Rossi v. State

• Decision Date: 24 March 2016
• Docket Number: No. 374, 2015,374, 2015
• Parties: Phillip Rossi, Defendant Below–Appellant, v. State of Delaware, Plaintiff Below–Appellee.
• Court: United States State Supreme Court of Delaware

140 A.3d 1115

Phillip Rossi, Defendant Below–Appellant

v.State of Delaware, Plaintiff Below–Appellee.

No. 374, 2015

Supreme Court of Delaware.

Submitted: March 2, 2016

Decided: March 24, 2016

Robert M. Goff, Esquire, Office of Public Defender, Wilmington, Delaware, for Appellant.

Gregory E. Smith, Esquire, Department of Justice, Wilmington, Delaware, for Appellee.

Before STRINE, Chief Justice; HOLLAN D and SEIT Z, Justices.

STRINE

, Chief Justice:

I. INTRODUCTION

After being out of prison for two days and while on probation, Phillip Rossi was spotted at a JCPenney department store with a woman who was believed to have stolen almost $200 of merchandise. Rossi was the suspected lookout. The alleged scheme culminated in Rossi supposedly returning the stolen items to a different JCPenney for store credit later that same day. Criminal charges followed soon after the incident. And although the State entered a nolle prosequi on all charges against Rossi subject to certain conditions, it nonetheless sought to revoke Rossi's probation, and the Superior Court found that Rossi had violated terms of his probation by shoplifting.

On appeal, Rossi argues that the State did not present an adequate record upon which the Superior Court could find that the alleged shoplifting occurred. Thus, Rossi argues, the Superior Court could not find that he violated probation by shoplifting.

The State's burden to prove a violation of probation is much lighter than it is to convict a defendant of a crime. All that the State must do is prove by a preponderance of the evidence that the “conduct of the probationer has not been as good as required by the conditions of probation.”¹ And, the State can support its case by relying upon hearsay evidence. But, under long-standing precedent that the State does not ask us to revisit—specifically, Brown v. State²

and Collins v. State³ —the State must present some competent evidence that supports a finding that the defendant violated probation. Competent evidence is evidence that would be admissible at trial and that tends to prove two critical factors necessary to a violation of probation finding: i) an act constituting a violation occurred; and ii) the defendant is linked to that act.⁴ In Collins, we reversed a finding of a violation of probation because, even though there was competent evidence showing that a crime occurred, there was no admissible evidence linking the defendant to the crime.⁵ Here, we confront a similar situation. The only piece of competent evidence the State produced showed that Rossi was at the JCPenney on the key date in question. But, the State did not introduce any competent evidence that showed a crime had been committed there. Adhering to Collins, we reverse.

II. BACKGROUND

The only undisputed fact in this case is that on April 14, 2015, Rossi and his girlfriend, Rachel Thomas, were at the JCPenney store inside the Christiana Mall.

The State claimed that, based on information obtained from a police investigation, Thomas was stealing merchandise while Rossi was acting as the lookout. The State alleges that there is a surveillance video showing Rossi and Thomas at the store, and the JCPenney loss-prevention manager saw the two leaving the mall together. Less than an hour later, Rossi allegedly arrived at a different JCPenney store and returned the stolen items in exchange for store credit. And, in making the exchange, Rossi presented his photo identification to store personnel. Thomas told essentially the same set of facts to Delaware State Police Corporal Thomas Rhoades, but she claimed that it was Rossi's idea to shoplift “because he was getting sick.”⁶ Corporal Rhoades questioned Rossi within days after the incident, and Rossi admitted to being at the Christiana JCPenney with Thomas, but nothing more.

On April 20, the State charged Rossi for theft under $1,500, conspiracy third degree, shoplifting under $1,500, and receiving stolen property. But, it ultimately entered a nolle prosequi as to all charges against him subject to three conditions, one of which required Rossi to pay $194.31 in restitution to JCPenney.

On April 30, Rossi's probation officer filed a report with the Superior Court alleging that Rossi had violated the terms of his probation by shoplifting. A contested violation-of-probation hearing was held on July 15. The State presented only one witness to establish that the alleged shoplifting occurred, and that was Corporal Rhoades. The State did not present any physical evidence, photographs, video, or § 3507 statements.⁷ Corporal Rhoades had no personal knowledge of what occurred at the JCPenney; he had only information that he gathered after the event from witnesses with direct knowledge, principally the loss-prevention manager.⁸

Corporal Rhoades's testimony was essentially as follows: He went to the Christiana JCPenney on April 16 or April 17 and spoke with the loss-prevention manager, who told him that there was video surveillance showing Rossi acting as a lookout for Thomas. Corporal Rhoades never watched the surveillance video, but he saw what the manager told him were still images from the video, which he compared to other images of potential suspects and used to determine that Rossi and Thomas were the suspects. The manager also told Corporal Rhoades that Rossi went to another JCPenney to return the stolen items in exchange for store credit. Corporal Rhoades also testified as to his own direct conversations with Thomas and Rossi.

During closing argument, Rossi relied on this Court's rulings in Brown

and Collins and argued that, aside from his own statement to Corporal Rhoades, everything else was inadmissible hearsay. He further argued that although the Superior Court may consider inadmissible hearsay at a violation-of-probation hearing, there must be some competent, admissible evidence that shows he shoplifted, and that no evidence of that kind was presented.⁹

The Superior Court found that there was “overwhelming hearsay evidence which is admissible to show that [Rossi] participated in the shoplifting.”¹⁰ Addressing Rossi's argument, the court noted Collins

and went on to find that there was competent evidence that connected Rossi to the crime:

Looking at the Collins

case, I need to see competent evidence that relates the defendant to the crime.

Here, I find that competent evidence in the form of the photograph that was identified by the police officer as being that of the defendant, the defendant's statement that he was at the store, and the girlfriend's statement that the defendant participated in the crime; and, therefore, I find the defendant in violation of his probation.¹¹

After ruling that Rossi violated probation, the Superior Court sentenced him to three years in prison with credit for time previously served. This appeal followed.

III. ANALYSIS

We review the Superior Court's decision to revoke probation for abuse of discretion.¹²

The parties' duel over whether competent evidence supported the Superior Court's finding turns on the application of settled principles of Delaware law. The State shoulders a less hefty weight in a violation-of-probation proceeding than in a criminal trial.¹³ Instead of having to prove its case beyond a reasonable doubt, the State need only show by a preponderance of the evidence that the defendant violated probation.¹⁴ And the usual hearsay prohibitions are non-existent.¹⁵ But, that does not mean the State can rely entirely on inadmissible hearsay.¹⁶ There must be “some competent evidence to prove the violation asserted.”¹⁷

“Competent evidence” has not been expressly defined, but a close reading of the relevant case law reveals its definition to be straightforward: It is evidence that would be admissible in a criminal trial and is proof that the defendant violated the terms of his probation.¹⁸ Inadmissible hearsay, without some corroborating admissible evidence, is “a basis too untrustworthy [to terminate a person's freedom].”¹⁹

Rossi claims that the only piece of competent evidence admitted at the violation-of-probation hearing was his own statement, which came in through Corporal Rhoades's testimony. But, Rossi notes that the statement only contained his admission to being at the JCPenney with Thomas. Rossi said nothing about the alleged shoplifting. Thus, he asserts that there is not competent evidence that both i) shows a crime occurred; and ii) links him to that crime. Without competent evidence also tending to show a crime had been committed that day at the JCPenney, the State, Rossi argues, fell short of its light burden.

To parry this thrust, the State argues that several pieces of the record were competent evidence for purposes of finding that the alleged shoplifting occurred. In addressing this case, we stress that the State has not asked us to overturn or modify Brown

and Collins in any respect, but tries to argue that it satisfied the requirements established by those cases.

To isolate the key question before us, we proceed in this manner: We first examine the State's arguments that there were several pieces of competent evidence introduced at the violation-of-probation hearing other than Rossi's own out-of-court statement to Corporal Rhoades. After addressing each argument and explaining why we conclude they lack merit, we focus on the one piece of competent evidence that was presented at the violation-of-probation hearing, which was Rossi's admission to being at the Christiana JCPenney with Thomas. We then examine whether that testimony was sufficient under our case law to establish that Rossi took part in the alleged shoplifting and to allow the finding of a violation of probation against Rossi to stand.

A. The Only Competent Evidence The State Presented Was Rossi's Admission To Being At The JCPenney

The State argues that it presented sufficient competent evidence at the violation-of-probation hearing through Corporal Rhoades's testimony, which was based on his direct conversations with Rossi, Thomas, and the...