Roberts v. State
| Decision Date | 28 September 1994 |
| Docket Number | No. 23217,23217 |
| Citation | 110 Nev. 1121,881 P.2d 1 |
| Parties | James David ROBERTS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Martin R. Boyers, Las Vegas, for appellant.
Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty. and Gary Guymon, Deputy Dist. Atty., Clark County, for respondent.
Appellant James David Roberts was convicted after jury trial of three counts of sale of a controlled substance and one count of trafficking a controlled substance. The state introduced evidence that Roberts sold cocaine on four occasions to an undercover police officer who had been introduced to Roberts through a confidential informant (CI). Roberts claimed entrapment, alleging that the CI pressured him, by fabricating an elaborate story, into selling cocaine when he had no predisposition to do so.
Roberts moved for a pre-trial order compelling the state to disclose the identity of the CI who arranged the initial "buy," and compelling the state to disclose all information in the possession of the state pertaining to the CI, including specifically the "confidential informant file" (CI file) allegedly compiled by and in the possession of the Las Vegas Metropolitan Police Department (LVMPD). Roberts claimed that the CI file contained information regarding the CI's background, employment and communications that would support an entrapment claim.
Although the state disclosed the identity of the CI, one William Albert Noel, it refused to tender the CI file. After the state refused to produce the CI file, Roberts sought an order dismissing the grand jury indictment for failure to make discovery and Brady 1 disclosures. The district court judge denied the motion. The case proceeded to trial. Roberts requested and received entrapment instructions, but was convicted on the testimony of the officer and the CI. Roberts now challenges the district court's denial of his pre-trial motion to dismiss.
We conclude that once a defendant has articulated a specific basis for claiming materiality of particular evidence that it seeks, that the prosecutor bears the burden of avoiding disclosure by seeking in camera review. We therefore conclude that, in the instant case, the judge could not have ruled correctly on Roberts's Brady claim without having first reviewed the file, which he did not do. Thus, we remand this case to the district court for the limited purpose of conducting an in camera review of the CI file to determine whether it contains evidence material to Roberts's entrapment defense. We further direct the court to make specific findings of fact and conclusions of law with regard to the material in the CI file, and we direct the clerk of the district court to certify those findings and conclusions to this court for ultimate disposition of this appeal. We now address in more detail the factual background of this case and the legal standard for analyzing claimed Brady violations.
On December 14, 1989, a grand jury indicted Roberts on three counts of sale of a controlled substance, cocaine, and one count of trafficking a controlled substance, cocaine. At the grand jury proceeding LVMPD Officer Roy Chandler testified that a confidential informant introduced Chandler to Roberts on July 10, 1989 at Teddy's, a Las Vegas bar, for the purpose of buying cocaine. Chandler bought cocaine from Roberts on that occasion and on three additional occasions in July 1989. The CI was present at only the first meeting.
On April 29, 1991, Roberts moved for an order requiring the state to reveal the identity of the CI. Roberts supported his motion with an affidavit claiming that the CI had concocted an elaborate story to pressure Roberts into dealing cocaine to help the CI out of a dangerous situation. In his affidavit, Roberts swore to the following story: Roberts had moved back to Nevada from California prior to July 10, 1989 and was living with his mother. A person believed to be a police confidential informant solicited and begged Roberts to obtain cocaine for him. Roberts repeatedly refused to become involved with any illegal drug dealing. A few weeks later the CI again pleaded with Roberts to obtain cocaine because the CI had "misdealt" some drugs to a customer of his and the customer had threatened to kill the CI if the CI did not obtain a "replacement" supply of cocaine. The customer was allegedly affiliated with the mafia and the CI was afraid for his life.
Roberts further swore that on July 10, 1989, he was persuaded by the CI to meet the customer at a Las Vegas bar on Teddy Drive. Roberts also swore that "all of [his] actions during the relevant period were done solely for the benefit of the [CI] and for the protection of [the CI's] life," and that "[o]nly after [Roberts] became convinced by the [CI] that [the CI] could not apply to the police for protection and that [the CI] would surely be killed by his drug customer did [Roberts] seek to help the [CI]." Roberts swore that the CI could be cross-examined on these facts and aid his entrapment claim. Roberts also swore that he had made a "diligent effort to learn the identity of the informant and has been unable to locate him." Roberts did not reveal that he had known for years the man who introduced him to Chandler at the bar, and that he knew his name and address, items later revealed in arguing Roberts' motion before the district court judge.
On May 29, 1991, the district court judge orally granted Roberts' motion, ruling that "[t]he motion to require the state to reveal the identity of the [CI] is granted." He then signed a written order, which required the state to disclose the true identity of the CI and to provide all relevant discovery regarding the CI, including his last known address. On June 7, 1991, Chandler telephoned Roberts to disclose to him the name of the CI, and he disclosed Noel's name. Neither Chandler nor the district attorney's office provided any additional or written information.
On June 18, 1991, the district court judge heard arguments regarding the state's failure to disclose additional information. The judge ruled orally at the close of arguments that, After the judge's oral ruling, there was discussion about Roberts intimidating the CI, and Roberts' attorney stated, "But, in any event, we would like to have the C.I. file, we would like to have a rap sheet, we would like to have any criminal involvement that he may have had on or about or surrounding the beginning of this incident." The judge did not respond to the request, but asked, "How long will it take for you to be ready to go to trial?" The judge did not modify his oral order.
The judge then signed a written order on July 2, 1991, prepared by Roberts' counsel, directing "that the District Attorney shall forthwith identify the 'confidential informant' used by the police, and provide Defendant's counsel with full discovery of all information in their files and in the Las Vegas Metropolitan Police Department's files regarding the 'confidential informant', including the file known as the 'CI' file, and a copy of the 'confidential informant's' 'rap' sheet." The state produced Noel's "rap sheet," but refused to produce the CI file.
On September 12, 1991, Roberts filed a Motion to Dismiss the Indictment for Failure of the State to Make Discovery and Brady Disclosures. In its opposition, the state noted that the court had earlier ordered in its oral ruling only the disclosure of the name and address of the CI, and it noted that it had provided Roberts with the CI's "scope" (apparently the "rap sheet"). The state argued that it should not be required to reveal a file containing information "for all cases that the informant has been involved with whether pending or not which are included in his [CI] file." Noel had worked for LVMPD for over nine years.
On September 16, 1991, the district court judge heard arguments on Roberts' Motion to Dismiss and denied it. The following colloquy occurred prior to the judge's ruling:
The district judge did not review the file to determine if it contained information material to Roberts' defense.
Roberts was tried and Chandler and Noel testified for the state at the trial. Chandler testified that Noel informed on Roberts for money, and not to "work off" charges that were pending or threatened at the time Noel was informing. Chandler further testified as follows: Noel called Chandler on July 10, 1989 and told Chandler that Roberts could deal in ounces of cocaine. Noel introduced Chandler to Roberts later that day at "The Place," a bar in Las Vegas on Teddy Drive. After the introduction, Roberts suggested that the men go outside to a car. The three went to Chandler's car, and Roberts pulled a baggie out of his pocket; Chandler gave Roberts $350, and Roberts gave Chandler the baggie containing a quarter ounce of cocaine. Roberts was familiar with drug terminology and, in Chandler's opinion, was experienced in the type of transaction the two were engaged in. Roberts suggested that he and Chandler deal with each other directly in the future instead of going through Noel, because Noel had added $50 to the price of the cocaine for himself, causing Chandler to pay $350 instead of $300 for the amount of cocaine he was buying. After the transaction, Chandler paid Noel $100 for introducing him to Roberts. Over the following week, and...
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