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State v. Guerrera

Supreme Court of Connecticut

May 7, 2019

STATE OF CONNECTICUT
v.
MICHAEL ANTHONY GUERRERA

          Argued September 21, 2017

         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 information, in a third case, charging the defendant with violation 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 commit assault in the first degree and tampering with physical 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 kidnapping in the first degree; subsequently, the third case was tried to the court; thereafter, the court rendered judgment revoking the defendant's probation and rendered 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 (defendant).

          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, supervisory assistant state's attorney, for the appellee (state).

          OPINION

          PALMER, J.

         It is the policy and practice of the Department 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 department, 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 department 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 present 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 Correction (commissioner) pending trial, at which time the state requested that the department review the telephone 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 defendant'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 subpoena, 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 production, the department would be required to review each recording to determine whether it contained any relevant 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 judgments 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 exculpatory 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 particular facts of this case, and, for that reason, we affirm the judgment of the Appellate Court.

         The following undisputed facts and procedural history 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 murdered 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 department 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 department 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 incarcerated 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 undertake 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 defendant 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 testified 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 locking'' 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 automatically locked? . . . [Y]ou only lock the ones you've listened 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 contained conversations that referred to the crime or otherwise relatedin 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 substantial 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 exculpatory 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 venture.'' (Internal quotation marks omitted.) The court further observed that, under United States ...


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