Appeal from Superior Court, Thomas A. Zonay, J. (motion to
suppress); Cortland Corsones, J. (final judgment) Rutland
Unit, Criminal Division
Tartter, Deputy State's Attorney, Montpelier, for
Allison N. Fulcher of Martin & Associates, Barre, for
PRESENT: Reiber, C.J., Skoglund, Robinson and Carroll, JJ.,
and Morris, Supr. J. (Ret.), Specially Assigned
1. Defendant Emily St. Peter appeals her conviction on five
counts of cruelty to animals. She argues that the court erred
in declining to suppress evidence about five horses she
voluntarily surrendered during a cruelty
investigation.[*] In particular, defendant contends that
because the humane officer failed to have the horses timely
examined and assessed by a licensed veterinarian within
seventy-two hours of her voluntary surrender of them, as
required by 13 V.S.A. § 354(b)(1), the court should have
excluded any evidence acquired by a humane officer,
veterinarian, or other witness following that surrender. We
conclude, based on our reasoning in State v.
Sheperd, 2017 VT 39, ___Vt.___, 170 A.3d 616, that the
trial court properly declined to grant defendant's
suppression motion, and accordingly affirm.
2. In February 2015, the State charged defendant with several
counts of animal cruelty alleging that she deprived eight
horses of adequate food, water, shelter, or necessary medical
attention. The State alleged that all eight horses showed
signs of malnourishment, malnutrition, and overall neglect of
their needs for the past ten to twelve months.
3. Defendant filed a motion to suppress all evidence that had
been acquired by any law enforcement or humane officer,
veterinarian, or other witness following her voluntary
surrender of the horses identified in counts four through
eight to the humane officer who spearheaded the cruelty
investigation. In her motion, she noted that the humane
officer acknowledged in deposition testimony that the horses
in question were not seen by a "veterinarian licensed to
practice in the State of Vermont" for more than a week
after they were surrendered. See V.S.A. § 354(b)(1).
This delay ran afoul of the requirements of Vermont law,
(1) Voluntary surrender. A humane officer may accept animals
voluntarily surrendered by the owner anytime during the
cruelty investigation. The humane officer shall have a
surrendered animal examined and assessed within 72 hours by a
veterinarian licensed to practice in the State of Vermont.
Id. Defendant argued that the appropriate remedy for
this failure was to suppress all post-surrender evidence
concerning the horses.
4. The trial court denied the motion, reasoning that the
timing requirement in § 354(b)(1) is
"directory" and not "mandatory" because
the Legislature did not set forth a consequence for failing
to comply with the seventy-two-hour evaluation requirement.
The court analogized the situation to that of lost evidence
and concluded that the proper remedy would be to give a jury
instruction that addressed the "lost"
evidence-namely, evidence of the horses' condition within
the required seventy-two-hour window. At trial, the court
instructed the jury that because the humane officer had
failed to ensure that the horses were seen by a veterinarian
within the required time after the surrender, the jury should
presume that the condition of the horses did not change from
the time of surrender to the time of the examination.
5. The jury ultimately convicted, and on appeal, defendant
renews her argument that the trial court should have
suppressed the evidence concerning the five horses that were
voluntarily surrendered. Whether suppression is the proper
remedy for the humane officer's undisputed failure to
timely arrange a veterinary evaluation of the five horses at
issue is a legal question that we review without deference.
State v. Bryant, 2008 VT 39, ¶ 9, 183 Vt. 355,
950 A.2d 467.
6. Although the direct holding of our decision in
Sheperd is not dispositive on this issue, our
reasoning is. 2017 VT 39, ¶¶ 22-27. In
Sheperd, a defendant sought to suppress evidence
concerning animals seized pursuant to a search warrant
because a veterinarian did not accompany the officer
executing the warrant as required by 13 V.S.A. §
354(b)(2). In analyzing the argument, we scrutinized the two
other prongs of 13 V.S.A. § 354(b):
(1) Search and seizure using a search warrant. A humane
officer having probable cause to believe an animal is being
subjected to cruel treatment in violation of this subchapter
may apply for a search warrant pursuant to the Vermont Rules
of Criminal Procedure to authorize the officer to enter the
premises where the animal is kept and seize the animal. The
application and affidavit for the search warrant shall be
reviewed and authorized by an attorney for the State when
sought by an officer other than an enforcement officer
defined in 23 V.S.A. ...