State of Maine v. Calvillo

• Court: Superior Court of Maine
• Decided: July 25, 2008
• Docket: PENcr-07-736
• Status: Unpublished

Opinion

STATE OF MAINE

Penobscot, ss. FILED & ENTERED SUPERIOR r.()IJRT STATE OF MAINE JUL 2 5 2008 v. PENOBSCOT COU NTY Docket No. PEN-CR-07-736 SANDRA CALVILLO

Defendant

ORDER ON DEFENDANT'S MOTION FOR SANCTIONS

Defendant's Motion for Discovery Sanctions dated October 12, 2007 came before

the court for hearing May 20,2007, with counsel for both parties present and presenting

evidence in the form of testimony and exhibits.

Based on the entire record, the court enters the following findings and denies the

motion.

Sometime in late 2006 or early 2007 the BPD had arranged for a motion-

activated computerized video system to be installed in the booking area of the BPD

headquarters, including the area where Intoxilizer tests of blood alcohol level are

administered.

As designed, the video system monitors the area continuously, recording into

short-term temporary computer memory, referred to as RAM (Random Access

Memory) during the hearing. When it senses movement in the area, it starts recording

onto a hard disk drive, and includes in that recording what was captured in RAM

during the 10 minutes immediately before movement was sensed. It stops recording in

hard drive mode and reverts to RAM when movement ceases to be detected. The hard drive has a design capacity of 90 days, meaning that recordings made 90 days

previously are recorded over and no longer available.

The net effect is that, at least it was designed, the system was supposed to make a

recording of movement and sound in the booking and Intoxilizer area, and retain it for

90 days, during which interval the recording could be moved onto a CD or another

storage medium to be provided in discovery or for another purpose.

In the spring of 2007, the BPD realized that the system was not working as

designed. Initially, it was unclear what the exact problem was and also unclear as to

what extent the system was in fact working. As of May 2007, the BPD's understanding

was that the system was" going to sleep" at times, meaning that it was not recording

onto the hard drive as designed. In late June, the BPD came to understand that the

system was recording over what was stored on the hard drive after considerably less

than 90 days - 24 days to be precise.

Defendant was arrested June 13, 2007 for operating under the influence and

transported to the Bangor Police Department (BPD) headquarters in Bangor for a test of

her blood alcohol level via an Intoxilizer machine. She retained attorney Foote in her

defense, and he on her behalf sent a letter dated June 28, 2007 to Ronald Gastia, chief of

the BPD, asking that certain materials, including videotapes, relating to her arrest be

preserved for discovery. Simultaneously, attorney Foote submitted a discovery request

to the State's attorneys requesting discovery of the same material.

In keeping with BPD procedure, the chief transmitted the letter within the

Department to Detective Ellis, who was responsible for retrieving the requested video,

2 via Lt. Reynolds. Although Det. Ellis testified regarding the system, he had no memory

of the letter or any steps he took to comply with attorney Foote's request at the time.

Since that time, however, he has verified that the hard drive contains no record relating

to Ms. Calvillo's arrest.

Because of the" going to sleep" problem and the premature recording-over, the

evidence does not allow for an affirmative finding that any video of the Defendant's

arrest, booking and Intoxilizer test ever was recorded to the hard drive, or, if it was,

how long it remained on the hard drive before being recorded over.

Defendant seeks as a discovery sanction exclusion of the results of the Intoxilizer

test as well as any statements she is alleged to have made during the booking and

Intoxilizer procedures. She introduced as exhibits two previous letters written by

attorney Foote in April and May 2007, making identical requests for preservation of

video as to two of his other clients who were likewise arrested for QUI. She asserts that

the BPD was on notice through those previous letters that the video needed to be

preserved, and that the BPD's failure to take steps to fix the problem or at least to

preserve the recordings the system was making justifies a discovery sanction.

The State opposes any sanction, claiming there is insufficient proof that the

evidence at issue ever existed on the hard drive and, in any event, that any such

evidence has not been shown to have any exculpatory value, and that the State has not

been shown to have acted in bad faith.

The Law Court has recently addressed the propriety of discovery sanctions

against the State based on destruction of evidence. See State v. St. Louis, 2008 ME 101,

3 2008 Me. Lexis 105 (June 24, 2008). In that motor vehicle manslaughter case, the vehicle

alleged to have been operated by the defendant at the time of the crash was destroyed.

Defendant requested a discovery sanction against the State. In upholding the Superior

Court's determination that no discovery sanction was warranted, the Law Court

reiterated the framework it has used previously in the same context:

In this case, the court correctly found, in its several orders and rulings on St. Louis's various motions, that St. Louis failed to show that the vehicle contained evidence of exculpatory value that was apparent before its destruction or that the State acted in bad faith in allowing the vehicle's destruction. See State v. Bilynsky, 2007 ME 107, ~41, 932 A.2d 1169, 1177 (stating that destruction of evidence violates a defendant's due process rights when the evidence possesses exculpatory value apparent before its destruction and the defendant is unable to obtain comparable evidence); State v. Kremen, 2000 ME 117, ~~15, 16, 754 A.2d 964,968-69 (stating that destruction of evidence does not violate a criminal defendant's right to a fair trial unless (1) the evidence had exculpatory value that was apparent before its destruction, (2) the defendant is unable to obtain evidence of comparable value, and (3) the State acted in bad faith); State v. Corson, 572 A.2d 483, 486 (Me. 1990) (providing that good faith of the State is relevant in determining appropriate sanctions for discovery violations). We therefore affirm the court's judgment despite the State's serious oversight in allowing the destruction of the accident vehicle.

State v. St. Louis, 2008 ME 101, ~7, 2008 Me. Lexis 105 at 4.

In the present case, the Defendant has failed to establish that the video in

question had exculpatory value, or that the BPD or the State acted in bad faith. The

parties differ as to what was said during the booking and before the Intoxilizer­

Defendant's memoranda claim she was coerced into taking the test; the State's asserts

she made incriminating statements and denies coercion. No evidence was presented at

the hearing on the issue. Thus, the court cannot make an affirmative finding that any

video would have had exculpatory value.

4 As to the question of bad faith, although the BPD clearly was on notice of some

kind of problem with the video before Defendant's arrest, there is no indication the BPD

failed to take reasonable steps to correct it. Even had there been some lack of diligence

in fixing the problem, that does not translate into bad faith.

As to Defendant's argument that the BPD should have downloaded the contents

of the hard drive frequently in light of the storage issue, the evidence indicates that the

BPD did not learn of the storage problem until late June. Even had there been some

lack of alacrity on the BPD's part in following up on attorney Foote's June 28 letter (and

the evidence does not exclude that possibility), that itself does not translate into bad

faith.

Finally, and perhaps most importantly, the Defendant has not affirmatively

established that the evidence at issue ever existed in a recoverable form. Based on the

evidence, it is at least as possible that no video of the Defendant's booking and test was

ever recorded to the system's hard drive, as it is that the recording was made and later

recorded over.

Sanctions is hereby denied.

Dated July rt 2008 Justice, Superior Court

5 CR-2007-736

DEFENSE COUNSEL

Wayne Foote, Esq. POBOX 1576 Bangor ME 04401

STATE

Gregory Campbell, AssistadtD.A. 97 Hammond St Bangor ME 04401