Rodriguez v. Pallito and Vermont Parole Board (2013-155)
[Filed 07-Feb-2014]
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
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No. 2013-155 |
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Edwin Rodriguez |
Supreme Court |
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On Appeal from |
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v. |
Superior Court, Rutland Unit, |
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Civil Division |
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Andrew Pallito, Commissioner, Department of Corrections and Vermont Parole Board |
October Term, 2013 |
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William D. Cohen, J. |
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Matthew Valerio, Defender General, and Patricia Lancaster, Prisoners’ Rights Office,
Montpelier, for Plaintiff-Appellee.
William H. Sorrell, Attorney General, and Sarah Katz, Assistant Attorney General, Montpelier,
for Defendants-Appellants.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Crawford, Supr. J.,
Specially Assigned
¶ 1. REIBER, C.J. The State of Vermont appeals the superior court’s reversal of the Vermont Parole Board’s decision to revoke Edwin Rodriguez’s parole. On appeal, the State argues that the court erred in (1) weighing the evidence and assessing witness credibility when reviewing the parole board’s decision, and (2) concluding that the parole violation was not established by a preponderance of the evidence. For the reasons that follow, we affirm the trial court.
¶ 2. We begin with the facts. The Vermont Parole Board (the Board) revoked parolee’s parole in December 2012, after two hearings. The first hearing took place in June and July 2012, and the Board unanimously voted that parolee had violated his parole conditions on the basis that he assaulted his mother on April 20, 2012 in Springfield, Massachusetts, where he was paroled. Parolee challenged the revocation in the Rutland Superior Court on the grounds that parolee’s mother and sister were not present at the hearing, despite parolee’s request that these witnesses attend and be subject to cross-examination. The State conceded that the violation hearing lacked an appropriate measure of due process because the Board had made insufficient efforts to secure the testimony of the witnesses, who lived in Massachusetts. Consequently, the Board relied heavily on hearsay evidence from a police officer who was present at the scene but did not witness the confrontation. The court remanded to the Board for a second hearing, with the instruction that the Board provide a fair hearing, consistent with parolee’s right to cross-examine witnesses.
¶ 3. Parolee’s mother and sister did not appear at the second violation hearing, held in December 2012. His mother was not present despite her assurances to the Board that she would appear in person, and his sister refused to testify. The Board noted on the record that it lacked authority to subpoena out-of-state residents, that attempts to secure their appearance had failed, and that the hearsay evidence was reliable. Once again, the Board concluded by a preponderance of the evidence that parolee had violated his parole conditions and voted unanimously to revoke parole. The Board found that parolee violated three conditions of parole: that he “shall commit no act punishable under the law; . . . shall not engage in violent assaultive, or threatening behavior; . . . and shall conduct [him]self in an orderly and industrious manner.”
¶ 4. The Board relied on the following evidence. The arresting officer testified by telephone that, although he did not see the incident in question, he and an assisting officer had responded to a call from an unknown person regarding a domestic disturbance involving parolee. The officers interviewed parolee’s mother and sister after arriving at the scene. The sister told the officer that parolee had grabbed the mother by the neck and pushed her. The officer also testified that he had directly observed some scratches on the mother’s neck, but this observation was not included in his police report describing the incident. On cross-examination, the officer stated, “I’m pretty sure she had marks.” The officer did not have his signed arrest report and notarized statement on hand to refresh his memory during his testimony. These documents were, however, contained in the record considered by the Board.
¶ 5. The Board also received an arrest report from an assisting officer, which was similar to the arresting officer’s report but more detailed. According to this report, the sister was yelling at parolee when the officers arrived on scene, and she shouted that parolee had just hit their mother. Parolee began running down the block and was then detained. The sister claimed that parolee had called to ask for her help moving him and his girlfriend out of their mother’s house. During the move, parolee allegedly made derogatory remarks toward the mother, and the sister demanded that he stop. The sister explained that the mother then approached parolee’s girlfriend and confronted her about parolee’s past actions. Parolee then allegedly grabbed his mother by the throat and pushed her against a car. The assisting officer also interviewed the mother, whose story was substantially similar to the sister’s. Although the report states that the mother mentioned that parolee had left scratches and redness on her neck, the assisting officer did not mention in the report any personal observations that would verify her statements.
¶ 6. Finally, the Board received testimony from parolee. Parolee testified that on the day in question, he was in the process of moving out of his mother’s residence. He stated that he was having “a little discussion” with his mother when “somebody called the police officers.” He denied touching his mother.
¶ 7. Parolee was arrested and arraigned on assault charges, but the charges were dismissed one week later at the request of his mother, who also asserted her Fifth Amendment privilege. Nevertheless, the Board concluded that there was sufficient evidence to find a violation by a preponderance of the evidence.
¶ 8. Parolee again appealed to the superior court, challenging the second hearing on the grounds that the Board relied on information that was alleged to be “innuendo,” and therefore not admissible. He further renewed his objection that the Board’s reliance on the officers’ affidavits violated his “Fourteenth Amendment due-process rights to confront adverse witnesses because [they are] hearsay.”
¶ 9. In response to parolee’s challenges, the court noted that despite the mother’s and sister’s alleged complaints to the police, these witnesses did not testify at either revocation hearing. The attorney for the Board argued that “the department doesn’t have subpoena power in Massachusetts . . . [s]o therefore, they’re allowed to use these hearsay statements.” The court responded that, regardless of the hearsay evidence, the officers should have been looking at the scene of the incident for evidence “that would indicate a physical confrontation.” The court emphasized that none of the officers at the scene “verified” the witnesses’ hearsay testimony regarding scratches on the mother’s neck “by personal observation” in their police affidavits. The court opined that “that if [the mother’s] neck was red and there were scratches, police officer could easily verify it and say I observed the redness and the scratches on the neck.”[1] Moreover, the court expressed doubt regarding the arresting officer’s credibility during the revocation hearing, stating that “[h]e appeared not to have good recall, or decent evidence. He said he thought there were scratches on the back of . . . the mother’s neck, but he was wishy-washy on cross-examination as to . . . whether or not that was something that he actually remembered or not.” Finally, the court noted that parolee was never convicted and, in fact, the case was dismissed one week later.
¶ 10. The court concluded that without the mother’s and sister’s testimony, there was “no way to judge their credibility.” Consequently, there was a “very significant gap in [the] burden of proof,” leaving the court to rely on hearsay evidence. And to the extent that the arresting officer verified the mother’s complaint by claiming that he observed the scratches on her neck, the court found that he vacillated in his testimony. Given these considerations, the court found that, based on the evidence, the State did not prove the alleged parole violations by a preponderance of the evidence. The court stated, “[I]f it’s fifty-fifty, it’s fairly close but by preponderance of the evidence, the scales weighing equal, I can’t find that there’s a violation.”
¶ 11. The State appeals the court’s decision, arguing that the court erred in (1) weighing the evidence and assessing witness credibility when it was reviewing the Board’s decision, and (2) concluding that the parole violation was not established by a preponderance of the evidence.
I.
¶ 12. As an initial matter, we address parolee’s argument that the appeal in this case was untimely. Under Vermont Rule of Appellate Procedure 4(a), an appeal must be filed within thirty days of the date of entry of the judgment appealed from. Parolee asserts that the final judgment was the court’s February 7, 2013 order issued at parolee’s Vermont Rule of Civil Procedure 75 hearing, which reversed the Board’s decision, required a new parole plan, and ordered a status conference in two weeks. Because the State’s appeal, filed April 8, 2013, was more than thirty days after the court’s order, parolee asserts that the appeal should be dismissed as untimely.
¶
13.
We conclude that the court’s February 7 order was interlocutory, not
final. “To be final and appealable an order must end litigation on the merits
or conclusively determine the rights of the parties, leaving nothing for the
court to do but execute the judgment.” In re Burlington Bagel Bakery, Inc.,
¶
14.
Parolee cites Bridge v. U.S. Parole Commission,
II.
¶ 15.
Next, we address the State’s argument that, in its review of the
Board’s proceeding, the trial court improperly evaluated the weight of the
evidence and assessed the credibility of the witnesses, in essence substituting
its judgment for that of the fact-finder, the Board. Whether the trial court
applied the proper standard of review of an agency’s decision is a legal
question which we review de novo. Rhoades Salvage/ABC Metals v. Town of
Milton Selectboard,
¶ 16.
Our precedent regarding court review of the sufficiency of the
evidence in agency adjudications is clear: a court must apply particular
deference to the agency’s fact-finding, and cannot substitute its judgment for
that of the agency. “[I]n reviewing the sufficiency
of the evidence supporting quasi-judicial decisions under Rule 75, we determine only whether there is any competent evidence
to justify the adjudication.” Rouleau v.
Williamstown Sch. Bd.,
[Rule 75] review is confined to questions of law and encompasses the consideration of evidentiary points only insofar as they may be examined to determine whether there is any competent evidence to justify the adjudication, much as in the case of a motion for a directed verdict. Discretionary rulings may be set aside only for abuse. . . . Under the deferential standard of review accorded administrative and quasi-judicial bodies . . . it is not for the superior court to independently weigh the evidence to make its own factual findings. Rather, the superior court on a Rule 75 appeal must uphold factual findings if any credible evidence supports the conclusion by the appropriate standard.
Turnley
v. Town of Vernon,
¶
17.
Therefore, in reviewing the Board’s factual findings, the trial court
cannot substitute its judgment for that of the fact-finder in assessing witness
credibility, or in assessing the weight of the evidence. See Turnley,
¶
18.
However, deference to the Board’s factual findings and discretionary
decision-making does not disturb the ability of courts to review matters within
their purview. Proceedings before the Board inevitably invoke questions beyond
its expertise. Constitutional questions, including whether the parolee’s due
process rights were met, often arise. These issues dovetail with evidentiary
issues, such as the admissibility of hearsay evidence. The Board’s expertise is
limited to determining whether an offender is likely to lead a law-abiding life,
see 28 V.S.A. § 502a; it lacks expertise in constitutional and evidence
law. Accordingly, we have developed separate standards that enable courts to
review these questions. See, e.g., Herring,
¶
19.
We now address the trial court’s decisions in this case. Although the
court had the authority to ensure that good cause existed to deny parolee’s
confrontation rights, State v. Decoteau,
¶
20.
That does not, however, end the inquiry. Unlike the factual findings or
discretionary decisions of the Board, whether the evidence at hearing met
appropriate standards for admissibility is a question of law that the court
reviews de novo. See State v. Brooks,
¶
21.
A parolee is entitled to due process protections under the Fourteenth
Amendment and is therefore afforded the right to confront adverse witnesses. Morrissey
v. Brewer,
¶
22.
“Although we have not explicitly outlined the elements
of good cause . . . the reliability of the evidence is a
key factor.” Decoteau,
¶
23.
Here, the State argued that there was good cause because the witnesses
to the incident were in Massachusetts and did not respond to the parole
officer’s multiple attempts to procure them. According to the parole officer,
parolee’s mother told the parole officer that she would attend the hearing in
person, but ultimately failed to attend without communicating any reason for
her absence. Further, parolee’s sister flatly refused to attend the hearing. The
parole officer did not attempt to procure “conventional substitutes for live
testimony,” such as affidavits from the complaining witnesses, parolee’s mother
and sister. Austin,
¶
24.
We hold that there was inadequate good cause for denial of confrontation
in the Board hearing, because the hearsay evidence received by the Board was
unreliable.[3]
See id. at 397,
¶
25.
Further, the police affidavits here lack the redeeming level of
specificity and detail of the police affidavits examined in Watker,
which described in detail the victim’s injuries and the circumstances in which
the police found the victims.
¶ 26. Second, we find the Board’s admission of statements made by parolee’s mother and sister to the officers at the scene, through both the police affidavits and the arresting officer’s testimony at the hearing, even more problematic than its reliance on the police affidavits. First, these statements were oral; the officers never obtained a sworn statement of any kind from either witness. Second, these witnesses refused to testify at the hearing. In particular, parolee’s mother, the alleged victim, exerted her Fifth Amendment right against self-incrimination rather than testify against parolee. Consequently, the criminal charge against parolee based on this incident was dismissed. Given these reasons for the unavailability of the declarants, and the importance of their statements to the Board’s finding of a violation, we conclude that the mother’s and sister’s statements are unreliable.
¶ 27.
Without this unreliable hearsay, the only evidence the Board
could have properly relied upon was the arresting officer’s observations of
redness and scratches on the mother’s neck. In the absence of more context, it
would be impossible for the Board to determine where the scratches came from,
or how the incident occurred. Accordingly, the officer’s observation, in and
of itself, does not constitute “competent evidence to
justify the adjudication.” Rouleau,
¶ 28. Consequently, although we reject the non-deferential standard of review applied by the trial court, we nonetheless affirm because the hearsay evidence relied on by the Board was unreliable, and the remaining evidence was not sufficiently credible to support the Board’s findings of fact.
Affirmed.
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FOR THE COURT: |
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Chief Justice |
[1] At first, the court incorrectly stated that the arresting officer never testified in the hearing that he saw the scratches on the neck, and was corrected by the Board’s attorney.
[2] The State argues that “whether good cause exists is a mixed question of fact and law” left to the discretion of the fact-finder. However, none of the cases offered by the State arise in the context of an administrative body’s decision to deny a party’s confrontation right. Thus, we find the deferential standard urged by the State to be unavailing. Rather, we view the question of whether good cause existed to deny confrontation rights as one of law to be reviewed de novo.
[3] We note that many of the trial court’s findings, though framed as factual determinations rather than conclusions regarding parolee’s confrontation rights, concur substantially with our concerns articulated here.