MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2014 ME 43
Docket:   Aro-13-307
Argued:   February 11, 2014
Decided:  March 18, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
             JJ.


                                STATE OF MAINE

                                         v.

                                REGINALD DUBE

GORMAN, J.

         [¶1] Reginald Dube appeals from a judgment entered upon a jury verdict

finding him guilty of gross sexual assault, unlawful sexual contact, and furnishing

liquor to a minor.     He contends that the Superior Court (Aroostook County,

Hunter, J.) erred in denying his motion in limine and motion to continue, allowing

the State to participate in a pretrial hearing on those motions, and denying his

motion for judgment of acquittal. He also contends that the evidence is insufficient

to support his convictions.     Because we conclude that the trial court acted

appropriately in its handling of motions filed on the eve of trial and did not abuse

its discretion in denying those motions, and because the evidence is sufficient to

support the convictions, we affirm the judgment.
2

                                        I. BACKGROUND

        [¶2] On September 8, 2011, Reginald Dube was indicted on two counts of

gross sexual assault (Class B), 17-A M.R.S. § 253(2)(D) (2013); one count of

unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(D) (2013); and one

count of furnishing liquor to a minor (Class D), 28-A M.R.S. § 2081(1)(A)(2)

(2013), arising from allegations that on October 10 and December 3, 2010, Dube

furnished alcohol to a sixteen-year-old minor and, when she passed out and was

unable to resist, subjected her to sexual contact and engaged in sexual acts

with her.

        [¶3] After the case had been continued off four trial lists, a jury was finally

chosen on December 5, 2012. On December 10, 2012, two days before the trial

was to begin, counsel for Dube filed two motions: a motion to continue the trial

and a motion in limine for production of protected documentary evidence pursuant

to M.R. Crim. P. 17(d).1 In the motion in limine, Dube’s counsel explained that

Dube had disclosed to him on December 7, 2012, that the victim had been

involuntarily hospitalized at least four times before the alleged incidents, thereby

    1
      Effective January 1, 2014, Rule 18 was adopted to deal exclusively with a subpoenaing party whose
sole interest is to obtain documents or other tangible objects by subpoena without witness attendance.
See M.R. Crim. P. 18 Advisory Note to 2014 amend. (“New Rule 18 provides for . . . the special
provisions for privileged or protected documentary evidence reproduced from Rule 17(d) . . . . It is
anticipated that subdivision (d) of Rule 18 will be applied in accordance with the four factors approvingly
listed in State v. Watson, 1999 ME 41, ¶ 6, 726 A.2d 214.”). At the same time, Rule 17 was amended.
See id. Because these amendments do not apply to Dube’s appeal, we refer here to Rule 17(d) as it
existed prior to the January 1, 2014, amendments.
                                                                                    3

“giving rise to a concern that information related to these hospitalizations may

contain exculpatory evidence.” Attached to the motion were subpoenae duces

tecum directed to the Aroostook Mental Health Center and Northern Maine

Medical Center, commanding representatives of those institutions to “permit

inspection and copying” of “any and all files or records pertaining to the treatment

and or hospitalization” of the victim prior to December 3, 2010.

      [¶4] The court held a hearing on the motions the next day. Dube’s counsel

objected to the State’s participation in the hearing on grounds that it would disclose

Dube’s “working theory of the case.” The court allowed the State to remain,

explaining that it did so because the motions were inextricably linked and were

filed so late in the proceedings. At the conclusion of the hearing, the court denied

both motions because Dube had filed the motions nearly eleven months after the

established deadline and on the eve of trial, and had failed to make the requisite

showing pursuant to State v. Watson, 1999 ME 41, ¶¶ 6-7, 726 A.2d 214 that the

motion in limine was not a “fishing expedition.”

      [¶5] During the two-day trial, the victim, Dube, and other witnesses offered

competing versions of the events at issue. After the State rested its case, Dube

moved for a judgment of acquittal, which the court denied.             After closing

arguments and instructions, the jury returned a verdict of “not guilty” on the gross

sexual assault charge arising from the events of October 2010, and guilty verdicts
4

on the charges of gross sexual assault, unlawful sexual contact, and furnishing

liquor to a minor arising from the events of December 2010. The court sentenced

Dube to eight years of incarceration for the conviction of gross sexual assault, with

all but five years suspended, and three years of probation; five years of

incarceration for the conviction of unlawful sexual contact, to be served

concurrently; and 364 days of incarceration for the conviction of unlawful

furnishing of alcohol, also to be served concurrently. Dube timely appealed from

the conviction and the sentence. The Sentence Review Panel denied Dube leave to

appeal from the sentence.

                                         II. DISCUSSION

         [¶6] Dube argues that the court erred in denying his motion in limine,

permitting the State to participate in the pretrial hearing on that motion, and

denying his motion to continue.2 We address each contention in turn.

A.       Motion in Limine

         [¶7] Dube contends that the court erred when it rejected his motion in

limine, thereby denying him a meaningful opportunity to present a complete

defense in violation of his constitutional rights to due process and to confront



     2
       Dube also argues that the court erred in denying his motion to acquit and that the evidence is
insufficient to support his convictions. We conclude that the evidence at trial, when viewed in the light
most favorable to the State, rationally supports the jury’s finding of proof of guilt beyond a reasonable
doubt. See State v. Severy, 2010 ME 126, ¶ 8, 8 A.3d 715.
                                                                                  5

witnesses. He argues that evidence of the victim’s hospitalizations would have

helped establish that the victim had a motive to fabricate the events at issue.

      [¶8] “To withstand a challenge to a subpoena duces tecum, a party must

make a preliminary showing to the court that the subpoena is justified.” Watson,

1999 ME 41, ¶ 6, 726 A.2d 214. A party seeking a subpoena must show, inter alia,

that the application is made in good faith and is not intended as a fishing

expedition. Id. We review a trial court’s denial of a motion in limine for an abuse

of discretion and its legal conclusions de novo. State v. Rickett, 2009 ME 22, ¶ 9,

967 A.2d 671.

      [¶9] In Watson, we held that the trial court had not abused its discretion in

quashing a subpoena duces tecum for the victim’s medical records on grounds that

defense counsel’s speculation that the records might provide a basis to impeach the

victim was no more than a fishing expedition. See Watson, 1999 ME 41, ¶ 7, 726

A.2d 214. In requiring a moving party to make a preliminary showing that a

subpoena pursuant to Rule 17(d) is justified, we cited to federal case law that

recognized that the right to compulsory process, although rooted in constitutional

principles, is a restricted right whose exercise must satisfy certain threshold

relevancy and evidentiary standards. See, e.g., United States v. Nixon, 481 U.S.

683, 707, 713 (1974) (concluding, after weighing the competing interests of the

parties’ rights against the “legitimate needs of the judicial process,” that
6

generalized assertions of constitutional rights “must yield to the demonstrated,

specific need for evidence in a pending criminal trial” (emphasis added)); Bowman

Dairy Co. v. United States, 341 U.S. 214, 221 (1951) (invalidating a catch-all

clause in a subpoena because it was “not intended to produce evidentiary

materials”). Accordingly, when a defendant seeking a subpoena duces tecum

cannot satisfy the Watson test, a trial court may restrict his right to compulsory

process without impairing his constitutional rights to due process and to confront

witnesses.

        [¶10] The court did not abuse its discretion when it denied Dube’s motion.

When the court inquired whether Dube had any “good faith basis” to believe that

there would be an exculpatory statement in the records, counsel for Dube replied

that it would be “impossible to know,” opined that he would expect some

disclosure by the victim to hospital staff if the allegations3 were true, and stated

that “it matters less what is in the [records] than just the fact that [the

hospitalizations] happened and who had her institutionalized.” The court did not

err in finding that such speculation concerning whether the sought-after records

might reveal the victim’s motive to fabricate, without more, was a fishing

expedition. See Watson, 1999 ME 41, ¶ 7, 726 A.2d 214. Moreover, Dube was

    3
     Because the records requested covered the period before the December 3, 2010, events that led to
Dube’s conviction, it is difficult to ascertain how the victim could have made a disclosure about those
events.
                                                                                    7

permitted to and did cross-examine the victim at trial about her hospitalizations

and her motivation to lie about Dube’s actions.

B.    State’s Participation in the Motions Hearing

      [¶11] Dube next argues that he was unfairly prejudiced when the court

allowed the State to take part in the motions hearing because Dube was compelled

to reveal his trial strategy in order to justify his motion in limine. A criminal

defendant has both a due process right to obtain evidence that bears on the

determination of either guilt or punishment and a Sixth Amendment right to

compulsory process to require the production of evidence. See United States v.

Tomison, 969 F. Supp. 587, 593 (E.D. Cal. 1997). Rule 17(d) implements both the

right to obtain the evidence and to require its production. Cf. id. (considering the

constitutional context of the federal counterpart to M.R. Crim. P. 17(d)).

Therefore, in order to protect a defendant’s fundamental right to due process, trial

courts may consider ex parte applications for pretrial production pursuant to

subpoenae duces tecum in limited circumstances where a defendant asserts that he

or she cannot make the requisite Watson showing without revealing trial strategy.

      [¶12] In this case, Dube made no such assertion in his motion in limine. In

fact, the language used in the motion revealed his defense strategy. In his motion,

Dube stated:
8

      Defendant has disclosed to his attorney that the [victim] was
      hospitalized . . . for some reason pertaining to her mental health no
      less than four times prior to the allegations that gave rise to these
      charges, giving rise to a concern that information related to these
      hospitalizations may contain exculpatory evidence . . . . Defendant’s
      defense is grounded, in part, on the [victim’s] fear of being
      institutionalized by her parents had the actual events of the night in
      question been relayed to them . . . .

The State was, therefore, already aware that Dube’s defense would rest in part on

the victim’s motive to lie. In these circumstances, the court’s decision to allow the

State to be present during the motions hearing did not result in a premature

disclosure of Dube’s trial strategy.

C.    Motion to Continue

      [¶13] Finally, Dube argues that the court abused its discretion when it

denied his motion to continue.         A party seeking a continuance must show

“substantial reasons why granting the continuance would serve to further justice.”

In re Trever I., 2009 ME 59, ¶ 28, 973 A.2d 752. We review a court’s denial of a

motion to continue for an abuse of discretion, State v. Dechaine, 572 A.2d 130,

132 (Me. 1990), examining whether the denial had any “adverse prejudicial effect”

on the movant’s substantial rights and viewing each case “largely upon its own

facts and circumstances,” Wright & Mills v. Bispham, 2002 ME 123, ¶ 13,

802 A.2d 430; Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (“There are no

mechanical tests for deciding when a denial of a continuance is so arbitrary as to
                                                                                    9

violate due process.”). Although the trial court’s discretion “must be exercised

judiciously and with an eye toward fundamental fairness, even the arbitrary denial

of a continuance cannot sink to the level of a due process violation unless it results

in actual prejudice.” Amouri v. Holder, 572 F.3d 29, 36 (1st Cir. 2009).

      [¶14] Dube contends that he revealed the victim’s motive to fabricate the

events at issue to his counsel only a few days before the scheduled trial, the records

sought were relevant and competent to impeach the victim, granting the

continuance would have made procurement of the records likely, counsel engaged

in due diligence to obtain the evidence before trial, and the request was reasonable.

Even if those assertions had been accepted by the trial court, the court was

permitted to consider the timing of Dube’s requested relief. Dube’s motion was

filed eleven months after the court’s established deadline—on the eve of trial, after

multiple continuances from earlier trial lists, and after a jury had been selected. In

light of these circumstances, the court did not abuse its discretion in determining

that Dube had been given sufficient time to prepare a defense and that further

postponement of the trial was unreasonable. See State v. Rastrom, 261 A.2d 245,

247 (Me. 1970) (“The granting of a continuance . . . based upon want of time to

prepare a defense rests in the sound discretion of the presiding justice.” (quotation

marks omitted)).    Moreover, the denial had no prejudicial effect on Dube’s

substantial rights because, as already explained, Dube could not make out a
10

preliminary Watson showing to support the subpoenas and he did question the

victim about her hospitalizations and her motivation to lie. In short, Dube has

failed to show that granting the motion to continue would have likely altered the

outcome of the proceeding. See Amouri, 572 F.3d at 36.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Jon P. Plourde, Esq., Currier and Trask, P.A., Presque Isle, for
        appellant Reginald Dube

        Todd R. Collins, District Attorney, and James G. Mitchell, Jr.,
        Asst. Dist. Atty., 8th Prosecutorial District, Caribou, for
        appellee State of Maine


At oral argument:

        Jon P. Plourde, Esq. for appellant Reginald Dube

        Todd R. Collins, District Attorney, for appellee State of Maine



Aroostook County Superior Court docket number CR-2011-387
FOR CLERK REFERENCE ONLY
