State of Maine v. McMillion

STATE OF MAINE SUPERIOR COURT mee OE CRIMINAL ACTION KENNEBEC, ss. DOCKET NO. CR-03-175 STATE OF MAINE see Gs Vv. - DECISION ON MOTIONS MICHAEL J. McMILLION, Defendant This matter came before the court on a variety of motions filed by defendant McMillion concerning pending charges. I. Motion to Dismiss Count II. The first motion seeks to dismiss count II of the indictment, which charges the defendant with conspiracy to commit aggravated trafficking in scheduled drugs. The basis for the motion is defendant's argument that the count is too vague in that it simply alleges that “a substantial step toward commission of the crime” was taken, without specifying what that step was. However, looking at the indictment as a whole, count III charges illegal importation and count IV charges unlawful possession of scheduled drugs, either of which would constitute a substantial step toward aggravated trafficking. The defendant was adequately informed of the State’s theory by the entire indictment. The motion is denied. II. Motion for Discovery. Defendant next seeks discovery of various documents, recordings and reports of scientific testing, all of which will be granted without objection. However, the motion also seeks the disclosure of any promises made to any confidential informants, which necessarily involves the next motion. III. Motion for Disclosure of Confidential Informant. The affidavit supporting the request for search warrant is based primarily on information obtained from three confidential informants. The plaintiff seeks to have those informants identified, while the State objects, citing M.R. Evid. 509. Rule 509 establishes a privilege for the State to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation, with two exceptions. The exception argued by the defendant is set forth in Rule 509(c)(2) which allows disclosure if it appears “there is a reasonable probability that an informer may be able to give testimony relevant to any issue ina civil or criminal case to which a public entity is a party.” The defendant alleges that the informants in the present case participated in or were witnesses to events for which the defendant has been indicted and therefore have relevant testimony. However, this is not consistent with the indictment, which alleges that all four counts occurred “on or about February 8, 2003” - the day of the search. Unlike the informant in State v, Devlin, 618 A.2d 203 (Me. 1992), who was an eye witness to the sale of drugs for which the defendant was charged, there is no indication that the informants here were present at or know anything about the particulars of the search which lead to the present charges. Nor has the defendant presented any information to indicate that any of the three informers could give such relevant testimony. The defendant must make “some showing greater than a bare assertion and supported by more than the mere desire to determine the informant’s identity.” State v Chase, 505 A.2d 791, 793 (Me. 1986). There is not enough even to generate an in camera presentation by the State. The motion will be denied. IV. Motion to Suppress Evidence. The defendant next seeks to have suppressed evidence seized as the result of execution of a search warrant on a residence in Benton. The primary basis for this [2] motion is the police use of a “no knock” warrant, which allowed the officers to break into the residence unannounced. The defendant also argues that there was insufficient information in the affidavit to support the warrant. The affidavit is based primarily on information received from the confidential sources, all of whom gave information corroborating each other that the owner of the residence was engaged in drug dealing together with three black male suspects staying at the house. Among other information, the informants stated that at least one of the suspects was armed with a Glock handgun and that the suspects were careful to keep their stash of drugs located above a toilet for quick removal of evidence in the event of a search. This information was sufficient to create a reasonable suspicion that if the officers were required to knock and announce themselves before entering the residence, evidence would be destroyed and the officer’s safety would be placed in jeopardy. The defendant also questions the need for a warrant that could be executed in the nighttime, which is moot since the search actually did not occur in the nighttime (6:00 p.m.). Looking at the totality of the circumstances as set forth in the affidavit, there was sufficient reliable information to amply support the finding of probable cause that drug trafficking was occurring at the residence and that a “no knock” warrant was justified Vv. Motion to Suppress Statements. Finally, the defendant moves to suppress any statements he may have made to law enforcement officials prior to his tape-recorded interview with Det. Lt. Gottardi. The defendant does not seek to suppress statements that he made in the recorded interview he had with Lt. Gottardi in Gottardi’s truck, but has requested that the court listen to that recording to place previous statements — if any - in context.. After the initial entry, Gottardi’s role was to interview everyone who was in the house, while other officers did the actual searching. There is no indication that the defendant made [3] any statements to anyone other than Gottardi and Gottardi stated that he asked no substantive questions before turning on the tape, so there is some question as to whether there even were any statements which would be the subject of this motion. In the event that there were statements, it would be the State’s burden to prove that these statements were made voluntarily. Although the defendant was caught and returned to the residence when he attempted to flee, there is no evidence that he otherwise was subject to any restraint or coercion. The evidence, including the recording of the subsequent interrogation, is that the officers acted with necessary professionalism. The defendant’s handling was firm, but it fell far short of the type of coercion necessary to make any statement involuntary. The State has met its burden and the motion will be denied. For the reasons stated, the entry will be: (1) Motion to dismiss indictment is DENIED. (2) Motion for discovery is GRANTED with the exception of the identify of any confidential informant. (3) Motion to disclose confidential informants is DENIED. (4) | Motion to suppress evidence is DENIED. (5) Motion to suppress statements is DENIED. Dated: September oC , 2003 S. Kirk Studstrup : Justice, Superior Court STATE OF MAINE vs MICHAEL MCMILLION 38 WESTERN AVENUE WATERVILLE ME 04901 DOB: Attorney: 03/21/1981 LEONARD SHARON SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC~-CR-2003-00175 DOCKET RECORD State's Attorney: EVERT FOWLE SHARON LEARY & DETROY 90 MAIN ST PO BOX 3130 AUBURN ME 04212-3130 RETAINED 04/18/2003 Filing Document: Filing Date: Charge (s) 1 AGGRAVATED TRAFFICKING OF SCHEDULED DRUGS 1105-A(1) (H) 17-A 2 CRIMINAL CONSPIRACY 151 (1) (B) 17-A 3 ILLEGAL IMPORTATION OF SCHEDULED DRUGS 17-A 1118(1) 4 UNLAWFUL POSSESSION OF SCHEDULED DRUG 1107-A(1) (A) (1) 17-A Docket Events: 04/22/2003 FILING DOCUMENT - TRANSFER - TRANSFER - 04/24/2003 Charge(s): HEARING - 04/24/2003 Charge(s) : HEARING - Attorney: INDICTMENT 04/18/2003 Major Case Type: FELONY (CLASS A,B,C) 02/08/2003 BENTON Class A 02/08/2003 BENTON Class B 02/08/2003 BENTON Class C 02/08/2003 BENTON Class B INDICTMENT FILED ON 04/18/2003 BAIL AND PLEADING GRANTED ON 04/18/2003 BAIL AND PLEADING REQUESTED ON 04/18/2003 1,2,3,4 ARRAIGNMENT SCHEDULED FOR 04/24/2003 @ 8:30 1,2,3,4 ARRAIGNMENT HELD ON 04/24/2003 @ 8:30 DONALD H MARDEN , JUSTICE LEONARD SHARON DA: ALAN KELLEY Reporter: JANETTE COOK Defendant Present in Court READING WAIVED. DEFENDANT . DEFENDANT INFORMED OF CHARGES, 21 DAYS TO FILE MOTIONS Page 1 of 6 COPY OF INDICTMENT/INFORMATION GIVEN TO Printed on: 09/11/2003 04/24/2003 04/24/2003 04/24/2003 04/24/2003 05/02/2003 05/02/2003 05/02/2003 05/16/2003 05/16/2003 05/16/2003 05/16/2003 05/16/2003 05/16/2003 05/20/2003 05/20/2003 05/20/2003 06/02/2003 06/03/2003 06/03/2003 06/03/2003 MICHAEL MCMILLION AUGSC-CR-2003-00175 ,POCKET RECORD Charge(s): PLEA - 1,2,3,4 NOT GUILTY ENTERED BY DEFENDANT ON 04/24/2003 Charge(s) : PLEA - 1,2,3,4 NOT GUILTY ACCEPTED BY COURT ON 04/24/2003 BAIL BOND - $250,000.00 SURETY BAIL BOND CONTINUED AS SET ON 04/24/2003 BAIL TO CONTINUE AS SET WITHOUT PREJUDICE, DEFENSE COUNSEL MAY REQUEST A REVIEW OF BAIL AT A LATER DATE. BAIL BOND - SURETY BAIL BOND COMMITMENT ISSUED ON 04/24/2003 TRANSFER - BAIL AND PLEADING RECVD BY COURT ON 05/02/2003 RECEIVED FROM WATERVILLE DISTRICT COURT DOCKET NO: CR-03-258 BAIL BOND - $50,000.00 SURETY BAIL BOND SET BY COURT ON 02/10/2003 $50,000 CASH OR $250,000 SURETY BAIL BOND - SURETY BAIL BOND COMMITMENT ISSUED ON 02/10/2003 Charge(s): 2 MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 05/14/2003 MOTION TO DISMISS COUNT 2 OF THE INDICTMENT. MOTION - MOTION TO SUPPRESS STATEMENT FILED BY DEFENDANT ON 05/14/2003 MOTION - MOTION TO SUPPRESS EVIDENCE FILED BY DEFENDANT ON 05/14/2003 MOTION - MOTION DISCLOSE CONF INFORMANT FILED BY DEFENDANT ON 05/14/2003 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 05/14/2003 MOTION - OTHER MOTION FILED BY DEFENDANT ON 05/14/2003 MOTION FOR ACCESS TO EVIDENCE FOR INDEPENDENT TESTING. HEARING - MOTION TO DISMISS SCHEDULED FOR 06/03/2003 @ 9:00 NOTICE TO PARTIES/COUNSEL HEARING - MOTION TO SUPPRESS SCHEDULED FOR 06/03/2003 @ 9:00 NOTICE TO PARTIES/COUNSEL HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 06/03/2003 @ 9:00 NOTICE TO PARTIES/COUNSEL MOTION - MOTION TO CONTINUE FILED BY STATE ON 05/30/2003 MOTION - MOTION TO CONTINUE GRANTED ON 06/03/2003 JOHN R ATWOOD , JUSTICE COPY TO PARTIES/COUNSEL HEARING - MOTION FOR DISCOVERY CONTINUED ON 06/03/2003 HEARING - MOTION TO DISMISS CONTINUED ON 06/03/2003 Page 2 of 6 Printed on: 09/11/2003 MICHAEL MCMILLION AUGSC-CR-2003-00175 DOCKET RECORD 06/03/2003 HEARING - MOTION TO SUPPRESS CONTINUED ON 06/03/2003 06/17/2003 HEARING - MOTION TO DISMISS SCHEDULED FOR 07/08/2003 @ 9:00 NOTICE TO PARTIES/COUNSEL 06/17/2003 HEARING - MOTION TO SUPPRESS STATEMENT SCHEDULED FOR 07/08/2003 @ 9:00 NOTICE TO PARTIES/COUNSEL 06/17/2003 HEARING - MOTION TO SUPPRESS EVIDENCE SCHEDULED FOR 07/08/2003 @ 9:00 NOTICE TO PARTIES/COUNSEL 06/17/2003 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 07/08/2003 @ 9:00 NOTICE TO PARTIES/COUNSEL 06/25/2003 MOTION - MOTION TO AMEND BAIL FILED BY DEFENDANT ON 06/23/2003 MOTION TO REDUCE BAIL 07/22/2003 HEARING - MOTION TO AMEND BAIL SCHEDULED FOR 07/08/2003 @ 9:00 NOTICE TO PARTIES/COUNSEL 07/22/2003 HEARING - MOTION TO AMEND BAIL HELD ON 07/08/2003 S KIRK STUDSTRUP , JUSTICE Attorney: LEONARD SHARON DA: ALAN KELLEY Reporter: KIMBERLY MCCULLOCH Defendant Present in Court 07/22/2003 HEARING - MOTION FOR DISCOVERY CONTINUED ON 07/08/2003 07/22/2003 HEARING - MOTION TO SUPPRESS EVIDENCE CONTINUED ON 07/08/2003 07/22/2003 HEARING - MOTION TO SUPPRESS STATEMENT CONTINUED ON 07/08/2003 07/22/2003 HEARING - MOTION TO DISMISS CONTINUED ON 07/08/2003 07/22/2003 HEARING - MOTION TO DISMISS SCHEDULED FOR 07/24/2003 @ 1:00 NOTICE TO PARTIES/COUNSEL 07/22/2003 HEARING - MOTION TO SUPPRESS STATEMENT SCHEDULED FOR 07/24/2003 @ 1:00 NOTICE TO PARTIES/COUNSEL 07/22/2003 HEARING -. MOTION DISCLOSE CONF INFORMANT SCHEDULED FOR 07/24/2003 @ 1:00 07/22/2003 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 07/24/2003 @ 1:00 NOTICE TO PARTIES/COUNSEL 07/22/2003 MOTION - MOTION TO AMEND BAIL UNDER ADVISEMENT oN 07/08/2003 S KIRK STUDSTRUP , JUSTICE DECISION TO BE MADE THE WEEK OF THE 2197. 07/25/2003 BAIL BOND - $100.00 CASH BAIL BOND FILED oN 07/25/2003 BAIL BOND - $9,000.00 CASH BAIL BOND FILED BAIL BOND - $900.00 CASH BAIL BOND FILED Bail Receipt Type: CR Bail Amt: $9,000 g Printed on: 09/11/2003 MICHAEL MCMILLION AUGSC-CR-2003-00175 DOCKET RECORD Receipt Type: CA Date Bailed: 07/25/2003 Prvdr Name: MICHAEL MCMILLION Rtrn Name: JOE FISHER Conditions of Bail; 07/25/2003 BAIL BOND - $100.00 CASH BAIL BOND FILED oN 07/25/2003 BAIL BOND - $9,000.00 CASH BAIL BOND FILED BAIL BOND - $900.00 CASH BAIL BOND FILED Bail Receipt Type: CR Bail Amt: $100 Receipt Type: CK Date Bailed: 07/25/2003 Prvdr Name: MICHAEL MCMILLION Rtrn Name: JOE FISHER Conditions of Bail: 07/25/2003 BAIL BOND - $100.00 CASH BAIL BOND FILED on 07/25/2003 BAIL BOND - $9,000.00 CASH BAIL BOND FILED BAIL BOND - $900.00 CASH BAIL BOND FILED Bail Receipt Type: CR Bail Amt: $900 Receipt Type: CA Date Bailed: 07/25/2003 Prvdr Name: MICHAEL MCMILLION Rtrn Name: JOE FISHER Conditions of Bail: 07/25/2003 NOTE - OTHER CASE NOTE ENTERED on 07/25/2003 NOTE THE THREE CASH BAIL BONDS AS THE BAIL CAME IN THE FORM OF CASH AND CHECK. 07/28/2003 HEARING - MOTION TO AMEND BAIL SCHEDULED FOR 07/24/2003 NOTICE TO PARTIES/ COUNSEL 07/28/2003 HEARING - MOTION TO AMEND BAIL HELD ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE Attorney: LEONARD SHARON DA: ALAN KELLEY Reporter: LAURIE GOULD Defendant Present in Court 07/28/2003 MOTION - MOTION TO AMEND BAIL GRANTED ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL BAIL REDUCED TO $10,000 CASH 07/28/2003 HEARING - MOTION FOR DISCOVERY HELD ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE Attorney: LEONARD SHARON DA: ALAN KELLEY Reporter: LAURIE GOULD Defendant Present in Court 07/28/2003 MOTION - MOTION FOR DISCOVERY UNDER ADVISEMENT ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE 07/28/2003 HEARING - MOTION DISCLOSE CONF INFORMANT HELD ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE Page 4 of 6 Printed on: 09/11/2003 07/28/2003 07/28/2003 07/28/2003 07/28/2003 07/28/2003 07/28/2003 07/28/2003 07/28/2003 07/28/2003 07/28/2003 07/28/2003 08/22/2003 09/10/2003 09/10/2003 09/10/2003 MICHAEL MCMILLION AUGSC-CR-2003-00175 DOCKET RECORD Attorney: LEONARD SHARON DA: ALAN KELLEY Reporter: LAURIE GOULD Defendant Present in Court MOTION - MOTION DISCLOSE CONF INFORMANT UNDER ADVISEMENT ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE HEARING ~ MOTION TO SUPPRESS STATEMENT HELD ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE Attorney: LEONARD SHARON DA: ALAN KELLEY Reporter: LAURIE GOULD Defendant Present in Court MOTION - MOTION TO SUPPRESS STATEMENT UNDER ADVISEMENT ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE HEARING ~ MOTION TO DISMISS HELD ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE Attorney: LEONARD SHARON DA: ALAN KELLEY Reporter: LAURIE GOULD Defendant Present in Court Charge(s): 2 MOTION - MOTION TO DISMISS UNDER ADVISEMENT ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE HEARING - OTHER MOTION SCHEDULED FOR 07/24/2003 @ 1:00 MOTION FOR INDEPENDANT TESTING HEARING - OTHER MOTION HELD ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE Attorney: LEONARD SHARON DA: ALAN KELLEY Reporter: LAURIE GOULD Defendant Present in Court MOTION FOR INDEPENDANT TESTING MOTION - OTHER MOTION UNDER ADVISEMENT ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE MOTION FOR ACCESS TO EVIDENCE FOR INDEPENDENT TESTING. HEARING - MOTION TO SUPPRESS EVIDENCE SCHEDULED FOR 07/24/2003 @ 1:00 NOTICE TO PARTIES/COUNSEL HEARING - MOTION TO SUPPRESS EVIDENCE HELD ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE Attorney: LEONARD SHARON DA: ALAN KELLEY Reporter: LAURIE GOULD Defendant Present in Court MOTION - MOTION TO SUPPRESS EVIDENCE UNDER ADVISEMENT ON 07/24/2003 S KIRK STUDSTRUP , JUSTICE CASE STATUS - CASE FILE LOCATION ON 07/24/2003 JUSTICE STUDSTRUP HAS FILE UNDER ADVISEMENT CASE STATUS - CASE FILE RETURNED ON 09/09/2003 MOTION - MOTION FOR DISCOVERY GRANTED ON 09/08/2003 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/ COUNSEL WITH THE EXCEPTION OF THE IDENTIFY OF ANY CONFIDENTIAL INFORMANT. MOTION - MOTION DISCLOSE CONF INFORMANT DENIED ON 09/08/2003 Page 5 of 6 Printed on: 09/11/2003 MICHAEL MCMILLION AUGSC-CR- 2003-00175 DOCKET RECORD S KIRK STUDSTRUP , JUSTICE 09/10/2003 MOTION -~ MOTION TO SUPPRESS EVIDENCE DENIED ON 09/08/2003 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/COUNSEL 09/10/2003 MOTION -~ MOTION TO SUPPRESS STATEMENT DENIED ON 09/08/2003 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/ COUNSEL 09/10/2003 Charge(s): 2 MOTION - MOTION TO DISMISS DENIED ON 09/08/2003 S KIRK STUDSTRUP , JUSTICE COPY TO PARTIES/ COUNSEL A TRUE COPY ATTEST: Clerk Page 6 of 6 Printed on: 09/11/2003