Opinion
2021-CR-00093
11-17-2021
STATE OF MAINE PLAINTIFF v. STEVEN LATHROP DEFENDANT
ORDER ON DEFENDANT'S MOTION TO DISMISS
The court fashions the motion as one for sanctions per Rule 16(e).
This matter came before the court on October 6, 2021, for a hearing on Defendant's Motion To Dismiss. Present before the Court were Christopher Chu, ADA., for the State of Maine, and the Defendant, represented by Robert Van Horn, Esq.
The Defendant stands charged by Complaint with Operating Under the Influence, Class D, in violation of 29-A M.R.S.A. §241 l(l-A)(A). He was arrested on March 23, 2021, Nine days later, on April 1, 2021, counsel for Defendant, requested Discovery, which was received on April 5, 2021. On April 5th, defense counsel in writing requested that the State preserve and provide any and all audio/video evidence, including that from the intoxilyzer room. The State promptly advised the investigating officer to preserve the same. The officer did not attempt to obtain the intoxilyzer video until June 5 but was not then able to obtain it because the video was deleted after 21 days. During a BMV hearing on the administrative suspension of Defendant's license the officer readily conceded that he did not preserve the video in April when asked. Here, in this case, the State concedes the discovery violation. Based upon this set of circumstances, the Defendant seeks a dismissal of the entirety of the case.
DISCUSSION
Pursuant to Me. R. Crim. P. 16(c), a defendant may request and the State is required to produce videos, inter alia, that are material and relevant to the preparation of the defense. Here the Defendant made a timely request and the State responded in a timely manner. No video was produced because the investigating officer did not act timely, and by the time he did act, the video had been deleted. That video, the court finds, is material and relevant to the preparation of any defense. This is an OUI case where the State relies in part on the breath test result. That result was obtained by a machine placed in front of a defendant who is given specific instructions on how to 1 breath and for how long, and the entire interaction was recorded by video, The video is in many respects the best evidence of the administration of the test. At healing the State conceded the discovery violation.
The issue presented here is what sanction is warranted for such a discovery violation. Rule 16(e) confers upon the court a number of options when the State fails to provide discovery, The list enumerated in the text of the rule is not exhaustive. The court has the authority to decide whether any sanction for a discovery violation is required and, if so, which sanction should be applied. State vs. Landry, 459 A.2d 175 (Me. 1983). Although dismissal of a case may be, under certain circumstances, an appropriate sanction for discovery violation, it is an extreme sanction that should be reserved for extreme cases. State v. Sargent 656 A.2d 1196 (Me. 1995).
It is well settled that destruction of evidence does not violate a criminal defendant's right to a fair trial unless (1) the evidence had exculpatory value that was apparent before its destruction, (2) the defendant is unable to obtain evidence of comparable value, and (3) the State acted in bad faith); State v. Corson, 572 A.2d 483, 486 (Me. 1990) (providing that good faith of the State is relevant in determining appropriate sanctions for discovery violations). Here, the court cannot find that the State acted in bad faith and the court has no idea what information was on the video. The court also cannot find that the State was aware of the video's content and/or that it contained exculpatory evidence. There was a video. The Defendant requested it, and by the time the officer attempted to retrieve it some 2 months after being told to preserve it, it had been automatically deleted. However, there is no basis on this record to find that the State either through its attorney or its officer acted in bad faith. The officer was clearly and significantly less than diligent but there is no evidence that he was malicious. Despite the rather egregious oversight of the officer, dismissal here is not warranted.
However, the State's violation here cannot be understated. The State's obligation to provide discovery of this nature most certainly extends to the officer. The officer had ample notice of the preservation request and failed to act in a timely manner to preserve and provide video evidence that is directly material and relevant to the prosecution and any defense to it. The court cannot overlook the officer's lackluster performance here given the nature of the evidence in question, and a sanction is warranted.
Accordingly the Defendant's Motion For Sanctions is granted and any evidence concerning the interactions and statements between the officer and defendant in the intox room, the breath sample and the results thereof are suppressed.
The Clerk is directed to incorporate this Order by reference into the docket for this case, pursuant to Rule 79(a), Maine Rules of Civil Procedure. 2