State v. Vera

STATE OF MAINE Plaintiff, v. STEVEN PRIMA VERA Defendant.

No. ANDCD-CR-18-1714

Superior Court of Maine, Androscoggin

March 16, 2020

ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

MaryGay Kennedy, Justice.

Pending before the court is Defendant Steven Primavera's Motion to Suppress Evidence. A hearing on the motion to suppress was held on June 28 and July 1, 2019.

As a threshold matter, the State requested a stay of this court's decision on the motion to suppress in order to await the Law Court's decision in State v Weddle, 2020 ME 12, ___ A. 3d ___. The court agreed that the Weddle decision might well affect its decision on Defendant's motion to suppress. Accordingly, the court granted the States motion to stay.

On January 28, 2020, the Law Court issued its decision in Weddle and determined that 29-A M.R.S. § 2522(1)-(3) is unconstitutional because it "does not require that law enforcement have consent or probable cause to believe that a driver is impaired before drawing a person's blood." Weddle, 2020 ME 12, ¶ 29, ___ A.3d ___.

Turning to Defendant's motion to suppress, Mr. Primavera has moved to suppress: (1) his blood test results; (2) his statements made in the course of an interview with Detective Terrence McCormick; (3) evidence procured by the seizure and search of his cell phone; and, (4) a Maine Prescription Monitoring Program report.

The court makes the following findings of fact and conclusions of law.

I. Findings of Fact

At approximately 5:52 p.m. on Friday, September 22, 2017, Steven Primavera was driving west on Court Street. Reginald and Kathryn Clement were on motor cycles riding east on Court Street. Mr. Primavera's vehicle crossed the center line. His vehicle struck Mr. Clement's motorcycle and a tree before coming to rest at the curb in the east bound lane. Mr Clement sustained serious injuries and was taken by ambulance to CMMC. Tragically, Mr. Clement did not survive.

At 6:29 p.m., Detective Terrence McCormick of the Auburn Police Department (APD) received a call that there had been a fatal motor vehicle crash. (Tr. 22.) In response to the call, he drove up Court Street towards Minot Avenue. Detective McCormick observed "a white colored vehicle on the opposite side of the lane with some heavy damage to it up by the curb." He also saw two motorcycles "laid down" in the road. Detective McCormick arrived at 6:56 p.m. He was in an unmarked vehicle, wearing plain clothes. (Tr. 25.) He met with the shift commander, Lieutenant Scott Watkins, who advised the scene had been secured.

Lieutenant Watkins had asked Officer Tyler Ham to report to work early to assist at the scene. Officer Ham arrived at the scene in full uniform and was told to "monitor" Mr. Primavera. Officer Ham inferred that monitor "could mean, don't let him leave." Officer Ham testified, "I was told to keep an eye on him, I don't think [Mr. Primavera] was allowed to leave at that time." (Tr. 138, 147-48.) When asked "had [Mr. Primavera] tried to get in the car with his girlfriend you would have stopped him?" Officer Ham testified, "If needed, but... [Mr. Primavera] made no indication he was ready to leave or anything, he was willing to talk it sounds like." And when asked, "He wasn't free to leave at that point in time?" Officer Ham testified, "I don't believe so." (Tr. 148.)

From the time Officer Ham arrived until the scene was cleared, he spent almost two hours with Mr. Primavera. Officer Ham described Mr. Primavera as "decent, polite and courteous." Mr. Primavera did not have bloodshot eyes or soiled clothing. He did not sway or make any unusual actions. Officer Ham did not hear Mr. Primavera slur his speech, make any admissions or inconsistent responses. Officer Ham did not smell any alcohol, marijuana or cover-up odors. (Tr. 149.)

Officer Andrew Shute was also on duty that day and was dispatched to the accident scene to help with traffic control. (Tr. 191.) He arrived in his marked cruiser and was in full uniform. (Tr. 191.) He observed the motorcycles "laid down" on the road and the fire department loading a patient into an ambulance. He testified that he had contact with Mr. Primavera and asked him what had occurred. Mr. Primavera said he "was coming westbound and went off, hit the curb, came back into the other lane and that's when the accident occurred." Officer Shute asked him if he had anything to drink. Mr. Primavera said, "no." He said he just worked a sixteen-hour shift.

Lieutenant Watkins also advised Detective McCormick that Officer Bernice Westleigh had taken a blood draw from the operator of the white vehicle. Officer Westleigh is a registered law enforcement phlebotomy technician with APD. (Tr. 165.) She returned to work to do the blood draw. She was not in uniform when she arrived at the scene. She was not wearing a badge and did not have her firearm. She was directed to the back of an ambulance where she met Officer Shute and Mr. Primavera. She recalled seeing Mr. Primavera walking outside of the ambulance, smoking a cigarette.

Once inside the ambulance, Officer Westleigh opened the blood draw kit and filled out the enclosed paperwork. When asked to read the form into the record in the same way [she] read it to the Defendant that evening, Officer Westleigh testified as follows:

It says name of subject, Steven Primavera. On this date 9/22/2017, 18:33, eight p.m., let my signature state that I have given consent for these blood samples to be taken.

(Tr. 174.) Officer Westleigh did not recall what, if anything, Mr. Primavera said after she read him the consent card. She testified that she asked him if he understood, he stated he did and she asked for his signature, which he provided. (Tr. 174.)

When asked about the other card, the Blood Collection Report, Officer Westleigh testified that she "might have incorrectly put the wrong date, or the wrong time." (Tr. 184.) There are blanks for "Time and date of arrest," which Officer Westleigh filled in with "17:52." She explained that "Time and date of arrest" means "time of the incident," which is the time she is "given from the officer." Officer Westleigh did not recall which officer gave her the time she wrote down. She was also unable to explain why she wrote "18:27 Court St." in the "Time and Site of Collection" line on the card. (Tr. 184.) She testified that she signed the card, that she "drew blood from the above named subject at said date," and that Officer Shute signed that he "witnessed the actual drawing of blood by above stated person from the above subject." (Tr. 186.) Despite the discrepancies in the times she wrote down and that were sworn to by Officer Shute, Officer Westleigh testified she was certain she drew blood from Mr. Primavera "on the date indicated at 18:33 hours."

Officer Westleigh had no concerns about Mr. Primavera's ability to consent to the blood draw. (Tr. 176.) She testified that at one point Mr. Primavera told her he was feeling a little light headed. As a result, she only did a "short draw."^[1] Once she removed the needle, Mr. Primavera indicated he was feeling better.

Officer Westleigh described Mr. Prima vera as conscious, alert and appropriately responsive to her questions. The entire process took about 30 to 45 minutes. During that time, Officer Westleigh did not detect any signs of impairment in Mr. Primavera.

Officer Shute testified that the interaction between Officer Westleigh and Mr. Primavera prior to the blood draw, "seemed pretty casual." (Tr. 197.) He had no memory of Officer Westleigh providing Mr. Primavera with any explanation regarding his obligation to submit to a blood draw. (Tr. 197.) He did remember, however, hearing Mr. Primavera consent to the blood draw. When asked if Mr. Primavera had "problems with his balance or anything of that nature," Officer Shute testified, "Nothing that I observed." (Tr. 198.)

Lieutenant Watkins further advised Detective McCormick that the prosecutor's office and medical examiner's office had been contacted; efforts were underway to find an accident reconstructionist; the motorcycle victim had been taken by ambulance to CMMC and the other rider, the victim's wife, accompanied him in the ambulance; and, the driver of the white car, who was standing on the side of the road, had been identified. (Tr. 23-24.) Lieutenant Watkins told Detective McCormick that Mr. Primavera was cooperative.^[2]

After speaking briefly with some of the other officers at the scene, Detective McCormick introduced himself to Mr. Primavera and asked if he would be willing to talk to him. (Tr. 26.) Mr. Primavera said he would. As they walked to the cruiser where the interview was to take place, Detective McCormick did not observe any indication that Mr. Primavera was under the influence of alcohol. His gait and balance were fine and there was no odor of alcohol coming from him.

When they got into the vehicle. Detective McCormick told Mr. Primavera that he was not under arrest and that he just wanted to talk to him. As they sat side by side in the front seat, Detective McCormick was able to see Mr. Primavera clearly. His face was not flushed. His eyes were not bloodshot or watery. His eyelids were not droopy and his pupils were not constricted. He was not combative. He appeared, in fact, very calm and relaxed. Detective McCormick did note, however, that he had some difficulty hearing Mr. Primavera. On occasion he asked him to repeat what he said or would repeat it himself. Detective McCormick testified that Mr. Primavera's speech was slow and deliberate and that his tone was very low, at times difficult to hear. (Tr. 70, 120.)

During the interview, Mr. Primavera said to Detective McCormick "... My dad's right over there. Can I just tell him what's going on?" Detective McCormick said, "Yeah. ...