Opinion
CR140276060
01-18-2018
STATE of Connecticut v. Bryant WILSON
UNPUBLISHED OPINION
OPINION
Dewey, J.
I. Issue Before the Court
On October 25, 2017 a jury found the defendant, Bryant Wilson guilty of murder, Connecticut General Statutes 53a-54a; and carrying a pistol without a permit, Connecticut General Statutes 29-35(a). Subsequent to that verdict, the defendant filed the instant motion for a new trial wherein he alleges the prosecution withheld evidence in violation of Brady v. Maryland, 372 U.S. 83 (1963). Specifically, the defendant asserts that a state withheld information that would have been used to impeach a government informant, Andrew Elmassri.
In his motion, the defendant suggests that the jury deliberated nine days before reaching a verdict. The jury that rendered the verdict in the defendant’s case deliberated over the course of three days.
II. Summary of Facts
From the trial evidence, post-trial evidence and available trial documents, this court finds the following facts:
On. August 18, 2014, on Roberts Street, the defendant shot and killed Corey Washington. Although several people in the area heard gunfire, no one who testified saw the actual shooting. Jerome Blackman, a friend of the victim’s mother, heard the gunfire and immediately thereafter heard the sound of an individual running away from the crime scene and toward Trinity Street. Local residents often used that path when travelling from Roberts Street to Trinity Street. When officers searched that Trinity Street area, they found a San Antonio Spurs’ ball cap lodged in a hedge that bordered the path. A sample of the defendant’s DNA matched that found on the ball cap.
Unless otherwise specified, all events occurred in New Britain, Connecticut.
Two days after the Corey Washington murder, the defendant discharged a firearm while at 231 Maple Street. Eight hours later, at 66 Prospect Street, he again discharged a firearm. The defendant admitted his involvement in those shootings. The police retrieved a 44 caliber Magnum Desert Eagle handgun when they searched property on School Street. The defendant had asked an associate to hide that gun. There was a cartridge jammed in the handgun firing mechanism. He admitted that he had fired the firearm and stated during testing of his hands that the investigators would find gun powder residue; DNA found on the handgun matched that of the defendant.
The defendant admitted " I like to play with guns." Police found shell casings at both Maple and Prospect Street; they did not find any shell casings at the scene of the murder. The shell casings had been fired from the handgun found at School Street.
The defendant never applied for nor did he have a valid pistol permit.
During his pretrial incarceration, the defendant told two fellow inmates, Shannon Davis and Andrew Elmassri, that he killed Corey Washington, providing details not known to the general public. Both Mr. Davis and Mr. Elmassri testified. Defense counsel extensively crossed examined both individuals, securing admissions concerning their criminal histories and the personal benefits they might receive in exchange for their testimony. Additionally a defense witness, Professor Robert Bloom, provided testimony concerning the fact government informants might not be reliable witnesses. Professor Bloom provided some guidelines for assessing the credibility of those particular witnesses. In response, the State produced testimony regarding administrative procedures utilized by law enforcement when securing information from jail house informants.
The defendant offered an alibi defense for the date of the murder, an alibi the state disputed. Additionally, during the course of challenging the adequacy of the police investigation into the Corey Washington murder, the defendant elicited testimony regarding potential third-party culpability.
III. General Case Law
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 (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, (1985); United States v. Agurs, 427 U.S. 97, 111 n.17 (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, and that the duty includes impeachment evidence as well as exculpatory evidence. Bagley, 473 U.S. at 676. The Connecticut constitution affords the same protections. State v. Floyd, 253 Conn. 700, 736-37, 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, 373 U.S. at 86; State v. Wilcox, 254 Conn. 441, 453, 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 (1999). State v. Wilcox, 254 Conn. at 452. " 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. at 682; see also California v. Trombetta, 467 U.S. 479, 488-89 (1984) (state’s failure to retain breath samples was not unconstitutional where the chances are extremely low that preserved samples would have been exculpatory).
IV. Facts Relating to the Testimony of Andrew Elmassri
The defendant was incarcerated at the time of his trial. While incarcerated, he had conversations with fellow inmates, Shannon Davis and Andrew Elmassri. Elmassri was a barber at the correctional facility. While Elmassri was cutting the defendant’s hair, the defendant told Elmassri that he had initiated a drug transaction during which he shot and killed Corey Washington. The defendant described in detail the murder, his retreat from the crime scene, his loss of the San Antonio Spurs baseball cap and his attempted disposal of the murder weapon. Elmassri advised prison officials of the admission. Subsequently Elmassri provided a statement to detectives from the New Britain police department. Those conversations became a part of the state’s case in chief.
Elmassri and police officials did not have any agreement, either express of implied, concerning the defendant. However, Elmassri was assured that his cooperation would be brought to the attention of the judge who would ultimately sentence him for his pending criminal charges. Elmassri conceded his lengthy criminal record, recognizing as part of that substantial terms of confinement for a variety of offenses, many of which involved larcenies and burglaries.
Prior to trial defense counsel subpoenaed Elmassri’s administrative record at the Department of Corrections. The trial court agreed to conduct an in camera review; the defendant did not pursue that matter before this trial court.
After the jury had rendered a verdict but before sentencing, the State advised defense counsel that Andrew Elmassri had received a prison disciplinary ticket on April 4, 2007. On that date Elmassri had altered his prison identification tag in order to change his designated meal time. His explanation for the infraction was that he desired to have a meal with his brother who was incarcerated at the same institution. Defense counsel argues that the state had an obligation to produce that report prior to trial.
V. Legal Analysis
The first element of a Brady violation which the defense must prove is that there is information which the state did not provide to the defense, " suppression." State v. Floyd, 253 Conn. at 737. " The government does not suppress evidence in violation of Brady by failing to disclose evidence to which the defendant had access through other channels." United States v. Coplen, 565 F.3d 1094, 1097 (8th Cir. 2009) (internal citations omitted). " Evidence is not suppressed if the defendant has access to the evidence prior to trial by the exercise of reasonable diligence." United States v. Stuart, 150 F.3d 935, 937 (8th Cir. 1998). Simply stated, Brady and its progeny do not require the government to conduct an investigation for the defense. " When ... a defendant has enough information to be able to ascertain the supposed Brady material on his own, there is no suppression by the government." United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991). The government had no duty to fish through public records equally accessible to defense to collate information. See Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007) (" Where, like here, ‘the factual basis’ for a claim is ‘reasonably available to’ the [defendant] or his counsel from another source, the government is under no duty to supply that information to the defense" ) (citation omitted); See also State v. Simms, 201 Conn. 395, 406-07, 518 A.2d 35 (1986).
At trial the defendant was fully aware of the fact Andrew Elmassri had been incarcerated on multiple occasions. The defendant had subpoenaed at least a portion of Elmassri’s prison records. Had he requested a disciplinary record, that information would have been provided. The information was equally available to the state and the defense. There was no suppression.
Regardless, this court must conduct further analysis. The defendant must prove that the " suppressed" evidence, a decade old disciplinary ticket, was material to the defense. State v. Floyd, 253 Conn. at 736; State v. Wilcox, 254 Conn. at 452. Evidence is material under Brady " when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Cone v. Bell, 556 U.S. 449, 470 (2009). Mere speculation that suppressed evidence might have changed the trial is not enough to satisfy the materiality element of a Brady claim. See Wood v. Bartholomew, 516 U.S. 1, 6 (1995). " To establish materiality in the context of Brady, the accused must show there is a reasonable probability that if the alleged suppressed evidence had been disclosed at trial the result of the proceeding would have been different." Bagley, 473 U.S. at 682 (internal quotations omitted). The touchstone of materiality is a " ‘reasonable probability’ of a different result," which exists " when the government’s evidentiary suppression ‘undermines the confidence in the outcome of the trial.’ " United States v. Bagley, 473 U.S. at 678.
The disclosure duty is limited to information which, on its face, is either exculpatory or impeaching. Strickler, 527 U.S. at 281-82. The favorability of the evidence is determined by the evidence itself, not based on the potential uses to which a defendant may have eventually determined. " [T]he mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial ... does not establish materiality in the constitutional sense." (internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 546, 747 A.2d 487 (2000). See U.S. v. Augurs, 427 U.S. at 109-10. In light of all information elicited at trial, the value of this decade old disciplinary ticket was minimal, at best.
Additionally a court must consider the cumulative effect of all material withheld by the government. See Kyles v. Whitley, 514 U.S. 419, 437 (1995). Depending on the evidence produced at any given trial, cumulative impeachment evidence is not necessarily material. State v. Wilcox at 455. Although some of the state’s disclosure occurred on the eve of trial, that late disclosure was not a Brady violation. Defense counsel had ample opportunity to review all records and information supplied by the state.
Nor has the defendant presented a prima facie case concerning the materiality of these disciplinary records. Despite his access to these records at the time of the post-trial hearing, the defendant failed to produce any evidence that this remote record was material to the issue of his guilt. There is not even a scintilla of evidence to establish " a reasonable probability of a different result." Strickler, 527 U.S. at 282.
In this case, the defendant speculates that knowledge of a decade old prison infraction would further the defense case, in particular undermine the credibility of Andrew Elmassari. The trial jurors were well aware that Elmassri was far from perfect. They were aware of his lengthy criminal history and the ramifications of his testimony during the defendant’s trial. The defendant had at his disposal substantial ammunition for impeachment. Ultimately the jury chose to convict the defendant, based on the entirety of the state’s evidence. The Motion for a New Trial is denied.