State of Connecticut v. Michael Guerrera (2013)

MEMORANDUM OF DECISION

The defendant is facing serious criminal charges, including murder, conspiracy to commit murder, felony murder and kidnapping in the first degree.   Through counsel, he has subpoenaed the Connecticut Department of Correction (“DOC”) to produce copies of “the recorded conversations, whether on the telephone or during inmate visits,” of the four codefendants currently confined in DOC facilities.   DOC and the office of the State's Attorney for the New Britain Judicial District have each filed motions to quash the subpoena.   For the following reasons, the motion to quash is granted in part and denied in part.¹

I

Facts

At the hearing on the motion to quash, witnesses from DOC testified that all inmate phone calls are recorded by DOC with prior notice to every inmate making a phone call that the call is being recorded and is subject to monitoring by DOC. Non-contact visits with inmates by members of the public are also recorded and subject to monitoring.   On or about March 1, 2011, Inspector James Hankard from the State's Attorney's office requested that DOC monitor and review the mail and calls of three of the codefendants in this case:  Michael Boilard, Sarah Boilard and Jonathan Wilcox.   Sometime previously, the State's Attorney's office had also requested that DOC monitor and review the mail and calls of the defendant and his brother, Dennis Guerrera, who is also a codefendant.

Donald Lavery was the DOC telephone monitor assigned to monitor the calls ² of the four codefendants.   He testified that not all calls are monitored.   Rather, he listens to a limited number of calls based on certain criteria developed by DOC and based on his work load.   Lavery did not monitor all the calls of the codefendants.   Lavery was unable to provide an exact number of the total number of calls recorded or the total number of calls that he actually listened to.   He estimated that he monitored approximately 10% of the recorded calls of the four defendants.   In addition, all of the recorded calls have not been preserved by DOC. Prior to the hiring of a new telephone provider on July 15, 2012, it was DOC's regular course of business to preserve recorded calls for only 90 days.   After July 15, 2012, calls were regularly preserved for one year.   A DOC telephone monitor can “lock” individual calls thereby preserving them on a compact disc.   Lavery locked all calls made by the four codefendants from approximately August 2012 to the present.   As a result, approximately 1,300 calls from the codefendants have been preserved.   Specifically, 281 calls from Sarah Boilard, 326 calls from Michael Boilard, 40 calls from Dennis Geurrera and 708 calls from Jonathan Wilcox have been preserved by DOC.

When Lavery reviewed a call of the codefendants, he did so to determine whether the call had anything to do with this criminal case.   If it did, he would take notes regarding the call and forward those notes to the State's Attorney office.   The State's Attorney office would then decide whether it wanted a copy of the call which it could obtain from DOC through service of a subpoena or search warrant.   Lavery has reviewed an undetermined number of codefendant calls which refer to matters connected with the crimes at issue here and forwarded notes on those calls to the State's Attorney office.

II

Motion to Quash Subpoena

DOC has moved to quash the subpoena on the grounds, inter alia, that it is overbroad because it fails to indicate that the records sought contain any information relevant or material to the issues in the case and it places a significant and unreasonable burden on DOC. The defendant asserts that there is reason to believe that the subpoenaed calls contain relevant material because, during a non-contact visit at the prison by Naomi Ball with codefendant Dennis Guerrera, Guerrera told Ball that the defendant was not involved in the crime.   The defendant claims that this incident supports an inference that the codefendants have made other calls discussing matters related to this case.

“A subpoena is an appropriate process for the production of documents that are relevant to the matter before the court.   It may not be used, however, for the purpose of conducting a fishing expedition into the papers of a party or a stranger to the proceedings.   The subpoena should be sufficiently particularized so that the documents sought may be readily identified.   The onus should not be placed on the court to inspect numerous documents for the purpose of culling out those papers which may be relevant to the matter on trial.   If the subpoena on its face is too broad and sweeping, it is subject to a motion to quash.”  (Citations omitted.)  Three S. Development Co. v. Santore, 193 Conn. 174, 179 (1984).   See also State v. Montgomery, 254 Conn. 694, 727–28 (2000).

The defendant seeks the production through his subpoena of all calls by four codefendants recorded by DOC dating back to June 22, 2011.   The evidence establishes that DOC has preserved recorded calls of the codefendants from August 2012 to the present.   Those calls total over 1,300.   Of the ten percent of these calls reviewed by DOC, a small but undetermined number have referred to matters related to this case and its alleged crimes.   Given these statistics, 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 DOC to review each of these 1,300 calls to determine which calls contain relevant statements.   Based on discussion with DOC personnel, the State's Attorney represented that it would take approximately 200 to 1,000 hours to review all of these calls.³

The evidence does establish that some calls involving the codefendants do involve relevant matters.   Donald Lavery confirmed that a recorded conversation during a visit by Naomi Ball with Dennis Guerrera did mention the defendant's lack of involvement in the crimes.   Lavery also sent notes to the State's Attorney regarding some calls that referred to the crime or matters related to the case.   These calls are appropriately the subject of the defendant's subpoena.

The defendant argues that, since Guerrera had at least one recorded conversation regarding matters related to this case and one or more of his codefendants apparently did as well, it is reasonable to infer that Guerrera and his codefendants made other recorded calls which contain such matters and the defendant is entitled to copies of all recorded calls, whether or not they have been identified as containing relevant material.   I am not persuaded.   The defendant has presented no evidence that either Guerrera or his codefendants did in fact make any other calls containing relevant material, other than those already identified by DOC and, if so, which calls contain such material.   The defendant seeks to obtain over 1,300 calls in the blind hope that some of them may contain relevant material.   That effort is a classic fishing expedition.

III

Disclosure of Brady Material

The defendant also asserts that he is entitled to obtain copies of all 1300 calls so that he can review the calls for “Brady” material.   Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, the prosecution has an affirmative duty to disclose evidence that is favorable to an accused where such evidence is material to either guilt or punishment.   The duty to disclose encompasses impeachment evidence as well as exculpatory evidence.  United States v. Bagley, 473 U.S. 667, 676 (1985).  “Not every failure by the state to disclose favorable evidence rises to the level of a Brady violation.   Indeed, a prosecutor's failure to disclose favorable evidence will constitute a violation of Brady only if the evidence is found to be material.”  Adams v. Commissioner of Correction, 309 Conn. 359, 370 (2013).  “The Brady rule is based on the requirement of due process.   Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.   Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial ․” United States v. Bagley, supra, 473 U.S. 675.   Evidence is deemed material under Brady only if there would be a reasonable probability of a different result if the evidence had been disclosed.  Adams v. Commissioner of Correction, supra, 309 Conn. 370.

The defendant contends that the constitutional obligations of Brady extend to evidence in the hands of DOC because DOC is acting as an arm of the State's Attorney in the investigation of the crimes at issue here.   The State responds that it simply requested material from DOC and that request does not transform DOC into its agent for purposes of Brady.

“The ‘prosecution’ for Brady purposes encompasses not only the individual prosecutor handling the case but also extends to the prosecutor's entire office, as well as law enforcement personnel and other arms of the state involved in investigative aspects of a particular criminal venture.”  Smith v. Secretary Department of Correction, 50 F.3d 801, 824 (10th Cir.1995).   See Demers v. State, 209 Conn. 143, 154 (1988) (The State's duty of disclosure is imposed not only upon its prosecutor, but also on the State as a whole, including its investigative agencies) and Kyles v. Whitley, 514 U.S. 419, 437 (1995) (The prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case.)   The prosecutor's disclosure obligations extend to material and information in the possession or control of others who have participated in the investigation of the case and who with reference to the particular case have reported to his office.   Commonwealth v. Woodward, 427 Mass. 659, 679 (1998).   For purposes of Brady, knowledge by investigators is imputed to the prosecution.  Smith v. Secretary Department of Correction, supra, 50 F.3d 824.

While DOC 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.   The 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) U.S. v. Stewart, 433 F.3d 273, 298 (2d Cir.2006).   The State's Attorney's office specifically requested that DOC monitor and review the calls and mail of the four codefendants.   In response to that request, DOC reviewed approximately 10% of the codefendants' calls for any information related to the alleged crimes.   In a number of instances, DOC sent notes to the State's Attorney's office detailing the content of calls containing such information.   Clearly, DOC was investigating aspects of this 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 DOC. See Tiscareno v. Anderson, 639 F.3d 1016, 1021 (10th Cir.2011) (The determination of whether a government agency or individual should be considered an investigative arm of the prosecutor by purposes of Brady is a fact-based inquiry.)

The defendant is seeking more than a recognition that the State's Attorney is required to disclose to him Brady material in the possession of DOC. He seeks an order requiring DOC to turn over to him all the recorded phone calls of the four codefendants so he can review the calls to determine if any exculpatory or impeachment evidence can be found in them.   The constitutional obligation to disclose exculpatory material recognized in Brady falls on the prosecutor and it is he who is responsible for satisfying its mandate.   Smith v. Secretary Department of Correction, supra, 50 F.3d 824.   I know of no authority for transferring that responsibility to the defendant and the defendant has provided none.⁴

Moreover, the defendant has neither provided any showing that the calls which remain unreviewed by DOC contain any exculpatory or impeachment evidence nor has he offered any basis to believe that the evidence could be material to its defense of these charges.⁵  “ ‘[A] defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the [government's] files.”  Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).   Similarly, Brady does not permit a defendant ‘to conduct an in camera fishing expedition through the government's files ․’ United States v. Pou, 953 F.2d 363, 367 (8th Cir.1992).   Indeed, ‘[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one.’  Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).   Instead, ‘to establish a violation of Brady, a defendant must provide the court with some indication that the materials to which he ․ needs access contain material and potentially exculpatory evidence.’  United States v. Brandon, 17 F.3d 409, 456 (1st Cir.1994).”  United States v. Caro–Muniz, 406 F.3d 22, 29 (1St Cir.2005).   The defendant has made no showing that the unreviewed calls of his codefendants contain exculpatory and material evidence to justify a search by him of those calls.

IV

Disclosure Under the Practice Book

The defendant also makes a claim to copies of the calls of the codefendants under the discovery provisions of the Practice Book. He contends that the recorded calls of the codefendants are statements as defined in the Practice Book and he is entitled to copies pursuant to P.B. §§ 40–11 ⁶ and 40–13A.⁷  The defendant further asserts that this court should grant the defendant access to the calls in the exercise of its discretion pursuant to P.B. § 40–12 ⁸ to direct the prosecutor to disclose to the defense other relevant material which good cause establishes should be made available.   The defendant's claims can be addressed simply.   Both P.B. § 40–11 and P.B. § 40–13A provide for the disclosure of statements “concerning the offense charged.”  P.B. § 40–12 allows for the disclosure of “relevant material.”   Since, as noted previously, the defendant has failed to make a persuasive showing that the calls of the codefendant which have not been reviewed by DOC contain any information concerning the offense charged or any other relevant information, the defendant is not entitled to disclosure of those calls under these provisions of the Practice Book.

V

Orders

In accordance with the foregoing, DOC is ordered to provide to the defendant copies of any recorded calls of the codefendants which it has reviewed and which concern the pending case or its criminal charges, including but not limited to:  (1) the recorded call of the visit by Naomi Ball with Dennis Guerrera in which Guerrera discusses the involvement or lack of involvement of the defendant in these crimes and (2) the recorded calls for which DOC has provided notes to the State's Attorney's office outlining the substance of the calls because the calls refer to matters related to this case.   DOC is further ordered to preserve the recorded calls of the four codefendants so that they may be available should the defendant obtain information which establishes an appropriate basis to subsequently seek disclosure of the calls.   See State v. Cain, 223 Conn. 731, 745–46 (1992).

BY THE COURT

Jon M. Alander

Judge of the Superior Court

FOOTNOTES

FN1. The defendant challenges the standing of the State's Attorney to move to quash his subpoena.   The State's Attorney responds that it has standing under the authority of State v. DeCaro, 252 Conn. 229, 254 (2000).   I agree.   The defendant has subpoenaed extensive records concerning four codefendants who will be on the State's witness list for trial.   As in Decaro, the State has standing because it has a legitimate interest in “preventing undue lengthening of the trial and undue harassment of its witness.”  Id..  FN1. The defendant challenges the standing of the State's Attorney to move to quash his subpoena.   The State's Attorney responds that it has standing under the authority of State v. DeCaro, 252 Conn. 229, 254 (2000).   I agree.   The defendant has subpoenaed extensive records concerning four codefendants who will be on the State's witness list for trial.   As in Decaro, the State has standing because it has a legitimate interest in “preventing undue lengthening of the trial and undue harassment of its witness.”  Id.

FN2. During the hearing on the motion to quash, the witnesses from DOC used the term “calls” to encompass both recorded telephone calls and recorded non-contact visits.   I maintain that practice..  FN2. During the hearing on the motion to quash, the witnesses from DOC used the term “calls” to encompass both recorded telephone calls and recorded non-contact visits.   I maintain that practice.

FN3. The wide range is due to the fact that DOC does not know the length of each call..  FN3. The wide range is due to the fact that DOC does not know the length of each call.

FN4. There is authority for a court to order a prosecutor to search material in the possession of an agency closely aligned with the prosecution for exculpatory information.   See United States v. Brooks, 966 F.2d 1500 (D.C.Cir.1992).   Such an order has been found to be appropriate “where ․ there is an explicit request for an apparently very easy examination and a non-trivial prospect that the examination might yield material exculpatory information ․” Id., 1504.   The examination here would be neither easy nor likely to produce material exculpatory information.   In any event, the defendant has not requested such an order..  FN4. There is authority for a court to order a prosecutor to search material in the possession of an agency closely aligned with the prosecution for exculpatory information.   See United States v. Brooks, 966 F.2d 1500 (D.C.Cir.1992).   Such an order has been found to be appropriate “where ․ there is an explicit request for an apparently very easy examination and a non-trivial prospect that the examination might yield material exculpatory information ․” Id., 1504.   The examination here would be neither easy nor likely to produce material exculpatory information.   In any event, the defendant has not requested such an order.

FN5. The Brady obligation extends only to material evidence.  U.S. v. Avellino, 136 F.3d 249, 255 (1998).  “Due process only requires the disclosure of material exculpatory evidence which, ‘if suppressed would deprive the defendant of a fair trial.’  “ Smith v. Secretary Department of Correction, supra, 50 F.3d 824 (quoting United States v. Bagley, supra, 473 U.S. 675 n.6).   Evidence is material under Brady if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  Kyles v. Whitley, supra, 514 U.S. 433..  FN5. The Brady obligation extends only to material evidence.  U.S. v. Avellino, 136 F.3d 249, 255 (1998).  “Due process only requires the disclosure of material exculpatory evidence which, ‘if suppressed would deprive the defendant of a fair trial.’  “ Smith v. Secretary Department of Correction, supra, 50 F.3d 824 (quoting United States v. Bagley, supra, 473 U.S. 675 n.6).   Evidence is material under Brady if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  Kyles v. Whitley, supra, 514 U.S. 433.

FN6. Practice Book § 40–11(a)(6)(i) provides in relevant part that the prosecuting authority shall disclose in writing the existence of and allow the defendant to copy “any written, recorded or oral statements made by the defendant or a codefendant, before or after arrest to any law enforcement officer or to a person acting under the direction of or in cooperation with a law enforcement officer concerning the offense charged.”.  FN6. Practice Book § 40–11(a)(6)(i) provides in relevant part that the prosecuting authority shall disclose in writing the existence of and allow the defendant to copy “any written, recorded or oral statements made by the defendant or a codefendant, before or after arrest to any law enforcement officer or to a person acting under the direction of or in cooperation with a law enforcement officer concerning the offense charged.”

FN7. Practice Book § 40–13A provides in relevant part that the prosecuting authority shall provide photocopies of all statements within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements were prepared concerning the offense charged..  FN7. Practice Book § 40–13A provides in relevant part that the prosecuting authority shall provide photocopies of all statements within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements were prepared concerning the offense charged.

FN8. Practice Book § 40–12 provides in pertinent part that the judicial authority may direct the prosecuting authority to disclose in writing to the defendant and make available for copying any other relevant material and information not covered by Section 40–11 which the judicial authority determines on good cause shown should be made available..  FN8. Practice Book § 40–12 provides in pertinent part that the judicial authority may direct the prosecuting authority to disclose in writing to the defendant and make available for copying any other relevant material and information not covered by Section 40–11 which the judicial authority determines on good cause shown should be made available.

Alander, Jon M., J.