State of Maine v. McMillion

Maine Superior

State of Maine v. McMillion

DecidedSeptember 9, 2003

DocketKENcr-03-175

StatusUnpublished

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State of Maine v. McMillion, (Me. Super. Ct. 2003).

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Opinion

STATE OF MAINE SUPERIOR COURT mee OE CRIMINAL ACTION

KENNEBEC, ss. DOCKET NO. CR-03-175 STATE OF MAINE see Gs Vv. - DECISION ON MOTIONS

MICHAEL J. McMILLION,

Defendant

This matter came before the court on a variety of motions filed by defendant

McMillion concerning pending charges. I. Motion to Dismiss Count II.

The first motion seeks to dismiss count II of the indictment, which charges the defendant with conspiracy to commit aggravated trafficking in scheduled drugs. The basis for the motion is defendant's argument that the count is too vague in that it simply alleges that “a substantial step toward commission of the crime” was taken, without specifying what that step was. However, looking at the indictment as a whole, count III charges illegal importation and count IV charges unlawful possession of scheduled drugs, either of which would constitute a substantial step toward aggravated

trafficking. The defendant was adequately informed of the State’s theory by the entire

indictment. The motion is denied.

II. Motion for Discovery.

Defendant next seeks discovery of various documents, recordings and reports of scientific testing, all of which will be granted without objection. However, the motion

also seeks the disclosure of any promises made to any confidential informants, which

necessarily involves the next motion. III. Motion for Disclosure of Confidential Informant.

The affidavit supporting the request for search warrant is based primarily on information obtained from three confidential informants. The plaintiff seeks to have those informants identified, while the State objects, citing M.R. Evid. 509. Rule 509 establishes a privilege for the State to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation, with two exceptions. The exception argued by the defendant is set forth in Rule 509(c)(2) which allows disclosure if it appears “there is a reasonable probability that an informer may be able to give testimony relevant to any issue ina civil or criminal case to which a public entity is a party.” The defendant alleges that the informants in the present case participated in or were witnesses to events for which the defendant has been indicted and therefore have relevant testimony. However, this is not consistent with the indictment, which alleges that all four counts occurred “on or about February 8, 2003” - the day of the search. Unlike the informant in State v, Devlin, 618 A.2d 203 (Me. 1992), who was an eye witness to the sale of drugs for which the defendant was charged, there is no indication that the informants here were present at or know anything about the particulars of the search which lead to the present charges. Nor has the defendant presented any information to indicate that any of the three informers could give such relevant testimony. The defendant must make “some showing greater than a bare assertion and supported by more than the mere desire to determine the informant’s identity.” State v Chase, 505 A.2d 791, 793 (Me. 1986). There is not enough even to generate an in camera presentation by the State. The motion will be denied.

IV. Motion to Suppress Evidence. The defendant next seeks to have suppressed evidence seized as the result of

execution of a search warrant on a residence in Benton. The primary basis for this

2 motion is the police use of a “no knock” warrant, which allowed the officers to break into the residence unannounced. The defendant also argues that there was insufficient information in the affidavit to support the warrant. The affidavit is based primarily on information received from the confidential sources, all of whom gave information corroborating each other that the owner of the residence was engaged in drug dealing together with three black male suspects staying at the house. Among other information, the informants stated that at least one of the suspects was armed with a Glock handgun and that the suspects were careful to keep their stash of drugs located above a toilet for quick removal of evidence in the event of a search. This information was sufficient to create a reasonable suspicion that if the officers were required to knock and announce themselves before entering the residence, evidence would be destroyed and the officer’s safety would be placed in jeopardy. The defendant also questions the need for a warrant that could be executed in the nighttime, which is moot since the search actually did not occur in the nighttime (6:00 p.m.). Looking at the totality of the circumstances as set forth in the affidavit, there was sufficient reliable information to amply support

the finding of probable cause that drug trafficking was occurring at the residence and

that a “no knock” warrant was justified

Vv. Motion to Suppress Statements.

Finally, the defendant moves to suppress any statements he may have made to law enforcement officials prior to his tape-recorded interview with Det. Lt. Gottardi. The defendant does not seek to suppress statements that he made in the recorded interview he had with Lt. Gottardi in Gottardi’s truck, but has requested that the court listen to that recording to place previous statements — if any - in context.. After the initial entry, Gottardi’s role was to interview everyone who was in the house, while

other officers did the actual searching. There is no indication that the defendant made

3 any statements to anyone other than Gottardi and Gottardi stated that he asked no substantive questions before turning on the tape, so there is some question as to whether there even were any statements which would be the subject of this motion. In the event that there were statements, it would be the State’s burden to prove that these statements were made voluntarily. Although the defendant was caught and returned to the residence when he attempted to flee, there is no evidence that he otherwise was subject to any restraint or coercion. The evidence, including the recording of the subsequent interrogation, is that the officers acted with necessary professionalism. The defendant’s handling was firm, but it fell far short of the type of coercion necessary to

make any statement involuntary. The State has met its burden and the motion will be

denied. For the reasons stated, the entry will be:

(1) Motion to dismiss indictment is DENIED.

(2) Motion for discovery is GRANTED with the exception of the identify of any confidential informant.

(3) Motion to disclose confidential informants is DENIED.

(4) | Motion to suppress evidence is DENIED.

(5) Motion to suppress statements is DENIED.

Dated: September oC , 2003

S. Kirk Studstrup : Justice, Superior Court STATE OF MAINE

vs MICHAEL MCMILLION 38 WESTERN AVENUE WATERVILLE ME 04901

DOB: Attorney:

03/21/1981

LEONARD SHARON

SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC~-CR-2003-00175

DOCKET RECORD

State's Attorney: EVERT FOWLE

SHARON LEARY & DETROY

90 MAIN ST PO BOX 3130

AUBURN ME 04212-3130 RETAINED 04/18/2003

Filing Document: Filing Date:

Charge (s)

1 AGGRAVATED TRAFFICKING OF SCHEDULED DRUGS 1105-A(1) (H)

17-A

2 CRIMINAL CONSPIRACY 151 (1) (B)

3 ILLEGAL IMPORTATION OF SCHEDULED DRUGS

17-A 1118(1)

4 UNLAWFUL POSSESSION OF SCHEDULED DRUG 1107-A(1) (A) (1)

Docket Events:

04/22/2003 FILING DOCUMENT -

TRANSFER -

04/24/2003 Charge(s):

HEARING -

04/24/2003 Charge(s) :

Attorney:

INDICTMENT 04/18/2003

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