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.
