Moody v. Cunningham

• Decision Date: 06 January 1986
• Docket Number: Nos. 84-492,85-094,s. 84-492
• Citation: 503 A.2d 819,127 N.H. 550
• Parties: Theodore MOODY v. Michael CUNNINGHAM, Warden. The STATE of New Hampshire v. Brian DANEAULT.
• Court: New Hampshire Supreme Court

Page 819

503 A.2d 819

127 N.H. 550

Theodore MOODY v.Michael CUNNINGHAM, Warden.

The STATE of New Hampshire v.Brian DANEAULT.

Nos. 84-492, 85-094.

Supreme Court of New Hampshire.

Jan. 6, 1986.

Stephen E. Merrill, Atty. Gen. (Ronald F. Rodgers, Asst. Atty. Gen., on brief and orally), for defendant, Michael Cunningham, and for State.

James E. Duggan, Appellate Defender, and Joanne Green, Asst. Appellate Defender on brief, Concord, for petitioner, Theodore Moody.

James E. Duggan, appellate defender, Concord, by brief and orally, for defendantBrian Daneault.

KING, Chief Justice.

In these cases, consolidated on appeal, we must decide whether use of an untried indictment as the sole evidence in a hearing for revocation of parole or imposition of a suspended sentence violates the due process standards established in Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304(1982).We hold that evidence of an untried indictment by itself is insufficient to satisfy the State's burden of proof and that due process requires the State to present some evidence of the underlying violation through testimony of a witness who can be cross-examined unless the hearing officer specifically finds good cause for denying confrontation.

The record indicates that Theodore Moody was paroled in July, 1981.On May 25, 1984, he was indicted on various drug-related charges for which he had been arrested a few days earlier.Moody's parole officer, Daniel Fowler, subsequently filed a Complaint of Violation of Parole alleging that Moody's arrest and indictment were in violation of his parole agreement.The specific conditions implicated were that Moody would "conduct [himself] as a good citizen" and would abstain from the use or sale of narcotic or controlled drugs.

At the parole revocation hearing held on July 20, 1984, the only evidence presented of the alleged violations was testimony by Fowler, over Moody's objection, that Moody had been arrested and indicted on the drug charges.It is unclear whether copies of the indictments were given to the parole board or whether Fowler merely testified regarding the indictments.Finding that Moody had violated his parole agreement, the parole board revoked Moody's parole and recommitted him to the State prison for six years, four months and eight days.That December, Moody pleaded guilty to the new drug charges and was ordered to serve 7 1/2 to 15 years concurrent with the remainder of the sentence imposed by virtue of the parole revocation.The earliest release date on the new sentence is November, 1991, which is beyond the maximum release date of the original sentence.

In August, 1984, Moody filed a petition for a writ of habeas corpus in the superior court, alleging that he was denied his right to confront and cross-examine adverse witnesses at the parole revocation hearing and that the parole board's decision, based on Fowler's complaint, was not supported by a preponderance of the evidence.The Superior Court(Bean, J.) denied Moody's petition, finding that he"was given the opportunity to confront and cross-examine the witness that presented the evidence of the issuance of the indictments."This appeal followed.

In the Daneault case, the defendant pleaded guilty to possession of a narcotic drug on July 2, 1984, at which time the Superior Court(Dalianis, J.) imposed a fine of $1,000, $250 of which was suspended upon "good behavior," payable to the probation department within one year.In addition, the court sentenced Daneault to six months' confinement in the house of correction, "suspended upon payment of the fine and good behavior."Daneault was placed on probation solely for collection of the fine.In December 1984, the State moved to impose the suspended sentence on the grounds that Daneault had been arrested for the sale of a controlled drug and had failed to comply with the fine payment schedule.

At the February, 1985 hearing on the State's motion, the State asked the court to take judicial notice of Daneault's indictment in January, 1985 for sale of a controlled drug, arguing that by virtue of the indictment Daneault had not been of good behavior.The Superior Court(Dalianis, J.) found that there had been no violation of probation because the full time for payment had not elapsed.The court, however, took judicial notice of the indictment and granted the motion to impose the suspended six-month sentence, stating that "when I say good behavior, I mean that a person is to remain arrest-free and if he gets arrested I don't think he's been of good behavior."Daneault served four months in the house of correction and was released in March, 1985 on his minimum release date.He appeals the court's imposition of the suspended sentence.

As a preliminary matter, we must address the State's contention that these appeals are moot.It cannot be gainsaid that neither Moody nor Daneault will realize a tangible benefit by a decision in his favor, since Daneault is no longer incarcerated and Moody is serving a concurrent sentence for another crime.Yet this court is not bound by rigid rules in determining whether an appeal is moot; rather, the question of mootness is a matter of convenience and discretion.Hood & Sons v. Boucher, 98 N.H. 399, 401, 101 A.2d 466, 468(1953).Where, as here, the parties raise significant constitutional issues, there is a public interest which militates in favor of our rendering a decision on the merits.SeeRoyer v. State Dept. of Employment Security, 118 N.H. 673, 675, 394 A.2d 828, 829(1978);Proctor v. Butler, 117 N.H. 927, 930, 380 A.2d 673, 674-75(1977).

Hearings for parole violations or imposition of a suspended sentence "may culminate in a deprivation of an individual's most precious freedom--his personal liberty."Proctor v. Butlersupra.Although the interest in continued liberty is conditional, both the State and the defendant have a strong interest in seeing that liberty is not withdrawn except by proceedings that comport with due process.The identity of issues in Moody, Daneault and a third case, the appeal of which was deferred pending this decision, indicates that uncertainty exists in the application of the procedural safeguards of Stapleford.We...