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State v. Peter

Supreme Court of Vermont

June 29, 2018

State of Vermont
Emily K. St. Peter

          On Appeal from Superior Court, Thomas A. Zonay, J. (motion to suppress); Cortland Corsones, J. (final judgment) Rutland Unit, Criminal Division

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Carroll, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

          ROBINSON, J.

         ¶ 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, which provides:

(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. ...

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