ROCKLAND, Maine — A state judge has ruled that neither a 911 recording nor the audiovisual from a police officer’s body camera can be admitted as evidence in a case against a former city council candidate charged with domestic assault.
As a result of the rulings, the attorney for 24-year-old Theodore Berry of Rockland said he expects the assault charge will be dropped.
In an order filed Wednesday in Knox County Unified Court, Justice Daniel Billings ruled that the 911 tape in which the alleged victim spoke with a dispatcher cannot be used, in part because she has refused to testify and Berry would not have an opportunity to confront his accuser in court.
Three weeks ago, Billings ruled that the recording from a body camera worn by Rockland police Officer Jacob Shirey when he investigated the alleged assault at the Thorndike Apartments on May 10 could not be introduced as evidence if the case goes to trial. In that recording, the woman said Berry had pushed her, causing her to fall and hurt her ankle.
The woman refused to testify at the court hearing three weeks ago, invoking her right not to incriminate herself.
Berry’s defense attorney Thomas Connolly of Portland argued successfully that to allow the woman’s statements on the 911 tape or the officer’s body camera amounted to testimonial evidence that would violate Berry’s right to confront his accuser in court under both the state and U.S. constitutions.
Billings also said in his ruling that the statements made by the woman, both to the police officer and to the dispatcher, were not made during an emergency situation, which would have allowed them to be used at trial. Instead, he said the comments were made during interrogations as part of the investigation.
The judge said in his ruling that there was no bright line between when police are questioning to determine whether emergency assistance is needed and when it becomes an interrogation to determine the facts of a past crime.
Assistant District Attorney Jeffrey Baroody said Wednesday that the prosecutor’s office was reviewing its options in light of the loss of this evidence.
Berry has denied assaulting the woman, Cassandra Arielle Plummer of Rockland, whom he previously had dated. Plummer filed a federal lawsuit in which she said she was not the victim of an assault at Berry’s hands.
In testimony earlier this month in Knox County Unified Court on the motion to throw out the tapes, a former boyfriend of Plummer testified that he and Plummer went to clean an apartment at the Thorndike where she and Berry had lived together before breaking up. When they arrived, he said, Berry jumped out of the bathroom, started taking pictures and then said he was going to accuse the man of committing burglary. Berry ran out of the apartment, followed by Plummer, the other man testified.
He said he then heard a loud thud, went out in the hallway and found her on the floor, holding her ankle and crying.
Another resident in the Thorndike apartments called police. The 911 dispatcher asked to speak to the alleged victim and the caller gave her the phone. It is not clear what she told the dispatcher and a transcript was not included in court documents.
Billings ruled this week that Berry can seek a new bail hearing. Berry is free on bail, but his conditions of release prevent him from having contact with Plummer, visiting her place of work or going where she takes college classes.
Plummer has asked for those conditions to be dropped and has filed a federal lawsuit over the case against the city of Rockland, Judge Patricia Worth, District Attorney Geoffrey Rushlau and Assistant District Attorney Jeffrey Baroody.
Plummer argues in her suit that despite repeated attempts since Berry’s first arrest to explain to the prosecutors that she was not assaulted, no one has listened. She asserts that Rockland police used racial profiling and racial discrimination in targeting Berry. She also contends that the prosecutors selectively prosecuted Berry because of his race, which is not identified in the lawsuit.
She further argues in her lawsuit that Rockland police violated the law by releasing information about Berry’s arrest. Berry failed in an attempt before Worth in June to have court documents in his case sealed.
She also is seeking unspecified punitive damages against the parties.
In the pending federal case, Maine Attorney Janet Mills and Assistant Attorney General Christopher Taub have filed motions to dismiss the alleged victim’s lawsuit.
Berry was arrested again on Aug. 22 by Belfast police and charged with violating a condition of release by being in the same car as the woman in Belfast. He has pleaded not guilty to all charges.
Berry ran for the City Council last year and came within 35 votes of winning a seat.