Watker v. VT Parole Board

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NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

No. 89-083

Brian Watker Supreme Court

v. On Appeal from
Washington Superior Court
Vermont Parole Board
November Term, 1989

Alan W. Cheever, J.

Walter M. Morris, Jr., Defender General, and Jeffrey Dworkin, Prisoners'
Rights Office, Montpelier, for plaintiff-appellant

Jeffrey L. Amestoy, Attorney General, Montpelier, and Thomas J. Rushford,
Assistant Attorney General, Waterbury, for defendant-appellee

PRESENT: Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
Specially Assigned

MORSE, J. This appeal from a superior court judgment upholding a
parole board decision finding plaintiff in violation of parole conditions
and imposing new conditions causes us to reevaluate the standard of review.
We reject plaintiff's claims that the board's ruling was not supported by
substantial evidence and that his right to confrontation of witnesses was
violated during the revocation hearing, and we therefore affirm.
On July 20, 1988, the Vermont Parole Board held a hearing to determine
whether plaintiff violated two conditions of parole: (1) committing an act
punishable under law, and (2) failing to lead an orderly and industrious
life. The factual basis for the alleged violations was that plaintiff
assaulted his cohabitant, Vicki Magoon, while they were living at 14 Foster
Street, Barre, Vermont. The State's evidence consisted of a police
officer's affidavit and testimony from a parole officer. Plaintiff
testified on his own behalf.
The parole officer testified that he received the affidavit from the
police officer. The affidavit stated that at about 1:15 a.m. on June 17,
1988, a dispatcher received two complaints about a couple fighting on Foster
Street. When the officer arrived in the area, he found Magoon, who was
eight-and-one-half-months pregnant, walking barefoot down Granite Street in
the rain, while carrying a one-and-one-half-year-old child in her arms.
Magoon was taken to the police station, where the officer observed a
circular welt on her left cheek as well as scabbing and contusions extending
around the front of her neck. An officer examined her back and found
multiple bruise marks. Magoon stated that plaintiff had beaten her. The
officer then went to 14 Foster Street and found plaintiff in bed. Plaintiff
told the officer that he had been asleep all evening.
Plaintiff testified that he had reviewed his parole officer's report
and the investigating officer's affidavit. He denied attacking Magoon and
stated that she had been with a friend, Diane Gaylord, on the night of the
incident, while he was at home in bed. He also testified that Magoon had
visited his lawyer, Robert Paolini, and had told him that her allegation of
assault that night was untrue. Plaintiff, however, did not call Magoon,
Gaylord, or Attorney Paolini as witnesses at the parole violation hearing.
Following plaintiff's testimony, the parole officer testified that he also
interviewed Magoon and she had told him that plaintiff had beaten her.
The parole board found that plaintiff had violated the conditions of
his parole as alleged. He sought review in the superior court under
V.R.C.P. 75, arguing that the board's conclusion was not based on
"sufficient, competent evidence." The superior court concluded that the
hearsay evidence combined with the board's determination to "totally reject
. . . [plaintiff's] testimony" was sufficient to allow revocation of parole.
It also found that plaintiff had not raised his constitutional right of
confrontation below and therefore declined to consider it on appeal.
I. Substantial Evidence
The parole board may continue or revoke parole if "the alleged
violation is established by substantial evidence." 28 V.S.A. { 552(b)(2).
This Court has stated that "mere uncorroborated hearsay does not constitute
substantial evidence" sufficient to support an administrative adjudication.
Baxter v. Vermont Parole Board, 145 Vt. 644, 648, 497 A.2d 362, 365 (1985).
In Baxter, we held that the parolee's failure to testify--that is, his
silence in the face of hearsay charges--supplied the corroboration or
substantial evidence needed to support a parole violation. Id. at 648-49,
497 A.2d at 365; see also State v. Schroeder, 149 Vt. 163, 163, 540 A.2d 647, 647 (1987) (per curiam) (adopting the Baxter rule for probation
revocations, stating that "[w]hile uncorroborated hearsay evidence alone
will not support a revocation," a defendant's failure to rebut the evidence
will support the conclusion that he violated a probation condition).
However, the underpinnings of the Baxter rule are weak, as this case
demonstrates, and we now overrule it.
The Baxter maxim on uncorroborated hearsay is not based on logic; it is
a legal fiction based on a policy disfavoring hearsay evidence. It derives
from the so-called "residuum rule" created in Carroll v. Knickerbocker Ice
Co., 218 N.Y. 435, 440-41, 113 N.E. 507, 509 (1916), adopted by the United
States Supreme Court in Consolidated Edison Co. v. NLRB, 305 U.S. 197, 230
(1938), and widely followed for a time by both federal and state courts.
Under this rule, even though an administrative agency is not bound by the
rules of evidence applicable in court proceedings, a reviewing court must
set aside an administrative finding unless that finding is supported by a
residuum of legal evidence, i.e., by at least some evidence that would be
admissible in court. Throughout its history, the rule has been criticized.
See 3 K. Davis, Administrative Law { 16.6 (2d ed. 1980)(documenting
scholarly and judicial criticism of rule); C. McCormick, McCormick on
Evidence { 354 (3d ed. 1984) (labelling rule "logically unsound"); 1 J.
Wigmore, Evidence { 4b, at 119-22 (Tillers rev. 1983)(criticizing rule).
The key problem with the residuum rule is that it equates rules for
admissibility of evidence in jury trials with weighing the reliability of
evidence before an administrative agency. The rule does not distinguish
between varying degrees of hearsay reliability; instead it creates a per se
rule without regard to circumstances of a particular case. As one critic
states:
Under the residuum rule a finding which is unsupported
by evidence which would be admissible in a jury trial
must be set aside, no matter how reliable the evidence
may appear to the agency and to the reviewing court, no
matter what the circumstantial setting may be, no
matter what may be the consequences of refusing to rely
upon the evidence.

3 K. Davis, supra, { 16.6, at 239.
In Richardson v. Perales, 402 U.S. 389, 407-08 (1971), the United
States Supreme Court implicitly retreated from Consolidated Edison by
stating that its concern with "mere uncorroborated hearsay" was directed,
not at all evidence that would be formally inadmissible in judicial
proceedings, but only at material "without a basis in evidence having
rational probative force." This somewhat cursory statement in Perales
caused some lower federal courts to discard the residuum rule. See, e.g.,
McKee v. United States, 500 F.2d 525, 528 (Ct. Cl. 1974)(citing Perales for
the proposition that, in an administrative hearing, hearsay can constitute
"substantial evidence if sufficiently convincing to a reasonable mind");
School Board of Broward County, Fla. v. H.E.W., 525 F.2d 900, 906 (5th Cir.
1976)("Based on the Supreme Court's approach in Perales, we must reject any
per se rule that hearsay cannot constitute substantial evidence."); Johnson
v. United States, 628 F.2d 187, 190 (D.C. Cir. 1980)("This rule [the
residuum] no longer controls. We have rejected a per se approach that
brands evidence as insubstantial solely because it bears the hearsay
label."); Bell Helicopter International, Inc. v. Jacobs, 746 F.2d 1342, 1344
(8th Cir. 1984)("hearsay evidence alone may . . . support an agency
determination. . . . A residuum of corroborating evidence of the type
admissible in a jury trial is no longer required.")(citation omitted).
Although the rule has by no means been unanimously rejected, at least
federal courts "are now more inclined to allow findings to be based on
hearsay than during the pre-Perales period." 3 K. Davis, supra, { 16.8, at
254. Moreover, "[i]ncreasingly the states refuse to apply it." C.
McCormick, supra, { 354, at 1017. See, e.g., Embers of Salisbury, Inc. v.
Alcoholic Beverages Control Comm'n, 401 Mass. 526, 530, 517 N.E.2d 830, 832
(1988)(accepting the Perales interpretation of Consolidated Edison);
Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 17-18 (Colo. 1989)(en banc)(discussing Perales and holding that hearsay
can constitute substantial evidence in reviewing administrative hearings
unless the legislature mandates use of the residuum rule in particular type
of case). See also C. McCormick, supra, { 354, at 1017 n.9 (quoting 1981
Revised Model State Administrative Procedure Act { 4-215(d) and
accompanying Commissioners' Comment, which explicitly reject the residuum
rule). Even New York, which originated the residuum rule, has now abandoned
it. 300 Gramatan Avenue Associates v. State Div. of Human Rights, 45 N.Y.2d 176, 180 n.*, 379 N.E.2d 1183, 1185 n.*, 408 N.Y.S.2d 54, 56 n.*
(1978)("legal residuum rule . . . no longer obtain[s], regardless of
whatever validity, if any, [it] may have once enjoyed").
In this case, plaintiff's contention that a parolee's act of
testifying, regardless of content, rebuts the hearsay as a matter of law is
wholly artificial and illogical. It also illustrates the weakness of the
residuum rule as applied in Baxter. Although hearsay evidence is typically
weak, its strength is not further diminished merely because the parolee
speaks. The weight of evidence tending to establish a parole violation
depends on the quality of the hearsay as well as any other evidence in the
case. In short, resort to mechanical formulae to decide whether substantial
evidence is absent or present in a given case is simplistic and evades
meaningful analysis.
Instead of the residuum approach, we shall analyze the quality--the
underlying "reliability and probative value," Perales, 402 U.S. at 407-08--
of the hearsay presented. A reviewing court must "evaluate the weight each
item of hearsay should receive according to the item's truthfulness,
reasonableness, and credibility." Johnson, 628 F.2d at 190-91 (hearsay
statements are highly probative where declarants are disinterested
witnesses, statements are essentially consistent, and counsel has access to
statements prior to agency hearing); see also Flower Stop, 782 P.2d at 18
(enumerating factors that courts have found helpful in evaluating whether
hearsay evidence is reliable, trustworthy, and probative for purposes of an
administrative hearing).
Here the hearsay was sufficiently reliable to pass the test of
admissibility discussed in State v. Finch, 153 Vt. 216, 569 A.2d 494 (1989).
The observations of various police officers about when and where Vicki
Magoon was found, the weather and the surrounding circumstances, and her
condition are all matters where the "'specter of questionable credibility
and veracity is not present.'" Id. at 218, 569 A.2d at 495 (quoting
Perales, 402 U.S. at 407.
Moreover, plaintiff's testimony actually bolstered the hearsay evidence
against him. At oral argument in our Court, plaintiff's counsel said that
plaintiff did not contest that someone had beaten Magoon that night.
Plaintiff merely asserted that he was not responsible for the beating.
Viewing plaintiff's testimony before the board as generously as possible, it
lacks, in context, any reasonable semblance to the truth. Plaintiff claimed
that his cohabitant (at the time of the parole revocation hearing, plaintiff
and Magoon were living together again) cleared up the misunderstanding about
who beat her up by telling one of plaintiff's attorneys that the "allegation
of the assault was untrue." This left the board with the following
overriding question begging for an answer: if it was not plaintiff, then
who assaulted Magoon and caused her, nearly nine months pregnant, to walk
barefoot down a city street in the rain carrying her one-and-a-half-year-old
child, while plaintiff slept at their home? Plaintiff decided not to call
Magoon or any other witness to answer this question, which must have left
the board with the distinct impression that his testimony was utterly
incredible. Under the residuum rule, plaintiff's testimony -- solely
because it would be legally admissible in court -- would be substantial
evidence outweighing the state's hearsay evidence, without regard to the
reliability or credibility of either. Under the approach we adopt today,
the hearsay in these circumstances was credible and reliable; plaintiff's
live testimony was not. The board's decision was supported by substantial
evidence.
II. Confrontation
Relying on Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (unless good
cause is shown, a parolee has a right to confront adverse witnesses),
plaintiff claims his right to confrontation was violated because the State
did not show cause to override the right.
As the superior court correctly found after it reviewed the board's
proceedings, plaintiff did not apprise the board of possible confrontation
clause violations. Plaintiff at no time explained to the board that he
wanted to question the woman who accused him. Plaintiff never asked that
Magoon be produced as a witness. He never objected to her absence, nor did
he ask for the State to show "good cause" for her absence or for a
continuance so that she could be produced as a witness. Plaintiff objected
only to the parole officer repeating information from the police report on
the ground that it was multiple hearsay. When the parole board chair asked,
"Is there anything else you would like to say about this aspect at this
time?", plaintiff's lawyer said nothing about a confrontation clause
problem.
We think an objection on confrontation grounds should be specific
because it triggers the consideration of a secondary issue, namely, whether
circumstances making production of the witness difficult or impractical
outweigh the parolee's need to confront and cross-examine the witness. See,
e.g., United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986)(discussing
factors to be considered in applying this balancing).
Having not raised the confrontation issue, plaintiff did not preserve
the claim unless he can show that failure to either produce the witness or
demonstrate good cause not to call her was plain error. V.R.E. 103(d);
V.R.C.P. 61. We agree with the superior court's decision that plain error
is conspicuously absent on this record.
Plaintiff himself relied on hearsay evidence (Magoon's recantation
that plaintiff beat her) to rebut the State's hearsay evidence (Magoon's
allegation that plaintiff beat her). It was apparent that Magoon -- who
had resumed residing with plaintiff after the night of the assault -- would
have been willing and presumably available to testify favorably on
plaintiff's behalf if he were truthful in his testimony. The board even
expressed curiosity about Magoon's absence after plaintiff testified.

PLAINTIFF'S COUNSEL: That's all the evidence we
would elicit.

CHAIR: But Vicki is not here?

PLAINTIFF'S COUNSEL: No. We are not objecting to
the idea of hearsay, I mean we
can't, the Supreme Court says
that it can be done. So we
like are offering hearsay, but
we're trying to offer competent
hearsay, not multiple hearsay
with who-knows-what.

Plaintiff's strategy was to set up Baxter as a kind of legal
checkmate. He defended against the charges without confronting Magoon,
relying instead on his own testimony about what she had said to his lawyer.
He maintained that as a matter of law the evidence was insufficient, as if
his very act of speaking -- regardless of the merits of his account --
neutralized the probative force of the State's case. By taking this
tactical approach, plaintiff purposely did not put confrontation in issue.
Moreover, there is no plain error because plaintiff has never claimed that
Magoon's failure to testify at the hearing prejudiced his defense.
Affirmed.

FOR THE COURT:

__________________________________
Associate Justice

-------------------------------------------------------------------------------
DISSENTING

No. 89-083

Brian Watker Supreme Court

v. On Appeal from
Washington Superior Court
Vermont Parole Board
November Term, 1989

Alan W. Cheever, J.

Walter M. Morris, Jr., Defender General, and Jeffrey Dworkin, Prisoners'
Rights Office, Montpelier, for plaintiff-appellant

Jeffrey L. Amestoy, Attorney General, Montpelier, and Thomas J. Rushford,
Assistant Attorney General, Waterbury, for defendant-appellee

PRESENT: Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
Specially Assigned

DOOLEY, J., dissenting. I concur with the majority analysis in
rejecting the residuum rule as espoused in Baxter v. Vermont Parole Board,
145 Vt. 644, 497 A.2d 362 (1985), as long as there is clear protection for
the parolee's confrontation clause rights. The majority has, however,
relied on an overly technical preservation rule to refuse to address
plaintiff's confrontation rights. Accordingly, I dissent.
The majority has refused to consider plaintiff's confrontation rights
because he "did not apprise the board of possible confrontation clause
violations." His attorney's actual statement to the parole board was as
follows:
Aside from our objection of the evidence which we think
should be disregarded, Baxter seems clear enough that
hearsay will create a presumption, but if hearsay is
rebutted by live testimony from the parolee, that
presumption does not exist anymore and hearsay will not
suffice to establish a violation. We have here a
combination of hearsay totally, from the state's
standpoint, and first-hand testimony from our
standpoint, and under Baxter a violation cannot be found
based upon that kind of evidence in the record.

Putting aside the references to Baxter, petitioner's position can be summed
up as follows: "You can't revoke my parole on hearsay alone when I deny it.
You must produce the live witnesses." This is the equivalent of a demand
for confrontation clause protection without using the term. This objection
alerted the Board to the problem and the proper remedy. It is adequate
preservation.
Although I would probably conclude that the majority was being overly
technical if the parole revocation hearing were held by a court, I feel
particularly strongly that this is the case given that the hearing is held
by the parole board. There were no lawyers present at the board hearing,
other than the lawyer for plaintiff. None of the board members are lawyers,
and the case was presented by a parole officer. There were no clear rulings
on any of plaintiff's numerous objections. Requiring the plaintiff to make
a constitutional argument to the board to prevent consideration of evidence
he is already attacking on related grounds is to create a procedural
technicality without substance.
Many courts have held that the failure to raise constitutional issues
in administrative proceedings does not prevent them from being raised on
judicial review of these proceedings. See, e.g., Rana v. United States, 812 F.2d 887, 889-90 (4th Cir. 1987); Fellin v. Administrator, Unemployment
Compensation Act, 196 Conn. 440, 446, 493 A.2d 174, 177 (1985); Atkinson v.
Parsekian, 37 N.J. 143, 153, 179 A.2d 732, 737 (1962); Randall v. Norberg,
121 R.I. 714, 721, 403 A.2d 240, 244 (1979). We should adopt that rule for
proceedings like this where there is no realistic chance of full
consideration of the constitutional issue at the administrative level and
plaintiff has appraised the administrative tribunal of the remedy he seeks.
A more rigid rule is an unjust technicality.
I add only that I find wholly unconvincing the majority's discussion of
why failure to address plaintiff's confrontation right is fair in this case.
Essentially, the majority concludes that plaintiff waived the issue by the
failure to produce the witness. Revocation of plaintiff's parole was based
entirely on the out-of-court statements of an adverse witness. Unless we
are going to say, and the majority comes close to this, that it is the
parolee's responsibility to try to produce adverse witnesses, there is no
waiver here. By placing duties to seek or to present adverse witnesses on
the parolee, we are really saying that there is no confrontation right in
these circumstances. That is a legal conclusion, not a preservation ruling,
and I believe it is wrong.
Ironically, in a case originally decided by this Court, State v. Finch,
153 Vt. 216, 569 A.2d 494 (1989), the United States District Court has
recently rejected the position of the majority on waiver. See Finch v.
Vermont Dist. Ct., Civil Action No. 90-9, (D. Vt. Sept. 24, 1990), adopting
Magistrate's Report and Recommendation (Aug. 23, 1990) (Niedermeier, Mag.)
(unpub.). The Magistrate's report stated:
Finally, the state's observations that the
petitioner was free to cross-examine the witness and
that petitioner did not demand that the declarants
themselves testify dodges the point of the right to
confrontation. We will not presume under these
circumstances that petitioner waived his right to
confrontation.

Magistrate's Report at 10. It makes no sense to have one waiver rule in
this Court and another in federal court requiring resort to habeas corpus
relief to obtain a decision on the merits.
Once we reach the merits of plaintiff's confrontation argument, we must
reverse. I don't believe the State made the minimum showing required by due
process of law to enable the board to admit the alleged victim's statement
and rely upon it to revoke plaintiff's parole. The United States Supreme
Court applied due process requirements to parole revocation proceedings in
Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Among the rights established
in that case is "the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not allowing
confrontation)." Id.; see also Gagnon v. Scarpelli, 411 U.S. 778, 786
(1973) (due process requires this same right in probation revocation). The
Morrissey confrontation requirement does not bar use of all hearsay
evidence. The opinion itself states that "the process should be flexible
enough to consider evidence including letters, affidavits, and other
material that would not be admissible in an adversary criminal trial."
Morrissey, 408 U.S. at 489.
There is, however, clearly a limit to the board's ability to rely on
hearsay evidence consistent with the due process rights of the parolee. The
various courts which have examined that limit have held either that the
board cannot rely on evidence of the sort admitted here or can do so only on
findings not made here. See, e.g., Commonwealth v. Jorashie, 360 Pa. Super.
97, 100, 519 A.2d 1010, 1011 (1987).
A fair summary of the rule and procedure required by due process was
articulated by the Wyoming Supreme Court in Mason v. State, 631 P.2d 1051,
1056 (Wyo. 1981) (citations omitted):
Both the defendant and the social system have a stake in
making sure the factual determination in a revocation
hearing is not an arbitrary one but is based on facts
which pass the Morrissey, truth-seeking test of cross-
examination. In this case the only evidence presented
was in the form of hearsay which the defense was unable
to test and verify. This was a clear violation of the
appellant's right to due process. The State must make a
good-faith attempt to produce the witnesses at a
probation--or parole--revocation hearing or else show
cause why they cannot appear. If for some valid reason
a witness is unavailable, whether or not the
information may be introduced through hearsay will be
determined by the use of a balancing test. This test
will weigh the defendant's interest in confronting and
cross-examining the witnesses against him with the
practical difficulties of producing the witness.

Most courts that have considered the issue of reliance on hearsay evidence
at parole or probation revocation proceedings have announced a rule similar
to that in Mason. See, e.g., State v. Fuller, 308 Md. 547, 552-54, 520 A.2d 1315, 1317-18 (1987); Moody v. Cunningham, 127 N.H. 550, 555, 503 A.2d 819,
822 (1986) (to allow the state to meet its burden entirely by hearsay would
eviscerate the due process protections); Araya v. State, 96 Nev. 119, 123-
25, 606 P.2d 156, 158-60 (1980); People ex rel. McGee v. Walters, 62 N.Y.2d 317, 319-20, 465 N.E.2d 342, 343, 476 N.Y.S.2d 803, 804 (1984); Commonwealth
v. Jorashie, 360 Pa. Super. at 100, 519 A.2d at 1011; State v. DeRoche, 120
R.I. 523, 532-33, 389 A.2d 1229, 1234 (1978). The United States District
Court for the District of Vermont has announced a similar rule in Finch.
See Finch v. Vermont Dist. Ct., Magistrate's Report at 9-10.
The State made no showing in this case to demonstrate the need to
introduce the hearsay statement of the alleged victim or the police officer.
The majority speculates that the alleged victim was available only to
plaintiff and would have testified if her testimony were favorable to
plaintiff, but there is no basis in the record to do more than speculate.
Nor can that speculation be turned into a conclusion that plaintiff adopted
a "tactical approach" to keep the alleged victim from testifying. Yet, the
majority relies on just such a conclusion to hold that plaintiff waived his
confrontation rights. I would hold that the admission of and reliance on
the alleged victim's statement to the police officer, as testified to by the
parole officer, violated plaintiff's due process rights.
The plaintiff's parole has been revoked based on perfunctory testimony
of a parole officer containing multiple-layered hearsay allegations that
plaintiff beat the woman with whom he was living. These are serious
allegations, and they deserve serious consideration in a fair and just
process consistent with the liberty interest involved. I am authorized to
state that Chief Justice Allen joins in this dissent.

Associate Justice

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