Opinion
CR-20-04562
01-03-2022
STATE OF MAINE, v. WAYNE DIFFIN, DEFENDANT,
ORDER
ROLAND A. COLE, JUSTICE
Before the Court is the Defendant, Wayne Diffin's ("Diffin") Motion for Clarification and for Reconsideration. For the reasons set forth herein, the Defendant's Motion for Reconsideration is DENIED. In addition to its denial, the Court offers a number of additional clarifications in an attempt to resolve any remaining ambiguities among the parties.
FACTUAL BACKGROUND
The factual background of this case is more fully set forth in this Court's prior order dated October 27th, 2021. The relevant facts which underlie this specific motion are briefly restated here for context.
This case arises out of an alleged assault which occurred on May 9th, 2020. On that night, the victim alleges that Diffin sexually and physically assaulted her, and threatened her with a firearm. Approximately forty eight hours after the assault, the victim visited the emergency room at Southern Maine Healthcare where she was examined by medical professionals who conducted a forensic sexual assault examination. While at the hospital, the victim reported her alleged assault to the Windham Police Department who initiated an investigation. As part of this investigation, the Police Department collected a urine sample from the victim as well as a sexual assault kit for testing. These two items are at the center of this controversy.
After interviewing Diffin, the Windham Police Department submitted their investigative report to the Cumberland County District Attorney's ("DA") Office for review. A Cumberland County grand jury, directed by Oxford County Assistant District Attorney ("ADA") Alexandra Winter, returned a five count indictment of Diffin on October 9th, 2020. ADA Winter was presiding over the grand jury because the Cumberland County DA's Office had referred the case to the Oxford County DA's office. This was done, as noted by the State in their response to the Defendant's Motion to Dismiss, because at the time of the alleged incident Diffin was a Cumberland County employee-conflicting the Cumberland County DA's Office out of the case.
On May 29th, 2021, before the referral to ADA Winter was made, Cumberland County ADA Katie Akers reviewed the case and made a decision not to proceed with charges against Diffin. ADA Akers then notified the Windham Police Department of her decision not to charge and, pursuant to that decision, the Windham Police Department destroyed the sexual assault kit they collected from the victim and sent an email to the state crime lab letting them know there was no need to test the urine sample.
Presumably, the decision not to charge was made prior to the discovery of the conflict and the resulting referral.
In initial discovery, Diffin, through counsel, received a chain of custody referencing the sexual assault kit and its destruction, but nothing regarding the urine sample. Later, the State produced a report from the crime lab which indicated that the urine sample had not been tested and intimated that it may have been destroyed. Based on this disclosure, and the destruction of the sexual assault kit, Diffin moved to dismiss the five count indictment alleging that the destruction of both the urine sample and the sexual assault kit constituted a violation of Diffin's due process rights.
One day after Diffin moved for dismissal, ADA Winter reported that the urine sample had actually been preserved, not destroyed, but had yet to be tested. To the Court's knowledge, the urine sample still has not been tested by the crime lab.
On October 27th, 2021, this Court issued an order denying Diffin's Motion to Dismiss, holding that Diffin's claims as to the located urine sample were now moot and denying Diffin's arguments with respect to the sexual assault kit. In that Order, the Court noted that the State had failed to comply with the Court's oral September 9th Order requesting that they submit the chain of custody for the urine sample to the Court. Immediately following the order, the State did so.
On November 2nd, 2021, Diffin filed a Motion for Clarification and Reconsideration. The State did not file a response to the instant Motion and the Court now renders this decision.
STANDARD OF REVIEW
"Motions for reconsideration of an order shall not be filed unless required to bring to the court's attention an error, omission, or new material that could not previously have been presented." M.R. Civ. P. 7(b)(5). Rule 7(b)(5) is intended to deter disappointed litigants from seeking "to reargue points that were or could have been presented to the court on the underlying motion." Shaw v. Shaw, 2003 ME 153, ¶ 8, 839 A.2d 714. The Rule gives the court "more leeway" when responding to motions that are frequently brought to relitigate fully presented and decided issues. Ten Voters of City of Biddeford v. City of Biddeford, 2003 ME 59, ¶ 11, 822 A.2d 1196.
DISCUSSION
In his Motion, Diffin invites the Court to reconsider its factual conclusion that the sexual assault kit "contained generally inculpatory evidence" at the time it was destroyed. Next, he asks the Court to clarify its order with regard to the urine sample chain of custody and testing. Each of Diffin's requests are addressed in turn below.
I. Reconsideration
Diffin's first request is that the Court reconsider its conclusion that the sexual assault kit contained generally inculpatory evidence at the time of its destruction. Diffin asserts that the Court improperly conflated the results of the sexual assault forensic examination of the victim with the results of an analysis of the sexual assault kit. This matters, according to Diffin, because the Court's denial of his Motion to Dismiss rested largely on its finding that the kit contained no "apparent exculpatory value" at the time of destruction.
At the outset, the Court acknowledges that it did conflate the two separate and distinct processes. As Diffin points out in his Motion, the physical exam of the victim is what led to the medical conclusions that she had "a laceration to her genitals and bruising to her cervix," not the sexual assault kit. See Order on Defendant's Motion to Dismiss, 6, Oct. 27, 2021. The sexual assault kit itself is physical evidence, collected from a victim, "designed to gather and preserve physical evidence following a rape allegation including DNA, semen, clothing and blood." (Def.'s Mot. Recons. 2.)
This distinction between the two was confirmed orally by the State at hearing on September 9th, 2021.
As is clear now, the sexual assault kit itself was never tested prior to its destruction. The Court admits its factual error, but regardless, finds that the analysis of whether Diffin's Due Process rights were violated remains unchanged. Under the current test utilized in Maine for determining such a violation, they were not.
The Court pauses to reflect on the Defendant's prior argument that the Supreme Court derived test adopted by the Law Court in State v. Cote for determining whether destruction of evidence constitutes a due process violation is too focused on deterrence of official misconduct. 2015 ME 78 ¶ 15, 118 A.3d 805. While the Court today doubles down on its previous denial of the Defendant's Motion, it notes further that Justice Connor's concurrence in State v. Wai Chan, 2020 ME 91, ¶ 21, 236 A.3d 471, may signal an opportunity for future litigation under the Due Process provisions of Maine's Constitution. In this Court's mind, a test which focuses more on fairness to the Defendant rather than on deterrence of official misconduct may indeed be warranted. See Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U. Law. Rev. 241 (2008); compare Cote, 2015 ME 78, ¶ 15, 118 A.3d 805; with State v. Morales, 657 A.2d 585, 593 (Conn. 1995) ("a trial court must decide each case depending on its own facts, assess the materiality of the unpreserved evidence and the degree of prejudice to the accused, and formulate a remedy that vindicates his or her rights.")
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. "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.
Here, as noted in the Court's previous order, the central question is whether the sexual assault kit itself contained apparently exculpatory evidence at the time of destruction. It is undisputed that the contents of the sexual assault kit could not be obtained by other means, and although disagreed with by the Defendant, he does not challenge the Court's prior finding that the State did not act in bad faith in destroying it. Accordingly, based on the corrected factual record, the Court reexamines its analysis of Diffin's Due Process claims regarding the Sexual Assault Kit's destruction.
Even though the kit was never tested, the Court still finds no merit in the Defendant's repeated assertions that the Sexual Assault Kit held apparent exculpatory value at the time of its destruction. This is true in spite of his repeated assertions that the kit "could have contained semen from another male" or "could have showed" evidence that the sexual contact with the Defendant was consensual. While it is certainly possible that the kit had the potential to produce such evidence, the kit itself did not contain any "clearly visible . . . obvious ... or manifest" exculpatory evidence when it was destroyed. Apparent, Merriam Webster Dictionary, (11th ed. 2020).
In the Court's prior order, it based its holding - in part - on the improper assumption that the kit contained generally inculpatory evidence. However, this finding only bolstered the Court's initial conclusion. It did not define it. Nullifying this factual conclusion does not change the ultimate outcome, but instead removes a point of emphasis used by this Court in reaching it. Accordingly, the Court declines the Defendant's Motion for Reconsideration of the Court's order denying his Motion to Dismiss.
II. Clarifications
Along with his Motion asking this Court to reconsider its ruling, the Defendant also seeks clarification of this Court's prior orders regarding the production of the chain of custody of the urine sample and the sample's testing. Acknowledging that some ambiguity may exist in the record over the Court's prior orders, the Court seeks to resolve it now.
First, the Court notes the Defendant's frustration with the discovery material provided by the State regarding the chain of custody of the urine sample. However, the Court sees no issue with what was provided. If the Defendant finds that the discovery provided is inadequate, he may move this Court for additional discovery pursuant to M.R.U. Crim. P. 16(d)(2).
The Court handles any remaining ambiguities through its orders below. At this time, the Court does not believe it appropriate to order that the State obtain and provide a comparative sample from the alleged victim.
The Court hereby orders as follows:
1. If the urine sample from the alleged victim has not been tested as of the date of this order, the State and the lab where the sample is held will test the sample and provide results to the Defendant within ninety (90) days.
2. Upon testing of the sample, a portion of the victim's urine sample will be preserved for independent testing by the Defendant. This follows the Court's oral order on September 9th, 2021, ordering the same.