Rodriguez v. Pallito

• Decision Date: 07 February 2014
• Docket Number: No. 13–155.,13–155.
• Citation: 2014 VT 18,93 A.3d 102
• Court: Vermont Supreme Court
• Parties: Edwin RODRIGUEZ v. Andrew PALLITO, Commissioner, Department of Corrections and Vermont Parole Board.

93 A.3d 102

2014 VT 18

Edwin RODRIGUEZ

v.Andrew PALLITO, Commissioner, Department of Corrections and Vermont Parole Board.

No. 13–155.

Supreme Court of Vermont.

Feb. 7, 2014.

Matthew Valerio, Defender General, and Patricia Lancaster, Prisoners' Rights Office, Montpelier, for Plaintiff–Appellee.

William H. Sorrell, Attorney General, and Sarah Katz, Assistant Attorney General, Montpelier, for Defendants–Appellants.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and CRAWFORD, Supr. J., Specially Assigned.

REIBER, C.J.

¶ 1. The State of Vermont appeals the superior court's reversal of the Vermont Parole Board's decision to revoke Edwin Rodriguez's parole. On appeal, the State argues that the court erred in (1) weighing the evidence and assessing witness credibility when reviewing the parole board's decision, and (2) concluding that the parole violation was not established by a preponderance of the evidence. For the reasons that follow, we affirm the trial court.

¶ 2. We begin with the facts. The Vermont Parole Board (the Board) revoked parolee's parole in December 2012, after two hearings. The first hearing took place in June and July 2012, and the Board unanimously voted that parolee had violated his parole conditions on the basis that he assaulted his mother on April 20, 2012 in Springfield, Massachusetts, where he was paroled. Parolee challenged the revocation in the Rutland Superior Court on the grounds that parolee's mother and sister were not present at the hearing, despite parolee's request that these witnesses attend and be subject to cross-examination. The State conceded that the violation hearing lacked an appropriate measure of due process because the Board had made insufficient efforts to secure the testimony of the witnesses, who lived in Massachusetts. Consequently, the Board relied heavily on hearsay evidence from a police officer who was present at the scene but did not witness the confrontation. The court remanded to the Board for a second hearing, with the instruction that the Board provide a fair hearing, consistent with parolee's right to cross-examine witnesses.

¶ 3. Parolee's mother and sister did not appear at the second violation hearing, held in December 2012. His mother was not present despite her assurances to the Board that she would appear in person, and his sister refused to testify. The Board noted on the record that it lacked authority to subpoena out-of-state residents, that attempts to secure their appearance had failed, and that the hearsay evidence was reliable. Once again, the Board concluded by a preponderance of the evidence that parolee had violated his parole conditions and voted unanimously to revoke parole. The Board found that parolee violated three conditions of parole: that he “shall commit no act punishable under the law; ... shall not engage in violent assaultive, or threatening behavior; ... and shall conduct [him]self in an orderly and industrious manner.”

¶ 4. The Board relied on the following evidence. The arresting officer testified by telephone that, although he did not see the incident in question, he and an assisting officer had responded to a call from an unknown person regarding a domestic disturbance involving parolee. The officers interviewed parolee's mother and sister after arriving at the scene. The sister told the officer that parolee had grabbed the mother by the neck and pushed her. The officer also testified that he had directly observed some scratches on the mother's neck, but this observation was not included in his police report describing the incident. On cross-examination, the officer stated, “I'm pretty sure she had marks.” The officer did not have his signed arrest report and notarized statement on hand to refresh his memory during his testimony. These documents were, however, contained in the record considered by the Board.

¶ 5. The Board also received an arrest report from an assisting officer, which was similar to the arresting officer's report but more detailed. According to this report, the sister was yelling at parolee when the officers arrived on scene, and she shouted that parolee had just hit their mother. Parolee began running down the block and was then detained. The sister claimed that parolee had called to ask for her help moving him and his girlfriend out of their mother's house. During the move, parolee allegedly made derogatory remarks toward the mother, and the sister demanded that he stop. The sister explained that the mother then approached parolee's girlfriend and confronted her about parolee's past actions. Parolee then allegedly grabbed his mother by the throat and pushed her against a car. The assisting officer also interviewed the mother, whose story was substantially similar to the sister's. Although the report states that the mother mentioned that parolee had left scratches and redness on her neck, the assisting officer did not mention in the report any personal observations that would verify her statements.

¶ 6. Finally, the Board received testimony from parolee. Parolee testified that on the day in question he was in the process of moving out of his mother's residence. He stated that he was having “a little discussion” with his mother when “somebody called the police officers.” He denied touching his mother.

¶ 7. Parolee was arrested and arraigned on assault charges, but the charges were dismissed one week later at the request of his mother, who also asserted her Fifth Amendment privilege. Nevertheless, the Board concluded that there was sufficient evidence to find a violation by a preponderance of the evidence.

¶ 8. Parolee again appealed to the superior court, challenging the second hearing on the grounds that the Board relied on information that was alleged to be “innuendo,” and therefore not admissible. He further renewed his objection that the Board's reliance on the officers' affidavits violated his “Fourteenth Amendment due-process rights to confront adverse witnesses because [they are] hearsay.”

¶ 9. In response to parolee's challenges, the court noted that despite the mother's and sister's alleged complaints to the police, these witnesses did not testify at either revocation hearing. The attorney for the Board argued that “the department doesn't have subpoena power in Massachusetts ... [s]o therefore, they're allowed to use these hearsay statements.” The court responded that, regardless of the hearsay evidence, the officers should have been looking at the scene of the incident for evidence “that would indicate a physical confrontation.” The court emphasized that none of the officers at the scene “verified” the witnesses' hearsay testimony regardingscratches on the mother's neck “by personal observation” in their police affidavits. The court opined that “that if [the mother's] neck was red and there were scratches, police officer could easily verify it and say I observed the redness and the scratches on the neck.” ¹ Moreover, the court expressed doubt regarding the arresting officer's credibility during the revocation hearing, stating that “[h]e appeared not to have good recall, or decent evidence. He said he thought there were scratches on the back of... the mother's neck, but he was wishy-washy on cross-examination as to ... whether or not that was something that he actually remembered or not.” Finally, the court noted that parolee was never convicted and, in fact, the case was dismissed one week later.

¶ 10. The court concluded that without the mother's and sister's testimony, there was “no way to judge their credibility.” Consequently, there was a “very significant gap in [the] burden of proof,” leaving the court to rely on hearsay evidence. And to the extent that the arresting officer verified the mother's complaint by claiming that he observed the scratches on her neck, the court found that he vacillated in his testimony. Given these considerations, the court found that, based on the evidence, the State did not prove the alleged parole violations by a preponderance of the evidence. The court stated, “[I]f it's fifty-fifty, it's fairly close but by preponderance of the evidence, the scales weighing equal, I can't find that there's a violation.”

¶ 11. The State appeals the court's decision, arguing that the court erred in (1) weighing the evidence and assessing witness credibility when it was reviewing the Board's decision, and (2) concluding that the parole violation was not established by a preponderance of the evidence.

I.

¶ 12. As an initial matter, we address parolee's argument that the appeal in this case was untimely. Under Vermont Rule of Appellate Procedure 4(a), an appeal must be filed within thirty days of the date of entry of the judgment appealed from. Parolee asserts that the final judgment was the court's February 7, 2013 order issued at parolee's Vermont Rule of Civil Procedure 75 hearing, which reversed the Board's decision, required a new parole plan, and ordered a status conference in two weeks. Because the State's appeal, filed April 9, 2013, was more than thirty days after the court's order, parolee asserts that the appeal should be dismissed as untimely.

¶ 13. We conclude that the court's February 7 order was interlocutory, not final. “To be final and appealable an order must end litigation on the merits or conclusively determine the rights of the parties, leaving nothing for the court to do but execute the judgment.” In re Burlington Bagel Bakery, Inc., 150 Vt. 20, 21, 549 A.2d 1044, 1045 (1988) (quotation omitted). Here, the trial court did not conclusively determine the parties' rights and liabilities in its decision. To the contrary, at the hearing the court expressed concern that parolee needed to receive “an appropriate plan” before being released, including a plan for “appropriate housing [and] appropriate living circumstances.” The court ultimately ordered that a parole plan be developed and set a status conference for two weeks later....