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Christopher R. Stacy v State of Alaska (11/5/2021) ap-2714

Christopher R. Stacy v State of Alaska (11/5/2021) ap-2714

                                                                   NOTICE
  

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              formal errors to the attention of the Clerk of the Appellate Courts:  



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                     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)).  



                                                                          - 22 -                                                                      2714
  


----------------------- 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.  



                                                                        - 23 -                                                                     2714
  


----------------------- 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.  



                                                               - 26 -                                                          2714
  


----------------------- 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-Rodríguez, 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.  



                                                                                                           -  32 -                                                                                                       2714
  

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