State of Maine v. Davis

Maine Superior

State of Maine v. Davis

Superior Court of Maine·Decided February 17, 2011·No. KENcr-09-914·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CRIMINAL ACTION DOCKET NO. CR-09.,914 IV/ ~" II':N

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STATE OF MAINE

v. ORDER ON DEFENDANT'S MOTION TO DISMISS

MANLEY DAVIS,

Defendant

BACKGROUND

The defendant seeks a dismissal of the indictment dated 11/18/09 based on the

State's failure to provide discovery. The defendant is alleged to have committed arson

and conspiracy to commit arson on or about 1/1/08 and arson and conspiracy to

commit arson on or about 9/16/05.

The court has, finally, obtained transcripts and listened to tapes of the various

hearings and docket calls in this case. The defendant's motions for discovery were

heard on April 8, 2010. The motion to disclose inducements was granted without

objection. The motion for access to evidence was granted without objection. The motion

to provide enclosures referred to in the report of the Office of State Fire Marshall was

granted without objection. The motion for discovery was granted without objection

regarding the requests in paragraphs 1-3 and 5-12. The request in paragraph 4 was

withdrawn but the State agreed to provide whether any money had been paid as part of

any inducements.

On 6/10/10, docket call for the June 2010 trial list was held. Defense counsel had

not received discovery. The State's attorney was checking to determine whether the

discovery requested existed. The presiding justice inquired whether the case could

proceed on the June trial list and both attorneys agreed the case could not proceed. The

justice said the case would be continued to the July trial list and said to tell the Fire

Marshall's office to "get moving."

On 7/ 8 / 10, the State's response to the motion for discovery was discussed on the

record with the court and attorneys. The material requested in paragraph 1 had been

provided and the material requested in paragraph 2 did not exist. The material

requested in paragraph 5 had not been provided. Defense counsel indicated he needed

the tapes as well as transcriptions. The court inquired where the tapes were located.

The State's attorney stated the tapes were at the Fire Marshall's Office and had been

requested by the State "a week ago." Defense counsel asked if this could be looked into

and if the State could "let [defense counsel] know ASAP." Defense counsel also had not

received the material requested in paragraphs 8, 10, and 12.

The defendant's motion to dismiss was filed on 9/7/10. Hearing was scheduled

for 9/9/10 but the State's attorney familiar with the case was unavailable. The

defendant did not object to rescheduling the motion but the parties agreed that, for the

purposes of the motion to dismiss, the dispositive date for the State's providing

discovery would be 9/9/10. (Tf. of 11/3/10 at 14.) At the rescheduled hearing on

11/3/10, defense counsel stated that he still had not been given some of the tapes and

other discovery. Some of the CDs produced were inaudible. (Tr. of 11/3/10 at 14,16

17.) The State admitted that some of the material listed in paragraphs c, d, and e of the

motion to dismiss had been provided after the 9/9/10 date. (Mot. to Dismiss at 2; Tr. of

11/3/10 at 24-25.)

Absent the failure to provide discovery and the resulting motion to dismiss, this

case could have been tried in June, July, September, and November 2010 and January

2011.

CONCLUSIONS

A defendant's "access to materials to be used against him at trial and in

possession of the state is governed by Rule 16(a), M.R.Crim.P." State v. Buzynski, 330

A.2d 422,429 (Me. 1974). "The basic premise behind Rule 16 is that discovery can have

the same beneficial effects in criminal cases that it has in civil actions and should,

therefore, be permitted. It can eliminate concealment and surprise; thereby destroying

the 'sporting' aspects of a criminal trial. It can assist in the fair and expeditious

disposition of cases prior to trial. It can eliminate any imbalance which exists between

the parties as to the means and ability to secure evidence. Finally, it can assure a fuller

presentation of the evidence to the trier of fact." Glassman, Maine Practice: Rules of

Criminal Procedure Annotated, § 16.1 (1967); see also 1 Cluchey & Seitzinger, Maine

Criminal Practice § 16.1 at IV-86 (Gardner ed. 1995). The Law Court has determined

that the rule "should be liberally interpreted and applied." State v. Cloutier, 302 A.2d

84, 87 (Me. 1973).

Rule 16(d) allows the following action for the State's failure to provide discovery:

"requiring the attorney for the state to comply, granting the defendant additional time

or a continuance, relieving the defendant from making a disclosure required by Rule

16A, prohibiting the attorney for the state from introducing specified evidence and

dismissing the charges with prejudice." M.R. Crim. P. 16(d). The court has the

authori ty to decide whether any sanction for a Rule 16 violation is required and, if so,

which sanction should be applied. State v. Landry, 459 A.2d 175, 177 (Me. 1983). "The

primary test is whether the ruling was in furtherance of justice." Id.; 1 Cluchey &

Seitzinger, Maine Criminal Practice § 16.6 at IV-99 to IV-100 (Gardner ed. 1995) ("The

basic test for the appropriateness of a sanction will be whether it is in furtherance of

justice and so long as the trial justice has not abused his or her discretion the choice of

sanction will not be set aside on appeal.")

In order to establish that the trial justice abused her discretion, the defendant

must show that "he was, in fact, prejudiced by the discovery violation despite the

court's effort to nullify or minimize its consequences, and that the prejudice rose to the

level of depriving him of a fair trial." State v. Sargent, 656 A.2d 1196, 1199 (Me. 1995).

Prejudice may rise to the level of a deprivation if the defendant is "[s]o unfairly

surprised or prejudiced that the admission of the [evidence] constitute[s] an abuse of

discretion." State v. Sapiel, 432 A.2d 1262, 1268 (Me. 1981).

This is not the typical case in which evidence is not produced in a timely way

and then is used at trial. See ~ State v. Graham, 2010 ME 60, 'IT 10, 998 A.2d 339, 341

(no abuse of discretion when defendant had the chance to introduce the exculpatory

portions of a report and the defendant had access to the same information elsewhere);

Sargent, 656 A.2d at 1199 (no abuse of discretion when the State provided lineup report

after mistrial but twenty months before second trial); Landry, 459 A.2d at 177-78 (no

abuse of discretion in allowing use of letter for impeachment when defendant was

aware of letter before testifying); Sapiel, 432 A.2d at 1268 (no abuse of discretion in

admitting photographs of stolen property already discovered by the defendant); State v.

Rich, 395 A.2d 1123, 1130-31 (Me. 1978) (no abuse of discretion allowing witnesses to

testify when defense counsel was aware of their probable appearances seven days prior

to trial); State v. LeClair, 382 A.2d 30, 33 (Me. 1978) (no abuse of discretion allowing

photographs with officer's notes of bullet holes when defendant had access to bullet

holes and prosecutor showed photographs to defense counsel prior to trial); Buzynski,

330 A.2d at 429 (defendant knew test results existed, did not ask for them, and made no

showing of prejudice to his defense by not having test results); Cloutier, 302 A.2d at 89

(denial of defendanfs request for release of drug not abuse of discretion). This case

involves evidence that existed at or significantly before the time of indictment and

simply has not been provided,! in spite of many court proceedings in which the State

was strongly encouraged to do so? Although the State has offered explanations for the

failure to provide discovery, the State has offered no valid justification for that failure.

(Tr. of 11/3/10 at 31-32.)

Every goal to be achieved by providing discovery in a criminal case has been

thwarted in this case. See Glassman, Maine Practice: Rules of Criminal Procedure

Annotated § 16.1 (1967). Justice will not be furthered by condoning neglect with regard

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