State of Maine v. Damion Butterfield

STATE OF MAINE - UNIFIED CRIMINAL DOCKET

CUMBERLAND, ss. -., DOCKET NO. CUMCD-CR-2022-02188
STATE OF MAINE )
Vv. ) ORDER ON MOTION TO DISMISS FOR
} FAILURE TO DISCLOSE
} EXCULPATORY EVIDENCE
DAMION BUTTERFIELD, )
)
Defendant. )

Before the Court is Defendant Damion Butterfield’s Motion to Dismiss for Failure
to Disclose Exculpatory Evidence. Mr. Butterfield moves for sanctions against the State
pursuant to Rule 16(e) of the Maine Rules of Unified Criminal Procedure for the State’s
failure to disclose text messages containing exculpatory evidence sent by Mr. Butterfield
using a tablet device issued and monitored by the Maine State Prison. For the following
reasons, the Court finds that the State has violated its discovery obligations and imposes
a sanction as discussed below.

I. Background.

Trial began in this matter on December 6, 2023. On December 12, 2023, defense
counsel brought to the Court's attention that, although they had timely received from the
State certain text messages sent by Mr. Butterfield on his tablet to his girlfriend, Caitlin
Smith-Audet, they had suspected and indeed recently discovered that prior text messages
containing substantial exculpatory evidence existed and had not been disclosed. Defense
counsel discovered the earlier text messages when they met with Ms, Smith-Audet and
reviewed the text messages as they appeared on her cellphone.

Hearing was held on the pending motion on December 13, 2023. Defense counsel

called Corporal Lori Davies from the Maine State Prison and Detective Andrew Hagerty

Page 1 of 6

from the Portland Police Department. Detective Hagerty was sequestered while Corporal
Davies testified.

Corporal Davies testified that the Maine State Prison records all phone calis made
by residents and retains all text messages sent by residents. She explained that because
the Maine State Prison houses about eight hundred residents and only four corporals are
available to review phone calls and text messages, not all phone cal! recordings and text
messages are reviewed. She estimated, however, that she has reviewed approximately
ninety percent of Mr. Butterfield’s phone calls and text messages. She began monitoring
Mr. Butterfield shortly after he arrived at the Maine State Prison in August 2022 because
of a report that he was using in-person visits to attempt to receive contraband.

Corporal Davies testified that she was first contacted by Detective Hagerty
regarding this case in or around December 2022. Detective Hagerty testified that he did
not ask Corporal Davies or her superiors to investigate Mr. Butterfield, but that he told
them that he wanted to be kept abreast of “anything” that was “going on” with Mr.
Butterfield.

Corporal Davies testified that she was trained at the Maine Criminal Justice
Academy and through on-the-job training to identify inculpatory and exculpatory
statements, in addition to security-related purposes for monitoring residents’
communications. While reviewing Mr. Butterfield’s text messages from February 5, 2023,
she noticed a text message that seemed to contain a confession. She explained that she
decided to take a screenshot of the relevant text messages as well as the text messages
immediately preceding and following that appeared to be part of the same
“conversation.” She sent the screenshots of those messages to Detective Hagerty the
following day.

Corporal Davies testified that she did not review the text messages that defense

Page 2 of 6

counsel identified as potentially exculpatory because the conversation she was reviewing
began, in her opinion, after the exculpatory statements. She also explained that, on the
program she uses to review text messages, she would have had to scroll back multiple
“pages” to view the earlier messages. Corporal Davies testified, however, that the text
messages were easily retrievable and easily shared.

The text messages that the State sought to introduce, in which Mr. Butterfield
stated that he was going to call Detective Hagerty to confess, were sent on February 5,
2023, beginning at 11:04 p.m. The text messages that defense counsel discovered were
from as recently as 10:59 p.m. on February 5, 2023, and suggested that Mr. Butterfield was
considering “falsely convict[ing]” himself and pleading guilty despite being innocent.

When Corporal Davies sent Detective Hagerty the selected text messages from
February 5, 2023, Detective Hagerty did not inquire whether there were more messages
that preceded those that she sent. Detective Hagerty explained that he did not “put much
stock in” Mr. Butterfield’s statements because Mr. Butterfield did not call Detective
Hagerty to confess, as Mr. Butterfield had suggested he would in the text messages that
Corporal Davies provided to Detective Hagerty. He testified that he trusted the corporals
at the Maine State Prison to identify and provide him with anything of importance to the
investigation.

The Assistant Attorney Generals did not inquire about additional text messages
when they received the messages from Detective Hagerty. The State conceded at hearing
that, in hindsight, they should have asked more questions about the text messages they
received.

Ii, Discussion
Pursuant to Rule 16(a)(2)(C), the State is obligated to provide to a criminal

defendant “[alny written or recorded statements and the substance of any oral statements

Page 3 of 6

made by the defendant.” This obligation “extends to matters within the possession or
control of any member of the attorney for the State’s staff and of any official or employee
of this State or any political subdivision thereof who regularly reports or who, with
reference to a particular case, has reported to the office of the attorney for the State.”
M.R.U. Crim. P. 16(a)(1). The State is subject to a continuing duty to disclose any such
statements that come within its possession or control. M.R.U. Crim. P. 16(b)(5). And, of
course, the State’s discovery obligations extend to a defendant’s exculpatory statements
as well as inculpatory statements. See State v. Reed-Hansen, 2019 ME 58, J 13, 207 A.3d
191; see generally Brady v. Maryland, 373 U.S. 83 (1963).

Mr. Butterfield’s text messages were within the possession of Corporal Davies,
who had reported to and had been asked to report to Detective Hagerty with any material
evidence relevant to Mr. Butterfield’s case. Detective Hagerty in turn reported to the
Assistant Attorney Generals regarding this case. The Assistant Attorney Generals clearly
had a duty to inquire about the existence of additional text messages when they received
the selected text messages from Detective Hagerty. See State v, Foy, 662 A.2d 238 (Me.
1995) (“[Rule 16] ... includes a duty ‘of reasonable diligence, of making reasonable

fer

inquiry to uncover material relevant to the case against the defendant.’” (quoting State v.
Jalbert, 537 A.2d 593, 595 (Me. 1988))). The Court concludes that the State violated its
discovery obligations by failing to inquire about the existence of additional text messages,
including the exculpatory messages identified by defense counsel that arguably provide
context to the inculpatory text messages they were provided.

After finding a discovery violation, the Court must determine an appropriate
sanction. Rule 16(e) broadly authorizes the Court to impose the following sanctions:

“TR]equiring the attorney for the State to comply; granting the defendant additional time

or a continuance; relieving the defendant from making a disclosure required by Rule 16A;

Page 4 of 6

prohibiting the attorney for the State from introducing specified evidence; and dismissing
charges with or without prejudice.” The Law Court has offered the following guidance
on the imposition of sanctions:

The demands on prosecutors to comply with the requirements of Brady,

Giglio, and the rules of criminal procedure are extensive. Mistakes, although

one hopes they are rare, are inevitable, and sanctions for such mistakes

should be tailored to the individual circumstances of each case, with a focus

on fairness and justice.

Reed-Hansen, 2019 ME 58, J 10, 207 A.3d 191. Inadvertence on the State’s part may be
relevant to the choice of sanction, as may carelessness. See id. { 18 (“[T]here is a fine line
between inadvertence and practices that the court described here as ‘slipshod.’”).
Dismissal and suppression of key evidence are “extreme” sanctions, but either may be
within the trial court’s discretion for egregious or prejudicial violations. See id. { 17; State
v. Sargent, 656 A.2d 1196, 1199 (Me. 1995).

Mr. Butterfield’s requested sanction of dismissal is extreme and disproportionate.
A meaningful sanction is, however, warranted. The Court is not satisfied that suppression
of the text messages from the State’s case-in-chief would be a meaningful sanction
because the State had already, prior to the filing of the pending motion, decided not to
introduce the text messages. It was evident from testimony that persons who report to
the Office of the Attorney General apparently misunderstand or do not adequately
appreciate the seriousness of the State’s discovery obligations.

Accordingly, the Court will suppress all the recordings of phone calls that Mr.
Butterfield made while at the York County Jail and Maine State Prison, which were the
subject of a prior unsuccessful motion to suppress (“the jail calls”). The Court chooses to
suppress the jail calls to impress on the State the importance of conducting diligent

inquiries into areas of automatic discovery and the apparent need for reevaluating its

practices regarding its communications with investigating officers. See Reed-Hansen, 2019

Page 5 of 6

ME 58, { 10, 207 A.3d 191 (upholding trial court’s ruling suppressing testimony of a key
witness, a state trooper, as a sanction for the State’s careless failure to disclose a dash-cam
video),

The Court has previously in this case fashioned a discovery sanction modeled after
the sanction upheld in State v. Page, 2023 ME 73,___ A.3d __. The Court will similarly
suppress the jail calls from the State’s case-in-chief but permit the State to use evidence
from the jail calls for rebuttal or impeachment if Mr. Butterfield chooses to introduce any
portion of the jail calls. This form of sanction is intended to prevent Mr. Butterfield from
being able to use the jail calls in a “completely sanitized” manner, Page, 2023 ME 73, 1 17,
__ A3d __, while leaving the decision regarding whether to introduce the jail calls to
Mr. Butterfield and his counsel.

Til. Conclusion

In conclusion, the Court finds that the State violated its discovery obligations by
failing to make a diligent inquiry regarding Mr. Butterfield’s text messages. As a sanction,
the State will be prohibited from using the jails calls in its case-in-chief.

The Court orders as follows:

Defendant Damion Butterfield’s Motion to Dismiss for Failure to
Disclose Exculpatory Evidence is GRANTED as follows: The State is
prohibited from using in its case-in-chief any recordings of phone calls
placed by Mr. Butterfield at the Maine State Prison or York County Jail
(“the jail calls”). If Mr. Butterfield chooses to introduce the jail calls, the
State is permitted to offer additional evidence from the jail calls to rebut,
explain, or complete the evidence presented by Mr. Butterfield.

The clerk is instructed to incorporate this Order by reference on the docket

pursuant to M.R.U. Crim. P. 53(a).

sy
a aa WWN A PIR AOS
vaea: (Lecemlbor /4,J0I3 _ (Vth he)
: , MaryGay Kennedy, Justice
Maine Superior Court

Page 6 of 6