Plain Error, Excited Utterances, and Probation Revocation Discretion in Vermont: Commentary on State v. Cody Morse

Plain Error, Excited Utterances, and Probation Revocation Discretion in Vermont: Commentary on State v. Cody Morse

I. Introduction

This commentary analyzes the Vermont Supreme Court’s three-justice entry order in State v. Cody Morse, Case No. 25-AP-011 (Dec. 5, 2025), affirming the revocation of the defendant’s probation. Although the order expressly states that three-justice panel decisions are not precedential, it offers a useful and instructive synthesis of Vermont law on several recurring issues:

  • the standard for plain error in probation-revocation proceedings where constitutional rights are invoked;
  • the use of the excited-utterance hearsay exception in the relaxed evidentiary environment of probation-revocation hearings;
  • the scope of appellate review of credibility findings in violation hearings; and
  • the proper articulation of reasons for revoking probation under 28 V.S.A. §§ 303–304.

At the factual level, the case arises out of a domestic-violence context with a recanting complainant, competing testimony about whether an August 2023 encounter was physical, and a mixture of testimonial and video evidence. At the legal level, the Vermont Supreme Court addresses:

  • whether excluding the complaining witness from the courtroom during another witness’s testimony violated the defendant’s right to a public proceeding;
  • whether the complainant’s statements to a friend qualified as an excited utterance justifying their admission over hearsay objection in a probation-revocation hearing;
  • whether it was necessary to reach the questions of video authentication once one piece of properly admitted evidence sufficed to establish the violation; and
  • whether the trial court properly exercised its discretion in revoking probation and ordering confinement.

While nonprecedential, Morse consolidates and applies a line of Vermont decisions on plain error, hearsay, and revocation, and thus is highly instructive for practitioners in probation, domestic-violence, and evidentiary litigation.

II. Summary of the Opinion

A. Factual and Procedural Background

In July 2023, pursuant to a plea agreement, Cody Morse pleaded guilty to:

  • first-degree aggravated domestic assault;
  • second-degree aggravated domestic assault; and
  • two counts of violating conditions of release (VCR), one of which involved abuse/harassment of the same complainant.

He received a suspended sentence of four to eight years, concurrent furlough, and was placed on probation. Key probation conditions included:

  • Condition A: no conviction of another crime or engagement in criminal behavior;
  • Condition 22: no abuse or harassment of the complainant;
  • Condition 23: no violent or threatening behavior.

On August 5, 2023—eleven days after agreeing to his probation conditions—the State alleged that Morse assaulted the complainant at her home, thereby violating Conditions A, 22, and 23. The State initially charged first-degree aggravated domestic assault and probation violations. When the complainant failed to appear for the first day of trial in September 2024, the State dismissed the new assault charge and proceeded instead with a probation-violation merits hearing the next day.

At the violation hearing:

  • The complainant recanted, claiming her August 2023 report was untruthful and that the argument was only verbal.
  • She admitted providing the police with a cell-phone video and home-security footage but testified that the cell-phone video was not from the relevant date and expressed uncertainty about the security footage’s date and reliability.
  • The trial court admitted the home-security video over defense objection, but initially excluded the cell-phone video for lack of foundation.
  • Due to the complainant’s disruptive interjections as her friend A.B. was called, the court directed the complainant to leave the courtroom during A.B.’s testimony. No party objected.
  • A.B. testified that the complainant, distraught and hyperventilating that morning, reported that Morse “attacked” her, showed injuries (cut hand, busted lip, chest bruise), and said she had been “stepped on.”
  • A police officer later testified and authenticated the cell-phone video, which was then admitted.
  • Defendant’s probation officer confirmed that he had reviewed the conditions with Morse.
  • Morse testified, admitting only a verbal argument and denying a physical assault.

The trial court:

  • found by a preponderance of the evidence that Morse violated Conditions 22 and 23 by engaging in abusive and violent behavior against the complainant;
  • explicitly found both Morse and the complainant not credible on the question whether the altercation was nonphysical;
  • credited A.B.’s testimony and held that her testimony alone (aside from the videos) sufficed to prove physical abuse and violent behavior; and
  • later revoked Morse’s probation at a December 2024 disposition hearing, concluding confinement was necessary to protect the complainant and that non-revocation would unduly depreciate the seriousness of the violation.

B. Issues on Appeal

Morse raised five principal issues:

  1. Whether excluding the complainant from the courtroom during A.B.’s testimony violated his right to a public proceeding under the Sixth Amendment.
  2. Whether the complainant’s statements to A.B. were properly admitted as an excited utterance.
  3. Whether the home-security and cell-phone videos were properly authenticated and admissible.
  4. Whether the trial court erred by disbelieving both the complainant and the defendant regarding the absence of a physical altercation.
  5. Whether the trial court failed to adequately justify revoking probation rather than using a lesser sanction.

C. Holdings

The Vermont Supreme Court affirmed, holding that:

  • Because defense counsel did not object to the complainant’s exclusion, the claim was reviewable only for plain error. Given the unsettled nature of whether the Sixth Amendment public-trial right applies to probation-revocation hearings in Vermont, any error was not “obvious” and thus not plain error.
  • The trial court did not abuse its discretion in admitting the complainant’s statements to A.B. under the excited-utterance exception, V.R.E. 803(2), even though the Rules of Evidence do not formally apply in such hearings.
  • Because A.B.’s testimony alone was sufficient to establish a probation violation by a preponderance of the evidence, any alleged error regarding authentication or admission of the videos would be harmless, and thus the Court declined to reach those challenges.
  • The trial court’s credibility determinations were supported by the record and were not subject to second-guessing on appeal.
  • The trial court properly applied 28 V.S.A. § 303(b) in revoking probation; its findings that confinement was necessary to protect the community and that non-revocation would unduly depreciate the seriousness of the violation were adequately articulated and within its discretion.

III. Precedents and Authorities Cited

A. State v. Decoteau, 2007 VT 94, 182 Vt. 433

Decoteau is central to the Court’s framework for probation revocation. It provides that:

  • The State must prove a violation of an express probation condition by a preponderance of the evidence.
  • Once a violation of an express condition is shown, the burden of persuasion shifts to the probationer to demonstrate that the violation was not willful and resulted from factors beyond his control.
  • Plain-error analysis can be applied in probation-revocation proceedings when important rights are implicated.

In Morse, the Court uses Decoteau both to state the general burden-shifting framework and to justify applying plain-error review to the unpreserved public-proceeding claim. Although the opinion does not focus on willfulness (the violation appears plainly willful if the facts are credited), Decoteau supplies the doctrinal baseline.

B. State v. Burnett, 2022 VT 30, 216 Vt. 561

Burnett defines the structure of probation-violation determinations and the appellate standard of review:

  • The trial court must first make factual findings about what the probationer actually did.
  • It must then make a (sometimes implicit) legal conclusion that those actions violated the probation terms.
  • On appeal, factual findings are reviewed for support in the evidence; legal conclusions are upheld if supported by the evidence and free from erroneous interpretations of law.

Morse invokes Burnett to emphasize the appellate court’s limited role: it will not reweigh evidence or revisit credibility determinations so long as reasonable support in the record exists.

C. State v. Davis, 157 Vt. 506 (1991)

Davis is cited for the canonical Vermont definition of plain error:

Plain error exists only in the rare and extraordinary case where the error is obvious and so grave and serious that it strikes at the very heart of a defendant’s constitutional rights or adversely affects the fair administration of justice.

Morse relies on this standard to deny relief on the public-proceeding claim, emphasizing the “obviousness” component.

D. State v. Provost, 2014 VT 86A, 199 Vt. 568

Provost adds an important gloss to plain-error doctrine:

Errors in unsettled areas of law are not obvious, and therefore not plain.

In Morse, this principle is decisive. The defendant argued that the Sixth Amendment public-trial right applies to probation-violation hearings and that excluding the complainant (a member of the public and the alleged victim) violated that right. The Vermont Supreme Court had not yet resolved whether the public-trial right extends to such hearings. Because that legal question remains unsettled in Vermont, any error could not be “obvious,” foreclosing plain-error relief under Provost.

E. State v. Eldert, 2015 VT 87, 199 Vt. 520

Eldert addresses evidentiary rulings in probation-revocation hearings:

  • Such rulings are reviewed for abuse of discretion.
  • An error in admitting evidence at a revocation hearing is harmless if, setting aside the challenged evidence, there is still overwhelming support for the violation, and the evidence did not contribute to the decision.

In Morse, the Court uses Eldert to:

  • Set the standard of review for the excited-utterance ruling; and
  • Decline to reach the video-authentication issues, because the trial court expressly stated that A.B.’s testimony alone sufficed, rendering any error about the videos harmless under Eldert.

F. State v. Austin, 165 Vt. 389 (1996)

Austin is key for hearsay in revocation hearings. It holds that:

  • The Vermont Rules of Evidence do not apply to probation-revocation proceedings (now also codified in V.R.E. 1101(b)(3)).
  • However, due process and confrontation principles require that, before admitting hearsay against a probationer, the court must make an explicit finding of good cause for dispensing with the probationer’s confrontation right.

In Morse, the trial court did not follow the Austin pathway of making a “good cause” finding; instead, it applied the formal excited-utterance exception from V.R.E. 803(2). The Supreme Court notes this distinction but upholds the admission on the ground that the requirements of the excited-utterance exception were met, thereby effectively sidestepping the Austin “good cause” analysis.

G. Excited-Utterance Line of Cases: Jackson, Estate of Peters, Lemay, Crawford

  • State v. Jackson, 2008 VT 71, 184 Vt. 173:
    • Defines the excited-utterance exception, emphasizing that the key inquiry is the declarant’s condition at the time of the statement, not necessarily the immediacy of the timing.
    • Recognizes that some temporal delay can be acceptable if the declarant remains under the stress of the event.
  • In re Estate of Peters, 171 Vt. 381 (2000):
    • Upholds admission of a declarant’s statement as an excited utterance where the witness described her as visibly upset, crying, and rocking back and forth while repeatedly referencing the traumatic event (“I can’t believe he raped me”).
    • Illustrates the importance of observable emotional distress.
  • State v. Lemay, 2006 VT 76, 180 Vt. 133:
    • Rejects excited-utterance status for statements made several days after the alleged event where the State did not show that the declarant’s continued emotional state was still caused by that event.
  • State v. Crawford, 2018 VT 119, 208 Vt. 662 (mem.):
    • Holds that a statement made while the declarant was “crying and fearful” was not an excited utterance when the State failed to establish a sufficient causal link between the declarant’s emotional state and the specific event described.
    • Warns that “not every sad or fearful statement is an excited utterance.”

In Morse, the Court distinguishes Lemay and Crawford and analogizes to Estate of Peters, concluding that the State demonstrated:

  • A close temporal connection (the same morning as the alleged attack); and
  • A causal link between the complainant’s distress and the alleged physical altercation with Morse.

H. State v. Woolbert, 2007 VT 26, 181 Vt. 619 (mem.)

Woolbert reinforces that appellate courts will not second-guess trial courts’ credibility determinations:

It is not our role to second-guess a court’s decision as to whom to believe; rather, our duty is to ensure that the court’s findings are supported by the evidence.

Morse applies this principle to uphold the trial court’s choice to disbelieve both the complainant (who recanted) and Morse (who denied physical assault), while crediting A.B.’s testimony.

I. State v. Wheelock, 2023 VT 52, 218 Vt. 442, and 28 V.S.A. §§ 303–304

Wheelock canvasses the statutory framework governing probation revocation:

  • Once a violation is found, the court may revoke probation and order service of the suspended sentence, or it may impose any of the alternative dispositions in 28 V.S.A. § 304.
  • Under 28 V.S.A. § 303(b), the court may not revoke probation and order confinement unless it finds, based on the original offense and intervening conduct, that (among other possibilities):
    • Confinement is necessary to protect the community from further criminal activity (§ 303(b)(1)); or
    • Non-revocation would unduly depreciate the seriousness of the violation (§ 303(b)(3)).

Morse applies this framework and concludes that the trial court made the required findings under § 303(b)(1) and (3), thereby properly justifying revocation and confinement.

IV. Legal Reasoning and Doctrinal Analysis

A. The Public-Proceeding Claim and Plain Error

1. The nature of the alleged error

Morse argued that excluding the complainant from the courtroom during A.B.’s testimony violated his Sixth Amendment right to a “public trial.” The exclusion occurred after the complainant interrupted proceedings, called A.B. a liar, and continued to interject as the court attempted to admonish her. The court ordered her to step outside for A.B.’s testimony to maintain decorum. No party objected at that time.

The Supreme Court treated this as a claim that the probation-revocation hearing itself should be considered a “criminal prosecution” for Sixth Amendment purposes and that the complainant’s exclusion compromised the public nature of the proceeding.

2. Application of plain-error review

Because defense counsel failed to object to the exclusion, the Court reviewed only for plain error. Under Davis and Provost:

  • Plain error must be obvious and “so grave and serious” that it strikes at the heart of constitutional rights or fairness.
  • If the law on a particular issue is unsettled in Vermont, any error on that issue is not “obvious” and thus cannot be plain.

The key doctrinal point: the Vermont Supreme Court has not yet decided whether the Sixth Amendment public-trial right applies to probation-violation hearings. Other jurisdictions have split on the question; some apply the right, others do not or treat such hearings as distinct from “criminal prosecutions” in the Sixth Amendment sense.

Because of this unresolved status, the Court held that even if excluding the complainant were a constitutional error, it could not be considered “obvious” within the meaning of plain-error doctrine, so the defendant necessarily failed the plain-error standard.

3. Implicit limits and practical implications

Notably, the Court did not directly decide:

  • whether probation hearings are covered by the Sixth Amendment public-trial guarantee; or
  • whether excluding a disruptive victim-witness from the courtroom—while leaving the proceeding otherwise open to the public—would amount to a “closure” at all.

Practically, Morse sends a clear message to defense counsel:

  • To preserve public-trial or other structural constitutional claims in probation-revocation proceedings, counsel must timely object.
  • Absent an objection, the combination of Davis and Provost will make relief extremely difficult in “unsettled” constitutional territory.

It also signals that trial courts have some leeway to manage courtroom decorum—even to the point of excluding specific disruptive individuals—without automatically triggering reversible constitutional error, at least where the law is unsettled and no objection is raised.

B. Hearsay and the Excited-Utterance Exception in Revocation Proceedings

1. Rules of evidence and the Austin requirement

Probation-revocation hearings are formally exempt from the Vermont Rules of Evidence (V.R.E. 1101(b)(3)). However, under State v. Austin, the court must:

  • Recognize the probationer’s confrontation interest in cross-examining adverse witnesses; and
  • Make an explicit good-cause finding before admitting hearsay in lieu of live testimony.

In Morse, the trial court did not conduct an Austin-style “good cause” analysis for the complainant’s hearsay statements to A.B. Instead, it applied the excited-utterance exception from V.R.E. 803(2).

2. Elements of an excited utterance

Under V.R.E. 803(2), an excited utterance is:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Drawing on Jackson and Estate of Peters, the Court emphasizes:

  • Timing matters, but not rigidly; a statement need not be immediate if the declarant remains under the stress of the event.
  • The declarant’s condition—distress, agitation, inability to speak coherently—is crucial.
  • There must be a causal link between the observed emotional state and the startling event described.

3. Application to the facts in Morse

A.B. testified that on the morning of August 5, 2023:

  • The complainant called her and was “crying, hyperventilating, couldn’t form a full sentence.”
  • It took significant effort to calm her enough so she could speak.
  • The complainant said she had been “attacked again” by Morse.
  • She displayed a cut on her hand and reported a busted lip and chest bruise from being stepped on.
  • The two then went to the police to make a report.

The Court held that this testimony:

  • Established that the complainant was under visible emotional distress akin to the declarant in Estate of Peters;
  • Occurred within a short time of the alleged attack (earlier that morning); and
  • Directly connected her emotional state to the alleged assault by Morse.

By contrast, in Lemay and Crawford, the State failed to show that the declarant’s emotional state—days later or with ambiguous cause—was still directly tied to the prior event. Morse distinguishes those cases and concludes that the critical causal nexus is present here.

4. Interplay with Austin and confrontation rights

A subtle but important doctrinal point: Morse does not overrule or weaken Austin, but it implicitly suggests that:

  • When the State can fit hearsay within a well-established evidence rule such as excited utterance, the need for a separate Austin “good cause” analysis may be less contentious on appeal.
  • At least in practice, meeting a robust hearsay-exception standard may be treated as satisfying, or functionally substituting for, the due-process concerns that Austin seeks to protect.

Nonetheless, best practice for trial courts remains:

  • Explicitly identify hearsay as such;
  • Address whether a formal hearsay exception applies (here, excited utterance); and
  • Make a brief but clear record of “good cause” for relying on hearsay instead of direct confrontation, particularly where the declarant is absent.

C. Harmless Error and the Video Evidence

Morse also challenged:

  • The authentication of the home-security video; and
  • The subsequent admission of the cell-phone video.

The Supreme Court sidestepped these issues on the basis of Eldert’s harmless-error doctrine. The trial court had explicitly found:

[A.B.’s] testimony alone established that defendant engaged in violent and threatening behavior and abuse of complainant, thus violating his conditions.

Given this express finding, any error in admitting the videos—whether in foundation, authentication, or relevance—could not have affected the outcome. To hold otherwise would require the appellate court to reweigh the evidence and speculate that the trial court might have changed its decision absent the videos, contrary to the deferential standard of review explained in Burnett.

The Court therefore treated any potential evidentiary error regarding the videos as harmless and declined to decide those issues.

D. Credibility Determinations

At the heart of the case is a credibility contest:

  • The complainant’s recantation, denying any physical altercation, juxtaposed with her earlier report and injuries; and
  • Morse’s denial of physical contact, set against corroborating testimony from A.B. and physical observations by the police officer.

The trial court found both the complainant and Morse not credible on the question whether the altercation was nonphysical, and instead credited A.B.’s testimony and the physical evidence described.

Applying Woolbert, the Supreme Court reiterates:

  • It is not the appellate court’s function to choose which witnesses to believe.
  • Once there is supporting evidence—here, the testimony of A.B. and corroborating observations—the trial court’s credibility findings will be upheld.

This result is especially unsurprising in a domestic-violence context, where recantation by victims is a well-documented phenomenon, and where courts often must reconcile conflicting accounts with contemporaneous reports and third-party observations.

E. Probation Revocation and Sentencing Discretion

1. Statutory requirements under 28 V.S.A. § 303(b)

Section 303(b) constrains revocation decisions: a court shall not revoke probation and order confinement unless it finds that:

  • Confinement is necessary to protect the community from further criminal activity by the probationer; or
  • Non-revocation would unduly depreciate the seriousness of the violation; or
  • Other statutory grounds (e.g., need for institutional treatment) are present.

In Morse, the trial court’s decision rested on two specific statutory bases:

  • § 303(b)(1): Confinement was necessary to protect the complainant and the community from further criminal activity by Morse.
  • § 303(b)(3): Allowing Morse to remain on probation after such a violation would unduly depreciate the seriousness of the violation.

2. The trial court’s reasoning

The trial judge explicitly acknowledged mitigating or favorable factors:

  • Morse’s community supports; and
  • His completion of courses while incarcerated.

However, the court concluded that:

  • These positive factors did not overcome the risk that conditions of probation were insufficient to protect the complainant from further harm; and
  • In light of the underlying domestic-violence convictions and the new physical altercation soon after being placed on probation, non-revocation would undermine the seriousness with which such violations must be treated.

The Supreme Court found this reasoning sufficiently grounded in § 303(b) and rejected the argument that the trial court was obligated to expressly analyze each possible alternative sanction under § 304 on the record. The Court characterizes the defendant’s argument as, in essence, a disagreement with the trial court’s weighing of factors rather than a showing of legal or discretionary abuse.

V. Complex Concepts Simplified

A. “Preponderance of the Evidence” in Probation Revocation

In a criminal trial, guilt must be proved “beyond a reasonable doubt.” In contrast, in a probation-revocation proceeding the State need only show a violation by a preponderance of the evidence—meaning it is more likely than not that the violation occurred (often described as just over 50% certainty).

This lower standard reflects the fact that revocation is not a new criminal conviction but a decision whether to withdraw a conditional liberty previously granted.

B. Plain Error

Plain error is a safety valve allowing appellate courts to correct unobjected-to errors that are:

  • Obvious under current law;
  • Serious, striking at the heart of constitutional protections or the fairness of the proceeding; and
  • Likely to have affected the outcome or the integrity of the process.

If defense counsel fails to object at trial, the appellate court will almost never grant relief unless these demanding conditions are met. In Morse, the key failure for the defendant was that the alleged constitutional error occurred in an area where Vermont law is still unsettled, so it could not be “obvious” as required for plain error.

C. Excited Utterance

An “excited utterance” is a statement made:

  • About a startling event (e.g., an assault); and
  • While the speaker is still under the stress or excitement caused by that event.

The law assumes that a person in such a state has not had time or composure to fabricate a story, making the statement more reliable. Key indicators include crying, hyperventilating, difficulty forming sentences, and behavior consistent with shock or acute distress.

D. Hearsay and Confrontation in Probation Hearings

“Hearsay” is an out-of-court statement offered to prove the truth of what it asserts. In criminal trials, hearsay is generally inadmissible unless a specific exception applies, and the defendant also enjoys strong confrontation rights under the Sixth Amendment and Vermont law.

In probation-revocation hearings:

  • The formal Rules of Evidence do not apply, but
  • Due process still requires that unreliable hearsay not be used to revoke a person’s liberty without justification.

Austin attempts to balance these interests by requiring a “good-cause” finding whenever hearsay is used instead of live testimony. In Morse, the Court approves using a well-established hearsay exception (excited utterance) to satisfy reliability concerns, even though the trial court did not separately articulate an Austin analysis.

E. Public Trial Right vs. Courtroom Management

The Sixth Amendment guarantees a public trial in criminal prosecutions, typically understood as:

  • Members of the public (including press) are allowed to observe the proceedings;
  • Closures are permitted only under strict conditions and must be narrowly tailored.

However, trial courts retain authority to:

  • Exclude specific persons (including parties or witnesses) for misbehavior;
  • Sequester witnesses to prevent them from hearing others’ testimony.

Morse falls into this gray area. The court excluded the complainant not to close the courtroom to the public, but to maintain decorum and prevent interference with A.B.’s testimony. Whether that triggers the Sixth Amendment public-trial protections in a probation-revocation context remains unsettled in Vermont; Morse does not resolve it, but applies plain-error logic to deny relief.

VI. Impact and Practical Significance

A. For Defense Counsel

  • Preservation is critical: Objections to courtroom exclusions, hearsay, and revocation rationales should be made contemporaneously. Relying on plain error is especially risky where law is unsettled.
  • In probation cases with recanting witnesses, it is crucial to:
    • Anticipate and challenge the State’s use of excited-utterance and other hearsay exceptions; and
    • Develop alternative factual narratives, rather than assuming the victim’s recantation will carry the day.
  • When challenging evidentiary rulings, counsel should be prepared to show prejudice, not merely legal error, especially under Eldert’s harmless-error framework.

B. For Prosecutors

  • Excited-utterance evidence remains a powerful tool in domestic-violence and probation-revocation contexts, particularly where victims recant at hearing or trial.
  • To maximize reliability and appellate defensibility:
    • Develop a full factual record on the declarant’s emotional state, timing, and observable injuries;
    • Where possible, couple hearsay with corroborating physical or testimonial evidence (e.g., injuries observed by third parties or law enforcement).
  • In revocation sentencing, prosecutors should assist the court in explicitly tying their recommendations to the § 303(b) factors (community protection, seriousness of the violation, etc.).

C. For Trial Judges

  • When admitting hearsay in revocation hearings, it is prudent to:
    • Reference any applicable hearsay exception (e.g., excited utterance); and
    • Briefly note “good cause” and reliability in Austin terms, especially if the declarant is absent.
  • In revocation dispositions, courts should:
    • Expressly identify which § 303(b) grounds support revocation;
    • Mention any mitigating factors they have considered; and
    • Explain concretely why lesser sanctions do not suffice to protect the community or reflect the seriousness of the violation.
  • For courtroom-management decisions (e.g., excluding disruptive persons), a short on-the-record explanation helps insulate those decisions from appellate challenge, particularly where constitutional issues may be raised.

D. Doctrinal Development

Although nonprecedential, Morse likely has persuasive value in several respects:

  • It reinforces that plain error cannot exist in areas where Vermont law is unsettled, promoting stability and encouraging proper preservation of issues.
  • It confirms that Vermont’s excited-utterance doctrine:
    • Remains closely tied to the declarant’s immediate emotional state and the causal link to the event; and
    • Is available and meaningful in probation-revocation hearings despite the relaxed evidentiary rules.
  • It underscores that appellate courts will defer strongly to trial-level credibility determinations and to trial courts’ discretionary revocation decisions when statutory findings are made and supported by the record.

VII. Conclusion

State v. Cody Morse, while an entry order by a three-justice panel and thus not binding precedent, offers a concentrated illustration of Vermont’s approach to several important and recurring probation-revocation issues.

The decision clarifies that:

  • Unpreserved claims about the public nature of probation-revocation hearings will almost never meet the demanding plain-error standard where the underlying constitutional question is unsettled;
  • Excited-utterance hearsay remains admissible and potent in revocation proceedings, provided the State establishes both emotional distress and a close causal nexus to the event; and
  • Trial courts enjoy substantial discretion in credibility assessments and revocation decisions, so long as the statutory criteria of 28 V.S.A. § 303(b) are explicitly and reasonably applied.

Against the backdrop of domestic violence, recantation, and repeated violations soon after a plea agreement, Morse underscores the judiciary’s willingness to revoke probation when community protection and the seriousness of violations demand it. For practitioners, it is a practical roadmap: preserve constitutional claims, carefully build (or attack) the evidentiary foundation for hearsay, and be prepared to engage meaningfully with the statutory revocation framework at disposition.

Case Details

Year: 2025
Court: Supreme Court of Vermont

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