State v. Altamirano
| Decision Date | 13 September 1977 |
| Docket Number | No. 3739,3739 |
| Citation | 569 P.2d 233,116 Ariz. 291 |
| Parties | STATE of Arizona, Appellee, v. Frank Patrick ALTAMIRANO, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel, Lynn Hamilton, Asst. Attys. Gen., Phoenix, for appellee.
Brice E. Buehler, Phoenix, for appellant.
Frank Patrick Altamirano was convicted of possession of a narcotic drug for sale. He appeals. Judgment affirmed.
On May 11, 1976, the police searched the residence of the appellant and his girl friend, Sarah Mungia. A search warrant had been obtained on the affidavit of a Phoenix police detective, Richard K. Hogue, who swore to information related to him by a confidential informant. Forty-eight and eight-tenths grams of heroin were found, part in a dresser drawer in the bedroom and part under an oleander bush at the back of the residence. In the bedroom were both men's and women's clothing and toilet articles.
Appellant, after being advised of his rights, was questioned both in the living room and in the bedroom. Part of the conversation which was held in the bedroom was in confidence as the police solicited appellant to become an informer. That conversation in the bedroom was suppressed by the trial court. In the questioning prior to the confidential conversation, the police officers did not ask appellant if the heroin belonged to him, nor did he specifically admit to its ownership.
Appellant's first claim of error is that the trial court erroneously denied a motion to disclose the identity of the informant. He urges that since the testimony of the arresting police officer revealed the informant was at the scene when the police searched appellant's residence, the informant was a material witness and his identity should have been disclosed. This argument is predicated on the holding by the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). There the Court said:
"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." Id. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d at 645.
The rule in Roviaro has been applied in Arizona to circumstances where the informant is likely to have evidence bearing on the merits of the case, State v. Tuell, 112 Ariz. 340, 541 P.2d 1142 (1975); State ex rel. Berger v. Superior Court, 111 Ariz. 429, 531 P.2d 1136 (1975), and if it is shown that the informant is a witness to the criminal acts or to material facts on the issue of guilt there is no privilege of non-disclosure. State v. Godwin, 106 Ariz. 252, 475 P.2d 236 (1970). If the informant is a witness to the crime charged or to material facts on the issue of guilt, a defendant need not show that the evidence would be favorable nor need he prove that the informant was an eyewitness. He must only show that the informant's testimony might result in exoneration of the accused or that non-disclosure would deprive him of a fair trial. State v. Tuell, supra.
In the present case, while the evidence discloses that the informant was present when the officers searched appellant's home, appellant does not suggest that the informant could possibly testify to facts which would tend to establish who owned or possessed the heroin. Appellant, therefore, did not show that the informant could testify to material facts bearing on the merits of the case or that the non-disclosure would deprive him of a fair trial. State v. Tuell, supra; State ex rel. Berger v. Superior Court, supra.
Appellant contends that the trial court erred by preventing him from asking a crucial question on cross-examination. The matter arose in this manner. Appellant had admitted in the course of the conversation which was suppressed that he had a $40-a-day drug habit. Defense counsel wished to ask Officer Hogue on cross-examination if appellant ever admitted that the heroin belonged to him. The State argues that the officer would have had to take into consideration the contents of the confidential conversation in the bedroom in order to answer the question. Appellant voir dired the officer for an offer of proof, but the officer did not testify that appellant did not admit that the heroin was his. Nor did the offer reveal what, if anything, was said that related to the...
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