State of Maine v. Kenneth Rhoades

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2026 ME 23
Docket: Pen-25-24
Argued: February 5, 2026
Decided: March 10, 2026

Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ., and
HJELM, A.R.J.

STATE OF MAINE

v.

KENNETH RHOADES

CONNORS, J.

[¶1] Kenneth Rhoades appeals from his judgment of conviction for

operating under the influence with two previous OUI offenses within a ten-year

period (Class C), 29-A M.R.S. § 2411(1-A)(B)(2), (5)(C) (2025), entered by the

trial court (Penobscot County, Szylvian, J.) following a jury trial. On appeal,

Rhoades argues that the trial court erred in denying his motion to suppress the

evidence obtained as a result of the stop of his vehicle and in admitting the

results of his breath-alcohol (Intoxilyzer) test at trial. Rhoades also asserts that

the trial court erred in denying his motion for discovery sanctions. We affirm.
2

I. BACKGROUND

A. The Underlying Facts

[¶2] Viewed in the light most favorable to its verdict, the jury rationally

could have found the following facts beyond a reasonable doubt. See State v.

Hall, 2019 ME 126, ¶ 3, 214 A.3d 19.

1. The Encounter

[¶3] Just before 5:00 p.m. on September 28, 2022, an officer for the

Lincoln Police Department was on duty visually monitoring traffic on Main

Street when he saw a red pickup truck that he estimated was speeding. He

initiated a traffic stop.

[¶4] The officer approached the driver’s side door of the vehicle.

Rhoades was the driver and only occupant of the vehicle, and his window was

almost entirely closed, with an opening of only approximately three inches at

the top. The officer asked Rhoades to roll the window down, but he refused,

speaking in profanities and saying that it was broken. The officer observed

Rhoades leaning away from him, toward the passenger seat, and noticed that

his speech was slurred and his eyes were “bloodshot and glassy.” The officer

also noticed the smell of metabolized alcohol emanating from Rhoades.
3

[¶5] The officer asked Rhoades if he had been drinking, to which Rhoades

responded that he had not, suggesting that the odor came from beer spilled in

the truck and stating that the truck belonged to his father. Later in their

encounter, Rhoades admitted to having consumed two alcoholic beverages.

[¶6] After further interaction with Rhoades, the officer called for backup

as Rhoades was making statements that the officer found concerning. The

officer described his interaction with Rhoades as “hostile, verbal, threatening.”1

[¶7] When the officer returned to his cruiser to wait for dispatch’s

response, Rhoades exited his vehicle and approached the officer in a manner

that the officer described as aggressive and threatening. The officer instructed

Rhoades to return to his vehicle and when Rhoades did not do so, the officer

displayed his Taser. Rhoades stopped, and the officer told him to get on his

knees. Rhoades did not do so but returned to his truck and leaned on it. The

officer then informed Rhoades that he would be taking him to the Lincoln police

station to take an Intoxilyzer test. The officer instructed Rhoades to sit in the

back seat of the officer’s cruiser and placed him in handcuffs.

1 The encounter was not recorded.
4

2. The Breath Test

[¶8] The officer drove Rhoades to the Lincoln police station to administer

an Intoxilyzer test, which the officer was certified to perform.

[¶9] Rhoades initially indicated that he was not going to take the test but

subsequently submitted to the test. The officer testified as to how he

administered the test, including conducting a requisite mouth check and

fifteen-minute observation period, after which the officer determined that it

was appropriate to continue with the test. The officer obtained a breath sample

from Rhoades, which the machine indicated contained .16 grams of alcohol per

210 liters of breath.2

B. Procedural Background

[¶10] The State filed a criminal complaint against Rhoades on

November 21, 2022, alleging that he was operating under the influence and had

two previous OUI offenses within a ten-year period (Class C), and filed an

indictment on that charge on March 1, 2023. 29-A M.R.S. § 2411(1-A)(B)(2).

[¶11] A week later, Rhoades filed a motion to suppress, arguing that the

officer who stopped him did not have reasonable articulable suspicion to stop

The criminal OUI statute under which Rhoades was charged prohibits a person from operating
2

a motor vehicle with a breath alcohol level of .08 grams per 210 liters or more. 29-A M.R.S.
§ 2411(1-A)(A)(2).
5

his vehicle and, therefore, all subsequently gathered evidence should be

excluded. At the conclusion of an evidentiary hearing on Rhoades’s motion to

suppress in May 2023, the court (A. Murray, J.) denied the motion.

[¶12] The case was scheduled for trial in July 2023. In May 2023,

Rhoades requested a qualified witness pursuant to 29-A M.R.S. § 2431(2)(D)

(2025).3 In July, the State provided the court with a witness list that did not

include a qualified witness. The case was not reached in July, however, and was

continued to September. In August, the State identified a qualified witness,

informed Rhoades’s counsel of the existence of impeachment information

about that witness, and stated that before producing that information, the State

would require a protective order to limit its distribution. Rhoades objected to

the proposed protective order, but the court (Roberts, J.) issued it on August 31.

[¶13] On September 7, 2023, Rhoades filed a motion for sanctions,

asserting that the State violated discovery rules and Rhoades’s due process

rights by failing to timely disclose impeachment information pertaining to the

expected qualified witness.

3 Section 2431(2)(D) provides: “With 10 days written notice to the prosecution, the defendant

may request that a qualified witness testify to the matters of which the certificate constitutes prima
facie evidence. The notice must specify those matters concerning which the defendant requests
testimony. The certificate is not prima facie evidence of those matters.”
6

[¶14] On November 21, 2023, the motion for sanctions was dismissed

without prejudice, but on November 30, the court (Larson, J.) vacated the

dismissal after consideration of Rhoades’s motion to reconsider. The court

(Roberts, J.) then held a hearing on the motion for sanctions on March 8, 2024,

and issued a written order denying the motion a week later.

[¶15] In that order, the court stated that the “District Attorney’s office

must be better prepared for trial in matters on the brink of jury selection” and

that the “prosecutor should have been aware of the need for testimony from the

officer presenting a Giglio problem before docket call in July.”4 That said, the

court declined to order sanctions despite the witness in question being

identified late in the case’s processing, noting that “[t]he court would have a

very different view of the Defendant’s request for sanctions had this matter

been reached without the Defendant being provided with Giglio materials in a

timely fashion.”

[¶16] At the jury trial, held on July 29, 2024, the State did not present the

witness as to whom the impeachment information pertained.

4 Giglio information is information that may be used to impeach or discredit a witness for the
State. Prosecutors are required to disclose such information to the defense. See Giglio v. United States,
405 U.S. 150 (1972).
7

[¶17] The arresting officer testified that on the document recording the

results of the Intoxylizer test, he had written down the date on the machine that

indicated when the machine had last been tested. The officer testified that error

codes would appear if the air samples were insufficient for taking the sample

and that no error code had appeared when he was testing Rhoades.

[¶18] The officer’s testimony was followed by the testimony of Maria

Pease, the manager of the breath-alcohol program in the forensic chemistry

section of the State’s Health and Environmental Testing Laboratory. Pease, a

chemist, testified that her primary responsibility is to ensure that instruments

are approved twice a year according to state regulations. She stated that the

approval process consists of a chemist going to the site of an Intoxilyzer

machine, performing a visual inspection of the instrument, and running a series

of control tests. When an instrument is approved, a stamp is affixed to it that

contains a serial number, the date, and the signature of the chemist. Pease

testified that she is usually the person who affixes the stamp, but that one other

analyst has some of the same training and does so as well. Although she

indicated that she had performed regular checks on the instrument at the

Lincoln Police Department, she stated that she was not entirely sure if she
8

performed the checks in 2022, though she stated that she knew that they were

done.

[¶19] Pease also testified to the safeguards in place to ensure that the

Intoxilyzer is generating accurate results for any given sample, including

administering a second test two minutes after the first. She explained how,

when the Intoxilyzer is running, it goes through various controls and

diagnostics before reading a breath sample and will notify the operator with

messages if something is wrong, such as a temperature failure, and will abort

the test.

[¶20] After this testimony by the officer and Pease, the State moved to

admit the results of the test. Rhoades objected, arguing that there was

insufficient evidence that the results were reliable because Pease could not

testify with certainty that she had been the one who performed the most recent

test of the machine. The court admitted the results.

[¶21] At the end of the trial, the jury returned a guilty verdict. Rhoades

was sentenced to nine months in the Penobscot County jail, received a six-year

license suspension, and was ordered to pay $1,410 in fines and fees. He

appealed the same day. See M.R. App. P. 2B(b)(1).
9

II. DISCUSSION

A. The officer had reasonable articulable suspicion to stop Rhoades’s
vehicle based on the officer’s estimation that Rhoades was
speeding.5

[¶22] Rhoades argues that the court erred in denying his motion to

suppress because the officer’s visual estimation that Rhoades was speeding was

not sufficient to give the officer reasonable articulable suspicion to initiate a

stop. We disagree.

[¶23] We look to the suppression hearing record when reviewing

Rhoades’s argument on appeal. State v. Jandreau, 2022 ME 59, ¶ 12, 288 A.3d

371. In that hearing, the officer who stopped Rhoades’s vehicle testified that he

had been a member of the Lincoln Police Department for ten months and had,

before that, been in the Penobscot County Sheriff’s Office for eighteen years,

with fourteen of those years on patrol. He graduated from the Maine Criminal

Justice Academy, where he had been trained and certified in visual estimation

of vehicle speeds. He testified that officers were trained to visually estimate

speed within five miles per hour. In his fourteen or fifteen years on patrol, he

5 Rhoades raises his argument concerning the court’s denial of his motion to suppress under only

the United States Constitution, not article 1, section 5 of the Maine Constitution. Therefore, the only
issue before us is whether the motion to suppress should have been granted under the Fourth
Amendment. See State v. Norris, 2023 ME 60, ¶ 33, 302 A.3d 1.
10

had visually estimated speeds of vehicles daily and testified that his radar

confirmed that his estimates were correct within three to four miles per hour.

[¶24] On the date of Rhoades’s stop, the officer estimated that Rhoades

had been driving fifty-five miles per hour in a thirty-five-mile-per-hour zone.

The officer’s angle was such that he could not use his radar.

[¶25] We review the court’s factual findings for clear error and its

ultimate decision to suppress de novo, State v. Lovett, 2015 ME 7, ¶ 6, 109 A.3d

1135, and will “uphold the court’s denial of a motion to suppress if any

reasonable view of the evidence supports the trial court’s decision.” State v.

Vrooman, 2013 ME 69, ¶ 11, 71 A.3d 723 (quotation marks omitted).

[¶26] “In order to support a brief investigatory stop of a motor

vehicle . . . a police officer must have an objectively reasonable, articulable

suspicion that either criminal conduct, a civil violation, or a threat to public

safety has occurred, is occurring, or is about to occur.” State v. Sylvain, 2003 ME

5, ¶ 11, 814 A.2d 984 (footnote omitted). This threshold for a vehicle stop is

“low, in that ‘reasonable articulable suspicion is considerably less than proof of

wrongdoing by a preponderance of the evidence,’ and need not rise to the level

of probable cause. ‘The suspicion need only be more than speculation or an
11

unsubstantiated hunch.’” State v. LaForge, 2012 ME 65, ¶ 10, 43 A.3d 961

(citations omitted).

[¶27] An officer’s visual estimate of a vehicle’s speed can be a sufficient

basis to establish reasonable articulable suspicion justifying a stop.6 The

relevant analysis is one in which the court assesses the totality of the

circumstances. See United States v. Sowards, 690 F.3d 583, 591, 592 (4th Cir.

2012) (holding that whether a visual speed estimate is sufficient to initiate a

stop depends on the totality of the circumstances, and “the reasonableness of

an officer’s visual speed estimate depends, in the first instance, on whether a

vehicle’s speed is estimated to be in significant excess or slight excess of the

legal speed limit”). In this instance, as the court noted, the officer stated that he

visually estimated that Rhoades was driving twenty miles per hour above the

speed limit, an infraction significant in magnitude. The court noted that the

officer was trained and certified in speed estimation and checked himself

frequently against his radar. Based on the totality of the evidence before it, the

6 Other jurisdictions have explicitly held that visual speed estimates are sufficient to initiate a
traffic stop. See United States v. Ludwig, 641 F.3d 1243, 1247 (10th Cir. 2011) (“It’s long been the
case that an officer’s visual estimation can supply probable cause to support a traffic stop for
speeding in appropriate circumstances.”); State v. Dunham, 67 A.3d 275, 278 (Vt. 2013) (“Many
courts have held that a sufficiently trained officer’s visual estimate of speed can supply reasonable
suspicion to justify a traffic stop, and in some cases, probable cause.”); United States v. Monzon-Gomez,
244 F. App’x 954, 959 (11th Cir. 2007) (“The Fourth Amendment plainly does not prohibit a law
enforcement officer from pulling over a motorist for suspected speeding whenever the officer is
acting solely on the basis of his visual observation.”).
12

court committed no error in finding that the officer had reasonable articulable

suspicion and denying the motion to suppress.

B. The trial court did not err in admitting the results of the Intoxilyzer
test.

[¶28] Rhoades asserts two arguments to challenge the admission of the

results of his Intoxilyzer test. First, he contests the admissibility of the results

under the relevant statute and claims that the results are unreliable. Second,

he argues that his rights under the Confrontation Clause were violated because

Pease was not certain that she had personally performed the latest test on the

machine.7 U.S. Const. amend. VI. Again, we disagree.

1. The Intoxilyzer test results were admissible under the statute
and were otherwise reliable.

[¶29] Rhoades’s argument as to compliance with the statute and the

reliability of the Intoxilyzer test results is preserved. As to his claim that the

statutory requirements for admission of the results were not met, we review

questions of statutory interpretation de novo. State v. Beeler, 2022 ME 47, ¶ 12,

281 A.3d 637. We review a trial court’s admission of evidence over an objection

7 Rhoades raises his Confrontation Clause argument under the United State Constitution, not

article 1, section 6 of the Maine Constitution. Therefore, the only issue before us is whether Pease’s
testimony violated his rights under the Sixth Amendment. Cf. State v. Engroff, 2025 ME 83, ¶ 24, 345
A.3d 91.
13

for lack of foundation for abuse of discretion and the court’s “underlying factual

findings” for clear error. Id. (quotation marks omitted).

[¶30] The arguments asserted by Rhoades are the same as those

discussed in detail and rejected in Beeler. Briefly, under the relevant statute

regarding the admissibility of breath-alcohol test results, 29-A M.R.S. § 2431,

when, as here, a defendant requests a qualified witness, the State must establish

the reliability of a test result through witness testimony rather than through

the presence of compliance labels affixed to the instrument. Beeler, 2022 ME

47, ¶ 14, 281 A.3d 637. As we stated in Beeler:

The State need establish only that the test is reliable. In making the
initial reliability determination, the court can rely solely on the
testimony of the State’s chemist that the result was reliable. Once
the foundational showing of reliability has been made and the test
result is admitted, the weight to be given the test result is a
question for the fact finder.

Thus, the relevant inquiry here is whether the trial court
erred by finding that the State had made a sufficient showing that
[the defendant]’s breath test result was reliable.

Id. ¶¶ 14-15 (alterations, quotation marks, and citations omitted).

[¶31] In Beeler, we affirmed the court’s admission of breath test results

for the following reasons:

The chemist testified at length about the functioning of Intoxilyzers
generally—including that an Intoxilyzer will not proceed with a
breath test if it fails any of its internal diagnostic tests—and about
14

the procedures at the state laboratory regarding the maintenance
and approval of Intoxilyzers. The chemist also testified about the
Intoxilyzer used in [the defendant]’s breath test, noting that the
instrument had been approved before it was put into service and
that it passed all testing when it was returned to the state
laboratory. After addressing each step in the breath testing
sequence as reflected on [the defendant]’s breath test certificate
and determining that the Intoxilyzer passed all internal diagnostic
tests and calibration checks, the chemist opined that the Intoxilyzer
produced a valid test result. The chemist’s testimony alone was
sufficient to establish that [the defendant]’s breath test result was
reliable, and the chemist’s testimony coupled with the trooper’s
testimony—including that he was a certified Intoxilyzer operator,
he followed proper breath testing procedures, and the Intoxilyzer
bore the Department’s stamp of approval—was more than
sufficient.

Id. ¶ 15.

[¶32] The same circumstances presented themselves here, and the same

type of evidence was produced. As we stated in Beeler, such evidence was

“more than sufficient” to ensure that the statutory requirements and the

requirement for reliability were met.8 Id.

2. Rhoades’s rights under the Confrontation Clause were not
violated.

[¶33] Rhoades did not raise a Confrontation Clause objection at trial;

thus, we review only for obvious error. State v. Richardson, 593 A.2d 218, 219

Rhoades’s brief includes no argument to distinguish this case from our decision in Beeler. The
8

State’s brief does not cite Beeler at all.
15

(Me. 1991).9

[¶34] We also addressed a Confrontation Clause argument in Beeler. See

2022 ME 47, ¶¶ 19-28, 281 A.3d 637. There, we explained, inter alia, that

breath test results are nontestimonial.10 Id. ¶ 26. We explained that “[t]he

9 Rhoades raised the Confrontation Clause argument in his initial brief. The State did not respond

to this argument at all in its responsive brief. The State clarified in oral argument, when asked, that
it was not conceding that a Confrontation Clause violation had occurred. When the State fails to
address a non-frivolous argument raised by a defendant on appeal, it does so at its peril, risking
sanction or a deemed concession. See United States v. Vargas-De Jesús, 618 F.3d 59, 64 (1st Cir. 2010)
(noting that when the government did not articulate a defense of a conviction until oral argument,
the appellate court “would be justified in treating the failure to brief the issue as a waiver”); cf.
Christopher Bello, Annotation, Consequences of Prosecution’s Failure to File Timely Brief in Appeal by
Accused, 27 A.L.R.4th 213, § 2[a] (1984) (“Courts have responded to the prosecution’s failure to file
a timely appellee’s brief in a variety of ways. In situations where, without excuse, no brief has been
filed as of the time the case has been taken under consideration, courts have been divided between
those reversing the defendant’s conviction on the basis of the prosecution’s inaction (§ 10[a], infra),
and those applying only lesser sanctions, or merely reprimanding the prosecution, before proceeding
to address the merits of the appeal and affirming or reversing the conviction on bases other than the
prosecution’s failure to file a brief (§ 10[b], infra).”).

10 See Beeler, 2022 ME 47, ¶ 24, 281 A.3d 637 (“The overwhelming majority of other jurisdictions

have concluded that maintenance, inspection, and calibration records for the Intoxilyzer are
nontestimonial in nature.”) Nor is the test result itself testimonial. As one court noted:

The Intoxilyzer 5000 . . . is not a witness or declarant capable of making
statements. . . . [N]o human entered into the Intoxilyzer 5000 the conclusion that [the
driver]’s breath alcohol content was .22 grams per 210 liters of breath. [The driver]
blew into the machine, the machine analyzed his breath and reported the results of
its analysis. The machine was the sole source of the test results. Thus the result of
the breath test was merely data produced by a machine, not a statement produced by
a witness. See United States v. Moon, 512 F.3d 359, 362 (7th Cir.2008) (“[D]ata are
not ‘statements’ in any useful sense. Nor is a machine a ‘witness against’ anyone.”);
United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007) (“‘[S]tatements’ made
by machines are not out-of-court statements made by declarants that are subject to
the Confrontation Clause.”); Caldwell v. State, 230 Ga.App. 46, 495 S.E.2d 308, 310
(1997) (holding that printouts from a breath test machine “are not hearsay but rather
the mechanically-generated reports automatically created by the machine. They do
not constitute out-of-court statements by any person or the conclusion of a third
party not before the court . . . .” (internal citations omitted)); State v. Van Sickle, 120
Idaho 99, 813 P.2d 910, 913 (Ct. App.1991) (a “printout from the Intoximeter is not a
‘statement’ for hearsay purposes . . . the printout is a test result produced by a
16

Confrontation Clause is concerned with the admission of testimonial

statements by declarants who are not subject to cross-examination and not

with whether the prosecution offered sufficient foundational evidence to

support the admission of an expert witness’s opinion.” Id. ¶ 28.

[¶35] In short, the confrontation right under the federal clause prohibits

the “admission of testimonial statements of a witness who did not appear at

trial unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36,

53-54 (2004). A breath test result is not testimony; it is machine-generated

data. In testifying as to the reliability of the machine, Pease, the chemist here,

did not act as a conduit for testimony from any another witness.

[¶36] Rhoades’s argument relies upon decisions involving not

machine-generated data but rather instances in which one chemist testifies

regarding lab results requiring judgments made by another chemist. For

example, in State v. Thomas, 2025 ME 34, ¶ 65, 334 A.3d 686, we stated that the

Confrontation Clause was violated when one chemist testified and based his

testimony upon the “worksheet and notes” of another nontestifying chemist.

machine”). . . . Because the breath test result is not a statement made by a witness, the
Confrontation Clause does not place any restrictions on its admission.

Wimbish v. Commonwealth, 658 S.E.2d 715, 719-20 (Va. Ct. App. 2008).
17

Similarly, in State v. Gleason, 2025 ME 52, ¶ 7, 19, 339 A.3d 774, a toxicologist

testified based upon her review of the “data and documentation” produced by

other lab employees who conducted the relevant tests and conceded that “the

data she reviewed was the product of judgments made by other reviewers and

lab employees.” Bullcoming v. New Mexico, 564 U.S. 647 (2011), involved a

blood test conducted to determine blood-alcohol concentration. The Supreme

Court expressly noted that the lab report “reported more than a

machine-generated number.” Id. at 659-60; see also id. at 673 (Sotomayor, J.,

concurring) (“[T]his is not a case in which the State introduced only

machine-generated results . . . .”).

[¶37] Nothing in the more recent decisions of the Supreme Court

suggests any deviation from the conclusion that machine-generated data is

nontestimonial and, therefore, the admission of such machine-generated data

does not implicate the Confrontation Clause. See United States v. Hill, 63 F.4th

335, 359 (5th Cir. 2023).11

[¶38] In sum, testimony from the specific individual who carried out the

11 We also note that many jurisdictions conclude that there is no Confrontation Clause issue
invoked by the certifications relating to breath test machines because such certifications are made
for administrative purposes and not in support of a specific criminal prosecution. See e.g.,
Commonwealth v. Zeininger, 947 N.E.2d 1060, 1069-70 (Mass. 2011); State v. Fischer, 726 N.W.2d 176,
183 (Neb. 2007); State v. Maga, 96 A.3d 934, 938-40 (N.H. 2014); Commonwealth v. Dyarman, 73 A.3d
565, 571-74 (Pa. 2013); Bohsancurt v. Eisenberg, 129 P.3d 471, 476 (Ariz. Ct. App. 2006); Rackoff v.
State, 637 S.E.2d 706, 709 (Ga. 2006); People v. So Young Kim, 859 N.E.2d 92, 94 (Ill. App. Ct. 2006);
18

biannual test of the machine is not required under the statute, to show

reliability, or for Confrontation Clause purposes.

C. The trial court did not abuse its discretion in declining to impose a
discovery sanction.

[¶39] Under Brady v. Maryland, 373 U.S. 83, 87 (1963), “a due process

violation occurs when the government fails to disclose evidence that is

favorable to an accused and material either to guilt or to punishment.” State v.

Wai Chan, 2020 ME 91, ¶ 15 n.8, 236 A.3d 471 (quotation marks omitted). In

Giglio v. United States, 405 U.S. 150, 154 (1972), the Supreme Court held that

“[w]hen the reliability of a given witness may well be determinative of guilt or

innocence, nondisclosure of evidence affecting credibility falls within [the

Brady] rule.” (Quotation marks omitted.) See also State v. Williams, 2022 ME

24, ¶ 6 n.3, 272 A.3d 304.

[¶40] Rhoades argues that by delivering Giglio information late in the

case, the State committed a discovery violation for which it should have been

sanctioned. We “review for an abuse of discretion decisions on the imposition

of sanctions for discovery violations.” Bean v. Cummings, 2008 ME 18, ¶ 15, 939

Jarrell v. State, 852 N.E.2d 1022, 1025-26 (Ind. Ct. App. 2006); Commonwealth v. Walther, 189 S.W.3d
570, 574-75 (Ky. 2006). See generally Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009)
(noting that statements are testimonial if their primary purpose is to establish or prove past events
potentially relevant to later prosecution).
19

A.2d 676. We “will not characterize a trial court’s decision not to impose

sanctions as an abuse of discretion or an error of law unless the defendant has

shown that he was in fact prejudiced by the discovery violation . . . and that the

prejudice rose to the level of depriving him of a fair trial.” State v. Gould, 2012

ME 60, ¶ 24, 43 A.3d 952 (quotation marks omitted).

[¶41] Rhoades has failed to demonstrate that he was prejudiced by any

late delivery of the Giglio information in this case. The expected qualified

witness to whom the Giglio information pertained did not testify at trial. Also,

Rhoades received the relevant information months prior to trial. See State v.

Kelly, 2000 ME 107, ¶ 26 n.11, 752 A.2d 188 (stating that, in the case of an

alleged Brady violation, “[w]hen the defendant is aware, before trial, of the

exculpatory evidence alleged to have been withheld, he cannot claim that there

has been an unfair trial in violation of due process”). Absent prejudice, no abuse

of discretion occurred.

III. CONCLUSION

[¶42] The State’s actions both in prosecuting this matter at trial and in

defending the judgment on appeal reflect multiple deficiencies. Had the matter

gone to trial when first scheduled, the State would have failed to identify a

qualified witness as statutorily required, and the results of Rhoades’s breath
20

test would have properly been excluded. The trial court rightly commented on

the State’s dilatory preparation in identifying a qualified witness and in

producing a qualified witness at trial. The State’s failures to cite Beeler, the

decision on point as to the admissibility of the breath results, and to respond at

all to Rhoades’s Confrontation Clause argument in its appellate brief are

inexplicable.

[¶43] Nonetheless, Rhoades’s appeal fails under our standard of review

and the relevant law: the officer’s speed estimate was sufficient for the officer

to stop Rhoades’s vehicle; the results of Rhoades’s breath test were admissible

under the relevant statute and law; and Rhoades did not identify any prejudice

from the late discovery of Giglio evidence relating to a witness who did not

testify at trial.

The entry is:

Judgment affirmed.

James P. Howaniec, Esq. (orally), Lewiston, for appellant Kenneth Rhoades

R. Christopher Almy, District Attorney, Christopher D. Smith, Asst. Dist. Atty.
(orally), and Eugene Abramov, Stud. Atty., Prosecutorial District V, Bangor, for
appellee State of Maine

Penobscot County Unified Criminal Docket docket number CR-2022-3806
FOR CLERK REFERENCE ONLY