State v. Clark

• Decision Date: 19 June 1990
• Docket Number: No. 89-75-C,89-75-C
• Parties: STATE v. Robert L. CLARK. A.
• Court: Rhode Island Supreme Court

Page 1202

576 A.2d 1202

STATE v. Robert L. CLARK.

No. 89-75-C.A.

Supreme Court of Rhode Island.

June 19, 1990.

James E. O'Neal, Atty. Gen., John J. Hogan, Annie Goldberg, Sp. Asst. Attys. Gen., Jeffrey Greer, Asst. Atty. Gen., for plaintiff.

Richard Casparian, Public Defender, Catherine Gibran, Barbara Hurst, Asst. Public Defenders, for defendant.

OPINION

SHEA, Justice.

This matter is before the Supreme Court on the defendant's appeal from his conviction in Superior Court of robbery. He was sentenced to thirty years at the Adult Correctional Institutions, ten years of which were suspended. We affirm.

On the morning of September 20, 1983, three Providence police detectives, having received a tip of a possible robbery, staked out a pharmacy owned by Norman and Rachel Cabral on Smith Street in Providence. Ms. Cabral testified at trial that the police informed her of the impending robbery and instructed her to give the robber whatever he wanted and then fall to the floor. She also testified that they told her the robber would ask for her ring.

At trial Ms. Cabral testified that at approximately 11 a.m. defendant entered the pharmacy. When she asked if she could help him, he asked for her left hand on which she wore her engagement ring. She refused, but as she stated later she became scared when she saw "something was bubbling out of his shirt * * * it looked like a gun. It was kind of pointy." She said that he then asked her for "the money" and she just gave it to him.

The three police officers each testified. The first to take the stand, Detective McCaughey, essentially corroborated Ms. Cabral's story, but stated that after Ms. Cabral hit the floor he heard a shotgun blast, emerged from his hiding place, and saw defendant running out the front door. He said that the officers pursued him, and caught him in a nearby vacant lot several minutes later.

Officer Pedchenko testified that he also was hiding behind a counter and could not directly observe the register area. He said that he heard defendant demand money but in a calm voice. He stated that he waited for a few seconds after he heard the register ring open and then jumped up with the shotgun. As he climbed over the counter, he said, defendant pushed him back into it, causing the shotgun to go off. He testified that he managed to swing the gun barrel around and hit defendant in the head before he could get out the door. Officer Pedchenko also stated that after ordering defendant to stop several times, he fired a shotgun blast at his feet which brought him to a halt. The defendant apparently dropped or threw the money away before leaving the store, and when he was searched, the detectives found neither money nor a weapon.

The defendant attempted at a pretrial hearing to compel the state to disclose the identification of the informant. During this hearing defendant modified his request and asked the court to require the state to disclose any exculpatory information the informant gave to the police. The trial justice denied the original motion and ruled that the identity of the informant need not be disclosed. He did order the state to furnish any exculpatory evidence to defendant.

After the state had rested, defendant moved for judgment of acquittal which was denied by the trial justice. Defense counsel then made his opening statement in which he stated that he intended to call as a witness Glen Guertin, the alleged informant. Counsel indicated that Guertin would testify as follows: On the morning of September 20, 1983, Guertin drove defendant to the pharmacy so that defendant could obtain money from the sales clerk. When defendant entered the pharmacy Guertin drove off leaving him to the police who were waiting as a result of Guertin's tip. He stated that the motive for Guertin setting up defendant was to avoid returning to jail.

The defendant then attempted to present Guertin as a witness, a move the state objected to on the grounds that Guertin's testimony was irrelevant unless defendant testified. The defense made an offer of proof that Guertin, an acquaintance of defendant, had told defendant that the clerk was "his lady," that Guertin did not want to be seen by her husband and that she had money for him. This testimony would support defendant's contention that he had been set up and would refute the state's assertion that he had taken the money by force and fear, thereby eliminating a necessary element of the crime of robbery. At a hearing out of the jury's presence, however, Guertin refused to confirm defendant's offer of proof. Guertin asserted his Fifth Amendment privilege in response to most of the questions. He admitted only that he knew defendant and Detective McGurn of the Providence police. He denied having told defendant that Ms. Cabral, the sales clerk, would willingly give him the money; that he had told the detective that a robbery would take place; or that he was with defendant on the day of the robbery. He also denied having told defendant that the black-haired woman in the pharmacy was "his lady" or that he did not want to be seen by her husband.

At the close of the hearing, defense counsel asked the court either to order the state to seek immunity for Guertin, or to confer judicial immunity on him so that reliable testimony could be elicited. ¹ The trial justice refused to order the state to seek immunity, giving as his reason that such action is the responsibility of the Attorney General and should not be interfered with by the court. He also declined to confer immunity himself because there is no provision in our law for such action by a trial justice. The trial justice observed that the story defendant had told his counsel was not necessarily true and that defendant himself was in the best position to testify to his own state of mind. As a result the jury did not hear any testimony in support of defendant's defense because defendant then rested. He did not at that time renew his motion for a judgment of acquittal.

On appeal defendant argues that the trial justice committed reversible error when he refused to order the disclosure of the informant's identity or the information communicated to the police. In support of his contention that disclosure was appropriate defendant argues that the informant's testimony would have established that he did not have the required mental state to commit robbery.

When determining whether disclosure of an informant's identity is appropriate, the trial court is guided by the following principles:

"[N]o fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." State v. Souza, 425 A.2d 893, 896 (R.I.1981) (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639, 646 (1957)).

As a general rule the public interest in effective law enforcement requires that the identity of confidential government informants be withheld. State v. Lanigan, 528 A.2d 310, 316 (R.I.1987). The decision to compel disclosure by the state rests within the sound discretion of the trial court. State v. Souza, 425 A.2d at 897. In instances where the informant takes no active role in the commission of the crime, disclosure of his identity is not justified. When the informant actively participates in the crime or is present at its commission, disclosure may in some instances be appropriate. Id. at 896. However, regardless of the informant's involvement, defendant must demonstrate that the informer would have offered testimony helpful to the defense in order to compel disclosure. Id. at 897.

Assuming that defendant's version of the events of September 20, 1983 is true, Guertin would have to had at least planned the crime and would have had to have driven defendant to the scene. Although such information may weigh in favor of disclosure of the informant's identity, defendant must also establish that disclosure would yield testimony that would be of assistance at trial.

The record indicates that his offer of proof...