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State v. Eldert

Supreme Court of Vermont

June 19, 2015

State of Vermont
Stephen L. Eldert

On Appeal from Superior Court, Rutland Unit, Criminal Division Theresa S. DiMauro, J.

John R. Treadwell, Assistant Attorney General, Montpelier, and Kevin R. Klamm, Rutland County Deputy State’s Attorney, Rutland, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Kerry B. DeWolfe, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


¶ 1. Defendant Stephen L. Eldert appeals the revocation of his probation resulting from a violation of a probation condition that he not purchase, possess, or consume alcohol. We conclude that the court erred in admitting unreliable hearsay evidence at the revocation hearing, and therefore reverse.

¶ 2. In October 2004, defendant pled guilty to lewd and lascivious conduct, 13 V.S.A. § 2601, unlawful restraint in the second degree, id. § 2406(a), and multiple violations of conditions of release, id. § 7559(e). The court sentenced defendant to two to ten years, all suspended, and placed defendant on several conditions of probation, including condition 1 that he “must not buy, have or drink any alcoholic beverages.”

¶ 3. At some point thereafter, defendant’s probation supervision was transferred to Delaware through the Interstate Compact Offender Tracking System (ICOTS). [1] While in Delaware, defendant was convicted of several crimes and placed on probation in addition to his ICOTS-supervised Vermont probation. Subsequently, a Delaware court found defendant in violation of his Delaware probation conditions, revoked his probation, and imposed the underlying suspended sentence. On April 26, 2013, while defendant was still serving his Delaware sentence, the Delaware Department of Corrections informed defendant’s Vermont probation officer that it was no longer willing to supervise his Vermont probation upon release from his Delaware sentence.

¶ 4. In May 2013, defendant’s Vermont probation officer filed a violation of probation complaint in the superior court, criminal division. Relying on documentation received from Delaware through ICOTS indicating that “Mr. Eldert admitted to using alcohol, Percocet, and cocaine, ” the complaint alleged that defendant violated condition 1. The complaint requested a warrant to return defendant to Vermont once he served his prison sentence in Delaware. A warrant was issued in September 2013, and defendant was brought back to Vermont. Defendant denied the allegations that he had violated condition 1 while in Delaware by consuming alcohol, and was incarcerated in Vermont pending a merits hearing.

¶ 5. At the State’s request, approximately one hour prior to the scheduled start of the merits hearing, counsel for both parties met on the record with the court to discuss the State’s planned use of hearsay evidence that is the subject of this appeal. The State informed the court that its sole evidence in support of the alleged violation was defendant’s Vermont probation officer “testifying as to information on what occurred in Delaware by virtue of documentation and direct communication with the [probation officers] there.” The State requested a “weather report” from the court as to whether the proposed hearsay evidence was reliable and admissible, stating it was “conceivable that the court might want direct testimony from a Delawarean, ” adding “I don’t think it’s necessary, but the court’s preferences are my first wish.” Defendant objected to a continuance for the State to procure live testimony, explaining that the defense was ready to proceed as scheduled. The court declined to rule on the matter prior to the start of the hearing, stating “well, we’ll... see what happens.”

¶ 6. During the merits hearing, defendant’s Vermont probation officer, the sole witness for the State, testified that she received various documents through ICOTS indicating that defendant had violated condition 1 of his Vermont probation while in Delaware. In support of its violation-of-probation complaint, the State sought to admit these documents through defendant’s probation officer’s testimony as State’s exhibits 1, 2, and 3.

¶ 7. State’s exhibit 1, dated November 2, 2012, is captioned “Violation Report.” The report was purportedly authored by defendant’s Delaware probation officer, and then reviewed and approved by a Delaware Department of Corrections supervisor. The report alleges violations of two of defendant’s Delaware probation conditions, the first prohibiting possession or consumption of a controlled substance or other dangerous drugs unless prescribed lawfully, and the second requiring compliance with “any special conditions imposed by your supervising officer, the Court and/or the Board of Parole.” The report indicates, in relevant part, that defendant made three admissions: (1) “[o]n 10/19/12, Mr. Eldert admitted to using alcohol”; (2) “[o]n 10/26/12 he was released from detox and admitted to drinking alcohol (vodka) that night”; and (3) “[o]n 11/1/12, when confronted with the fact the he smelled strongly of alcohol, Mr. Eldert admitted to drinking one pint of vodka the night before.” The report does not make clear to whom or under what circumstances defendant made the admissions. The State presented exhibit 1 as a single report consisting of four pages. The report is facially incomplete, and confusingly, there are five pages included in the report, only the last three of which are numbered. [2] The fourth page of the report, labeled “4 of 5” and dated April 26, 2013, appears to be an incomplete, unsigned order from the Kent County Superior Court acknowledging the alleged violation of probation, executing a warrant, and setting bail at $9, 000. The report and the court order, dated seventeen months apart, were not signed, notarized, certified, otherwise attested to, or showed any indication that they had been filed in court.

¶ 8. State’s exhibit 2 is an ICAOS form entitled “Offender Violation Report.” [3] The form, addressed to “Vermont” and dated April 26, 2013, stated a violation of probation hearing was held on March 1, 2013 and that “[o]ffender was found in violation.” The form contains a field labeled “Current Specific Violations, ” where writers are to “[s]pecify [the] violation and provide all details to support the violation below, including evidence, witnesses’ names, and witnesses’ contact information, ” which was left blank. The form identifies Daniel Welsh as defendant’s Delaware probation officer, but is unsigned, uncertified, contains no indication it is an official document, and has no information connecting it to defendant’s alleged admissions of drug and alcohol abuse.

¶ 9. State’s exhibit 3 is entitled “Violation of Probation Sentence Order.” The supposed order is dated March 1, 2013, and simply states: “defendant is found in violation.” The report has no information concerning the basis for the violation, and makes no mention of defendant’s alleged consumption of alcohol. There is nothing indicating the order is an official court record, such as an official stamp or seal. Although the document identifies the presiding judge, it does not provide any information about the nature of the violation. The document is ...

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