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@vermont.gov 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.
2016 VT 36
No. 2016-053
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Bennington Unit,
Criminal Division
Jeremy Gates March Term, 2016
David A. Howard, J.
Robert F. Plunkett, Bennington County State’s Attorney, and Jonathan Ward, Law Clerk,
Bennington, for Plaintiff-Appellee.
Sara Puls, Appellate Defender, Montpelier and Katherine M. Lamson, Public Defender,
Bennington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. DOOLEY, J. Defendant appeals from a February 1, 2016 ruling of the superior
court revoking his right to bail under 13 V.S.A. § 7575 after repeated violations of conditions of
release (VCRs). Defendant contends that the trial court ruled on inadequate grounds, without
making the necessary findings, and based on probable cause affidavits, rather than on an
independent determination by a preponderance of direct evidence required for bail revocation.
We reverse and remand.
¶ 2. In December 2014, defendant was charged with felony extortion, domestic
assault, and unlawful mischief in the amount of $250 or less following an incident involving his
mother (Docket No. 1158-12-14 Bncr). The facts pertaining to that incident are as follows.
Defendant’s mother was the representative payee for defendant’s social security disability
benefits. Defendant, who suffers from severe cognitive disabilities, went to his mother’s
residence in a motel called the Iron Kettle to pick up money from his social security disability
check. When she refused to give him money, he threatened to harm and kill her. On December
5, 2014, defendant was arraigned on these charges and released on conditions, including a
condition prohibiting him from contacting his mother or entering onto the property of the Iron
Kettle. This docket remains pending.
¶ 3. Between December 2014 and January 2016, defendant was charged with several
new crimes—retail theft, unlawful trespass, identity theft, prescription fraud, welfare fraud, petit
larceny, grand larceny, false pretenses, and obstruction of justice—as well as seventeen VCRs
for going onto the premises of the Iron Kettle or for having contact with his mother or both
(Docket Nos. 127-2-15 Bncr, 201-3-15 Bncr, 290-4-15 Bncr, 313-4-15 Bncr, 344-4-15 Bncr,
402-5-15 Bncr, 523-6-15 Bncr, 594-7-15 Bncr, 694-8-15 Bncr, 801-9-15 Bncr, 1028-10-15 Bncr,
1059-11-15 Bncr, 1084-11-15 Bncr, 6-1-16 Bncr, 57-1-16 Bncr). The trial court has found
probable cause to support each of these charges. In each case, defendant was released subject to
conditions of release.
¶ 4. On January 29 of this year, following defendant’s most recent VCR charge, the
trial court held an evidentiary hearing on bail revocation under 13 V.S.A. § 7575. Section 7575
provides
The right to bail may be revoked entirely if the judicial officer
finds that the accused has:
(1) intimidated or harassed a victim, potential witness, juror
or judicial officer in violation of a condition of release; or
(2) repeatedly violated conditions of release; or
(3) violated a condition or conditions of release which
constitute a threat to the integrity of the judicial system; or
(4) without just cause failed to appear at a specified time
and place ordered by a judicial officer; or
(5) in violation of a condition of release, been charged with
a felony or a crime against a person or an offense like the
underlying charge, for which, after hearing, probable cause is
found.
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¶ 5. The State presented affidavits from two police officers; one stated the officer had
probable cause to believe defendant had committed petit larceny and two counts of contempt of
court and another from a different officer that described events that the State averred showed
probable cause to believe defendant had violated his conditions of no trespass and no contact.
The latter officer appeared at the hearing and testified about the alleged VCR, stating that he had
found defendant in his brother’s room at the Iron Kettle on January 18, after observing
defendant’s mother outside the room. Defendant called his mother, who testified that she had
contact with defendant on January 18 but it was incidental, that she was not afraid of defendant,
and that he had not done anything in the case to influence her or persuade her not to assist the
police and the prosecution.
¶ 6. On February 1, the court orally found, by a preponderance of the evidence, that
defendant had violated conditions of release ten or eleven times. Although not all of these had
been proved by the State, the court indicated it would take judicial notice of defendant’s
“pending charges and the dates of his alleged offenses.” The court also found mother’s
testimony not “terribly credible” and concluded that defendant’s continued contact with mother
“had an effect on her original case.” The court determined this effect, combined with
defendant’s felony charge for obstruction of justice by threatening to let the air out of the tires of
one of the prosecutors’ car, had a detrimental impact on the integrity of the judicial system.
Concluding that defendant had breached three of the prongs of § 7575—repeated VCRs, felony
charges, and violating a condition that constitutes a threat to the integrity of the judicial system—
the court revoked defendant’s bail.
¶ 7. This appeal followed.1 Defendant has two primary arguments: (1) that revoking
defendant’s constitutional right to release pending trial violates Chapter II, § 40 of the Vermont
Constitution and is not justified under any prong of 13 V.S.A. § 7575, because the trial court
1
The parties first stipulated that this appeal could be heard by a single Justice. It was
then referred by that Justice to the full Court.
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ruled based on probable-cause determinations in the VCR dockets, and made no finding based on
a preponderance of the evidence; and (2) that the revocation of the right to release was not
supported under §7575(2) as the State did not put on any evidence of repeated VCRs or
demonstrate threat to the integrity of the judicial system as required by State v. Sauve, 159 Vt.
566, 621 A.2d 1296 (1993). Defendant also argues that the State submitted no evidence
regarding defendant’s felony charges at the evidentiary hearing and that, even if they had, none
of those charges were a violation of a condition of release where the defendant is also charged
with a felony or a crime against a person or an offense like the underlying charge. See 13 V.S.A.
§ 7575.
¶ 8. Section 7556(b) requires us to affirm the lower court’s ruling “if it is supported by
the proceedings below.” 13 V.S.A. § 7556(b). Because the decision to hold defendant without
conditions of release lacks support in the record, we reverse.
¶ 9. We begin by noting that except in “very limited and special circumstances where
the State’s interest is legitimate and compelling, a court may not deny bail in the face of the
constitutional right.” State v. Blackmer, 160 Vt. 451, 456, 631 A.2d 1134, 1137 (1993) (citing
Sauve, 159 Vt. at 573-74, 621 A.2d at 1301). The Constitution does not explicitly address what
the State must show to authorize the court to revoke conditions of release. See Vt. Const. ch. II,
§ 40. In 13 V.S.A. § 7575, the Legislature attempted to fill the gap by establishing grounds for
revocation by statute. In State v. Sauve, we considered a challenge to the statute with defendant
arguing that revocation of conditions of release was not allowable under the constitutional
provision in instances where conditions of release could not be denied in the first instance. We
held that revocation of conditions of release was allowable under the Vermont Constitution if the
grounds for revocation were based on a compelling and legitimate state interest. Sauve, 159 Vt.
at 573-74, 621 A.2d at 1301. We concluded that a palpable threat to the judicial process—for
example, to prevent a destruction of evidence or intimidation or endangerment of a witness—
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would constitute a compelling and legitimate state interest. Id. at 574, 621 A.2d at 1301. Based
on that conclusion, we ruled that the grounds specified in § 7575(1) and (3) met the
constitutional standard. We further ruled, however, that the grounds specified in § 7575(2) were
not sufficient alone to meet the constitutional standard. That subsection allows revocation for
“repeatedly violated conditions of release.” We held that to justify a revocation on that ground
there must also be “a disruption of the prosecution.” Sauve, 159 Vt. at 576, 621 A.2d at 1302.
Sauve does not address the requirements for revocation based upon either § 7575(4) or (5).
¶ 10. In Sauve, we also addressed the burden and method of proof in a revocation
situation. We held that findings that conditions of release have been violated “must be made by
a preponderance of the evidence” and based on “more than affidavits and sworn statements”—
defendant must have a hearing, with the opportunity to both hear and present direct evidence.
159 Vt. at 577, 621 A.2d at 1303; see also State v. Brooks, 2015 VT 13, ¶ 5, 196 Vt. 604, __
A.3d __ (mem.) (issued May 2002) (noting a trial court may consider a sworn statement “if the
State has also presented live witnesses”).2
¶ 11. The trial court found that there were grounds for revocation in three subsections
of § 7575: (1), (2) and (3). At least impliedly, the court found that (5) also provided a ground for
revocation. We consider each in turn.
I. Section 7575(1)
¶ 12. Under § 7575(1), revocation is authorized if the court finds that a defendant
“intimidated or harassed a victim, potential witness, juror or judicial officer in violation of a
condition of release.” In finding a violation of § 7575(1), the trial court relied upon its
evaluation of the testimony and behavior of defendant’s mother, as well as the officer’s
2
Unlike three-Justice panel decisions under the summary procedures specified in
Vermont Rule of Appellate Procedure 33.1, see V.R.A.P. 33.1(c), three-Justice bail decisions
pursuant to 13 V.S.A. § 7556(e) have not been specified as non-precedential and are now
published in Vermont Reports. All earlier decisions were published in 2015 and assigned
sequential numbers reflecting the date of publication rather than the date of issuance. Thus, State
v. Brooks is cited by the number assigned in 2015 on publication although it was issued in 2002.
5
testimony that defendant was at the Iron Kettle, and had contact with his mother, during the
January 2016 incident in violation of his conditions of release. The court did not believe the
mother’s testimony that the contact was incidental, even though mother testified that she entered
a room occupied by defendant’s brother, saw defendant was present in the room and then
immediately left. The court was concerned that mother’s testimony indicated that she was
recanting her complaints about the underlying violent incident in 2014 and was unwilling to
inform the police when defendant violated his conditions of release by coming to the Iron Kettle.
From the court’s evaluation of mother’s testimony, it apparently drew the conclusion that
defendant had intimidated her. There was, however, no evidence of intimidation.
¶ 13. The situation in this case is similar in substance to that in State v. Sauve, where
defendant had been living with the victim in a romantic relationship which ended with incidents
of domestic violence that were the basis of the criminal charges. As in this case, there was
evidence of multiple incidents of contact with the victim in violation of conditions of release, but
the victim did not express fear of defendant. We held that defendant could not be held without
bail for the last incident of contact, Sauve, 159 Vt. at 569, 621 A.2d at 1298, and revocation of
conditions of release could not be grounded on § 7575(1) because “the court did not find that the
complaining witness was harassed and intimidated; it found only that she was ‘in danger of
contact by the defendant.’ ” Id. at 574, 621 A.2d at 1301. As in this case, the court did not find
that the victim feared reprisal for her testimony.
¶ 14. We recognize that the court referenced defendant’s multiple charges for violation
of conditions of release involving his presence at the Iron Kettle and contact with the victim. We
also recognize that for each charge, the file contains an affidavit of probable cause of a police
officer. Assuming that the court could have relied on these affidavits in making its findings, it
did not appear to actually do so, and, in any event, we do not find in them direct evidence of
intimidation.
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¶ 15. In summary, we cannot conclude that the court’s findings were sufficient to
support its conclusion that defendant had violated § 7575(1) so as to revoke his conditions of
release.
II. Section 7575(2)
¶ 16. Under § 7575(2), revocation is authorized for “repeatedly violated conditions of
release.” As we discussed above, Sauve held that repeated violation of conditions of release
alone is not sufficient to meet the right-to-bail standard of Chapter II, § 40 of the Vermont
Constitution; the State must also show that the violations disrupted the prosecution of the
underlying crime. Sauve, 159 Vt. at 576, 621 A.2d at 1302. We can assume that the State
presented sufficient evidence to show repeated VCRs, an assumption defendant challenges. Its
case on this prong of § 7575 fails for the same reason as its case on § 7575(1) failed. There is no
finding of nexus between the VCRs and the disruption of the prosecution, if such a disruption
has occurred, and the evidence supporting a connection is very weak. We cannot conclude that
§ 7575(2) authorizes revocation of defendant’s conditions of release.
III. Section 7575(3)
¶ 17. C. § 7575(3): This prong authorizes revocation if defendant “violated a condition
or conditions of release which constitute a threat to the integrity of the judicial system.” The trial
court found that defendant violated this prong of § 7575 for the same reasons as it found a
violation of § 7575(1), with one additional reason. We conclude that the reasons supporting its
decision to revoke under § 7575(1), which we found inadequate above, are also inadequate to
revoke under § 7575(3), and our analysis above applies. We turn then to the additional reason.
¶ 18. The trial court found that defendant’s conduct constituted a threat to the integrity
of the judicial system based on the State’s charge that defendant had obstructed justice by
threatening to let the air out of the tires of the car of one of the prosecutors. It is unclear how the
court found that the conduct was a violation of a condition of release but, as we note below under
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§ 7575(5), a condition on his release for the 2014 charges was that he not be charged with an
additional crime for which probable cause was found, and the obstruction of justice charge
created a violation of that condition. Although it is without question that threats of any kind
involving an officer of Vermont charged with upholding the constitution are out of line, we must
conclude that there was a failure of proof with respect to the use of the obstruction of justice
charge and an absence of necessary findings.
¶ 19. Sauve holds that “findings that bail conditions have been violated must be made
by a preponderance of the evidence.” 159 Vt. at 577, 621 A.2d at 1303. Thus, to conclude that
defendant violated § 7575(3), the court must find by a preponderance of the evidence that
defendant violated the bail condition and the violation constituted a threat to the integrity of the
judicial system. In this case, a finding of violation of a condition of release is easily shown
because the violation consists of the criminal charge alone, without a finding that the conduct
actually occurred, as long as the court found probable cause that the conduct occurred at the time
the charge was filed. We also concur that conduct that constitutes an obstruction of justice is a
threat to the integrity of the judicial system. However, probable cause alone cannot meet the
proof requirement of Sauve. The State must prove by a preponderance of the evidence that
defendant committed the crime of obstruction of justice. In this case, the court found only that
defendant was charged with obstruction of justice, not that he committed the act which
constitutes the crime. The court’s finding is inadequate to show a violation of § 7575(3).
¶ 20. We also emphasize that there was a failure of proof as well as an absence of
findings. The State argues that we can find the necessary proof in the affidavit in support of the
finding of probable cause for the obstruction of justice charge. Relying in part on the
memorandum decision in State v. Huseboe, 158 Vt. 651, 607 A.2d 1140 (1992) (mem.), we held
in Sauve that “findings for a § 7575 revocation must be based on more than affidavits and sworn
statements; rather, defendant must have a hearing with an opportunity to present evidence.” 159
8
Vt. at 577, 621 A.2d at 1303. The Sauve holding was explained in part in State v. Brooks, 2015
VT 13, 196 Vt. 604, a 2002 three-Justice bail decision pursuant to 13 V.S.A. § 7556(e). In
Brooks, the Court held that the trial court could rely upon a sworn statement of the victim, even
though the victim was not present to testify, as long as the State “also presented live witnesses.”
Id. ¶ 5. The main live witness at the hearing in Brooks was the police officer who took the
statement from the victim.
¶ 21. In this case, the State is arguing that affidavits are admissible, and can be the basis
for revocation, as long as there is live testimony about something. Here the State wants us to
rely upon the affidavit in support of the charge of obstruction of justice even though the only live
testimony was about the 2016 incident when an officer found defendant at the Iron Kettle. This
theory would expand the use of affidavits well beyond that in Brooks and Sauve and essentially
eat up the rule established in Sauve. We hold that the State had to introduce some live
testimony, which could be supported by affidavits, to prove by a preponderance of the evidence
that defendant committed obstruction of justice. It failed to do that.
IV. Section 7575(5)
¶ 22. This prong is proved by a showing that “in violation of a condition of release,
[defendant was] . . . charged with a felony or a crime against a person or an offense like the
underlying charge, for which, after hearing, probable cause is found.” As discussed above, the
elements of this prong were shown by the release condition specifying defendant would not be
charged with a crime for which probable cause was found, that obstruction of justice is a felony,
and probable cause was found for the charge of obstruction of justice. Although Sauve did not
involve this prong, the constitutional analysis of § 7575(2) in Sauve applies equally to § 7575(5).
If the statutory elements were sufficient, a second qualifying charge for which probable cause is
found would virtually always allow for revocation of conditions of release even though the
second charge is for a bailable offense because the condition applicable here—that defendant not
9
be charged with a crime for which probable cause is found—is a standard condition virtually
always imposed. The Vermont Constitution provision does not have an exception for multiple
charges. Reliance on § 7575(5) in this case would be ineffective for the same reasons as we
found that § 7575(2) does not support revocation.
¶ 23. For the above reasons, we cannot conclude that revocation of defendant’s
conditions of release is supported by the record below.
¶ 24. Although the above constitutes our decision on the revocation of conditions of
release, we add our observations on the state of this case that led to the revocation decision.
Defendant was charged with the main offenses over a year ago, and the case has moved very
little except for the State’s responses to VCRs that have become predictable. Apparently, the
cause of gridlock in this case is the failure to resolve whether defendant is competent to stand
trial, a significant issue because defendant has been found incompetent to stand trial for earlier
alleged offenses. It is difficult to conclude that defendant’s mental condition and the VCRs are
not interrelated. As a result, we strongly urge the court and the parties to determine defendant’s
competency to stand trial as soon as possible to move the underlying case to conclusion.
¶ 25. Because revocation of defendant’s bail is not supported by the record below, we
reverse the trial court decision. We remand the matter to the superior court for the limited
purpose of considering whether additional conditions are required under 13 V.S.A. § 7554.
The court’s order holding defendant without bail is reversed, and the matter is remanded
to the superior court for the limited purpose of considering whether additional conditions are
required under 13 V.S.A. § 7554.
FOR THE COURT:
Associate Justice
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