State v. Gedutis

STATE_V_GEDUTIS.93-216; 163 Vt 591; 653 A.2d 761

[Filed:  12-Oct-1994]

[Motion for Reargument Denied 10-Nov-1994]
                        
                              ENTRY ORDER

                     SUPREME COURT DOCKET NO. 93-216

                           MARCH TERM, 1994


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }             Unit No. 2, Chittenden Circuit
                                  }
Alexander Gedutis                 }
                                  }          DOCKET NO. 2033-6-92Cncr


               In the above entitled cause the Clerk will enter:

Defendent Alexander Gedutis was placed on probation for the misdeameanor
conviction of unlawful mischief after damaging his wife's vehicle.  Six
months later, complainant reported to police that defendant had left
messages on her telephone answering machine, one threatening harm to her. 
As a result, a probation violation complaint was made alleging that
defendant had violated conditions of his probation. 

     Complainant testified at the probation hearing that the last message
defendant put on the answering machine was a threat to shoot her in the
head.  The State did not produce the inculpatory tape, explaining in
response to defendant's request that efforts to obtain it had been
"futile."  The State also did not produce a statement about the incident
made by complainant.  The court revoked defendant's probation because he
engaged in threatening and harassing behavior. 

     The defendant appeals revocation on two grounds.  First, he argues
that it was error to permit the complainant to testify about the alleged
incident because the State failed to provide the tape and complainant's
statement to defendant on request, as required by V.R.Cr.P. 16.  In the
alternative, he asserts that complainant's testimony about the tape
violates V.R.Cr.P 32.1 because the State never disclosed the tape to
defendant so that he could protect himself from a faulty characterization
of the evidence.  We affirm. 

     Defendant's reliance on V.R.Cr.P. 16 is misplaced.  In  State v.
Kasper, 152 Vt. 435, 440, 566 A.2d 982, 985 (1989), we held that "[b]ecause
a probation revocation proceeding is informal [and] `unhampered by the
procedure incident to a common law trial,'" Rule 32.1(a)(2), not Rule 

 

43, "sets forth the procedure for the revocation hearing."  Id. at 440, 566 A.2d  at 985 (alteration in original) (quoting Reporter's Notes, V.R.Cr.P.
32.1).  We likewise hold that Rule 16 does not apply to probation
revocation proceedings, and any discovery there is governed by Rule 32.1. 

     We decline, however, to address defendant's argument on appeal that
V.R.Cr.P. 32.1 required disclosure of the statement and the tape, because
this argument was never presented to the trial court, and therefore, was
not properly preserved.  See State v. Lettieri, 149 Vt. 340, 344, 543 A.2d 683, 685 (1988) (party is precluded from raising an objection on appeal on
different grounds than were raised below). 

     The dissent maintains that complainant's hearsay testimony should not
have been admitted because it was not reliable.  Without addressing whether
complainant's testimony constituted hearsay or implicated the best evidence
rule, we note that defendant did not adequately raise the issue on appeal. 
See State v. Taylor, 145 Vt. 437, 439, 491 A.2d 1034, 1035 (1985) (Court
will consider, sua sponte, issues not properly raised on appeal only in
rare and extraordinary cases); State v. Martin, 145 Vt. 562, 566 n.3, 496 A.2d 442, 445 n.3 (1985) (Court will not decide inadequately briefed and
argued issues); State v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982)
(absent exceptional circumstances, issues not briefed are not to be
considered on appeal).  Moreover, with respect to the indicia of
reliability, if defendant had actually spoken with complainant on the
telephone and threatened her directly -- no tape ever being made -- then
the indicia of reliability would be no greater or less than it is now. 
Defendant had ample opportunity to impeach complainant's testimony, and the
court was able to assess her credibility and consider possible motives for
fabrication. 


    Affirmed. 

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                           Concurring and Dissenting

     DOOLEY, J., concurring and dissenting.  I concur with the majority's
holding that V.R.Cr.P. 16 is inapplicable to this case, and that V.R.Cr.P.
32.1 is the relevant provision. However, because I believe complainant's
hearsay testimony was improperly admitted in violation of defendant's due
process rights,(FN1) I dissent. 

     We have recognized that "the scope of a probationer's due process
rights at a probation revocation hearing do `not parallel the
constitutional rights afforded a defendant during a criminal trial.'" State
v. Finch, 153 Vt. 216, 218, 569 A.2d 494, 495 (1989) (quoting State v.
Kasper, 152 Vt. 435, 439, 566 A.2d 982, 985 (1989)).  For example,  we will
allow revocation of probation to stand upon hearsay testimony alone. 
Watker v. Vermont Parole Bd., 157 Vt. 

 

72, 74, 596 A.2d 1277, 1279 (1991), overruling Baxter v. Vermont Parole
Bd., 145 Vt. 644, 497 A.2d 362 (1985).(FN2) Nonetheless, there must always
be respect for a fundamental level of due process protection to be afforded
every probationer.  See, e.g., Reporter's Notes, V.R.Cr.P. 32.1 (Rule 32.1
sets forth constitutionally based requirements for preliminary and
revocation of probation hearings, including notice of violation, disclosure
of evidence, and right to confront witnesses against probationer).  Thus
while we allow revocation based on hearsay alone, the hearsay must be both
probative and reliable. Watker, 157 Vt. at 76Ä77, 596 A.2d at 1280;(FN3)
accord Finch, 153 Vt. at 218, 569 A.2d  at 495. In this matter,
complainant's testimony was probative; her testimony went directly to the
issue of whether defendant violated the terms of his probation.  However,
viewed objectively, complainant's testimony was not reliable. 

     Complainant's testimony lacks the indicia of reliability present in
Watker and Finch. Unlike those cases, there is no corroboration for the
testimony of the complainant, even as to surrounding details.  Nor is the
evidence of the type that is the subject of hearsay exceptions because of
intrinsic reliability.  See Finch, 153 Vt. at 218, 596 A.2d  at 495
(upholding admission of detoxification center report showing defendant's
admission and treatment on ground that report was analogous to customarily
reliable medical report). Moreover, the possibility of bias or motive to
fabricate is a central concern in evaluating the reliability of hearsay
evidence.  See Bailey v. State, 612 A.2d 288, 293 (Md. 1992).  Here, there
was a probability of bias and great motive to fabricate.  Complainant
testified on cross-examination that she and defendant had decided to
reconcile only a few weeks before he supposedly left the messages.  After
agreeing to reconcile, complainant discovered that defendant was seeing
another woman.  On the very night of defendant's alleged threatening call,
complainant ran into the other woman at a Winooski bar, and testified that
she told the woman to "stay away from my husband."  She then called
defendant to inform him that the woman "wasn't of the highest character." 
At the time of the revocation hearing, the parties were separated, and
complainant had filed for a divorce from defendant. 

     There are other indications of lack of reliability.  Complainant had
original possession of the answering machine tape, but it was not produced
at the hearing because the State's efforts to obtain it were "futile." 
Whatever the circumstances, lack of production of the tape prevented
verification of complainant's hearsay statement.  The lack of the tape is
even more troubling given that complainant's recollection of the taped
messages was imperfect; complainant testified at the revocation hearing,
held just over one month after defendant supposedly left the messages, 

 

that her recollection of one of the four messages was unclear.(FN4) 

     It is no answer to the deficiency in the evidence that the court found
it sufficiently reliable to base its findings upon it.  The findings are
sparse (FN5) and give no indication that the court even considered the
reliability threshold as required by Watker and Finch.  The evidence is
constitutionally inadequate to support revocation despite the court's
findings. 

     There is one other concern that requires airing in this case.  After
our holding, the defendant in Finch took his case to the United States
District Court, which granted habeas corpus, concluding that the evidence
was constitutionally inadequate to support probation revocation.  Finch v.
Vermont Dist. Ct., Civ. Action No. 90Ä9 (D. Vt. Sept. 24, 1990), adopting
Magistrate's Report and Recommendation (Aug. 23, 1990) (Niedermeier, Mag.)
(unpub.).  After analyzing relevant federal precedents, it concluded that
"indicia of reliability may [not] alone justify denial of confrontation." 
Magistrate's Report at 8.  Instead, it held that some showing of good cause
was necessary to support use of hearsay without producing the live
witnesses who could testify directly.  Id. at 9. 

     We need not resolve whether we will follow the federal approach fully
to hold here that there was such a lack of good cause that it undercuts any
finding of reliability for complainant's evidence.  The State gave no
explanation why the tape was unavailable except that its attempt to obtain
it had been "futile."  Apparently, a police officer also heard the tape but
no attempt was made to obtain his testimony.  It also appears from the
transcript that the State was intending to offer the testimony of
defendant's probation officer concerning a conversation with defendant
about the answering machine message.  The State discontinued this attempt
when it became clear that the State had failed to comply with a discovery
order to disclose the content of the conversation prior to the hearing. 
Not only is "good cause" for use of the hearsay absent, the presentation of
the State's case is so inadequate that the fairness of the result is
suspect. 

     Before this defendant rushes to federal court for habeas corpus
relief, we must seriously evaluate whether the evidence presented against
him is sufficient to deprive him of his liberty and whether alternative
presentations were available to the State.  Unless we are prepared to say
that any hearsay is admissible, and any hearsay evidence can support
probation revocation, we 

 

must reverse this probation revocation decision. 

     I dissent.  I am authorized to state that Justice Johnson joins in
this dissent. 
				
                                    BY THE COURT:


                                     _______________________________________
Concurring and dissenting:           Frederic W. Allen, Chief Justice


____________________________________ _______________________________________
John A. Dooley, Associate Justice    Ernest W. Gibson III, Associate Justice


____________________________________ _______________________________________
Denise R. Johnson, Associate Justice James L. Morse, Associate Justice


[ ]  Publish

[ ]  Do Not Publish
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                                      Footnotes


FN1.  Contrary to the majority's assertion, this point was argued here.  In
 summarizing his argument, defendant stated in his brief:  "The introduction
 of the summary of the audio tape by a biased witness, in the absence of a
 satisfactory explanation for the nondisclosure of the tape, offends due
 process . . . ."  This summary exactly states the position maintained in
 this dissent. 

FN2. Although not state explicitly in Watker, I consider State v. Schroeder, 149
 Vt. 163, 163, 540 A.2d 647, 647 (1987), in which we adopted the Baxter rule
 for probation hearings, as also overruled. 

FN3.  Although Watker was a parole revocation case, and this is a probation
 revocation case, there is no "difference relevant to the guarantee of due
 process between the revocation of parole and the revocation of probation." 
 Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). Therefore, we should apply
 the Watker standard to determine the admissibility and weight owed to
 hearsay testimony in this probation revocation matter. 

FN4. Complainant testified that defendant left the following messages:  (1) "I'm
 sorry you had a bad night, you know, are you there, pick up the phone." (2)
 "I really don't want to get into Boris, but if you want to be my ex-wife,
 then that's the way it will be." (3)  "What are you guys doing?  Which room
 are you in?  The bedroom, the bathroom?" (4) "I'm on my way over to shoot
 you both in the head.  I promise it will be quick."      

 She testified that her recollection of the third message was unclear. 

FN5.    In all, the court only made four oral findings of fact:  (1) that
 complainant Gedutis received a message on her answering machine, (2) that
 it was defendant calling, (3) that there were several messages on the
 machine, and (4) that the fourth message contained the threat that
 defendant was on his way over to shoot complainant.