Christopher R. Stacy v. State of Alaska ( 2021 )


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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.
    OPINION
    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).
    Christopher R. Stacy was convicted, following a jury trial, of second-degree
    misconduct involving a controlled substance (possession of heroin with the intent to
    deliver).1 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
    officers who testified at his trial.2 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
    under Brady v. Maryland3 and Kyles v. Whitley4 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
    In Oaksmith’s belongings, the troopers discovered two ounces (56.7 grams)
    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 any of 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 to Ketchikan with the heroin, Stacy contacted a friend 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
    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
    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
    if it is not in their immediate physical control.5
    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
    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
    show plain error on appeal.6 “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
    justice.’”7
    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
    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’an then testified to his involvement in the investigation, 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
    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
    should not have been admitted under Alaska Evidence Rule 403.8
    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
    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
    hybrid witnesses in Miller v. Phillips, a medical malpractice case.9 There, the supreme
    court noted that the line between a “fact” witness and an “expert” witness “inevitably
    becomes blurred” when treating physicians testify in medical malpractice cases.10 The
    court subsequently expanded the use of hybrid witnesses to include investigating law
    enforcement officers in Getchell v. Lodge, a personal injury civil negligence case.11
    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
    parties.12    The court recognized, however, that there “is a danger that a police
    investigator’s conclusion will be given undue weight by a jury.”13
    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
    a witness who is presented as an experienced criminal investigator.”14
    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
    As a general matter, Alaska Evidence Rule 704 permits expert witnesses
    to testify to the “ultimate issue” to be resolved by the trier of fact.15 But the commentary
    to the rule expressly warns that “an opinion of any person that a criminal defendant is
    guilty or innocent would not be admissible [under this rule].”16 We have applied this rule
    in numerous cases and have previously admonished courts against allowing witnesses
    to give their personal opinion of a defendant’s guilt or innocence.17
    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
    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
    manner, it would have been unobjectionable.18 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
    Dur’an’s opinion testimony was the defense attorney’s objection of “speculation.”19 We
    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
    raises on appeal. Accordingly, to prevail on appeal, Stacy must establish plain error —
    i.e., obvious error undermining the fundamental fairness of the trial.20
    While we disapprove of some aspects of Dur’an’s testimony, we do 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
    and the possible lack of evidence to support that opinion were both before the jury.21
    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
    possessed “any amount of a schedule IA controlled substance with intent to . . .
    deliver.”22
    At trial, there was no dispute that heroin is a schedule IA controlled
    substance.23 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”
    amount of heroin, even if the vast majority of it was intended for personal use.24
    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
    Whether the evidence presented at trial is legally sufficient to support the
    defendant’s conviction is a question of law that we review de novo.25 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
    verdict.26 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
    a reasonable doubt.27
    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
    for personal use.28
    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
    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
    other cases.29 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
    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 law enforcement 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
    State.31 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
    Ninth Circuit case law that Stacy relies on.33 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
    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
    punishment, irrespective of the good faith or bad faith of the prosecution.”34 The
    Supreme Court subsequently clarified that a prosecutor’s duty to disclose Brady material
    exists even when there has been no request from the defense.35 The Supreme Court also
    expanded the duty to include impeachment evidence as well as exculpatory evidence.36
    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
    been different.”37
    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
    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
    prosecutor nor to his superiors.38 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
    the Government.”39 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
    information on each case to every lawyer who deals with it.”40
    In Kyles v. Whitley, the Supreme Court held that the prosecutor’s duty 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
    in the case, including the police.”41 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
    “procedures and regulations” could be established to ensure that prosecutors learn of
    favorable material evidence that should be disclosed to the defense.42
    In response to Brady and its progeny, prosecutorial offices across the
    country have instituted procedures and regulations to ensure compliance with their
    constitutional duty to learn and disclose favorable material evidence to the defense.43 In
    some instances, these procedures have included reviews of police personnel files for
    Brady impeachment material, which can include disciplinary actions related to a police
    officer’s credibility and bias.44
    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
    enforcement employee’s truthfulness, bias, or moral turpitude.”45 Two counties in North
    Carolina similarly require “all police agencies to search officers’ personnel records for
    credibility issues going back ten years.”46
    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
    Brady material.47 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
    of anything that might require disclosure.48
    These procedures were adopted by the federal government in response to
    a Ninth Circuit case, United States v. Henthorn.49 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
    defense that meets the appropriate standard of materiality.’”50 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
    and evaluation.”51 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
    review law enforcement officer personnel files.53 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
    Brady material.54 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
    the assigned prosecutor to personally review the relevant files.55 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
    AUSA is fulfilling his responsibility for ensuring government compliance with Brady.”57
    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
    duty will be done” in accordance with the Department of Justice’s internal policy.58 The
    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
    also been approved by other federal circuit courts — even courts that assert that they are
    rejecting Henthorn.59
    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
    be in a law enforcement officer’s personnel file.60 In Quinn, the defendant filed a pretrial
    motion requesting that the trial court order the government to disclose the personnel files
    of the testifying officers for impeachment purposes.61 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
    over.[62]
    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
    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
    determine whether they contained Brady or Giglio material.”64 Given this, the Eleventh
    Circuit concluded that the trial court had not erred in denying the defense request for
    production of those files absent an adequate showing of materiality.65
    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
    Henthorn, as is true in our prior discussion in Martin v. State.66
    In Martin, the defendant filed a pretrial motion requesting that the trial court
    conduct an in camera review of the personnel files of all testifying officers.67 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
    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
    does not have access to those files and does not know their contents.”69 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
    rejected Henthorn,”70 and we concluded that “the fact that the federal circuits are split
    on this question means that Martin has failed to show plain error.”71
    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
    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
    personally review personnel files.73 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
    Indeed, it appears that the Department of Law has adopted such a procedure
    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’s misconduct involving untruthfulness or bias. 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
    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”
    with the prosecution.75 And the duty may include other governmental offices and actors
    who are “closely aligned with the prosecution” or acting on the government’s behalf.76
    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
    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 a law enforcement officer’s personnel file, the prosecutor must confirm that reasonable
    steps have been taken to discover and disclose any favorable material evidence contained
    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 agency had 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
    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
    Stacy’s case.77 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