Monserrate v. State, 69--559
| Decision Date | 03 March 1970 |
| Docket Number | No. 69--559,69--559 |
| Citation | 232 So.2d 444 |
| Parties | Raul MONSERRATE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Meyer M. Brilliant, P.A. and Frank Kreutzer, Miami, for appellant.
Earl Faircloth, Atty. Gen., and Melvin Grossman, Asst. Atty. Gen., for appellee.
Before PEARSON, C.J., and BARKDULL and HENDRY, JJ.
The appellant was found guilty of the unlawful possession of a narcotic drug and sentenced to three years imprisonment. On appeal he has presented eleven points. Four of the points urged, if well founded, would constitute independent grounds for discharge of the appellant. None of these points is well founded. Each of the seven remaining points, if well founded, would constitute independent grounds for a new trial. One of these points claims prejudicial error in a procedural ruling of the trial court and is in our opinion well founded.
The trial court refused to require the state to divulge to the appellant the name of an important witness whom the state alleged acted with the police in the events leading to the appellant's arrest. This refusal is not in conformity with the law. It resulted in a failure to give the appellant a fair trial. We therefore reverse the judgment and remand the cause for a new trial.
Appellant was arrested on September 19, 1968, for offenses he allegedly committed on July 9, 1968. An information charged him (1) with the unlawful sale of heroin and (2) with the unlawful possession of heroin. Prior to trial appellant moved for and secured from the state a statement of particulars. The state's answer, among other things, informed the appellant of the time and place of 'the offense' and also declared: 'The defendant sold Heroin to Detective Uher, who was with a confidential informant, on the date, time and place set forth above.' Appellant, before trial, orally presented a motion for the name of the 'confidential informant.' 1 The court reserved ruling on the motion. At trial Detective Uher testified in substance that appellant sold heroin to the 'confidential informant', who then gave the heroin to Uher. At various times during the trial defense counsel urged that the identity of the unnamed person be revealed so he could be examined to determine whether he did what Uher said he did. The court refused to order the state to reveal that person's identity. The state did not call that person to testify. The court found appellant not guilty of unlawful sale of heroin but found him guilty of unlawful possession of heroin.
The fundamental question of fact before the trial court was this: did the unnamed person referred to at trial receive heroin from the appellant on July 9, 1968? Since the court found the appellant not guilty on the sale charge but guilty on the possession charge it is reasonable for us to conclude that the trial court based its not guilty finding on a fatal variance between the charge outlined in information and the proof offered by the state. That is, the state charged sale to one person, Detective Uher, and offered proof concerning sale to another person. Therefore since the court found that appellant guilty on the possession charge, it must have answered affirmatively the factual question stated above. In doing so without granting appellant's motion to have the state furnish appellant with the identity of the person to whom the initial transfer of heroin was allegedly made the court deprived the appellant of the opportunity of questioning that person, which opportunity was a vital step in preparing a defense against the accusations. According to the proof presented by the state the unnamed witness had the most intimate knowledge of the criminal acts the appellant was accused of having committed. The following quotation is a concise statement of the importance of that knowledge to the defense:
'Under the Code of Ethics the attorney for the appellant not only had the right but it was his plain duty to interview and examine as many as possible of the persons who were supposed to know the facts, so as to be able to ascertain the truth concerning the charge in controversy and to prepare his defense thereto.' Mathews v. State, Fla.1950, 44 So.2d 664, 669.
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State v. Zamora
...illegal drugs to the subject informant, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Monserrate v. State, 232 So.2d 444 (Fla. 3d DCA 1970), or where the state calls the confidential informant as a witness at trial, Hassberger v. State, 350 So.2d 1 (Fla.1977), o......
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Grimes v. State, 74--863
...Ferguson, 162 U.S. U.S.App.D.C. 268, 498 F.2d 1001, 1974; United States v. Barnett, 418 F.2d 309, 6 Cir. 1969; see also Monserrate v. State, Fla.App.1970, 232 So.2d 444; English v. State, Fla.App.1974, 301 So.2d 813. These cases illustrate some of the instances where the interest of the acc......
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State v. Diaz
...The State does not dispute that Diaz's mere presence defense is a valid defense to this prosecution.6 Zamora cites Monserrate v. State, 232 So.2d 444, 445 (Fla. 3d DCA 1970) (disclosure required where the defendant is charged with selling or delivering illegal drugs to confidential informan......
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State v. Jones
...to have a fair trial are rulings which must of necessity rest upon the broad discretion of the trial court. Compare Monserrate v. State, Fla.App.1970, 232 So.2d 444; Mathews v. State, Fla.1950, 44 So.2d 664; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); with War......