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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections @ akcourts.gov
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTOPHER R. STACY,
Court of Appeals No. A-12668
Appellant, Trial Court No. 1KE-13-00753 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2714 - November 5, 2021
Appeal
from the Superior Court, First Judicial District,
Ketchikan, William B. Carey, Judge.
Appearances: Emily L. Jura, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Clark,
*
District Court Judge.
Judge ALLARD.
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
Christopher R. Stacywasconvicted,following ajury trial,ofsecond-degree
misconduct involving a controlled substance (possession of heroin with the intent to
1
deliver).
Stacy raises four claims on appeal.
First, he argues that the trial court erred when it failed to instruct the jury
on accomplice liability as it related to the lesser included offense of fourth-degree
misconduct involving a controlled substance (possession of heroin). For the reasons
explained here, we conclude that any error was harmless because Stacy's constructive
possession of the heroin was not in dispute at trial.
Second, he argues that the trial court erred in allowing the investigating
officer to testify to his personal opinion that Stacy intended to sell some of the heroin.
We agree with Stacy that this opinion testimony was improper, but we conclude that it
was harmless in the larger context of the case and the other proper hybrid testimony
offered by the officer.
Third, Stacy argues that there was insufficient evidence presented at trial
that he intended to deliver any of the two ounces of heroin that he possessed. Viewing
the evidence in the light most favorable to upholding the verdict, as we are required to
do on appeal, we conclude that there was sufficient evidence to support Stacy's
conviction for possession of heroin with the intent to deliver.
Lastly, Stacy raises an important question of constitutional law. He argues
that his due process rights under Brady v. Maryland and the Alaska Constitution were
violated when the trial court denied his motion to compel the prosecutor to disclose any
Brady impeachment material that was in the personnel files of the law enforcement
1 Former AS 11.71.020(a)(1) (pre-July 2016 version).
- 2 - 2714
----------------------- Page 3-----------------------
2
officers who testified at his trial. The prosecutor took the position that the State had no
duty to learn of any Brady material in the personnel files of the law enforcement officers
because he personally had no access to their otherwise confidential personnel files.
For the reasons explained in this opinion, we conclude that the
confidentiality of these files does not, standing alone, absolve a prosecutor of their duty
3 4
under Brady v. Maryland
and Kyles v. Whitley to take reasonable steps to learn of
favorable material evidence in the possession of the prosecution team, including
personnel files. Because the prosecutor in this case made no effort to comply with the
mandate of Brady, we remand this case to the trial court for further proceedings to
determine if a Brady violation occurred.
Background facts and prior proceedings
On January 6, 2013, Alaska State Troopers made contact with Christopher
R. Stacy and Jonathan Oaksmith as they disembarked from the ferry in Ketchikan,
Alaska. The two men were returning from Washington, and the troopers had received
a tip that they were carrying drugs. The troopers separated the two men, and both men
consented to the troopers searching their belongings.
2 Brady v. Maryland, 373 U.S. 83 (1963).
3 Id. at 87 (holding 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"); see also United States v. Bagley, 473 U.S. 667, 682 (1985) (holding that
evidence is "material" only if there is a "reasonable probability" that it would alter the trial
result); Giglio v. United States, 405 U.S. 150 (1972) (extending Brady to impeachment
material).
4
Kyles v. Whitley, 514 U.S. 419, 437 (1995) (holding that prosecutor has a "duty to
learn" of Brady material known to members of the prosecution team, including law
enforcement).
- 3 - 2714
----------------------- Page 4-----------------------
InOaksmith'sbelongings, thetroopersdiscovered twoounces (56.7grams)
of black tar heroin hidden inside a jar of peanut butter. There were two large pieces of
heroin and one smaller portion of approximately six grams.
Oaksmith initially denied that anyof the heroin belonged to him. However,
he would later testify that Stacy had purchased the heroin and offered him six grams to
transport the heroin for Stacy.
In exchange for his testimony against Stacy at trial, Oaksmith was allowed
to plead to fourth-degree misconduct involving a controlled substance (possession of
heroin). The State indicted Stacy on one count of second-degree misconduct involving
a controlled substance (possession of heroin with intent to deliver).
At trial, Oaksmith testified that, in October 2012, he had accompanied
Stacy and another man to Seattle, where Stacy had purchased about half an ounce of
heroin. Oaksmith further testified that, in December 2012, Stacy talked with him about
going back to Seattle to obtain more heroin. Oaksmith agreed to accompany Stacy and
act as his "mule" in exchange for six or seven grams of heroin. Stacy financed the trip
completely, selling a four-wheeler and liquidating several thousand dollars from his
military disability funds to pay for the trip and the heroin.
Text messages between Oaksmith and his girlfriend corroborated
Oaksmith's testimony. In the messages, Oaksmith told his girlfriend that he was
"running heroin from Seattle to Ketchikan" for Stacy. He also informed her of his plans
to sell some of the heroin he would receive for being the "mule."
Prior to returning toKetchikan with theheroin, Stacy contacted afriend and
asked her to watch for undercover law enforcement at the Ketchikan ferry terminal when
he and Oaksmith arrived. However, the friend failed to show.
Investigator Dur'an, one of the troopers involved in the investigation,
testified that the price of heroin in Ketchikan is exponentially higher than the price of
- 4 - 2714
----------------------- Page 5-----------------------
heroin in Seattle, and that significant money can be made by purchasing heroin in Seattle
and then selling it in Ketchikan. In Dur'an's experience, most heroin addicts are
struggling to get by and cannot afford the cost of traveling to Seattle to purchase heroin
at cheaper rates. The price disparities between Seattle and Ketchikan also create a "huge
financial incentive" to purchase large quantities in Seattle and then resell portions at a
higher rate in Ketchikan.
At the close of trial, the jury found Stacy guilty of second-degree
misconduct involving a controlled substance (possession of heroin with the intent to
deliver).
This appeal followed.
Stacy's argument that the trial court committed reversible error when it
failed to instruct the jury on accomplice liability in relation to the lesser
included offense of fourth-degree misconduct involving a controlled
substance
Stacy's defense at trial was that he was a serious heroin addict and that he
had purchased this large amount of heroin solely for his personal use and not for delivery
to anyone else. In accordance with this defense, Stacy's attorney requested that the jury
be instructed on the lesser included offense of fourth-degree misconduct involving a
controlled substance (possession of heroin).
The trial court granted this request, and the court instructed the jury on the
elements of both second-degree misconduct involving a controlled substance and the
lesser included offense of fourth-degree misconduct involving a controlled substance.
Because Stacy was charged with acting either as a principal or as an accomplice with
regard to the second-degree misconduct involving a controlled substance (possession
with intent to deliver), the jury was instructed on accomplice liability as to that charge.
However, the jury was not instructed on accomplice liability with regard to the lesser
- 5 - 2714
----------------------- Page 6-----------------------
included offense of fourth-degree misconduct involving a controlled substance (simple
possession). Neither party noticed this omission or objected to the lesser included
offense instruction as incomplete.
On appeal, however, Stacy now argues that the omission of an accomplice
liability instruction for the lesser included charge requires reversal of his conviction.
Stacy argues that without an accomplice liability instruction on the lesser included
offense, the jury might not have understood that it could convict him of the lesser
included offense under an accomplice theory. Thus, according to Stacy, the jury may
have improperly voted to convict him of the higher offense because it felt it did not have
the option of convicting him of the lesser included.
We find no merit to this argument given the manner in which this case was
litigated. At trial, the State presented evidence that Stacy had purchased the heroin and
that Stacy had hired Oaksmith as a "mule" to transport the heroin in exchange for a small
portion. For the most part, Stacy did not contest this evidence. That is, he did not
contest that he "possessed" the vast majority of the heroin found in Oaksmith's bag;
instead his defense was that the heroin was for his own personal use. Moreover, the jury
would have understood that Stacy "possessed" the heroin even though it was in
Oaksmith's bag because the jury was directly instructed on the concept of constructive
possession - i.e., that a person can "possess" an item in the legal sense of the word even
5
if it is not in their immediate physical control.
In other words, contrary to the argument Stacy makes on appeal, the jury
could have found Stacy "possessed" - i.e., exercised dominion or control over - the
5 AS 11.81.900(a)(50) ("'possess' means having physical possession or the exercise of
dominion or control over property"); see also Dirks v. State, 386 P.3d 1269, 1270 (Alaska
App. 2017) ("'Constructive possession' refers to a person's authority to exercise dominion
or control over property even though it is not in their immediate physical possession.").
- 6 - 2714
----------------------- Page 7-----------------------
heroin found in Oaksmith's bag as a principal without resorting to an accomplice theory.
Because the facts as presented by both parties supported a guilty verdict on the lesser
included offense, there is no reason to believe that the conviction on the greater offense
was a "compromise verdict" based on a perceived inability to convict Stacy as an
accomplice on the lesser included offense.
In any event, because Stacy did not object at trial to the omission of an
accomplice liability instruction with regard to the lesser included offense, he must now
6
show plain error on appeal.
"In the context of jury instructions, plain error will be found
only when the erroneous instruction (or the lack of an instruction) 'creates a high
likelihood that the jury followed an erroneous theory[,] resulting in a miscarriage of
7
justice.'"
Here, given how this case was litigated and argued, we conclude that the
absence of an accomplice liability instruction with regard to the lesser included offense
did not confuse or mislead the jury. Accordingly, we find no plain error.
Stacy's argument that Investigator Dur'an's opinion testimony was
improper
Before trial, the prosecutor notified Stacy and the trial court that he
intended to offer Investigator Dur'an as a hybrid witness who would testify both to his
investigative acts in the case as well as to his expert opinion that the amount of heroin
6 Heaps v. State, 30 P.3d 109, 114 (Alaska App. 2001) ("If a litigant fails to make a
specific and timely objection to a jury instruction or the failure to give a jury instruction, an
appellate court's consideration of the asserted error is limited to plain error review.").
7 Id. at 114 (quoting Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 91 (Alaska
1974)).
- 7 - 2714
----------------------- Page 8-----------------------
possessed by Stacy indicated an intent to distribute or deliver the substance. Stacy's
attorney made no objection to this proposed testimony.
At trial, Investigator Dur'an testified that he had been an Alaska State
Trooper for eight years, four of which were as a drug investigator. He also testified that
he had special training for drug-related offenses and that he was familiar with the illicit
drug trade in Ketchikan and southeast Alaska generally.
Dur'an corroborated Oaksmith's testimony concerning the various pricing
of heroin in Ketchikan and Seattle. Dur'an stated that heroin in Ketchikan was normally
purchased on the street in quantities of one gram or one-tenth of a gram, and that the
price was generally around $500 per gram. He also confirmed that heroin could be
bought much more cheaply in Seattle.
Dur'anthentestified to his involvementintheinvestigation,which included
logging the evidence, reviewing the records of Stacy's payments for the trip, speaking
with Oaksmith, reviewing the limited text messages on Stacy's phone, and reviewing the
extensive text messages on Oaksmith's phone. The prosecutor then asked Investigator
Dur'an if he had reached "some conclusions about whether or not this heroin was being
imported for delivery." Stacy's attorney objected to this testimony as "speculation"
without any further explanation. The objection was overruled.
Investigator Dur'an then testified that his investigation led him to the
conclusion that Stacy had financed the trip and purchased the two ounces of heroin, that
Oaksmith was the person who smuggled the heroin, and that the arrangement upon their
return to Ketchikan was that Oaksmith would receive around six grams as payment.
Dur'an also stated that, based on these facts, he had concluded that the intent behind the
Seattle purchase was both "personal use and commercial distribution of the heroin."
Dur'an went on to explain that, in his experience, heroin users typically did
not have the financial means to acquire such a large amount of heroin. Instead, "given
- 8 - 2714
----------------------- Page 9-----------------------
the traveling cost, the lodging cost, the cost of just entertaining themselves while they're
there, it's more consistent with an individual that's going to take [that] substance and
make a profit on it." Investigator Dur'an also testified that the amount of heroin in
question suggested that Stacy and Oaksmith had an intent to distribute. Though he
clarified: "I want to be clear, it's not that it's impossible for a person to have both the
financial means to buy a bulk quantity of heroin for personal use, it's just not consistent
[with] what I see." Instead, "[w]hat I see consistently is the people who bring in an
ounce or two ounces are the people that are possessing it with the intent to resell that
heroin here in town because . . . there's a huge financial incentive to bring it in in those
quantities and resell it[.]" Investigator Dur'an testified that an individual selling two
ounces of heroin in Ketchikan could potentially make "tens of thousands of dollars."
But he testified that "I don't believe, based on . . . the totality of talking with everyone
involved, [that] the intent was for them to distribute all of the heroin that was being
possessed. I think there's no dispute that they intended to both use, at least use some."
There were no objections to any of this testimony.
On appeal, however, Stacy argues that the trial court erred in allowing
Investigator Dur'an to testify to his opinion that Stacy intended to distribute at least some
of the heroin he purchased. Stacy asserts that this testimony was "more prejudicial than
probative," as it "amounted to an opinion that Stacy was guilty" and because it
"profil[ed]" Stacy as a "drug dealer." Thus, according to Stacy, this opinion testimony
8
should not have been admitted under Alaska Evidence Rule 403.
8 Alaska R. Evid. 403 ("Although relevant, evidence may be excluded if its probative
value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.").
- 9 - 2714
----------------------- Page 10-----------------------
Stacy's arguments on appeal arise from the peculiar nature of "hybrid"
witnesses in criminal trials. The Alaska Supreme Court first discussed the concept of
9
hybrid witnesses in Miller v. Phillips , a medical malpractice case.
There, the supreme
court noted that the line between a "fact" witness and an "expert" witness "inevitably
10
The
becomes blurred" when treating physicians testify in medical malpractice cases.
court subsequently expanded the use of hybrid witnesses to include investigating law
11
enforcement officers in Getchell v. Lodge, a personal injury civil negligence case.
There, the court ruled that it was not an abuse of discretion to allow a state trooper to
testify both to his observations as the investigating officer and to his conclusions (based
on his knowledge and experience) regarding the cause of the accident and the fault of the
12
parties.
The court recognized, however, that there "is a danger that a police
13
investigator's conclusion will be given undue weight by a jury."
The danger that a police investigator's expert conclusion may be given
undue weight by a jury is particularly acute in a criminal case. As we have previously
recognized, the danger is that jurors "may surmise that the police are privy to more facts
than have been presented in court, or they may be improperly swayed by the opinion of
14
a witness who is presented as an experienced criminal investigator."
9 Miller v. Phillips , 959 P.2d 1247 (Alaska 1998).
10 Id. at 1250; see also Andrews v. State, 286 P.3d 780, 783 (Alaska App. 2012) (holding
that hybrid lay and expert testimony of nurse who performed sexual assault examination of
victim was admissible in prosecution for second-degree sexual assault).
11 Getchell v. Lodge, 65 P.3d 50, 56-57 (Alaska 2003).
12 Id.
13 Id. at 57.
14 Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998) (citing Flynn v. State, 847
(continued...)
- 10 - 2714
----------------------- Page 11-----------------------
As a general matter, Alaska Evidence Rule 704 permits expert witnesses
15
to testify to the "ultimate issue" to be resolved by the trier of fact.
But the commentary
to the rule expressly warns that "an opinion of any person that a criminal defendant is
16
We have applied this rule
guilty or innocent would not be admissible [under this rule]."
in numerous cases and have previously admonished courts against allowing witnesses
17
to give their personal opinion of a defendant's guilt or innocence.
On appeal, the State asserts that Investigator Dur'an's statements never
strayed outside the boundaries of permissible expert testimony. According to the State,
Investigator Dur'an "educated the jury based on his training and experience, on the facts
and circumstances often attendant in drug trafficking cases, and highlighted the evidence
that was consistent with Stacy being engaged in drug trafficking[.]" The State maintains
14 (...continued)
P.2d 1073, 1075-76 (Alaska App. 1993)).
15 Alaska R. Evid. 704.
16 Alaska R. Evid. 704 cmt. para. 6; see also Fed. R. Evid. 704(b) (barring an expert
from testifying that the defendant had "a mental state or condition that constitutes an element
of the crime charged"); Fed. R. Evid. 704 cmt. para. 4 (noting that, notwithstanding the fact
that experts may now testify to the "ultimate issue," Evidence Rules 403, 701, and 702
should still be used to exclude expert opinions "which would merely tell the jury what result
to reach"); United States v. Lockett, 919 F.2d 585, 590 (9th Cir. 1990) (prohibiting expert
from giving a direct opinion on defendant's guilt or innocence).
17 See, e.g., Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998); Flynn v. State,
847 P.2d 1073, 1075-76 (Alaska App. 1993) (reversing conviction where police officer acted
akin to a human polygraph with regard to the truthfulness of the defendant's confession);
Thompson v. State, 769 P.2d 997, 1003-04 (Alaska App. 1989) (reversing conviction based,
in part, on witness vouching for victim's credibility); cf. Kodiak v. Samaniego, 83 P.3d 1077,
1088-89 (Alaska 2004) (noting that an expert should not be allowed to state their own
conclusions on points that jurors are equally capable of determining for themselves) (citing
Spenard Action Comm. v. Lot 3, 902 P.2d 766, 780-81 (Alaska 1995)).
- 11 - 2714
----------------------- Page 12-----------------------
that Investigator Dur'an simply "pointed out that while the amounts of money and heroin
at issue were indicative of an intent to distribute, it was also possible Stacy was
possessing the heroin for personal use."
We agree that if Investigator Dur'an had limited his testimony in this
18
manner, it would have been unobjectionable. But the record shows that Dur'an's
testimony sometimes went beyond these boundaries and ultimately resulted in Dur'an
testifying to his personal opinion about Stacy's guilt on the critical issue before the jury
- i.e., his opinion that Stacy intended to distribute at least some of the heroin he had
purchased. This was objectionable opinion testimony that should generally not be
permitted in a criminal trial. However, there was no objection to Dur'an's testimony -
or at least no objection on the grounds now raised on appeal. The sole objection to
19
We
Dur'an's opinion testimony was the defense attorney's objection of "speculation."
agree with the State that this was insufficient to preserve the arguments that Stacy now
18 See Alaska R. Evid. 702(a) (permitting witness to give opinion testimony if the
witness is qualified "by knowledge, skill, experience, training or education" and if
"scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue").
19
The defense attorney did not provide further information about what he considered
was "speculation." On appeal, Stacy argues that Dur'an's testimony was impermissibly
speculative because it was based, in part, on what Stacy asserts was an erroneous assumption
that the costs associated with traveling to Seattle to buy heroin in bulk for personal use would
"probably" amount to the same total expense as simply buying the same amount of heroin
in Ketchikan. Stacy also includes a footnote allegedly demonstrating that Dur'an's
calculations were wrong. But Stacy was given an opportunity to challenge Dur'an's
calculations on cross-examination, and his failure to do so does not render Dur'an's
testimony speculative or inadmissible.
- 12 - 2714
----------------------- Page 13-----------------------
raises on appeal. Accordingly, to prevail on appeal, Stacy must establish plain error -
20
i.e., obvious error undermining the fundamental fairness of the trial.
Whilewedisapproveofsomeaspects ofDur'an'stestimony, wedo not find
plain error. The majority of Dur'an's testimony was, as the State claims, unobjectionable
and permissible hybrid testimony. Moreover, as the State points out, Dur'an expressed
a number of caveats in his testimony. Thus, the evidentiary basis for Dur'an's opinion
21
and the possible lack of evidence to support that opinion were both before the jury.
The record also shows that the jury was properly instructed that they were the ultimate
deciders of fact in this case. Given these circumstances and our review of the record as
a whole, we conclude that Stacy received a fundamentally fair trial, and reversal of his
conviction is not required under the plain error doctrine.
Stacy's argument that there is insufficient evidence to support his
conviction
To convict Stacy of second-degree misconduct involving a controlled
substance, the State was required to prove beyond a reasonable doubt that Stacy
20 Adams v. State , 261 P.3d 758, 764 (Alaska 2011) (recognizing that plain error
"involv[es] such egregious conduct as to 'undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice'" and requires a reviewing court to find that the error
"(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was
obvious; (3) affected substantial rights; and (4) was prejudicial" (quoting Raphael v. State,
994 P.2d 1004, 1015 (Alaska 2000))).
21
Cf. Sakeagak, 952 P.2d at 282-83 (finding police officer's testimony that he adopted
an adversarial tone with the defendant because he believed the defendant killed his wife was
not overly prejudicial because the officer's statement "added nothing of substance to an
inference the jury could easily draw for themselves" and "the basis for [the officer's]
conclusion and the possible lack of evidence to support that conclusion [were] before the
jury").
- 13 - 2714
----------------------- Page 14-----------------------
possessed "any amount of a schedule IA controlled substance with intent to . . .
22
deliver."
At trial, there was no dispute that heroin is a schedule IA controlled
23
substance. And there was no dispute that Stacy "possessed" heroin in the sense that he
exercised dominion or control over the majority of the heroin found in the peanut butter
jar. Instead, the dispute at trial centered on whether Stacy possessed the heroin with the
intent to deliver.
Under AS 11.71.900(7), "deliver" means "the actual, constructive, or
attempted transfer from one person to another of a controlled substance whether or not
there is an agency relationship." Notably, the State did not need to prove that Stacy
intended to deliver all of the heroin that he possessed, or even a significant amount of the
heroin; instead the State was only required to prove that Stacy intended to deliver "any"
24
amount of heroin, even if the vast majority of it was intended for personal use.
After the close of evidence at trial, Stacy's attorney moved for a judgment
of acquittal, arguing that there was insufficient evidence to convict Stacy of possession
of heroin with the intent to deliver. The trial court denied the motion, concluding that
there was sufficient circumstantial evidence of an intent to deliver based on the large
amount of drugs and "the intricacy of the plan and the effort that went into going down
to get the stuff and bring it back."
On appeal, Stacy renews his argument that the evidence at trial was legally
insufficient to convict him of possession with intent to deliver.
22 Former AS 11.71.020(a)(1) (pre-July 2016 version).
23 See AS 11.71.140(d)(11) (listing heroin as a Schedule IA controlled substance).
24 Former AS 11.71.020(a)(1) (pre-July 2016 version).
- 14 - 2714
----------------------- Page 15-----------------------
Whether the evidence presented at trial is legally sufficient to support the
25
defendant's conviction is a question of law that we review de novo .
When we review
a claim of insufficiency, we are required to view all evidence - and all reasonable
inferences from that evidence - in the light most favorable to upholding the jury's
26
verdict. Viewing the evidence in this light, we will uphold the verdict if a fair-minded
juror could reasonably find that the State had proven the elements of the offense beyond
27
a reasonable doubt.
Here, we agree with Stacy that the evidence of intent to deliver was not
overwhelming. Unlike Oaksmith, Stacy did not admit to any intent to deliver. Nor did
the troopers find any "tools" indicative of drug distribution - such as ledgers, baggies,
or scales. Instead, the primary evidence tending to indicate an intent to deliver was the
large quantity of drugs that was purchased.
Under both Alaska and federal law, a jury can infer an intent to deliver from
possession of a large quantity of drugs, provided that the amount at issue is larger than
28
for personal use.
25 Phornsavanh v. State, 481 P.3d 1145, 1156 (Alaska App. 2021) (citing Des Jardins
v. State, 551 P.2d 181, 184 (Alaska 1976)).
26 Id. at 1156 (citing Johnson v. State , 188 P.3d 700, 702 (Alaska App. 2008) and
Jackson v. Virginia , 443 U.S. 307, 319 (1979)); Bochkovsky v. State, 356 P.3d 302, 308-09
(Alaska App. 2015) (citing Hoekzema v. State, 193 P.3d 765, 767 (Alaska App. 2008)).
27 Jackson , 443 U.S. at 319; Phornsavanh, 481 P.3d at 1156; Johnson , 188 P.3d at 702.
28 See Bochkovsky, 356 P.3d at 310 ("It is well established that possession of a large
quantity of drugs is evidence of intent to deliver."); see also United States v. Johnson, 357
F.3d 980, 984 (9th Cir. 2004) ("A jury can infer intent to distribute from possession of a large
quantity of drugs."); United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995) ("Intent
to distribute can be inferred from the possession of a large quantity of drugs, too large for
personal use alone."); United States v. Howard, 966 F.2d 1362, 1365 (10th Cir. 1992);
(continued...)
- 15 - 2714
----------------------- Page 16-----------------------
On appeal, Stacy argues that this inference should not apply to his case
because there was evidence that he was a heavy user of heroin. But the evidence at trial
was that a heavy user of heroin consumes approximately half of a gram of heroin a day.
The amount at issue here - 56.7 grams - was more than 100 times that amount. It was
also twice as much heroin as has been recognized as indicative of an intent to deliver in
29
other cases.
It is certainly possible that Stacy was buying in bulk for the next four to
five months - as his lawyer claimed at trial - but a fair-minded juror could reasonably
reject such an explanation.
In any case, Stacy's conviction does not rest on the amount of heroin alone.
As the trial court noted when it denied Stacy's motion for a judgment of acquittal, a juror
could also reasonably infer, based on "the intricacy of the plan and the effort that went
into going down to get the stuff and bring it back," that this large amount of heroin was
being purchased for more than just personal use. The evidence at trial showed that Stacy
had traveled relatively recently to Seattle to purchase a lesser amount of heroin and that
he was now returning to buy an even greater amount. The evidence also showed that
Stacy had liquidated most of his assets for this trip and that he had taken steps to enlist
Oaksmith as a "mule" (in exchange for a payment of six grams of heroin) and made
efforts to have another person checking for undercover officers in Ketchikan. Added to
28 (...continued)
United States v. Samad, 754 F.2d 1091, 1096 n.12 (4th Cir. 1984).
29 See Nelson v. State , 2012 WL 399239, at *3 (Alaska App. Feb. 1, 2012) (unpublished)
(holding that the jury could reasonably conclude defendant intended to distribute heroin
based on police officer's testimony that heroin users generally use no more than 0.2 grams
at a time, and possession of even half of the twenty-five grams found in defendant's case
would be enough to suggest that the owner was involved in distribution); see also Samad ,
754 F.2d at 1094-96 (twenty-two grams sufficient to support inference of intent to distribute);
United States v. Blake, 484 F.2d 50, 57-58 (8th Cir. 1973) (fifteen grams of heroin sufficient
to support inference of intent to distribute).
- 16 - 2714
----------------------- Page 17-----------------------
this evidence was the testimony by both Oaksmith and Investigator Dur'an of the
extreme price differential between Seattle and Ketchikan and the tremendous financial
incentive that existed to sell even a small amount of heroin in Ketchikan.
Thus, given the totality of the evidence presented at trial and viewing that
evidence in the light most favorable to the verdict as we are required to do, we conclude
that the evidence was legally sufficient to convict Stacy of possession with intent to
deliver.
Stacy's argument that the State has a duty to learn of Brady material that
may be contained in the personnel files of lawenforcement officers who are
part of the prosecution team
Before trial, Stacy's attorney requested, among other things, confirmation
from the prosecutor that he had complied with his duties under Brady v. Maryland.30
In
particular, Stacy requested that the prosecutor examine the personnel files of the police
officers and other state agents who would be testifying and disclose any material
impeachment evidence contained in those files. The prosecutor opposed this request,
asserting that he had no ability to examine these records because they were confidential
under Alaska law. The defense attorney then moderated his request, asking that the
prosecutor be required to contact the law enforcement agency that possessed the
personnel records and to inquire as to whether they contained Brady material. The
defense attorney also requested that, at the very least, the prosecutor be required to ask
the witnesses themselves if any such material existed.
The prosecutor again opposed this request. According to the prosecutor,
the only way for the defense to obtain any information about Brady material that might
be contained in these files was by filing a motion for in camera review under Booth v.
30 Brady v. Maryland , 373 U.S. 83 (1963).
- 17 - 2714
----------------------- Page 18-----------------------
31
State. In other words, the State took the position that the prosecution has no
independent duty to learn of Brady material that might be contained in a police officer's
personnel file. The trial court agreed and denied the defense attorney's request.
On appeal, Stacy argues that the trial court's ruling violated his federal and
state due process rights, and that his case should be remanded for an in camera review
of the relevant personnel files to determine if they contain Brady material that should
have been disclosed. In support of this argument, Stacy cites to Ninth Circuit case law,
which has held that a prosecutor has a duty to learn of Brady material contained in law
enforcement personnel files. 32
In response, the State argues that this Court has previously rejected the
33
Ninth Circuit case law that Stacy relies on. The State also argues that the prosecutor
has no duty to learn of Brady or Giglio material contained in a law enforcement officer's
31 Booth v. State, 251 P.3d 369, 375 (Alaska App. 2011) (defendant entitled to in camera
review if defendant shows "that if the requested personnel files contain the sort of
information described in the defendant's motion, this information would be relevant to the
defendant's guilt or innocence" given facts and case theories); see also March v. State, 859
P.2d 714, 718 (Alaska App. 1993) ("As long as the party seeking discovery has a good faith
basis for asserting that the materials in question may lead to the disclosure of favorable
evidence, the trial court should conduct an in camera review before ruling on a request for
discovery."); Dana v. State, 623 P.2d 348, 355 (Alaska App. 1981) (defendant must make
a "sufficient showing to require the trial court to locate the personnel file in the middle of
trial, review it in camera, and determine if any information had relevance").
32 United States v. Henthorn, 931 F.2d 29, 31 (9th Cir. 1991); see also Milke v. Ryan,
711 F.3d 998, 1016 (9th Cir. 2013).
33 See, e.g., Martin v. State , 297 P.3d 896, 901 (Alaska App. 2013) (holding that trial
court's refusal to grant an in camera production of personnel files was not plain error
because whether defendant had to make an initial showing of materiality was reasonably
debatable given federal circuit split on issue).
- 18 - 2714
----------------------- Page 19-----------------------
confidential personnel file. The State asserts that recognizing such a duty would impose
"unacceptable burdens on prosecutors and the police."
Resolving the question of what duty, if any, a prosecutor has to learn of
Brady material in a law enforcement officer's otherwise confidential personnel file is an
issue of first impression for this Court. Our prior case law has not directly addressed
whether such a duty exists, independent from the mechanisms through which a defense
attorney can obtain in camera review of personnel files.
We begin our analysis with a brief overview of a prosecutor's general duty
to disclose favorable material evidence under Brady and subsequent case law.
In 1963, in the seminal case Brady v. Maryland , 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
34
punishment, irrespective of the good faith or bad faith of the prosecution." The
Supreme Court subsequently clarified that a prosecutor's duty to disclose Brady material
35
exists even when there has been no request from the defense. The Supreme Court also
36
expanded the duty to include impeachment evidence as well as exculpatory evidence.
Evidence is "material" for purposes of Brady "if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
37
been different."
34 Brady, 373 U.S. at 87.
35 United States v. Agurs, 427 U.S. 97, 107 (1976).
36 United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S.
150, 154 (1972).
37 Bagley, 473 U.S. at 682; see Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)
(explaining that under Bagley 's "reasonable probability" standard, "[t]he question is not
(continued...)
- 19 - 2714
----------------------- Page 20-----------------------
The United States Supreme Court has also extended a prosecutor's duty to
disclose Brady material beyond what is personally known to the prosecutor. Thus, in
Giglio v. United States , the Supreme Court held that knowledge of a promise made to a
witness by one prosecutor in the office was imputed to the trial prosecutor, even though
the first prosecutor had never disclosed this impeachment information to the trial
38
prosecutor nor to his superiors.
As the Court held, "[t]he prosecutor's office is an
entity" and "[a] promise made by one attorney must be attributed, for these purposes, to
39
the Government." The Supreme Court recognized that this would likely place a burden
on large prosecution offices, but it concluded that "procedures and regulations can be
established to carry that burden and to [e]nsure communication of all relevant
40
information on each case to every lawyer who deals with it."
In Kylesv. Whitley, theSupremeCourtheldthat theprosecutor'sduty under
Brady also extended to information outside the prosecutor's office, and included a "duty
to learn of any favorable evidence known to the others acting on the government's behalf
41
in the case, including the police." As in Giglio, the Court expressed confidence that
37 (...continued)
whether the defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial resulting in
a verdict worthy of confidence").
38 Giglio, 405 U.S. at 154.
39 Id.
40 Id.
41 Kyles, 514 U.S. at 437.
- 20 - 2714
----------------------- Page 21-----------------------
"procedures and regulations" could be established to ensure that prosecutors learn of
42
favorable material evidence that should be disclosed to the defense.
In response to Brady and its progeny, prosecutorial offices across the
country have instituted procedures and regulations to ensure compliance with their
43
In
constitutional duty to learn and disclose favorable material evidence to the defense.
some instances, these procedures have included reviews of police personnel files for
Brady impeachment material, which can include disciplinary actions related to a police
44
officer's credibility and bias.
For example, Maricopa County in Arizona requires law enforcement
departments to provide prosecutors with police disciplinary files concerning "a law
42 Id. at 438 (quoting Giglio, 405 U.S. at 154).
43 See Jonathan Abel, Brady 's Blind Spot: Impeachment Evidence in Police Personnel
Files and the Battle Splitting the Prosecution Team , 67 Stan. L. Rev. 743, 762-79 (2015)
(reviewing a variety of state practices and approaches to implementing Brady); see also, e.g.,
2021 Wash. Sess. Laws, ch. 322 (requiring "[e]ach county prosecutor" to "develop and adopt
a written protocol addressing potential impeachment disclosures pursuant to Brady").
44
See, e.g., Franklin County District Attorney, Press Release: Deeds Not Words
(Dec. 2, 2020), https://franklincountypa.gov/ckeditorfiles/files/District%20Attorney/
Press%20Release,%20Deeds%20Not%20Words,%2012_2_20.pdf (discussing policy
requiring prosecutors "to promptly report any police misconduct they observe" and "Giglio
Protocol" which "implements a local process for disclosure of police prior misconduct to
defense counsel" and requires "ongoing maintenance of a list of such officers"); The Institute
for Innovation in Prosecution at John Jay College of Criminal Justice, The Prosecutor's Role
in Addressing Officer-Involved Fatalities and Critical Incidents 24-27 (2019),
http://johnjay.jjay.cuny.edu/documents/Officer-Involved-Fatalities-Toolkit.PDF (providing
example "Brady Policy" from Ramsey County, Minnesota that creates a Brady committee
consisting of prosecutors, police officers, and others to disclose and track potential Brady
material from the St. Paul Police Department on a monthly basis).
- 21 - 2714
----------------------- Page 22-----------------------
45
enforcement employee's truthfulness, bias, or moral turpitude." Two counties in North
Carolina similarly require "all police agencies to search officers' personnel records for
46
credibility issues going back ten years."
At the federal level, in 1991, the Department of Justice adopted an internal
procedure to ensure that the personnel files of federal agents are reviewed for potential
47
Brady material. Under this system, each investigative agency within the Department's
control is required to search agents' files for Brady material and to notify the prosecutor
48
of anything that might require disclosure.
These procedures were adopted by the federal government in response to
49
a Ninth Circuit case, United States v. Henthorn. In Henthorn, the Ninth Circuit held
that "the government has a duty to examine personnel files upon a defendant's request
for their production," and the "government must 'disclose information favorable to the
50
defense that meets the appropriate standard of materiality.'" The Ninth Circuit further
held that "[i]f the prosecution is uncertain about the materiality of information within its
possession, it may submit the information to the trial court for an in camera inspection
45 Abel, supra note 43, at 772-73 (internal citations omitted).
46 Id. at 774 (internal citations omitted).
47 See id. at 759.
48 Id. ; see also United States Department of Justice, Justice Manual § 9-5.001(B) (2018)
(requiring "federal prosecutors, in preparing for trial, to seek all exculpatory and
impeachment information from all the members of the prosecution team," which includes
"federal, state, and local law enforcement officers and other government officials
participating in the investigation and prosecution").
49 United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); see Abel, supra note 43, at
759.
50 Henthorn, 931 F.2d at 30-31 (quoting United States v. Cadet, 727 F.2d 1453, 1467-68
(9th Cir. 1984)).
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----------------------- Page 23-----------------------
51
and evaluation." Because the government had failed to examine the personnel files in
Henthorn, the Ninth Circuit ordered the government to submit the files to the federal
district court for in camera review.52
On appeal, Stacy argues that this Court should adopt Henthorn 's holding
and require the State, upon defense request, to examine the personnel files of state
agents, including the police, and disclose any Brady material found. The State responds
that the majority of federal circuits have rejected the Henthorn examination requirement
and that this Court has likewise rejected this approach.
But the legal landscape is more complicated than the State acknowledges.
A year after Henthorn was decided, the Ninth Circuit grappled with the question of what
"the duty to examine" actually meant. In United States v. Jennings, the trial court
interpreted Henthorn as requiring the prosecutor assigned to the case to personally
53
review law enforcement officer personnel files. The trial court therefore issued an
order requiring this personal review. The government informed the court that it would
decline to follow this order and would appeal. In response, the court granted the defense
request to suppress the testimony of the law enforcement officers.
On appeal, the Ninth Circuit reaffirmed the Henthorn holding that the
government has a duty to examine law enforcement personnel files and to disclose any
54
Brady material. The court held, however, that this duty could be met without requiring
51 Id.
52 Id. at 31.
53 United States v. Jennings, 960 F.2d 1488, 1489-90 (9th Cir. 1992).
54 Id.
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----------------------- Page 24-----------------------
55
the assigned prosecutor to personally review the relevant files. The court noted that the
Department of Justice had recently implemented a policy in response to Henthorn to
ensure that Brady material contained in law enforcement personnel files was properly
disclosed to the defense. The Jennings Court explained that, under this system,
the files of law enforcement officers are to be examined by
the appropriate agency's attorney or his staff. The agency
legal staff will notify the federal prosecutor assigned to the
case if any potential Brady material is found, and the AUSA
will then determine whether the information should be
disclosed or whether an in camera review by the district court
is appropriate. [56]
The Ninth Circuit concluded that "[a]dherence to this procedure would indicate that the
57
AUSAis fulfilling hisresponsibility for ensuring government compliancewith Brady."
The court further concluded that the trial court had overstepped its authority in ordering
the prosecutor to personally conduct a review because "the presumption is that official
58
The
duty will be done" in accordance with the Department of Justice's internal policy.
court therefore reversed the trial court's orders and remanded the case for further
proceedings.
In our view, the Ninth Circuit's holding in Jennings strikes the appropriate
balance between ensuring that the State complies with its duties under Brady while also
granting the State the discretion to determine how best to comply. This approach has
55 Id. at 1491-92.
56 Id. at 1492 n.3.
57 Id. at 1492.
58 Id.
- 24 - 2714
----------------------- Page 25-----------------------
also been approved by other federal circuit courts - even courts that assert that they are
59
rejecting Henthorn .
In United States v. Quinn, for example, the Eleventh Circuit "decline[d] to
follow Henthorn," but its actual holding reaffirmed one of the underlying principles of
Henthorn - which is that the government has a duty to learn of Brady material that may
60
be in a law enforcement officer's personnel file. In Quinn, the defendant filed a pretrial
motion requesting that the trial court order the government to disclose the personnel files
61
of the testifying officers for impeachment purposes. The trial court denied the motion,
but nevertheless emphasized that the government had a duty to comply with its
obligations under Brady and Giglio. As the trial court stated:
As far as [personnel] records go, the government has to see
if they're . . . Brady or Giglio . . . . Everybody knows that.
. . . And I'm not going to tell the government what it has to
do. One thing to clarify my position is that the government
should be reviewing those records to determine whether this
is Brady material at sight, not just to necessarily hand them
[62]
over.
59 See, e.g., United States v. Dent, 149 F.3d 180, 191 (3d Cir. 1998) (holding that, to
satisfy Brady, prosecution "need only direct the custodian of the [personnel] files to inspect
them for exculpatory evidence and inform the prosecution of the results of that inspection,
or, alternatively, submit the files to the trial court for in camera review" (citing Jennings , 960
F.2d at 1492)); United States v. Quinn , 123 F.3d 1415, 1421-22 (11th Cir. 1997) (claiming
to reject Henthorn, but concluding that the district court did not err by refusing to order in
camera review of personnel records where district court had required the government "to
review the personnel files to determine whether they contained Brady or Giglio material").
60 Quinn, 123 F.3d at 1422.
61 Id. at 1423.
62 Id. at 1421.
- 25 - 2714
----------------------- Page 26-----------------------
The defendant later appealed the denial of his motion to compel, arguing
that the trial court should have either ordered the government to directly disclose the
contents of the personnel files to the defense or, at the very least, ordered the government
to produce the files to the court for in camera review.63 The Eleventh Circuit rejected
this claim of error, concluding that the trial court had acted properly. As the Eleventh
Circuit noted, "Here, the district judge required the government to comply with Brady
and Giglio, and stated that the government was required to review the personnel files to
64
determine whether they contained Brady or Giglio material." Given this, the Eleventh
Circuit concluded that the trial court had not erred in denying the defense request for
65
production of those files absent an adequate showing of materiality.
As the Eleventh Circuit's decision in Quinn demonstrates, there is a
distinction between recognizing the prosecutor's duty to learn of Brady material in law
enforcement personnel files and requiring the prosecutor to produce those files to the
defense or to the court. However, this distinction is often lost in discussions of
66
Henthorn, as is true in our prior discussion in Martin v. State .
In Martin, thedefendant filedapretrial motionrequestingthat thetrial court
67
conduct an in camera review of the personnel files of all testifying officers. In support
of this motion, the defendant accused some of the officers of committing serious police
misconduct in other cases. But he provided no support for these accusations. The trial
court denied the motion, concluding that the defendant had failed to meet his burden of
63 Id.
64 Id.
65 Id. at 1421-22.
66 Martin v. State , 297 P.3d 896, 901 (Alaska App. 2013).
67 Id. at 900.
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----------------------- Page 27-----------------------
establishing "a good faith basis for asserting that the materials in question may lead to
the disclosure of favorable evidence." 68
On appeal, the defendant argued that the trial court's refusal to order in
camera review of the personnel files violated his due process rights under Brady.
Specifically, the defendant argued that "it is unreasonable to require a defendant to
provide a good-faith basis for seeking disclosure of personnel files when the defendant
69
does not have access to those files and does not know their contents." The defendant
had not made this argument in the trial court, and he was therefore obligated to establish
plain error on appeal. In addressing the plain error argument, this Court cited to
Henthorn and its progeny. But this Court also noted that "other federal circuits have
70
rejected Henthorn," and we concluded that "the fact that the federal circuits are split
71
on this question means that Martin has failed to show plain error."
In the current appeal, the State relies on this language in Martin to argue
that we have previously rejected Henthorn and that Alaska law therefore does not
recognize any prosecutorial duty to learn about Brady material contained in law
enforcement personnel files. But, as already established, there is a difference between
a defendant's burden to justify production of otherwise confidential personnel files for
an in camera review and the State's independent duty to disclose Brady material that
may be in those personnel files. The State's duty to disclose Brady material was not at
68 Id. (quoting March v. State , 859 P.2d 714, 718 (Alaska App. 1993)).
69 Id. at 901.
70 Id.
71 Id.
- 27 - 2714
----------------------- Page 28-----------------------
issue in Martin, nor was it at issue in many of the cases cited in our opinion as rejecting
Henthorn .72
Here, however, the State's independent duty is at issue. In the current case,
the prosecutor took the position that because state personnel files are confidential under
Alaska law, he had no ability to review them and no duty to learn about Brady material
they may contain. But, as the Ninth Circuit explained, there are multiple ways that the
State can comply with its obligations under Brady without having individual prosecutors
73
personally review personnel files.
One approach is to adopt the federal system through
which the affected agency conducts the internal review and then reports to the
prosecutor's office.
72 See id.; see also United States v. Quinn, 123 F.3d 1415, 1422 (11th Cir. 1997)
(affirming denial of request to order production of personnel records but noting that district
court properly required the government to examine those records for Brady or Giglio
material); United States v. Driscoll, 970 F.2d 1472, 1482 (6th Cir. 1992) (acknowledging
Brady 's general obligation upon the government to disclose favorable evidence but noting
that "the government typically is the sole judge of what evidence in its possession is subject
to disclosure" and affirming denial of request for production of personnel records without
a showing of materiality (internal citations omitted)); United States v. Andrus, 775 F.2d 825,
843 (7th Cir. 1985) (concluding that Brady does not require the government disclose or
produce the contents of personnel files for review based only upon "speculative assertion[s]
that impeaching material may be in a government file"); cf. United States v. Kiszewski, 877
F.2d 210, 216 (2d Cir. 1989) (remanding case for in camera examination of personnel files
after prosecution reviewed the files of testifying officers and found potential impeachment
material but did not disclose the files); United States v. Muse, 708 F.2d 513, 517 (10th Cir.
1983) (acknowledging that the "government must supply evidence useful to the defendant
simply for impeachment purposes . . . whether such evidence was contained in personnel files
or elsewhere" but denying disclosure of witnesses' personnel records where defendant had
been granted disclosure of other impeachment material).
73 United States v. Jennings, 960 F.2d 1488, 1490 (9th Cir. 1992) (noting that the
government's duty to disclose Brady material "cannot be evaded by claiming lack of control
over the files or procedures of other executive branch agencies").
- 28 - 2714
----------------------- Page 29-----------------------
Indeed, itappears that the Department of Law has adopted such aprocedure
with regard to the Anchorage Police Department. The Department of Law described this
process in a trial court filing from an unrelated case, dated November 2016:
The Anchorage Police Department (APD) and the
Department of Law (DOL) have agreed to an on-going
process by which the APD will advise one representative of
the Department of Law of its substantiation of an officer's or
employee'smisconduct involving untruthfulnessorbias. The
APD gives the DOL representative limited detail about the
misconduct, but does not give the DOL representative any
written or recorded report of the investigation of the
misconduct, such a report being part of a confidential
personnel record. The APD furnishes the DOL
representative with sufficient detail to show a judge assigned
a criminal case in which the officer or employee may be a
material witness that there is good cause to order production
of the written or recorded report for in camera review. The
process is intended to facilitate compliance with the duty of
police and prosecutors under Giglio while respecting the
officer's or employee's privacy interest in the confidential
personnel records. [74]
Stacy referred to this policy in his briefing to this Court. The State, however, did not
acknowledge or address it in its brief. But the apparent existence of such a policy
undermines the State's claim that recognizing a duty to learn of Brady material in
personnel files would impose "unacceptable burdens on prosecutors and the police."
Accordingly, we now hold that, under Alaska law, prosecutors have a duty
to learn of Brady material that may be in the personnel files of law enforcement officers
or other members of the prosecution team. We note that this duty extends not only to
74 Motion for In Camera Review at 1-2, State v. Beier, No. 3AN-15-09578 CR (Alaska
Super. Ct. Nov. 29, 2016).
- 29 - 2714
----------------------- Page 30-----------------------
police agencies of the same government bringing the prosecution, but it may also extend
to officers from cross-jurisdictional agencies who have a "close working relationship"
75
with the prosecution.
And the duty may include other governmental offices and actors
76
who are "closely aligned with the prosecution" or acting on the government's behalf.
75 See United States v. Brooks, 966 F.2d 1500, 1503-04 (D.C. Cir. 1992) (holding federal
prosecutor had duty to review personnel file of police officer who had been a key witness
"[g]iven the close working relationship between the Washington metropolitan police and the
U.S. Attorney"); United States v. Antone , 603 F.2d 566, 568-70 (5th Cir. 1979) (finding state
investigators part of federal prosecution team because of "extensive cooperation" and
formation of a "joint investigative task force" with federal agents).
76 See United States Department of Justice, Justice Manual § 9-5.001(B)(2) (2018)
("prosecution team" includes "federal, state, and local law enforcement officers and other
government officials participating in the investigation and prosecution of the criminal case
against the defendant"); McCormick v. Parker , 821 F.3d 1240, 1247 (10th Cir. 2016) (sexual
assault nurse who examined alleged victim "at the behest of" law enforcement was part of
the prosecution team); United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (finding
Bureau of Prisons files to be within the prosecution's Brady obligation); United States ex rel.
Smith v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985) (noting that prosecutor's ignorance of
existence of favorable material does not justify the State's failure to produce it, particularly
when the "withheld evidence is under the control of a state instrumentality closely aligned
with the prosecution"); United States v. Deutsch, 475 F.2d 55, 57-58 (5th Cir. 1973)
overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984) (holding
that the government must produce personnel files of government agents if they contained
impeachment material even if employee was employed by a different branch of the
government - here, the personnel file of a post office employee who was the government's
principal witness); In re C.J. , 652 N.E.2d 315, 318 (Ill. 1995) (observing that case worker
from social service agency could be considered part of the prosecution team when the worker
"acts at the behest of and in tandem with the [prosecutor], with the intent and purpose of
assisting in the prosecutorial effort").
But see United States v. Rivera-RodrÃguez, 617 F.3d 581, 595 (1st Cir. 2010) (finding
probation officer was not part of prosecution team when officer was preparing a presentence
report for co-defendant and there was no evidence that prosecution had the information in
the report prior to or during trial); United States v. Pelullo, 399 F.3d 197, 218 (3d Cir. 2005)
(continued...)
- 30 - 2714
----------------------- Page 31-----------------------
How the State chooses to comply with this duty is left to its discretion. But
a system must be in place through which individual prosecutors can learn of Brady
material in the personnel files of law enforcement officers and other state agents who will
be material witnesses in a given case. Thus, when a defense attorney requests
confirmation that the prosecutor has complied with their duty to learn of Brady material
in alawenforcementofficer's personnelfile, theprosecutor mustconfirmthat reasonable
stepshavebeen taken to discover and disclose any favorable material evidencecontained
in those files. This includes (but is not limited to) prior instances of police misconduct
involving untruthfulness or bias.
The question we now face is how to remedy what has occurred in this case.
Stacy argues that we should remand the case for an in camera review of all relevant
personnel files and the trial court should then "disclose any relevant impeachment
material it finds and determine if a new trial is warranted in light of any newly disclosed
material." But this remedy ignores the distinction that Stacy has otherwise emphasized
in his briefing before this Court - i.e., the distinction between recognizing the
prosecutor's duty to learn of, and disclose, Brady material in the personnel records of its
agents, and actually requiring the personnel records to be subjected to an in camera
review. We note that Stacy had the opportunity to request such a review in the
proceedings below, and he failed to make a sufficient showing of materiality to warrant
an in camera review. It is therefore not clear why he should be entitled to this relief on
76 (...continued)
(finding Pension and Welfare Benefits Administration records outside prosecutor's
constructive knowledge because agencyhad no working relationship with prosecution team);
United States v. Velte, 331 F.3d 673, 680 (9th Cir. 2003) (no Brady violation despite failure
to disclose report held by government weather station when no connection between
prosecutor and weather station such that it was not "acting on the government's behalf").
- 31 - 2714
----------------------- Page 32-----------------------
remand. We also believe that it was Henthorn 's adoption of this type of remedy that led
to the later misreading of that decision by other courts.
We conclude that the appropriate remedy is to remand this case to the
superior court so that the prosecutor can properly fulfill their duty under Brady. On
remand, the prosecutor shall ensure that the relevant personnel files have been reviewed
for any impeachment evidence that is significant enough that it could be material in
77
Stacy's case.
The prosecutor may also request the court to conduct some form of
in camera review.
If impeachment evidence that could reasonably be viewed as material is
discovered during the review, the evidence must be disclosed to the defense. The parties
should then be given the opportunity to litigate whether a new trial is warranted in light
of the newly disclosed evidence.
Conclusion
We REMAND this case for further proceedings as outlined above. We
retain jurisdiction.
77 Evidence is material "if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different." United
States v. Bagley, 473 U.S. 667, 682 (1985). A "reasonable probability" of a different result
is one in which the withheld evidence "could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S.
419, 435 (1995); accord Cone v. Bell, 556 U.S. 449, 469-70 (2009); Banks v. Dretke, 540
U.S. 668, 698-99 (2004); Strickler v. Greene, 527 U.S. 263, 290 (1999). A "showing of
materiality does not require demonstration by a preponderance that disclosure of the
suppressed evidence would have resulted ultimately in the defendant's acquittal," and it is
"not a sufficiency of the evidence test." Kyles, 514 U.S. at 434. Courts consider the
evidence "collectively, not item by item," and materiality "turns on the cumulative effect of
all such evidence suppressed by the government." Id. at 421, 436.
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