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State v. Minor2/20/2002
to administering the intoxilyzer test on Minor, that he did not observe Minor regurgitate or burp, and that Minor did not mention that he had regurgitated, nor did he call attention to his condition.
[ 6] Following the jury's return of a guilty verdict, Minor took this appeal. [FN3]
FN3. Minor's sentence was a fine of $400, plus applicable surcharges and assessments, and his right to drive was suspended for ninety days.
[ 7] Minor does not dispute that the evidence was sufficient to support his conviction. He argues, however, that the court impermissibly denied his motion for deposition.
[ 8] We review a trial court's denial of a motion to depose a witness pursuant to Rule 15 for an abuse of discretion. M.R.Crim. P. 15(a) (court "may" grant motion if prerequisites are established). Although the granting of such a motion is within the trial court's discretion, that discretion is not broad, "and must be exercised with an eye to the policy that depositions are not favored in criminal cases." 2 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 242 (3d ed.2000). [FN4]
FN4. Minor did not take advantage of the procedures available to him for presenting the expert testimony he wanted. In its order denying Minor's first motion, the court postponed the trial for four months and told Minor that, if the testimony was crucial, he should obtain a Maine expert. The court reiterated this sentiment in its second denial of Minor's motion, two and one-half weeks prior to trial. A Maine doctor could have testified as to Minor's diagnoses and the possibility that his condition skewed the intoxilyzer results.
Furthermore, even if his treating physician's testimony was absolutely essential to his defense, Minor failed to avail himself of his rights pursuant to the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, 15 M.R.S.A. §§ 1411-1415 (1980). Minor made no attempt to subpoena the doctor for trial pursuant to M.R.Crim. P. 17 (subpoena) and 15 M.R.S.A. §§ 1411-1415.
[ 9] A defendant's motion to depose a witness will be granted only when the defendant demonstrates the following:
(1) the prospective witness may be prevented from attending a trial;
(2) the materiality of the witness's testimony; and,
(3) the possibility of a failure of justice if the deposition is not allowed.
M.R.Crim. P. 15(a).
[ 10] Although the testimony to be offered by Minor's physician would be material, we are not persuaded that the two other prerequisites are satisfied. Burdens and expenses involved in securing a witness for trial are not to be given great weight by the trial court in determining whether a person is unavailable. State v. Hassapelis, 620 A.2d 288, 290 (Me.1993). When a "deposition is sought solely for the convenience of the witness or a party, the failure of justice requirement of Rule 15(a) will not be met." DAVID P. CLUCHEY ET AL, MAINE CRIMINAL PRACTICE § 15.2, at IV-73 (rev. ed.1995). Because Minor alleged only that procuring his doctor's presence would be inconvenient and expensive, he failed to establish the first and third prerequisites for the granting of his Rule 15(a) motion.
[ 11] Moreover, Minor testified that he regurgitated stomach contents into his mouth five minutes before taking the intoxilyzer *98 test due to his medical condition, the same facts that Minor wanted his doctor to explain. The arresting officer hypothesized that if Minor had in fact regurgitated as he claims then the intoxilyzer test results may have been artificially inflated. The trial court acted within its discretion in denying Minor's motions for the taking of telephonic depositions.
The entry is:
Judgment affirmed.
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