State v. Silva

2012 ME 120, 56 A.3d 1230, 2012 Me. LEXIS 120
Supreme Judicial Court of Maine·Decided October 23, 2012·Published·Cited by 11 cases

Opinion

GORMAN, J.

[¶ 1] Joseph L. Silva appeals from a judgment of conviction for gross sexual assault (Class A), 17-A M.R.S. § 25S(1)(A) (2011), and two counts of aggravated assault (Class B), 17-A M.R.S. § 208(1)(A), (C) (2011), entered in the trial court (Bro-driek, J.) on a jury verdict. Silva challenges the court’s failure to sanction the State for what he asserts was a discovery violation and the court’s exclusion of his computer expert from testifying at trial. We affirm the judgment.

I. BACKGROUND

[¶ 2] Silva assaulted the victim, whom he had met through a dating website, on November 22, 2009. She reported the assault two days later, and Silva was arrested in early December. The State did not indict Silva on the charges of which he was ultimately convicted until April 6, 2010.1

[¶ 3] In January of 2010, the State provided Silva with automatic discovery pursuant to M.R.Crim. P. 16(a);2 that discov[1232] ery included an emergency room nurse’s report referencing an item of evidence— the underpants the victim had worn at the time of the assault — that was not collected at the hospital or by police when the victim reported the crime.

[¶ 4] It was not until August of 2011, when the prosecutor was preparing for trial, that he realized the item had never been collected or analyzed. The victim had the item in her possession, but had washed the underpants one or more times in the months that had passed since the assault. Otherwise, there was no indication of where the item had been kept since 2009, what state it was in, or who else had access to it in those intervening two years. At the prosecutor’s direction, police obtained the item of clothing.

[¶ 5] On September 12, 2011, the first morning of trial, Silva moved for sanctions against the State pursuant to M.R.Crim. P. 16(d), arguing that the State violated its discovery obligation by failing to provide the underpants or a report about any analysis of it. Silva sought either an opportunity to have the underpants analyzed or a dismissal of the indictment. In a chambers conference, the prosecutor reported to the court that he had informed Silva, who was unrepresented at the time,3 as soon as the underpants came into police custody in August of 2011.4 The court denied Silva’s motion, noting that, given the reference to the item in the nurse’s report provided to Silva more than a year earlier, both attorneys had been remiss in overlooking it. The court declined to continue the matter given the “disgraceful” seventeen-month delay from indictment to trial.

[¶ 6] Just before the start of trial, the parties were also engaged in a discovery dispute regarding Silva’s computer expert. During their investigation, police had obtained and analyzed both Silva’s and the victim’s computer hard drives to determine the content of their online communications. On Silva’s motion, the court ordered the State to provide a copy of the victim’s hard drive to Silva for analysis by Silva’s own expert. Silva’s expert obtained that copy in March of 2011, but did not analyze it then because Silva was unable to pay her fee. After obtaining the copy a second time several days before the trial, the expert did analyze it. Five days before trial, Silva provided the State with a copy of the report his expert generated from that analysis, and three days before trial, Silva filed a designation naming the expert to testify. On the State’s motion, the court excluded Silva’s expert from trial after concluding that Silva failed to provide the State adequate notice. At trial, Silva called the State’s computer expert as a witness, and questioned her extensively regarding the content of both computer drives.

[¶ 7] The jury found Silva guilty of all three counts, and the court entered a judgment on the verdict sentencing Silva to ten years in prison for the gross sexual assault count and seven years in prison for each of the aggravated assault counts, all to be served concurrently. The court also ordered Silva to pay restitution to the victim in the amount of $3192. After the court denied Silva’s motion for a new trial, Silva appealed.

[1233] II. DISCUSSION

[¶ 8] Pursuant to. M.R.Crim. P. 16 and a discovery order in this matter, the State was required to supply to Silva, inter alia, “[a]ny ... tangible objects ... which are material to the preparation of the defense or which the attorney for the state intends to use as evidence in any proceeding” if those items are “within the attorney for the state’s possession or control.” M.R.Crim. P. 16(b)(1), (2)(A). Silva contends that the court erred in declining to sanction the State for withholding information concerning its possession of the victim’s item of clothing until just days before trial, resulting in a deprivation of his due process rights. We afford the trial court substantial deference in overseeing the parties’ discovery, and review its decisions on alleged discovery violations only for an abuse of discretion. State v. Graham, 2010 ME 60, 1Í10, 998 A.2d 839. Only when the defendant can establish that the effect is so significant as to deprive him of a fair trial will we vacate on that basis. State v. Gould, 2012 ME 60, ¶ 24, 43 A.3d 952.

[¶ 9] The court denied Silva’s motion to dismiss the indictment or continue the trial based primarily on the procedural history of the matter. Although the crimes had occurred in November of 2009, the State did not charge Silva until more than four months later, in April of 2010. Silva was arraigned on May 21, 2010, and the court ruled on discovery issues on August 13, 2010. Between September of 2010 and August of 2011, eight docket calls were scheduled-and continued-in the matter. In total, the period from indictment to trial spanned more than seventeen months. Silva himself was responsible for much of the delay in this matter, having moved to continue the matter at least seven times. The court appropriately considered these substantial delays in evaluating Silva’s motion seeking yet another continuance of the trial, and acted well within its discretion in denying Silva’s motion for sanctions.

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State v. Silva, 2012 ME 120, 56 A.3d 1230, 2012 Me. LEXIS 120 (Me. 2012).

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