MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	84	
Docket:	   Wal-18-149	
Argued:	   June	12,	2018	
Decided:	  July	3,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                 SHARON	CARRILLO	
	
	
GORMAN,	J.	

	     [¶1]	 	 Sharon	 Carrillo	 appeals	 from	 an	 order	 entered	 by	 the	 trial	 court	

(Waldo	 County,	 R.	 Murray,	 J.)	 denying	 her	 motion	 to	 disqualify	 the	 State’s	

attorneys	from	further	participation	in	her	prosecution	for	murder,	17-A	M.R.S.	

§	201(1)(B)	(2017).		Carrillo	contends	that	the	two	Assistant	Attorneys	General	

representing	the	State	should	have	been	disqualified	based	on	their	access	to	

privileged	or	confidential	information	obtained	by	the	State’s	violation	of	the	

subpoena	process.		We	dismiss	the	appeal	as	interlocutory.	

                                   I.		BACKGROUND	

	     [¶2]		On	March	15,	2018,	Carrillo	was	indicted	for	depraved	indifference	

murder,	 17-A	 M.R.S.	 §	 201(1)(B),	 in	 connection	 with	 the	 death	 of	 her	

ten-year-old	 daughter.	 	 Soon	 after,	 the	 State	 subpoenaed	 records	 relating	 to	
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Carrillo	from	Carrillo’s	former	school	and	former	employer	in	New	York.		After	

concluding	that	the	State	had	obtained	the	records	through	a	violation	of	the	

subpoena	 process	 set	 out	 in	 M.R.U.	 Crim.	P.	17A,	 the	 court	 granted	 Carrillo’s	

request	 for	 a	 protective	 order	 and	 required	 that	 all	 documents	 produced	 in	

response	to	the	subpoenas	be	surrendered	to	the	court	to	be	placed	under	seal.			

      [¶3]	 	 Carrillo	 also	 moved	 to	 disqualify	 the	 State’s	 attorneys	 from	

participating	 further	 in	 her	 prosecution	 on	 the	 ground	 that	 the	 prosecutors	

committed	 “serious	 and	 ethical	 violations”	 in	 obtaining	 the	 subpoenaed	

information.		After	a	hearing,	by	order	dated	April	12,	2018,	the	court	denied	

the	 motion	 to	 disqualify,	 stating	 that	 “disqualification	 .	 .	 .	 is	 reserved	 for	

situations	 of	 prior	 representation,	 conflicts	 of	 interest,	 prosecutorial	

misconduct,	 and	 other	 unethical	 attorney	 behavior,”	 and	 that	 it	 was	 not	

persuaded	 that	 the	 prosecutors’	 error	 rose	 “to	 that	 level	 of	 behavior	 which	

would	 warrant	 the	 rather	 extraordinary	 remedy	 of	 disqualification.”		

(Quotation	 marks	 omitted.)	 	 Carrillo	 instituted	 this	 appeal	 to	 challenge	 the	

court’s	denial	of	her	motion	to	disqualify.			

                                    II.		DISCUSSION	

      [¶4]	 	 We	 first	 consider	 the	 State’s	 motion	 to	 dismiss	 the	 appeal	 as	

interlocutory.		“It	is	well	settled	that	appeals,	in	order	to	be	cognizable,	must	be	
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from	a	final	judgment.”		State	v.	Lemay,	611	A.2d	67,	68	(Me.	1992).		There	is	no	

dispute	that	Carrillo’s	case	is	far	from	a	final	judgment.		See	Bond	v.	Bond,	2011	

ME	 105,	 ¶	 5,	 30	 A.3d	 816	 (“A	judgment	 is	 final	 only	 if	 it	 disposes	 of	 all	 the	

pending	claims	in	the	action,	leaving	no	questions	for	the	future	consideration	

of	the	court.”	(quotation	marks	omitted)).		Carrillo	contends,	however,	that	the	

matter	qualifies	for	immediate	review	pursuant	to	the	death	knell	exception	to	

the	final	judgment	rule,	which	applies	“when	substantial	rights	of	a	party	will	

be	 irreparably	 lost	 if	 review	 is	 delayed	 until	 final	 judgment.”	 	 Estate	 of	

Markheim	 v.	 Markheim,	 2008	ME	 138,	 ¶	13,	 957	A.2d	 56	 (quotation	 marks	

omitted).		It	is	Carrillo’s	burden,	as	the	appellant	seeking	immediate	review,	to	

demonstrate	that	the	exception	to	the	final	judgment	rule	applies.		See	Sanborn	

v.	Sanborn,	2005	ME	95,	¶	6,	877	A.2d	1075.			

       [¶5]		We	have	categorically	held	that	the	grant	of	a	motion	to	disqualify	

is	 immediately	 appealable	 because	 “[t]he	 disqualification	 of	 an	 attorney	 will	

involve	 a	 disadvantage	 and	 expense	 that	 cannot	 be	 remedied	 after	 the	

conclusion	of	the	case.”		Tungate	v.	MacLean-Stevens	Studios,	Inc.,	1997	ME	113,	

¶	 5,	 695	 A.2d	 564.	 	 “[T]he	 question	 of	 whether	 a	 party	 is	 entitled	 to	 be	

represented	by	counsel	of	the	party’s	choosing	must	be	determined	early	in	the	
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case,	or	that	right	is	lost.”		Irving	Oil	Ltd.	v.	ACE	INA	Ins.,	2014	ME	62,	¶	14,	91	

A.3d	594.	

      [¶6]	 	 The	 denial	 of	 a	 motion	 to	 disqualify	 implicates	 no	 such	 concerns,	

however,	 Tungate,	 1997	 ME	 113,	 ¶¶	 4-5,	 695	 A.2d	 564,	 because	 “if	 we	

determine	 on	 review	 following	 the	 entry	 of	 a	 final	 judgment	 that	

disqualification	is	required,	then	that	action	can	occur	prior	to	a	new	trial,	and	

both	parties	would	be	put	in	the	same	position	that	they	would	have	been	in	if	

disqualification	 occurred	 following	 an	 interlocutory	 appeal,”	 Fiber	 Materials,	

Inc.	v.	Subilia,	2009	ME	71,	¶	21,	974	A.2d	918.		We	have	also	warned	that	“a	

blanket	exception	to	the	final	judgment	rule	allowing	the	denial	of	a	motion	to	

disqualify	to	be	immediately	appealed	would	allow	any	appellant	to	force	us	to	

prematurely	review	issues	that	would	otherwise	have	to	wait	for	the	complete	

record	that	accompanies	a	final	judgment.”		Id.	¶	22.		Such	a	practice	would	at	

once	 “eviscerate”	 the	 final	 judgment	 rule,	 id.	 ¶	 23,	 and	 allow	 motions	 for	

disqualification	to	be	“abused	for	tactical	purposes,”	Morin	v.	Me.	Educ.	Ass’n,	

2010	ME	36,	¶	8,	993	A.2d	1097.		

	     [¶7]		In	Markheim,	an	isolated	case	involving	a	civil	claim,	we	considered	

the	merits	of	a	denial	of	a	motion	to	disqualify	in	an	interlocutory	appeal	after	

determining	that	the	death	knell	exception	to	the	final	judgment	rule	applied.		
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2008	ME	138,	¶¶	1,	13,	20-22,	957	A.2d	56.		In	that	case,	the	trial	court	denied	

a	motion	to	disqualify	the	attorney	for	the	opposing	party	in	which	the	moving	

parties	argued	that	the	attorney	was	“privy	to	confidential	information”	when	

he	previously	represented	them	in	a	“substantially	similar”	prior	litigation.		Id.	

¶¶	1,	 4,	 10,	 21.	 	 We	 agreed	 to	 review	 the	 appeal	 on	 the	 merits	 because	 the	

moving	 parties	 had	 identified	 “specific	 examples”	 of	 the	 confidential	

information	 the	 attorney	 had	 from	 his	 prior	 representation	 that	 could	 harm	

them	in	the	pending	matter.		Id.	¶¶	20-21.		Otherwise,	we	held,	“the	confidences	

and	 privileged	 information	 revealed	 in	 the	 course	 of	 the	 proceedings	 would	

become	 part	 of	 the	 record.”	 	 Id.	 ¶	 20;	 see	 Butler	 v.	 Romanova,	 2008	 ME	 99,	

¶¶	5-10,	953	A.2d	748	(considering	the	merits	of	the	court’s	denial	of	a	motion	

to	disqualify	in	a	divorce	matter	after	concluding,	without	elaborating,	that	the	

moving	party	otherwise	“[stood]	to	irreparably	lose	substantial	rights”).				

	     [¶8]		Even	if	we	were	to	apply	Markheim’s	analysis	to	Carrillo’s	appeal,	

we	would	have	to	conclude	that	Carrillo	has	not	met	her	burden	of	establishing	

the	application	of	the	death	knell	exception	to	the	final	judgment	rule.		Unlike	

the	moving	party	in	Markheim,	2008	ME	138,	¶	20,	957	A.2d	56,	Carrillo	has	

failed	to	articulate	any	irreparable	loss	of	a	right	that	she	stands	to	suffer	by	

allowing	these	prosecutors	to	continue	to	represent	the	State.		She	has	argued	
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that	the	prosecutors’	knowledge	of	the	records	“interferes	with	[her]	right	to	

testify	at	trial”	and	“taints	the	process”	because,	“[i]f	she	testifies	at	trial,	.	.	.	she	

will	 know	 that	 these	 prosecutors	 have	 read	 private	 and	 sensitive	 personal	

information	about	her	which	she	thought	was	confidential	and	secret.”		Carrillo	

has	also	argued	that	“[e]ven	if	the	prosecution	was	prohibited	from	using	the	

information	[obtained	from	the	records]	directly,	they	would	be	able	to	push	

and	explore	on	cross	examination	–	or	through	their	own	expert	presentation	

further	develop	–	aspects	of	different	psychological	background	and	cognitive	

functioning	 that	 they	 have	 learned	 about	 through	 the	 acquisition”	 of	 the	

records	 at	 issue.	 	 Such	 general	 assertions,	 however,	 do	 not	 constitute	 the	

specific	 demonstration	 of	 irreparable	 loss	 that	 is	 required	 to	 abandon	 our	

otherwise	 well-settled	 application	 of	 the	 final	 judgment	 rule	 to	 denials	 of	

motions	 to	 disqualify.	 	 See	 Subilia,	 2009	ME	 71,	 ¶	21,	 974	 A.2d	 918;	

cf.	Markheim,	2008	ME	138,	¶¶	20-21,	957	A.2d	56.		We	note	also	that	the	trial	

court	has	already	issued	an	appropriate	protective	order	and	required	that	all	

documents	produced	in	response	to	the	subpoenas	be	placed	under	seal	with	

the	court.			Given	the	circumstances	presented	by	this	case,	we	decline	to	apply	

the	death	knell	exception	to	the	final	judgment	rule,	and	we	therefore	dismiss	

the	appeal	as	interlocutory.	
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         The	entry	is:	

                            Appeal	dismissed.	
	
	      	      	       	     	     	
	
Christopher	 K.	 MacLean,	 Esq.	 (orally),	 and	 Laura	 P.	 Shaw,	 Esq.,	 Camden	 Law	
LLP,	Camden,	for	appellant	Sharon	Carrillo	
	
Janet	 T.	 Mills,	 Attorney	 General	 and	 Leanne	 Robbin,	 Asst.	 Atty.	 Gen.	 (orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
Waldo	County	Unified	Criminal	Docket	docket	number	CR-2018-146	
FOR	CLERK	REFERENCE	ONLY	
