State v. Decoteau

State v. Decoteau (2006-228)

2007 VT 94

[Filed 31-Aug-2007]

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, 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.

2007 VT 94

No. 2006-228

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit

Richard Decoteau March Term, 2007

Theresa S. DiMauro, J.

Eric M. Lo_pez, 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.

¶ 1. JOHNSON, J. 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. 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, 382, 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 implicates the validity of the entire proceeding, we examine
whether the court committed an error that "strikes at the heart of
defendant's constitutional rights or results in a miscarriage of justice."
State v. Ayers, 148 Vt. 421, 426, 535 A.2d 330, 333 (1987); see V.R.Cr.P.
52(b) (explaining that in exceptional cases where errors "affect[]
substantial rights," error can lead to reversal absent a timely objection).

¶ 12. Thus, we consider whether the court committed plain error in
admitting the discharge summary and defendant's probation officer's
testimony, both of which contained hearsay about why defendant was
discharged from the program at Serenity House. Hearsay is not
categorically inadmissible in a probation-revocation proceeding because the
rules of evidence do not apply. V.R.E. 1101(b)(3). A probationer is
entitled to due process under the Fourteenth Amendment and, as such, is
afforded the right to confront adverse witnesses. See Morrissey v. Brewer,
408 U.S. 471, 489 (1972) (holding that a parolee is entitled to due
process, including the right to confront and cross-examine adverse
witnesses); see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 786 (1973)
(extending due-process protections to probationers facing revocation).
Therefore, "a trial court must make an explicit finding, and must state its
reasons on the record, whether there is good cause for dispensing with the
probationer's confrontation right and admitting hearsay into evidence."
Austin, 165 Vt. at 396, 685 A.2d at 1081. Although we have not explicitly
outlined the elements of good cause, we made clear in Austin that the
reliability of the evidence is a key factor.(FN1) Id.

¶ 13. Defendant argues that the discharge-summary report and the
probation officer's hearsay statements do not bear sufficient indicia of
reliability to be admissible. In this case, the trial court reasoned that
the probation officer's testimony was reliable because he spoke directly
with Serenity House staff, and that the discharge summary was reliable
because it is the type of evidence probation officers routinely rely upon.
We disagree that these facts alone make the hearsay reliable and conclude
that the hearsay evidence admitted in this case does not contain any of
the typical guarantees of reliability.

¶ 14. We have not adopted a formal test to assess reliability, but
some important considerations emerge from our review of past cases. The
first is the presence of corroborative evidence. See Watker v. Vt. Parole
Bd., 157 Vt. 72, 74, 596 A.2d 1277, 1279 (1991) (finding hearsay
sufficiently reliable where defendant's own testimony corroborated hearsay
statements); State v. Finch, 153 Vt. 216, 218, 569 A.2d 494, 495 (1989)
(concluding that hearsay testimony was reliable because the statements of
the two hearsay declarants were mutually supportive). Another factor is
"whether the proffered hearsay is an objective fact reported by the
declarant or instead contains conclusions which ought to be tested by
cross-examination." Bailey v. State, 612 A.2d 288, 294 (Md. 1992); see
Austin, 165 Vt. at 397, 685 A.2d at 1081-82 (concluding that a police
report does not bear indicia of reliability because unlike a urinalysis it
is more personal and subject to inferences and conclusions). Finally,
hearsay evidence is more reliable if it contains a greater level of
specific detail. See Watker, 157 Vt. at 77, 596 A.2d at 1280 (hearsay
reliable where specific observations of various police officers included
same details such as the weather and where the victim was found); see also
State v. James, 2002 ME 86, ¶ 15, 797 A.2d 732 (including specificity as a
factor in determining reliability of evidence).

¶ 15. In light of these factors, we conclude that the evidence
admitted by the trial court does not meet any of the traditional guarantees
of trustworthiness. First, there was no evidence to corroborate the
hearsay allegations regarding defendant's misbehavior at Serenity House.
Cf. Leggett, 167 Vt. at 440-441, 709 A.2d at 492-93 (1997) (affirming where
ample direct evidence supported hearsay allegations). Defendant's
probation officer testified about what he heard from defendant's caseworker
and the summary contained in notes by staff members, but no non-hearsay
testimony supported these accounts of defendant's behavior at Serenity
House or the measures staff took to address defendant's behavior. See
United States v. Taveras, 380 F.3d 532, 537-38 (1st Cir. 2004) (concluding
that hearsay testimony was unreliable where there was no corroborating
evidence of the declarant's statement).

¶ 16. We disagree with the dissent's contention that defendant's own
statements corroborated, and were cumulative of, the hearsay evidence.
Defendant testified that he did not complete the program, but explained
that he followed staff instructions and did not threaten anyone at Serenity
House. In addition, although defendant admitted that he made inappropriate
comments, he testified that Serenity House staff spoke to him about his
behavior on only one occasion prior to his discharge. Rather than
corroborating the hearsay statements, this testimony directly conflicted
with the allegations that staff routinely spoke to defendant about his
behavior, that he failed to follow staff instructions and that he engaged
in threatening behavior.

¶ 17. Second, the type of evidence introduced here contains
judgments and conclusions, not objective facts. As the Maryland Supreme
Court in Bailey explained, "whether proffered hearsay evidence is a
straightforward, objective fact observed by the declarant, or whether it
contains inferences or conclusions drawn by the declarant, will weigh in
the court's determination of its reliability." 612 A.2d at 294. The
hearsay admitted in this case did not recite objective facts about
defendant's stay at Serenity House, but consisted primarily of conclusions
and inferences concerning his behavior. Cf. Id. at 293-94 (admitting
hearsay letter from a treatment center where admitted for the sole purpose
of demonstrating that probationer failed to complete the program and
explaining the result might be different "if the State were alleging that
[the probationer] violated his probation based on characterizations of [the
probationer's] behavior"). For example, defendant's probation officer
testified that his impression after speaking with defendant's caseworker
was that defendant's attitude was counterproductive to treatment. The
discharge summary reported that defendant violated program rules and
displayed threatening behavior, but provided no specifics of either. The
only objective fact in the report was that defendant had been discharged.
This is the type of evidence we addressed in Austin, a case in which we
distinguished a urinalysis report that relies on scientific data from a
police officer's arrest report, concluding that the latter did not bear the
same indicia of reliability because it was subject to personal opinion.
165 Vt. at 397, 685 A.2d at 1081-82 (citing United States v. Bell, 785 F.2d
640, 644 (8th Cir. 1986) ("While police reports may be demonstrably
reliable evidence of the fact that an arrest was made, they are
significantly less reliable evidence of whether the allegations of criminal
conduct they contain are true.")). Like the relationship between police
officers and those they arrest, there is a personal and sometimes
adversarial relationship between treatment providers and their patients;
consequently, a treatment report, like a police report, is subjective and
less inherently reliable than a laboratory report.(FN2) See Bell, 785 F.2d
at 643-44 (explaining that police reports are inherently more subjective
than lab reports because of the personal and adversarial relationship
between officers and those they arrest).

¶ 18. Finally, the hearsay allegations were not factually detailed,
but rather stated as general statements and conclusions. Cf. Egerstaffer
v. Israel, 726 F.2d 1231, 1235 (7th Cir. 1984) (finding statement reliable
in part because it was reasonably detailed). Defendant's probation officer
could not identify any particular conversations that staff had with
defendant, nor did the discharge summary contain specific information about
defendant's conduct. Rather, the information that defendant's probation
officer relayed in his testimony and that was contained in the discharge
summary amounted to general allegations that defendant had displayed
threatening behavior and violated rules. In contrast, defendant offered
detailed accounts of his behavior at Serenity House, including behavior or
instances he thought staff may have construed as threatening. He also
recounted the conversation he had with his caseworker prior to his
discharge. He was unable, however, to effectively rebut the hearsay
allegations because he could not question witnesses to determine which
behavior they deemed threatening or to ascertain when he had violated
rules. See Mason, 631 P.2d at 1055 (noting that it is impossible for the
defendant to test the accuracy of statements made by state's witnesses if
they are not available to testify and finding plain error where defendant
was unable to demonstrate alternative theory). Thus, in considering these
factors, we conclude that none demonstrate that the evidence was reliable.

¶ 19. Having concluded that the hearsay evidence was not reliable,
we further hold that the admission of hearsay was not harmless and was
plain error.(FN3) The hearsay evidence was critical to the main issue at
trial--whether defendant's discharge from Serenity House was willful.
Defendant's entire theory at trial was that although he was discharged from
Serenity House, the discharge was due to circumstances beyond his control
and was not a result of his willful conduct. Thus, the information
regarding defendant's behavior at Serenity House, the measures staff took
to address his behavior and the ultimate reason for his discharge were the
primary disputes at trial. The State demonstrated defendant's behavior and
the reasons for his violation solely through improperly admitted hearsay
evidence. See United States v. Comito, 177 F.3d 1166, 1171 (9th Cir. 1999)
(explaining that the more significant particular evidence is to a finding,
the more important it is to demonstrate that the proffered evidence is
reliable); Mason v. State, 631 P.2d 1051, 1057 (Wyo. 1981) (finding plain
error in admission of hearsay testimony and concluding that defendant's
interest in questioning the actual source of the information is far
stronger when the evidence is introduced to establish a substantive
violation, not merely defendant's general character).

¶ 20. Moreover, the court relied on the hearsay evidence in its
findings and in its decision to revoke probation. Specifically rejecting
defendant's defense that his violation was not willful, the court found
that defendant "feels that other people are responsible for his conduct
when, after ten days of conversations by staff his conduct remained
unchanged, [and] he was discharged from that program." The court also
found that defendant engaged in a pattern of inappropriate behavior. The
only basis in the record for the court's finding that defendant had engaged
in a pattern of behavior that Serenity House staff tried to speak to him
about on several occasions is the hearsay testimony related by defendant's
probation officer.(FN4) Defendant's testimony that staff spoke to him about
his behavior only on one occasion directly contradicted these findings.
Although the district court found that defendant was not credible as a
witness, there was no source independent of the hearsay evidence from which
the court could find defendant had engaged in a pattern of inappropriate
activity and that staff had continually confronted him about this
behavior--findings that were integral to the court's decision to find a
violation and revoke defendant's probation. Compare Leggett, 167 Vt. at
444, 709 A.2d at 495 (affirming probation revocation where sufficient
evidence supported finding without reliance on objectionable hearsay
testimony), with Austin, 165 Vt. at 398 (holding that probation-violation
finding was not supported by credible, non-hearsay evidence). Vacated and
remanded for a new hearing.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

¶ 21. REIBER, C.J., dissenting. I agree that because defendant
never objected at trial to admission of the hearsay evidence, he can
prevail only if we conclude that this is an extraordinary case involving
manifest injustice. Unlike the majority, however, I conclude that plain
error is conspicuously absent in this case. Indeed, a review of the
record, particularly defendant's own testimony, demonstrates unequivocally
that defendant violated an express probation condition, and further that he
failed to meet his burden of showing that the violation was beyond his
control and therefore not willful. At the probation revocation hearing,
defendant conceded his awareness of the express condition requiring him to
successfully complete the substance abuse treatment program. He also
acknowledged engaging in confrontational behavior that resulted in the
treatment center terminating him from the program. As permitted in
probation proceedings, the district court allowed hearsay evidence
concerning the alleged violation. For the most part, that evidence merely
confirmed the undisputed fact that defendant had been terminated from the
program and indicated general grounds for the termination. In light of
defendant's admissions during his testimony, the cumulative nature of the
admitted hearsay evidence, and defendant's failure to meet his burden of
demonstrating that his conduct was beyond his control, there is no plain
error, if any error at all. Accordingly, I respectfully dissent.

¶ 22. At the probation revocation hearing, defendant acknowledged in
his direct testimony that he had been to court on alleged violations of
probation four times in the past year, and that he was aware he would be in
violation of his probation if he did not complete the substance-abuse
treatment program. He also testified that he understood he had been
terminated from the program for engaging in threatening behavior, and
further that he knew exactly what incidents had led to the termination
decision. Defendant then gave a detailed account of those incidents from
his perspective.

¶ 23. Regarding the first incident, defendant acknowledged making a
derogatory remark to a homosexual resident participating in the program--a
person whom he further acknowledged had expressed great anxiety over being
picked on at the facility. He also admitted that (1) following the
incident, the resident informed a counselor that he felt threatened by
defendant; (2) the counselor confronted defendant about the incident; and
(3) defendant agreed to stay away from the resident in the future. The
second incident concerned defendant making inappropriate comments to a
female resident during a group discussion. Defendant admitted that several
people in the group were upset by his comments, and that the woman to whom
he directed the comments was "crazed" over his remarks.

¶ 24. Regarding the third incident that ultimately led to his
discharge from the treatment program, defendant acknowledged confronting
the same resident he was warned to stay away from to tell him of his
displeasure about perceived insults and threats he had received from the
resident and his "boyfriend." Defendant conceded that he initiated the
confrontation and informed the resident that he was "pissed . . . off"
about the perceived insults and threats. He also acknowledged that
immediately following the confrontation, the resident went to the
counselor, who shortly thereafter told defendant that his stay at the
facility was "tenuous." Moreover, by his own admission at the revocation
hearing, defendant confided to the resident's roommate shortly after the
third incident that he was concerned about the resident reporting the
confrontation to the counselor. He further testified that he himself
approached the counselor shortly after the incident to present his side of
the story. That same day, defendant was terminated from the program.

¶ 25. To be sure, defendant's testimony was interspersed with a
litany of excuses for each of the incidents--he meant the derogatory remark
only as a joke, he did not mean to insult the woman in the group meeting,
he never threatened anybody, etcetera. He also relied upon the testimony
of the roommate of the resident he was accused of threatening--the same
person he confided in following the incident. Apparently, the counselor
did not believe him, however, and, as the majority acknowledges, neither
did the district court. Indeed, in finding a probation violation, the
court concluded that defendant engaged in the alleged confrontational
behavior of his own volition despite being warned about it and told to stay
away from the resident whom he later confronted. Noting that defendant was
"agitated" and "angry" even when testifying about the conversation he had
had with the resident, the court concluded that defendant was unwilling to
acknowledge the threatening nature of his behavior at the facility.

¶ 26. Notwithstanding the district court's findings regarding
defendant's testimony, the majority concludes that the court committed
plain error by allowing the State to present evidence that merely stated
what was obvious from defendant's testimony--that defendant was terminated
from the facility for engaging in inappropriate and threatening behavior.
Apparently, the majority would have the district court hold a trial within
a trial to determine the precise nature of the confrontational
conversations between defendant and other residents--conversations to which
even the counselor was not privy. I cannot agree. Defendant acknowledged
that he was terminated from the program after (1) he angrily confronted a
resident he was asked to stay away from, and (2) the counselor considered
conflicting accounts of what happened. That is sufficient evidence, in and
of itself, to support the district court's finding that he violated a
probation condition requiring him to successfully complete the program.

¶ 27. Following defendant's testimony, the court admitted, without
objection, a discharge report and testimony from defendant's probation
officer stating what the counselor had told the officer concerning the
grounds for defendant's discharge. The brief discharge report indicated
that defendant had been terminated from the program for violating program
rules by using inappropriate language and engaging in threatening behavior.
Defendant's probation officer briefly testified that defendant's counselor
told him of defendant's counterproductive attitude and behavior,
particularly with respect to one male and one female resident. He also
testified that defendant had been warned on several occasions about his
behavior but did not listen. Although the report and the probation
officer's testimony did not offer much detail as to exactly what behavior
led to defendant's discharge from the program, defendant's own detailed
testimony concerning the incidents revealed the basis for the discharge and
rendered the hearsay evidence essentially cumulative in nature.

¶ 28. As the majority acknowledges, although a probationer has due
process rights at a probation revocation hearing, the scope of those rights
is not as extensive as those in a criminal proceeding. For example, the
"right to confront adverse witnesses does not require the exclusion of all
hearsay evidence" in probation proceedings. Reporter's Notes, V.R.Cr.P.
32.1; see State v. Austin, 165 Vt. 389, 395, 685 A.2d 1076, 1089 (1996)
(holding that the trial court may dispense with a probationer's
confrontation right and admit hearsay evidence upon a showing of good
cause, which turns on the reliability of the proffered evidence); see also
State v. James, 2002 ME 86, ¶¶ 10-11, 797 A.2d 732 (deciding to follow
United States Supreme Court decisions allowing reliable hearsay evidence in
probation hearings).

¶ 29. The majority also recognizes that a probationer objecting to
the admission of hearsay evidence on confrontation grounds "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." Austin, 165 Vt. at 392,
685 A.2d at 1078-79. We require a specific objection on confrontation
grounds "because it triggers the consideration of a secondary issue,
namely, whether circumstances making production of the witness difficult or
impractical outweigh the parolee's need to confront and cross-examine the
witness." Watker v. Vt. Parole Bd., 157 Vt. 72, 78, 596 A.2d 1277, 1281
(1991). Hence, "when ruling on the admissibility of hearsay evidence to
which a probationer has objected on confrontation grounds, [a trial court]
must make an explicit finding of good cause for dispensing with the
probationer's confrontation right and admitting the evidence against him."
Austin, 165 Vt. at 395, 695 A.2d at 1080 (emphasis added).

¶ 30. In this case, however, defendant did not make a timely
objection to admission of the hearsay evidence, and thus the district court
had no opportunity to weigh the bases for such an objection against any
proffered reasons for not calling potential witnesses against defendant.
Indeed, it is conceivable that the testimony of the counselor would have
been more damaging than helpful to defendant. At best from defendant's
perspective, the counselor's testimony would likely have elicited only
further hearsay on what the resident and defendant had told him about their
confrontation. In my view, the district court was not compelled to require
testimony from the principle actors involved in the confrontations to try
and determine who said what to whom. Defendant had already testified that
he had engaged in confrontational behavior that led to his dismissal from
the program. Thus, defendant's own testimony corroborated the essential
truth of the hearsay evidence.

¶ 31. One could argue that there was no error at all, let alone
plain error, in admission of the unchallenged hearsay evidence. As the
majority points out, the most important factor in determining good cause
for allowing hearsay evidence in probation proceedings "is the reliability
of the evidence offered by the State." Austin, 165 Vt. at 396, 685 A.2d at
1081; see Bailey v. State, 612 A.2d 288, 293 (Md. 1992) ("In determining
whether there is good cause to admit hearsay in a probation revocation
hearing, it is obvious that the most important factor is the reliability of
the proffered hearsay evidence."). The reliability of evidence "is
essentially a fact specific issue" within the trial court's discretion, and
therefore subject to reversal by this Court only upon a showing of an abuse
of discretion. Bailey, 612 A.2d at 293. Further, as the majority
acknowledges, the key factors in determining the reliability of hearsay
evidence at a probation revocation hearing are (1) whether the hearsay
evidence is corroborated in whole or in part by other evidence at the
hearing, including the testimony of the probationer; (2) whether the
hearsay is sufficiently detailed; (3) whether the source of the hearsay
presents the possibility of bias or a motive to fabricate; and (4) whether
the hearsay is being offered to prove a central issue in the case. See
James, 2002 ME 86, ¶ 15; Bailey, 612 A.2d at 293.

¶ 32. In my view, these factors point towards admitting the hearsay
evidence in this case because of its reliability. As described above, the
hearsay evidence--a discharge summary report and the probation officer's
testimony concerning the reasons the counselor gave him for terminating
defendant from the program--was essentially cumulative with respect to
defendant's own testimony, which acknowledged he was terminated for
engaging in confrontational and threatening behavior. Cf. State v.
Leggett, 167 Vt. 438, 443 n.6, 709 A.2d 491, 494 n.6 (1998) (noting that a
probationer's own implausible and inherently contradictory explanation of
events can corroborate the State's case); Watker, 157 Vt. at 77, 596 A.2d
at 1280 (concluding that probationer's acknowledgment of the victim being
beaten "actually bolstered the hearsay evidence against him,"
notwithstanding his self-serving assertion that he was not responsible for
the beating). Moreover, although the hearsay evidence was not detailed, it
was corroborated by defendant's own detailed testimony.

¶ 33. Nor do I believe that the source of the hearsay evidence
introduced here makes it inherently unreliable. Although the majority is
correct that the hearsay evidence in this case includes subjective
judgments and conclusions, I disagree that the discharge summary and the
probation officer's testimony regarding the counselor's reason for the
discharge are the equivalent of a police affidavit following an arrest.
The potential bias that might be present in a police report because of the
personal and adversarial relationship between a police officer and an
arrested person, see Austin, 165 Vt. at 397, 685 A.2d at 1081-82, is not
present with respect to the relationship between a counselor or probation
officer and a probationer participating in a rehabilitative program. See
Bailey, 612 A.2d at 295 (noting that a letter from a facility explaining
why the defendant was discharged from its program was inherently reliable
because of a lack of motive to fabricate the basis for the discharge). In
any event, the salient effect of the hearsay evidence in this case was to
confirm that defendant had been terminated from the program for engaging in
threatening behavior, which resulted in a violation of an express condition
of his probation. This basic fact, although the central issue in the case,
was undisputed and admitted by defendant.

¶ 34. Once the State demonstrated by a preponderance of the
evidence, either through defendant's testimony or otherwise, that defendant
had violated a probation condition, the burden was on defendant to prove "
'that his failure to comply was not willful but rather resulted from
factors beyond his control and through no fault of his own.' " Austin, 165
Vt. at 398, 685 A.2d at 1082 (quoting Bailey, 612 A.2d at 291) (internal
citation omitted). Here, as in Bailey, defendant utterly failed to meet
his burden of showing a willful violation--indeed, his own testimony
confirmed a willful violation. In Bailey, the defendant claimed that the
court violated his confrontation rights at a probation revocation hearing
by admitting a letter from a facility stating, among other things, the
reasons for the defendant's discharge from its program. In determining
that there was good cause to admit the letter, the court concluded not only
that the letter was inherently reliable and corroborated by the defendant's
own testimony, but also that the letter was admitted in support of the
undisputed fact that the defendant had not successfully completed the
program. Bailey, 612 A.2d at 295. In response to the defendant's argument
that the letter was offered to prove the additional proposition that the
violation was not willful, the court reiterated that it was the defendant's
burden, not the State's, to prove that the violation occurred through no
fault of his own and therefore was not willful. Id.

¶ 35. The same is true here. The State plainly met its initial
burden--through defendant's own testimony--in showing that defendant had
not successfully completed the program and thus had violated an express
probation condition. The discharge summary report and the probation
officer's testimony merely confirmed this fact, the details of which were
brought to light through defendant's testimony. Thus, the hearsay evidence
was admissible on that point. To the extent that the hearsay evidence
could have been considered in determining the willfulness of the violation,
it was defendant's burden, not the State's, to satisfy that burden--and
defendant plainly failed to meet that burden. Indeed, on
cross-examination, defendant backtracked from his statement that he had
been warned about his behavior on only one occasion, admitting that his
counselor had talked to him on a regular basis. As the district court
found, defendant's own testimony demonstrated that defendant purposely
confronted a resident even after being told to stay away from him.

¶ 36. But even assuming that the district court erred in admitting
the hearsay evidence, defendant did not object (unlike the defendant in
Bailey), and there is no plain error. There is no precise standard for
judging whether plain error exists--"we must examine the record in each
case, and determine whether the error is so prejudicial that 'it undermines
confidence in the outcome of the trial.' " State v. Johnson, 158 Vt. 508,
513, 615 A.2d 132, 134 (1992) (quoting United States v. Sblendorio, 830
F.2d 1382, 1388 (7th Cir. 1987)). Because of defendant's failure to object
to the hearsay evidence, the district court did not have the opportunity to
consider or make findings on the question we review for plain error on
appeal--whether other evidence, including defendant's testimony,
corroborated the hearsay testimony and thus supported a finding of a
probation violation. In these circumstances, it becomes this Court's duty
to "examine the record" and determine whether plain error exists. Johnson,
158 Vt. at 513, 615 A.2d at 134; see United States v. Young, 470 U.S. 1, 16
(1985) (reviewing court must evaluate claim of plain error against entire
record of case).

¶ 37. As we have stated on numerous occasions, "[p]lain error exists
only in exceptional circumstances where a failure to recognize error would
result in a miscarriage of justice, or where there is glaring error so
grave and serious that it strikes at the very heart of the defendant's
constitutional rights." State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24,
26 (1993). In this case, we should be even more reluctant to find plain
error. As noted, probation proceedings are considered civil in nature and
do not involve the full panoply of rights to which defendants are entitled
in criminal trials. See State v. Kasper, 152 Vt. 435, 439, 566 A.2d 982,
985 (1989) (noting that "the scope of a probationer's due process rights at
[a probation revocation] hearing does not parallel the constitutional
rights afforded a defendant during a criminal trial"); State v. Schroeder,
149 Vt. 163, 164, 540 A.2d 647, 647 (1987) (per curiam) (holding that a
parole or probation proceeding "is not the same as a criminal prosecution
and that such a hearing is flexible enough to allow in evidence that would
not be admissible in an adversary criminal proceeding"). Therefore, plain
error should be found only when there is serious and flagrant error calling
into question the very integrity of the trial. See C. Wright & K. Graham,
Federal Practice and Procedure § 5043, at 980 (2d ed. 2005) (plain error is
rarely found in civil cases because the "parties have fewer constitutional
rights to introduce or exclude evidence").

¶ 38. In any event, regardless of which standard of plain error we
apply, a careful review of the record reveals that there was no glaring
error or manifest injustice at defendant's hearing. Nor does allowing the
discharge report or probation officer's hearsay testimony undermine one's
confidence in the outcome of the hearing. Accordingly, I would hold that
admission of the hearsay evidence in this case was not plain error, if any
error at all.

____________________________________
Chief Justice

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Footnotes

FN1. Other courts consider additional factors, such as the availability of
the declarant and "whether the evidence is offered to prove the principal
contested issue in the violation or a matter peripheral thereto." Bailey
v. State, 612 A.2d 288, 293 (Md. 1992).

FN2. The dissent contends that the potential bias or motive to fabricate
present in a police affidavit following arrest is not present here because
a counselor or probation officer does not have the same personal and
adversarial relationship with a probationer as a police officer and an
arrested person. Whether a counselor's relationship with a probationer is
adversarial, the relationship is definitely personal and any reports are
inherently subject to bias and interpretation.

FN3. Because we conclude that the hearsay testimony did not bear
sufficient indicia of reliability to establish good cause, we do not reach
defendant's additional arguments that the district court: (1) abused its
discretion in finding that defendant's violation was willful, and (2)
violated defendant's Fourteenth Amendment due-process right to confront
adverse witnesses.

FN4. The dissent concludes that if there was error, it was harmless
because defendant's own testimony supported the court's finding of a
probation violation. Although defendant admitted that he was removed from
the program, the court's conclusion that defendant's violation was willful
relied on more than the simple fact that defendant did not complete the
program. The court's findings supporting its conclusion that his
violation was willful--that staff spoke regularly to defendant and that
defendant continually engaged in a pattern of inappropriate behavior--were
based solely on the inadmissible hearsay evidence. Thus, the admission of
the hearsay testimony was not harmless because it supported the court's
findings on the disputed issue in the case.