Opinion
CR-2019-1075
11-14-2019
STATE OF MAINE v. JAMES FULTON, Defendant
ORDER ON MOTION FOR SANCTIONS
Eric J. Walker, Judge
This matter comes before the Court on the Defendant's Motion for Sanctions filed on October 15, 2019. A hearing was held on October 8, 2019 before Justice Roland Cole. The State was represented by Asst. Attorney General Katie Sibley, Esq. and the Defendant was represented by Matthew D. Morgan, Esq., The Defendant was unable to be present for the hearing on October 8, 2019. The court has listened to the 9-minute hearing featuring the testimony of Det. Benjamin Murtiff of the Augusta Police Department and reviewed the various written filings of both parties. Both parties were fully heard.
The Defendant is charged with twelve counts of Aggravated Trafficking in Scheduled Drugs, Class A criminal offenses under 17-A M.R.S. § 1105-A.
It is undisputed that Det. Murtiff made contact with a confidential informant by text asking about a drug trafficker named "Country". In December of 2018, Det. Murtiff sent this informant a picture of the Defendant to see if he could identify him. Det. Murtiff admits that he saved the picture but did not save the contents of the text messages. Det. Murtiff s phone has been damaged and the texts are unable to be recovered from this phone as a result. Also, because of the time lapse, these exact text messages have been lost forever and are not able to be retrieved from the cell phone companies of the informant's phone. Det. Murtiff admits that he didn't understand the need to preserve these text messages.
The Defendant requests the court to find that this loss of information as a discovery violation and impose a sanction of dismissal of the case against him. The court finds this sanction as excessive and not warranted. The court finds that a much more simple solution exists and that is to have the State produce the two informants that were involved in Det. Murtiff s investigation of the Defendant. The State will make these informants available to testify for either the State or the defense at the upcoming motion to suppress currently scheduled for November 21, 2019. These witnesses, along with Det. Murtiff, should be able to explain the nature of any text messages that took place surrounding the sending of this picture of the Defendant. The Suppression Court can then decide what weight to give this testimony in regard to the issue of identification.
Accordingly, the State is to produce the informants as witnesses at the motion to suppress hearing and to disclose their names that day to defense counsel. Additionally, the State is to produce any criminal history that these informants have or information about any pending charges that the informants have. If any agreements or proffers have been executed between the State and the informants, they shall be disclosed as well.
For all of the foregoing reasons, the Defendant's Motion for Sanctions is denied in part and granted in part. The Clerk is directed to incorporate this Order on the docket of the case pursuant to Me. R. Civ. P. 79(a).