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State v. Gagne

Supreme Court of Maine

April 4, 2017

STATE OF MAINE
v.
NICHOLAS W. GAGNE

          Argued: February 8, 2017

         Reporter of Decisions

          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 States late disclosure of the victims 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, Gagnes parents, and, for part of the time, Gagnes 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 victims 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-AM.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 Gagnes 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 victims 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 victims medical providers to disclose the victims otherwise protected health care information. On that same day, a jury was selected.

         [¶11] Gagne moved for sanctions based on the States delay in obtaining and providing the victims medical records-one of which noted the presence of blood in the victims 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 ...


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