Opinion
Civil Action CR-20-04562
10-27-2021
STATE OF MAINE, v. WAYNE DIFFIN, DEFENDANT,
ORDER ON DEFENDANT'S MOTION TO DISMISS
Roland A. Cole, Justice, Maine Superior Court
Before the Court is Defendant Wayne Diffin's ("Diffin") Motion to Dismiss the five count indictment against him. For the reasons set forth herein, the Defendant's Motion to Dismiss is Denied.
FACTUAL BACKGROUND
On October 9th, 2020 a five count indictment was returned by a Cumberland County grand jury directed by Oxford County Assistant District Attorney ("ADA") Alexandra Winter.The five counts are: (1) Gross Sexual Assault charged under 17-A M.R.S. § 253(1)(A); (2) Aggravated Assault charged under 17-A M.R.S. § 208-D(1)(D); (3) Domestic Violence Criminal Threatening with a Dangerous Weapon charged under 17-A M.R.S. § 209-A(1)(A); (4) Domestic Violence Assault charged under 17-A M.R.S. § 207(A)(1)(A); and (5) Criminal Restraint charged under 17-A M.R.S. § 302(1)(B)(1).
Cumberland County District Attorney's Office was the first to review the case against Diffin. Ultimately, that - Office elected not to pursue charges against Diffin, but was also conflicted out as Mr. Diffin is a Cumberland County employee. At the request of Cumberland County District Attorney Jonathan Sahrbeck, the case was transferred to the Oxford County District Attorney's Office for a charging review. Ultimately, Oxford County Assistant District Attorney Alexandra Winter decided that she would take the case to a grand jury.
The following facts regarding the incident that lead to the indictment are taken from the parties' statements of fact submitted as part of the Defendant's Motion to Dismiss and the State's reply. The five count indictment against Mr. Diffin arises from an alleged incident that occurred on May 9th, 2020. (State's Rep. Mot. Dismiss 1.) The alleged victim reported that after meeting Mr. Diffin on Facebook in early May, the two of them engaged in consensual sex on May 6th, 2020. (State's Rep. Mot. Dismiss 1.) Three nights later, on May 9th, she again visited Mr. Diffin and this time reported that any sexual relations between them were not consensual. (State's Rep. Mot. Dismiss 1.) She alleges that on three separate occasions that night, Mr. Diffin strangled her. (State's Rep. Mot. Dismiss 2.) She also reports that he forced her to perform oral sex on him, forcefully penetrated her anally with his fingers, and forcefully penetrated her vagina with his penis. (State's Rep. Mot. Dismiss 2.)
While this was occurring, the Defendant allegedly kept a loaded handgun on his nightstand within view of the victim. (State's Rep. Mot. Dismiss 2.) She alleges that Mr. Diffin loaded and unloaded it at least once in a threatening manner. (State's Rep. Mot. Dismiss 2.) The morning after the alleged assault, the victim was able to escape while the Defendant slept. (Slate's Rep. Mot. Dismiss 2.)
On May 11th, 2020, the victim went to the emergency room at Southern Maine Healthcare where she was examined by medical professionals and a sexual assault forensic examination was conducted, (State's Rep, Mot. Dismiss 2.) While at the hospital, the victim reported the incident to the Windham Police Department and they initiated an investigation. (State's Rep. Mot. Dismiss 2.) As part of this investigation, the Police Department collected a urine sample from the alleged victim as well as a sexual assault kit. (Mot. Dismiss 2.)
After interviewing the suspect, the Windham Police Department submitted their investigative report to the Cumberland County District Attorney's ("DA") Office. (State's Rep. Mot. Dismiss 3.) As discussed, supra n.2, that office declined to prosecute the case. (State's Rep, Mot, Dismiss 3.)
The Windham Police Department was notified of the Cumberland County prosecutor's decision and on June 1st, 2020, they gave instructions to the lab not to test the urine sample, (Mot. Dismiss 5.) Specifically, the officer told the inquiring chemist that the urine sample "was from the "victim" who was suspected of having significant drugs and alcohol in her system. The DA's office is not prosecuting the case so it does not need to be tested anymore." (Mot. Dismiss 5.) The chemist marked the sample as a "no test" and noted that the lab would store it for six months, at which time it would be destroyed, (Mot. Dismiss 5.) Also based on the Cumberland County ADA's email, the sexual assault kit collected by the Windham Police Department was destroyed on June 16th, 2020. (Mot. Dismiss 3.)
Initial discovery that was provided to the Defense only referenced the chain of custody of the sexual assault kit. (Mot. Dismiss 4.) hater, the State produced a report from the crime lab which contained a certificate of drug analysis for the urine sample. (Mot. Dismiss 4.) That certificate said: "NO EXAM PER OFFICER GALLANT VIA EMAIL". (Mot. Dismiss 4.) Based on this disclosure, and the destruction of the sexual assault kit, the Defendant moved to dismiss the indictment alleging that such destruction of both pieces of evidence were a violation of Mr. Diffin's due process rights.
On the day after the Defendant moved to dismiss the case, the State, via ADA Winter, reported that the urine test had actually been preserved and not destroyed. (Mot. Dismiss 4-5.) After the State reported that the urine sample was still in tact, it filed its reply to the Defendant's Motion to Dismiss alleging that any argument as to the urine sample's destruction is moot and responding substantively to the Defendant's argument for dismissal based on the destruction of the sexual assault kit. (State's Rep. Mot. Dismiss 6.)
A hearing on all pending motions was held on September 9th, 2021. At hearing, the Defense represented that they had requested further discovery from the State regarding the urine sample, yet had received none. Specifically, the Defense had requested that a portion of the urine sample be preserved for independent testing and that the prosecution be responsible for production of all requested information. The Court declined to issue such an order but reminded the State that they are required to fulfill their discovery obligations which include, in this case, preservation of part of the urine sample for independent testing.
At the September 9th hearing, the Court did order the State to submit, within thirty days, a document containing the chain of custody of the urine sample. Now more than thirty days removed from this hearing, no chain of custody has been submitted to the Court. Against this backdrop, the Court now addresses Diffin's Motion to Dismiss.
DISCUSSION
The Defendant's Motion to Dismiss the five count indictment against Diffin centers upon two distinct claims. First, that the destruction of the alleged victim's urine sample was done in violation of Diffin's right to a fair trial because the urine test was apparently exculpatory at the time of destruction, or the destruction was done in bad faith. Second, that the destruction of the sexual assault kit also violated Diffin's due process rights because the kit was apparently exculpatory at the time of destruction, or the destruction was done in bad faith.
I. Urine Sample
First, the Defendant argues that the destruction of the urine sample by the crime lab was done in violation of Mr. Diffin's constitutional right to a fair trial. In supplemental discovery, the State reported that the alleged victim's urine sample had been destroyed. However, after calling the crime lab, ADA Winter reported that the sample had actually been preserved and that it was now being sent for testing which could take up to two months.
Since the sample is still in existence, the Defendant's claim that the destruction of the sample was violative of his due process rights is moot. Therefore, the court denies Diffin's Motion to Dismiss on this basis. Notably, once the State complies with the Court's September 9th Order, and files the chain of custody for the urine sample, the Defendant may file a new pleading based on the content of that evidence or may use that evidence to attack the credibility of the urine sample at trial.
II. Sexual Assault Kit
Second, the Defendant argues that the destruction of the sexual assault kit by the Windham Police Department on June 16th, 2020, was done in violation of Diffin's due process right to a fair trial. He first claims that the kit was apparently exculpatory at the time of destruction, or if not, that the destruction was done in bad faith. Alternatively, he claims that the destruction, even if done in good faith, violates his fundamental right to a fair trial. It is stipulated that the kit was destroyed in June of 2020.
A. Was the sexual assault kit apparently exculpatory?
To determine whether the State's failure to preserve evidence violated a defendant's right to a fair trial, the trial court is required to conduct a bifurcated analysis. State v. Cote, 2015 ME 78 ¶ 15, 118 A.3d 805. First, the court must determine whether the evidence possessed "an exculpatory value that was apparent before the evidence was destroyed." Id. If so, then the defendant must show only that the evidence was "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id.
In the instant case, the central issue is whether the sexual assault kit contained apparent exculpatory value at the time of its destruction. It is clear that the defendant could not have obtained comparable evidence by other reasonably available means.
Exculpatory evidence is "evidence tending to establish a criminal defendant's innocence." Black's Law Dictionary (11th ed. 2019). Evidence is exculpatory when it "may make the difference between conviction and acquittal had it been disclosed and used effectively." United States v. Bagley, 473 U.S. 667, 676 (1985).
In the instant case, the Defendant contends that the sexual assault kit contained apparent exculpatory value at the time of destruction because it "could have contained semen from another male" or "could have showed" evidence that the sexual contact with the Defendant was consensual. (Mot. Dismiss 9.)
The State responds by saying that any evidence contained within the sexual assault kit at the time of its destruction was actually inculpatory. The report produced after initial testing on the kit stated that the victim had a laceration to her genitals and bruising to her cervix. The State alleges that these facts tend to inculpate the Defendant because they refute his claims that the sex was consensual.
The Defendant fails to refute the State's contentions and does not assert any exculpatory value that the kit contained upon its return to the police station and before destruction. Here, although the Defendant raises multiple ways in which the sexual assault kit could potentially have been exculpatory, their Motion to Dismiss and subsequent filings fail to raise any apparent exculpatory value that the sexual assault kit contained at the time of its destruction.
On June 12th, 2020 when the sexual assault kit was returned to the Windham Police Department after testing which produced generally inculpatory evidence, it contained no apparent exculpatory value. Additionally, in the four days between its return to the Windham Police Department and its destruction, no apparent exculpatory value of the kit arose. Accordingly, absent a showing of bad faith by the Defendant, his right to a fair trial was not violated.
B. Was the Sexual Assault Kit Destroyed in Bad Faith?
"If, however, the exculpatory value of the evidence was not apparent at the time of its loss or disappearance, the defendant cannot establish a constitutional deprivation without proof that the State also acted in bad faith in failing to preserve the evidence." State v. Cote, 2015 ME 78 ¶ 15, 118 A.3d 805. The destruction of evidence may be done in bad faith where the State intends to conceal exculpatory evidence or purposefully avoid discovery obligations. State v. Wai Chan, 2020 ME 91 ¶ 21, 236 A.3d 471.
The question of bad faith is a fact-specific inquiry focusing on the reasons behind action or inaction leading to the claimed due process violation. Wai Chan, 2020 ME 91, ¶ 20, 136 A.3d 471. See, e.g, State v. Cruthirds, 2014 ME 86 ¶ 32, 96 A.3d 80(affirming a finding of no bad faith where police destroyed a sexual assault victim's clothing, given that the defendant had been positively identified by an eyewitness and "nothing beyond bare speculation pointed to an alternative suspect" when the clothing was destroyed); State v. St. Louis, 2008 ME 101, ¶ 7, 951 A.2d 80(affirming a finding of no bad faith "despite the State's serious oversight" in allowing an insurance company to destroy a vehicle involved in an accident.)
In the instant case, there are no facts indicating that the State acted in bad faith when it destroyed the sexual assault kit. The Defendant maintains that a Windham Police Officer "intentionally destroyed the sexual assault kit. . . after being told by an attorney for the State that the case was not being prosecuted." This statement is true in a literal sense, and it was no doubt the Officer's intention to destroy the kit after receiving the Prosecutor's message. However, this intent, supported by a credible message from an Assistant District Attorney declining to prosecute the case, is not the intent that Cote or its progeny contemplates. As the Law Court has noted, the intent to be punished in a bad faith analysis is the intent to destroy evidence because of its exculpatory value or to avoid discovery obligations. See Wai Chan, 2020 ME 91 ¶ 21, 236 A.3d 471.
The Defense contends that no such intent is needed and relies on dicta in Wai Chan and Cole to support their contention that something less than this malintent can support a finding of bad faith. Specifically, Diffin suggests, the State's reckless disregard-to the extent it can be characterized as such-for the potentially exculpatory value of the sexual assault kit is enough. The Law Court however, has never held that such reckless disregard constitutes bad faith and making such a finding would be inappropriate here. See Wai Chan, 2020 ME 91 n.12, 136 A.3d 471.
The Officer destroyed the sexual assault kit because he justifiably believed that the case was not being prosecuted due to the representation of an Assistant District Attorney. The Officer did not destroy the kit because it tended to establish the Defendant's innocence or because the State was weary of providing the kit to the Defense. Although the kit's destruction was negligent at best, and indicative of a disappointing level of carelessness, that is not the inquiry this court is charged with. Absent any sort of express intent to destroy exculpatory evidence, the Defendant cannot show bad faith on the part of the State.
C. Does the destruction of the Sexual Assault Kit, even if done in good faith, make a trial fundamentally unfair?
Defendant lastly argues that even if the destruction of the sexual assault kit was not done in bad faith, allowing such evidence to be used at trial would be fundamentally unfair. In support, he relies on dicta in Arizona v. Youngblood, 488 U.S. 51, 60-61 (1988), and a number of cases from other states to make the argument that a state's constitution may offer greater protection to a Defendant than the Supreme Court derived test in Cote. Specifically, Diffin suggests that this Court take a step that Justice Connors previewed when she wrote separately in State v. Wai Chan to note the considerable criticism that the Cote test, adopted from Supreme Court decisions in Youngblood and California v. Trombetta, 467 U.S. 479 (1984), has received. 2020 ME 91, ¶ 31, 236 A.3d 47(Connors, J. concurring).
In her concurrence, Justice Connors expressed frustration that the current test for determining a due process violation based on the destruction of evidence, focuses too much on the goal of deterring officer misconduct and fails to adequately consider fairness to the defendant. Wai Chan, 2020 ME 91 ¶ 31, A.3d 471. She suggested that in the future, there may be an opportunity for the Law Court to develop an alternative test that grants the court more discretion in determining whether a constitutional violation has occurred if the Slate fails to fulfill its duty to preserve evidence. For example, In Commonwealth v. Olszewski, the Massachusetts high Court held that "when potentially exculpatory evidence is lost or destroyed, the deciding Court must "weigh the culpability of the [State], the materiality of the evidence and the potential prejudice to the defendant."" 519 N.E.2d 587 (Mass. 1988).
The Law Court, in Wai Chan, declined to adopt any alternative standard. Because Cote and Wai Chan remain controlling law, the Court declines to conduct any alternative analysis.
CONCLUSION
In conclusion, because the urine sample has been produced by the State, the Court need not determine whether the destruction of the urine sample violated the Defendant's due process rights. However, once the State produces the chain of custody of the urine sample, the Court could see further motions from the Defendant. The destruction of the sexual assault kit by the Windham Police Department also did not violate Diffin's due process rights. The exculpatory value of the kit was not apparent at the time of destruction and the kit was not destroyed in bad faith.