State v. Austin, 95-256
| Citation | 165 Vt. 389,685 A.2d 1076 |
| Decision Date | 09 August 1996 |
| Docket Number | No. 95-256,95-256 |
| Parties | STATE of Vermont v. James AUSTIN. |
| Court | United States State Supreme Court of Vermont |
Howard W. Stalnaker and Diane C. Wheeler, Franklin County Deputy State's Attorneys, St. Albans, for plaintiff-appellee.
Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for defendant-appellant.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
Defendant appeals an order of the Franklin District Court that revoked his probation and reinstated his underlying sentence for sexual assault. Defendant contends that: (1) there was insufficient evidence to support a violation for leaving the State of Vermont without his probation officer's permission; (2) there was insufficient evidence to support a violation of the condition that he "successfully complete any therapy on sexual aggressiveness to satisfaction of probation officer"; and (3) the probation condition requiring defendant to "submit to urinalysis testing when requested by your probation officer" violated his constitutional rights to due process and to be free from unreasonable searches and seizures. We reverse the determinations that defendant violated the travel and therapy conditions, but affirm the violation of the urinalysis condition.
On April 8, 1990, defendant was charged with one count of sexual assault, 13 V.S.A. § 3252(a)(1), and two counts of custodial interference, 13 V.S.A. § 2451. Defendant and the state's attorney signed a plea agreement in which defendant agreed to plead nolo contendere to the charge of sexual assault and the State agreed to dismiss the custodial interference charges and to recommend a sentence of one to three years, all suspended with probation.
At sentencing, the judge accepted the plea agreement and issued a probation warrant that included the following conditions:
F. You shall remain within the State unless granted permission to leave by your probation officer.
....
M. You shall not purchase, possess, or consume regulated drugs unless prescribed for your use by a physician. You shall submit to urinalysis testing when requested by your probation officer or any other person authorized by your probation officer.
....
14. Defendant to attend substance abuse counseling and successfully complete any therapy on sexual aggressiveness to satisfaction of probation officer. The order of therapy to be determined by counselors.
Defendant signed the probation warrant on January 2, 1991.
In October 1991, defendant violated probation Conditions M and 14 by failing to meet with his counselors and by admitting that he used marijuana. He served nine days for the violations. In December 1991, defendant again violated Condition 14 by continuing to miss meetings with a counselor and violated Condition M by refusing to submit to a urinalysis test. He served sixteen days in jail and signed a modified probation warrant that included Conditions F, M, and 14.
In February 1995, defendant was twice charged with violating Condition M, first, after a urinalysis test indicated the presence of cannabinoids, and later, after he refused to consent to urinalysis testing. He was also charged with violating Condition 14 by failing to attend substance-abuse counseling sessions.
On March 17, 1995, the State charged defendant with violating Condition F by going to New Hampshire without permission from his probation officer. Defendant was also charged with violating Condition 14 by failing to participate in sex-offender therapy to the satisfaction of his probation officer and by failing to "put into practice what [he] has learned [in therapy]."
The court held a two-day hearing in March and April of 1995 on the alleged violations. In support of the Condition F violation, the State offered an affidavit from a Claremont, New Hampshire police officer, who placed defendant in New Hampshire on March 3, 1995. Defendant objected to the admissibility of the affidavit on the ground that it violated his right to confront an adverse witness. The State did not explain why the officer was absent, and the objection was overruled without explanation from the court. The court found that the affidavit provided sufficient evidence to support a violation of Condition F.
With respect to Condition 14, defendant contended that he had actively participated in the sexual-aggression program and had a four-year history free of sexually violent behavior. Defendant's probation officer and therapist both acknowledged that defendant could identify his "risk factors," but they testified that he had not used this knowledge to change his life. The court found that, despite his attendance and participation in treatment, defendant had failed to integrate the therapy into his life, and that he was therefore in violation of Condition 14.
Finally, defendant did not contest the urinalysis results but argued that Condition M was invalid because it was not related to the predicate offense and was a violation of his right against unreasonable search and seizure. The court found a clear and logical relationship between the condition and the underlying offense, and further noted that defendant had bargained for the conditions and had agreed to them on three separate occasions. As a result, the court found that Condition M was valid and that defendant had violated it.
On April 17, 1995, the court found that defendant's multiple probation violations demonstrated that probation had ceased to be helpful in defendant's rehabilitation. The court therefore revoked defendant's probation and reinstated the underlying prison sentence. The present appeal followed.
Defendant contends that the evidence did not support a finding that he violated Condition F by leaving Vermont without his probation officer's permission. According to defendant, the only evidence supporting the charge was the affidavit of a New Hampshire police officer, the admission of which violated his rights under the Confrontation Clause.
We have previously held that, to preserve a Confrontation Clause objection, a defendant must raise an objection on confrontation grounds with sufficient specificity to "trigger[ ] the consideration of a secondary issue, namely, whether circumstances making production of the witness difficult or impractical outweigh the [probationer's] need to confront and cross-examine the witness." Watker v. Vermont Parole Bd., 157 Vt. 72, 78, 596 A.2d 1277, 1281 (1991). As examples of specific objections, we have suggested that a probationer must apprise the trier of fact of the possible violation, express a desire to question the witness, ask the State to produce the witness or show "good cause" why the witness is not present, ask for a continuance, raise the confrontation issue, or object to the absence of the witness. Id. In the instant matter, when the state's attorney offered the affidavit at the violation-of-probation hearing, defendant apprised the court of the possible violation, expressed a desire to question the witness, and specifically raised the confrontation issue. Defendant thus preserved his Confrontation Clause objection.
In State v. Finch, we held that "reliable hearsay can be admitted in a probation revocation proceeding and serve as the basis for revocation" without undermining the probationer's confrontation rights. 153 Vt. 216, 218, 569 A.2d 494, 495 (1989). In Finch, the trial court revoked the defendant's probation after finding that the defendant had violated a no-alcohol condition. The evidence supporting the violation consisted of the testimony of the defendant's probation officer, who recounted statements made by the defendant's mother and by a police officer, and a report from a detoxification center documenting the defendant's admission and treatment. After observing that the hearsay sources were "mutually supportive," and that the medical report was of the kind in which questions of credibility and veracity were not present, we concluded that "[t]he evidence in this case had sufficient indicia of reliability," and affirmed the revocation order. Id.
The constitutionality of our holding in Finch, however, was called into question when the federal district court for the District of Vermont granted a writ of habeas corpus to the defendant in Finch. Finch v. Vermont Dist. Ct., No. 90-9, 1990 WL 312576, at (D.Vt. Sept. 24, 1990) (unpublished mem.). The court, in granting the writ, explicitly rejected this Court's determination "that indicia of reliability may alone justify denial of confrontation." Id. at Rather, the court held that, in a probation revocation hearing, a probationer has "the right ... to cross-examine adverse witnesses 'unless the hearing body specifically finds good cause for not allowing confrontation.' " Id. at (quoting Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636 (1985)); cf. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1762, 36 L.Ed.2d 656 (1973) (). The court noted that
hearsay evidence will be admissible under certain circumstances. Conventional substitutes for live testimony such as affidavits, depositions, and certain documentary evidence, all of which tend to bear indicia of reliability, were expressly offered by the Gagnon Court as examples of evidence which might substitute for live evidence upon a showing of cause.
(emphasis added). Thus, the court concluded that, "in a probation revocation hearing once good cause is shown, hearsay evidence with sufficient indicia of reliability may be introduced." Id. at n. 10 (emphasis added).
The instant matter presents the first opportunity we have had to reconsider our holding in State v. Finch in light of the federal district court's decision in Finch v. Vermont District Court. It is axiomatic that the decision of the federal district court is not binding precedent upon this...
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