Grimes v. State, 74--863
| Decision Date | 10 October 1975 |
| Docket Number | No. 74--863,74--863 |
| Citation | 321 So.2d 584 |
| Parties | Donald Bruce GRIMES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Charles R. Stepter, Jr., of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
The appealed judgment is reversed and the cause remanded for a new trial with directions that the defendant be permitted to elicit the name and address of the informant witness should the state choose to call him to the stand. This is done by authority of Hassberger v. State, 321 So.2d 577 (Fla.App.4th 1975).
Grimes and Hassberger were codefendants convicted at the same time and under the same circumstances with reference to the confidential informant.
Reversed and remanded.
Based upon a review of the specific facts and circumstances of this case it is my opinion that the judgment of conviction and sentence should be affirmed. I therefore disagree with the majority's analysis of the facts and law as enunciated in Hassberger v. State, Fourth District Court of Appeal, 321 So.2d 577 opinion filed October 10, 1975, and as applied to this case.
This appeal presents a novel situation of first impression concerning the disclosure of the real name and address of a confidential informant and the conducting of an 'in camera' proceedings pertaining to such disclosure.
The defendant Grimes was one of several persons arrested on November 10, 1973 by officers of the Orlando police department for delivery of marijuana. Several days prior to the arrest, the confidential informant identified as 'Ed' made contact with the defendant and arrangements were made for 'Ed' to purchase a quantity of drugs at a stated location. At the time of the delivery of the drugs, 'Ed' was accompanied by Officer Herrera of the Orlando police department. The entire transaction was observed and electronically monitored by Officer Chastain, of the Orlando police department. After delivery of the marijuana to 'Ed' and Officer Herrera at the agreed upon location, a prearranged signal was given; the defendant and others (later to become co-defendants) were then arrested by Officers Herrera and Chastain.
Prior to trial and pursuant to the motion of a co-defendant, the lower court entered an order on February 4, 1974, directing that the identity of the confidential informant be disclosed. However, on February 6, after an In camera hearing held pursuant to the state's ex parte motion, the court modified its prior order of disclosure dated February 4, 1974. In support of its motion the state submitted a written statement, in affidavit form, which asserted that the informant was currently working as an undercover operator on other drug related cases under investigation and that the disclosure of his Real name and address 'could constitute a great and immediate danger to his life'. 1 The effect of the modification was to relieve the state of the requirement to furnish the Real name and address of the confidential informant directing, instead, that the confidential informant be referred to only as 'Ed'. The court further ordered that the informant be made available to the defendant for discovery purposes and be present at the trial of the cause. 2
Thereafter, on March 7, pursuant to a motion of a co-defendant, the court further modified its order of February 6, directing the state to furnish defense counsel with the F.B.I. rap sheet or other local criminal record of said witness 'Ed' with any reference to his true name and address obliterated. Subsequently, based upon various motions filed by the defendants and the state 3 the court on March 14, modified its prior order of March 7 to the extent that the state was directed to 'furnish to counsel for defense Only such information from said witness's criminal record or F.B.I. rap sheet, if any, which might lead defense counsel to admissible evidence . . .'. 4 The March 14 order directed the state to furnish the Court with 'any F.B.I. rap sheet or criminal record' of said witness 'Ed', if any, for an In camera inspection by the court. The March 14 order additionally directed the state to advise the defense that 'if said witness has no criminal record or F.B.I. rap sheet, then state attorney may so indicate by affirmative statement or writing, filed of record in this cause . . .'.
The record on appeal contains an exchange of correspondence between the state attorney's office and the City of Orlando police department reflecting an inquiry by the state of the police department to ascertain whether any local criminal record or felony record exists with reference to 'Ed' and a response by the police department indicating that No criminal record could be found on 'Ed'. There is no indication as to whether the substance of this correspondence was communicated to any of the defendants prior to trial as contemplated by the aforementioned orders. 5 Various other pretrial motions to compel discovery were also filed pertaining to the production of tapes and other evidence of electronic surveillance of conversations between 'Ed' and the other co-defendants of Grimes. The court granted these motions and directed the state to comply and subsequently defendant Grimes was advised that the tapes of the conversations would be made available to him prior to trial.
The cause came to trial on April 23, resulting ultimately in the conviction of defendant and a sentence to imprisonment at hard labor of six months to five years. 6
At trial, the state called 'Ed' as a witness. A review of the transcript of the testimony reflects that witness 'Ed' was subject to extensive direct, cross and redirect examination. 7 The circumstances surrounding witness 'Ed's' participation in the transaction giving rise to defendant's arrest were dealt with at length as well as the fact that witness 'Ed' performed undercover investigative work for law enforcement agencies for which he received payment in cash. The jury was clearly made aware of the nature of witness 'Ed's' role in the transaction as well as his 'occupation', i.e., 'a paid professional informant'. 8 Witness 'Ed' was also cross-examined with respect to his criminal record as follows:
'Q Okay. And you have testified in Court before?
'A Yes.
'Q Have you ever been convicted of a crime?
'A No, sir.
'Q Been arrested?
In addition to witness 'Ed', the state offered the testimony of officers Herrera and Chastain and officer Page, who was an evidence technician and a chemist for the Sanford crime lab. Other than the cross-examination of the state's witnesses, the defendant produced no testimony is rebuttal of the state's case.
After having been tried and found guilty of the offense charged, defendant filed a motion for new trial on April 24, 1974, contending that it was error for the court to have deprived the defendant of the right of cross-examination as to the true identity of witness 'Ed'. As a result, the trial court issued an order on May 20, 1974, indicating that the court would conduct In camera proceedings to receive 'additional evidence upon the necessity in the first instance of keeping the address and real name of the alleged undercover operator Ed confidential throughout the trial'.
On May 28, 1974, the court conducted an In camera proceeding and heard the testimony of the following witnesses: an investigator from the state attorney's office, the witness previously identified as 'Ed', and officer Herrera. An assistant state attorney was present at the In camera proceeding and participated with the court in the interrogation of the witnesses. A transcript of the In camera proceedings was made and ordered sealed subject to further order of the trial court or examination by the appellate court.
On May 29, the trial court entered a detailed order denying defendant's motion for a new trial indicating, inter alia, that the evidence adduced at the In camera proceedings confirmed and reinforced the court's previous order of nondisclosure regarding the real name and address of witness 'Ed'. The order indicated that the court was convinced from the evidence 'that the maintenance and continuance of the confidentiality of the true name and address of the witness has been maintained throughout these proceedings and trial In order to minimize personal danger to said witness.
The court order also recited that the In camera proceeding had revealed that witness 'Ed' had been arrested in connection with two felonies occurring in 1943 and 1957 upon which there were No convictions; and that witness 'Ed' was involved in two minor traffic offenses in 1947. In assessing these disclosures from the standpoint of how such evidence would have aided and assisted defense counsel in his cross-examination of witness 'Ed', the trial court observed in part:
'. . . All of these items being so remote in time that they would have afforded little, if any, grounds for impeachment had there been any legitimate way of getting the items admitted in evidence and this Court can think of no legitimate way.'
Having labored through the maze of pertinent motions, orders, occurrences and evidence we now direct our attention to the thrust of defendant's contentions, i.e., that defendant's right to a fair trial was violated: (1) by the trial court's refusal to require the state to disclose the real name and address of the confidential informant and (2) by the trial court's action in conducting In camera proceedings.
In the present factual context we are presented with a somewhat unusual set of circumstances not heretofore confronted by the Florida courts in attempting to resolve...
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...OVERTON, C. J., and ENGLAND and KARL, JJ., concur. ADKINS, J., concurs in result only. 1 321 So.2d 577 (Fla. 4th DCA 1975).2 321 So.2d 584 (Fla. 4th DCA 1975).3 Art. V, § 3(b)(3), Fla.Const.4 Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).5 E. g., McGrath v. Vinzant, 5......
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