Supreme Judicial Court of Maine.Argued January 21, 1982.
Decided February 12, 1982.
Appeal from the Superior Court, Kennebec County.
David W. Crook, Dist. Atty. (orally) Augusta, for plaintiff.
Bernard R. Cratty (orally), Waterville, for defendant.
Before GODFREY, NICHOLS, ROBERTS, CARTER and VIOLETTE, JJ.
MEMORANDUM OF DECISION
The defendant, Walter Davis, appeals from his conviction in Superior Court, Kennebec County, of unlawful sexual contact (17-A M.R.S.A. § 255). The defendant argues
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on appeal that the denial of his motion to take the oral deposition of the State’s chief witness was an abuse of discretion requiring reversal of his conviction. We affirm the judgment below.
The defendant’s motion failed to comply with M.R.Crim.P. 15(a) because it did not allege the possible unavailability of the witness to be deposed, the materiality of the witness’s testimony, and the possibility of a failure of justice if the deposition was not allowed. The record is devoid of any evidence presented to the presiding judge tending to establish the unavailability of the witness at time of trial. This type of showing is the initial prerequisite for the granting of such a motion. Further, the witness testified at trial and defense counsel was allowed to cross-examine her. We find no abuse of discretion in the denial of the motion in the instant case.
The entry is:
Judgment affirmed.
All concurring.
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