AUBURN — In a split decision, a judge threw out evidence from the seized cellphone of a New Gloucester man charged with manslaughter in 2017 after his car crashed with a motorcycle.

Steven Primavera, left, listens to his attorney, James Howaniec, during a June 2019 hearing in Androscoggin County Superior Court in Auburn on motions in his 2017 manslaughter case. Russ Dillingham/Sun Journal file photo

Superior Court Justice MaryGay Kennedy also tossed information detailed in Steven Primavera’s medications.

But Kennedy wrote in a 24-page order filed last week in Androscoggin County Superior Court that she would allow the results of analysis from blood taken at the crash scene, as well as statements Primavera made to an investigating officer.

Primavera, 36, crossed the centerline on Court Street shortly before 6 p.m. Sept. 22, 2017, and veered into the oncoming lane before striking a motorcycle, then slamming into a tree.

Reginal Clement, 54, of Starks, who was driving the 2013 Harley-Davidson, was killed. His wife, Kathryn, had been following Clement on her motorcycle.

Kennedy’s order came months after a two-day hearing on Primavera’s motion to suppress evidence and statements that could be used at his trial.

At that hearing, held last summer, officers testified that Primavera had willingly talked about the crash and consented to having his blood drawn after a field sobriety test. Officers said they had taken his cellphone, then secured a warrant to search it.

Kennedy wrote in her decision that an officer read from a card seeking Primavera’s consent to draw his blood for analysis for evidence of alcohol and drugs and he signed it, according to court testimony.

“There is no evidence that he was coerced,” she wrote.

As for the statements Primavera made during a roughly half-hour interview conducted by one of the officers, Kennedy wrote that, “on balance, the totality of circumstances supports a finding that a reasonable person in Mr. Primavera’s position would have felt at liberty to terminate the interrogation and leave.”

For those reasons, she wrote, he was not in police custody at the time he made the statements and a Miranda warning of his rights wasn’t needed.

Although police later secured a search warrant to examine Primavera’s cellphone, Kennedy concluded that warrant was overly broad.

Kennedy wrote that the officer seized Primavera’s phone without a warrant and never specified in his affidavit for the warrant which crime he was suspected of committing and what evidence during what specific time frame was being sought.

“What is most unsettling, however, is the fact that the evidence to be seized as described in the warrant is not limited in scope, in time, or in any other manner,” she wrote.

She concluded that Primavera’s Fourth Amendment rights “were violated by the seizure and subsequent search of his cellphone.”

Confidential information about Primavera’s controlled substance drug history from Maine’s Prescription Monitoring Program at the Department of Health and Human Services is a private document that somehow was obtained by prosecutors, Kennedy wrote.

“The state has not explained how it came into possession of this confidential information, much less offered evidence that it has satisfied any of the state or federal requirements of legal disclosure” Kennedy wrote. “Claiming lack of knowledge as to how the state came into possession of a confidential PMP document shows, at minimum, deliberate indifference toward Mr. Primavera’s due process rights.”

Primavera’s attorney, James Howaniec, said he wasn’t surprised by Kennedy’s ruling.

“I think it’s the right decision,” he said.

Kennedy’s decision on the suppression motion was delayed because prosecutors asked that she wait until the Maine Supreme Judicial’s Court’s ruling in a case that questioned the constitutionality of a state law requiring a driver’s blood be drawn and tested when involved in a collision that may result in death.

Drugs detected in Primavera’s system from blood analysis included methadone and Xanax, both prescription drugs, police said. Primavera had said he’d gone to a methadone clinic at 7 a.m. that day. The crash occurred at 5:52 p.m.

Police said messages on Primavera’s cellphone showed no activity from 1:25 a.m. until 5:55 p.m. on that day, when he wrote to his girlfriend that he “hit a motorcycle head-on.”

A second message from him informed his girlfriend that police intended to draw his blood, “so I might go to jail.”

Primavera had been free on bail since his May 2018 indictment on the charge of manslaughter, a Class A felony punishable by up to 30 years in prison, in connection to the crash.

In January, he was arrested and charged with two counts of aggravated trafficking in scheduled drugs, each a Class A felony. The charge was enhanced because of a 2004 conviction for selling cocaine. He also was charged with four counts of violating conditions of release.

He remains at Cumberland County Jail in Portland.


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