Criminal Law Blog

Contents of Police File from Decedent’s Prior Conviction Not Material for Brady Purposes

Ellsworth S. Colbert v. United States (decided October 22, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Newman. Opinion by Judge Thompson. Dissenting opinion by Judge Beckwith. Jenifer Wicks for Mr. Colbert. Trial judge: Herbert B. Dixon, Jr.

Facts: Ellsworth Colbert got into a fight with another man and the other man died of stab wounds. Colbert argued that he acted in self-defense, but he was convicted of manslaughter while armed, ADW, and CDW. The decedent had a prior conviction for ADW in North Carolina. Mid-trial, the prosecution informed the judge and defense counsel that it had received a police investigative file from that case. When the judge asked the defense what information it wanted to know about the North Carolina conviction, other than the nature and date of the offense, defense counsel asked only about the type of weapon used. The defense did not specifically request access to the file or request more time to investigate. The judge never ruled on whether the government had to disclose the North Carolina file, and the parties ultimately stipulated to the prior conviction and the fact that the decedent had used a gun.

During deliberations, the jury asked whether all of the elements of the respective homicide offenses charged must “be true at the same point in time,” or whether “all elements [could] be true at some point in time, though not necessarily at the same point in time?” The judge directed the jury to the elements of the offenses and instructed it to pay attention to any language referring to timing.

Issue 1: Did the government violate Brady by failing to turn over the police investigative file relating to the decedent’s prior conviction?

Holding 1: No. Colbert failed to demonstrate that the contents of the file were material, where the jury heard evidence from three witnesses about prior violence on the part of the decedent, where evidence about the North Carolina conviction was admitted pursuant to stipulation, and where the defense was able “to argue extensively in closing that the decedent had a violent disposition.”

Issue 2: Was it plain error for the trial court to respond to the jury’s note by referring the jury back to the instructions on the elements of the offenses, rather than instructing that with regard to manslaughter, “all elements must be true at the same time”?

Holding 2: No. Even assuming Colbert did not waive the challenge to the instruction, the trial court’s response to the jury note was not plainly erroneous, because “there was no indication in the jury note that the jury was misinterpreting the court’s instructions or was misconstruing the elements of a crime.” Nor could the Court “discern how appellant’s substantial rights were adversely affected” by failure to give the instruction he requested on appeal.

Of Note:
  • Judge Beckwith dissented from the Court’s Brady holding, arguing that the “materiality determination . . . is genuinely hampered by the fact that the trial court did not review the evidence as potential Brady material and that we do not know what that evidence is.” She would have remanded to the trial court “with instructions that it place the North Carolina file in the record and assess the file’s materiality under Brady,” permitting the Court of Appeals “to conduct a de novo review of the trial court’s appraisal of the Brady information with the benefit of the actual evidence.”
  • The dissent observed that the defense could not “have waived his right to challenge the government’s failure to disclose a file when he did not know what the government knew,” and noted that the government’s Brady obligation to disclose information favorable to the defense “exists with or without a request by the defendant.”  MW