Opinion
No. CR05-0595432-T
June 4, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS STATEMENT OF THE CASE
The defendant David Wilcox was charged with the crimes of Criminal Attempt to commit Larceny in the First Degree in violation of Connecticut General Statutes §§ 53a-8(a), 53a-49(a)(2), 53a-119 and 53a-112(a)(2), Conspiracy to Commit Larceny in violation of §§ 53a-48(a)(2), 53a-119-122(a)(2) and Insurance Fraud in violation of §§ 53a-215(a)(1) and (2). On March 18, 2008 the defendant filed a Motion to Dismiss on the basis that the State's Attorney Office and the State of Connecticut Insurance Department acted in a prejudicial way and violated state and federal laws when they failed to disclose alleged exculpatory information and materials to the Defendant. The court held an evidentiary hearing where the state and the defense presented evidence concerning the defense's claim.
Based upon the evidence presented and the law of this state, the defendant's motion is DENIED.
I. FACTS
The defendant David Wilcox was charged with criminal attempt to commit larceny, conspiracy to commit larceny and insurance fraud in relation to a motor vehicle accident which occurred on July 29, 2005 in Avon, Connecticut. The parties had already engaged in the discovery process pursuant to this case.
While pre-marking exhibits on March 17, 2008 in court, it was discovered that two boxes of materials had not been shared with the defendant. These boxes were in the possession of the State of Connecticut Insurance Department ("Insurance Department"). The Court immediately ordered contact with the Insurance Department to obtain the boxes. The boxes were delivered to the court within eighty minutes of the request that same day. The court made the boxes available to both sides that day. Further, copies were made by the court staff and delivered to the defendant on March 18, 2008. The boxes contained the Insurance Department's complete file pertaining to the defendant and the allegations in relation to Webster Insurance and Acadia Insurance. These materials were compiled pursuant to an investigation carried out by the Insurance Department. The court continued the date for the start of evidence for forty-five days.
The defendant filed a Motion to Dismiss on March 19, 2008. The court conducted an evidentiary hearing on March 19, 24, 27 and April 1 to hear the Motion and to determine whether there were any other documents still not discovered.
The court heard testimony from: Attorney Matthew K. Beatman, the receiver for Defendant's company, American Crushing Recycling, LLC ("ACR"); Attorney Mark R. Franklin from the Connecticut Insurance Department; Inspector Jay St. Jacques of the Office of Chief State's Attorney; and Attorney Christopher Weldon, who represents Webster Insurance, one of the alleged victims of defendant's criminal acts, in a civil suit brought by the defendant.
The contents of the two boxes from the Insurance Department were in the possession of the State's Attorney from the first week in March 2008. Due to illness, they were not reviewed by the Assistant State's Attorney in charge of the file until the second week in March 2008 and thereafter returned to the Insurance Department. Some items were copied by the Assistant State's Attorney.
On previous occasions, other caches of documents were reviewed by the defendant's prior defense attorney, Hope Seely, and scanned by an associate of the defendant's current counsel, Raymond Hasset. Defense does not claim the State's Attorney had any exculpatory information before March 2008. Motion exhibits A, B, C, D and E do not contain Brady material, Brady v. Maryland, 373 U.S. 83 (1963), of any type, which would have been obvious to the Assistant State's Attorney.
II. Discussion
The defendant filed a Motion to Dismiss alleging that the defendant has been prejudiced by the state's late discovery and disclosure of new documents and materials that the defendant claims are exculpatory. The Court denies the defendant's Motion to Dismiss because the court has provided the defendant an appropriate period of time in which to review the newly disclosed material. Further, the defendant failed to demonstrate that any materials recently discovered are exculpatory materials which would have prejudiced the defendant by the late disclosure.
It is well established that the state has the obligation to produce exculpatory evidence. Brady v. Maryland, supra, 373 U.S. 87 (1963); State v. Morrill, 42 Conn.App. 669, 677 (1996). "The state is constitutionally obligated to disclose certain information to a defendant" pursuant to the Due Process Clause of the United States Constitution. State v. Simms, 201 Conn. 395, 405 (1986). Due Process requires the prosecution "to disclose any exculpatory evidence that is material to a defendant's guilt or punishment." Id. It has been established that "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Internal quotation marks omitted.) Demers v. State, 209 Conn. 143, 150, citing Brady v. Maryland, supra, 373 U.S. 87; State v. Monteeth, 208 Conn. 202, 213, 544 (1988); State v. Doolittle, 189 Conn. 183, 196 (1983). "The prosecution's duty to disclose applies to all material and exculpatory evidence that is within its possession or available to it . . . and that the prosecution knew or should have known was exculpatory." (Citation omitted.) Demers v. State, supra, 209 Conn. 151; see also General Statutes § 54-86c(a). "The State's duty of disclosure is imposed not only upon its prosecutor, but also on the State as whole, including its investigative agencies." (Internal quotations marks omitted.) Demers v. State, supra, 209 Conn. 153. The Insurance Department is an investigative agency of the State of Connecticut; thus, the State knew or should have known of the existence of said information. "It is irrelevant whether the State [i.e., the prosecutor,] acted in good faith or bad faith in failing to disclose the evidence; negligent suppression may be sufficient." (Internal quotation marks omitted.) Demers v. State, supra, 109 Conn. 151, citing Walker v. Lockhart, 763 F.2d 942, 957 (8th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). In the present matter, the defendant became aware of the evidence during the pre-marking of exhibits. This Court does not condone the late disclosure by the State and thus, decided to afford the defendant with a continuance of forty-five days, deeming it enough time for both the State and the defendant to go over the materials.
In order to establish a Brady violation, the defendant bears the burden of showing that: "(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material." State v. Milner, 206 Conn. 512, 539-40 (1988); State v. Simms, supra, 201 Conn. 405-06. The defendant claims suppression. The evidence was disclosed after it came to the attention of both the State and the defendant, that the Insurance Department had two boxes of material pertaining to the defendant. The Insurance Department had performed an investigation relating to the defendant, Acadia Insurance and Webster Insurance. These materials were readily available, as the court was able to swiftly obtain said materials within eighty minutes. Thus, the State did not suppress evidence as the evidence was readily available. Because the Prosecution did not actively suppress the information, as the term is used in Brady, the issue here is of late disclosure.
The Supreme Court of Connecticut "has concluded that evidence that is disclosed, even if during trial, is not suppressed as that term is used in Brady." State v. Morrill, supra, 42 Conn.App 677; State v. Walker, 214 Conn. 122, 126 (1990). The courts have held that "[w]here there has been an initial disclosure of exculpatory evidence at trial, the appropriate standard to be applied is whether the disclosure came so late as to prevent the defendant from receiving a fair trial . . . The defendant bears the burden of proving that he was prejudiced by the failure of the state to make the disclosure earlier." (Internal quotations marks omitted.) State v. Thompson, 81 Conn.App. 264, 278, cert. denied, 268 Conn. 915 (2004); State v. Williams, 93 Conn.App. 844, 850 (2006). The information was disclosed prior to trial, and discovered while pre-marking the evidence. The court, in order to provide the defendant with a fair trial, continued the start of trial for more than forty-five days to afford the defendant and the prosecution enough time to go over the materials. Other Connecticut cases have encountered similar situations. In State v. Williams, police reports and the witness list were disclosed prior to the start of evidence on the first day of trial. The court delayed the start of trial by one to two hours to give the defendant enough time to go over the documents. Id. at 848, 850-51. In State v. Morrill, there was a late disclosure by the prosecution. The court continued the case to allow the defendant to go over the documents and allowed him to recall any witnesses and to engage in additional cross-examination if necessary. Id. at 676-78. "There is no denial of due process if the disclosed material can be utilized effectively at trial, and the defendant bears the burden of proving that he was prejudiced by the late disclosure." State v. Thompson, supra, 81 Conn.App. 279.
It is this court's opinion that the defendant can receive a fair trial because he has been given enough time to review all the disclosed materials. Moreover, the defendant has not proven that he was prejudiced by the late disclosure of materials. He has been afforded ample time to go over the materials prior to the beginning of trial. Thus, he has not been prejudiced to such an extent as to compromise his right to a fair trial.
The defendant has also failed to meet the other components of Brady. Although the evidence is pertinent to the case, it is this court's opinion that it is not exculpatory so as to violate Brady. "In order to establish materiality based on a request for exculpatory material, the defendant must show that the availability of the evidence might have affected the outcome of the trial." (Internal quotation marks omitted.) State v. Morrill, supra, 42 Conn.App. 679. The evidence submitted by the defendant as alleged exculpatory evidence are letters relating to procedures followed by Acadia Insurance and Webster Insurance. Further, the documents also explain part of the defendant's insurance policy. On their own, this court does not find that these documents contain exculpatory information as to violate Brady.
Thus, the court cannot conclude that the defendant was prejudiced by the delay.
III CONCLUSION
The defendant has not produced anything out of the newly discovered materials that could be considered Brady material. Moreover, the defendant has not been prejudiced by the late discovery of the materials discussed because the court took remedial measures and continued the trial for forty-five days, which should have been sufficient to review the information. The defendant was not prejudiced by the late disclosure and his right to a fair trial has not been compromised.
Based on these findings and conclusions, defendant's Motion to Dismiss is DENIED.