State v. Gedutis

Defendant Alexander Gedutis was placed on probation for the misdemeanor conviction of unlawful mischief after damaging his wife’s vehicle. Six months later, complainant reported to police that defendant had left messages on her telephone answering machine, one threatening harm to her. As a result, a probation violation complaint was made alleging that defendant had violated conditions of his probation. Complainant testified at the probation [592] hearing that the last message defendant put on the answering machine was a threat to shoot her in the head. The State did not produce the inculpatory tape, explaining in response to defendant’s request that efforts to obtain it had been “futile.” The State also did not produce a statement about the incident made by complainant. The court revoked defendant’s probation because he engaged in threatening and harassing behavior. The defendant appeals revocation on two grounds. First, he argues that it was error to permit the complainant to testify about the alleged incident because the State failed to provide the tape and complainant’s statement to defendant on request, as required by VR.Cr.E 16. In the alternative, he asserts that complainant’s testimony about the tape violates VR.Cr.E 32.1 because the State never disclosed the tape to defendant so that he could protect himself from a faulty characterization of the evidence. We affirm. Defendant’s reliance on VR.Cr.E 16 is misplaced. In State v. Kasper, 152 Vt. 435, 440, 566 A.2d 982, 985 (1989), we held that “[bjecause a probation revocation proceeding is ‘informal [and] “unhampered by the procedure incident to a common law trial,”’ Rule 32.1(a)(2), not Rule 43, ‘sets forth the procedure for the revocation hearing.’” Id. at 440, 566 A.2d at 985 (alteration in original) (quoting Reporter’s Notes, VR.Cr.E 32.1). We likewise hold that Rule 16 does not apply to probation revocation proceedings, and any discovery there is governed by Rule 32.1. We decline, however, to address defendant’s argument on appeal that VR.Cr.E 32.1 required disclosure of the statement and the tape, because this argument was never presented to the trial court, and therefore, was not properly preserved. See State v. Lettieri, 149 Vt. 340, 344, 543 A.2d 683, 685 (1988) (party is precluded from raising an objection on appeal on different grounds than were raised below). The dissent maintains that complainant’s hearsay testimony should not have been admitted because it was not reliable. Without addressing whether complainant’s testimony constituted hearsay or implicated the best evidence rule, we note that defendant did not adequately raise the issue on appeal. See State v. Taylor, 145 Vt. 437, 439, 491 A.2d 1034, 1035 (1985) (Court will consider, sua sponte, issues not properly raised on appeal only in rare and extraordinary cases); State v. Martin, 145 Vt. 562, 566 n.3, 496 A.2d 442, 445 n.3 (1985) (Court will not decide inadequately briefed and argued issues); State v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982) (absent exceptional circumstances, issues not briefed are not to be considered on appeal). Moreover, with respect to the indicia of reliability, if defendant had actually spoken with complainant on the telephone and threatened her directly — no tape ever being made— then the indicia of reliability would be no greater or less than it is now. Defendant had ample opportunity to impeach complainant’s testimony, and the court was able to assess her credibility and consider possible motives for fabrication. Affirmed.