State v. Voog

• Decision Date: 06 January 2012
• Docket Number: No. 10–369.,10–369.
• Citation: 2012 VT 1,45 A.3d 43
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Matthew E. VOOG.

45 A.3d 43
2012 VT 1

STATE of Vermont
v.
Matthew E. VOOG.

No. 10–369.

Supreme Court of Vermont.

Motion for Reargument Denied Jan. 31, 2012.
Jan. 6, 2012.

[45 A.3d 44]

Kate Lamson, Bennington County Deputy State's Attorney and Alexander Burke, Law Clerk, Bennington, for Plaintiff–Appellee.

Allison N. Fulcher of Martin & Associates, Barre, and Matthew E. Voog, Pro Se, Ridgefield, Connecticut, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

REIBER, C.J.

¶ 1. Defendant pled guilty to simple assault and reckless endangerment. He appeals the trial court's denial of his motions to strike surplusage from the information and affidavit of probable cause, and to return property. We affirm in part and reverse and remand in part.

¶ 2. Defendant was originally charged with one count of first-degree aggravated domestic assault under 13 V.S.A. § 1043(a)(2). In November 2009, as part of a global plea agreement which resolved other pending charges, he pled guilty to attempted simple assault under 13 V.S.A. § 1023(a)(3) and reckless endangerment under 13 V.S.A. § 1025. The original information was amended to reflect only these two counts.

¶ 3. Following sentencing, defendant was placed in the custody of the Department of Corrections (DOC). On August 6, 2010, defendant filed a pro se motion petitioning the court to “strike from the court, adjudicative, and incarcerative records, the unsubstantiated and non-adjudicated allegations” that he alleged were in the arrest affidavit and information “to prevent their continued use by [DOC] and other agencies in a substantially prejudicial manner.” Defendant claimed that DOC was improperly using the information and the affidavit of probable cause that supported the first-degree-aggravated-domestic-assault charge to increase his “incarcerative level,” which, in turn, resulted in his transfer to an out-of-state maximum security facility. Defendant's motion requested that the trial court “[b]an the use of these documents and the unsubstantiated allegations contained therein by all agencies” in possession of them.

¶ 4. The trial court denied defendant's motion explaining that it did not have authority over DOC's decisions “regarding level of incarceration.” The court then directed defendant to address his complaints to the Defender General's Prisoners' Rights Office.

[45 A.3d 45]

¶ 5. On August 30, 2010, defendant filed a second pro se motion asking the court to direct the Bennington County State's Attorney and its agents to return any and all property seized during the investigation of defendant. Defendant did not list exactly which property items he was seeking, but argued that the property should be returned because the State no longer had any “legitimate evidentiary purpose” for retaining it as the proceedings were complete. The trial court denied the motion explaining that a motion for return of property under Rule of Criminal Procedure 41(e) was limited to situations where the property was illegally seized by police and defendant had made no such claim here.

¶ 6. Defendant first argues that the trial court erred when it denied his motion to strike surplusage from the information and the affidavit of probable cause. Under Vermont Rule of Criminal Procedure 7(c), the “court on motion of the defendant may strike surplusage from the indictment or information.” This rule permits “the defendant to strike allegations from the indictment or information that are both irrelevant and prejudicial to him.” Reporter's Notes, V.R.Cr.P. 7. We review the trial court's ruling on a motion to strike for abuse of discretion. State v. Cardinal, 155 Vt. 411, 416, 584 A.2d 1152, 1156 (1990).

¶ 7. While defendant contends the court should have struck the “unsubstantiated and non-adjudicated allegations” from various documents, including the affidavit of probable cause, court records, adjudicative records, and incarcerative records, Rule 7(c) provides that the court may strike allegations only from the indictment or information. The rule does not grant the court authority to strike language from other DOC documents, nor does defendant point to any other source of authority for this proposition. Thus, the trial court's denial of defendant's motion on this ground was proper.

¶ 8. As to the information, the State had already amended it to reflect only those charges to which defendant had pled guilty. Count one was amended to read: “Matthew Voog in this Territorial Unit, in the County of Bennington, at Bennington, on or about May 8, 2009 attempted by physical menace to put another in fear of imminent serious bodily injury, in violation of 13 V.S.A. § 1023(a)(3).” Count two was amended to read: “Matthew Voog in this Territorial Unit in the County of Bennington, at Bennington on May 8, 2009 recklessly engaged in conduct which placed another person in danger of death or [serious bodily injury] in violation of 13 V.S.A. § 1025.”

¶ 9. On its face, nothing in the information was irrelevant or surplusage. Thus, the trial court's denial of defendant's motion to strike “surplusage” from the information was appropriately denied.

¶ 10. Defendant next argues that the court erred in denying his motion for return of property. Vermont Rule of Criminal Procedure 41(e) permits “[a] person aggrieved by an unlawful search and seizure [to] move the court ... for the return of the property on the ground that the movant is entitled to lawful possession of the property which was illegally seized.” (Emphases added.) The trial court denied the request as beyond the scope of Rule 41 because defendant did not...