State v. Guerrera , 331 Conn. 628 ( 2019 )

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STATE OF CONNECTICUT v. MICHAEL
ANTHONY GUERRERA
(SC 19785)
Palmer, McDonald, Robinson, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
Pursuant to Brady v. Maryland (373 U.S. 83), the state has an obligation
to disclose to an accused evidence that is both favorable to the defense
and material to the case.
Convicted of the crimes of assault in the first degree, conspiracy to commit
assault in the first degree, and tampering with physical evidence, and
found in violation of probation, the defendant appealed to the Appellate
Court, claiming, inter alia, that the trial court improperly had granted
in part motions by the state and the Department of Correction to quash
a subpoena issued by the defendant to the department that sought,
pursuant to Brady, the production of audio recordings made by the
department of four codefendants’ calls and visits while they all were in
the custody of the Commissioner of Correction. The defendant and his
four codefendants had been incarcerated in lieu of bail pending trial and,
in accordance with department policy, were notified that conversations
during all inmate calls and noncontact visits were automatically
recorded. Such recordings ordinarily remained in storage for one year,
after which time they were automatically erased, unless the department
manually preserved them beyond the one year period. Following a
request by the office of the state’s attorney that the department record
the calls and visits of the codefendants, the department assigned a
monitor to the case, and, in accordance with department practice, the
monitor reviewed approximately 10 percent of the audio recordings of
those calls and visits, which represented the calls and visits the depart-
ment believed to be most likely to bear some relevance to the pending
criminal case. If the monitor identified a call or visit that may contain
information relevant to the case, the monitor would preserve the
recording of that call or visit beyond the one year period and summarize
its contents for the state. In response to the defendant’s subpoena, the
department preserved 1552 recordings of the codefendants’ calls and
visits that remained in storage. The state and the department claimed
in their motions to quash that the defendant’s subpoena was issued
without any indication that the recordings contained exculpatory infor-
mation and, further, that producing the recordings would unduly burden
the department because its policy required it to review each recording
in its entirety prior to its disclosure to an outside party. The state further
claimed that the unreviewed recordings were not part of the state’s
investigation but were identified and ultimately preserved at the express
request of the defendant. The trial court granted the motions to quash
with respect to the 1552 recordings that were preserved in response to
the defendant’s subpoena but that had not been reviewed, but ordered
the department to provide to the defendant any recordings of the code-
fendants that the department had reviewed and that concerned the
pending case. The trial court rejected the defendant’s claim that Brady
also required the department to provide the 1552 recordings that the
department had not reviewed so that he could review them himself. In
addressing the defendant’s Brady claim on appeal, the Appellate Court
appeared to assume without deciding that the 1552 recordings, none of
which had been reviewed by the department or the state, were part of
the state’s investigatory file and that the state could be charged with
constructive knowledge of their contents. The Appellate Court neverthe-
less concluded that the state’s attorney had no obligation to examine
the state’s own investigatory file because the defendant had not made
an adequate showing that the file contained exculpatory information.
On the granting of certification, the defendant appealed to this court.
Held that, in the absence of an appropriate showing by the defendant of
at least some likelihood that the 1552 recordings contained exculpatory
information, the state had no obligation, under the particular facts of
this case, either to examine those recordings or to obtain and make
them available to the defendant for his review, and, accordingly, the
Appellate Court correctly concluded that the trial court had properly
granted in part the state’s and the department’s motions to quash the
defendant’s subpoena: the assumption that the 1552 recordings, none
of which was reviewed by the department, were identified and preserved
in furtherance of the state’s investigation and were thus part of the
state’s investigatory file was contradicted by the record, there having
been no evidence to contradict the monitor’s testimony that the 1552
recordings were preserved in accordance with the department’s obliga-
tion in light of the defendant’s subpoena rather than as part of the
department’s monitoring process as requested by the state’s attorney;
moreover, because it was undisputed that the department reviewed
only 10 percent of the recordings in response to the state’s request for
monitoring and the state never pursued a request that the department
review all of the recordings or undertook to obtain and review any of
the remaining recordings, the state’s investigation with respect to the
recordings in the department’s possession was limited to the 10 percent
of the recordings that the department did review, and the trial court
correctly determined that the state’s obligations under Brady extended
to those particular recordings.
(One justice concurring separately)
Argued September 21, 2017—officially released May 7, 2019
Procedural History
Two substitute informations charging the defendant,
in the first case, with the crimes of assault in the first
degree, conspiracy to commit assault in the first degree,
unlawful restraint in the first degree and tampering with
physical evidence, and, in the second case, with the
crimes of murder, conspiracy to commit murder, felony
murder, kidnapping in the first degree and conspiracy
to commit kidnapping in the first degree, and informa-
tion, in a third case, charging the defendant with viola-
tion of probation, brought to the Superior Court in the
judicial district of New Britain where the cases were
consolidated; thereafter, the court, Alander, J., granted
in part the motions to quash a subpoena duces tecum
filed by the state et al.; subsequently, the first two cases
were tried to the jury before Alander, J.; verdicts of
guilty of assault in the first degree, conspiracy to com-
mit assault in the first degree and tampering with physi-
cal evidence; thereafter, the court declared a mistrial
as to the charges of murder, felony murder, kidnapping
in the first degree and conspiracy to commit kidnapping
in the first degree and granted the defendant’s motion
to dismiss the charge of conspiracy to commit kidnap-
ping in the first degree; subsequently, the third case
was tried to the court; thereafter, the court rendered
judgment revoking the defendant’s probation and ren-
dered judgments in accordance with the verdicts, and
the defendant appealed to the Appellate Court, Gruen-
del, Beach and Flynn, Js., which affirmed the trial
court’s judgments, and the defendant, on the granting
of certification, appealed to this court. Affirmed.
John L. Cordani, Jr., with whom, on the brief, was
Damian K. Gunningsmith, for the appellant (defend-
ant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, Jonathan M. Sousa, former special deputy
assistant state’s attorney, and John H. Malone, supervi-
sory assistant state’s attorney, for the appellee (state).
Opinion
PALMER, J. It is the policy and practice of the Depart-
ment of Correction (department) to automatically
record the telephone calls and noncontact visits of all
inmates, each of whom is given prior notice that such
calls and visits are being recorded. The recordings are
made for a variety of reasons related to prison safety
and administration, and not as part of any investigation
into the crimes with which the various inmates have
been charged. From time to time, however, the depart-
ment, upon express request of the state’s attorney
responsible for prosecuting a particular criminal case,
will review some but not all of the calls and visits of
those inmates who have been charged in that case.
Because the department is acting as an investigative
arm of the state in conducting that review, the calls
and visits reviewed at the state’s attorney’s behest are
part of the state’s investigation into the case such that,
like all other material and information gathered or
developed as part of the investigation, those calls and
visits are subject to the disclosure requirements of
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963).1 The sole issue presented by this
appeal is whether the inmates charged in such a case,
some of whose calls and visits have been reviewed by
the department, are entitled, under Brady, to a review
of all of those calls and visits even though the depart-
ment has limited its review to only some of the recorded
conversations. We conclude that no such review is
required under the facts and circumstances of the pres-
ent case.
The defendant, Michael Anthony Guerrera, and four
codefendants were charged with various offenses in
connection with the assault and murder of the victim,
Dylan Sherman. Following their arrest, they were
remanded to the custody of the Commissioner of Cor-
rection (commissioner) pending trial, at which time the
state requested that the department review the tele-
phone calls and noncontact visits of the defendant and
his codefendants. In accordance with its practice, the
department reviewed only about 10 percent of those
voluminous calls and visits, which represented the calls
and visits believed by the department to be most likely
to bear some relevance to the pending criminal case.
Subsequently, the defendant, shortly before trial, issued
a subpoena to the department seeking, under Brady,
the production of more than 1500 audio recordings of
the telephone calls and noncontact visits of the defen-
dant’s four codefendants that had been made and
retained by the department while those codefendants
remained in the commissioner’s custody prior to trial.2
The state and the department moved to quash the sub-
poena, claiming that it was overbroad in that it failed
to provide any reason to believe that the recordings
contained exculpatory information and, further, that
producing the recordings would place an undue burden
on the department because, before any such produc-
tion, the department would be required to review each
recording to determine whether it contained any rele-
vant evidence. The trial court granted in part the
motions to quash, concluding, inter alia, that, before
the department could be compelled to undertake such
an extensive review on the defendant’s behalf, the
defendant was required, in accordance with Brady, to
make an appropriate threshold showing that the
recordings contain evidence favorable to the defendant,
a showing that he concededly could not make. A jury
thereafter found the defendant guilty of assault in the
first degree in violation of General Statutes §§ 53a-59
(a) (1) and 53a-8, conspiracy to commit assault in the
first degree in violation of General Statutes §§ 53a-59
(a) (1) and 53a-48 (a), and tampering with physical
evidence in violation of General Statutes (Rev. to 2011)
§ 53a-155 (a) (1), and the trial court rendered judgments
in accordance with the verdicts.3
On appeal, the Appellate Court affirmed the judg-
ments of the trial court; State v. Guerrera, 167 Conn.
App. 74, 120, 142 A.3d 447 (2016); and we granted the
defendant’s petition for certification to appeal, limited
to the question of whether the Appellate Court properly
determined ‘‘that the state’s attorney’s obligation to
review [the state’s] own investigatory file for Brady
. . . material . . . applies [only when] the defendant
can first make a ‘showing’ that the file contains exculpa-
tory information . . . .’’ State v. Guerrera, 323 Conn.
922, 150 A.3d 1152 (2016). Upon further consideration
of the issue presented, however, it is apparent that the
certified question is predicated on an assumption that
is contradicted by the record, namely, that the
recordings at issue were part of the state’s investigatory
file; they were not a part of the investigation of the
state’s case against the defendant.4 Because those
recordings were not part of that file, we have no cause
to answer the question as certified. We must decide,
rather, whether the state had an obligation under Brady
to review the recordings nevertheless.5 We conclude
that the state had no such obligation under the particu-
lar facts of this case, and, for that reason, we affirm
the judgment of the Appellate Court.
The following undisputed facts and procedural his-
tory are relevant to our resolution of the present appeal.
On February 22, 2011, the victim was severely beaten
and then transported to a wooded area of Terryville
where he was bludgeoned to death. His body was found
the next day by a hiker, and, soon thereafter, the police
developed information that the victim had been mur-
dered by the defendant and his brother, Dennis Guer-
rera, over a dispute involving money. On February 24,
2011, the two men, along with three others, were
arrested and charged with multiple offenses related to
the assault and murder of the victim.
Shortly after those arrests, an inspector from the
state’s attorney’s office requested that the department
monitor the telephone calls and noncontact visits of
the defendant and his four codefendants, all of whom
remained incarcerated in lieu of bail pending trial. This
request was handled in accordance with department
policy, pursuant to which all such inmate calls and visits
are automatically recorded with prior notice to every
inmate that his or her calls and visits are recorded
and subject to monitoring by the department.6 These
recordings are made for prisoner safety and a number
of administrative concerns, and are stored for a fixed
period of time on servers maintained by an outside
vendor. Prior to July, 2012, the vendor preserved the
recordings for ninety days, after which time they were
automatically erased. Thereafter, however, the depart-
ment entered into a contract with a new vendor, which
was required to preserve the recordings for one year.
Both before and after July, 2012, however, to preserve
a recording beyond the automatic retention period, the
department had to save it to an external drive, which
is referred to as ‘‘locking’’ the call.
The department routinely receives requests from the
various state’s attorney’s offices and other investigative
agencies to monitor inmate telephone calls. After the
receipt of such a request, the department assigns an
individual telephone monitor to the case. Because the
department maintains that it is not feasible to monitor
or review every call of any particular inmate,7 the
department’s practice when monitoring calls for such
a requesting agency is to focus exclusively on inmate
calls occurring soon after that inmate was arrested and
incarcerated and shortly before and after the inmate’s
court dates because, in the view of the department,
those are the calls that typically yield information of
value to the requesting agency. The monitor assigned
to the request decides which calls to listen to, generally
without any input from the requesting agency, and will
lock a call only if it appears to contain information
related to the case. When such a call has been identified
and locked, the monitor summarizes its contents in a
written report, which is then forwarded to the
requesting agency. If the requesting agency wishes to
obtain a copy of any such recording, it may do so upon
request to the department in accordance with depart-
ment policy.
The state’s request in the present case was assigned
to Officer Donald Lavery, a member of the department’s
Special Intelligence Unit. In keeping with department
practice, Lavery limited his review to those calls that
were made shortly after the individuals were incarcer-
ated and before and after their court dates, a review
that comprised only about 10 percent of the calls of
the defendant and his codefendants. Lavery ultimately
prepared notes on only a handful of the calls, and he
forwarded those notes to the state’s attorney’s office.
The state, however, never sought to obtain a copy of
any of those calls because, after reviewing Lavery’s
notes, the state’s attorney determined that none of the
calls was either inculpatory or exculpatory. Moreover,
at no time did the state’s attorney seek to have the
department review additional calls or otherwise under-
take to obtain copies of any such additional calls from
the department.
On June 27, 2011, defense counsel sent a letter to
the department ‘‘requesting that all phone calls of [the
defendant’s codefendants] be recorded and preserved.’’
The letter further stated that, ‘‘[a]t some point in the
future, I anticipate issuing subpoenas for the recordings
of these inmates’ calls.’’ On August 15, 2013, the defen-
dant issued a subpoena to the department, directing
it to ‘‘produce copies of the [codefendants’] recorded
conversations, whether on the telephone or during
inmate visits . . . .’’ The state and the department
moved to quash the subpoena on the ground that it had
been issued without any indication that the recorded
conversations contain exculpatory material. They also
maintained that compliance with the subpoena would
place a significant and unreasonable burden on the
department due to the extensive number of recordings
involved, all of which, under department policy, would
have to be reviewed in their entirety before they could
be disclosed to an outside party, a process that,
according to the representations of the state’s attorney,
could take anywhere from 200 to 1000 hours, depending
on the length of the calls.8
The defendant filed an objection to the motions to
quash in which he asserted, inter alia, that he was in
possession of information that, during a recorded
prison visit between his brother, Dennis, and their
mother, Naomi Ball, Dennis had informed Ball that the
defendant was not involved in the victim’s murder. On
the basis of this information, the defendant claimed that
the exculpatory statement allegedly made by Dennis to
their mother provided reason to believe that the other
codefendants also might have revealed exculpatory
information during their phone calls or visits.
At the hearing on the motions to quash, Lavery testi-
fied that he had not locked any calls in response to the
state’s request for monitoring,9 but, after receiving the
defendant’s subpoena, he ‘‘went back and started lock-
ing’’ all of the codefendants’ calls that were still on the
server. A total of 1552 calls were ultimately locked.10
When the court asked whether he had listened to any
of the calls after they were locked in response to the
subpoena, Lavery responded that he had not. After
Lavery’s testimony that he had not locked any calls in
response to the state’s request for monitoring, the trial
court expressed confusion, stating that it was under
the impression that all of the codefendants’ calls were
locked as soon as the department received the state’s
request. Lavery explained that, because calls must be
locked ‘‘one at a time and it takes a very long time’’ to
lock a call, it is his general practice to lock only calls
that he has actually reviewed and that he believes may
contain information relevant to the case of interest. The
court then asked Lavery: ‘‘Oh, so they’re not automati-
cally locked? . . . [Y]ou only lock the ones you’ve lis-
tened to if there’s something of note?’’ Lavery
responded, ‘‘right.’’ The court then stated: ‘‘So it’s not
accurate for me to think, which is what I thought, that
once the request comes in every call [is locked]. Nothing
like that was done?’’ Lavery responded, ‘‘[n]o.’’ The
court then stated, ‘‘[s]o [all the older] calls are gone.
They’re not preserved. If [a call] was made in March
of 2011 [when the state requested monitoring] under
the old system, it would have [been] held for ninety
days. So they don’t exist anymore, right?’’ Lavery
responded, ‘‘[y]es.’’ Finally, the court asked Lavery
again why he had locked the 1552 calls at issue. Lavery
responded that he had locked them to comply with the
defendant’s subpoena ‘‘so we wouldn’t lose them,’’ to
which the court responded: ‘‘Okay. Understood.’’
Following the hearing on the motions to quash, the
trial court issued a memorandum of decision granting
the motions with respect to the 1552 calls that were
locked in response to the defendant’s subpoena but
remained unreviewed. In doing so, the court observed
that of the calls that Lavery had reviewed, but which
did not include any of the 1552 calls locked in response
to the defendant’s subpoena, only a few of them con-
tained conversations that referred to the crime or other-
wise related in some way to the defendant’s case. ‘‘Given
these statistics,’’ the court stated, ‘‘the defendant’s
request for documents is overbroad. It clearly sweeps
up calls that have no demonstrated relevance to the
matter before the court. It would also impose a substan-
tial burden on [the department] to review each of these
[1552] calls to determine which calls contain relevant
statements.’’ In reaching its decision, the court rejected
the defendant’s contention that, because a few of the
calls that Lavery reviewed contained some information
that related generally to the case, it was reasonable to
infer that some of the 1552 calls would contain exculpa-
tory material. The court stated that the defendant had
presented no evidence that the codefendants ‘‘did in
fact make any other calls containing relevant material,
other than those already identified by [the department]
and, if [they did], which calls contain [that] material.
The defendant seeks to obtain [more than 1500] calls in
the blind hope that some of them may contain relevant
material. That effort is a classic fishing expedition.’’
The trial court next addressed the defendant’s claim
that ‘‘he is entitled to obtain copies of all [1552] calls so
that he can review [them] for Brady material.’’ (Internal
quotation marks omitted.) The court observed that,
although the department ‘‘does not generally act as an
investigative arm of the state, it did assist the state’s
attorney’s office in the investigation of the crimes at
issue here.’’ Citing Kyles v. Whitley, 514 U.S. 419, 437,
115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (prosecutor
has duty to learn of any evidence favorable to defendant
that is known to others acting on government’s behalf),
and Demers v. State, 209 Conn. 143, 153, 547 A.2d 28
(1988) (same), the court then explained that, for Brady
purposes, the state’s disclosure obligation extends not
only to the office of the prosecutor but also to ‘‘law
enforcement personnel and other arms of the state
involved in the investigative aspects of a particular ven-
ture.’’ (Internal quotation marks omitted.) The court
further observed that, under United States v. Stewart,
433 F.3d 273, 298 (2d Cir. 2006), ‘‘[t]he relevant inquiry
for determining whether an individual or entity is an
arm of the prosecution for Brady purposes is what
the person did, not who the person is.’’ (Emphasis in
original; internal quotation marks omitted.)
The trial court continued: ‘‘The state’s attorney’s
office specifically requested that [the department] mon-
itor and review the calls . . . of the [defendant and
his] four codefendants. In response to that request,
[the department] reviewed approximately 10 percent
of [those] calls for any information related to the alleged
crimes. In a number of instances, [the department] sent
notes to the state’s attorney’s office detailing the con-
tent of calls containing such information. Clearly, [the
department] was investigating aspects of the case on
behalf of the state’s attorney. Consequently, under the
facts here, the prosecutor’s obligation under Brady to
disclose exculpatory and favorable information to the
defendant extends to information known to [the
department].’’
Applying these principles to the present case, the
court determined that, because Lavery, at the prosecu-
tion’s request, had reviewed approximately 10 percent
of the codefendants’ calls, the state’s duty under Brady
to disclose exculpatory information extended to those
calls. The court also concluded, however, that the
remaining 90 percent of the calls fell outside the state’s
Brady obligations because those calls were never
reviewed by the department or the state as part of the
investigation of the defendant’s case, and, therefore,
those calls could not be known to the department, or
constructively known by the state’s attorney. Necessary
to this conclusion was the court’s implicit finding that
those calls were not part of the state’s investigatory file.
Accordingly, the court denied the motions to quash
in part and ordered the department to provide to the
defendant ‘‘any recorded calls of the codefendants [that
the department] has reviewed and [that] concern the
pending case . . . including but not limited to: (1) the
recorded call of the visit by . . . Ball with Dennis Guer-
rera in which [Dennis] Guerrera [purportedly] discusses
the involvement or lack of involvement of the defendant
in these crimes, and (2) the recorded calls for which [the
department] has provided notes to the state’s attorney’s
office outlining the substance of the calls because the
calls refer to matters related to [the] case.’’11
The trial court, however, rejected the defendant’s
contention that Brady also required the department to
turn over to the defendant the 1552 recordings that
Lavery did not listen to so that the defendant himself
could review them for possible Brady material. The
court explained that, even if there were legal authority
for the defendant’s request, which there is not; see, e.g.,
Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989,
94 L. Ed. 2d 40 (1987) (‘‘A defendant’s right to discover
exculpatory evidence does not include the unsuper-
vised authority to search through the [government’s]
files. . . . [T]his court has never held . . . that a
defendant alone may make the determination as to the
materiality of the information. Settled practice is to the
contrary.’’ [Citations omitted.]); the defendant would
still be required to make a threshold showing of materi-
ality before the department could be compelled to pro-
duce the recordings, a hurdle that the defendant
admittedly could not surmount. See, e.g., id., 58 n.15
(‘‘[a defendant], of course, may not require the trial
court to search through the [government’s] file without
first establishing a basis for his claim that it contains
material evidence’’); United States v. Brandon, 17 F.3d
409, 456 (1st Cir.) (‘‘to establish a violation of Brady, a
defendant must provide the court with some indication
that the materials to which he . . . needs access con-
tain material and potentially exculpatory evidence’’),
cert. denied sub nom. Granoff v. United States, 513
U.S. 820, 1155 S. Ct. 80, 130 L. Ed. 2d 34 (1994), and
cert. denied sub nom. Ward v. United States, 513 U.S.
820, 1155 S. Ct. 80, 130 L. Ed. 2d 34 (1994); United
States v. Pou, 953 F.2d 363, 367 (8th Cir.) (Brady does
not permit defendant ‘‘to conduct an in camera fishing
expedition through the government’s files’’), cert.
denied, 504 U.S. 926, 112 S. Ct. 1982, 118 L. Ed. 2d 580
(1992), and cert. denied sub nom. Mondejar v. United
States, 504 U.S. 926, 112 S. Ct. 1982, 118 L. Ed. 2d 580
(1992), and cert. denied, 504 U.S. 926, 112 S. Ct. 1983,
118 L. Ed. 2d 581 (1992); United States v. Navarro,
737 F.2d 625, 631 (7th Cir.) (‘‘Mere speculation that
a government file may contain Brady material is not
sufficient to require a remand for in camera inspection,
much less reversal for a new trial. A due process stan-
dard [that] is satisfied by mere speculation would con-
vert Brady into a discovery device and impose an undue
burden upon the [D]istrict [C]ourt.’’), cert. denied, 469
U.S. 1020, 105 S. Ct. 438, 83 L. Ed. 2d 364 (1984), and
cert. denied sub nom. Mugercia v. United States, 469
U.S. 1020, 105 S. Ct. 438, 83 L. Ed. 2d 364 (1984).
Several weeks after the court’s ruling on the motions
to quash, defense counsel informed the court that he
had reviewed the recording of the conversation
between the defendant’s brother, Dennis, and their
mother, which had been turned over to him pursuant to
the court’s ruling, and that it did not contain exculpatory
material as he had been led to believe. At the same
time, defense counsel asked that all of the 1552
recordings that had not been turned over to the defense
be compiled onto compact discs and marked as an
exhibit for purposes of appeal, if necessary. The state
opposed the defendant’s request, arguing that such an
order would place an onerous and undue burden on
the department because the department, in accordance
with established policy, would be required to review
each of the recordings to prevent disclosure of irrele-
vant, sensitive or personal information, such as inmate
medical information. The state also expressed concern
that, if the department were to review any recordings
not already reviewed, the state could be charged with
constructive knowledge of their contents in light of
the court’s prior ruling that the department was an
investigative arm of the state to the extent that it actu-
ally had reviewed calls of the codefendants. To address
these concerns of the state, the court ordered that the
1552 recordings be filed with the court under seal so
as to relieve the department of the need to review them
prior to submitting them to the court. The court further
stated that, ‘‘if [the department], of its own volition,
decides to review these 1552 calls for its own adminis-
trative purposes, that does not expand the state’s attor-
ney’s Brady obligation because it’s not being reviewed
for investigative purposes. It’s being reviewed for [the
department’s] own institutional needs.’’
The case then proceeded to trial, and the defendant
was convicted of assault in the first degree, conspiracy
to commit assault in the first degree and tampering
with physical evidence, and found in violation of proba-
tion. The trial court sentenced the defendant to a total
effective sentence of thirty-four years imprisonment,
followed by ten years of special parole.
The defendant appealed to the Appellate Court, claim-
ing, inter alia, that, because all 1552 recordings were
part of the state’s investigatory file, the state had an
affirmative duty under Brady to review them, irrespec-
tive of the defendant’s inability to establish a reasonable
prospect that they contain exculpatory information.
The defendant argued that ‘‘[t]he state’s Brady obliga-
tion . . . extended to any exculpatory evidence pro-
duced by its investigation, including the [1552]
recordings,’’ and that the state was deemed to have
constructive knowledge of the contents of each of those
recordings, ‘‘regardless of whether the material [was]
actually . . . reviewed by the department or the state
. . . .’’ (Emphasis added.) State v. Guerrera, supra, 167
Conn. App. 86. The state responded that any of the 1552
calls that remained unreviewed were not ‘‘produced
by’’ or otherwise a part of the state’s investigation but,
rather, were identified and ultimately preserved under
seal at the express request of the defendant. See State v.
Guerrera, Conn. Appellate Court Briefs & Appendices,
February Term, 2016, State’s Brief pp. 18–19. Thus, the
state contended, any principal-agent relationship that
existed between the state and the department with
respect to the calls that the department did review did
not extend to those calls. Id., p. 19.
In addressing the defendant’s Brady claim, the Appel-
late Court appeared to assume without deciding that
the 1552 calls, none of which had ever been reviewed
by the department or the state, were part of the state’s
investigatory file such that the state could be charged
with constructive knowledge of their contents. State v.
Guerrera, supra, 167 Conn. App. 88. The Appellate
Court explained, however, that, ‘‘[s]imply because the
state and the department might be deemed to have
constructive knowledge of the contents of the
recordings does not necessarily indicate that the
recordings in fact contained evidence favorable to the
defense, as required by the Brady test.’’ (Internal quota-
tion marks omitted.) Id. Specifically, the Appellate
Court stated: ‘‘[T]here is nothing to indicate that the
evidence contained in the recordings is even potentially
helpful to the defendant. The defendant provided the
court with no evidence that any exculpatory informa-
tion was recorded at all. Indeed, at the hearing on the
motion[s] to quash, counsel for the defendant conceded
that ‘I can’t cite anything exculpatory, [but] there may
very well be exculpatory information that is not being
turned over because nobody listened to it.’ ’’ Id., 90.
In support of its conclusion, the Appellate Court cited
State v. Colon, 272 Conn. 106, 267, 864 A.2d 666 (2004),
cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d
116 (2005), in which this court ‘‘distinguish[ed] between
[a] valid Brady violation claim [that] the state with[eld]
exculpatory information and [the] claim [of the defen-
dant in Colon] that he was entitled to an opportunity
to sift through the records of the [O]ffice of the [C]hief
[S]tate’s [A]ttorney in search of a potential Brady viola-
tion.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Guerrera, supra, 167 Conn. App. 89.
In light of Colon, and because the present case is readily
distinguishable from cases, such as Demers v. State,
supra, 209 Conn. 143, that involve the state’s obligation
to secure the disclosure of Brady material located in
the files of the police department that conducted the
investigation of the case; see id., 153–54; the Appellate
Court concluded that the state had no duty ‘‘to conduct
a more thorough investigation into the voluminous
recordings preserved by the department.’’ State v. Guer-
rera, supra, 90. The Appellate Court reasoned that,
unlike the state’s attorney’s office in Demers that had
ready access to a report generated by the investigating
police department, the state in the present case did not
have such easy access to the contents of the conversa-
tions at issue. ‘‘Reviewing an easily available police
report; Demers v. State, supra, [153]; for exculpatory
information is a very different venture from ordering
the department to listen to more than 1000 phone calls,
none of which has been claimed to contain material
that would be useful to the defense.’’ (Internal quotation
marks omitted.) State v. Guerrera, supra, 90 n.3.
We granted the defendant’s petition for certification
to appeal, limited to the issue of whether the Appellate
Court correctly determined that the state’s attorney had
no obligation to examine ‘‘[the state’s] own investiga-
tory file’’ for Brady material unless the defendant first
made an adequate showing that the file contains excul-
patory information. State v. Guerrera, supra, 323 Conn.
922. On appeal, the defendant asserts, inter alia, that the
state’s attorney had a duty to review all 1552 recordings
because ‘‘the [department’s] choice to lock the calls was
made in furtherance of the [department’s] investigatory
efforts [on behalf of the state] and thus within the scope
of the agency found by the trial court.’’ The state argues
that the calls were not locked as part of the state’s
investigation but, rather, were locked in response to
the defendant’s subpoena, and were never reviewed,
and, consequently, they do not fall within the scope of
the agency found by the trial court. The state further
maintains that the defendant’s assertions to the con-
trary are ‘‘misleading and inconsistent with the record,’’
and that this court should reject the defendant’s
‘‘attempt to support his Brady claim . . . with the false
notion that the compiling of [the] unreviewed
recordings was the state’s doing . . . .’’
We begin our review of the defendant’s claim with a
summary of the law governing our disposition of that
claim. The state has a duty under Brady to disclose to
the accused evidence that is both favorable to the
defense and material to the case. E.g., Adams v. Com-
missioner of Correction, 309 Conn. 359, 369–70, 71 A.3d
512 (2013). As the state’s representative, the prosecutor
has a ‘‘broad obligation to disclose’’ Brady material
because principles of fundamental fairness demand no
less. Strickler v. Greene, 527 U.S. 263, 280–82, 119 S. Ct.
1936, 144 L. Ed. 2d 286 (1999). This obligation extends
to evidence favorable to the defense that is not in the
possession of the individual prosecutor responsible for
trying the case; indeed, the obligation may encompass
such evidence even if it is not known to the prosecutor.
Id., 280–81. More specifically, the prosecutor’s duty of
disclosure extends to Brady material that is ‘‘known
to the others acting on the government’s behalf in [the]
case,’’ including, but not limited to, the police. (Internal
quotation marks omitted.) Id., 281, quoting Kyles v.
Whitley, supra, 514 U.S. 437; see also Demers v. State,
supra, 209 Conn. 153 (‘‘[t]he [s]tate’s duty of disclosure
is imposed not only [on] its prosecutor, but also on the
[s]tate as a whole, including its investigative agencies’’
[internal quotation marks omitted]). In other words, the
prosecutor is deemed to have constructive knowledge
of Brady material possessed by those acting on the
state’s behalf. See, e.g., Demers v. State, supra, 153
(explaining that, if investigating agency were deter-
mined to be in possession of exculpatory material, then
court ‘‘would be compelled to conclude that, construc-
tively, the [s]tate’s attorney had both access to and
control over’’ that material). Thus, the prosecutor has
a duty to learn of exculpatory evidence in the posses-
sion of any entity that is acting as an agent or arm of
the state in connection with the particular investigation
at issue. See Strickler v. Greene, supra, 281. Finally,
and importantly, ‘‘the propriety of imputing knowledge
[of exculpatory evidence] to the prosecution is deter-
mined by examining the specific circumstances of the
person alleged to be an arm of the prosecutor.’’ (Internal
quotation marks omitted.) United States v. Stewart,
supra, 433 F.3d 298.
Consistent with the state’s contention, it is apparent
that the certified question is predicated on a fundamen-
tal misapprehension of the record, namely, that the 1552
calls—none of which was reviewed by the depart-
ment—were identified and preserved in furtherance of
the state’s investigation. When questioned by the trial
court about this precise issue, Lavery stated that he had
locked the calls solely to comply with the defendant’s
subpoena, in order to ensure that they would not be
erased pending a decision on the motions to quash.
Moreover, when Lavery was questioned by the depart-
ment’s counsel, he was asked, ‘‘[w]as that part of the
regular monitoring process to lock those [1552 calls]?’’
After Lavery responded ‘‘no,’’ he was asked, ‘‘[o]r is
that specific to the subpoena [the defendant] sent?’’
Lavery responded, ‘‘I did it for the subpoena.’’ There is
nothing in the trial court record to contradict or other-
wise call into question this clear and straightforward
testimony that the calls were preserved in accordance
with the department’s obligation in light of the sub-
poena that had been served on the department by the
defendant, and not as part of the department’s monitor-
ing process as requested by the state’s attorney.
Furthermore, it is undisputed that the department
reviewed only approximately 10 percent of the calls in
response to the state’s request for monitoring. Because
the state never pursued a request that the department
review all of the codefendants’ calls and never itself
undertook to obtain and review any of the remaining
calls, the state’s investigation with respect to the
recordings in the department’s possession was limited
to the 10 percent of the calls that the department actu-
ally did review. Because that review was undertaken
by the department at the state’s request, the department
was acting as an agent or arm of the state in conducting
that review, and, as a result, the recordings actually
reviewed must be characterized as part of the state’s
investigatory file. Consequently, the trial court correctly
determined that the state’s obligations under Brady
extended to those particular recordings. There simply
is no basis for concluding, however, that the calls that
never were reviewed by the department or otherwise
obtained by the state, and that were temporarily saved
on the department’s server for reasons unrelated to the
state’s investigation, constituted a part of that investiga-
tory file. This is so because, as we have explained, the
department was acting as an investigative arm or agent
of the state only with respect to the 10 percent of the
calls that Lavery reviewed. Put differently, neither the
state nor the department took any action with respect
to those unreviewed calls that would make the calls
part of the state’s investigation of the defendant’s case;
rather, their nature and character as calls recorded
solely for the department’s internal security and admin-
istrative purposes remained unchanged. Accordingly,
in the absence of an appropriate showing by the defen-
dant of at least some likelihood that those calls contain
exculpatory information, the trial court also correctly
determined that the state had no duty under Brady
either to examine those calls or to obtain them and
make them available to the defendant for his review.
On appeal to the Appellate Court, however, the defen-
dant repeatedly argued that the calls were locked in
response to the state’s request for monitoring and,
therefore, should be deemed to be part of the state’s
investigatory file. Specifically, the defendant argued
that, ‘‘[w]hile the trial court found [the department]
subject to Brady as an investigative arm of the state’s
attorney (like the police), it only found that [the depart-
ment’s] Brady obligations extended to the recordings
[the department] actually reviewed . . . and not to the
calls [the department] collected on behalf of the state’s
attorney but did not actually review . . . .’’ (Emphasis
added.) State v. Guerrera, Conn. Appellate Court
Briefs & Appendices, supra, Defendant’s Brief p. 9. The
defendant further argued that, ‘‘[i]n other words, the
[department’s] actions on behalf of the state’s attorney
involved both collection on a compact disc (through
the ‘locking’ procedure) and review. Thus, the state’s
argument [that the department was not acting on behalf
of the state when it locked the 1552 calls] fails—the
[department] was acting on behalf of the state’s attorney
in both locking (i.e., preserving) the calls and in
reviewing only 10 percent of them.’’ (Emphasis altered.)
State v. Guerrera, Conn. Appellate Court Briefs &
Appendices, supra, Defendant’s Reply Brief p. 4.
In his appeal to this court, the defendant reasserts
his contention that the recordings are part of the state’s
investigatory file because they were locked in response
to the state’s request for monitoring.12 As we discussed
previously, however, this claim is belied by the uncon-
tested facts. Significantly, the defendant’s brief makes
no mention of the subpoena that the defendant caused
to be served on the department on August 15, 2013.
When challenged at oral argument before this court
as to the basis for the defendant’s assertion that the
recordings were locked in response to the state’s
request for monitoring, his appellate counsel cited
Lavery’s testimony at the hearing on the motions to
quash: ‘‘When I receive[d] a subpoena for the phone
calls for the other four [co]defendants, I went back and
started locking them . . . . I locked [the calls] for the
subpoena just so we made sure we had access.’’ It is
clear, however, that the subpoena to which Lavery was
referring was the defendant’s subpoena because no
other subpoena was served on the department in this
case.
The defendant also seeks to characterize the follow-
ing language from the trial court’s memorandum of
decision as a factual finding that the department locked
the calls in response to the state’s request for monitor-
ing: ‘‘Lavery locked all calls made by the four codefen-
dants from approximately August, 2012, to the present.’’
This statement, however, merely establishes that the
calls were locked, not why they were locked. It is clear
from the record that the trial court was aware that
the calls were locked to comply with the defendant’s
subpoena. Indeed, this information was elicited from
Lavery under questioning by both the court itself and
counsel for the department. Lastly, the defendant seeks
to characterize the following sentence in the state’s
brief to this court as an admission by the state that
the calls were locked at the state’s request: ‘‘[U]pon
receiving the state’s request . . . Lavery . . . took
steps to preserve all recorded phone calls and jailhouse
visits for all four alleged coconspirators.’’ As we
explained, however, this statement is at odds not only
with Lavery’s testimony but with all of the state’s argu-
ments elsewhere in its brief and in the Appellate Court.13
Contrary to the defendant’s contention, therefore, we
do not read the statement as an admission of any sort
but merely as an unintended misstatement that is con-
travened by the entirety of the state’s arguments
throughout both its briefs and arguments in the trial
court, the Appellate Court and this court.
At no time on appeal to the Appellate Court or to
this court has the defendant argued that the state had
a duty under Brady to review the recordings at issue
for exculpatory material, even if they were determined
not to be part of the state’s investigatory file. Indeed,
in his brief to this court, the defendant takes pains to
distinguish the present case from cases such as United
States v. Brooks, 966 F.2d 1500 (D.C. Cir. 1992), which,
as the trial court explained, recognized that such a duty
may be imposed on the state, even though the alleged
Brady material is not within the possession of the prose-
cution or any agency acting on the prosecution’s behalf,
when the review sought is so limited in scope that it
would be ‘‘very easy’’ to accomplish and the defendant
is able to establish ‘‘a [nontrivial] prospect that the
examination might yield material exculpatory informa-
tion . . . .’’14 Id., 1504; see also United States v. Joseph,
996 F.2d 36, 41 (3d Cir.) (‘‘We will not interpret Brady
to require prosecutors to search their unrelated files
to exclude the possibility, however remote, that they
contain exculpatory information. . . . [W]e hold
[rather] that [when] a prosecutor has no actual knowl-
edge or cause to know of the existence of Brady mate-
rial in a file unrelated to the case under prosecution,
a defendant, in order to trigger an examination of such
unrelated files, must make a specific request for that
information—specific in the sense that it explicitly iden-
tifies the desired material and is objectively limited in
scope.’’ [Citation omitted.]), cert. denied, 510 U.S. 937,
114 S. Ct. 357, 126 L. Ed. 2d 321 (1993). In reaching its
decision in Brooks, the court surmised that the ‘‘will-
ingness [of some courts] to insist on an affirmative duty
of inquiry’’ in light of the particular facts and cir-
cumstances involved—ordinarily, an inquiry into files
‘‘maintained by branches of government closely aligned
with the prosecution’’—‘‘may stem primarily from a
sense that an inaccurate conviction based on gov-
ernment failure to turn over an easily turned rock is
essentially as offensive as one based on government
[nondisclosure].’’ (Internal quotation marks omitted.)
United States v. Brooks, supra, 1503.
The defendant argues that Brooks is inapposite
because ‘‘[it] involved a defense request for the prosecu-
tion to affirmatively conduct an investigation that had
not yet been performed by affirmatively searching gen-
eral government files,’’ whereas, in the present case,
‘‘[t]he defense was not asking the state’s attorney or
the [department] to perform an investigation that [it
was] otherwise unwilling to conduct. The defense sim-
ply wanted the state to review the materials it had
already gathered in its [own] investigation . . . .’’
(Emphasis in original.) Consistent with this contention,
the defendant notes that the cases cited in his brief are
dissimilar to Brooks in that all of them ‘‘involve . . .
investigatory files linked specifically to [the] case,’’15
rather than the ‘‘general government files’’ at issue in
Brooks. (Emphasis omitted.) The defendant’s argument
founders on the fact that the calls at issue in the present
case simply are not part of the state’s investigatory file.
As in Brooks, this case involves a defense request—in
the form of a subpoena—for a search of a government
agency’s general files, namely, the department’s server,
that would not otherwise have been performed but for
the defendant’s request. Cf. Stevenson v. Commissioner
of Correction, 165 Conn. App. 355, 364, 368, 139 A.3d
718 (prosecutor had no duty under Brady to disclose
internal department files that were generated at request
of public defender’s office for purely administrative
purposes, not in conjunction with state’s investigation),
cert. denied, 322 Conn. 903, 138 A.3d 933 (2016). In
stark contrast to Brooks, however, it can hardly be said
that the review of the calls sought by the defendant is
limited in scope—those calls number more than 1500,
and it would take hundreds of hours to listen to them—
and the defendant has provided no evidence to suggest
that any such review would result in exculpatory infor-
mation.16
In sum, the undisputed facts demonstrate that the
calls at issue in this case, that is, the 1552 calls that were
not reviewed by the department, cannot reasonably be
characterized as part of the state’s investigatory file.
Consequently, the defendant’s claim that he was enti-
tled to a review of those calls because they were part
of the file must fail. In light of the fact that the defendant
has provided no other rationale to support his claim of
a Brady violation, and because we are unaware of any
such alternative basis for relief, we reject his assertion
that the Appellate Court incorrectly concluded that the
trial court properly granted in part the state’s and the
department’s motions to quash.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* This case was originally argued before a panel of this court consisting
of Chief Justice Rogers and Justices Palmer, McDonald, Robinson, D’Auria
and Espinosa. Thereafter, Chief Justice Rogers and Justice Espinosa retired
from this court and did not participate in the consideration of the case.
Justices Mullins, Kahn and Ecker were added to the panel and have read
the briefs and appendices, and listened to a recording of oral argument
prior to participating in this decision.
The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
In Brady, the United States Supreme Court held that the due process
clause of the United States constitution requires the state to disclose ‘‘evi-
dence favorable to an accused . . . [when] the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.’’ Brady v. Maryland, supra, 373 U.S. 87. For an accused to
prevail on a claim under Brady, ‘‘[t]he evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the [s]tate, either [wilfully] or
inadvertently; and prejudice must have ensued.’’ Strickler v. Greene, 527
U.S. 263, 281–82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).
2
Although the record is not entirely clear on this point, it does not appear
that any of these more than 1500 calls and visits were among the 10 percent
of the calls and visits that already had been reviewed by the department at
the state’s request.
3
The defendant, who had been tried under three separate informations
consolidated for trial, was acquitted of the charges of unlawful restraint in
the first degree and conspiracy to commit murder. The jury was unable to
reach a verdict as to the charges of murder, felony murder, conspiracy to
commit kidnapping in the first degree, and kidnapping in the first degree,
and the trial court declared a mistrial as to those charges. In a trial to the
court, the defendant was found in violation of probation.
4
As we explain more fully hereinafter, the state’s obligations under Brady
ordinarily extend only to exculpatory information contained in the state’s
investigatory file, which includes any exculpatory information known to
others actively involved in the investigation. See Strickler v. Greene, 527
U.S. 263, 280–82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Thus, we use
the term ‘‘investigatory file’’ to refer to any and all information obtained in
connection with the investigation into a particular criminal case, whether
that investigation was undertaken by the state or by others involved in that
investigation as an arm of the state.
5
This court has broad discretion to address any issue within the scope
of the certified question, even if the issue was not considered by the Appellate
Court. See, e.g., McManus v. Commissioner of Environmental Protection,
229 Conn. 654, 661 n.6, 642 A.2d 1199 (1994).
6
For ease of reference, we refer hereinafter to the inmate telephone calls
and noncontact visits collectively as the calls or recordings.
7
We note that the record does not reflect whether the department owns
or licenses any of the various commercially available software solutions,
which are regularly used in the discovery process for civil litigation and in
corporate compliance operations, to review or analyze large amounts of
digital data at a much faster rate than a human could review the same data.
8
This estimate was so broad because the department had not determined
the length of each call.
9
Although Lavery did provide notes on one or more of the calls he reviewed
at the request of the state’s attorney, he apparently did not lock those calls,
perhaps because they did not contain any evidence deemed to be inculpatory
or exculpatory.
10
The trial court originally estimated the number of those calls to be 1300.
Thereafter, however, the court clarified that there were 1552 such calls.
11
As we previously noted, the department locked the calls of the defen-
dant’s four codefendants in August, 2013, in response to the subpoena issued
by the defendant to the department at that time. Because the regular practice
of the department prior to July, 2012, was to preserve all calls for only
ninety days, it appears that the calls identified in the trial court’s order—
that is, those that had been reviewed by Lavery—were not preserved. There
is no claim by the defendant, however, that any failure to preserve them
violated Brady or otherwise was improper.
12
For example, in his petition for certification to appeal, the defendant
asserted that, ‘‘[a]fter [the defendant] and the codefendants were arrested,
the state’s attorney contacted the [department]. At the state’s request,
[Lavery] ‘locked’ the recordings of prison calls made by [the defendant] and
the codefendants. . . . [W]hile Lavery created a file (the compact disc) of
all of the call recordings, Lavery only actually reviewed about 10 percent
of them. The other 90 percent remained within the investigative file of the
state’s attorney’s ‘investigative arm,’ the [department], but [they were] never
reviewed by anyone for exculpatory information.’’ (Emphasis in original.)
In his brief to this court, the defendant likewise argues that Lavery ‘‘lock[ed]
[his codefendants’] calls that were still available after receiving the state’s
attorney’s request [for monitoring]’’; Lavery ‘‘collected on behalf of the
[s]tate’s [a]ttorney [the 1552 calls] but did not actually review [them]’’;
‘‘Lavery did ‘lock’ calls that were still available after receiving the state’s
attorney’s request’’ and that ‘‘[t]he ‘locking’ process preserves the calls on
compact discs, and Lavery was able to lock all the available calls from the
codefendants from August, 2012, forward’’; ‘‘[t]he fact that the [department]
chose to lock the calls for later review in furtherance of its investigative
efforts does not bring that action outside the scope of the [department’s]
agency’’; and ‘‘the [department’s] choice to lock the calls was made in
furtherance of the [department’s] investigatory efforts and thus within the
scope of the agency found by the trial court.’’ (Emphasis omitted.)
13
At oral argument, the defendant also directed this court’s attention to
the testimony of Deputy Warden Armando Valeriano, who testified about
the department’s policies pertaining to the recording and monitoring of
inmate phone calls. The defendant argued that Valeriano’s testimony is
further proof that the 1552 recordings were locked as part of the state’s
investigation because Valeriano responded ‘‘yes’’ when asked by the trial
court, ‘‘[w]hen you get a request from the state’s attorney’s office, as in this
case, to monitor calls, are those recordings then preserved [s]o they won’t
be destroyed or written over in the normal course of business . . . ?’’ It is
clear, however, that Valeriano was referring to the preservation that occurs
automatically, because he then immediately stated that, ‘‘[w]ith this new
system,’’ inmate calls ‘‘are automatically saved for one year. All inmate calls
are saved for 365 days,’’ at which time ‘‘[t]hat first call drops off. . . . It’s
automatic through the system.’’ Thus, Valeriano did not testify that the 1552
calls were retrieved from the server and locked for reasons related to the
state’s investigation. He merely testified that inmate calls are preserved for
a period of one year during which time they are available for review if the
department should receive such a request. To the extent that there is any
ambiguity in Valeriano’s testimony, however, the trial court dispelled it later
in the hearing, during its colloquy with Lavery, when it asked him: ‘‘I’m a
little confused. Help me out here. I thought Deputy Warden Valeriano . . .
said that once a request comes in all the phone calls are preserved. So when
[the state’s] request came in [in] March of 2011, [were] all the phone calls
[of] the people who you were asked to monitor . . . preserved or not?’’
Lavery responded that they were not preserved.
14
In Brooks, the defendant requested that the government examine certain
readily identifiable files of its police department for information relating to
the suspicious death of the government’s chief witness, a police officer
employed by that department whose testimony at an earlier trial, which
resulted in a guilty verdict that was overturned when the court granted a
motion for new trial, was used to convict the defendant at a second trial.
United States v. Brooks, supra, 966 F.2d 1501–1503. The United States District
Court had rejected the defendant’s request, and, on appeal from that convic-
tion, the United States Court of Appeals for the District of Columbia deter-
mined that the defendant was entitled to an examination of those files by
the government due to the unusual circumstances surrounding the witness’
death, which gave rise to the possibility that she had work-related problems
that might reflect adversely on her credibility. Id., 1503–1504. The District
of Columbia Circuit Court of Appeals therefore remanded the case to the
District Court so that the government could undertake such an examination.
Id., 1504.
15
See, e.g., United States v. Price, 566 F.3d 900, 908–10 (9th Cir. 2009)
(prosecutor was charged with constructive knowledge of information known
to police officers involved in investigation); In re Sealed Case No. 99-3096
(Brady Obligations), 185 F.3d 887, 893–96 (D.C. Cir. 1999) (prosecutor
had duty to search his own files and police department files for witness
cooperation agreements); United States v. Payne, 63 F.3d 1200, 1208 (2d
Cir. 1995) (‘‘[t]he individual prosecutor is presumed to have knowledge of
all information gathered in connection with the government’s investigation’’),
cert. denied, 516 U.S. 1165, 116 S. Ct. 1056, 134 L. Ed. 2d 201 (1996); United
States v. Martoma, 990 F. Supp. 2d 458, 462 (S.D.N.Y. 2014) (when prosecutor
and another government agency conducted joint investigation, prosecutor
had duty to review other agency’s investigatory files for exculpatory evi-
dence); United States v. Gupta, 848 F. Supp. 2d 491, 495 (S.D.N.Y. 2012)
(‘‘whe[n] the [g]overnment and another agency decide to investigate the
facts of a case together . . . the [g]overnment has an obligation to review
the documents arising from those joint efforts to determine whether there
is Brady material that must be disclosed’’); United States v. Salyer, 271
F.R.D. 148, 155 (E.D. Cal. 2010) (government must review its own file, no
matter how voluminous, for Brady material); United States v. W. R. Grace,
401 F. Supp. 2d 1069, 1075–1076 (D. Mont. 2005) (same).
16
We do not suggest that, if the state has a disclosure obligation under
Brady with respect to certain information or materials, that obligation is
diminished or reduced depending on how burdensome it may be for the
state to discharge that obligation. On the contrary, the state’s obligation
under Brady is the same irrespective of how onerous or difficult it may be
for the state to comply with Brady’s dictates in any given case. The nature
of the burden on the state may be considered only in circumstances, akin
to those in Brooks, in which the court is asked to require the state to
track down information that is not part of the state’s investigatory file and
otherwise may not fall strictly within the requirements of Brady but that,
nevertheless, should, in fairness, be made available to the defense given the
nature of the information and the ease with which the state can obtain it.