People v. Bueno, s. 81SA537

• Decision Date: 21 June 1982
• Docket Number: 81SA538,Nos. 81SA537,s. 81SA537
• Citation: 646 P.2d 931
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Frank Emilino BUENO, Defendant-Appellee, and George Joseph Archuletta, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 931

646 P.2d 931

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Frank Emilino BUENO, Defendant-Appellee and George Joseph Archuletta, Defendant-Appellee.

Nos. 81SA537, 81SA538.

Supreme Court of Colorado, En Banc.

June 21, 1982.

Alexander M. Hunter, Dist. Atty., Peter Michael Maguire, Boulder, for plaintiff-appellant.

No appearance for defendants-appellees.

QUINN, Justice.

The People appeal from the district court's order dismissing the charge of aggravated robbery, section 18-4-302(1), C.R.S.1973 (1978 Repl.Vol. 8), ¹ against the defendants, Frank Emilino Bueno and George Joseph Archuletta. A confidential informant allegedly told a police officer that the defendants had participated in an armed robbery and the court ordered the People to disclose the name of the informant to the defendants or face dismissal of the actions. The People refused to disclose the informant's identity and the court dismissed the case with prejudice. We reverse the judgment and remand to the district court with directions to reinstate the case.

I.

On May 15, 1981, Detective Dave Allen of the Boulder Police Department filed affidavits in support of arrest warrants for the defendants. ² The affidavits, which constitute the foundation for the order of disclosure here in issue, recited the following facts. On March 18, 1981, at approximately 9:00 p. m., an armed robbery occurred in the Denver Dry Goods Store in Boulder, Colorado. As the store was being closed an employee, Leslie Thompson, notified the manager, David Holbrook, that there were two men loitering in the vicinity of the general office. Shortly afterwards another employee, Kim Zeren, who worked in the jewelry department, approached the office with two briefcases containing jewelry from the display counters. Mr. Holbrook observed two males follow her into the office. When Ms. Zeren handed the cases to Leslie Thompson for storage in the store safe, one of the men produced a semi-automatic handgun and announced, "This is a hold-up." Mr. Holbrook described this man as a Spanish-American male, approximately 35 years of age, 5 feet 7 inches tall, wearing mirrored sunglasses and with a thick black mustache. The second man also produced a handgun. Ms. Zeren described this individual as a Spanish-American male, approximately 30 years old, 5 feet 6 inches tall, and with a black mustache. Two other employees, Christina Goodwin and Judith Verdon, entered the office during the robbery and all four employees were told to lie down on the floor. One of the robbers removed items from the safe, gave them to his accomplice, and then both men left the store. An inventory conducted after the robbery showed that $177,344 in jewelry and $6,272 in cash had been taken from the safe.

On March 19 Detective Allen arranged for the Denver Dry Goods employees to meet with a police department artist to compile composites of the two suspects. He also contacted several Denver area law enforcement agencies for assistance in investigating the crime. Among those contacted was Officer Daril Cinquanta of the Denver Police Department.

On May 13, 1981, Officer Cinquanta phoned Detective Allen and told him that he had met with a confidential informant who supplied him with information about the Boulder robbery. The affidavit of Detective Allen recited:

"Officer Cinquanta stated that he had just met with a Confidential Informant and that his informant had supplied Officer Cinquanta with information about some person who talked to the Confidential Informant of doing a robbery in Boulder in the middle of March 1981 and obtaining jewelry and cash. Officer Cinquanta told Affiant that the informant told Officer Cinquanta that the person stated that semi-automatic pistols were used and that the employees were made to lie down on the floor while this person and another person emptied the safe and carried jewelry out of the store in briefcases and that a third person drove the getaway car. Officer Cinquanta stated to the Affiant that the Confidential Informant stated to Officer Cinquanta that the persons involved in the above acts were known to the Confidential Informant or identified to the Confidential Informant as George Archuletta and Frank E. Bueno; and that Eddie Jiron had driven the getaway car. Officer Cinquanta told Affiant that the Confidential Informant told Officer Cinquanta that the person told the Confidential Informant that Archuletta and Bueno, and Jiron, had mustaches at the time of the robbery; but to change their appearances, Archuletta and Bueno shaved off their mustaches right after the robbery."

The affidavit further recited that the informant had worked for Cinquanta for five years and had provided him with information leading to the arrest and convictions of persons for aggravated robbery, burglary and narcotics offenses.

On May 14, 1981, Detective Allen personally met with Officer Cinquanta who showed him mug-shots of Archuletta, Jiron and Bueno obtained from the records of the Denver Police Department. The photographs of Archuletta and Jiron were taken on May 3, 1981, after their arrest for aggravated robbery, and Archuletta's photograph did not depict him wearing a mustache. The photograph of Bueno was taken on April 23, 1981, when he was arrested for interference with a police officer, and showed him with a mustache. Officer Cinquanta told Detective Allen that the informant had identified the subjects in the photographs as the three persons involved in the Denver Dry Goods robbery.

Detective Allen on May 14, 1981, assembled a photographic lineup composed of photographs of the defendant Bueno and five other males similar in appearance. Leslie Thompson positively identified Bueno's photograph as that of the person who confronted her in the safe area of the office during the robbery. On May 21, 1981 Detective Allen obtained a police photograph of the defendant Archuletta taken by the Denver Police Department on May 13, 1981, showing Archuletta with approximately a week's growth of mustache and beard. Detective Allen showed this photograph to a Boulder Police Department artist, who filled in the mustache and blocked out other facial hair. The touched-up photograph was placed in a photographic lineup with five other males of similar appearance, and on May 28 David Holbrook made a photographic identification of Archuletta as one of the robbers. ³ The following day Kim Zeren viewed the same photographic lineup and also identified Archuletta as one of the robbers. On the basis of the above information arrest warrants were issued for the defendants Bueno and Archuletta.

The defendants were arrested and charged with the March 18, 1981, Boulder robbery. After pleading not guilty both defendants filed motions for the disclosure of the name and address of the informant alleged in the affidavits. They asserted that the informant, as a potential witness to the robbery, could provide testimony essential to a fair determination of the merits of the case. A hearing was held on the motion. The defendants presented no evidence in support of their respective motions. Instead, their attorneys argued that the informer related such specific information about the robbery that "he must be considered as having been there" and, as such, was a potential source of exculpatory evidence to the defendants, both of whom claimed they were misidentified as the perpetrators of the robbery. ⁴ Additionally, defense counsel argued that Officer Cinquanta's statement to the affiant, Detective Allen, about an informer had been fabricated and, in this connection, advised the court that administrative action had been taken by the Denver Police Department against Cinquanta for allegedly falsifying an affidavit in another case.

After hearing argument the court ruled that the following factors justified an order of disclosure: the possibility of misidentification; the possibility of the informant being a witness to the robbery; and Officer Cinquanta's lack of credibility as a reliable source of information to Detective Allen. The court ordered the People to disclose the informant's identity to the defendants by 5:00 p. m. or, in the alternative, to suffer a dismissal of the charges. Officer Cinquanta declined to reveal the name of his informant and, when the court was so advised by the prosecution, it entered an order of dismissal with prejudice. The People thereafter filed this appeal pursuant to section 16-12-102, C.R.S.1973 (1978 Repl.Vol. 8). ⁵

The People argue that the court's order of disclosure is not supported by the record and, even if disclosure was appropriate, the court should have considered a less drastic alternative to dismissal upon the prosecution's election not to disclose. Because we conclude that the defendants failed to establish an adequate basis in fact to support an order of disclosure, we need not address the question whether a remedy short of dismissal was a more appropriate sanction for nondisclosure.

II.

The informer privilege is in reality the government's qualified privilege to withhold from disclosure the identity of persons who furnish information of crimes to law enforcement officers. E.g., Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The privilege recognizes the general obligation of citizens to communicate their knowledge of crimes to law enforcement officials and, at the same time, encourages that obligation by protecting their anonymity under appropriate circumstances. The privilege, however, is not absolute and must be administered in consideration of other significant and competing interests. Thus, where the disclosure of an informer's identity, or of the contents of his communication, would be relevant and helpful to the defense of an accused, or would be essential to a fair determination of a cause, the privilege generally should yield. Roviaro v. United States, 353 U.S. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d at 645. We have employed...