Opinion
CR-10-230
08-18-2011
STATE OF MAINE v. RAYMOND BELLA VANCE
Attorney: ROBERT RUFFNER ROBERT J RUFFNER ATTORNY AT LAW State's Attorney: EVERT FOWLE
ORDER ON DEFENDANT'S MOTION
TO DISMISS
The Court has now had the opportunity to review the parties' filings and exhibits, as well as transcripts. The Defendant is asking the court to dismiss this indictment alleging that the State of Maine filed to provide exculpatory and impeachment information and evidence regarding Krista MacIntyre's relationship with Jason Lunt, and information from a confidential informant, CI-09-49, who testified at hearing on this motion. The defense claims that the State, through the District Attorney's Office, has been on notice regarding problems with the State Fire Marshall's provision of discovery in this and other cases, given Attorney Flick's letter to the DA's Office, and Justice Mills' decision dismissing with prejudice the indictment in State v. Davis, CR-09-49.
The State has responded by acknowledging that information regarding Mr. Lunt was not provided, but that it was already known by the Defendant personally, and further that the information is not exculpatory. It also acknowledges that information regarding CI-09-49 was not provided as completely as it should have been, in that this person was identified by Det. MacMaster by name in one report, but not by Det. Morin, who simply identified the person as an informant. The State asserts that neither the DA's Office nor certain other officers involved in the case knew they were the same person until the defense so advised. Obviously, the defendant could not know absent an order requiring disclosure, or disclosure by the State, or as happened, fortuitous discovery of the connection. The State further argues that CI-09-49's testimony at hearing was inconsistent and unreliable, and denies that any police officer told the CI to engage in any illegal conduct such as to get "high" with the Defendant in order to induce him to confess to the arson. The State claims that the CI's testimony regarding the CI's motivation to cooperate with law enforcement - being on probation, facing almost certain revocation - is not exculpatory in any event. Finally, the State asserts that statements made to the CI in which he adamantly denied involvement, was new information that they had no opportunity to disclose, and simply not worthy of belief.
The Court finds that the District Attorneys Office did not act with any intention to prevent disclosure of exculpatory information, but also finds that evidence regarding Ms. MacIntyre's relationship with Mr. Lunt is arguably exculpatory. Even if the defendant believed that they had a relationship, any evidence corroborating that belief might be relevant and of assistance in developing a defense. Whether that evidence would ultimately admissible is not the question at this stage of the proceedings. The Court also finds that information regarding CI-09-49's motivations and claims of inducements would be subject to automatic disclosure had law enforcement provided that information to the District Attorney's Office. The Court also is confident, that had the DA's Office been aware of this information, it would have been provided by them directly to the defense, at least as to the issue of the informant's probationary status, and the new criminal charges that could have been brought.
The Court declines to make any findings with respect to the claims made by CI-09-49 at hearing, as it will be for the jury to determine that individual's credibility, should the informant be called as a witness by either party.
The Court concludes that the sanction requested - that of dismissal - is not warranted. Unlike the sanction imposed by Justice Mills in State v. Davis, this court has not previously issued orders that were not apparently complied with. In addition, because the issues and problems have been appropriately recognized and brought to the court's attention, it is not too late for either side to develop this information in order to receive a fair trial.
The entry will be: Motion to Dismiss is denied. The Court orders that the parties will confer with the Court on September 7, 2011. At that time the Court will issue an appropriate order, after giving the parties an opportunity to be heard. The Order will require the State to scrupulously ensure that all exculpatory evidence known to any law enforcement agency involved in the case has been disclosed. It will also require the State to report to the court the efforts it has made to "audit" and inventory all reports, exhibits, and recordings, and it will provide for a deadline for the State to provide the information to the defense. If the defense can be ready for trial during the October 2011 trial term, the court will set a date certain for that purpose. Any violation of this order, or the order to be issued on September 7, 2011, may result in dismissal of the charges against the defendant.
SUPERIOR COURT JUSTICE STATE OF MAINE
vs
RAYMOND BELLAVANCE 43 MAIN STREET WINTHROP ME 043 64
SUPERIOR COURT
KENNEBEC, SS.
Docket No AUGSC-CR-2010-00230
DOCKET RECORD
Attorney: ROBERT RUFFNER
ROBERT J RUFFNER ATTORNY AT LAW
State's Attorney: EVERT FOWLE Filing Document: CRIMINAL COMPLAINT
Filing Date: 04/05/2010
Major Case Type: FELONY (CLASS A,B,C)
Charge(s)
+------------------------------------------------------------------------------------------------------+ ¦1 ¦ARSON ¦ ¦ ¦ ¦ ¦ ¦Class A ¦06/03/2009 VASSALBORO ¦ ¦Seq ¦776 17-A 802(1)(A) ¦ ¦ ¦ +-----+---------------------------+---------+----------------------------------------------------------¦ ¦2 ¦ARSON ¦ ¦ ¦ ¦ ¦ ¦Class A ¦06/03/2009 VASSALBORO Charged with INDICTMENT on Supplem ¦ ¦Seq ¦4539 17-A 802 (1) (B) (2) ¦ ¦ ¦ +------------------------------------------------------------------------------------------------------+
Docket Events:
04/05/2010 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 04/05/2010 04/05/2010 Charge(s): 1
WARRANT - ON AFFIDAVIT REQUESTED ON 04/05/2010
04/05/2010 Charge(s): 1
WARRANT - ON AFFIDAVIT ORDERED ON 04/05/2010
CHARLES DOW , JUDGE
04/05/2010 BAIL BOND - $1,000,000.00 SURETY BAIL BOND SET BY COURT ON 04/05/2010
CHARLES DOW , JUDGE
OR 200,000 CASH
04/05/2010 Charge(s): 1
WARRANT - ON AFFIDAVIT ISSUED ON 04/05/2010
04/05/2010 MOTION - MOTION TO IMPOUND FILED BY STATE ON 04/05/2010
MOTION TO IMPOUND AFFIDAVIT AND ARREST WARRANT
04/05/2010 MOTION - MOTION TO IMPOUND GRANTED ON 04/05/2010
NANCY MILLS , JUSTICE
COPY TO PARTIES/COUNSEL
05/14/2010 Charge(s): 1
WARRANT - ON AFFIDAVIT EXECUTED ON 05/14/2010
ARRESTED BY SOUTH CAROLINA STATE POLICE
05/14/2010Charge(s): 1
WARRANT - ON AFFIDAVIT RETURNED ON 05/14/2010
05/21/2010 Charge(s): 1
MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 05/21/2010
05/27/2010 Charge(s): 1
PLEA - NO ANSWER ENTERED BY DEFENDANT ON 05/21/2010
05/27/2010 HEARING - STATUS CONFERENCE SCHEDULED FOR 07/27/2010 at 10:00 a.m. 05/27/2010 Charge(s): 1
MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 05/24/2010
NANCY MILLS , JUSTICE
COPY TO PARTIES/COUNSEL
05/27/2010 Party(S): RAYMOND BELLAVANCE
ATTORNEY - APPOINTED ORDERED ON 05/24/2010
Attorney: JAMES FLICK
05/27/2010 HEARING - STATUS CONFERENCE NOTICE SENT ON 05/27/2010
06/04/2010 MOTION - MOTION TO IMPOUND VACATED ON 05/21/2010
RICHARD MULHERN , JUDGE
06/04/2010 BAIL BOND - $200,000.00 CASH BAIL BOND SET BY COURT ON 05/21/2010
RICHARD MULHERN , JUDGE
OR 1,000,000, BAIL MAY BE REVIEWED
07/02/2010 HEARING - STATUS CONFERENCE NOT HELD ON 07/02/2010
07/02/2010 Charge(s): 1,2
SUPPLEMENTAL FILING - INDICTMENT FILED ON 07/01/2010
07/02/2010 Charge(s): 1,2
HEARING - ARRAIGNMENT SCHEDULED FOR 07/27/2010 at 10:00 a.m.
07/02/2010 Charge(s): 1,2
HEARING - ARRAIGNMENT NOTICE SENT ON 07/01/2010
07/27/2010 Charge(s): 1,2
HEARING - ARRAIGNMENT HELD ON 07/27/2010
NANCY MILLS , JUSTICE
Reporter: JANETTE COOK
Defendant Present in Court
READING WAIVED. DEFENDANT INFORMED OF CHARGES. COPY OF INDICTMENT/INFORMATION GIVEN TO
DEFENDANT. 21 DAYS TO FILE MOTIONS
07/27/2010 Charge(s): 1,2
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 07/27/2010
07/27/2010 Charge(s): 1,2
TRIAL - DOCKET CALL SCHEDULED FOR 09/08/2010 at 10:15 a.m.
07/27/2010 BAIL BOND - $200,000.00 CASH BAIL BOND SET BY COURT ON 07/27/2010
NANCY MILLS , JUSTICE
OR 1,000,000 SURETY, NO CONTACT WITH DONALD CRABTREE AND NOT TO ENTER RESIDENCE, PLACE OF
EMPLOYMENT, PLACE OF EDUCATION, MAY BE REVIEWED.
09/02/2010 MOTION - MOTION TO CHANGE VENUE FILED BY DEFENDANT ON 09/02/2010
Attorney: JAMES FLICK
09/08/2010 HEARING - MOTION TO CHANGE VENUE SCHEDULED FOR 09/09/2010 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
09/20/2010 HEARING - MOTION TO CHANGE VENUE CONTINUED ON 09/09/2010
09/20/2010 HEARING - MOTION TO CHANGE VENUE SCHEDULED FOR 10/12/2010 at 01:00 p.m.
NOTICE TO PARTIES/COUNSEL
09/20/2010 HEARING - MOTION TO CHANGE VENUE NOTICE SENT ON 09/20/2010
10/12/2010 HEARING - MOTION TO CHANGE VENUE CONTINUED ON 10/12/2010 10/12/2010 HEARING - MOTION TO CHANGE VENUE SCHEDULED FOR 11/04/2010 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
10/12/2010 HEARING - MOTION TO CHANGE VENUE NOTICE SENT ON 10/13/2010
10/28/2010 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 10/28/2010 10/28/2010 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 10/28/2010 11/03/2010 MOTION - MOTION TO CONTINUE GRANTED ON 11/02/2010
NANCY MILLS , JUSTICE
COPY TO PARTIES/COUNSEL
11/03/2010 HEARING - MOTION TO CHANGE VENUE CONTINUED ON 11/02/2010
11/03/2010 Charge(s): 1,2
TRIAL - DOCKET CALL CONTINUED ON 09/08/2010
11/03/2010 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 11/02/2010
NANCY MILLS , JUSTICE
COPY TO PARTIES/COUNSEL
11/03/2010 Party(s): RAYMOND BELLAVANCE
ATTORNEY - WITHDRAWN ORDERED ON 11/02/2010
Attorney: JAMES FLICK
11/03/2010 Party(s): RAYMOND BELLAVANCE
ATTORNEY - APPOINTED ORDERED ON 11/02/2010
Attorney: ROBERT RUFFNER
11/03/2010 HEARING - MOTION TO CHANGE VENUE SCHEDULED FOR 11/22/2010 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
11/03/2010 HEARING - MOTION TO CHANGE VENUE NOTICE SENT ON 11/03/2010
12/02/2010 HEARING - MOTION TO CHANGE VENUE HELD ON 11/22/2010
ROBERT E MURRAY JR, JUSTICE
Attorney: ROBERT RUFFNER
DA: ALAN KELLEY
Defendant Present in Court
TAPE#1374, INDEX#5960-7115 AND 1375, INDEX#000-497
12/02/2010 MOTION - MOTION TO CHANGE VENUE UNDER ADVISEMENT ON 11/22/2010
ROBERT E MURRAY JR, JUSTICE
12/02/2010 MOTION - MOTION TO CHANGE VENUE DENIED ON 11/30/2010
ROBERT E MURRAY JR, JUSTICE
COPY TO PARTIES/COUNSEL
12/02/2010 Charge(s): 1,2
TRIAL - DOCKET CALL SCHEDULED FOR 01/04/2011 at 11:00 a.m.
12/30/2010 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 12/30/2010
01/05/2011 MOTION - MOTION TO CONTINUE GRANTED ON 01/03/2011
ROBERT E MURRAY JR, JUSTICE
COPY TO PARTIES/COUNSEL
01/05/2011 Charge(s): 1,2
TRIAL - DOCKET CALL CONTINUED ON 01/04/2011
01/05/2011 Charge(s): 1,2
TRIAL - DOCKET CALL SCHEDULED FOR 03/10/2011 at 08:30 a.m.
03/17/2011 Charge(s): 1,2
TRIAL - DOCKET CALL HELD ON 03/10/2011
ROBERT E MURRAY JR, JUSTICE
Attorney: ROBERT RUFFNER
DA: ALAN KELLEY
Defendant Present in Court
03/17/2011 MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 03/10/2011
03/17/2011 HEARING - MOTION TO DISMISS SCHEDULED FOR 03/25/2011 at 08:30 a.m.
ROBERT E MURRAY JR, JUSTICE
NOTICE TO PARTIES/COUNSEL
03/17/2011 HEARING - MOTION TO DISMISS NOTICE SENT ON 03/17/2011
03/17/2011 Charge(s): 1,2
TRIAL - DOCKET CALL SCHEDULED FOR 09/07/2011 at 01:00 p.m.
03/22/2011 HEARING - MOTION TO DISMISS CONTINUED ON 03/22/2011
PARTIES MET IN CHAMBERS AND JUDGE ORDERED HEARING CONTINUED TO MID APRIL
03/22/2011 Charge(s): 1,2
HEARING - MOTION TO DISMISS SCHEDULED FOR 04/22/2011 at 01:00 p.m.
ROBERT E MURRAY JR, JUSTICE
NOTICE TO PARTIES/COUNSEL
03/22/2011 Charge(s): 1,2
HEARING - MOTION TO DISMISS NOTICE SENT ON 03/22/2011
03/29/2011 Charge(s): 1,2
OTHER FILING - OTHER DOCUMENT FILED ON 03/29/2011
DA: ALAN KELLEY
LETTER TO ROBERT RUFFNER REGARDING ADDITIONAL GROUNDS FOR MOTION TO DISMISS
04/14/2011 Charge(s): 1,2
MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 04/14/2011
CR_200
ADDENDUM TO MOTION TO DISMISS
04/19/2011 MOTION - MOTION TO CONTINUE FILED BY STATE ON 04/15/2011
04/19/2011 OTHER FILING - OTHER DOCUMENT FILED ON 04/15/2011
STATE'S MEMORANDUM IN OPPOSITION TO THE MOTION TO DISMISS
04/21/2011 MOTION - MOTION TO CONTINUE GRANTED ON 04/21/2011
COPY TO PARTIES/COUNSEL
04/21/2011 Charge(s): 1,2
HEARING - MOTION TO DISMISS CONTINUED ON 04/21/2011
04/27/2011 HEARING - MOTION TO DISMISS SCHEDULED FOR 05/05/2011 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
04/27/2011 HEARING - MOTION TO DISMISS NOTICE SENT ON 04/27/2011
05/25/2011 BRIEF - PETITIONERS BRIEF FILED ON 05/24/2011
Attorney: ROBERT RUFFNER
BRIEF ON DEFENDANT'S MOTION TO DISMISS
05/31/2011 OTHER FILING - TRANSCRIPT FILED ON 05/31/2011
Reporter: JANETTE COOK
SEALED TRANSCRIPT
05/31/2011 OTHER FILING - OTHER DOCUMENT FILED ON 05/31/2011
DA: ALAN KELLEY
STATE'S MEMORANDUM OF ARGUMENT ON THE MOTION TO DISMISS
06/13/2011 HEARING - MOTION TO DISMISS HELD ON 05/05/2011
M MICHAELA MURPHY , JUSTICE
Attorney: ROBERT RUFFNER
DA: ALAN KELLEY Reporter: JANETTE COOK
Defendant Present in Court
06/13/2011 Charge(s): 1,2
MOTION - MOTION TO DISMISS UNDER ADVISEMENT ON 05/05/2011
M MICHAELA MURPHY , JUSTICE
08/17/2011 HEARING - OTHER HEARING SCHEDULED FOR 09/06/2011 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
08/17/2011 HEARING - OTHER HEARING NOTICE SENT ON 08/17/2011
08/22/2011 ORDER - COURT ORDER FILED ON 08/18/2011
M MICHAELA MURPHY , JUSTICE
MOTION TO DISMISS IS DENIED: THE COURT ORDERS THAT THE PARTIES WILL CONFER WITH THE COURT
ON 9/7/11. AT THAT TIME THE COURT WILL ISSUE AN APPROPRIATE ORDER, AFTER GIVING THE
PARTIES AN OPPORTUNITY TO BE HEARD. THE ORDER WILL REQUIRE THE STATE TO SCRUPULOUSLY
ENSURE THAT ALL EXCULPATORY EVIDENCE KNOWN TO ANY LAW ENFORCEMENT AGENCY INVOLVED IN THE
CASE HAS BEEN DISCLOSED. IT WILL ALSO REQUIRE THE STATE TO REPORT TO THE COURT THE EFFORTS
IT HAS MADE TO "AUDIT" AND INVENTORY ALL REPORTS, EXHIBITS
A TRUE COPY
ATTEST:
______
Clerk