Nichols 6; Churchill Attorneys at Law 1250 Forest Avenue, Portland, Maine 04103 Phone: 207-879-4000 Matthew B. Nichols, Esq. Fax: 207-879-9398 Sarah A. Churchill, Esq. wwmicholschurchillcom December 15, 2016 Portland Superior Court Uni?ed Criminal Docket Stephanie Tarantino, Clerk 142 Federal Street Portland, Maine 04101 Re: State of Maine v. Gregory Nisbet Docket Number: Dear Stephanie: I have enclosed for ?ling Defendant's Motion For A New Trial. Please refer this motion to Justice Warren and set a date and time for a pre-hearing conference prior to the date for hearing. AAG Ellis is recovering from major foot surgery and will be unable to prepare for and/or attend a pre?hearing conference until mid-February. Thank you for your invaluable assistance and attention to this matter. Very Truly Yours, MATTHEW B. ESQ. Cc: John Alsop, AAG Robert Ellis, AAG Gregory Nisbet STATE OF MAIN SUPERIOR COURT CUMBERLAND, SS. DOCKET NO.: STATE OF MAINE DEF MOTION FOR A NEW TRIAL PURSUANT TO RULE 33 OF THE MAINE RULES OF CRIMINAL PROCEDURE OR DISMISSAL OF COUNT 11 V. GREGORY NISBET Now Comes Defendant, by and through counsel, and moves this Honorable Court, pursuant to Rule 33 of the Maine Rules of Criminal Procedure, to grant him a new trial or dismissal of Count 11 of the Indictment, based upon the following. I. That Defendant has attached hereto a memorandum entitled ?Re: Policy for Clari?cation of Existing Egress Windows?. 2. That said memorandum was not provided to Defendant prior to or during the trial of this case. Further, Defendant did not become aware of the existence of said memorandum until more than one week after his sentencing hearing which occurred on November 29, 2016. 3. That said memorandum constitutes exculpatory evidence, to wit: the minimum size and dimensions required for windows in structures built before 1976 was reduced to ?ve square feet. 4. That the size and dimension of the windows in Defendant?s building were exactly ?ve square feet and met the minimum dimensions as set forth in said memorandum. 5. That the Court found that the required mans rea for Count 11 was ?knowingly?. The Court found, in its ?ndings of facts and conclusions of law, that the ?knowingly? mans rea element was satis?ed by Waldo Trott?s comments to Defendant that the windows in question appeared to be too small to be legal. 6. That the State was required to provide Defendant with all exculpatory evidence as well as any evidence that tended to create a reasonable doubt regarding the Defendant?s guilt. See Rule 16 of the Maine Rules of Criminal Procedure (the Court, in its discretion may impose sanctions including dismissal); Brady v. Maryland, 373 U.S. 83( 1963). Also see Arizona v. Youngblood, 488 U.S. 51(1988) (requiring dismissal if ?bad faith? is shown). 7. That if said memorandum, had been provided in a timely fashion, it probably would have changed the verdict in this case; ?lrther if a new trial is granted allowing the admission of said memorandum, the verdict on Count 11 will probably change from guilty to not guilty. The memorandum was discovered by Defendant after the trial and sentencing in this case. Said memorandum could not have been discovered by Defendant before the trial through the exercise of due diligence. Said memorandum and the information contained therein is obviously material to the elements of Count 11; said memorandum is not merely cumulative or impeaching of the State?s evidence; in the event that the Court ?nds said memorandum to, in fact, be cumulative or impeaching, it is clear that such impeachment would have resulted in a different verdict. State v. Cookson, 2003 ME 136, paragraph 29 (citing State v. Ardolz'no, 1999 ME 14, paragraph 8). 8. That, in this case, a ?Brady violation? occurred. Thus, this Honorable Court must grant Defendant a new trial on Count 11 of the Indictment because ?there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different?. Strickler v. Greene, 527 US. 263,280-81( 1999). This Honorable Court must ?nd that a ?likelihood of a different result is great enough to undermine the con?dence in the outcome ofthe trial.? Smith v. Cain, 132 US. CT. 627,630 (2012). VVHEREFORE, based upon the foregoing, Defendant respectfully requests that this Honorable Court grant him a new trial on Count 11 of the Indictment, or that it dismiss Count 11. Dated: December 19, 2016 NICHOLS CHU CHILL, P.A. By: MATTHEW B. ICHOLS, ESQ. ATTORNEY F0 DEFENDANT Maine Bar Reg. No. 3403 1250 Forest Avenue Portland, ME 04103 (207)879-4000 Motion Granted Motion Denied Motion Withdrawn STATE OF MAINE Department of Public Safety Of?ce of State Fire Marshal 52 State House Station Augusta, ME 04333?0052 JOHN EMORRIS PAUL R. caveman COMMISSIONER JOSEPH THOMAS STATE ms MARSHAL October 17, 2013 Re: Policy for clari?cation of existing egress windows From: Joseph Thomas Effective November 1, 2013, the following will be the policy for egress windows within existing buildings. Any building constructed after 1976 shall be required to comply with the requirement to provide 5.7 sq. ft. of not clear opening with a minimum width of 20? and minimum height of 24?. The window shall also meet all other requirements for egress windows contained in the NFPA 101 Life Safety Code. Any replacement windows installed in a building constructed after 1976 shall be required to meet the net clear opening of 5.7 sq.ft. This shall be measured with the window in it?s natural open position. Any building constructed before 1976 will be allowed to meet the following speci?cations. The net clear opening would be allowed to meet the minimum 20? in width and 24? in height with a total not clear opening of 3.3 if the window is constructed of wood or vinyl and the overall window sash size meets a minimum of 5.0 sq. ft. The window shall meet all other requirements for an egress window as speci?ed in the NFPA 101 Life safety Code as adopted by the Of?ce of State Fire Marshal. Any replacement window installed in a building constructed prior to 1976 shall meet the same requirements as the existing windows and shall not reduce the existing net clear opening below the minimum requirements. Any existing window that has been previously approved will be allowed to continue in use. This policy not prevent a local jurisdiction ?rom adopting a more restrictive policy under an ordinance or life safety seph Thomas tate Fire Marshal SUPPRESSION I All" ENFORCEMENT OFFICES LOCATED AT: 45 COMMERCE DRIVE, AUGUSTA. MAINE 04330 (207) 626-3870 INVESTIGATIONS {207) 287-3659 TDD (207) 626-3880 PLANS REVIEW (207)237-6251 FAX