Hassberger v. State

• Decision Date: 10 October 1975
• Docket Number: No. 74--886,74--886
• Citation: 321 So.2d 577
• Parties: Toby Allen HASSBERGER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 577

321 So.2d 577

Toby Allen HASSBERGER, Appellant, v. STATE of Florida, Appellee.

No. 74--886.

District Court of Appeal of Florida, Fourth District.

Oct. 10, 1975.

Rehearing and Certification Denied Nov. 12, 1975.

Alan E. Strober of Sigman, Speigel, Flower & Strober, Orlando, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.

WALDEN, Judge.

The question crucial to this case is:

Can the identity (actual name and address) of a confidential informant be kept secret when the trial court finds (by means of an In camera proceeding on the subject), that the informant's personal safety is at stake--when that informant Appears as a witness in the criminal proceeding?

The defendant here complains that he was denied his right to cross examine when a witness-confidential-informant was permitted to testify without revealing his real name and address. The trial court held an In camera proceeding to determine the validity of the witness' claim of personal danger and concluded that such danger did exist, and that other state investigations would suffer if the witness' identity was revealed. The trial court determined the witness' identity could be kept secret. We disagree and reverse.

There are two primary reasons for courts to permit an informant's identity to remain undisclosed:

(1) So that the informer may continue in his activities without losing his cover, thereby serving state and public interests;

(2) So that the informer may be kept free of reprisals, thereby serving state and public interests by encouraging citizens to reveal information to proper authorities. ¹

There are four primary reasons for a defendant to request the identity of an informant:

(1) To prove probable cause for a warrant when an informant's tip provides a portion of the basis for the warrant's issuance.

(2) To prove probable cause for a warrantless arrest and search when an informant's tip provides a basis for police action in that regard.

(3) To permit a defendant to properly prepare his defense; a defendant alleging entrapment may want an informant to testify, or may want to delve into the occasion surrounding his arrest; a defendant may want to have the opportunity to question the informant to see if informant has testimony that would aid defendant's cause.

(4) To permit a defendant to adequately cross-examine and impeach an informant who will be a witness against him in trial proceedings. This desire is in accord with a defendant's sixth amendment right to confront witnesses against him.

It is important not to confuse the statement of one court dealing with a request for identity under defendant's reasons one and two, with the more crucial request under reason four.

In Florida a defendant's request for identity under the stated reasons one and two are often denied. In Treverrow v. State, 194 So.2d 250 (Fla.1967), the Supreme Court held that an informant whose tip led to a Search warrant did not have to be revealed because the warrant was otherwise bolstered by personal observation of a police officer. The burden in that instance is heavy on the defendant:

'the burden is on the defendant claiming an exception to the rule to show why an exception should be invoked.'

This opinion also encompassed, partially, the stated reason three, as it noted that disclosure of the informant would not aid in the defendant's defense.

In Harrington v. State, 110 So.2d 495 (Fla.App.1st 1959), a similar decision was had concerning an informant's identity when his lead led to a search warrant. Likewise, State v. Katz, 295 So.2d 356 (Fla.App.4th 1974).

In conclusion on these reasons one, two and three, Florida authority is in accord with Federal authority on informant identity when informant gave a tip leading to a warrant, to a warrantless arrest and search and where defendant wants informant testimony. U.S. v. Comissiong, 429 F.2d 834 (2d Cir. 1970); U.S. v. Carneglia, 468 F.2d 1084 (2d Cir. 1972); U.S. v. Gibbs, 435 F.2d 621 (9th Cir. 1970); U.S. v. Malo, 417 F.2d 1242 (2d Cir. 1969); U.S. v. Waters, 461 F.2d 248 (10th Cir. 1972); U.S. v. Winters, 240 F.2d 523 (3d Cir. 1969); U.S. v. Jackson, 384 F.2d 825 (3d Cir. 1967); U.S. v. Danesi, 342 F.Supp. 889 (D.Conn.1972) (an in camera investigation used to see if informant testimony would help defendant); U.S. v. Hurse, 453 F.2d 128 (8th Cir. 1972) (in camera proceeding to see if informant tip was probable cause); U.S. v. Toombs, 497 F.2d 88 (5th Cir. 1974); U.S. v. Alvarez, 469 F.2d 1065 (9th Cir. 1972); Bruner v. U.S., 293 F.2d 621 (5th Cir. 1961); U.S. v. Davis, 487 F.2d 1249 (5th Cir. 1973).

It is most interesting to realize that those authorities dealing with a request by a defendant that informant testify take for granted that, If informant testified, his real identity should or would be revealed. See Roviaro v. U.S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Spataro v. State, 179 So.2d 873 (Fla.App.2nd 1965); and Ricketts v. State, 305 So.2d 296 (Fla.App.4th 1974) (in which an informer had to be identified when he was an active participant and the only witness in a position

'to amplify or contradict the testimony of the witnesses for the State.');

Therefore it follows that when a witness testifies for the state, the burden shifts to the State to prove reasons why defendant should not be able to cross examine a witness as to his or her real name and address. There must be some strong state interest. With respect to that state interest, the committee notes to Rule 510 of the Federal Proposed Rules of Evidence, stated:

"If the informer becomes a witness for the government, the interests of justice in disclosing his status as a source of bias or possible support are believed to outweigh any remnant of interest in nondisclosure which then remains. See Harris v. United States, 371 F.2d 365 (9th Cir. 1967), in which the trial judge permitted detailed inquiry into the relationship between the witness and the government." (Emphasis supplied.)

and the proposed rule provided in part:

'(c) Exceptions.

'(1) Voluntary Disclosure; Informer a Witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, Or if the informer appears as a witness for the government.' (Emphasis supplied.)

However, Rule 510 has been deleted in a tentative draft of Federal Rule 5463, dated June 28, 1973, by the Criminal Justice Subcommittee of the House Judiciary Committee. 13 Crim.L.Rep. 3285. See 8 Moore's Federal Practice § 16.06, p. 1694, and supp. 117 (1974 and 1975).

There are no Florida cases which deal directly with a witness who testifies at the behest of the state, but remains unidentified. The Federal cases dealing with this precise problem are limited, but there has been a response to the problem from the U.S. Supreme Court in Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), in which a state witness who was the Principal prosecution witness was required--on cross examination--to reveal his real name and address:

'In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

'. . . In this state case we . . . hold that the petitioner was deprived of a right guaranteed to him under the Sixth and Fourteenth Amendments of the Constitution.' 88 S.Ct. at 750--751.

A concurrence by Justices White and Marshall indicated that, according to Alford v. U.S., 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), questions

'which tend merely to hearass, annoy or humiliate a witness may go beyond the bounds of proper cross examination.'

Courts interpreting this clause have included in this genre questions that would tend to endanger the personal safety of the witnesses. This statement in the concurring opinion to Smith v. Illinois, supra, has resulted in a plethora of Federal Circuit cases which, in varying degrees, protect a government witness: U.S. v. Crockett, 506 F.2d 759 (5th Cir. 1975) (Address of witness concealed); U.S. v. Smaldone, 484 F.2d 311 (10th Cir. 1973) (Address concealed); U.S. v. La Barbera, 463 F.2d 988 (7th Cir. 1972) (Address concealed); U.S. v. Ellis, 468 F.2d 638 (9th Cir. 1972) (Name and Address concealed); U.S. v. Palermo, 410 F.2d 468 (7th Cir. 1969) (Address concealed, although the court included the statement that: '. . . where there is a threat to the life of the witness, the right of the defendant to have the witness' true Name, address and place of employment is not absolute.'); U.S. v. Varelli, 407 F.2d 735 (7th Cir. 1969) (Address concealed); U.S. v. Crovedi, 467 F.2d 1032 (7th Cir. 1972) (Present names (new aliases) and addresses concealed); see U.S. v. Alston, 460 F.2d 48 (5th Cir. 1972) and U.S. v. McKinley, 493 F.2d 547 (5th Cir. 1974) (in which federal agents who were witnesses had addresses and aliases protected). But simply to aver that a witness is in danger does not automatically protect him from being identified. There are various policy statements made by the courts, designed to show that a defendant must be granted a full right to cross examination. These statements include the following points:

(...