State v. Gray

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STATE V. GRAY—CONCURRENCE
PRESCOTT, J., concurring. I agree with and join parts
II and III of the majority opinion. I concur in the result
reached by the majority with respect to the first claim
of the defendant, Bennie Gray, Jr., but I write separately
because I do not entirely agree with the majority’s analy-
sis of the ‘‘materiality’’ prong of the Asherman/Morales
balancing test. My disagreement, however, largely derives
from the lack of consistency and clarity within our Asher-
man/Morales jurisprudence concerning the meaning to
be given to the test’s materiality prong.
In a criminal case, if the state loses or destroys evi-
dence, it may have deprived the defendant of the oppor-
tunity to test that evidence for fingerprints, DNA, or
other forensic evidence. Without the evidence to test,
the defendant often is unable to evaluate its exculpatory
value. The state’s failure to provide to the defendant
potentially exculpatory evidence that was at one point,
but is no longer, within its control may violate the defen-
dant’s right to due process of law under our state consti-
tution. See State v. Morales, 232 Conn. 707, 719, 657
A.2d 585 (1995) (evaluating ‘‘whether the failure of the
police to preserve potentially [exculpatory] evidence
ha[s] deprived a criminal defendant of due process of
law under . . . the . . . state constitution’’ (empha-
sis added)).
In Morales, our Supreme Court adopted a four-
pronged balancing test that courts are to apply in
reviewing a criminal defendant’s state due process
claim arising out of the state’s destruction or loss of
potentially exculpatory evidence. See id., 726–27. ‘‘[I]n
determining whether a defendant has been afforded
due process of law under the state constitution, the
trial court must . . . [weigh] the reasons for the
unavailability of the evidence against the degree of prej-
udice to the accused. More specifically, the trial court
must balance the totality of the circumstances sur-
rounding the missing evidence, including the following
factors: ‘the materiality of the missing evidence, the
likelihood of mistaken interpretation of it by witnesses
or the jury, the reason for its nonavailability to the
defense and the prejudice to the defendant caused by
the unavailability of the evidence.’ State v. Asherman,
[193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied,
470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)].’’
State v. Morales, supra, 232 Conn. 726–27.
Our courts, however, have employed the term ‘‘mate-
riality’’ to have slightly different meanings in two closely
related contexts: (1) in Asherman/Morales cases, like
the present case, in which the state has failed to pre-
serve potentially exculpatory evidence by losing or
destroying it; and (2) in cases involving traditional
Brady violations where the state has withheld exculpa-
tory evidence from the accused.1 See id., 714 (differenti-
ating instances in which state failed to preserve poten-
tially exculpatory evidence by losing or destroying it,
like in present case, from strict Brady violations). Sev-
eral cases within our Asherman/Morales jurisprudence
have described the ‘‘materiality’’ prong using the follow-
ing language: ‘‘[E]vidence is material only if there is
a reasonable probability that,’’ had the evidence been
preserved and disclosed to the defense, ‘‘the result of
the proceeding would have been different.’’ (Emphasis
added; internal quotation marks omitted.) State v. Fox,
192 Conn. App. 221, 237, 217 A.3d 41, cert. denied, 333
Conn. 946, 219 A.3d 375 (2019); see State v. Baldwin,
224 Conn. 347, 365, 618 A.2d 513 (1993) (same); State
v. Richard W., 115 Conn. App. 124, 141, 971 A.2d 810(same), cert. denied, 293 Conn. 917, 979 A.2d 493 (2009);
see also State v. Valentine, 240 Conn. 395, 417–18, 692
A.2d 727 (1997) (‘‘[t]he measure of materiality is
whether there is a reasonable probability that,’’ had
evidence been preserved and disclosed to defense, ‘‘the
result of the proceeding would have been different’’
(internal quotation marks omitted)); State v. Joyce, 243
Conn. 282, 301, 705 A.2d 181 (1997) (same), cert. denied,
523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998);
State v. Thompson, 128 Conn. App. 296, 303, 17 A.3d
488 (2011) (same), cert. denied, 303 Conn. 928, 36 A.3d
241 (2012); State v. Barnes, 127 Conn. App. 24, 32, 15
A.3d 170 (2011) (same), aff’d, 308 Conn. 38, 60 A.3d
256 (2013).
On the other hand, the cases within our Brady juris-
prudence have described materiality somewhat differ-
ently: ‘‘Evidence is material when there would be a
reasonable probability of a different result if it were
disclosed. . . . A reasonable probability exists if the
evidence could reasonably . . . put the whole case in
such a different light as to undermine confidence in
the verdict.’’ (Emphasis added; internal quotation marks
omitted.) State v. Komisarjevsky, 338 Conn. 526, 633–
34, 258 A.3d 1166, cert. denied, U.S. , 142 S. Ct.
617, 211 L. Ed. 2d 384 (2021); see also State v. Esposito,
235 Conn. 802, 815, 670 A.2d 301 (1996) (requiring defen-
dant to demonstrate ‘‘that the favorable evidence could
reasonably be taken to put the whole case in such a
different light as to undermine confidence in the ver-
dict’’ (emphasis added; internal quotation marks omit-
ted)). Under our Brady jurisprudence, however,
‘‘[m]ateriality does not require . . . a demonstration
. . . that disclosure of the suppressed evidence would
have resulted ultimately in the defendant’s acquittal.
. . . Instead, the operative inquiry is whether, in the
absence of the evidence, the defendant received a fair
trial . . . resulting in a verdict worthy of confidence.’’
(Emphasis added; internal quotation marks omitted.)
State v. Komisarjevsky, supra, 634; see also State v.
Bryan, 193 Conn. App. 285, 317, 219 A.3d 477 (‘‘[t]he
question is not 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’’ (emphasis added; internal quotation
marks omitted)), cert. denied, 334 Conn. 906, 220 A.3d
37 (2019). Thus, although many of our Asherman/
Morales cases define ‘‘materiality’’ using somewhat sim-
ilar language to that used within our Brady jurispru-
dence, our courts appear to have given two different
meanings to the common factor of materiality.
Moreover, within our Asherman/Morales jurisprudence,
our cases have sometimes confounded the first prong
of the balancing test—that is, ‘‘the materiality of the
missing evidence’’; (internal quotation marks omitted)
State v. Morales, supra, 232 Conn. 719; and the fourth
prong of the balancing test—that is, ‘‘the prejudice to
the defendant caused by the unavailability of the evi-
dence.’’ (Internal quotation marks omitted.) Id., 720. In
other words, despite the fact that the Asherman/
Morales balancing test differentiates between these two
prongs, many cases within our Asherman/Morales juris-
prudence appear to have construed the ‘‘materiality of
the missing evidence’’ prong to evaluate ‘‘the prejudice
to the defendant caused by the unavailability of the
evidence.’’ (Internal quotation marks omitted.) Id., 719–
20. Accordingly, in several of these cases—including
the majority’s opinion in the present case—our courts
have evaluated, under Asherman/Morales’ materiality
prong, whether the unavailability of the evidence at
trial prejudiced the defendant. See, e.g., State v. Joyce,
supra, 243 Conn. 301–302 (evaluating, under material-
ity factor, cumulative weight of remainder of state’s
case against defendant, outside of contested evidence);
State v. Fox, supra, 192 Conn. App. 239 (same); State
v. Barnes, supra, 127 Conn. App. 33 (same).
The inconsistencies within our Asherman/Morales
jurisprudence have resulted in a lack of clarity as to
how the materiality prong should be applied. To start,
the definition of ‘‘materiality’’ adopted by many cases
within our Asherman/Morales jurisprudence strays sig-
nificantly from how the Asherman court, as the major-
ity notes, originally defined ‘‘materiality.’’ As the major-
ity recognizes, the Asherman court ‘‘set forth the
standard for materiality in cases where evidence was
lost or destroyed prior to forensic testing . . . [by hold-
ing] that, ‘if the state has not tested an item of evidence
before its loss or destruction, and no other facts indicate
that test results might have proved unfavorable to the
defendant, little more is required than a showing that
the test could have been performed and results obtained
which, in the context of the defendant’s version of the
facts, would prove exculpatory.’ ’’2 (Emphasis added.)
Part I of the majority opinion; see State v. Asherman,
supra, 193 Conn. 725. Thus, by maintaining that evi-
dence is material ‘‘only if there is a reasonable probabil-
ity that, had [it] been disclosed to the defense, the result
of the proceeding would have been different’’; (empha-
sis added; internal quotation marks omitted) State v.
Fox, supra, 192 Conn. App. 237; our courts appear to
have retreated from the Asherman court’s initial, less
demanding threshold for materiality.
Additionally, in at least one case following Asherman,
our Supreme Court evaluated the materiality prong by
using an entirely different definition of ‘‘materiality.’’
In State v. Estrella, 277 Conn. 458, 893 A.2d 348 (2006),
our Supreme Court initially stated: ‘‘The evidence is
material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’’
(Emphasis added; internal quotation marks omitted.)
Id., 485. Our Supreme Court, however, continued: ‘‘In
other words, the defendant must show that [the evi-
dence] would have been helpful to him.’’3 (Emphasis
added.) Id. In my view, there is a significant difference
between evidence that raises a reasonable probability
that the defendant would be found not guilty and evi-
dence that would be ‘‘helpful’’ to the defendant’s case.
The Supreme Court in Estrella ultimately concluded
that, because ‘‘the defendant [did] not [demonstrate]
that [the evidence] would have been favorable’’ to him,
its ‘‘absence was [not] prejudicial’’ to the defendant
and the materiality factor did not weigh in his favor.
(Emphasis added.) Id., 486. The Estrella court’s fre-
quent interchanging of different terms to describe the
materiality prong has resulted in inconsistencies
between Estrella and other Asherman/Morales cases,
further muddling the proper meaning to be ascribed to
Asherman/Morales’ materiality prong.
In sum, there exists a lack of consistency and clarity,
both between our Brady jurisprudence and Asherman/
Morales jurisprudence, and within our Asherman/
Morales jurisprudence, as to the meaning to be given
to the materiality prong of the Asherman/Morales bal-
ancing test. I encourage our Supreme Court, when pro-
vided an appropriate opportunity, to define more fully
and definitively ‘‘materiality’’ in Asherman/Morales cases
or to reformulate the Asherman/Morales test to address
this lack of clarity.
Nonetheless, in the present case, even if I assume
that the first three prongs of the Asherman/Morales
test—including the materiality prong—weigh in favor
of the defendant, the defendant has failed to persuade
me that, under the fourth prong of the test, the admis-
sion of secondary evidence of the seized cash, in light
of its unavailability for testing, caused him prejudice
sufficient to reverse the judgment of the trial court. See
State v. Morales, supra, 232 Conn. 723. In my view, even
if the defendant’s motion to suppress the secondary
evidence of the seized cash had been granted, the remain-
ing evidence against the defendant was quite strong.
‘‘The fourth factor of the Asherman[/Morales balanc-
ing] test concerns the prejudice caused to the defendant
as a result of the unavailability of the [missing evidence].
In measuring the degree of prejudice to an accused
caused by the unavailability of the evidence, a proper
consideration is the strength or weakness of the state’s
case, as well as the corresponding strength or weakness
of the defendant’s case.’’ (Internal quotation marks
omitted.) State v. Morales, 90 Conn. App. 82, 91, 876
A.2d 561, cert. denied, 275 Conn. 924, 883 A.2d 1250(2005). In analyzing this prong, our courts have evalu-
ated the strength of the state’s case by reviewing the
‘‘testimony and exhibits [introduced at trial], aside
from’’ the missing evidence. (Emphasis added.) Id., 92;
see also State v. Joyce, supra, 243 Conn. 303 (‘‘[i]n light
of the state’s other evidence connecting the defendant
to the crime and the persuasive [other] evidence [the
state presented], we conclude that the absence of the
[missing evidence] did not prejudice the defendant’’
(emphasis added)).
Had the jury not heard testimony concerning the
seized cash, the state’s case against the defendant nev-
ertheless was compelling. Brian Drobnak testified at
trial concerning his purchase of crack cocaine from the
defendant on May 9, 2018. After he was arrested at the
Gulf gas station with crack cocaine in his possession
and while still at the scene, Drobnak immediately volun-
teered to speak with the police. He reported to the
police that he had purchased crack cocaine from an
individual the police quickly identified as the defendant.
Drobnak reiterated this version of events in a written
statement at the police station4 and later when he testi-
fied at trial. While at the scene, Drobnak also provided
to the police the phone number he had contacted to
arrange the narcotics transaction. The police confirmed
that the phone number provided to them by Drobnak
matched a cell phone found in the center console of
the defendant’s car. Further, Drobnak testified that he
had purchased crack cocaine from the defendant on
prior occasions.
At trial, Officers Todd Lynch and Jeremy Zelinski
corroborated Drobnak’s version of the events. Lynch
and Zelinski testified that, at the gas station, they
observed Drobnak pacing back and forth alongside his
vehicle and checking his phone. They did not observe
Drobnak purchase gasoline, enter the convenience
store at the gas station, or use the air pressure machine
nearby. Shortly thereafter, Lynch and Zelinski observed
a car, operated by the defendant, pull into the gas sta-
tion. They watched Drobnak enter the car operated by
the defendant, remain in the car for less than one
minute, and subsequently exit the vehicle to return to
his car. As the majority states, the ‘‘limited exchange
between Drobnak and the defendant . . . in an area
well-known for frequent drug sales’’ indicated that a
narcotics transaction had taken place between the
defendant and Drobnak. Immediately after Drobnak
returned to his car, Lynch and Zelinski approached
Drobnak’s vehicle. They testified that, once they
approached the vehicle, they immediately observed
Drobnak holding what appeared to be narcotics. Lynch
and Zelinski recovered what field testing confirmed to
be cocaine from Drobnak’s car.
Immediately after the substance was field tested and
confirmed as positive for cocaine, Sergeant Gregory
Moreau attempted to initiate a motor vehicle stop of the
defendant’s vehicle by activating the siren and overhead
lights of his police cruiser. Demonstrating conscious-
ness of guilt, the defendant did not stop. Moreau used
the public address system of his cruiser to instruct the
defendant to pull over, and the defendant continued
driving forward for another two to four hundred feet
before he eventually stopped. The defendant subse-
quently was placed under arrest and transported to the
police station. At the police station, Lynch asked the
defendant why he was involved in selling narcotics. In
response to Lynch’s question, the defendant responded,
‘‘that’s all I know.’’
Comparatively, the defendant’s theory of the case was
significantly weaker than the state’s case against him. At
trial, the defendant denied selling narcotics to Drobnak.
The defendant testified that he had met Drobnak at the
gas station to speak about his son’s missing cell phone,
because the defendant allegedly had left the phone in
Drobnak’s car a few days prior. The defendant testified
that, upon entering the defendant’s car, Drobnak
requested a financial reward for finding the cell phone.
According to the defendant, he denied Drobnak’s request
and asked Drobnak to exit the car, and Drobnak did so
less than a minute after he had entered. The defendant’s
version of events, as the majority notes, was ‘‘largely
unsubstantiated’’ by any other evidence outside of his
own testimony. Accordingly, the court’s denial of the
defendant’s motion to suppress the secondary evidence
of the cash does not justify reversal of the defendant’s
conviction under the Asherman/Morales standard.
For the foregoing reasons, I respectfully concur.
1
‘‘[T]o prove a . . . violation [of Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194, 10 L. Ed. 2d 215 (1963)], [a] defendant must show: (1) that the
prosecution suppressed evidence after a request by the defense; (2) that
the evidence was favorable to the defense; and (3) that the evidence was
material.’’ (Emphasis added; internal quotation marks omitted.) State v.
Komisarjevsky, 338 Conn. 526, 614, 258 A.3d 1166, cert. denied, U.S.
, 142 S. Ct. 617, 211 L. Ed. 2d 384 (2021).
2
In Correia v. Rowland, 263 Conn. 453, 820 A.2d 1009 (2003), a habeas
petitioner relied on this language; see id., 477 n.23; to argue that ‘‘a legal
presumption ar[ose] that . . . untested evidence, not preserved by the state,
would have [yielded results that would have] exonerated [him],’’ had it been
tested. (Emphasis omitted.) Id., 473–74, 476. Our Supreme Court rejected
this argument and stated: ‘‘We do not read Asherman to support th[at] [the
law presumes that the lost or destroyed evidence, if tested, would have
exonerated the petitioner]. To the contrary, although this section of Asher-
man does state ‘[o]n the other hand, if the state has not tested an item of
evidence before its loss or destruction, and no other facts indicate that test
results might have proved unfavorable to the defendant, little more is
required than a showing that the test could have been performed and results
obtained which, in the context of the defendant’s version of the facts, would
prove exculpatory’; [State v. Asherman, supra, 193 Conn. 725]; we note that
this passage, particularly its reference to other facts indicating a test result
unfavorable to the defendant, is merely part of an explication of the balanc-
ing process that the court must undertake under both Asherman and
Morales.’’ (Emphasis added.) Correia v. Rowland, supra, 477 n.23. In my
view, the court’s attempt in Correia to clarify its prior language in Asherman
was not entirely successful.
3
The Estrella court also stated that ‘‘[e]vidence is material when it is
offered to prove a fact directly in issue or a fact probative of a matter in
issue.’’ State v. Estrella, supra, 277 Conn. 484 n.17.
4
Drobnak testified that, in his written statement, he stated that he had
purchased the crack cocaine from ‘‘G,’’ whom Drobnak admitted on cross-
examination referred to Greg Williams, a mutual acquaintance of Drobnak
and the defendant. Drobnak clarified at trial, however, that he had intended
to identify the defendant in his written statement, and he testified that there
was ‘‘no doubt in [his] mind that [the defendant] [was] the man who sold
[him] crack cocaine.’’