State v. Morse

Dooley, J.,

¶ 23. concurring. Chapter II, § 37 of the Vermont Constitution provides that “[t]he Supreme Court shall make and promulgate rules . . . governing practice and procedure in civil and criminal cases in all courts.” To implement this responsibility for criminal cases, the Supreme Court adopted the Vermont Rules of Criminal Procedure effective October 1, 1973. V.R.Cr.P. 59(a). These rules govern “the procedure in the Criminal Division of the Superior Court in all criminal proceedings.” V.R.Cr.P. 1. As the majority holds, restitution is part of sentencing, a subject covered by Rule of Criminal Procedure 32 and not excluded by Rule 54(a)(2).

¶ 24. When the rules were promulgated, the current restitution statute had not been enacted. As a result, the sentencing rule did not mention restitution. Although the current statute requires that restitution “be considered in every' case” in which a victim has suffered material loss, 13 V.S.A. § 7043(a)(1), Rule 32 does not explicitly provide a procedure for restitution requests. The only specific procedure is in the statute: “Unless the amount of restitution is agreed to by the parties at the time of sentencing, *505 the Court shall set the matter for a sentencing hearing,” 5 and “[p]rior to the date of the hearing, the prosecuting attorney shall provide the defendant with a statement of the amount of restitution claimed together with copies of bills that support the claim for restitution.” 6 Id. § 7043(c)(1), (2). A sentencing hearing was held in this case; there is no record that the prosecutor provided the statement or copies required by the statute. 7 Nor did the prosecutor disclose the witnesses the State would call in the restitution hearing or that hearsay would be used. 8 The defendant did disclose the witness he called.

¶ 25. This case is a vivid demonstration of why rules establishing the procedure for restitution claims are necessary. The issues in this appeal should be clearly covered by rule provisions.

¶ 26. Both the main issues make the point in different ways. Defendant’s first argument here is that the prosecution failed to show that the victim’s material loss was uninsured, as required for any restitution order, id. § 7043(a)(2), because it did not consider what liability insurance defendant carried. 9 Of course, if defendant had effective liability insurance, all he had to do was disclose it to the victim and the victim could claim compensation, and the defendant could avoid paying restitution. If defendant showed he had no liability insurance, the victim could have pursued uninsured motorist coverage and again defendant could avoid paying restitution. It is amazing how, in circumstances where defendant could very likely avoid any restitution obligation because some *506 insurance is available, he is here arguing that the State is responsible for his having to pay restitution.

¶ 27. The point is that a disclosure regime where both defendant and the victim disclose insurance coverage and existing claims is far preferable to attempting to determine insurance coverage in a contested restitution hearing with no discovery and no pleadings.

¶28. There is more to this point. The arguments assume that determining the availability of coverage is a relatively simple matter of looking at policies or the law. Imagine, however, that defendant’s insurance carrier denies coverage under a policy exclusion for intentional torts. While I use this as a hypothetical, even an occasional sampling of our decisions shows that insurance coverage disputes are common, and it is not uncommon for insurers to exclude criminal conduct from their liability coverage. The criminal division judge could not determine the coverage question in a restitution hearing in which the insurance carrier is not a party. It is not clear what procedure to employ in a circumstance like this. 10 Neither the statute nor the current rules give any guidance.

¶ 29. The second main issue also shows the need for procedural regulation. I agree with the majority that hearsay evidence is admissible in a restitution hearing if found' reliable. In fact, Rule 32(c)(4)(A) specifically provides for use of hearsay in sentencing hearings but regulates its use.

Either party may offer evidence, including hearsay, specifically on any disputed factual issues in open court with full rights of cross-examination, confrontation, and representation. When a defendant objects to factual information submitted to the court or otherwise taken into account by the court in connection with sentencing, the court shall not consider such information unless, after hearing, the court makes a specific finding as to each fact objected to that the fact has been shown to be reliable by a preponderance of the evidence, including reliable hearsay. If the court does not find the alleged fact to be rehable, the court shall either make a finding that the *507 allegation is unreliable or make a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report or other controverted document thereafter made available by the court to the Department of Corrections.

V.R.Cr.P. 32(c)(4)(A).

¶ 30. Because evidence used in a restitution proceeding is “Sentencing Information” governed by Rule 32(c), I conclude that Rule 32(c)(4)(A) applies to restitution. It was not followed by the court, but defendant has not raised this error on appeal to this Court.

¶ 31. In any event, Rule 32 should explicitly state that the provisions in Rule 32(c)(4)(A) apply to restitution hearings. That will ensure that the court determines the reliability of the evidence presented.

¶ 32. Again, there is a broader point. A restitution order is essentially the equivalent of a civil judgment with stronger and broader enforcement powers. I do not recommend that we apply the rules of civil procedure to restitution proceedings. I do believe, however, that the essential elements of the civil rules should apply to ensure notice of the restitution claim, discovery of the evidence being used by defendant and the victim, and a fair and complete adjudication of the dispute.

¶ 33. In summary, I concur fully in the opinion of the majority but hope that we will recognize from this decision that we are in need of complete and effective procedural rules for restitution proceedings. I urge the Advisory Committee on the Rules of Criminal Procedure to develop a draft of such rules and present them to us.

While §7043(c)(1) provides as quoted in the text, §7043(d)(1) provides for a separate restitution hearing “[i]f sufficient documentation of the material loss is not available at the time of sentencing.” The former provision appears to make the latter superfluous.

In addition, the statute provides a procedure for when the defendant attempts to discover medical and mental health records submitted to the “Victims Compensation Board.” 13 V.S.A. § 7043(c)(3).

I am not arguing that the prosecutor violated the statute since the statute does not require that the prosecutor file the statement and copies with the court. I do believe that the rule should require filing of the statement and copies.

I do argue below that the failure to disclose the use of hearsay in advance of the hearing was a violation of Rule 32.

Like the majority and dissenting opinions, I assume a loss is not uninsured under the statute if defendant has liability insurance that may cover the loss or if, because the loss arises from a collision of two vehicles, the victim has uninsured motorist coverage. I am not sure, however, that the Legislature understood the complications that could arise from such a definition of uninsured.

The statute, 13 V.S.A. § 7043(h), states that restitution “shall not preclude a person from pursuing an independent civil action for all claims not covered by the restitution order.” It does not require such an action.