State v. Breer, 160 A.3d 318

Background

Harley Breer, previously convicted of multiple felonies, was charged in 2011 with new crimes (including aggravated domestic assault and unlawful restraint) and with fifth and sixth probation-violation petitions (VOPs); the trial court ordered him held without bail at arraignment.
While detained, Breer accrued additional charges (sexual assault, violations of abuse-prevention orders, attempted violations of release conditions); the court repeatedly noted his continued hold without bail.
Breer sought a multi-day bail hearing in 2014; the trial court found (1) evidence of guilt was "great" for charges punishable by life under 13 V.S.A. § 7553 (excluding modifying evidence), and (2) he was a flight risk and danger for the VOPs under 28 V.S.A. § 301(4). This court affirmed in 2014.
In 2016 Breer moved to review the hold-without-bail order, arguing (a) denial of Rule 32.1 rights at the VOP preliminary hearing and (b) newly discovered exculpatory evidence (alibi and phone/computer forensics) undermined the § 7553 "great" evidence determination.
The trial court denied the review without a new hearing, concluding Breer had received Rule 32.1 protections at the prior hearing and that the newly proffered evidence was testimonial/modifying and therefore excluded from the bail analysis.
On appeal the court affirmed: (1) Breer had an adequate Rule 32.1 preliminary hearing; (2) the new evidence raised credibility or disputed factual issues and was properly excluded as modifying evidence, so the § 7553 "great"-evidence finding stood.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were Rule 32.1 preliminary-hearing rights (present evidence, confront witnesses) violated for VOPs?	State: Breer received the required preliminary hearing and protections during the multi-day bail hearing.	Breer: He was denied his Rule 32.1 rights to confront witnesses and present evidence at the VOP preliminary stage.	Court: No violation; Breer had opportunity to present testimony and cross-examine; hold without bail on VOPs affirmed.
Should newly proffered evidence (alibi, phone/computer forensics) be considered in assessing whether evidence of guilt is "great" under 13 V.S.A. § 7553?	State: New evidence is testimonial/modifying or disputed and may be excluded from bail analysis.	Breer: New forensic evidence is non‑testimonial scientific evidence that undermines guilt and should be considered.	Court: Evidence is testimonial or raises disputed questions of credibility/validity; thus modifying and properly excluded; § 7553 finding remains.
If scientific evidence is nontestimonial, can it nonetheless be excluded as modifying?	State: Even scientific evidence may be contested and thus modifying if it implicates credibility or factual disputes.	Breer: Forensic location/tampering evidence is scientific and non‑modifying, so it should be considered.	Court: If scientific evidence is disputed as to origin or result it is modifying; here disputes exist or credibility issues arise, so excluded.
Should the court hold a new evidentiary hearing on the 2016 motion to review bail?	State: No new hearing required because evidence is modifying/disputed and prior hearings afforded Rule 32.1 protections.	Breer: New evidence justifies reopening and setting bail/conditions.	Court: No new hearing warranted for bail review; motion denied and hold affirmed.

Key Cases Cited

State v. Breer, 198 Vt. 629, 112 A.3d 1273 (Vt. 2014) (affirming trial court denial of bail and exercise of discretion under VOP statute)
State v. Barrows, 172 Vt. 596, 776 A.2d 431 (Vt. 2001) (where statute creates no right to bail, court’s denial is given wide deference)
State v. Benjamin, 182 Vt. 54, 929 A.2d 1276 (Vt. 2007) (Rule 32.1 requires a preliminary probable-cause hearing with opportunity to present evidence, confront witnesses, and counsel)
State v. Eldredge, 180 Vt. 278, 910 A.2d 816 (Vt. 2006) (standard of review for excluding evidence from bail determinations is de novo)
State v. Duff, 151 Vt. 433, 563 A.2d 258 (Vt. 1989) ("great" evidence standard: evidence viewed in State's favor excluding modifying evidence must fairly show guilt beyond a reasonable doubt)
State v. Stolte, 191 Vt. 600, 44 A.3d 166 (Vt. 2012) (distinguishes testimonial versus nontestimonial evidence for bail; excludes modifying evidence that raises credibility disputes)
State v. Russo, 177 Vt. 394, 864 A.2d 655 (Vt. 2004) (speedy-trial claims generally should be raised first in trial court)