MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 8 ME 155 Docket: Cum

- 18

- 30 Submitted

On	Briefs: September	26,	2018 Decided: November	20,	2018 Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD, GORMAN,	JABAR , and HUMPHREY, JJ.

STATE	OF	MAINE

v. SCOTT	F.	MATATALL

SAUFLEY , C. J. [¶1] Scott	F.	Matatall	appeals	from	a	judgment	of	conviction	for	operating under	 the	 influence (OUI) with one	 prior OUI	 offense (Class	 D ), 2 9

- A M.R.S. § 2411 (1

- A)(C)(2)	 (2017), entered	 by	 the court (Cumberland	 County, Fritzsche, J. )	following	a	jury	trial. He	argues	that	the	court	abused its	discretion
when ,	 although it	 imposed a	 discovery	 sanction on	 the	 State by excluding a challenged	 video	 rec ording	 from	 the	State’s	case

- in

- chief, it ordered	 that	 the State	would	be	p ermitted to	use	the	recording to	impeach Matatall if	Matatall testified and	contradicted	what	the	video	showed

. See State	v.	Landry ,	459	A.2d 175 ,	177

- 78	(Me.	1983). T he court	did	not	abuse	its	discretion , and we affirm the	judgment.2 I. BACKGROUND [¶ 2 ] On	July	31,	2017,	Matatall	was	charged	by	complaint with OUI with one	prior OUI	offense (Class	D),	29

- A	M.R.S.	§ 2411(1

- A)(C)(2)

. He pleaded	not guilty,	and	a	jury	trial	was promptly scheduled	and held	on	January	10,	2018. [¶ 3 ] Immediately	 before	 trial,	 Matatall’s	 counsel	 moved	 to	 exclud e	 a video	recording	of	Matatall at	the	police	station

. T he	basis	of	the	motion	was the	State’s	f ailure	to	notify	Matatall of	the	video	until	two	days	before	trial

. 1 T he
State sought to	offer	the	video in	support	of	its allegations that	Matatall	refused to	 take	an	 Intoxilyzer	 test	 and	 that Matatall was	intoxicated and	 slurring	his
words

. [¶ 4 ] The court	ruled	that	because	of	the	State’s	late	disclosure,	it	would not	be	permitted	to	introduce	the	video	in	its	case	in	chief.		However,	the	State would	be	permitted	to	introduce	the	recording	if	Matatall	testified	and	“clearly
contradicted”	the	video	ev idence. 2 [¶ 5 ] T he	State’s	only	witness at	trial was the	police	officer	who	pulled over	 and	ultimately	 arrested	Matatall

. Following	 th e	 officer’s testimony,	 the

1 Matatall’s	counsel did not	receive	a	copy	of	the	v ideo	until	the	day	before	trial.

2 Following	this	discussion,	the	State	reiterated	a	plea	offer	providing	for	the	mandatory	minimum fine	and	incarceration. See 29

- A	M.R.S.	§	2411(5)(B)	(2017). Matatall	declined	the	offer.3 State	 asked	 the	 court	 to	 clarify with Matatall ’s	 counsel that,	 should Matatall testify,	he would risk	introduction	of	the	video. Despite	this clear	ruling	from the	 court,	 Matatall, after	 consultation	 with	 counsel ,	 chose	 to	 testify	 and contradicted	the	video	evidence. Matatall	renewed	his	objection of	the	video	in evidence,	 and	 th e	 court allowe d	 the State	 to	 impeach	 Matatall	 on

cross - examination	with admission	of the	video. [¶ 6 ] The	 ju ry	 returned	 a	 verdict	 of	 guilty. After	 hearing sentencing recommendations	 from	 both	 parties,	 the	 court	 entered	 a judgment	 of conviction,	 sentencing	 Matatall	 to six	 months’	 imprisonment,	 with	 all	 but twenty
- one	 days	 suspended,	 a	 three

- year	license	 suspension ,	 and	 a	 fine	 and assessments	 of	 $1,130

. 3 Matatall	 timely	 appealed	 from the	 judgment	 of
conviction. See 15	M.R.S.	§	2115	(2017);	M.R.	App.	P.	2B(b)(1).
II. DISCUSSION [¶ 7 ]		The State	had	an	obligation	to	provide	Matatall	with	the	recording it	intended	to	offer	in	evidence within	seven	days after his	plea	of	not	guilty. I ts failure	to	do	so	constituted	a	violation	of M.R.U.	Crim.	P. 16 (a)(2)(C) ,	subjecting the	State	to	sanctions	pursuant	to M.R.U.	Crim.	P. 16(e)

. The	trial	court	has the discretion	to	“take	appropriate	action”	in	determining	sanctions	for	a	breach	by

3 Matatall	had	a	prior	OUI conviction from 2015. See 29

- A	M.R .S.	§	2401(11)	(20 17 ).4 the	State	in	failing	to	comply	with its	discovery	obligations	pursuant	to	Rule 16.
M.R.U.	C rim.	P.	16(e)	(giving	the	presiding	judge	the	authority	not	only	to	select a	sanction	but	also	to	decide	whether	a	sanction	is	required). We	review	the trial	 court’s	 choice	 of	 discovery	 sanction for	 an	 abuse	 of	 discretion

. State	 v.
Leavitt ,	625	A.2d	302, 305	(Me.	1993)

. We	w ill	vacate a	discovery	sanction only
if

,	 “despite	 the	 court’s	 effort	 to	 nullify	 or	 minimize [ the ] consequence,”	 the violation	of	the	State’s discovery responsibility	creates	a prejudice that rises	to the	level	of	depriving	the	defenda nt	of	a	fair	trial. Id. (quotation	marks	omitted). [¶ 8 ]		At	issue	here	is	Matatall’s	argument	that	the	video	should	have	been excluded	 for	all	purposes. As	we	have	held, however, “ [a]lthough the	State’s breach	should	not	be	held	to	the	defendant’s	throat as	a	dagger,	neither	should it	 be	 used	 by	 him	 as	 a	 shield

. ” Landry ,	 459	 A.2d at 178 .	 	W hen	 a	 defendant chooses to	testify in	contradiction	to	evidence	excluded	as	a	discovery	sanction , except	in	 the	most	extraordinary	circumstances , he should	not	expect to	use Rule	16 as	a	shield aga inst	the	admission	of	direct	rebuttal evidence

. Id. [¶ 9 ] In	describing	this analysis	in	the	case	at	bar , t he court	provided the following	well

- articulated	assessment : [T]he	defense	essentially	is:	I	wasn’t	drinking,	I	was	stopped	for	no good	reason,	the	smell	of	alcohol	was	from	the	beer	my	wife	had, and	I	didn’t	do	the	field	sobriety	tests	for	a	variety	of	psychological5 and	physical	reasons,	and	I	got	kind	of	angry	and unwisely	refused to	accept	the	offer	to	take	the	Intoxilyzer.	.	.	. You’re	 now	 contesting	 and	 saying:	 	Okay,	 here	is	 an	 actual video	of	what	you	looked	like.		We	don’t	have	to	rely	on	what	the police	officer	testifies,	what	you	say	or	what	your	wife	say s	.	.	.	. And I	think	that’s	the	way	the	case	is

-- framed	is	really	a	fair	rebuttal because	he	is	essentially	saying	I	didn’t	have	a	thing	to	drink;	and the	Intoxilyzer	video	would	say,	yes,	you	did. [¶1 0 ]	 	 Thus ,	 t he	 court’s	 decision	 to	 exclude	 the	 vi deo	 from	 the	 State’s

case - in

- chief	ensured	 that	it	would	not	be	used	as	a	 “dagger.” I d. T he	court acted	 well	 within	 its	 discretion ,	 however, in	 declining	 to	 exclude	 the	 video altogether,	where doing	 so would	 have	 permitted	Matatall	 to	 use	 the	 State’s discovery	 violation	 as	 a	 “shield”	 to	 protect	 his	 testimony	 from credibility challenges	 through rebuttal. I d. Under	 these	 circumstances,	 the reasonable sanction	selected	by	 the	court	did	not	deprive	Matata ll	of	a	 fair	 trial,	and	 the court	did	not	abuse	its	discretion. See id. The	entry	is: Judgment	affirmed.6 Julie	M.	Healy,	Esq.,	Law	Offices	of	Peter	J.	Cyr,	Portland,	for	appellant	Scott F. Matatall Stephanie	 Anderson,	District	 Attorney,	William	 J.	 Barry,	 Asst.	 Dist.	 Atty.,	 and Briana	Esposito,	Stud.	Atty.,	Prosecutorial	District	No.	Two, for	appellee	State	of Maine

Cumberland	County	Unified	Crimi nal	Docket	docket	number	CR

- 201 7

- 30239 F OR C LERK R EFERENCE O NLY