BRATTLEBORO — A Vermont Superior Court judge has ruled there is no probable cause to charge two state troopers with simple assault in connection with firing a bean bag at an out-of-control man, who had smashed windows and caused damaged at a Newfane home last summer, records show.
Judge Katherine A. Hayes said there was a lack of evidence to charge Sgt. Ryan Wood and Trooper Zachary Trocki in the case involving Marshall “Todd” Dean, who eventually fell off a roof after refusing to follow multiple police commands.
“The court is unable to find probable cause for the charge. The affidavit fails to establish that the shooting of the bean bag caused Mr. Dean’s fall and injury,” Judge Hayes wrote.
Hayes said she did find there was reason to file misdemeanor charges of reckless endangerment against the two troopers, who are due for arraignment in court next Tuesday in Brattleboro.
More details about the case began to emerge Wednesday, with the judge finding probable cause on one of two charges based on a 10-page single-spaced affidavit by Detective Sgt. Sam Truex.
Truex outlined the details of the incident that happened on Vermont 30 in Newfane during the early morning hours of June 17, 2022. About five pages are the transcripts of what the two troopers said during police interviews.
State police said it received two E-911 calls from residents on Loop Road indicating somebody was calling for help at about 2:12 in the morning. A homeowner, Russell Buzby, 56, subsequently called to report his home was being destroyed and windows smashed by “Todd Dean” and that “he just lost it.”
A fourth person called a few minutes later, reporting somebody was calling for help.
Wood, 36, and Trocki, 29, who were both off-duty, were called out from home and found Dean on the roof of Buzby’s home, police said. Dean was armed with a sickle-style saw with about a 16-18 inch blade, police said. Dean, according to police body cameras, was asked repeatedly — about 20 times that were caught on the recordings – to drop the saw, but he refused, Truex said.
The homeowner reported he thought Dean had used heroin or cocaine, the sworn affidavit said. Wood, a former drug investigator, said that based on the conduct, he believed it was more likely methamphetamines or bath salts.
Dean was warned a bean bag would be used, but Trocki said the VSP shotgun misfired the first time. Trocki, who said he aimed for a leg, said the bean bag struck Dean on the second shot.
After being hit with the bean bag, Dean went down on his knees and crawled to the edge of the back roof, where he fell out of camera view about 30 to 60 seconds after being hit, police estimate.
While the roof on the front of the house was about 3 or 4 feet above street level, there was a 12 or 15-foot drop on the back side, police said.
He was taken to Brattleboro Memorial Hospital and later transferred to Dartmouth-Hitchcock Medical Center in Lebanon, N.H., with head injuries.
He has since recovered but cooperated only briefly with police as they made multiple attempts to interview him, Truex wrote. Dean said he is “messed up” but can walk and talk. He said he can’t remember anything about the incident or fall, police said.
He was living at Groundworks Collaborative in Brattleboro as recently as late March.
Repeated attempts to reach Attorney General Charity R. Clark by phone, text and email Wednesday for an interview about the judge’s decision were unsuccessful.
Clark’s office distributed a statement late Wednesday afternoon repeating a message from last week:
“Prosecutors are subject to particular rules of professional responsibility that prevent us from commenting at this time,” it said.
Attorney David Sleigh, who represents Wood, said he was pleased with the partial victory. He said his client will fight the second charge.
Sleigh also represented Trooper Robert Zink, who had a simple assault charge dismissed in Bennington by another judge on Tuesday.
He said Clark, who was elected in January, is picking a major fight with state police.
“Attorney General Charity Clark has declared war on the Vermont State Police. Her office has repeatedly and unjustifiably charged Troopers with crimes and now she has attempted to throw the State Police under the bus for her office’s obvious and fundamental failure to adhere to critical prosecutorial responsibilities,” he said.
“In the Zink case, the AG failed to provide vital evidence until the eve of trial. That evidence, nearly contemporaneous reports from the officers involved in executing the lawful arrest of a violent and combative DWI suspect, was available to the prosecution for nearly two years,” Sleigh said.
“It is true that then-Assistant Attorney General Earl Fechter asked the State Police for the reports several years ago and was mistakenly told they were confidential. But any greenhorn lawyer would have known that was not true and, with minimal effort, secured the reports.”
The Vermont Troopers’ Association also came out swinging on Wednesday about the bean bag case – and the Zink case.
“The decision of Judge Hayes in this case highlights the concerns raised by the Vermont Troopers Association last week upon learning our members were going to be charged criminally for what we believe may be a policy violation,” VTA Executive Director Michael O’Neil said.
“Sergeant Wood and Trooper Trocki were lawfully performing their official duties in good faith. Their goal in using a less lethal bean bag round was to bring the situation to a peaceful and safe conclusion. If any question of their actions exists, it is one of Vermont State Police policy and procedures, not criminal conduct,” he said.
“The decision of Attorney General Clark to bring criminal charges in this case is unwarranted and a clear prosecutorial overreach. Attorney General Clark is attempting to criminalize police policies and procedures, while removing the supervision and oversight of the Vermont State Police from Public Safety Commissioner Jennifer Morrison and Vermont State Police Director Col. Matthew Birmingham,” he said.
“The actions of Attorney General Clark are misguided and dangerous for Vermont law enforcement and the citizens of Vermont. We cannot create an environment in our profession that criminalizes human error, good faith mistakes and policy violations by police officers. Our members make split-second life and death decisions every day that have real world implications to public safety,” O’Neil said.
He noted the judge’s ruling came one day after another judge dismissed a simple assault charge against Zink, who was helping to make a lawful arrest in a driving while intoxicated case.
“We feel the charges against Trooper Zink were also unwarranted and an overreach by the Attorney General’s Office. In both of these cases it appears Attorney General Clark’s office has weaponized the criminal justice system against law enforcement,” he said.
“This level of abuse should be concerning to all Vermonters, and we call upon Attorney General Clark to dismiss all charges against Sergeant Wood and Trooper Trocki. We feel strongly this case should be investigated and reviewed by the Vermont State Police Internal Affairs Unit, Commissioner Morrison and the State Police Advisory Commission.”
Clark’s office repeated its claim that state police withheld documents from prosecutors. State police cite the emails from the AGs office to contest that claim.
“It is troubling that discovery documents — which were requested more than once by the Attorney General’s Office, and their existence denied by Vermont State Police — were ultimately produced by Vermont State Police days before trial,” Clark repeated on Wednesday.
Clark and Morrison are conducting separate internal investigations to learn what happened and plan to meet later this week to compare notes.
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