Opinion
CUMCD-CR-2022-02188
12-04-2023
STATE OF MAINE v. DAMION BUTTERFIELD, Defendant.
ORDER ON MOTION FOR DISCOVERY SANCTIONS
MaryGay Kennedy, Justice
Before the Court is Defendant Damion Butterfield's Motion for Discovery Sanctions. Mr. Butterfield moves for sanctions against the State for the State's discovery disclosure on August 14, 2023, which he contends was untimely under Rule 16 of the Maine Rules of Unified Criminal Procedure. The August 2023 discovery consists of data extracted from Mr. Butterfield, Annabelle Hartnett, and Thomas MacDonald's mobile devices, filtered by the Portland Police Department to exclude data beyond the scope of the search warrants for each of the devices ("the Cellphone Data"). For the following reasons, the Court finds that the State has violated its discovery obligations and imposes a sanction as discussed below.
I. Background
Hearing was held on the pending motion on December 1, 2023. After some initial argument, the Court allowed Mr. Butterfield's counsel to present testimony relating to the motion. Defense counsel called Detective Daniel Townsend, whose testimony is summarized below.
Mr. Butterfield was not present in the courtroom during the hearing, having been removed from the courtroom at the undersigned's request due to his highly inappropriate and disruptive conduct. Counsel represented to the Court that Mr. Butterfield, after meeting with counsel, desired to waive his right to be present for the duration of the hearing that day.
The Portland Police Department seized Mr. Butterfield, Ms. Hartnett, and Mr. MacDonald's mobile devices pursuant to search warrants in late April or early May 2022. Mr. Butterfield and Mr. MacDonald's mobile devices were sent to an expert at the Gorham Police Department to extract the data stored on the devices. Ms. Hartnett's mobile device was sent to the United States Secret Service in Boston, Massachusetts. The extracted data from Mr. MacDonald's mobile device was received by the Portland Police Department in May 2022, followed by the data from Ms. Hartnett's device in early June 2022, and finally the data from Mr. Butterfield's device around July 2022.
The extraction reports received by the Portland Police Department from the Gorham Police Department and the United States Secret Service contained data that was beyond the scope of the search warrant. Detective Townsend explained that, with the use of a software program, he filtered that data to the scope of the search warrant. The filtered data is the Cellphone Data that was eventually provided to defense counsel on August 14, 2023. It is unclear when, exactly the filtering process was completed for each device's initial extraction report.
After filtering the raw extracted data, Detective Townsend reviewed the Cellphone Data to create reports on the inculpatory and exculpatory information contained on each device. Detective Townsend candidly testified that although he endeavored to be thorough, it was possible that the Cellphone Data contained additional exculpatory information not mentioned in his reports.
Detective Townsend's report on Mr. MacDonald's device was finalized on May 23, 2022, and provided to defense counsel on August 16, 2022. His report on Mr. Butterfield's device was finalized on September 11, 2022, and provided to defense counsel on October 14, 2022. Finally, Detective Townsend's report on Ms. Hartnett's device was finalized on October 12, 2022, but not received by defense counsel until January 10, 2023. The existence of the Cellphone Data files, referred to as DT81B, DT146B, and DT154B, was noted in Detective Townsend's reports, but the Cellphone Data itself was not provided to defense counsel contemporaneously with the reports.
At a meeting that Detective Townsend referred to as "reconciliation," the State identified the Cellphone Data as an item that was "outstanding," in that the Office of the Attorney General ("OAG") had not yet received the files from the Portland Police Department. The State represented that it is their practice to hold a reconciliation meeting roughly six months in advance of trial to identify any outstanding discovery.
Detective Townsend testified that he had neglected to provide the Cellphone Data to the OAG because he did not receive a specific request for it until the reconciliation meeting. This case was the first homicide case he had worked on with these Assistant Attorneys General in which he was responsible for reviewing cellphone data. He testified that, in retrospect, he believed he had not clearly communicated to the OAG that he had the Cellphone Data available for review. As a result, the Cellphone Data was not provided to defense counsel until August 14, 2023, although the Portland Police Department had possessed the data in its filtered form since May 2022 for Mr. MacDonald's device, no later than September 2022 for Mr. Butterfield's device, and no later than October 2022 for Ms. Hartnett's device.
II. Discussion
Rule 16(a)(4) initially requires the State only to disclose the existence of electronically stored information. Upon request, the State must provide the electronically stored material within a reasonable time or notify the defendant that the material will be provided as soon as it can reasonably be obtained by the State or that the State objects to the request. M.R.U. Crim. P. 16(c)(2).
At hearing the State disputed whether defense counsel had made a proper request for the Cellphone Data, which the Court agrees was not subject to automatic discovery. Mr. Butterfield's counsel sent a comprehensive request for discovery on July 28, 2022, which included a request for copies of any and all electronically stored information. The State argued that this request predated Detective Townsend's reports on two of the devices, and that defense counsel never made a specific request for the files referenced in the reports after receiving the reports. This argument is unavailing because the report on one of the mobile devices existed at the time of the request, even if it had not yet been received by the OAG, and the State has a continuing duty to disclose discovery material as it comes within its possession or control. See M.R.U. Crim. P. 16(c)(2).
There is apparently no dispute that the Cellphone Data was within the constructive possession of the State under Rule 16(a)(1) the entire time it was located at the Portland Police Department even though the OAG had not received it, and the Court so finds.
The Court concludes that the State violated its discovery obligations by failing to promptly provide the Cellphone Data to Mr. Butterfield. The Court also notes, as it did at hearing, that the State's practice of holding a reconciliation meeting within six months of trial warrants revisiting considering the growing volume of electronically stored discovery in criminal cases. Defense counsel's point that a few months is not always adequate time to review electronically stored discovery, which may be difficult to interpret as well as voluminous, is well taken.
Although argument at hearing focused on the Cellphone Data, it is certainly arguable that the State's disclosures of Detective Townsend's reports on Mr. Butterfield and Ms. Hartnett's phones were also late.
After finding a discovery violation, the Court must determine an appropriate sanction. Rule 16(e) broadly authorizes the Court to impose the following sanctions: "[R]equiring 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 charges with or without prejudice." The Law Court has offered the following guidance on the imposition of sanctions:
The demands on prosecutors to comply with the requirements of Brady, Giglio, and the rules of criminal procedure are extensive. Mistakes, although one hopes they are rare, are inevitable, and sanctions for such mistakes should be tailored to the individual circumstances of each case, with a focus on fairness and justice.State v. Reed-Hansen, 2019 ME 58, ¶ 10, 207 A.3d 191. Inadvertence on the State's part may be relevant to the choice of sanction, as may carelessness. See id. ¶ 18. Dismissal and suppression of key evidence are "extreme" sanctions. See id. ¶ 17; State v. Sargent, 656 A.2dll96,1199 (Me. 1995).
At hearing, Mr. Butterfield's counsel requested that the Court either exclude the testimony of Ms. Hartnett and Mr. MacDonald or dismiss the case as a sanction for the discovery violation. Mr. Butterfield's requested sanctions are extreme and disproportionate. A meaningful sanction is, however, warranted.
Defense counsel has raised State v. Page, 2023 ME 73, ___ A.3d ___. In Page, the Law Court upheld the trial court's (Androscoggin County, Stewart, J.) discovery sanction, which prevented the State from using late-disclosed discovery in its case-in-chief, while still allowing the State to use that evidence to the extent it directly rebutted evidence presented or arguments made by the defendant. Id. ¶¶ 8, 13-17; see also State v. Poulin, 2016 ME 110, ¶¶ 27-29, 144 A.3d 574 (upholding trial court's order excluding late-disclosed GPS data from the State's case-in-chief but permitting its use by the State for impeachment purposes).
As the defendant did in Page, Mr. Butterfield has expressed a desire to move forward with the scheduled trial despite the inadequate time to review the Cellphone Data. And as the trial court concluded in Page, this Court concludes that an order prohibiting the State from using the Cellphone Data in its case-in-chief while allowing the State to use evidence from the Cellphone Data in rebuttal if Mr. Butterfield chooses to introduce any of the Cellphone Data, is a fair and measured approach that respects Mr. Butterfield's desire to proceed to trial. The candor and lack of bad faith on the part of the Assistant Attorneys General and the detectives at the Portland Police Department demonstrated at hearing, as well as the fact that this violation was the result of a miscommunication and honest mistake unlikely to be repeated rather than systemic carelessness, satisfies the Court that a more punitive sanction is unnecessary.
III. Conclusion
In conclusion, the Court finds that the State violated its discovery obligations by failing to promptly provide the Cellphone Data. As a sanction, the State will be prohibited from using the Cellphone Data in its case-in-chief.
The Court orders as follows:
Defendant Damion Butterfield's Motion for Discovery Sanctions is GRANTED as follows: The State is prohibited from using in its case-in-chief any of the discovery produced to Mr. Butterfield on August 14, 2023 ("the Cellphone Data"), and any reports or summaries derived from the Cellphone Data authored by the Portland Police Department or others on behalf of the State. If Mr. Butterfield chooses to introduce any evidence from the Cellphone Data or related reports and summaries, the State is permitted to offer additional evidence from the Cellphone Data to rebut, explain, or complete the evidence presented by Mr. Butterfield.
The clerk is instructed to incorporate this Order by reference on the docket pursuant to M.R.U. Crim. P. 53(a).