Minor/Appellant. GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of C.B., Minor/Appellant. GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of N.G., Minor/Appellant. GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of C.C., Minor/Appellant. GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of J.M., Minor/Appellant.
• Court: U.S. District Court — Virgin Islands

931 F. Supp. 1247

GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of A.A., Minor/Appellant GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of C.B., Minor/Appellant GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of N.G., Minor/Appellant GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of C.C., Minor/Appellant GOVERNMENT OF the VIRGIN ISLANDS, in the Interests of J.M., Minor/Appellant.

D.C.Crim.App. No. 95-105. D.C.Crim. Nos. 95-119 to 95-121 and 95-138.

District Court, Virgin Islands, Division of St. Thomas and St. John, Appellate Division.

Considered and Argued December 1, 1995.

Decided June 11, 1996.

Ronald T. Mitchell, St. Thomas, U.S.V.I., for Appellant A.A. Leslie L. Payton, Office of the Territorial Public Defender, St. Thomas, U.S.V.I., for Appellants C.B. and J.M.

Andrew L. Capdeville, St. Thomas, U.S.V.I., for Appellant N.G.

Denise Francois, and Adam G. Christian, Law Offices of Hodge & Francois, St. Thomas, U.S.V.I., for Appellant C.C.

Maureen Phelan, and Joel Feld, Assistant Attorneys General, Virgin Islands Department of Justice, St. Thomas, U.S.V.I., for Appellee Government of the Virgin Islands.

Before THOMAS K. MOORE, Chief Judge, District Court of the Virgin Islands; RAYMOND L. FINCH, Judge of the District Court of the Virgin Islands, Division of St. Croix, Virgin Islands; and MARIA M. CABRET, Territorial Court Judge, Division of St. Croix, Sitting by Designation.

PER CURIAM.

We consolidated these five juvenile cases on appeal from the Territorial Court of the Virgin Islands for decision since they all challenge the procedures applied by the Territorial Court to mandatory transfers of juvenile offenders from the Family Division to the Criminal Division for treatment as adults under V.I.CODE ANN. tit. 5, §§ 2508 and 2509. For the reasons stated herein, we will reverse the remaining four transfer orders¹ and remand the cases to the Territorial Court for further proceedings consistent with this Opinion.

FACTUAL BACKGROUND

Although these remaining four juveniles were transferred under the mandatory transfer provisions of 5 V.I.C. § 2508(b), no summons were issued or served on any of these four appellants with the motion to transfer, as required by subsection 2509(a).² We set forth the facts of each case separately and consider the issues they present collectively.

A.A.

On March 17, 1995, the Government of the Virgin Islands "Government" obtained an arrest warrant for A.A., age 17, for acts of delinquency which would constitute the crime of first degree murder if done by an adult. On April 19, 1995, the Government filed a Juvenile Delinquency Complaint charging first degree murder and kidnapping and a Motion to Transfer based on the mandatory transfer of first degree murder charges against a juvenile. After probable cause was established to charge A.A. with first degree murder,³ a transfer hearing was conducted with appellant represented by counsel.⁴ The court granted the motion to transfer on April 20th. On April 22, the Government filed an information in the regular criminal division, charging appellant with first degree murder, kidnapping, and, for the first time, receipt of stolen property. A.A. was advised of his rights and ordered detained without bail. A.A. filed his notice of appeal on April 27, 1995.

J.M.

On March 17, 1995, the Government obtained an arrest warrant for J.M., age 17,⁵ growing out of the same incident for which A.A. was arrested and transferred on the charge of first degree murder. Appellant was arrested on April 10, 1995. On April 11th, with his legal counsel and father present, J.M. was advised of his rights, probable cause was found to charge him with first degree murder, and a motion was filed by the Government for pretrial detention. The court found that detention was necessary given appellant's recent violent history and the seriousness of the charge against him, and ordered J.M. detained. A motion to transfer was filed on April 12, 1995 and heard on April 18th, with J.M. accompanied by his father and his attorney. Before the hearing, the appellant filed his opposition to transfer and the Government filed a criminal complaint.⁶ The judge granted the motion to transfer from the bench and set bail, issuing a written order granting the transfer on April 20, 1995. J.M. filed his notice of appeal on April 27, 1995.⁷

C.B.

C.B., age 16, was arrested on November 23, 1994 for his involvement in the commission of a robbery. On November 25, 1994, C.B. appeared before the court with his mother and a representative of Human Services. After probable cause was found that C.B. was involved with the first degree robbery, he was advised of his rights and counsel was appointed to represent him. C.B. was not in custody when he appeared for the advice of rights hearing.⁸

On December 20, 1994, the Government filed a complaint alleging that appellant committed first degree robbery and unlawful possession of a firearm. The complaint was accompanied by a motion for mandatory transfer under 5 V.I.C. § 2508(b)(2), since the offense now charged would be a violent crime if committed by an adult and the minor was alleged previously to have been adjudicated delinquent for a felony-type offense (in this case, unlawful sexual contact), and under subsection 2508(b)(4) for the possession of a deadly weapon.⁹ At a hearing on the same day, the minor's mother and legal counsel accompanied C.B.¹⁰ The court did not re-examine the finding of probable cause.¹¹ Without any further hearing on the motion, the judge entered an order dated March 1, 1995 finding that all the elements required for mandatory transfer under subsections 2508(b)(2) and (3) existed,¹² and transferred C.B. for trial as an adult. C.B. timely appealed.

N.G.

On February 1, 1995, appellant, fourteen years old, was arrested and charged with first degree murder. At the initial appearance the next day, N.G. appeared with his parents and counsel. The trial court found probable cause to charge N.G. with first degree murder¹³ and granted the Government's motion for pre-trial detention. On February 21, the Government filed its Complaint and a motion to transfer pursuant to 5 V.I.C. § 2508(b)(4) and a hearing was conducted.¹⁴ Appellant objected to the transfer on March 3, 1995 on constitutional grounds and requested a discretionary transfer hearing under 5 V.I.C. § 2509. No transfer hearing was conducted, but an order was issued on April 25, 1995 granting the Government's request to transfer and finding that such transfer was mandatory since N.G. was charged with first degree murder. The court also held that section 2508 is constitutional, and that transfer was mandatory, not discretionary, whether or not the Government filed a motion to transfer. Appellant N.G.'s Appendix "N.G.App." at 4-24. N.G.'s timely appeal presents the same issues argued at the trial level.

ISSUES PRESENTED

1. Whether the Family Division has jurisdiction and authority to transfer a minor to the Criminal Division in the absence of a summons being issued and served on the minor, together with a copy of the juvenile complaint and motion for transfer;¹⁵

2. Whether a minor charged with a mandatorily transferable act of delinquency is entitled to an adversarial hearing on the determination of probable cause to believe he committed the charged act of delinquency before he may be ordered transferred for trial as an adult;¹⁶

3. Whether the Family Division must articulate its reasons in a written transfer order, including a finding of probable cause;¹⁷

4. Whether transfer from the Family Division to the Criminal Division for trial as an adult is a transfer of the person or only the specific mandatorily-transferable acts of delinquency pending against the minor at the time of the transfer, e.g. if a minor is transferred on the basis of a first degree murder charge, can other felonies be added for the first time in the Criminal Division;¹⁸ and

5. Constitutional issues of due process and equal protection under the Fifth and Fourteenth Amendments arising out of the mandatory transfer provisions of the Virgin Islands juvenile transfer statute, as amended in 1994, are also raised:

A. Whether the trial court erred in interpreting the transfer provisions as prohibiting judicial discretion to allow a 14 year old charged with murder to be tried as a juvenile rather than as an adult;

B. Whether these provisions violate due process because the only sentence available upon a 14 year old's conviction of first degree murder is life imprisonment without possibility of parole; and

C. Whether these provisions violate due process by vesting complete discretion in the Attorney General to determine whether a 14 year old should be tried as an adult.

DISCUSSION

The Statutory Scheme

In 1994, the Virgin Islands Legislature amended the juvenile transfer provisions of the Virgin Islands Code to lower the age for transfer to fourteen¹⁹ and to expand the list of juvenile acts for which transfer for trial as an adult would be mandatory. V.I.CODE ANN. tit. 5, § 2508(b) now provides that

if a child or adult is charged with an offense which would be a felony if committed by an adult, and the child or adult was fourteen years of age or older at the time of the alleged offense, the Family Division of the Territorial Court, after a determination of probable cause, shall transfer the person for proper criminal proceedings to a court of competent criminal jurisdiction when:

(1) the person has been twice adjudicated to be a delinquent for offenses which would constitute a felony if committed by an adult; or

(2) the offense now charged is an offense which would be a violent crime, as defined herein, if committed by an adult and the person has at least once been adjudicated to be a delinquent child for an offense which would constitute a felony if committed by an adult; or

(3) the offense now charged is an offense which would be a felony if committed by an adult and the person has

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