MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018 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),	 29-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	 recording	 from	 the	State’s	case-in-chief,	it	ordered	 that	 the	

State	would	be	permitted 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).		The 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	 exclude	 a	

video	recording	of	Matatall at	the	police	station.		The	basis	of	the	motion	was	

the	State’s	failure	to	notify	Matatall of	the	video	until	two	days	before	trial.

1		The	

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	evidence.2		

[¶5]		The	State’s	only	witness	at	trial	was	the	police	officer	who	pulled	

over	 and	ultimately	 arrested	Matatall.		Following	 the	 officer’s	testimony,	 the	

 1		Matatall’s	counsel did not	receive	a	copy	of	the	video	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	 the	 court allowed	 the	 State	 to	 impeach	 Matatall	 on	

cross-examination	with	admission	of the	video.		

[¶6]	 	 The	 jury	 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.	 Its	

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)	(2017).		
4

the	State	in	failing	to	comply	with	its	discovery	obligations	pursuant	to	Rule 16.		

M.R.U.	Crim.	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	will	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	defendant	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.	 	When	 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	against	the	admission	of	direct	rebuttal evidence.		Id.

[¶9] In	describing	this analysis	in	the	case	at	bar,	the 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	psychological	
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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	says	.	.	.	.	 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.		

[¶10]	 	 Thus,	 the	 court’s	 decision	 to	 exclude	 the	 video	 from	 the	 State’s	

case-in-chief	ensured	 that	it	would	not	be	used	as	a	 “dagger.”		Id.		The	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.	 	Id.	 	Under	 these	 circumstances,	 the	 reasonable	

sanction	selected	by	 the	court	did	not	deprive	Matatall	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	Criminal	Docket	docket	number	CR-2017-30239

FOR	CLERK	REFERENCE	ONLY