State v. Gagne

• Decision Date: 04 April 2017
• Docket Number: Docket: Yor–16–132
• Citation: 159 A.3d 316
• Parties: STATE of Maine v. Nicholas W. GAGNE
• Court: Maine Supreme Court

159 A.3d 316

STATE of Maine

v.Nicholas W. GAGNE

Docket: Yor–16–132

Supreme Judicial Court of Maine.

Argued: February 8, 2017

Decided: April 4, 2017

Valerie A. Randall, Esq. (orally), Fairfield & Associates, P.A., Portland, for appellant Nicholas W. Gagne

Kathryn Loftus Slattery, District Attorney, Anne Marie Pazar, Asst. Dist. Atty., and Thomas R. Miscio, Asst. Dist. Atty. (orally), Prosecutorial District 1, Alfred, for appellee State of Maine

Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

ALEXANDER, J.

[¶ 1] Nicholas W. Gagne appeals from a judgment of conviction for two counts of gross sexual assault (Class A), 17–A M.R.S. § 253(1)(A) (2016), two counts of aggravated assault (Class B), 17–A M.R.S. § 208(1)(C) (2016), two counts of domestic violence assault (Class D), 17–A M.R.S. § 207–A(1)(A) (2016), and one count of domestic violence terrorizing (Class D), 17–A M.R.S. § 210–B(1)(A) (2016), entered by the trial court (York County, O'Neil, J. ) following a seven-day jury trial.

[¶ 2] On appeal Gagne argues that the trial court (1) abused its discretion by denying his motion for sanctions and a continuance based on the State's late disclosure of the victim's medical records; (2) violated the Confrontation Clause when it admitted a recorded interview of the victim, who testified at trial but lacked present memory of details about the crime and what she had said to the interviewing detective; and (3) deprived him of a fair trial by declining to allow him to call two late disclosed witnesses not included on the witness list described to the jury.¹ We affirm the judgment.

I. CASE HISTORY

[¶ 3] Viewing the evidence in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt.² See State v. Morrison , 2016 ME 47, ¶ 2, 135 A.3d 343. Nicholas Gagne and the victim, when they were both about twenty years old, met through a mutual friend in early 2013. They began dating, and soon the victim moved in with Gagne at a Saco home occupied by Gagne, Gagne's parents, and, for part of the time, Gagne's younger, adopted cousin. The victim worked at a supermarket in Scarborough; Gagne was not working due to disability.

[¶ 4] In the summer of 2013, the victim, who has attention deficit and sensory integration issues that make it difficult for her to process information and regulate her emotions, went to Louisiana with her mother for several weeks of treatment. Gagne disapproved of her trip and called her repeatedly while she was away, accusing her of cheating on him and making threats toward her parents and pet, including a threat to kill her father.

[¶ 5] Within a week after the victim returned from Louisiana, she moved in with Gagne again. Although the victim left Gagne repeatedly during their relationship, they remained together through early November 2013. When they were together, Gagne insisted on being with the victim at all times and did not allow her to visit friends or even to use the bathroom by herself. He kept her cell phone from her except when she went to work.

[¶ 6] On the night of November 4, 2013, while the victim was with Gagne, he said he was going to have sex with her, even though she told him that she did not want to have sex with him. He stated that he would rape her and there was nothing she could do about it. When she got up to leave, he pushed her onto the bed in their room. He strangled the victim with his hands and forced her to have sex with him even though she resisted. She moved around, kicked him, and told him to stop, but he penetrated her with his penis in several different ways. He also tried to put a stick in her anus.

[¶ 7] Afterward, the victim fell asleep. She did not have her phone because Gagne had taken it. She awoke in the morning to Gagne strangling her.

[¶ 8] Later that same day, November 5, 2013, the victim told her parents what had happened. The victim's mother took her to the hospital, where she was examined by a doctor and where a nurse completed a sexual assault kit. The victim was also interviewed at the hospital by a police detective who recorded the interview.

[¶ 9] On November 7, 2013, Gagne was charged by complaint with aggravated assault and was arrested. On March 4, 2014, he was charged by indictment with two counts of aggravated assault (Class B), 17–A M.R.S. § 208(1)(C) (2016) ; two counts of gross sexual assault (Class A), 17–A M.R.S. § 253(1)(A) (2016) ; two counts of domestic violence assault (Class D), 17–A M.R.S. § 207–A(1)(A) (2016) ; two counts of domestic violence stalking (Class D), 17–A M.R.S. § 210–C(1)(A) (2016) ; two counts of domestic violence terrorizing (Class D), 17–A M.R.S. § 210–B(1)(A) (2016) ; one count of violating a condition of release (Class C), 15 M.R.S. § 1092(1)(B) (2016) ; and one count of violating a protective order (Class D), 19–A M.R.S. § 4011(1) (2016).

[¶ 10] From March 2014 until October 1, 2015, the case was scheduled for five "docket calls," all of which were continued, at least twice at Gagne's request. On October 1, 2015, the court scheduled jury selection for January 19, 2016, with trial set to begin on January 25, 2016. Three months after this schedule was created, and seven days before the jury was to be selected, Gagne filed a motion in limine, seeking the victim's medical records that he claimed were missing from the discovery materials that the State had provided. On January 20, the court entered an order, after its in-camera review, authorizing the victim's medical providers to disclose the victim's otherwise protected health care information. On that same day, a jury was selected.

[¶ 11] Gagne moved for sanctions based on the State's delay in obtaining and providing the victim's medical records—one of which noted the presence of blood in the victim's vaginal vault. He argued that the State had deprived him of the right to discover exculpatory or impeachment evidence in a timely manner, that all or some of the charges should be dismissed, that all or some of the medical evidence should be excluded, or that the trial should be continued.

[¶ 12] The court held an evidentiary hearing on that motion at which the investigating police detective and the District Attorney's trial manager testified. In its order determining that there had been no discovery violation and therefore denying the motion for sanctions, the court found that the investigating detective obtained a medical release from the victim, and sent that release to Maine Medical Center (MMC) with a request that it provide all medical records concerning the victim. The court also found that the detective sent to the District Attorney's office all of the records that he received from MMC, including records from the emergency department and a two-page checklist indicating that a Sexual Assault Nurse Examiner ("SANE") evaluation had occurred. In addition, the court found that the DA's office had inadvertently failed to send the emergency department records to defense counsel until early January 2016, "when [an assistant district attorney], in preparation for trial, realized they had not been provided." The ADA did not, however, notice that there was a SANE report missing until it was brought to his attention by Gagne's January 12, 2016, motion in limine.

[¶ 13] Gagne argued that the State should have noticed that there was a missing report, and should have begun an inquiry to determine whether that report contained exculpatory or exonerative material. The court, noting that the SANE report could have been obtained directly by Gagne, and that the State had "no reason to suspect that the material [contained in the SANE report] could have had such exonerative information," concluded that the State should not be sanctioned for failing to seek or provide records that it did not realize existed. The court also found that Gagne would suffer no prejudice from proceeding with trial as scheduled, based on its determination that "further evaluation of the material would [not] result in some additional, or changed opinion. ..."³

[¶ 14] The jury trial was held over the course of seven days from January 25 to February 3, 2016. The State presented testimony from the victim, her parents, law enforcement officers, a forensic chemist, a DNA analyst, and the medical professionals who examined the victim.

[¶ 15] The victim testified about the events but said that she did not remember a lot of the details of what happened. Because of the victim's lapse in memory, the State sought to play for the jury an audio recording of the detectives' interview of the victim at the hospital when she had reported the crimes. The State argued that the recording was admissible either as a prior consistent statement offered to rebut a claim of recent fabrication, see M.R. Evid. 801(d)(1), or a recorded recollection that accurately reflected the victim's knowledge and was made by the victim when the matter was fresh in her memory, whereas she could not recall the information well enough at trial to testify fully and accurately, see M.R. Evid. 803(5).

[¶ 16] In addition to the victim's testimony that she lacked memory of the details of what happened, the State offered, as a foundation for a recorded recollection, the victim's testimony that she remembered speaking with the detective; that she had a better memory of the events then, within twenty-four hours after the events; and that she was telling the truth during that interview. The court ruled that the recording was admissible as a recorded recollection, M.R. Evid. 803(5), and allowed it to be played to the jury over Gagne's objections, including his objection that he was being deprived of the right of confrontation. The court authorized Gagne to cross-examine the victim after the recording was played, but Gagne elected not to recall the victim to testify.

[¶ 17] After the State presented its case, Gagne moved for a judgment of acquittal as to all counts. The court granted the motion with respect to the...