State v. Farlow

• Decision Date: 24 May 2007
• Docket Number: No. 32012.,32012.
• Citation: 144 Idaho 444,163 P.3d 233
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Martin R. FARLOW, Defendant-Appellant.
• Court: Idaho Court of Appeals

163 P.3d 233

144 Idaho 444

STATE of Idaho, Plaintiff-Respondent, v. Martin R. FARLOW, Defendant-Appellant.

No. 32012.

Court of Appeals of Idaho.

May 24, 2007.

Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Daniel W. Bower, Deputy Attorney General, Boise, for respondent.

PERRY, Chief Judge.

Martin R. Farlow appeals from his judgment of conviction for four counts of delivery of a controlled substance and two counts of possession of a controlled substance. Specifically, Farlow asserts the district court erred in failing to conduct an in-camera examination to determine if a confidential informant had relevant and useful information. For the reasons set forth below, we affirm Farlow's judgment of conviction but remand his case for further proceeedings.

I. FACTS AND PROCEDURE

An undercover police agent conducted several controlled methamphetamine purchases from B.W. who, at the time, was living with Farlow. Initially, the purchase of methamphetamine by the agent was facilitated by a confidential informant (C.I.) who introduced the agent to B.W. and was present during the first purchase. The C.I. accompanied the agent on a second meeting with B.W., but was not present for the actual purchase of methamphetamine. Thereafter, the agent contacted and purchased drugs directly from B.W. without the C.I.'s involvement.

Eventually, the agent arranged a controlled purchase directly with Farlow. However, before the purchase from Farlow was made, the police obtained a search warrant for his residence and vehicles. The search yielded methamphetamine, cocaine, marijuana, and drug paraphernalia. Farlow and B.W. were arrested. Farlow was charged with four counts of delivery of a controlled substance, I.C. § 37-2732(a)(1)(A), and two counts of possession of a controlled substance, I.C. § 37-2732(c). B.W. was similarly charged and pled guilty. Pursuant to B.W.'s plea agreement, she agreed to testify that Farlow was providing her with drugs to sell. B.W.'s testimony supported the state's case against Farlow on the four delivery charges.

Prior to trial, Farlow moved the district court to compel the state to disclose the identity of the C.I. who had introduced the agent to B.W. Farlow's motion argued the C.I. may be able to give testimony relevant to B.W.'s history of illegal drug activities prior to becoming involved with Farlow. In response, the state moved for an order protecting the identity of the C.I. The district court denied Farlow's motion and granted the protection order. At the conclusion of trial, a jury found Farlow guilty of all counts. The district court imposed concurrent unified terms of ten years, with minimum periods of confinement of two years, for the four counts of delivery of a controlled substance and concurrent unified terms of seven years, with minimum periods of incarceration of two years, for the two counts of possession of a controlled substance. Farlow appeals.

II. ANALYSIS

On appeal, Farlow asserts the district court erred in failing to hold an in-camera proceeding to determine whether the C.I. could provide relevant testimony that would require disclosure of the C.I.'s identity. Farlow also contends an in-camera review was required by the United States Constitution and the comparable protections of the Idaho Constitution.

Idaho Criminal Rule 16(f)(2) requires the disclosure of a confidential informant's identity if the informant will be a witness at any proceeding or upon order of the court. Idaho Rule of Evidence 509 provides the state with a qualified privilege to refuse to disclose the identity of a confidential informant who is not providing testimony. See State v. Wilson, 142 Idaho 431, 434, 128 P.3d 968, 971 (Ct.App.2006). The nondisclosure policy embodied in I.R.E. 509 exists to preserve anonymity and encourage citizens to communicate their knowledge of criminal activities. State v. Hosey, 132 Idaho 117, 119, 968 P.2d 212, 214 (1998); Wilson, 142 Idaho at 434, 128 P.3d at 971. However, the state's interest in keeping a confidential informant's identity secret must give way if the informant possesses information that is relevant and helpful to the accused. Hosey, 132 Idaho at 119, 968 P.2d at 214; Wilson, 142 Idaho at 434, 128 P.3d at 971. When a defendant seeks the identity of an informant by asserting the informant possesses relevant and helpful evidence, and the state invokes its qualified privilege in response, the rights of the parties and the procedures to be followed are provided in I.R.E. 509(c)(3), in pertinent part:

If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the informed public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony . . . If the court finds there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief . . .

The decision to hold an in-camera examination to determine if the informant can provide such testimony is left to the discretion of the district court. Hosey, 132 Idaho at 119, 968 P.2d at 214. When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multitiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

Under I.R.E. 509(c)(3), the defendant must initially make a threshold showing that the informant may be able to give testimony relevant to any issue. Wilson, 142 Idaho at 435, 128 P.3d at 972. Idaho Rule of Evidence 509(c)(3) then requires a trial court to conduct an in-camera examination if it appears that the informant is able to give testimony relevant to any issue. Wilson, 142 Idaho at 435, 128 P.3d at 972. In order to remain consistent with the applicable legal standards of I.R.E. 509(c)(3), once the trial court has concluded the defendant meets the initial threshold showing, it must then conduct the in-camera examination. See id. Therefore, when reviewing a trial court's discretionary decision to conduct, or not conduct, an in-camera examination, we consider the boundaries of the district court's discretion to be limited to determining if the defendant meets the initial threshold showing. Once the in-camera examination has been conducted, the decision to disclose the identity of the confidential informant is also committed to the discretion of the trial court. Hosey, 132 Idaho at 119, 968 P.2d at 214; Wilson, 142 Idaho at 435, 128 P.3d at 972.

We note also that conducting an in-camera examination is preferred as it provides an opportunity for the state to show that the informant's knowledge is not of such relevance that disclosure should be ordered. Wilson, 142 Idaho at 435, 128 P.3d at 972. As the Idaho Supreme Court explained in Hosey, which we reiterated in Wilson, it is desirable and proper to hold such a hearing before ordering or denying disclosure. Hosey, 132 Idaho at 119, 968 P.2d at 214; Wilson, 142 Idaho at 435, 128 P.3d at 972. Therefore, the threshold requirement is low and a defendant need only make a showing that the C.I. may be able to give testimony relevant to any issue. See I.R.E. 509(c)(3); Wilson 142 Idaho at 435, 128 P.3d at 972.

In Wilson, a confidential informant was the only individual who received methamphetamine from the defendant during a controlled transaction covertly monitored by the police. None of the police officers monitoring the transaction could actually identify the defendant as they could not clearly see the individual the informant was dealing with. The defendant was charged with delivery of a controlled substance. The trial court denied the defendant's motion to disclose the identity of the informant pursuant to I.R.E. 509(c)...