State v. Allen, 6953-5-I

• Decision Date: 04 August 1980
• Docket Number: No. 6953-5-I,6953-5-I
• Citation: 27 Wn.App. 41,615 P.2d 526
• Parties: STATE of Washington, Respondent, v. Phyllis Marie ALLEN, Appellant.
• Court: Washington Court of Appeals

Page 41

27 Wn.App. 41

615 P.2d 526

STATE of Washington, Respondent, v. Phyllis Marie ALLEN, Appellant.

No. 6953-5-I.

Court of Appeals of Washington, Division 1.

Aug. 4, 1980.

As Modified Aug. 7, 1980.

Robert J. Wayne (on appeal only). Cheri Filion, Joseph A. Breidenbach, Seattle, for appellant.

Norm Maleng, King County Pros. Atty., Gregory Canova, Deputy Pros. Atty., Seattle, for respondent.

RINGOLD, Judge.

The defendant, Phyllis Marie Allen, appeals from a judgment and sentence for possession of narcotics. The sole assignment of error relates to the failure of the trial court to order either disclosure of the State's confidential informant or an in camera hearing.

On February 13, 1978, a confidential informant entered an apartment in Seattle where he observed a sale of heroin by a person named "Tree" and an unidentified third person. On the basis of the informant's observations, on February 14 a search warrant was obtained. The search turned up valium and heroin and the police arrested Ms. Allen and Mr. Rountree, presumably the person previously referred to as "Tree."

Before the criminal motions judge, the defendant moved for disclosure of the confidential informant, but failed to request an in camera hearing. Shortly thereafter the court denied the motion. ¹ There was no evidentiary hearing, in camera or otherwise. Thereafter the trial was held before another judge sitting without a jury.

Allen argues that the informant was a material witness; since the State's case against her was based upon constructive possession, any information that might show ownership or possession of such testimony, the trial court must at least conduct an in camera hearing to assess the testimony. State v. Harris, 91 Wash.2d 145, 588 P.2d 720 (1978); State v. Burleson, 18 Wash.App. 233, 566 P.2d 1277 (1977); Conceding that the informant might be able to testify that another person had actual possession of some of the drugs, the State contends that no case authority makes an in camera hearing mandatory. Further, the State urges that this court cannot decide whether disclosure was improperly denied because at the omnibus hearing counsel failed to request an in camera hearing.

Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

CONSTITUTIONAL ISSUE

Ordinarily an issue raised for the first time on appeal will not be addressed by the appellate court. State v. Jamison, 25 Wash.App. 68, 75, 604 P.2d 1017 (1979). When the alleged error is the abridgment of a defendant's constitutional right, however, an appellate court may decide an issue not raised at trial. State v. Wicke, 91 Wash.2d 638, 591 P.2d 452 (1979). We first consider whether a defendant's entitlement to disclosure of an informant is of constitutional stature. If so, failure of defense counsel to request a hearing will not foreclose this court from requiring one.

The basis of Roviaro is that "fundamental requirements of fairness" may require disclosure of a confidential informant.

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.

Roviaro v. United States, supra 353 U.S. at 60-61, 77 S.Ct. at 628.

In an exhaustive analysis, a commentator has noted:

Even if one reads Roviaro as based on the Court's supervisory jurisdiction over the lower federal courts M. Bewers, Defendant's Right to a Confidential Informant's Identity, 40 La.L.Rev. 147, 158-59 (1979). The Fourteenth Amendment constitutional requirement of due process has been equated to basic concepts of fairness. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941). A writ of habeas corpus which must be based on a constitutional infringement, ³ was granted for failure to order disclosure in Hernandez v. Nelson, 298 F.Supp. 682, 685-87 (N.D.Cal.1968), aff'd on appeal, 411 F.2d 619 (9th Cir. 1969). See also United States ex rel. Drew v. Myers, 327 F.2d 174, 180-81 (3d Cir. 1964), cert. denied, 379 U.S. 847, 85 S.Ct. 88, 13 L.Ed.2d 52 (1964).

Roviaro's reasoning and language suggest that the decision was constitutionally compelled. Having concluded that the government has a significant interest in preserving the confidentiality of its sources of information to support a federal "informer privilege," the Court found that the scope of such a privilege does not extend so far as to allow concealment of exculpatory testimony. As noted by Westen: ² "(W)hile the Court defined the scope of the federal privilege on nonconstitutional grounds by weighing the two conflicting interests, one of those interests giving the defendant the 'right to prepare his defense' is constitutionally based and would compel the same result on constitutional grounds."

On the basis of fairness as a constitutional requirement of the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) held The principle of Mooney v. Holohan (294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406 (1935)) is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.

that the prosecution's failure to disclose a co-defendant's extra-judicial confession was reversible error. The court reemphasized the importance of fairness to our judicial system:

Brady v. Maryland, supra at 87, 83 S.Ct. at 1197.

CrR 4.7(f)(2) provides that disclosure of the identity of a confidential informant may be required only when "failure to disclose will . . . infringe upon the constitutional rights of the defendant." Yet our Supreme Court has required an in camera hearing for the determination whether disclosure should be required, thus implicitly recognizing the possible infringement of a defendant's constitutional rights by denial of a defense motion to disclose. State v. Harris, supra. ⁴

For these reasons we hold that the inquiry whether a confidential informant's identity must be disclosed to an accused is clothed in a constitutional mantle. Hawkins v. Robinson, 367 F.Supp. 1025 (D.C.Conn.1973).

The constitutional due process character of the disclosure issue brings this case into analogical parallel with cases wherein defense counsel has failed at trial to request a CrR 3.5 hearing for the ascertainment of the voluntariness of custodial statements made by the defendant. In State v. Joseph, 10 Wash.App. 827, 520 P.2d 635, rev. denied, 84 Wash.2d 1006 (1974), the issue of the voluntariness of Joseph's trial counsel at no point requested such a hearing, but his failure to do so does not preclude appellate review because a denial of basic constitutional rights is raised in the asserted errors. . . .

Joseph's custodial statements was raised when the State called an officer to testify regarding custodial statements made to him by the accused. We stated:

The record on appeal does not enable us to determine whether Joseph "knowingly and intentionally" waived a CrR 101.20W (now CrR 3.5) . . . Accordingly, we remand for the purpose of a CrR 101.20W hearing for a judicial determination of "voluntariness." . . . If the trial judge determines that Joseph was not denied his Sixth Amendment right to counsel and that his statements to the detective were given voluntarily and without coercion, the verdict will stand. If not, Joseph will be granted a new trial.

State v. Joseph, supra at 831, 520 P.2d at 637.

Here the issue of disclosure was raised, but an in camera hearing not requested. Because disclosure is a matter of constitutional concern, we hold as in Joseph "(the) failure to do so does not preclude appellate review because a denial of basic constitutional rights is raised in the asserted errors."

IMPORTANCE OF IN CAMERA HEARING

We held in State v. Burleson, supra 18 Wash.App. at 237, 566 P.2d at 1280:

Where, as here, the defendants made a preliminary showing that disclosure of the informant was necessary, an in camera interrogation of the police officer was the appropriate means of satisfying the balancing of interests required by Roviaro, and is authorized by court rule. CrR 4.7(h)(6).

The trial court had conducted an in camera hearing in Burleson. The Harris court remanded for an in camera hearing. Harris, 91 Wash.2d at 152, 588 P.2d at 720.

An in camera hearing as a forum for counterposing an asserted privilege against an evidential need is not new to the law, and is a generally acknowledged device for determining whether a privilege is to be honored. In Jencks v (T)he trial court, before disclosing the privileged material to the defendant, (must) . . . pass on the question by examining in camera the portions claimed to be privileged. Cf. Bowman Dairy Co. v. United States, 341 U.S. 214, 221 (, 71 S.Ct. 675, 679, 95 L.Ed. 879). There is nothing novel or unfair about such a procedure. According to Wigmore, it is customary.

United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), the United States Supreme Court ordered an in camera hearing as a means of determining whether two government witnesses' written reports, allegedly corroborative of their trial testimony, should be disclosed to the defense. In concurrence, Justices Burton and Harlan said:

". . . it is obviously not for the witness to withhold the documents upon his mere...