MAINE	SUPREME	JUDICIAL	COURT	                                        Reporter	of	Decisions	
Decision:	 2017	ME	63	
Docket:	   Yor-16-132	
Argued:	   February	8,	2017		      	     	      	      	     	
Decided:	  April	4,	2017	
                                                                                          	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                 NICHOLAS	W.	GAGNE		
	
	
ALEXANDER,	J.	

          [¶1]		Nicholas	W.	Gagne	appeals	from	a	judgment	of	conviction	for	two	

counts	of	gross	sexual	assault	(Class	A),	17-A	M.R.S.	§	253(1)(A)	(2016),	two	

counts	 of	 aggravated	 assault	 (Class	 B),	 17-A	 M.R.S.	 §	 208(1)(C)	 (2016),	 two	

counts	 of	 domestic	 violence	 assault	 (Class	 D),	 17-A	 M.R.S.	 §	 207-A(1)(A)	

(2016),	and	one	count	of	domestic	violence	terrorizing	(Class	D),	17-A	M.R.S.	

§	210-B(1)(A)	 (2016),	 entered	 by	 the	 trial	 court	 (York	 County,	 O’Neil,	 J.)	

following	a	seven-day	jury	trial.	

          [¶2]	 	 On	 appeal	 Gagne	 argues	 that	 the	 trial	 court	 (1)	 abused	 its	

discretion	by	denying	his	motion	for	sanctions	and	a	continuance	based	on	the	

State’s	 late	 disclosure	 of	 the	 victim’s	 medical	 records;	 (2)	 violated	 the	

Confrontation	 Clause	 when	 it	 admitted	 a	 recorded	 interview	 of	 the	 victim,	
2	

who	 testified	 at	 trial	 but	 lacked	 present	 memory	 of	 details	 about	 the	 crime	

and	what	she	had	said	to	the	interviewing	detective;	and	(3)	deprived	him	of	a	

fair	 trial	 by	 declining	 to	 allow	 him	 to	 call	 two	 late	 disclosed	 witnesses	 not	

included	on	the	witness	list	described	to	the	jury.1		We	affirm	the	judgment.	

                                              I.		CASE	HISTORY	

          [¶3]		Viewing	the	evidence	in	the	light	most	favorable	to	the	State,	the	

jury	 could	 rationally	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	

doubt.2		See	State	v.	Morrison,	2016	ME	47,	¶	2,	135	A.3d	343.		Nicholas	Gagne	

and	 the	 victim,	 when	 they	 were	 both	 about	 twenty	 years	 old,	 met	 through	 a	

mutual	friend	in	early	2013.		They	began	dating,	and	soon	the	victim	moved	in	

with	Gagne	at	a	Saco	home	occupied	by	Gagne,	Gagne’s	parents,	and,	for	part	

of	 the	 time,	 Gagne’s	 younger,	 adopted	 cousin.	 	 The	 victim	 worked	 at	 a	

supermarket	in	Scarborough;	Gagne	was	not	working	due	to	disability.			




     1	 	 Gagne	 also	 asserts	 that	 the	 jury	 instructions,	 which	 he	 agreed	 to	 at	 trial,	 lacked	 sufficient	

specificity	 to	 inform	 him	 of	 the	 conduct	 for	 which	 he	 was	 convicted,	 which	 prevented	 him	 from	
preparing	adequately	for	sentencing;	that	the	court	abused	its	discretion	in	denying	his	motions	for	
a	 mistrial;	 and	 that	 certain	 statements	 made	 by	 the	 prosecutor	 during	 closing	 arguments	
constituted	 prosecutorial	 misconduct	 that	 resulted	 in	 obvious	 error.	 We	 do	 not	 find	 these	
arguments	persuasive	and	do	not	discuss	them	further.		
     2	 	 Gagne	 does	 not	 challenge	 the	 sufficiency	 of	 the	 evidence	 to	 support	 the	 convictions.	 	 Our	

review	of	the	record	indicates	that	the	evidence	does	support	the	jury’s	findings	of	guilt	as	to	each	
charge.		See	17-A	M.R.S.	§§	207-A(1)(A)	(domestic	violence	assault),	208(1)(C)	(aggravated	assault),	
210-B(1)(A)	(domestic	violence	terrorizing),	253(1)(A)	(gross	sexual	assault)	(2016).	
                                                                                         3	

      [¶4]	 	 In	 the	 summer	 of	 2013,	 the	 victim,	 who	 has	 attention	 deficit	 and	

sensory	integration	issues	that	make	it	difficult	for	her	to	process	information	

and	 regulate	 her	 emotions,	 went	 to	 Louisiana	 with	 her	 mother	 for	 several	

weeks	of	treatment.		Gagne	disapproved	of	her	trip	and	called	her	repeatedly	

while	 she	 was	 away,	 accusing	 her	 of	 cheating	 on	 him	 and	 making	 threats	

toward	her	parents	and	pet,	including	a	threat	to	kill	her	father.	

	     [¶5]	 	 Within	 a	 week	 after	 the	 victim	 returned	 from	 Louisiana,	 she	

moved	in	with	Gagne	again.		Although	the	victim	left	Gagne	repeatedly	during	

their	 relationship,	 they	 remained	 together	 through	 early	 November	 2013.		

When	they	were	together,	Gagne	insisted	on	being	with	the	victim	at	all	times	

and	did	not	allow	her	to	visit	friends	or	even	to	use	the	bathroom	by	herself.		

He	kept	her	cell	phone	from	her	except	when	she	went	to	work.	

	     [¶6]	 	 On	 the	 night	 of	 November	 4,	 2013,	 while	 the	 victim	 was	 with	

Gagne,	 he	 said	 he	 was	 going	 to	 have	 sex	 with	 her,	 even	 though	 she	 told	 him	

that	she	did	not	want	to	have	sex	with	him.		He	stated	that	he	would	rape	her	

and	 there	 was	 nothing	 she	 could	 do	 about	 it.	 	 When	 she	 got	 up	 to	 leave,	 he	

pushed	her	onto	the	bed	in	their	room.		He	strangled	the	victim	with	his	hands	

and	 forced	 her	 to	 have	 sex	 with	 him	 even	 though	 she	 resisted.	 	 She	 moved	
4	

around,	kicked	him,	and	told	him	to	stop,	but	he	penetrated	her	with	his	penis	

in	several	different	ways.		He	also	tried	to	put	a	stick	in	her	anus.	

	        [¶7]	 	 Afterward,	 the	 victim	 fell	 asleep.	 	 She	 did	 not	 have	 her	 phone	

because	 Gagne	 had	 taken	 it.	 	 She	 awoke	 in	 the	 morning	 to	 Gagne	 strangling	

her.		

	        [¶8]		Later	that	same	day,	November	5,	2013,	the	victim	told	her	parents	

what	had	happened.		The	victim’s	mother	took	her	to	the	hospital,	where	she	

was	examined	by	a	doctor	and	where	a	nurse	completed	a	sexual	assault	kit.		

The	 victim	 was	 also	 interviewed	 at	 the	 hospital	 by	 a	 police	 detective	 who	

recorded	the	interview.	

	        [¶9]	 	 On	 November	 7,	 2013,	 Gagne	 was	 charged	 by	 complaint	 with	

aggravated	 assault	 and	 was	 arrested.	 	 On	 March	4,	2014,	 he	 was	 charged	 by	

indictment	 with	 two	 counts	 of	 aggravated	 assault	 (Class	B),	 17-A	 M.R.S.	

§	208(1)(C)	(2016);	two	counts	of	gross	sexual	assault	(Class	A),	17-A	M.R.S.	

§	253(1)(A)	 (2016);	 two	 counts	 of	 domestic	 violence	 assault	 (Class	 D),	

17-A	M.R.S.	 §	 207-A(1)(A)	 (2016);	 two	 counts	 of	 domestic	 violence	 stalking	

(Class	D),	17-A	M.R.S.	§	210-C(1)(A)	(2016);	two	counts	of	domestic	violence	

terrorizing	(Class	D),	17-A	M.R.S.	§	210-B(1)(A)	(2016);	one	count	of	violating	
                                                                                           5	

a	condition	of	release	(Class	C),	15	M.R.S.	§	1092(1)(B)	(2016);	and	one	count	

of	violating	a	protective	order	(Class	D),	19-A	M.R.S.	§	4011(1)	(2016).	

	      [¶10]		From	March	2014	until	October	1,	2015,	the	case	was	scheduled	

for	 five	 “docket	 calls,”	 all	 of	 which	 were	 continued,	 at	 least	 twice	 at	 Gagne’s	

request.	 	 On	 October	 1,	 2015,	 the	 court	 scheduled	 jury	 selection	 for	

January	19,	2016,	with	trial	set	to	begin	on	January	25,	2016.		Three	months	

after	 this	 schedule	 was	 created,	 and	 seven	 days	 before	 the	 jury	 was	 to	 be	

selected,	Gagne	filed	a	motion	in	limine,	seeking	the	victim’s	medical	records	

that	he	claimed	were	missing	from	the	discovery	materials	that	the	State	had	

provided.	 	 On	 January	 20,	 the	 court	 entered	 an	 order,	 after	 its	 in-camera	

review,	 authorizing	 the	 victim’s	 medical	 providers	 to	 disclose	 the	 victim’s	

otherwise	 protected	 health	 care	 information.	 	 On	 that	 same	 day,	 a	 jury	 was	

selected.	

	      [¶11]	 	 Gagne	 moved	 for	 sanctions	 based	 on	 the	 State’s	 delay	 in	

obtaining	and	providing	the	victim’s	medical	records—one	of	which	noted	the	

presence	of	blood	in	the	victim’s	vaginal	vault.		He	argued	that	the	State	had	

deprived	him	of	the	right	to	discover	exculpatory	or	impeachment	evidence	in	

a	timely	manner,	that	all	or	some	of	the	charges	should	be	dismissed,	that	all	
6	

or	some	of	the	medical	evidence	should	be	excluded,	or	that	the	trial	should	be	

continued.	

       [¶12]	 	 The	 court	 held	 an	 evidentiary	 hearing	 on	 that	 motion	 at	 which	

the	 investigating	 police	 detective	 and	 the	 District	 Attorney’s	 trial	 manager	

testified.		In	its	order	determining	that	there	had	been	no	discovery	violation	

and	 therefore	 denying	 the	 motion	 for	 sanctions,	 the	 court	 found	 that	 the	

investigating	 detective	 obtained	 a	 medical	 release	 from	 the	 victim,	 and	 sent	

that	release	to	Maine	Medical	Center	(MMC)	with	a	request	that	it	provide	all	

medical	records	concerning	the	victim.		The	court	also	found	that	the	detective	

sent	 to	 the	 District	 Attorney’s	 office	 all	 of	 the	 records	 that	 he	 received	 from	

MMC,	 including	 records	 from	 the	 emergency	 department	 and	 a	 two-page	

checklist	indicating	that	a	Sexual	Assault	Nurse	Examiner	(“SANE”)	evaluation	

had	 occurred.	 	 In	 addition,	 the	 court	 found	 that	 the	 DA’s	 office	 had	

inadvertently	 failed	 to	 send	 the	 emergency	 department	 records	 to	 defense	

counsel	 until	 early	 January	 2016,	 “when	 [an	 assistant	 district	 attorney],	 in	

preparation	for	trial,	realized	they	had	not	been	provided.”		The	ADA	did	not,	

however,	notice	that	there	was	a	SANE	report	missing	until	it	was	brought	to	

his	attention	by	Gagne’s	January	12,	2016,	motion	in	limine.		
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	       [¶13]		Gagne	argued	that	the	State	should	have	noticed	that	there	was	a	

missing	report,	and	should	have	begun	an	inquiry	to	determine	whether	that	

report	contained	exculpatory	or	exonerative	material.		The	court,	noting	that	

the	 SANE	 report	 could	 have	 been	 obtained	 directly	 by	 Gagne,	 and	 that	 the	

State	 had	 “no	 reason	 to	 suspect	 that	 the	 material	 [contained	 in	 the	 SANE	

report]	 could	 have	 had	 such	 exonerative	 information,”	 concluded	 that	 the	

State	should	not	be	sanctioned	for	failing	to	seek	or	provide	records	that	it	did	

not	realize	existed.		The	court	also	found	that	Gagne	would	suffer	no	prejudice	

from	 proceeding	 with	 trial	 as	 scheduled,	 based	 on	 its	 determination	 that	

“further	 evaluation	 of	 the	 material	 would	 [not]	 result	 in	 some	 additional,	 or	

changed	opinion.	.	.	.”3			

	       [¶14]	 	 The	 jury	 trial	 was	 held	 over	 the	 course	 of	 seven	 days	 from	

January	25	 to	 February	 3,	 2016.	 	 The	 State	 presented	 testimony	 from	 the	

victim,	 her	 parents,	 law	 enforcement	 officers,	 a	 forensic	 chemist,	 a	 DNA	

analyst,	and	the	medical	professionals	who	examined	the	victim.	

	       [¶15]	 	 The	 victim	 testified	 about	 the	 events	 but	 said	 that	 she	 did	 not	

remember	a	lot	of	the	details	of	what	happened.		Because	of	the	victim’s	lapse	

in	 memory,	 the	 State	 sought	 to	 play	 for	 the	 jury	 an	 audio	 recording	 of	 the	

    3		The	SANE	report	contains	a	notation	that	the	examiner	saw	a	“significant	amount	of	blood”	in	

the	victim’s	vaginal	vault,	but	no	tearing	or	lacerations.	
8	

detectives’	interview	of	the	victim	at	the	hospital	when	she	had	reported	the	

crimes.		The	State	argued	that	the	recording	was	admissible	either	as	a	prior	

consistent	 statement	 offered	 to	 rebut	 a	 claim	 of	 recent	 fabrication,	

see	M.R.	Evid.	 801(d)(1),	 or	 a	 recorded	 recollection	 that	 accurately	 reflected	

the	 victim’s	 knowledge	 and	 was	 made	 by	 the	 victim	 when	 the	 matter	 was	

fresh	 in	 her	 memory,	 whereas	 she	 could	 not	 recall	 the	 information	 well	

enough	at	trial	to	testify	fully	and	accurately,	see	M.R.	Evid.	803(5).	

	     [¶16]		In	addition	to	the	victim’s	testimony	that	she	lacked	memory	of	

the	details	of	what	happened,	the	State	offered,	as	a	foundation	for	a	recorded	

recollection,	 the	 victim’s	 testimony	 that	 she	 remembered	 speaking	 with	 the	

detective;	that	she	had	a	better	memory	of	the	events	then,	within	twenty-four	

hours	 after	 the	 events;	 and	 that	 she	 was	 telling	 the	 truth	 during	 that	

interview.	 	 The	 court	 ruled	 that	 the	 recording	 was	 admissible	 as	 a	 recorded	

recollection,	 M.R.	 Evid.	803(5),	 and	 allowed	 it	 to	 be	 played	 to	 the	 jury	 over	

Gagne’s	objections,	including	his	objection	that	he	was	being	deprived	of	the	

right	 of	 confrontation.	 	 The	 court	 authorized	 Gagne	 to	 cross-examine	 the	

victim	 after	 the	 recording	 was	 played,	 but	 Gagne	 elected	 not	 to	 recall	 the	

victim	to	testify.	
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	      [¶17]		After	the	State	presented	its	case,	Gagne	moved	for	a	judgment	of	

acquittal	 as	 to	 all	 counts.	 	 The	 court	 granted	 the	 motion	 with	 respect	 to	 the	

counts	alleging	violation	of	a	protective	order	and	violation	of	a	condition	of	

release	 but	 denied	 the	 motion	 as	 to	 the	 remaining	 counts.	 	 Gagne	 then	

presented	 testimony	 from	 several	 witnesses,	 including	 his	 adopted	 cousin,	

Gagne’s	 father,	 friends	 of	 Gagne,	 and	 a	 Biddeford	 police	 officer	 who	 testified	

that	no	call	came	in	related	to	an	earlier	near-arrest	of	Gagne	that	the	victim	

claimed	happened	before	he	assaulted	her.	

	      [¶18]	 	 Gagne’s	 adopted	 cousin	 testified	 that	 Gagne	 had	 consensual	 sex	

with	 both	 the	 victim	 and	 her	 together	 on	 November	 4	 and	 that	 she	 had	 not	

overheard	 any	 altercation	 before	 or	 after	 that.	 	 She	 also	 testified	 that	 the	

victim	had	told	her	on	October	31,	2013,	that	she	was	pregnant.	

	      [¶19]		As	part	of	his	case,	Gagne	sought	to	call	two	witnesses	whom	he	

had	not	listed	before	trial.		One	was	a	classmate	of	the	victim	who	was	offered	

to	 testify,	 inter	 alia,	 that	 the	 victim	 (1)	 told	 the	 classmate	 that	 she	 had	 been	

raped	by	Gagne	on	a	prior	occasion,	(2)	stated	that	her	parents	had	told	her	to	

make	it	up,	and	(3)	was	late	for	her	period	on	November	4	and	5	because	the	

two	had	the	same	cycle	and	the	victim	had	said	before	Halloween	that	she	was	

pregnant.		The	other	proposed	witness	was	the	classmate’s	mother,	who	was	
10	

offered	 to	 testify	 that	 she	 told	 the	 victim	 to	 go	 to	 the	 police	 if	 she	 had	 been	

raped,	which	had	led	the	victim	to	say	that	the	sex	had	been	consensual	and	

that	her	parents	told	her	to	make	it	up.		The	court	excluded	these	witnesses’	

testimony	 because	 of	 the	 high	 level	 of	 prejudice	 to	 the	 State	 from	 their	

last-minute	 addition	 as	 witnesses	 and	 because	 these	 witnesses	 were	 not	

simply	“rebuttal”	witnesses.	

	      [¶20]		Gagne	did	not	testify.		The	State	presented	its	closing	argument,	

during	 which	 it	 argued,	 “If	 what	 that	 nurse	 is	 seeing	 is	 easily	 explained	 as	

menstrual	blood,	she	wouldn’t	have	noted	it.		And	if	she	did,	she	would	have	

explained	[the	victim]	said	she	was	on	her	period.”	

	      [¶21]	 	 After	 the	 defense	 argued	 that	 the	 blood	 in	 the	 victim’s	 vaginal	

vault	 could	 have	 been	 menstrual	 blood	 because	 she	 had	 been	 telling	 others	

that	her	period	was	late	and	she	thought	she	was	pregnant,	the	State	argued	in	

rebuttal,	 “Late	 for	 her	 period,	 nobody	 testified	 that	 she	 was	 ever	 on	 her	

period.		The	closest	you	got	was	[the	victim]	telling	the	nurse,	I’m	not	sure	if	

I’ve	started	my	period.”		Gagne	raised	no	objection	to	the	State’s	arguments.	

	      [¶22]		The	jury	instructions	that	the	court	delivered	were	agreed	to	by	

Gagne	 and	 the	 State.	 	 For	 each	 charge,	 including	 the	 charges	 that	 were	

identical	 to	 each	 other,	 the	 court	 instructed	 the	 jury	 on	 the	 elements	 of	 the	
                                                                                       11	

offense.		The	court	also	clarified,	for	the	identical	charges,	that	the	State	was	

alleging	 separate	 episodes	 and	 that	 each	 charge	 had	 to	 be	 determined	

independently.	

	     [¶23]	 	 The	 jury	 returned	 verdicts	 finding	 Gagne	 guilty	 of	 Counts	

1	through	 5	 (two	 counts	 of	 gross	 sexual	 assault,	 two	 counts	 of	 aggravated	

assault,	and	one	count	of	domestic	violence	terrorizing),	and	Counts	8	and	9	

(both	domestic	violence	assaults).		The	jury	found	Gagne	not	guilty	of	Counts	6	

(domestic	 violence	 terrorizing),	 7	 (domestic	 violence	 stalking),	 and	 11	

(domestic	violence	stalking).	

	     [¶24]		At	a	later	hearing,	the	court	sentenced	Gagne	to	twenty-two	years	

in	 prison	 on	 Count	 4	 (gross	 sexual	 assault),	 with	 all	 but	 fifteen	 years	

suspended	 and	 six	 years	 of	 probation.	 	 The	 court	 ordered	 that	 all	 other	

sentences	 run	 concurrently	 to	 Count	 4.	 	 For	 the	 other	 gross	 sexual	 assault	

charge	(Count	3),	the	court	sentenced	Gagne	to	twelve	years	in	prison,	all	but	

six	 years	 suspended,	 with	 three	 years	 of	 probation.	 	 For	 the	 aggravated	

assaults,	 the	 court	 sentenced	 him	 to	 eight	 years,	 all	 but	 six	 suspended,	 and	

three	 years	 of	 probation	 for	 Count	 5,	 and	 six	 years	of	 probation	for	 Count	 1.		

The	 court	 sentenced	 him	 to	 six	 months	 in	 the	 county	 jail	 for	 each	 of	 the	

remaining	 counts—domestic	 violence	 terrorizing	 (Count	 2)	 and	 the	 two	
12	

domestic	 violence	 assaults	 (Counts	 8	 and	 9).	 	 The	 court	 also	 ordered	 him	 to	

pay	a	$200	fine.	

	       [¶25]	 	 Gagne	 timely	 appealed.	 	 See	 15	 M.R.S.	 §	 2115	 (2016);	

M.R	App.	P.	2.	

                                         II.		LEGAL	ANALYSIS	

A.	     Late	Disclosure	of	Medical	Records	

        [¶26]		Gagne	argues	that	the	State’s	late	production	of	medical	records	

that	 were	 favorable	 and	 material	 to	 his	 defense	 prejudiced	 his	 case	 and	

deprived	him	of	due	process.		He	contends	that	the	court	abused	its	discretion	

in	failing	to	order	sanctions	against	the	State	for	this	discovery	violation.4	

        [¶27]	 	 We	 review	 the	 denial	 of	 a	 motion	 for	 sanctions	 based	 on	 a	

discovery	violation	for	an	abuse	of	discretion.		See	State	v.	Silva,	2012	ME	120,	

¶	8,	56	A.3d	1230.		The	denial	of	a	motion	for	sanctions	will	cause	us	to	vacate	

a	 judgment	 “[o]nly	 when	 the	 defendant	 can	 establish	 that	 the	 effect	 is	 so	

significant	as	to	deprive	him	of	a	fair	trial.”		Id.	

        [¶28]	 	 “‘[T]he	 suppression	 by	 the	 prosecution	 of	 evidence	 favorable	 to	

an	accused	upon	request	violates	due	process	where	the	evidence	is	material	
   4	 	 Gagne	 also	 argues	 that	 the	 prejudice	 to	 him	 was	 compounded	 by	 the	 State’s	 failure	 to	 share	

with	Gagne	its	notes	from	January	15,	2016,	interviews	of	the	victim	and	her	parents	until	after	jury	
selection.	 	 The	 record	 does	 not	 establish	 that	 Gagne	 preserved	 this	 issue	 and	 indeed	 fails	 to	
establish	 when	 the	 notes	 were	 provided	 or	 what	 they	 said.	 	 Gagne	 cannot	 demonstrate	 obvious	
error	in	these	circumstances.		See	State	v.	McBreairty,	2016	ME	61,	¶	23,	137	A.3d	1012.	
                                                                                         13	

either	to	guilt	or	to	punishment,	irrespective	of	the	good	faith	or	bad	faith	of	

the	prosecution,’	when	that	suppression	is	prejudicial	to	the	accused.”		Id.	¶	10	

(quoting	 Brady	 v.	 Maryland,	 373	 U.S.	 83,	 87	 (1963)).	 	 “The	 element	 of	

prejudice	 is	 satisfied	 if	 the	 undisclosed	 evidence	 is	 material—that	 is,	 the	

nondisclosure	 was	 so	 serious	 that	 there	 is	 a	 reasonable	 probability	 that	 the	

suppressed	 evidence	 would	 have	 produced	 a	 different	 verdict.”	 	 State	 v.	

Twardus,	 2013	 ME	 74,	 ¶	 32,	 72	 A.3d	 523.	 	 “A	 reasonable	 probability	 of	 a	

different	 result	 exists	 where	 the	 government’s	 evidentiary	 suppression	

undermines	confidence	in	the	outcome	of	the	trial.”		Id.	

       [¶29]	 	 We	 have	 held	 that	 a	 defendant	 who	 was	 made	 aware	 of	

potentially	 exculpatory	 evidence	 before	 trial—even	 though	 soon	 before	

trial—was	not	deprived	of	due	process.		See	State	v.	Gould,	2012	ME	60,	¶	28,	

43	A.3d	952	(“[B]ecause	the	court	found	that	Gould	was	made	aware	of	and,	in	

fact,	received	the	lab	report	prior	to	trial,	he	cannot	succeed	in	his	claim	that	

his	 due	 process	 rights	 were	 violated.”).	 	 “[W]hen	 the	 defendant	 is	 aware,	

before	 trial,	 of	 the	 exculpatory	 evidence	 alleged	 to	 have	 been	 withheld,	 he	

cannot	 claim	 that	 there	 has	 been	 an	 unfair	 trial	 in	 violation	 of	 due	 process.”		

Id.	
14	

       [¶30]	 	 In	 this	 appeal,	 Gagne	 makes	 generalized	 arguments	 about	 the	

“valuable	 impeachment	 evidence”	 contained	 in	 the	 medical	 records	 and	 the	

effect	 of	 the	 delay	 in	 obtaining	 them	 on	 his	 ability	 “to	 fully	 prepare	 to	

interrogate	the	authors	of	the	records,”	to	seek	a	medical	expert	and	“to	find	

and	 present	 witnesses	 to	 rebut	 or	 impeach	 the	 suppressed	 records.”	 	 These	

generalized	contentions	do	not,	however,	throw	the	outcome	of	the	trial	into	

question.		The	records	are	far	from	being	categorically	exculpatory,	and	Gagne	

effectively	cross-examined	the	witnesses	to	highlight	the	inconclusive	nature	

of	 the	 physical	 examination	 and	 the	 sexual	 assault	 evaluations.	 	 He	 also	 has	

not	indicated	what	other	exculpatory	evidence	could	have	been	produced	had	

he	been	aware	of	the	records	earlier.		In	these	circumstances,	because	Gagne	

had	 the	 evidence	 before	 trial,	 it	 was	 not	 ultimately	 excluded,	 and	 the	 lack	 of	

sanctions	or	a	continuance	did	not	deprive	Gagne	of	a	fair	trial.		See	id.;	see	also	

Silva,	2012	ME	120,	¶	8,	56	A.3d	1230.	

B.	    Confrontation	Clause	

       [¶31]		Gagne	contends	that	his	right	of	confrontation	was	violated	when	

the	 court	 allowed	 the	 recorded	 interview	 of	 the	 victim	 to	 be	 played	 because	

she	could	not	remember	a	lot	of	what	happened.		He	argues	that	the	recording	

was	 testimonial	 and	 that,	 because	 of	 the	 victim’s	 lack	 of	 memory	 of	 the	
                                                                                                                 15	

interview,	 cross-examination	 about	 its	 contents	 was	 impossible.	 	 Pressing	

only	his	constitutional	argument,	Gagne	does	not	argue	that	the	court	erred	in	

applying	 M.R.	 Evid.	 803(5)	 to	 admit	 the	 recording	 as	 a	 past-recorded	

recollection.5		See	State	v.	Discher,	597	A.2d	1336,	1341	(Me.	1991).	

        [¶32]	 	 “We	 review	 application	 of	 the	 Confrontation	 Clause	 de	 novo.”		

State	v.	Tozier,	2015	ME	57,	¶	16,	115	A.3d	1240.		“In	all	criminal	prosecutions,	

the	 accused	 shall	 enjoy	 the	 right	 .	 .	 .	 to	 be	 confronted	 with	 the	 witnesses	

against	 him.”	 	 U.S.	 Const.	 amend.	 VI.	 	 When	 testimonial	 evidence,	 such	 as	 a	

statement	 made	 in	 response	 to	 a	 police	 interrogation,	 is	 offered	 at	 a	 trial	

where	 the	 declarant	 does	 not	 appear,	 “the	 Sixth	 Amendment	 demands	 what	

the	 common	 law	 required:	 unavailability	 [of	 the	 declarant	 to	 testify	 at	 trial]	

and	 a	 prior	 opportunity	 for	 cross-examination.”	 	 Crawford	 v.	 Washington,	

541	U.S.	36,	68	(2004).	

	       [¶33]	 	 When	 the	 declarant	 is	 available	 for	 cross-examination,	 “[t]he	

Confrontation	 Clause	 includes	 no	 guarantee	 that	 every	 witness	 called	 by	 the	

prosecution	will	refrain	from	giving	testimony	that	is	marred	by	forgetfulness,	

confusion,	or	evasion.”		United	States	v.	Owens,	484	U.S.	554,	558	(1988).		The	

    5		Nonetheless,	the	State	laid	a	proper	foundation	for	the	recording	to	be	admitted	pursuant	to	

the	 recorded	 recollection	 exception	 to	 the	 rule	 against	 hearsay,	 M.R.	 Evid.	 803(5),	 and	 the	 trial	
court	 did	 not	 abuse	 its	 discretion	 in	 admitting	 the	 recording.	 	 See	 State	 v.	 Cruthirds,	 2014	 ME	 86,	
¶	20,	96	A.3d	80;	State	v.	Discher,	597	A.2d	1336,	1341	(Me.	1991).	
16	

Clause	 guarantees	 “an	 opportunity	 for	 effective	 cross-examination”	 but	 does	

not	 guarantee	 that	 the	 cross-examined	 witness	 will	 have	 full	 memory.		

Id.	at	559-60.		“[A]	witness	is	not	constitutionally	unavailable	for	purposes	of	

Confrontation	 Clause	 analysis	 when	 a	 witness	 who	 appears	 and	 testifies	 is	

impaired.”		State	v.	Gorman,	2004	ME	90,	¶	52,	854	A.2d	1164.		“‘[W]hen	the	

declarant	 appears	 for	 cross-examination	 at	 trial,	 the	 Confrontation	 Clause	

places	 no	 constraints	 at	 all	 on	 the	 use	 of	 his	 prior	 testimonial	 statements.’”		

Id.	¶	55	(quoting	Crawford,	541	U.S.	at	59	n.9).	

	     [¶34]	 	 Thus,	 the	 Supreme	 Court	 of	 the	 United	 States	 affirmed	 the	

admission	 of	 a	 witness’s	 prior	 identification	 of	 his	 attacker	 while	 he	 was	

recovering	in	the	hospital	from	a	severe	beating	even	though	he	could	not,	at	

the	 time	 of	 trial,	 remember	 having	 seen	 his	 assailant	 or	 having	 had	 visitors	

other	 than	 the	 interviewing	 police	 officer	 while	 he	 was	 in	 the	 hospital.		

Owens,	484	U.S.	at	556,	560-61.		We	have	similarly	held	that	the	Confrontation	

Clause	 was	 not	 offended	 by	 the	 admission	 of	 grand	 jury	 testimony	 from	 a	

defendant’s	 mother,	 who	 testified	 that	 she	 did	 not	 remember	 the	 grand	 jury	

proceedings,	 because	 the	 defendant	 had	 “the	 opportunity	 to	 examine	 and	

cross-examine	his	mother	before	the	jury	regarding	what	she	did	and	did	not	

recall	 and	 the	 reasons	 for	 her	 failure	 of	 recollection.”	 	 Gorman,	 2004	 ME	 90,	
                                                                                                             17	

¶¶	15,	55,	854	A.2d	1164.		We	also	upheld	the	admission	of	a	9-1-1	recording	

when	 the	 defendant	 had	 the	 opportunity	 to	 cross-examine	 the	 caller	 at	 trial,	

even	 if	 that	 opportunity	 came	 after	 the	 initial	 direct	 testimony	 and	

cross-examination	 of	 the	 victim.	 	 State	 v.	 Cruthirds,	 2014	 ME	 86,	 ¶¶	 15-20,	

96	A.3d	80.	

	       [¶35]	 	 Here,	 the	 victim	 testified	 at	 trial	 and	 explained	 her	 loss	 of	

memory	of	the	details	of	events.6		She	underwent	extensive	cross-examination	

regarding	the	various	statements	she	made	to	others.		After	the	recording	was	

played	during	the	interviewing	detective’s	testimony,	Gagne	was	permitted	to	

recall	 the	victim	as	 a	witness,	but	he	chose	not	to	do	so.		Because	the	victim	

was	 available	 and	 Gagne	 had	 the	 opportunity	 to	 recall	 the	 victim	 for	

cross-examination	 after	 the	 recording	 was	 played	 for	 the	 jury—even	 though	

he	 ultimately	 chose	 not	 to	 do	 so—there	 is	 no	 violation	 of	 the	 Confrontation	

Clause.7		



    6		This	is	not	a	situation	as	in	Goforth	v.	State,	70	So.	3d	174	(Miss.	2011),	cited	by	Gagne,	where	

the	court	concluded	that	the	Confrontation	Clause	had	been	violated	because	a	witness	had	suffered	
a	complete	loss	of	memory,	even	if	the	people	involved,	due	to	injuries	sustained	in	an	unrelated	car	
accident	after	the	relevant	events.		Id.	at	180,	187.	
   7		Although	the	court	seemed	to	indicate	that	Gagne	could	only	recall	the	victim	to	examine	her	

on	the	newly	introduced	evidence	due	to	Gagne’s	previous	extensive	cross-examination	about	the	
victim’s	 loss	 of	 memory,	 the	 court	 never	 explicitly	 denied	 nor	 had	 the	 chance	 to	 directly	 address	
Gagne’s	right	to	recall	the	victim	on	other	issues	because	Gagne	chose	not	to	recall	her	during	his	
case-in-chief.		The	victim	was	available	to	be	recalled	and	Gagne	elected	not	to	do	so.	
18	

C.	    Refusal	to	Allow	Witnesses	to	Testify		

       [¶36]	 	 Gagne	 argues	 that	 his	 defense	 was	 prejudiced	 by	 the	 court’s	

refusal	to	allow	the	victim’s	classmate	and	that	classmate’s	mother	to	testify.		

He	contends	that	their	testimony	became	necessary	after	he	read	the	medical	

records	that	he	discovered	just	before	trial	and	heard	the	victim’s	testimony,	

which	was	not	consistent	with	her	earlier	interview.	

       [¶37]	 	 The	 court	 precluded	 Gagne	 from	 calling	 the	 two	 witnesses	 who	

were	 not	 on	 his	 witness	 list,	 partly	 because	 the	 inclusion	 of	 the	 witnesses’	

testimony	 would	 prejudice	 the	 State	 because	 the	 witnesses	 were	 not	

identified	 until	 after	 a	 jury	 had	 been	 selected,	 and	 partly	 because	 of	 the	 risk	

that	 any	 of	 the	 already-seated	 jurors	 might	 know	 one	 of	 the	 witnesses.	 	 The	

court	specifically	stated	that	it	was	“not	convinced”	by	Gagne’s	argument	that	

it	 was	 in	 response	 to	 surprise	 State	 evidence	 that	 Gagne	 developed	 “the	

theory	 .	 .	 .	 that	 this	 was,	 in	 fact,	 motivated	 by	 the	 desire	 of	 [the	 victim’s]	

parents	 to	 not	 have	 her	 have	 a	 relationship	 with	 Mr.	 Gagne.”	 	 The	 court’s	

determination,	although	resulting	in	the	exclusion	of	evidence,	did	not	deprive	

Gagne	 of	 a	 fair	 trial,	 especially	 given	 that	 the	 anticipated	 testimony	 would	

include	reports	from	the	victim	to	her	classmate	and	that	classmate’s	mother	
                                                                                             19	

that	 Gagne	 had	 raped	 the	 victim	 on	 a	 prior	 occasion.	 	 See	 State	 v.	 Allen,	

2006	ME	20,	¶¶	13-15,	892	A.2d	447.8	

       [¶38]	 	 “The	 right[]	 .	 .	 .	 to	 call	 witnesses	 in	 one’s	 own	 behalf	 ha[s]	 long	

been	 recognized	 as	 essential	 to	 due	 process.”	 	 Chambers	 v.	 Mississippi,	

410	U.S.	284,	294	(1973).		However,	parties	are	obligated	to	reveal	the	names	

of	 all	 potential	 witnesses	 that	 could	 be	 reasonably	 anticipated,	 prior	 to	

voir	dire,	 regardless	 of	 whether	 counsel	 plans	 to	 call	 the	 witness	 as	 part	 of	

their	case	in	chief	or	in	rebuttal.		See	Rich	v.	Fuller,	666	A.2d	71,	74	(Me.	1995);	

State	v.	Collin,	441	A.2d	693,	696	(Me.	1982).		Undisclosed	witnesses	may	be	

excluded.		See	Joy	v.	Marston,	581	A.2d	418,	419	(Me.	1990).		“Late	disclosure	

may	 unduly	 highlight	 a	 witness’s	 testimony.”	 	 Maine	 Jury	 Instruction	 Manual,	

§	2-3	 at	 2-5	 (2016	 ed.).	 	 The	 court	 did	 not	 err	 or	 abuse	 its	 discretion	 in	

excluding	the	late	disclosed	witnesses	here.	

       [¶39]	 	 It	 also	 must	 be	 noted	 that	 the	 excluded	 testimony	 would	 not	

necessarily	 have	 been	 as	 purely	 exculpatory	 as	 Gagne	 characterizes	 it,	 given	

other	testimony	about	previous	bruises	that	the	victim’s	mother	saw	on	her.		

Moreover,	 another	 witness—the	 adopted	 cousin—did	 testify	 that	 the	 victim	

had	mentioned	thinking	she	was	pregnant	in	late	October	2013,	and	therefore	

   8		We	note	that	Gagne	had	nearly	two	years	between	the	indictment	and	jury	selection	to	find,	

interview,	and	identify	these	witnesses.		
20	

Gagne	was	not	deprived	of	the	opportunity	to	present	evidence	of	a	possibly	

late	menstrual	cycle.	

         The	entry	is:	

	     	      	     Judgment	affirmed.	
	
	     	      	     	      	      	
	
Valerie	 A.	 Randall,	 Esq.	 (orally),	 Fairfield	 &	 Associates,	 P.A.,	 Portland,	 for	
appellant	Nicholas	W.	Gagne	
	
Kathryn	Loftus	Slattery,	District	Attorney,	Anne	Marie	Pazar,	Asst.	Dist.	Atty.,	
and	Thomas	R.	Miscio,	Asst.	Dist.	Atty.	(orally),	Prosecutorial	District	1,	Alfred,	
for	appellee	State	of	Maine	
	
	
York	County	Superior	Court	docket	number	CR-2013-2696	
FOR	CLERK	REFERENCE	ONLY	
