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IN THE SUPREME COURT OF THE VIRGIN ISLANDS GOVERNMENT OF THEVIRGIN ) ISLANDS, ) S. Ct. Crim. No. 2007-074 Appellant/Plaintiff, ) Re: Super. Ct. Crim. No. 258/2002 ) Re: Super. Ct. Crim. No. 227/2002 Vv. ) ) SELVIN DURANT, ) Appellee/Defendant. ) ) ) NOTICE OF ENTRY OF JUDGMENT/ORDER Gl Wd LI NV 8002 LYNOD AW3udNS TO: Justices of the Supreme Court Edgar D. Ross, Justice Pro Tem Judges of the Superior Court Tiffany V. Robinson, Esq. Harold Willocks, Esq. Venetia Harvey Velazquez, Esq., Clerk of the Supreme Court Deloris Allen-Copeman, Acting Clerk of the Superior Court Supreme Court Law Clerks Janet Lloyd, Librarian Jacqueline Reovan Arlene Sutton Janiese Kelly Order Book Publisher Please take notice that on January 17, 2008, an ORDER and MEMORANDUM OPINION OF THE COURT dated January 15, 2008, was entered by the Clerk in the above-entitled matter. Dated: January 17, 2008 VENETIA H. VELAZQUEZ, ESQ. ws Vas Deputy Clerk i For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS S. Ct. Crim. No. 2007-074 Re: Super. Ct. Crim. No. 258-2002 Re: Super. Ct. Crim. No. 227-2002 GOVERNMENT OF THE VIRGIN ISLANDS, Appellant/Plaintiff SELVIN DURANT, ) ) ) ) ) Vv. ) ) ) ) Appellee/Defendant ) ) On Appeal from the Superior Court of the Virgin Islands Considered: December 17, 2007 Filed: January 15, 2008 BEFORE: RHYSS. HODGE, Chief Justice; IVE ARLINGTON SWAN, Associate Justice; and EDGAR D. ROSS, Justice Pro Tem!. APPEARANCES: Tiffany V. Robinson, Esq. Assistant Attorney General St. Thomas, U.S.V.I. Attorney for Appellant Harold Willocks, Esq. Territorial Public Defender St. Croix, U.S.V.L. Attorney for Appellee ORDER OF THE COURT PER CURIAM. AND NOW, consistent with the reasons outlined in the Memorandum Opinion of even date, it is hereby ' Associate Justice Maria M. Cabret was recused from this matter, and Judge Ross, a Senior Sitting Retired Judge of the Superior Court, sits in this matter by designation pursuant to V.I. CODE ANN. tit 4 § 24(a). Gov't of the Virgin Islands v. Durant S. Ct. Crim No. 2007-063 Order of the Court ORDERED that the Order dismissing the charges with prejudice against the defendant and releasing the defendant from custody is REVERSED and REMANDED; and it is further ORDERED that copies of this order be directed to the parties. SO ORDERED this 15th day of January, 2008. ATTEST: VENETIA HARVEY VELAZQUEZ, ESQ. Clerk of the Court Dated: i) 2p 200 & Copies (with accompanying Memorandum Opinion) to: Justices of the Supreme Court Judges of the Superior Court Tiffany V. Robinson, Esq. Harold Willocks, Esq. Venetia Harvey Velazquez, Esq., Clerk of the Supreme Court Deloris Allen-Copeman, Clerk of the Superior Court Supreme Court Law Clerks Janet Lloyd, Librarian Jacqueline Reovan Arlene Sutton Janiese Kelly Order Book Publisher dal. Gag For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS GOVERNMENT OF THE VIRGIN ISLANDS, ) S.Ct. No. Crim. 2007-074 ) Re: Super. Ct. Crim. No. 258-2002 Appellant/Plaintiff, ) Re: Super. Ct. Crim. No. 227-2002 ) ) Vv. ) SELVIN DURANT, Appellee/Defendant. ) On Appeal from the Superior Court of the Virgin Islands Considered: December 17, 2007 Filed: January 15, 2008 BEFORE: RHYSS. HODGE, Chief Justice; [VE ARLINGTON SWAN, Associate Justice; and EDGAR D. ROSS, Justice Pro Tem’. APPEARANCES: Tiffany V. Robinson, Esq. Assistant Attorney General St. Thomas, U.S.V.I. Attorney for Appellant Harold Willocks, Esq. Chief Territorial Public Defender St. Croix, U.S.V.I. Attorney for Appellee? ' Associate Justice Maria M. Cabret was recused from this matter, and Judge Edgar D. Ross, a Retired Judge of the Superior Court, sits in this matter by designation pursuant to V.I. CODE ANN. tit 4 § 24(a). > Appellee, although opposing the motion to stay filed in this court by the Government of the V.L., did not file a brief in this appeal. Gov't of the Virgin Islands v_ Durant S. Ct. Crim No, 2007-074 Opinion of the Court OPINION OF THE COURT PER CURIAM. Appellant, the Government of the Virgin Islands (hereafter the “Government”), challenges the Superior Court’s order dismissing the charges against Selvin Durant (hereafter “Durant”) with prejudice and releasing him from custody. For the reasons stated below, we will reverse the trial court’s dismissal and release order. I. BACKGROUND During the evening of July 12, 2002, Durant and Bruning Bentick (hereafter “Bentick”) were allegedly involved in a dispute outside Bentick’s Liquor Store in Christiansted, St. Croix. According to witnesses, Bentick asked Durant why he was loitering outside his store and, in response, Durant made “animal-like” growling sounds. After Bentick called out to Durant to prevent him from following a female employee, Durant punched Bentick in the head causing him to fall backwards, head-first, onto the street. Bentick suffered injuries as a result of the fall and died at the hospital three days later from a subdural hematoma. Durant was charged in two separate Superior Court actions with Assault in the First Degree (Super. Ct. Crim. No. 227-2002) and Voluntary Manslaughter (Super. Ct. Crim. No. 258-2002). Ata June 20, 2003 competency hearing, Durant was determined to be mentally incompetent and unfit to stand trial. Durant was thereafter placed in the custody of the Virgin Islands Attorney General, who was ordered to identify a facility for his treatment within sixty days, and to provide treatment and counseling until his transfer to such facility. As a result of numerous continuations, Durant remained in the Golden Grove Correctional Facility on St. Croix for nearly two years following the competency hearing. During that time, the Attorney General provided the court, upon the court’s Gov't of the Virgin Islands v _] ee) S. Ct. Crim No. 2007-074 Opinion of the Court prompting, with updates on Durant’s status and the plans for Durant’s transfer to a treatment facility but, ultimately, each plan for transfer failed to materialize. Thereafter, the case remained inactive between May 2005 and February 9, 2007, the date on which a hearing was ordered sua sponte by the trial court. At the February 9, 2007 hearing, Durant submitted a “Motion for Release and to Assert Title 19 V.I.C. 3637 Unconstitutional.”? On May 10, 2007, the Superior Court issued a memorandum opinion holding that the Government had violated Durant’s procedural due process rights by failing to afford him a hearing as required by 18 U.S.C. § 4246(a) in order to establish whether a lengthier commitment was warranted. Ultimately, the trial court ordered the Government to release Durant from custody and dismissed the charges against him in both cases with prejudice. The court stayed its dismissal and release order for thirty days to permit the Government to take any appropriate action. On June 11, 2007, the Government filed a “Motion for Stay of Order Pending Appeal” with this Court, which was granted on August 9, 2007. Durant was ordered to remain in custody and the dismissal of the charges was stayed pending resolution of this appeal. II. DISCUSSION A. Jurisdiction and Standards of Review This court has several bases for jurisdiction over the Superior Court’s final order dismissing the charges and releasing Durant from custody. First, “[t]he Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court... .” V.I. CODE ANN. tit. 4 § 32(a). Second, “[i]n a 3 The trial judge noted in Super. Ct. Crim. No. 258-2002 that Durant’s counsel must have intended to cite to Title 5 rather than Title 19. (J.A. at 19.) Gov't of the Virgin Islands vy. Durant S.Ct. Crim No. 2007-074 Opinion of the Court Wilson & Co., 312 U.S. 1, 14, 61 S.Ct. 422, 426 85 L.Ed. 479 (1941)). “A substantive rule of law{, on the other hand,] creates and defines the rights, duties, and obligations that are subsequently administered by procedural rules of law.” Jn re Richards, 52 F. Supp. 2d 522, 528 (D.V.I. App. Div. 1999), aff'd in part and rev'd in part, In re: Richards, 213 F.3d 773 (3d Cir. 2000) (citing Hanna, 380 U.S. at 464). “While a procedural rule may affect a substantive right, any such effect must be incidental and may not materially modify a right granted by the substantive rule of law.” Id. In the instant matter, Rule 12.2(c)(1)(A) of the Federal Rules of Criminal Procedure refers the court to provisions of Title 18, Chapter 313 of the U.S. Code. Those provisions direct the United States Attorney General to provide enumerated rights to mentally incompetent defendants. As such, the provisions of Title 18, Chapter 313 are unmistakably substantive in nature’ because they create and define the rights, duties, and obligations afforded to incompetent federal defendants that are to be administered by federal procedural rules of law. Therefore, the trial court’s use of Superior Court Rule 7 as a conduit to apply Federal Rule of Criminal Procedure 12.2(c)(1)(A), and thereby incorporate the substantive federal statutory provisions of Chapter 313, was an unauthorized exercise of the Superior Court’s rule-making authority. See In re Richards, 52 F. Supp. 2d at 528 (“Since it [is] a substantive rule and not a procedural rule, Rule 128(b) exceeds the authority of the [Superior] Court and is therefore ultra vires and void.”). It is important to note that the use of Federal Rule 12.2 through Superior Court 7 The provisions of Title 18, Chapter 313 of the U.S. Code, and provisions dealing with detention of mentally incompetent defendants generally, are substantive in nature. See, e.g., U.S. v. Perry, 788 F.2d 100, 112-13 (3d Cir. 1986) (“there is a substantive liberty interest in freedom from confinement” and “a demonstration of dangerousness justifies deprivation of liberty by civil commitment without offending the substantive due process limitation upon government”); U.S. ex rel. Smith v. Baldi, 192 F.2d 540, 544 (3d Cir. 1951) (‘According to [Pennsylvania] substantive law a man has the right not to stand trial or pay the penalty for an act if his mental condition is not such as to fulfill the legal test of ‘sanity.””). Gov't of the Virgin Islands v. Durant S. Ct. Crim No. 2007-074 Opinion of the Court Rule 7 is not in itself substantive in nature. As a whole, Rule 12.2 establishes a procedure requiring defendants to give notice of the intent to use the defense of insanity or offer expert testimony of mental defense or defect. It does not deal with incompetence to stand trial, as that issue is governed by statute, particularly 18 U.S.C. §§ 4241- 4248. See Fed. R. Crim. P. 12.2, Advisory Committee Notes (“This rule does not deal with the issue of mental competency to stand trial.”). Federal Rule of Criminal Procedure 12.2(c)(1)(A), the clause at issue here, provides that “{t]he court may order the defendant to submit to a competency examination under 18 U.S.C. § 4241.” Problematically, the Superior Court relied on that particular clause to apply the substantive federal provisions of Chapter 313 to establish Durant’s due process rights and to conclude that the violation of those rights justified an order of dismissal of the charges and his release from custody. When the Superior Court avails itself of Rule 12.2(c)(1)(A) to venture into the realm of substantive federal statutory law, through application of its Rule 7, the court violates the procedural tule- making authority conferred on local courts by the ROA. Such violation permits the importation of federal substantive law to local cases. Therefore, Rule 7 as applied to Federal Rule of Criminal Procedure 12.2(c)(1)A is not a permissible rule of “practice and procedure” authorized by the ROA but, rather, a prohibited substantive rule of law. See generally, In re: Richards, 213 F.3d at 783-84. The Superior Court cannot adopt and apply substantive federal law through the court’s rule-making authority. Only the Legislature of the Virgin Islands has such law- making authority. Jn re: Richards, 213 F.3d at 783; Revised Organic Act of 1954 §§ 5, 8(a). As the Third Circuit Court of Appeals aptly stated in Jn re: Richards, the Superior Gov't of the Virgin Islands v. Durant S. Ct. Crim No, 2007-074 Opinion of the Court Court must give deference to the Legislature’s power to create substantive law and may not itself exercise that lawmaking power.® Id. Specifically, the Third Circuit therein held that the then newly-promulgated Superior Court Rule 128(b) exceeded the court’s rule- making power conferred by the ROA as it permitted the usurpation of the Executive branch’s common law power to dismiss prosecutions. See id. at 784. The Superior Court may not therefore, through its rules, import substantive federal laws for use in local cases pending before it. In this instance, the Virgin Islands Legislature has enacted several substantive laws that provide for the rights of mentally incompetent persons, including defendants, within the Virgin Islands.” Application of Title 18, Chapter 313 of the U.S. Code through the use of Superior Court Rule 7, ignores the substantive laws dealing with mentally incompetent persons that have been enacted by the Virgin Islands Legislature.'” It also ignores the fact that this is an area of the law where the Legislature has clearly legislated and has not surrendered its law-making authority to the judiciary. The trial court should have considered local statutory provisions and not the rights created by ® In Smith v. Magras, the Third Circuit Court of Appeals held that the doctrine of separation of powers applies to the branches of the Virgin Islands government. 124 F.3d 457, 465 (3d Cir. 1997). ° Contrary to the trial court’s finding, 5 V.I.C. § 3637 applies not only to persons committed to a forensic unit who have been found not guilty by reason of insanity, but also to those committed “otherwise in accordance with law.” See 5 V.I.C. § 3637(b). Moreover, Chapter 45 of Title 19 provides for the commitment and release of “[a]ny patient held on order of a court having criminal jurisdiction in any action or proceeding arising out of a criminal offense.” 19 V.I.C. § 1201I(c); see also 19 V.LC. § 1202 (regulating procedure regarding mentally ill prisoners). Additionally, Section 723 of Title 19 provides for the involuntary commitment of mentally disturbed, alcoholic and drug dependent persons. '© Tn fact, the local substantive laws at issue here differ from their federal counterparts. For instance, while 18 U.S.C. § 4246(e) requires a showing by a preponderance of the evidence that the defendant no longer poses a “substantial risk of bodily injury to another person or serious damage to property of another,” 5 V.1.C. § 3637(b) requires the court to “weigh the evidence ... [to determine if] ... such person has regained his capacity for judgment, discretion and control of the conduct of his affairs and social relations will not in the reasonable future be dangerous to himself or others.” Also, 19 V.I.C. § 723(d) requires clear and convincing proof for commitment and 19 V.I.C. § 1132(c) permits a mentally incompetent person the right to a jury trial to determine competence. Gov't of the Virgin Islands v. Durant S. Ct. Crim No. 2007-074 Opinion of the Court federal statutes for federal defendants. The trial court erred in utilizing the court’s procedural rule-making authority to adopt and apply the substantive provisions of Title 18, Chapter 313 of the U.S. Code in a case where the defendant was charged in a Virgin Islands court with violations of Virgin Islands law.'' Since the trial court based its decision to dismiss the charges and to release Durant on its perceived violations of and noncompliance with federal substantive law, which was improperly imputed by court rule, we will reverse the order of dismissal and release, and remand to the Superior Court for proceedings consistent with this opinion.” In light of this conclusion, we need not decide whether the trial court abused its discretion in dismissing the charges with prejudice. III. CONCLUSION Because the Superior Court improperly relied upon substantive federal law in determining Durant’s due process rights, the court committed clear legal error when it '! It should be noted that the trial court merely substituted those duties placed on the United States Attorney General by Title 18, Chapter 313 for those to be placed on the Virgin Islands Attorney General. Although the carrying out of those duties would require the expenditure of monies, no such appropriation was or could be made by the trial court as only the Virgin Islands Legislature has the authority to appropriate funds. 2 In so holding, this Court fully recognizes that it is well-settled that the “criminal trial of an incompetent defendant violates due process.” See Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 2581, 120 L.Ed.2d 353 (1992). This “prohibition is fundamental to an adversary system of justice.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975). Moreover, we acknowledge that “(t]he deep roots and fundamental character of the defendant's right not to stand trial when it is more likely than not that he lacks the capacity to understand the nature of the proceedings against him or to communicate effectively with counsel mandate constitutional protection.” Cooper v. Oklahoma, 517 US. 348, 368, 116 S.Ct. 1373, 1383, 134 L.Ed.2d 498 (1996). Although Jackson v. Indiana establishes that due process is also concerned with the length of time a mentally incompetent defendant can be detained, Jackson is not implicated until the court below analyzes Durant’s substantive rights under the proper standard. See 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972) (holding, in relevant part, that due process is violated when the state holds a defendant indefinitely based upon his lack of capacity to stand trial because the defendant may be held for no longer than the reasonable period necessary to determine his likelihood of regaining competency). By relying almost exclusively on perceived violations of 18 U.S.C. §§ 4246 and 4247, the court erred in its determination of Durant’s due process rights entitlement. i) Gov't of the Virgin Islands v. Durant S. Ct. Crim No. 2007-074 Opinion of the Court dismissed the charges against Durant with prejudice and ordered his release. Accordingly, we reverse the Superior Court’s dismissal and release order, and remand the matter for a disposition consistent with this opinion. ATTEST: VENETIA H. VELAZQUEZ, ESQ. Clerk of the Co By 477 f= a Clerk Dated: 1/17 | Zo0¥