State v. Decoteau

• Decision Date: 31 August 2007
• Docket Number: No. 06-228.,06-228.
• Citation: 2007 VT 94,940 A.2d 661
• Parties: STATE of Vermont v. Richard DECOTEAU.
• Court: Vermont Supreme Court

940 A.2d 661

2007 VT 94

STATE of Vermont v. Richard DECOTEAU.

No. 06-228.

Supreme Court of Vermont.

August 31, 2007.

Motion to Clarify Granted October 10, 2007.

Eric M. Lopez, Windsor County Deputy State's Attorney, White River Junction, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General and Josh O'Hara, Legal Intern, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. Defendant appeals a violation of probation and subsequent probation revocation. On appeal, defendant argues that the district court: (1) erred in admitting a discharge summary and hearsay testimony at the probation revocation hearing; (2) abused its discretion in finding that the probation violation was willful; and (3) violated defendant's Fourteenth Amendment due-process right to confront adverse witnesses. We conclude that the trial court committed plain error in admitting the discharge summary and hearsay testimony; thus, we vacate and remand for a new hearing.

¶ 2. On July 5, 2005, defendant was arraigned for violation of an abuse prevention order. Subsequently, defendant was arraigned on additional charges, including disorderly conduct and violations of conditions of release. Defendant entered several plea agreements to resolve these charges. Most recently, defendant entered a global plea agreement in February 2006. Pursuant to this agreement, he pleaded guilty to a violation of probation and was released on probation with several conditions, including that he attend, participate in, and complete a residential treatment program to the satisfaction of his probation officer. On March 7, 2006, defendant entered a residential treatment facility called. Serenity House. Ten days later, Serenity House staff contacted defendant's probation officer to inform him that they were discharging defendant from treatment for inappropriate language and threatening behavior.

¶ 3. On March 20, 2006, defendant was arraigned on his probation-violation charge and held without bail. The court held a merits hearing on the probation-violation charge on May 17, 2006. At the hearing, the State questioned defendant's probation officer regarding defendant's dismissal from Serenity House. Defendant's probation officer recounted that his overall impression from conversations he had with Serenity House staff, in particular defendant's caseworker, was that defendant's attitude and behavior had been counterproductive to treatment. Defendant's probation officer stated that defendant's caseworker told him that staff reminded defendant on a daily basis to watch his attitude. Defendant's probation officer offered no dates or specifics concerning these conversations, but testified that the caseworker had spoken to defendant a couple of times, as had other staff members. Defendant did not object to the admission of this testimony.

¶ 4. The State also introduced, without objection, the discharge summary from Serenity House. The discharge summary explained that, while in treatment, defendant "displayed intimidating behavior and made several derogatory remarks to female clients." In addition, the attached incident report explained that defendant was discharged for "violating program rules, such as using inappropriate language and threatening behavior." The report also commented that defendant exhibited a "general failure to follow clear cut staff directives." The report contained no specifics about conversations that staff had with defendant, and the progress notes contained no entries of particular instances when defendant violated program rules.

¶ 5. Defendant testified at the hearing and recounted his version of events leading up to his discharge from Serenity House. Although he acknowledged three instances where his behavior may have been construed as inappropriate or threatening, he maintained that he had not threatened anyone and that Serenity House staff had warned him about his behavior on only one occasion prior to discharge. Defendant explained that he felt another resident had falsely accused him of threatening behavior in order to have defendant removed from the program. The resident's roommate testified that he overheard the conversation between defendant and the resident in which defendant allegedly threatened the resident. Although the roommate could not remember exactly what was said, he testified that there were no threatening comments and that the exchange seemed civil.

¶ 6. At the close of the evidence, defendant objected to the admission of the discharge summary and his probation officer's testimony regarding what his caseworker had relayed about defendant's behavior at Serenity House. Defendant's counsel explained that she did not object sooner because she thought the caseworker would testify and thus be available for cross-examination. Without his live testimony, defendant argued that admission of the caseworker's statements through defendant's probation officer's testimony violated defendant's right to confront adverse witnesses.

¶ 7. In response, the court noted that defendant did not object at the time the evidence was introduced. Nonetheless, the court considered the objection and held that the disputed evidence was admissible. The court noted that hearsay can be admitted at a probation-revocation proceeding if it bears indicia of reliability. The court concluded that the discharge summary was reliable because it was the type of information a probation officer regularly relies on to make decisions. Further, the court reasoned that because the probation officer had direct communication with defendant's caseworker, who had the most knowledge about defendant's behavior, the content of these conversations was also reliable. Addressing the merits, the, court found that defendant knew he was required to complete a treatment program and that he did not complete this program. Further, the court found that defendant engaged in a pattern of disrespectful behavior, which he failed to correct after staff repeatedly spoke with him. Thus, the court rejected defendant's argument that the violation was not willful and therefore did not amount to a violation of probation. Based on this violation, the court revoked probation and imposed the underlying sentence. This appeal followed.

¶ 8. In a probation revocation proceeding, the State has the burden of establishing that a probation violation occurred by a preponderance of the evidence. State v. Klunder, 2005 VT 130, ¶ 7, 179 Vt. 563, 892 A.2d 927 (mem.). The State may meet its burden by establishing that the probationer violated an express condition. Id. If the State meets its burden, then the burden of persuasion shifts to the probationer to demonstrate that his violation was not willful but, instead, resulted from factors beyond his control. State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996). Whether a violation occurred is a mixed question of law and fact. Id. The trial court must first determine what actions the probationer took and then make a legal conclusion regarding whether those acts violate probation conditions. Id. We will not disturb the court's findings if they are fairly and reasonably supported by credible evidence, and we will uphold the court's legal conclusions if reasonably supported by the findings. Id.

¶ 9. On appeal, defendant first claims that the court erroneously admitted the discharge summary and defendant's probation officer's statements regarding what Serenity House staff members told him about defendant. Defendant argues that the statements are unreliable hearsay and should be excluded. Defendant contends that, without the hearsay evidence, the evidence does not support the court's finding that defendant's failure to complete the program was willful. The State counters that defendant did not preserve his objection and that, in any event, the statements are reliable.

¶ 10. Defendant failed to make a timely objection to the admission of hearsay statements in his probation officer's testimony and the discharge summary at the time they were admitted. See State v. Kinney, 171 Vt. 239, 253, 762 A.2d 833, 844 (2000) (requiring party to make a timely motion to exclude evidence). Although defendant claims his failure to make a timely objection was predicated on the assumption that defendant's caseworker would testify, such a misunderstanding does not rectify defendant's failure to object. Defendant's argument that he preserved the objection by challenging the admission at the close of the evidence also fails. The party opposing introduction of evidence must object at the time the evidence is offered to preserve this issue for appeal. Id. (concluding that objection not preserved when made the day after the testimony was introduced).

¶ 11. Having concluded that defendant failed to preserve his argument for appeal, we consider whether plain error applies in this situation. Generally, in civil proceedings, issues not raised below are waived. Pope v. Town of Windsor, 140 Vt. 283, 286, 438 A.2d 388, 390 (1981). We conclude, however, that a plain-error analysis is appropriate in this case. Even though probation-revocation proceedings are not "essentially `criminal' in nature," State v. Brunet, 174 Vt. 135, 141, 806 A.2d 1007, 1011 (2002), neither are the proceedings wholly civil. State v. Leggett, 167 Vt. 438, 446, 709 A.2d 491, 496 (1997) ("A probation-revocation proceeding is a hybrid criminal/civil proceeding."). Furthermore, we have applied plain error in civil proceedings when "important interests and basic constitutional rights" were implicated. Varnum v. Varnum, 155 Vt. 376, 383, 586 A.2d 1107, 1110 (1990) (addressing mother's free exercise of religion claim, even though it was raised for the first time on appeal because "fundamental rights and interests [were] at stake"). Because defendant's claim involves his right to confront adverse witnesses and...