State v. Madison

• Decision Date: 01 March 1995
• Docket Number: No. 95-046,95-046
• Citation: 658 A.2d 536,163 Vt. 360
• Parties: STATE of Vermont v. Jason MADISON.
• Court: Vermont Supreme Court

Page 536

658 A.2d 536

163 Vt. 360

STATE of Vermont v. Jason MADISON.

No. 95-046.

Supreme Court of Vermont.

March 1, 1995.

Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Charles S. Martin of Martin & Paolini, Barre, for defendant-appellant.

Robert Appel, Defender Gen., Montpelier, amicus curiae.

Before ALLEN, C.J., ¹ and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

PER CURIAM.

Today, we consider whether use of the term "review de novo" in the recently approved bail amendment to the Vermont Constitution (Proposal 7) and related legislation, 13 V.S.A. § 7556(d), requires a justice of this Court, when reviewing a district court's decision denying bail, to conduct a new evidentiary hearing without considering the record created in the district court. We conclude that the bail amendment, which allows the district court to deny bail to a person charged with a violent felony if evidence of guilt is great and the accused poses a substantial threat of violence to another person, does not authorize two full evidentiary hearings, as urged by defendant. Our conclusion rests upon the meaning of the term "review de novo" as a legal term of art.

In adopting Proposal 7, the voters of Vermont expressed their desire to permit pretrial detention, in appropriate circumstances, of those accused of violent crimes so as to prevent further harm to the victims of the crimes and to others. According to defendant, this expansion of the State's authority to hold a person without bail demands that the person be accorded a full evidentiary hearing before the district court and, if the district court denies bail, a second full evidentiary hearing as soon as possible before a justice of this Court. In defendant's view, the hearing before a justice must proceed as if the district court hearing had never occurred. Consequently, any and all witnesses or deponents, including traumatized victims offering sensitive testimony, would be required to repeat their previous testimony at the second hearing, which is subject to further review by a three-member panel of this Court. Vt. Const. ch. II, § 40. Apart from our conclusion, discussed in detail below, that such a procedure is not called for by the language of the constitution and the accompanying legislation, we believe that the negative aspects of requiring a second full evidentiary hearing--the probable trauma to victims, the inevitable waste of scarce judicial resources, and the resultant delay in the bail decision--outweigh the questionable value of the procedure.

In contrast, applying the plain meaning of the term "review de novo," as we have done, minimizes those negative aspects while retaining virtually the same standard of review. Under this procedure, a single justice must consider whether to deny bail without giving the usual deference to the district court's bail decision. Cf. 13 V.S.A. § 7556(b) (district court's order detaining person pending trial "shall be affirmed if it is supported by the proceedings below"). The justice must review the record created in the district court, including the transcript or videotape, and make an independent determination based on that record. Significantly, the reviewing justice may also consider additional evidence or may require witnesses from the district court proceeding to testify again so long as the party seeking admission of the additional evidence shows good cause for doing so.

The only difference between this procedure and the procedure advocated by defendant is that the latter would require all witnesses or deponents to repeat their testimony, regardless of the need. Of course, without a second full evidentiary hearing, defendants would not be able to place traumatized victims on the stand a second time on the issue of bail in the hope that they will recant previous testimony or that they will make statements inconsistent with their earlier testimony. Neither the language of the bail amendment nor due process, however, requires a procedure that provides such opportunities.

In sum, the procedure outlined herein preserves independent review of decisions denying bail while providing other advantages. First, it protects witnesses, often crime victims, from being forced needlessly to repeat traumatic or sensitive testimony. Second, it increases the likelihood that incarcerated defendants will obtain a speedy bail decision. Third, it prevents the waste of scarce judicial resources and assures that the district court proceedings do not become a sham, serving only as a forum for defendants to feel out weaknesses in the prosecutor's case. Long ago, when de novo trials were common, one of the great legal reformers of this century pointed out the folly of a system in which two courts conducted separate evidentiary hearings of the same matter:

The usual American plan of trial in the first instance by a lay magistrate, followed, since he is not trusted, by a retrial to a jury in a higher court on appeal, and then followed by review in an appellate court, is indefensible. There should be but one trial, and but one review of that trial.

Roscoe Pound, The Administration of Justice in the Modern City, 26 Harv.L.Rev. 302, 327 (1913); see Susan Carbon, Larry Berkson & Judy Rosenbaum, Court Reform in the Twentieth Century: A Critique of the Court Unification Controversy, 27 Emory L.J. 559, 565 (1978) (in nonunified court systems, appeals are sometimes tried de novo instead of on the record, "effectively relegating the first trial to a status no greater than a mere discovery proceeding").

I. The Law

By vote of the electorate on November 8, 1994, Chapter II, § 40 of the Vermont Constitution was amended to provide the following exception to the general rule that persons are bailable by sufficient sureties:

(2) A person accused of a felony, an element of which involves an act of violence against another person, may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person's release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence. A person held without bail prior to trial under this paragraph shall be entitled to review de novo by a single justice of the Supreme Court forthwith.

(3)....

A person held without bail prior to trial shall be entitled to review of that determination by a panel of three Supreme Court justices within seven days after bail is denied.

(Emphasis added.)

The bail amendment's accompanying statute, Act 143, took effect upon the governor's certification of the constitutional amendment on December 13, 1994. Act 143 tracks the language of Proposal 7 in adding to and amending chapter 229 of Title 13:

§ 7553a. Acts of violence; denial of release on bail

A person charged with an offense that is a felony, an element of which involves an act of violence against another person, may be held without bail when the evidence of guilt is great and the court finds, based upon clear and convincing evidence, that the person's release poses a substantial threat of physical violence to any person and that no condition or combination of conditions of release will reasonably prevent the physical violence.

§ 7556. Appeal from conditions of release

....

(d) A person held without bail under section 7553a of this title prior to trial shall be entitled to review de novo by a single justice of the supreme court forthwith.

(e) A person held without bail prior to trial shall be entitled to review of that determination by a panel of three supreme court justices within seven days after bail is denied.

(Emphasis added.)

On December 15, 1994, following adoption of the bail amendment, this Court promulgated an emergency amendment to V.R.A.P. 9, which provides in relevant part, as follows:

(b) Review of Denial of Release.

(1) Denial of Release Under 13 V.S.A. § 7553a.

....

(B) Review shall be requested by application to the Supreme Court with reasonable notice to the state. The person seeking review shall furnish to the Court the record of the proceedings before the judicial officer.... The reviewing justice shall set the time and place of the hearing, which may be conducted by telephone.

(C) Review shall be de novo on the record presented by the parties and such additional evidence as is authorized by the reviewing justice for good cause shown. A party who seeks to offer additional evidence shall present to the reviewing justice a written specification of the evidence sought to be offered at least 24 hours prior to the time set for the hearing.

(Emphasis added.)

On January 25, 1995, the district court applied the new law in denying bail to defendant, who was charged with two counts of sexual assault, neither carrying a life sentence. Defendant sought review de novo by a single justice of this Court and immediately challenged the procedure set forth in V.R.A.P. 9(b)(1)(C). The reviewing justice referred the issue to the full Court. ² Defendant argues that Rule 9(b)(1)(C) violates the bail amendment and § 7556(d) by permitting a single justice to review denial of bail based solely on the record made at the initial proceeding before the district court. According to defendant, in adopting the term "review de novo," the people of Vermont and the legislature intended to provide defendants with a second full evidentiary hearing before a justice of this Court. Further, in defendant's view, the rule violates his right to due process by not affording him sufficient procedural safeguards before permitting bail to be denied pending trial.

II. The Meaning of "Review De Novo"

Defendant and amicus Defender General argue that the interpretation of Proposal 7 contained in Rule 9 thwarts the will of the people of Vermont and the legislature by not according defendant a hearing before a justice as if the...