People v. Thurman
| Decision Date | 05 March 1990 |
| Docket Number | No. 88SA251,88SA251 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Dorothy W. THURMAN; James C. Thurman; and Penny Kay Tyler, Defendants-Appellees. |
| Court | Colorado Supreme Court |
John Suthers, Dist. Atty., and David L. Geislinger, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.
David F. Vela, State Public Defender, and Martin J. Gerra, Deputy State Public Defender, Denver, for defendants-appellees.
The prosecution appeals a judgment of the El Paso County District Court dismissing felony cocaine possession, distribution and conspiracy charges against the defendants, Dorothy W. Thurman, James C. Thurman and Penny Kay Tyler. 1 The prosecution asserts that the trial court abused its discretion in ruling that the defendants' rights to confront the only eyewitness against them, a confidential informant, required that the prosecution comply with the court's order to divulge the witness's address and current place of employment despite the witness's fears for her safety. The trial court ruled that the prosecution's refusal to comply with the disclosure order required dismissal of the charges against the defendants. 2 We affirm.
On December 17, 1987, the district attorney filed an Information in El Paso County District Court charging Dorothy W. Thurman, James C. Thurman and Penny Kay Tyler ("defendants") with felony cocaine possession, distribution and conspiracy counts based on events that allegedly occurred in Colorado Springs between October 26, 1987, and December 2, 1987. The charges against the defendants were based on events surrounding three purported sales of small quantities of cocaine to a confidential police informant, identified as "CI 606," on October 26, November 4, and November 30, 1987. CI 606 was the sole eyewitness to the alleged sales. No police officers witnessed the sales, either in person or through the use of electronic surveillance. CI 606 was endorsed as a potential prosecution witness, but the identity of the witness was not revealed.
Included among the pre-trial motions filed by counsel for each defendant were motions that the prosecution be ordered to reveal the identity, location and criminal history of CI 606. The trial court held several pre-trial hearings to consider defense motions. At the initial hearing on March 25, 1988, the court heard arguments from counsel for two of the defendants, James C. Thurman and Penny Kay Tyler, concerning their motions for disclosure of information about the confidential informants. 3 Counsel argued that the information requested was critical to preparation of each defendant's case, and that their clients' sixth amendment rights to confront the witnesses against them would be compromised without it.
In response, the prosecution offered to make CI 606 available to defense counsel for an interview and to reveal her criminal record, but not her name or address, in lieu of full disclosure, arguing that such a compromise would satisfy the defendants' sixth amendment rights while protecting the witness from the defendants and allowing the police to continue employing her services to secure information. 4 After the trial court expressed its view that the prosecution's proposal was "novel" but "not satisfactory," the prosecution suggested that the court apply a balancing test, weighing the defendants' rights to the information to prepare their cross-examination of CI 606 against the prosecution's desire to maintain her confidentiality. The prosecution repeated its view that the defendants' confrontation rights could be served by permitting the defense to interview CI 606 and later to cross-examine her at trial without disclosing her name or address.
Defense counsel, on the other hand, argued against qualifying the defendants' rights to confront the only eyewitness to the alleged crimes. The trial court elected not to rule on the motion from the bench. On April 4, 1988, before holding a second pre-trial hearing on unrelated matters, the trial court ordered the prosecution to give the defense CI 606's name, "rap sheets" and all other background information known to it, and to make her available for an interview by defense counsel.
The disclosure issue arose again at a June 20, 1988, pre-trial hearing attended by counsel for all three defendants. At that time, counsel for defendant Dorothy W. Thurman informed the trial court that the prosecution had revealed CI 606's name and had allowed an investigator in defense counsel's office to interview her. Counsel stated that during the interview, CI 606 admitted her participation in "a couple of drug treatment programs as of late and [that she] is an addict." The informant stated that she was not "working off any deals," that is, working as a police informant in exchange for the dismissal of criminal charges. CI 606 refused, however, to disclose the results of drug treatment programs in which she had participated.
Based on information gleaned from the interview, the defense requested that the trial court order the prosecution to provide additional information concerning CI 606's credibility. 5 The trial court granted the request in part and denied it in part. The prosecution was ordered to provide the defense with CI 606's "batting average," or percentage of information provided the police department in the past that had proved reliable, with a formal statement that CI 606 had not received any deals in exchange for information, and with information concerning any drug rehabilitation programs in which CI 606 had participated and concerning which the state had any involvement or information. In conclusion, the court ruled that "information available to the prosecution will be required to be shared with the defense."
The prosecution then requested that the trial court enter a specific ruling as to whether its disclosure order encompassed CI 606's current address, employment history and current place of employment, to which the trial court responded, "[i]f you know it, give it to [defense counsel]." The prosecutor initially agreed, but then informed the trial court that CI 606 did not want her employment history revealed. Dorothy W. Thurman's attorney in turn stipulated that counsel for the defendants would not divulge the information to their clients if CI 606's reluctance was based on fears for her safety. The trial court accepted the stipulation and repeated its order that the prosecution make the information known to it or to the police department available to defense counsel, placing defense counsel under an obligation to keep the information to themselves and their investigators and away from their clients.
The prosecution did not disclose the present or prior addresses of CI 606 or the name and address of her employer as required by the disclosure order. Counsel for two of the defendants, Penny Kay Tyler and James C. Thurman, then filed motions to dismiss the Information or, in the alternative, to strike CI 606 from the district attorney's witness list. 6
The trial court considered the motions to dismiss at a hearing held on July 15, 1988. The prosecution explained that its failure to comply with the disclosure order stemmed in part from the police department's refusal to cooperate. The prosecution made an offer of proof that CI 606 feared that harassment, retaliation and embarrassment would result if the information requested were revealed to defense counsel. The prosecution added that defendant Dorothy W. Thurman had a history "indicating a number of assaults, assaultive arrests, aggravated robbery arrest, I believe three felony assault arrests," although none of the assaults had resulted in a conviction, and concluded by urging the trial court to exercise its discretion under Crim.P. 16(I)(e)(2) 7 to disallow the earlier-ordered disclosure.
Defense counsel urged dismissal, arguing that CI 606's address, employment history and current place of employment were critical to obtain information for the purpose of impeaching the witness, and that the relative credibility of CI 606 and the defendants would be the sole issue at trial. The defense pointed out that the prosecution's offer of proof contained no evidence of threats against CI 606, and that the trial court's order that defense counsel keep the information about CI 606 confidential removed any reasonable basis for her fears. The defense further noted the additional safeguard posed by the mandatory restraining order imposed against every criminal defendant in the state under section 18-1-1001, 8B C.R.S. (1986). 8
Before ruling on the motion, the trial court asked the prosecution whether dismissal of the case was the appropriate solution to the dilemma. When the prosecution stipulated that, in absence of a modification of the discovery order to eliminate the requirement of providing the witness's address and place of employment, dismissal would be the appropriate remedy, and did not suggest any less severe remedy, the trial court dismissed the charges against all three defendants. 9
The prosecution maintains that the trial court abused its discretion in dismissing the charges against the defendants upon the prosecution's refusal to disclose CI 606's address and current place of employment to defense counsel. The prosecution points out that a defendant's right to confront adverse witnesses is not absolute, and contends that when, as here, the prosecution refuses to disclose this information due to its witness's fear for her personal safety, the trial court must balance the competing interests of the defendant and the witness before striking the witness or dismissing the charges against the defendant. The prosecution argues that the weight to be given a defendant's confrontation rights varies depending on the materiality of the information sought, and does not concede that information required for impeachment is inevitably...
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