This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Rutland Unit, Civil Division. William D. Cohen, J.
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] 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 ...