Opinion
HHBCR140276060
09-08-2017
State of Connecticut v. Bryant Wilson
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO COMPEL DISCOVERY
Julia DiCocco Dewey, J.
Through motion dated June 23, 2017, the defendant seeks " discovery and inspection concerning the state's use of confidential informants" as well as " disclosure of exculpatory evidence concerning the state's use of confidential sources."
The Fifth Amendment to the United States Constitution provides that no person shall be deprived of liberty without due process. U.S. CONST. amend. V. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held " that the suppression by the prosecution of evidence favorable to an accused upon request 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." 373 U.S. at 87; see also United States v. Bagley, 473 U.S. 667, 669, 105 S.Ct. 3375, 87 L.Ed.2d 481, (1985); United States v. Agurs, 427 U.S. 97, 111 n.17, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Following Brady, the Supreme Court has held that the duty to disclose evidence favorable to the defendant applies even though there has been no request, Agurs, 427 U.S. at 107, 96 S.Ct. 2392, and that the duty includes impeachment evidence as well as exculpatory evidence. Bagley, 473 U.S. at 676.
" The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution." State v. Floyd, 253 Conn. 700, 736, 756 A.2d 799 (2000). It violates the defendant's rights to due process, under both the state and federal constitutions when the state suppresses exculpatory information which is material to the guilt of the defendant. Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Wilcox, 254 Conn. 441, 758 A.2d 824 (2000). To establish a Brady violation, a defendant is required to show that: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). State v. Wilcox, supra, 254 Conn. 441, 452, 758 A.2d 824 (2000). " The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); see also California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (state's failure to retain breath samples was not unconstitutional where the chances are extremely low that preserved samples would have been exculpatory).
The defendant seeks a myriad of information. There is, of course, no question that the prosecution is required to provide the defense all exculpatory evidence it has in its possession. The obligation is mandated by our state and federal constitutions as well as statute. See Connecticut General Statutes § 54-86c; State v. Caracoglia, 134 Conn.App. 175, 185, 38 A.3d 226 (2012). " [T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in [the] case." Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). However, a prosecutor's duty under Brady extends only to material under the government's control.
See, e.g., Hernandez v. Larkin, 2013 WL 4453316 (No. 12 Civ. 8090(AJN)(SN) (S.D.N.Y. Aug. 19, 2013). Therein the court summarized:
" The state has no duty to investigate to obtain exculpatory information, but rather has a duty to provide the defendant with exculpatory information which is within its possession, custody, control or knowledge." State v. Edwards, 420 So.2d 663, 677 (La. 1982). Nor does Brady require the prosecution to seek out exculpatory or impeachment evidence within the possession of all government agencies. United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998).
In the present case, the bulk of the information sought by the defendant is not within the control of the prosecutor's office of any of those organizations that prepared the charges against this defendant. The state has acknowledged its continuing obligation to provide all exculpatory information within the state's possession. The state is aware of the consequences of any failure to fulfill that duty.
Nor has the defendant established materiality. The defendant does not have a right to conduct a general fishing expedition, especially into witness privileged records. State v. Pratt, 235 Conn. 595, 606-12, 669 A.2d 562 (1995). See also State v. Januszewski, 182 Conn. 142, 170-74, 438 A.2d 679 (1980) (" [I]n resolving requests for disclosure, routine access to personnel files is not to be had. Requests for information should be specific and should set forth the issue in the case to which the personnel information sought will relate. The trial court should make available to the defendant only information that it concludes is clearly material and relevant to the issue involved"). An allegation that something " might" be useful is not enough. At a minimum, a preliminary showing is required. State v. Donald H.G., 148 Conn.App. 398, 413-14, 84 A.3d 1216, cert denied, 311 Conn. 951, 111 A.3d 881 (2014). Turning to the items requested, the defendant first seeks information about confidential informants utilized by the state.
In paragraphs 1 through 3 of this motion, the defendant has supplied a very broad definition of " confidential informant, " much of which is not relevant to this particular trial. The defendant then specifies the types of confidential informants included in his request. In response, State has provided the names of all confidential informants that the State intends to utilize in its case in chief.
The State does have a cases/incident report from the New Britain Police Department that contains the statement of an individual who was familiar with the defendant. The individual did not witness the shooting. The individual feared retaliation and wished to remain anonymous.
This particular individual will not be called as a witness. He/She was not used as a source for any affidavits or warrants. He/She was not used as a source of information for any electronic surveillance. This court has reviewed the information contained in the statement and concludes, based on the other information contained in the court file, that the State need not disclose the name of this informant or his/her statement at the present time.
The defendant also seeks a copy of the criminal records of all state witnesses. The state suggests that dissemination of a print out the National Crime Information Center (NCIC) report would violate 42 U.S.C. 14616, the National Crime Prevention and Privacy Compact. As noted by Judge M. Keegan in State of Connecticut v. Cedric Avery, (Docket No. CR 16-285945, (Superior Court, Judicial District of New Britain, August 16, 2014), the statutory prohibition relied upon by the State " regulates the exchange of criminal history records for noncriminal purposes." The prohibition does not extend to use in criminal trials. Indeed, dissemination has been recognized by courts in other jurisdictions. See, e.g., In re Watkins, 369 S.W.3d 702, 706 (Tx.App. 2012). This court will adopt the well-reasoned opinion in State v. Avery, and require the State to provide the defendant with NCIC printouts of the criminal history of all State witnesses. The use is restricted to this criminal trial. It is limited to the purpose of conducting defense counsel's case, and is restricted to use in the performance of defense counsel's duties. Practice Book 40-10. A copy of the print-outs shall not be given to the defendant.
The defendant next seeks a copy of all testimonial agreements between the State and those individuals who will be testifying at trial. At issue is the request for any agreements between a witness, Shannon Davis, and the State's Attorney's Office for the Judicial District of Hartford. The State concedes that the witness, Shannon Davis, had asked the New Britain police department to intercede and assist him with criminal cases the witness had pending in the city of Hartford at the time he gave his statement in this particular case.
This Court recognizes that there is a clear division between the various state judicial districts. Each office maintains absolute independence. Nevertheless, any agreements between this witness and the state of Connecticut are absolutely relevant in the present case. Therefore the court orders the state to produce any copies of cooperation agreements between Shannon Davis and the State of Connecticut. That includes those agreements generated in the Judicial District of Hartford as a result of the witness's cooperation in the present case.
The remainder of the defendant's claims can be categorized as overly broad and vague. There is no time limit for any of the requests. The requests encompass agencies totally outside of the control of the prosecutors in this case. The demands include confidential and privileged information. The suggestions that there " might" be relevant information or that there " perhaps" might be exculpatory information are not enough to warrant this massive departure from standard discovery. Therefore, the remainder of the motion as presented must be denied. Once again, the state is aware of its continuing obligation to provide exculpatory information. The state is also cognizant of the consequences should there be any lapse in this obligation.
So Ordered.
[K]nowledge on the part of persons employed by a different office of the government does not in all instances warrant the imputation of knowledge to the prosecutor . . .); United States v. Locascio, 6 F.3d 924, 948-50 (2d Cir. 1993) (refusing to impute to federal prosecutors knowledge of reports prepared by FBI agents uninvolved in investigation or trial of defendants-appellants); Pina v. Henderson, 752 F.2d 47, 49-50 (2d Cir. 1985) (holding that state prosecutors did not have constructive knowledge of exculpatory information in parole officer's report); United States v. Quinn, 445 F.2d 940, 944 (2d Cir. 1971) (finding " completely untenable" position that " knowledge of any part of the government is equivalent to knowledge on the part of this prosecutor"); Hearns v. Artus, 08 Civ. 00192, 00218(NGG), 2010 WL 2653380, at *2-3 (E.D.N.Y. June 23, 2010) (finding that " prosecutor's [alleged] failure to obtain and disclose any exculpatory material in the files of the federal government" did not violate Brady ); Bell, 2003 WL 21244625, at *15-17 (finding that co-arrestee's prisoner movement slip was not considered Brady material because it was contained in city corrections department file and thus not under control and within possession of the prosecution); cf. Ferreira v. United States, 350 F.Supp.2d 550, 556 (S.D.N.Y. 2004) (" This Court has been unable to find any case holding the federal [g]overnment in violation of Brady for not turning over information to a state prosecutor in a state criminal proceeding with which the [g]overnment has no direct involvement whatsoever").