State v. Driscoll

• Decision Date: 28 February 1963
• Docket Number: No. 36283,36283
• Citation: 379 P.2d 206,61 Wn.2d 533
• Parties: The STATE of Washington, Respondent, v. Patrick Joseph DRISCOLL, Appellant.
• Court: Washington Supreme Court

Page 533

61 Wn.2d 533

379 P.2d 206

The STATE of Washington, Respondent, v. Patrick Joseph DRISCOLL, Appellant.

No. 36283.

Supreme Court of Washington, Department 2.

Feb. 28, 1963.

Palmer & MacDonald, J. Morrison MacDonald, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Victor V. Hoff, Seattle, for respondent.

HAMILTON, Judge.

The defendant appeals from a conviction of the crime of burglary in the second degree. The sole assignment of error is directed to the trial court's refusal to require disclosure of the identity of an alleged police informer.

Upon the state's case in chief, the evidence revealed the following: About 1:15 a. m., Sunday, May 28, 1961, the defendant was observed and apprehended by police officers inside a Seattle tavern; the front door had been forced and the till drawer was splintered; and the defendant signed the following statement:

'Sometime after midnite May 28, 1961 I left my apt [sic] taking a long screw driver with me. I walked down to the Square Deal Tavern on Stone Way. I used the screw driver to force the padlock & hasp on the front door, then I went in.

'After I got inside I went behind the bar and used the same screw driver to force a locked money drawer, under the till. I was getting the money when the Police came. When I saw the Police I ran to the back room of the tavern and tried to get out a back door, but couldn't. I was caught by the Police inside the tavern.'

During the state's case in chief, upon cross-examination of the state's final witmess, the following occurred:

'Q. Did you have any reason to believe that there may have been more than one person present at the time this alleged crime occurred? MR. HOFF: I will object to anything outside the circumstances surrounding the confession. THE COURT: Overruled. A. The only thing I had to go on would be what he told me. He told me he was alone. Q. You had no other information then, is that true, about this crime? A. Yes, sir, I did. I had been informed by an informant that the tavern was going to be burglarized previous to the burglary. Q. Would you give this Court the name of that informant? MR. HOFF: I will object, your Honor. I think this is outside the scope of the direct, clearly. THE COURT: I will not compel him to answer that question if he desires not to at this time. MR. HOFF: Thank you, your Honor. THE COURT: But the choice will be up to the officer as to whether or not he wishes to answer. Q. (By Mr. MacDonald) The choice is yours. A. I would rather not divulge the source of my information or my informant's name. Q. You would state there was an informant who did have previous knowledge? A. Yes, sir. Q. Did the officers have previous knowledge? MR. HOFF: I will object. Clearly he couldn't know what the officers had. THE COURT: Overruled. You may answer if you know. A. That I don't know. Q. Detective Ramar, could you tell me whether there was more than one informant? A. I got my information from a single informant. Q. Could you tell me whether or not the informant participated in this alleged crime in any way? MR. HOFF: If the Court please, I think we are getting into hearsay again on this basis. THE COURT: Objection overruled. A. It is a rather hard question to answer because I wasn't there to know whether the informant was with him. Q. (By Mr. MacDonald) Well, do you have cause to believe that the informant was with the defendant? A. He had approached my informant to burglarize the place, yes, sir. Q. Do you know when the first meeting took place? A. No, sir, I do not. Q. When did the informant come to you? A. I believe it was on the-- I think it was the day previous. That would be the 26th.' (Italics ours.)

The state rested, and, following defendant's opening statement, the defendant took the stand. He testified in substance, that he had met two men about 10 days before the incident in question; that they proposed, and he agreed to participate with them in, the burglarizing of the tavern in question; that, on the night of May 27-28, 1961, he went with them to the tavern where he and one of them broke and entered; and that immediately following his apprchension by the police, he thought he heard footsteps coming from the back room of the tavern, past him and out the front door.

Neither the defendant nor the state recalled the witness whose testimony is set out above. The defendant did not renew his request for disclosure of the identity of the purported informer.

It is the defendant's contention, in essence, that at the time of the ruling, during the state's case in chief, the trial court should have been aware that the defendant was going to present a defense of entrapment, and that the testimony of the alleged informer would be a material and relevant factor in that defense.

The United States Supreme Court in the case of Roviaro v. United States, 353 U.S. 53, 59, 62, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, in discussing the privilege relating to the disclosure of an informer's identity, states:

'What is usually...