2012 VT 1


State v. Voog
(2010-369)
 
2012 VT 1
 
[Filed 06-Jan-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2012 VT 1

 

No. 2010-369

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Bennington
  Unit,


 


Criminal Division


 


 


Matthew E. Voog


June Term, 2011


 


 


 


 


David
  Suntag, J.


 

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.
 
 
¶ 1.            
REIBER, C.J.   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.  
¶ 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 demonstrate that the property was
illegally seized.  In State v. Crannell,
171 Vt. 623, 768 A.2d 1260 (2000) (mem.), we declined
to address the issue of whether the criminal court could order the return of
lawfully seized property because in that case “the State concede[d] that the
[criminal] court ha[d] jurisdiction over appellant’s motion under its ‘inherent
powers.’ ”  Id. at 624, 768 A.2d at
1262.  Defendant argues that the trial court erred in failing to consider
his motion because it has “inherent authority to order the return of his
property.”
¶ 11.         Defendant’s
argument draws from federal law.  In interpreting Rule 41, we have relied
on federal decisions interpreting the analogous federal rule since “Vermont’s
rule is based heavily on a previous version of the federal rule.”  State v. Wetherbee, 2004 VT 101, ¶
8, 177 Vt. 274, 866 A.2d 527 (citing Reporter’s Notes, V.R.Cr.P.
41(e)).  Prior to a 1989 amendment, the federal companion statute
was nearly identical in form to the Vermont provision: “A person aggrieved by
an unlawful search and seizure may move the district court . . . for the
return of the property on the ground that he is entitled to lawful possession
of the property which was illegally seized.”  F.R.Cr.P.
41(e) (emphases added).*  Federal
courts generally interpreted the pre-1989 rule to allow for recovery of legally
seized property despite the fact that its explicit language provided only for
the return of “unlawfully” seized property.  The basis for this
construction was that “[t]he Court’s equitable powers confer on it the
jurisdiction as well as the duty to return [legally seized, non-forfeited
evidence] to its owner once the need for it has ceased.”  United States v. Farese, No. 80
Cr. 63 (MJL), 1987 WL 28830, at *1 (S.D.N.Y. Dec. 15, 1987) (mem.) (citing Sovereign
News Co. v. United States, 690 F.2d 569 (6th Cir.), cert. denied, 464 U.S.
814 (1982); Wilson, 540 F.2d at 1103-04; United States v. Totaro, 468 F. Supp. 1045, 1048 (D. Md. 1979)). 
Although for different reasons, we agree with defendant that the criminal
division had authority to adjudicate his claim for return of property.
¶ 12.         The
court’s authority in this case stems from its jurisdiction over the property at
issue.  The record reveals that defendant’s property was lawfully taken
following execution of a search warrant.  Therefore, the criminal court
obtained “primary jurisdiction” over the seized property.  United
States v. Wright, 610 F.2d 930, 938 (D.C. Cir. 1979); see State v.
Aldrich, 122 Vt. 416, 424, 175 A.2d 803, 808 (1961) (explaining that trial
court has constructive jurisdiction over property seized as evidence).
 The criminal proceeding itself was an in personam
action that did not invoke the court’s in rem
jurisdiction over the property.  See State v. Terry,
159 Vt. 531, 533, 621 A.2d 1285, 1286 (1993).  Defendant’s motion
for return of property was, however, separate from the
in personam criminal action because it came after the
criminal proceedings against him were completed.  See Wetherbee,
2004 VT 101, ¶ 8.  Thus, the motion instituted a different claim in
the nature of a “civil equitable proceeding.”  State
v. Kornell, 169 Vt. 637, 638, 741 A.2d 290, 291
(1999) (mem.).  Independent of the in personam action, this new claim invoked the court’s in rem jurisdiction over the property because, similar to a
state forfeiture action, defendant sought to settle the rights to the property.
 See State v. Terry, 159 Vt. at 533, 621
A.2d at 1286 (explaining that criminal proceeding is in personam
and forfeiture is an in rem action). 
¶ 13.         In United States v. $2,542
in U.S. Currency, 754 F. Supp. 378, 382-83 (D. Vt. 1990), the federal
district court, interpreting Vermont Rule of Criminal Procedure 41, held that
the defendant’s motion in state court for return of property was a quasi in rem action that precluded the federal court from
considering a complaint for civil forfeiture for the same property.  The
court explained:
The seizure of property by law
enforcement officials pursuant to court-ordered warrant may precede criminal
process against any person—indeed, the owner of the
property may never even be brought into court.  The court thereby obtains
jurisdiction over the property absent in personam
jurisdiction over any person.
Id. at 382. 
We agree.  When a motion for return of property is made before a criminal
case has begun or is completed it is independent of the criminal action, but
the criminal court has quasi in rem jurisdiction over
property seized in the criminal investigation and may settle the rights to that
property as between the State and defendant.  See Avery v. Bender,
124 Vt. 309, 313, 204 A.2d 314, 317 (1964) (defining a quasi in rem action as one that “affects only the interest of
particular persons in specific property”).
¶ 14.         Although
civil remedies are also available to defendant, this “does not necessarily
discharge the criminal court’s duties nor disturb its jurisdiction.”  Kornell, 169 Vt. at 638, 741 A.2d at 291; see Wilson,
540 F.2d at 1104 (explaining that existence of civil remedies to recover
property “neither discharges the district court’s duties nor disturbs its
jurisdiction”).  Here, given the trial court’s existing familiarity with
defendant’s case, it would be most efficient for that court to consider
defendant’s motion.  See United States v. Ortega, 450 F. Supp. 211,
212 (S.D.N.Y. 1978) (concluding that district court’s jurisdiction over
return-of-property motion filed following defendant’s guilty plea was
“ancillary to jurisdiction over the criminal proceeding” and judicial economy
favored having judge from criminal proceeding decide motion for return of
property).
¶ 15.         We
reverse and remand for consideration of whether defendant is entitled to return
of his lawfully seized property.  On remand, the court should consider
whether “the government has a continuing [legitimate] interest in the
property.”  Sovereign News Co., 690 F.2d at 577
(quotation and citation omitted).  
¶ 16.         Finally,
we address defendant’s motion to supplement his brief with pro se
filings.  In a supplemental brief, defendant argues that we should “vacate
the conviction in this matter” because the affidavit of probable cause had a
“defective notarization.”  According to the jurat,
the affidavit of probable cause was sworn to on May 7, 2009.  However, the
events recounted in the affidavit transpired on May 8, 2009, one day
later.  Defendant contends that as the affidavit was “produced and
notarized the day prior to the alleged incident occurring,” and the “[p]ersonal knowledge and/or belief could not have been
attested prior to an event being alleged.”  However, defendant failed to
raise this clerical error argument below or on appeal in his principal
brief.  
¶ 17.         While
Rule of Appellate Procedure 28(i) permits a party to
supplement its brief with authority for arguments already made in its original
brief, it does not allow a party to graft new arguments onto old.  See
Reporter’s Notes 1985 Amendment, V.R.A.P. 28 (Rule 28(i)
“does not provide an opportunity for additional argument”); Bigelow v. Dep’t
of Taxes, 163 Vt. 33, 37-38, 652 A.2d 985, 988 (1994) (treating issue not
raised in principal brief as waived); Gallipo
v. City of Rutland, 2005 VT 83, ¶ 52, 178 Vt. 244, 882 A.2d 1177
(issues raised for first time in responsive brief “not adequately
preserved”).  Therefore, this claim was not adequately preserved for our
review.
           
Affirmed as to denial of motions to strike, reversed and remanded on
question of whether defendant is entitled to his lawfully seized property.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





* The federal rule was
amended to provide that “a person whose property has been lawfully
seized may seek return of property when aggrieved by the government’s continued
possession of it.”  F.R.Cr.P. 41(e) (Advisory
Committee Notes to the 1989 amendments) (emphasis added).  The amendment
reflected that “courts have recognized that once the government no longer has a
need to use evidence, it should be returned.”  Id. (citing United
States v. Wilson, 540 F.2d 1100 (D.C. Cir. 1976)).  As Vermont’s rule
has not tracked these language changes, we look to federal cases construing the
pre-1989 version to aid our analysis.



