State v. Leggett
Annotate this Case
State v. Leggett (96-249); 167 Vt. 438; 709 A.2d 491
[Opinion Filed 21-Nov-1997]
[Motion for Reargument Withdrawn 2-Feb-1998]
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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 96-249
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Harold Leggett March Term, 1997
David A. Jenkins, J.
Scot Kline, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee
Robert Appel, Defender General, and Anna Saxman, Appellate Attorney,
Montpelier, for defendant-appellant
PRESENT: Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.
AMESTOY, C.J. Defendant Harold Leggett appeals revocation of his
probation for violation of a condition prohibiting contact with children
under the age of sixteen without the approval of his probation officer.
Defendant argues that the court erred by allowing introduction of hearsay
testimony about defendant's actions without first making a finding and
stating reasons as to whether there was good cause to admit the testimony.
We affirm.
In February 1993, defendant pled nolo contendere to a charge of sexual
assault against his stepdaughter, a minor. The court sentenced defendant
to serve twenty-two months to twelve years with all suspended except
twenty-two months. Defendant was given credit for time served and placed
on probation.
In February 1994, defendant was sentenced to an additional one year to
serve upon findings that his disruptive behavior in sex-offender group
treatment and his nonpayment of counseling costs violated conditions of his
probation. Defendant returned to the community in
September 1994. Following unsubstantiated reports that defendant was
having contact with children under age sixteen in 1994 and 1995,
defendant's probation officer received a substantiated report in January
1996. She filed a probation-violation complaint alleging that defendant
violated the condition of his probation prohibiting contact with children
under age sixteen without approval of his probation officer. The probation
officer recommended that the court impose defendant's underlying sentence.
At two days of hearings on the merits, eight witnesses testified,
including defendant and a minor who was under age sixteen at the time of
the alleged contact. Following the hearings, the court made oral findings
and concluded that defendant had violated a condition of his probation by
having contact with children under sixteen. The court sentenced defendant
to serve the underlying sentence of twenty-two months to twelve years with
credit for time served.
On appeal, defendant claims that he was substantially prejudiced at
the probation-revocation hearing by the introduction of hearsay testimony
without which, he argues, "the court may not have found a violation or
sentenced [him] so harshly." Defendant's principal objection is to the
testimony of a Social and Rehabilitation Services worker who interviewed
the seven-year-old girl with whom defendant allegedly had contact.(FN1)
Defendant correctly contends that our holding in State v. Austin, ___ Vt.
___, 685 A.2d 1076 (1996), requires the trial court in a
probation-revocation hearing to make an explicit finding and state its
reasons on the record as to whether there is good cause for dispensing with
a probationer's confrontation right and
admitting hearsay into evidence. Id. at ___, 685 A.2d at 1081. The trial
court made no such finding here.(FN2)
We were recently obligated to vacate a probation-revocation decision
and remand for additional findings because, notwithstanding sufficient
nonhearsay evidence for the court to find that the defendant violated at
least one condition of probation, the court did not specify which
conditions of probation were violated and how they were violated. See
State v. Styles, 8 Vt. L.W. 113, 114 (1997). Consequently, we were unable
to determine whether the trial court relied on impermissible hearsay in
revoking defendant's probation. Id.
Here, the trial court identified the condition of probation and
specified how it was violated. The Court's revocation of probation must be
affirmed if, without considering the hearsay, there was "sufficient
evidence" in the record to support the trial court's conclusion. In re
B.S., 163 Vt. 445, 454, 659 A.2d 1137, 1143 (1995); see United States v.
Frazier, 26 F.3d 110, 114 (11th Cir. 1994) (admission of hearsay evidence
in probation-revocation hearing was harmless error because record contained
sufficient admissible evidence to support district court's decision).(FN3)
Notwithstanding defendant's assertion that hearsay testimony admitted
without the requisite Austin finding was of controlling significance to the
court's decision to revoke probation, there was ample direct evidence to
support the conclusion that defendant had had contact with children under
age sixteen in violation of the terms of his probation. See State v.
Sanborn, 155 Vt. 430, 436, 584 A.2d 1148, 1152 (1990) ("Findings fairly and
reasonably supported by any credible evidence must stand.").(FN4)
H.D. testified that while she was under age sixteen she visited the
home of seven-year-old S.L. when defendant was present. She also
testified that S.L. called defendant "uncle," a fact admitted by defendant
in his own testimony. H.D. stated that defendant did not leave when she
visited the house, although she was under age sixteen on both occasions
where she recalled seeing defendant. The trial court also had the benefit
of an affidavit signed by H.D. that described her contacts with defendant.
Unlike Austin, where we struck a finding supported only by an improperly
admitted affidavit, see Austin, ___ Vt. at ___, 685 A.2d at 1082, here the
court's finding that defendant was present while children were present, is
supported by H.D.'s testimony and her admissible affidavit.
There was also sufficient evidence -- without reliance on hearsay
testimony -- to support the court's finding that defendant attended a
superbowl party where seven-year-old S.L. was present. The trial court
found that defendant did not leave the party despite the presence of S.L.,
except to respond to an emergency call from work. The court further found
that defendant returned to the party without determining whether the child
was still there. Each fact central
to the court's finding relating to the "superbowl contact" was elicited
from defendant on cross-examination.
There was more than a preponderance of admissible evidence to support
the trial court's determination that H.D.'s contacts with defendant and
defendant's presence at the superbowl party with S.L. were violations of
the condition of probation prohibiting contact with children under age
sixteen. See 28 V.S.A. § 302(a)(4) (court may revoke probation after
violation is established by preponderance of evidence). Either
determination satisfies the requirement that "[t]he trial court must first
make a factual determination of what actions the probationer took, and then
make `an implicit legal conclusion that certain acts constitute a violation
of the probationary terms.'" Austin, ___ Vt. at ___, 685 A.2d at 1082
(quoting Resper v. United States, 527 A.2d 1257, 1260 n.1 (D.C. 1987)).
Defendant argues, however, that even if direct evidence supports the
finding that he did have contact with children under age sixteen, it is
only the hearsay statements of S.L. that can be construed as the
evidentiary basis for the court's characterization of defendant's contacts
with the child as "numerous" and "not inadvertent." The language of the
trial court with which defendant takes issue came at the imposition of
sentence, during which the court made the following statement:(FN5)
The Court is persuaded that, Mr. Leggett, these have not been
inadvertent contacts. The[y] have been numerous. The Court
finds from the evidence, and I think, probation is not working and
that, if there is going to be release, it ought to be under parole and
the close supervision that parole allows.
Despite defendant's repeated claim that characterization of his
contacts with children under age sixteen as "numerous" and "not
inadvertent" could have been predicated only upon S.L.'s hearsay
statements, a review of the transcript reveals an abundance of direct
evidence that
amply supports the court's statement. This is especially true when one
understands the "arrangement" between defendant and S.L.'s mother, a
relationship that the trial court had the benefit of examining when
weighing their testimony.(FN6)
S.L.'s mother testified that she saw defendant four or five times each
week and that defendant stayed overnight at her house or she stayed
overnight at his house. Defendant testified that S.L.'s mother cooked his
supper and did his laundry.
The mother testified that defendant's twin brother is the father of
S.L. and that she and S.L. occasionally visit the father in jail where he
is serving time for sexual assault on a minor whom defendant also
assaulted. The mother stated that she does not believe that either
defendant or his brother sexually assaulted children. She testified that
she maintains this belief even though defendant admitted to sexually
assaulting his stepdaughter. She also acknowledged that she wrote checks
for defendant's sex-offender counseling.
Although defendant and S.L.'s mother testified that they made
child-care arrangements such that S.L. was never present when defendant was
with S.L.'s mother and that when defendant and S.L. came in contact,
immediate steps were taken to absent one from the other, the trial court
was not required to find their testimony credible. See State v. Parker,
139 Vt. 179, 182, 423 A.2d 851, 852 (1980) (trier of fact has sole
determination concerning weight of evidence, credibility of witnesses, and
persuasive effect of testimony). The court in fact had sufficient basis to
doubt the veracity of the testimony of both the mother and defendant. The
mother testified that she saw defendant four or five times each week after
she finished work at 9:00 or 11:00 p.m. or on her days off. The visits
ranged from less than an hour to overnight
and took place at either of their houses. While the mother was at work,
S.L. stayed with a day-care provider. According to the mother, if S.L.
came home from daycare and defendant was at the mother's house, defendant
would leave or the mother would take him home. The mother testified that
while she drove defendant home, S.L. would stay with her older sister or
the mother would take S.L. back to daycare or to a friend's house.
The mother's testimony on cross-examination undermines her claim that
alternative care arrangements minimized any contact between defendant and
S.L. The mother admitted that S.L.'s older sister left home for four
months and did not look after S.L. during that time. When asked to provide
the names of the friends who the mother claimed watched S.L. when the
mother and defendant were together, the mother at first refused and then
when ordered by the court to answer stated that she did not recall their
last names. Most significantly, the mother claimed that the day-care
provider often watched S.L. when the mother and defendant spent the night
together. The day-care provider, however, testified that she had taken
care of S.L. for only one night since defendant's release from prison.
Given the close relationship between defendant and S.L.'s mother, the
mother's contradictory testimony, and the conflicting testimony of the
mother and the day-care provider, there was ample evidence to find --
without reliance on the objectionable hearsay -- that defendant was in
contact with S.L. on numerous occasions and that these contacts were not
accidental. Cf. Sanborn, 155 Vt. at 434, 584 A.2d at 1151 (viewing
evidence in light most favorable to State, Court found ample evidence to
support trial court's conclusion that defendant violated condition of
probation).
Defendant would have us reverse a trial court's revocation of
probation and imposition of sentence where the result "`could have
changed'" had the court not heard the hearsay testimony. (Quoting Richard
v. Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190 (1985)) (emphasis
omitted). Austin, however, was not intended to establish a per se rule
requiring reversal whenever hearsay testimony is admitted without a finding
of good cause to dispense with the probationer's confrontation right. Our
primary inquiry continues to be whether credible
evidence fairly and reasonably supports the court's findings. See Austin,
___ Vt. at ___, 685 A.2d at 1082. If a probation violation is established,
the court has discretion to revoke probation and require defendant to serve
the underlying sentence. 28 V.S.A. § 304(a); see State v. Therrien, 140
Vt. 625, 628, 442 A.2d 1299, 1301 (1982) (absent showing that trial court
abused or withheld its discretion, enforcement of original sentence after
finding of violation is without error).(FN7)
Here, without reliance on the objectionable hearsay testimony, the
trial court had sufficient evidence to find that defendant had violated his
condition of probation prohibiting him from contacts with children under
age sixteen. Our review of the evidence does not support the view that but
for the hearsay testimony the trial court would have determined that the
violation was "fleeting and of no consequence." Morrissey v. Brewer, 408 U.S. 471, 495 (1972) (Douglas, J., dissenting in part). Instead, the
record fully supports the trial court's judgment that imposition of the
underlying sentence was consistent with the direct evidence that
defendant's failure to abide by one of his most significant probationary
conditions was neither inadvertent nor isolated.
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice
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Footnotes
FN1. Defendant also objects to the introduction of a "treatment summary"
upon which he claims "[o]ne part of the court's conclusion may have
rested." Assuming without deciding that the statements within the summary
constitute hearsay, the record is devoid of any indication that the trial
court relied upon the summary. In addition, the conclusion of the court to
which defendant excepts, that "probation is not working," was amply
demonstrated by admissible evidence and testimony. See State v. Emery, 156
Vt. 364, 371, 593 A.2d 77, 81 (1991) ("We need not decide whether error
occurred since we are convinced that introduction of the evidence did not
have the slightest effect in this case and was therefore harmless.").
FN2. The State argues that Austin does not apply because it was
issued after defendant's conviction and sentence became final, and after
the probation proceedings occurred. We recently acknowledged our adoption
of the common-law rule that, except in extraordinary circumstances, the
Court will give effect to a change in the law while a case is on direct
review. See State v. Styles, 8 Vt. L.W. 113, 114 (1997). Because
defendant's appeal was on direct review at the time Austin was issued and
because extraordinary circumstances are not present, we hold that Austin
may be applied to defendant's case.
FN3. The dissent argues that the Court's decision can be affirmed
only if we find the error was harmless beyond a reasonable doubt. See
post, at 3. The assertion that this more rigorous standard of review has
been extended to probation-revocation hearings finds little support in
precedent or logic. Contrary to the claims of the dissent, our decision in
State v. Emery, 156 Vt. 364, 593 A.2d 77 (1991), did not announce a
standard of review for an evidentiary error in a probation-revocation case,
but instead concluded that "[w]e need not decide whether error occurred."
Id. at 371, 593 A.2d at 81. Moreover, as the dissent correctly maintains,
our standard of review is more rigorous in criminal cases "because of the
elevated standard of proof." Post, at 3. We find it relevant that a
probation hearing is neither a proceeding designed to punish a criminal
defendant for violation of the criminal law, United States v. Meeks, 25 F.3d 1117, 1123 (1994), nor does it carry a burden of proof any higher than
a preponderance of evidence. 28 V.S.A. § 302(a)(4). We have previously
recognized the logic of applying a standard of review consistent with the
standard of proof. See State v. Carter, 164 Vt. 545, 556, 674 A.2d 1258,
1266 (1996).
FN4. The dissent's claim that "[t]he only evidence that directly
supports that contacts were numerous was the improperly admitted hearsay,"
post, at 6, ignores direct admissible evidence of at least three contacts
defendant had with children under the age of sixteen in violation of the
terms of his probation. The transcript allows us to determine whether
there was a factual basis for the court's oral findings and revocation of
probation. State v. Millard, 149 Vt. 384, 386, 543 A.2d 700, 701-02
(1988).
FN5. Prior to the court's remarks, defendant, attempting to minimize
the frequency of his contacts with S.L., said in a statement to the court:
"And I'm told that if I'm there at the house and that little one comes in
I'm supposed to leave. And that's what I did most of the time." (Emphasis
added).
FN6. Our review of the testimony of defendant, the mother, and the
witnesses who contradicted them is not predicated, as the dissent would
have it, on "the possibility of disbelief." Post, at 6. It rests,
instead, on the reasonable and well-founded premise that clearly
implausible and inherently contradictory testimony can often corroborate
the fact at issue. See Carter, 164 Vt. at 558, 674 A.2d at 1268 ("Perhaps
the strongest corroboration [of the State's case] was defendant's own
explanation of events.").
FN7. Defendant's portrayal of the imposition of the full underlying
sentence of twelve years as disproportionate to the violation minimizes the
violation and overstates the trial court's order. In imposing the
underlying sentence of twenty-two months to twelve years, the court gave
defendant credit for time served (over thirty-six months), and made it
clear that it had no objection to early parole:
And accordingly I'm going to sentence -- order that [defendant]
serve the underlying sentence with credit for time served. And
I will also indicate, and it may indicate on the mittimus, that the
court has no objection to early parole when parole is appropriate.
And that may be entered on the mittimus.
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Dissenting
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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 96-249
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Harold Leggett March Term, 1997
David A. Jenkins, J.
Scot Kline, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee
Robert Appel, Defender General, and Anna Saxman, Appellate Attorney,
Montpelier, for defendant-appellant
PRESENT: Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J., dissenting. In a substantial number of cases in this
Court, the real legal issue is to determine the proper standard of review.
That is, there has been some error in the trial court proceedings, and we
must decide whether the error warrants appellate intervention. At one
extreme, we can hold that any error, however small and technical, must have
affected the outcome, and reverse and remand for the trial court to redo
the case without the error. At the other extreme, we can affirm if it is
possible to conclude that the trial court might have reached the result it
did if there had been no error, even if we have no idea what the trial
court would have done in the absence of the error. Not surprisingly, up
until now we have generally avoided the extremes and intervened only when
it is clear that the error may have affected the result and we cannot say
what the trial court would have done if there had been no error.
Although the majority opinion does not acknowledge it, this is a case
where the only real issue is to determine the applicable standard of
review; all else follows from this choice. Again,
without acknowledging what it has done, or that the matter is debatable,
the majority uses the extreme pro-affirmance standard of review and affirms
because it was possible for the trial court to have revoked defendant's
probation on the admissible evidence presented, without considering the
inadmissible evidence. Of course, the majority cannot, and did not,
conclude that the trial court ignored the inadmissible evidence or would
have revoked defendant's probation based solely on the admissible evidence.
The only way to find out what the trial court would have done is to ask it;
this is exactly the step the majority refuses to take.
Standards of review are important. The review standard is often more
likely to determine the result of an appeal than the substantive law about
which the parties are arguing. Thus, we should take as much care in
developing a review standard as we do in developing the substantive law in
issue in the appeal. Unfortunately, this review standard is chosen and
applied with no stated rationale and without the benefit of briefing and
argument.(FN1) No one, and particularly not the defendant, will know why the
majority chose to apply a standard of review that made this appeal
illusory; and we will have no idea to what cases this standard of review
will apply in the future.
Certainly, the majority did not adopt this standard of review because
our precedents required it. In fact, this new standard of review is
inconsistent with the vast majority of our decisions, and the majority has
made no attempt to explain or reconcile this inconsistency.
A probation-revocation proceeding is a hybrid criminal/civil
proceeding. As a result, we should look to the standard of review for
evidentiary errors in both types of cases. In civil cases, the standard of
review is normally governed by V.R.E. 103. Under that standard, errors
in the admission of evidence are grounds for reversal if "a substantial
right of the party is affected." In applying this standard of review, we
do not look to whether the trial court could have reached the same result
without relying on the offending evidence. We reverse when the court could
have reached a different result relying only on admissible evidence.
For example, in Jakab v. Jakab, 163 Vt. 575, 581, 664 A.2d 261, 263-64
(1995), a trial to court, we affirmed the trial court judgment despite its
admission of inadmissible evidence because "[w]e can say with sufficient
certainty that the conclusion would have been the same even if the
[inadmissible evidence] had not been considered." On the other hand, in
Gilbert v. Gilbert, 163 Vt. 549, 556, 664 A.2d 239, 242 (1995), we reversed
because of the admission of inadmissible evidence, saying, "If we could be
sure that the [inadmissible evidence] played no role in the court's
decision, we would not reverse."
In criminal cases, our standard of review is more rigorous because of
the elevated standard of proof. Thus, where evidence is admitted in
violation of a defendant's constitutional rights, we can find the error
harmless and affirm only if the error was harmless beyond a reasonable
doubt. See State v. Lynds, 158 Vt. 37, 42, 605 A.2d 501, 503 (1992). This
standard applies in trials to court. See State v. Percy, 149 Vt. 623, 629,
548 A.2d 408, 411 (1988). We have recently held that it applies to
nonconstitutional errors. See State v. Carter, 164 Vt. 545, 555, 674 A.2d 1258, 1265 (1996).
No doubt because of the liberty interest at stake, our one case
announcing a standard of review for an evidentiary error in a
probation-revocation case chose a standard similar to the criminal
standard. Thus, in State v. Emery, 156 Vt. 364, 371, 593 A.2d 77, 81
(1991), we affirmed despite the admission of inadmissible evidence because
"we are convinced that introduction of the evidence did not have the
slightest effect in this case and was therefore
harmless." The majority has ignored the standard of review announced in
Emery.(FN2)
The only exception to the uniform rejection of the standard of review
used by the majority has been in juvenile cases. In re B.S., 163 Vt. 445,
659 A.2d 1137 (1995), the case cited by the majority, charts the
development of this limited standard of review in juvenile cases. See Id.
at 454, 659 A.2d at 1143. I believe this exception is justified in
juvenile cases because of the primary focus on the interests of the
children and the adverse effect on children caused by the uncertainty of
lengthy litigation. The exception is particularly inappropriate where the
interest at stake is the defendant's liberty. In any event, the majority
makes no attempt to justify why it has relied on a limited exception for
juvenile cases rather than the general standard of review for evidentiary
errors.
Other courts reviewing probation revocations where the trial court has
admitted hearsay in violation of the probationer's confrontation rights
have used review standards similar to our criminal or general civil
standards. For example, in United States v. Bell, 785 F.2d 640 (8th Cir.
1986), the defendant was charged with breaching a probation condition that
required obedience to all local, state and federal laws. The affidavit
stated that the defendant had three times tested positive for marijuana in
his blood and once was arrested for DUI and possession of narcotic
paraphernalia and marijuana. During the hearing, evidence was admitted
through defendant's former probation officer that the defendant was once
investigated for cocaine trafficking. The Court of Appeals concluded that
the evidence supporting the original charges was proper, but the hearsay
evidence of the cocaine investigation violated the defendant's
confrontation rights. Because it found that the trial court "seems to have
relied on this evidence in deciding to revoke Bell's probation," it
remanded for reconsideration of the sanction without consideration of the
inadmissible evidence. Id. at 645; see also United States v. Lacy, 648 F.2d 441, 444-45 (5th Cir. 1981) (where trial court's decision to revoke
defendant's probation must be remanded so that judge can state factual
findings and reasons relied upon for revocation).(FN3) We adopted a similar
approach in State v. Styles, 8 Vt. L.W. 113, 114 (1997), although in that
case the State alleged violations of more than one condition and the court
did not specify which of the violations warranted revocation.
The majority offers no policy reason to change the standard of review
for probation-revocation cases, and I know of no policy reason to overrule
Emery or to adopt a more limited standard of review for
probation-revocation cases. There are, however, strong reasons to reject
the majority's standard. The district court is the "sole trier of fact" in
probation-revocation proceedings. State v. Bushey, 149 Vt. 378, 382, 543 A.2d 1327, ____ (1988). The majority's standard inevitably involves us in
weighing the evidence, although we have not seen the witnesses. Thus,
based solely on the transcript, the majority details the cross-examination
of the mother of the contacted child because it finds it effective in
"undermin[ing] her claim that alternative care arrangements minimized any
contact between defendant and S.L." This is a judgment for the trial
court, not this Court.
The real defect in the majority's standard of review, however, is that
there is no trier of fact. Despite statements like that above, the
majority has not found the facts; it has concluded only that the trial
court could have found them in a certain way. Although the trial court
found facts, it did so based in part on inadmissible evidence. No court
has found the facts based on the admissible evidence.
There are serious due process concerns about a system in which no
court finds facts based on proper evidence. In Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), the United States Supreme Court held that due process
requires "a written statement by the factfinders as to the evidence relied
on and the reasons for revoking probation." See also Black v. Romano, 471 U.S. 606, 613-14 (1985). Under the majority's analysis, a probation
revocation is valid even if the evidence relied upon is inadmissible in
whole or in part, as long as there was some evidence, not relied upon, to
justify the revocation. This standard of review eviscerates the due
process requirement that the trial court state the evidence it relied upon.
The danger of the new standard of review is apparent from the
majority's analysis of the facts of this case. The trial court revoked
probation because defendant's contacts with children under sixteen years of
age were "numerous" and not "inadvertent." The only evidence that directly
supports that contacts were numerous and not inadvertent was the improperly
admitted hearsay. The majority's answer is that positive evidence of
frequency of contacts could be supplied by the trial court's disbelief of
the testimony of defendant and the mother of the child that contacts were
rare and inadvertent. If the possibility of the trial court's disbelief
can prevent reversal in this case, then it can in virtually any case.(FN4)
The Austin rule that the court must make an explicit finding of good cause
to admit hearsay in violation of a probationer's confrontation rights will
be nullified by the standard of review.
This new standard of review lacks even-handedness in using evidence
not explicitly relied upon by the trial court. Defendant argued to this
Court that the district court erroneously admitted and relied upon a
treatment summary that contained hearsay. The majority rejects the
argument because "the record is devoid of any indication that the trial
court relied upon the
summary." I believe that this analysis is correct, but it is abandoned
when the majority finds evidence that supports affirmance. Whether or not
the trial court relied upon particular pro-affirmance evidence is
irrelevant to its review.
Finally, I think it significant that the extreme standard of review
has been chosen to avoid what is likely to be an easy and expeditious error
correction. As we held in Styles, the only consequence of reversal is that
the trial court must make findings and conclusions based solely on the
nonhearsay evidence, a task that would have taken far less time than the
opinions in this appeal. If the nonhearsay evidence is as strong as the
majority believes, the outcome would be the same, but we would have dealt
fairly with a defendant who faces a lengthy jail sentence as a result of
this case.
Under Emery, we must ask whether the error in admitting evidence
played no role in the court's decision to revoke probation. Because the
trial court revoked probation based on its conclusion that numerous
violations had occurred, we cannot conclude that the inadmissible evidence
played no role in the trial court's decision. As in Styles, I would remand
for the trial court to issue a revocation decision solely on the admissible
evidence, and I dissent from the majority's failure to do so. I am
authorized to say that Justice Johnson joins in this dissent.
_______________________________________
Associate Justice
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Footnotes
FN1. Defendant argued that we should reverse the trial court because
it relied on evidence inadmissible under State v. Austin, ___ Vt. ___, ___,
685 A.2d 1076, 1077 (1996). The State argued that Austin should not be
applied retroactively. It never argued that even if Austin applied, the
case should be affirmed on the rationale adopted by the majority and never
addressed the standard of review at all. Thus, the standard of review was
never addressed by either party.
FN2. I do not understand the majority's argument that Emery does not
state a standard of review inconsistent with that employed in this case.
In that case, defendant argued that two hearsay statements should not have
been admitted, and this was cause for reversal. This Court first noted
that the statements were "cumulative." 156 Vt. at 371, 593 A.2d at 81
(1991). Under the standard of review used by the majority in this case, the
decision should have gone no further since the trial court decision was,
therefore, supported by admissible, untainted evidence. Instead, the court
went on to hold that any error in admission was not cause for reversal
because the "evidence did not have the slightest effect in this case." Id.
FN3. United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994), the
case cited by the majority, is not inconsistent with the approach of the
other federal courts because the court analyzed the issue as we did in
Emery. In Frazier, the court found no reversible error because the
nonhearsay evidence in support of revocation was overwhelming. Id.
FN4. The majority suggests that there is more than a possibility of
disbelief in this case, but it bases this conclusion on its own evaluation
of the weight of the evidence rather than any indication that the trial
court used its disbelief of the testimony of the mother as affirmative
evidence of numerous and intentional contacts. In doing this, it is
usurping the role of the trial court to determine credibility of witnesses
and weight of the evidence.
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