State v. Diaz

• Decision Date: 31 July 1996
• Docket Number: No. 95-730,95-730
• Citation: 678 So.2d 1341
• Parties: 21 Fla. L. Weekly D1721 The STATE of Florida, Appellant, v. Mauricio P. DIAZ and Cesar Ubillus, Appellee.
• Court: Florida District Court of Appeals

Page 1341

678 So.2d 1341

21 Fla. L. Weekly D1721

The STATE of Florida, Appellant, v. Mauricio P. DIAZ and Cesar Ubillus, Appellee.

No. 95-730.

District Court of Appeal of Florida Third District.

July 31, 1996.

Robert A. Butterworth, Attorney General and Mark Rosenblatt, Assistant Attorney General, for appellant.

Leonard F. Baer and David Abrams, Coral Gables, for appellee.

Before GODERICH, GREEN and FLETCHER, JJ.

GREEN, Judge.

The State of Florida appeals an order dismissing this case against appellees Mauricio Diaz and Cesar Ubillus. The trial court dismissed the information when the state refused to produce a confidential "tipster" for the court's in camera inquiry about whether the tipster had potentially beneficial information for the defense. We affirm the dismissal as to Diaz but reverse as to Ubillus.

Diaz, Ubillus and three other codefendants--William Jesus Rodas, Yadher Reyes, and Alberto Martin Flores--were charged by information with trafficking and conspiring to traffic in 400 grams or more of cocaine. Two of these other codefendants pled guilty and became state witnesses against Diaz and Ubillus. A recitation of the undisputed facts before the trial court is necessary. All of such facts are based upon the sworn testimony of the state's witnesses during discovery.

This case began when a "tipster" told a documented police confidential informant that the tipster knew someone who wanted to sell 15 kilos of cocaine. The tipster was acquainted with the documented police informant but the tipster was not a documented police informant. ¹ Upon receiving this information, the confidential informant relayed the same to the state's lead detective in this case, K.A. Halburian. Detective Halburian and other police officers thereafter devised a plan for the purchase of the cocaine. Throughout the course of this investigation, Halburian never ascertained the identity of the tipster. Nor did Halburian and the other police officers ever ascertain the identity of the individual referred to by the tipster as the seller or source of the cocaine. ² Indeed, to date, none of the state's witnesses can testify whether any of the individuals arrested and charged in this prosecution includes the person referred to by the tipster to the police informant.

After other police officers met with both the confidential informant and the tipster, a detective Fernandez, acting in an undercover capacity, arranged for the purchase of the cocaine in the front yard of a particular home. Diaz never negotiated or spoke with detective Fernandez about the proposed drug transaction. Diaz was not an occupant in the car which transported the cocaine in an opaque cookie tin to the meeting site with the undercover officers. Further, Diaz was not present at the scene when the transaction was consummated, the cocaine was seized and the codefendants were arrested.

At or about the time of the transaction, Diaz was observed at a nearby convenience store having at least two conversations with codefendant Flores. Flores testified that he never had any discussions about the drug sale with Diaz but Diaz was present when Flores spoke with codefendant Rodas about the deal.

Rodas, who pled guilty and became a witness for the state, is the only witness to point to Diaz as the source of the cocaine. Specifically, Rodas testified that prior to the transaction with the police, Diaz stated that he had 2 kilograms of cocaine to sell. Rodas testified that he then contacted codefendant Ubillus, who in turn contacted codefendant Reyes. Rodas further testified that he brought Diaz to a meeting with Reyes and then to a subsequent meeting with Reyes and Ubillus. Rodas stated that it was at this later meeting that 2 kilograms of cocaine were furnished by Diaz to the other codefendants for the transaction with the undercover police. Rodas testified that the proposed deal was always a 2 kilogram transaction but both detectives Halburian and Fernandez disputed this statement and testified that the deal was always a 15 kilogram transaction.

The trial court specifically found that the deposition testimony of Flores and Reyes ³ contradicted that of Rodas in that neither Flores or Reyes claimed to have received cocaine from Diaz nor did they claim to have met Diaz for the purpose of orchestrating or discussing the proposed drug transaction.

It is against this factual backdrop adduced during discovery that Diaz filed his motion to compel disclosure of the identity of the tipster. Diaz's sworn proffered defense to this action was that of mere presence. Diaz reasoned that if the tipster identified someone else as being the seller or source of the cocaine, his defense would be substantially bolstered at trial. Ubillus never proffered any defense nor did he file a separate motion to compel. Ubillus merely adopted Diaz's motion to compel in an unsworn motion.

At the hearing on this motion, the trial court ruled that the defendants could redepose detective Halburian to inquire of the identity of the tipster. When the detective was redeposed, he stated that he did not know the tipster's identity and refused to acquire such knowledge from the confidential informant. Thereafter, Diaz filed a second motion to compel the identity of the tipster which was also adopted by Ubillus. Diaz argued, among other things, that the tipster's identity was necessary because of the conflicting testimony among the state's witnesses as to the source and amount of the drugs. Diaz reasoned that he needed the tipster for a determination of whether the tipster could corroborate any of the testimony from the state's conflicting witnesses. The trial court partially granted the motion and ordered the state to produce the tipster for an in camera inquiry by the court so that the court alone could make a preliminary determination of whether the tipster had any exculpatory information for the defense. ⁴ When the state refused to procure the tipster even for this purpose, the court dismissed the case and this appeal ensued.

The state argues on this appeal that the defendants did not meet their burden of overcoming the state's limited privilege of the nondisclosure of its confidential tipster.

The state, without question, enjoys a limited privilege to withhold the identity of its confidential informants. State v. Hassberger, 350 So.2d 1, 2 (Fla.1977); Treverrow v. State, 194 So.2d 250, 252 (Fla.1967); State v. Zamora, 534 So.2d 864, 867 (Fla. 3d DCA 1988); Spataro v. State, 179 So.2d 873, 878 (Fla. 2d DCA 1965); State v. Hardy, 114 So.2d 344, 346 (Fla. 1st DCA 1959); Harrington v. State, 110 So.2d 495, 497-98 (Fla. 1st DCA), appeal dismissed, 113 So.2d 231 (Fla.1959). The sound public policy reason behind this privilege was succinctly articulated in the seminal case of Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644 (1957) wherein the United States Supreme Court stated:

The purpose of the privilege [of nondisclosure] is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

The state's privilege, however, is not without exception and must yield "[w]here the disclosure of an informer's identity, or 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." 353 U.S. at 60-61, 77 S.Ct. at 628; see also Hassberger, 350 So.2d at 2; Zamora,...