State v. Hernandez

• Decision Date: 04 May 1994
• Docket Number: No. 91-683-C,91-683-C
• Citation: 641 A.2d 62
• Parties: STATE v. Altogracia HERNANDEZ. A.
• Court: Rhode Island Supreme Court

Page 62

641 A.2d 62

STATE v. Altogracia HERNANDEZ.

No. 91-683-C.A.

Supreme Court of Rhode Island.

May 4, 1994.

Jeffrey Pine, Atty. Gen., Aaron L. Weisman, Asst. Atty. Gen., Lauren Sandler Zurier, Asst. Atty. Gen., for plaintiff.

David Cicilline, Providence, for defendant.

OPINION

MURRAY, Justice.

The defendant, Altogracia Hernandez (Hernandez), appeals from a Superior Court jury conviction of possession of heroin with intent to deliver pursuant to G.L.1956 (1982 Reenactment) § 21-28-4.01(A)(2)(a), as amended by P.L.1988, ch. 521, § 1 and § 21-28-2.08. ¹

Hernandez was sentenced to fifteen years of imprisonment with five years to serve. In this appeal Hernandez avers that the trial justice erred by denying her motions requesting; (1) disclosure of the identity of the state's confidential informant, (2) dismissal for lack of a speedy trial, (3) passing the case, (4) judgment of acquittal, (5) a new trial, and (6) a continuance.

The only witness presented at trial was Detective Lawrence Lepore (Lepore) of the special investigation bureau of the Providence police department. The summary of his testimony is as follows. Hernandez's single-family house at 172 Melrose Street was under surveillance from August until late September 1988. After observing the residence for several days during which six to ten adults made short visits, Lepore obtained a search warrant. The affidavit to support the request for the search warrant was based upon information from his own observations and information obtained from a confidential informant. The affidavit stated that the confidential informant had purchased heroin from a "Spanish male" at the Melrose Street house.

Lepore testified that the search of the premises began in the kitchen. In a cabinet containing cooking utensils he found a brown paper bag containing a bottle of quinine and elastic bands. He explained that quinine is used in the packaging of heroin to decrease its purity and increase its volume. In this manner the seller of the heroin can increase his or her profit. Elastic bands are used to wrap packages of heroin into bundles for street distribution.

The next room Lepore searched was what he described as a "spare bedroom" with a "box spring and mattress on the floor, but basically, the room was * * * vacant." He discovered a small closet with its door ajar. On one of the closet's shelves, at eye level, he noticed two packages, both wrapped in Christmas paper and in newspaper. He immediately observed that one of the packages was ripped open, and he saw what he believed were glassine packets of heroin. Lepore testified that he observed the glassine packets before he removed the packages from the shelf. After further analysis the two packages were indeed found to contain 2,490 packets of heroin bundled in a manner conventionally used for street distribution. Lepore estimated that its on-the-street value was between $31,000 and $34,000.

Lepore also discovered $7,800 and two twelve-gauge shotguns with ammunition in a dead-bolt-locked closet in the den of the house. In the master bedroom he discovered a food-stamp voucher issued to Hernandez and a safe-deposit box key. That safe-deposit box was subsequently searched, and it contained $1,250 and two gold rings. He also discovered a briefcase in the bedroom. Lepore searched the briefcase and found Hernandez's identification card from the Dominican Republic, a utility bill issued to Hernandez at the Melrose Street location, and a quitclaim deed conveying the property to Hernandez from William F. Hernandez, her son, on January 26, 1988.

Lepore also testified that he conducted a search of the basement. It had been completely remodeled into a separate apartment, which included a kitchen, a small family room, and two bedrooms. Lepore stated that, relying upon his observations, he felt it "quite obvious that males were residing in those rooms." Lepore testified that he observed various electronic equipment throughout the house and noted that the residence had been extensively remodeled.

Hernandez first contends that the trial justice erred in denying her motion to disclose the identity of the state's confidential informant. She avers that the only person who could testify to the heroin activity at the house was the informant. Hernandez avers that the informant is the only source of reliable, material testimony that could exculpate her. The state avers that since the informant did not play an active role in the crime with which Hernandez is charged, no helpful information would be discovered in disclosing his or her identity.

Generally the public interest in efficient law enforcement requires that the identity of confidential government informants be withheld. State v. Clark, 576 A.2d 1202, 1204 (R.I.1990). The decision to compel disclosure rests within the sound discretion of the trial justice. Id. In making that decision, the trial court must be guided by the premise that

"no 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 [or her] 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." (Emphasis added.) State v. Souza, 425 A.2d 893, 896 (R.I.) (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628-29, 1 L. Ed. 2d 639, 646 (1957)), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123 (1981).

When an informant actively participates in the commission of the crime, disclosure of the informant's identity may be appropriate. Clark, 576 A.2d at 1204. In occurrences in which the informant does not take an active role in the commission of the crime, disclosure is not justified. Id. In this instance the informant's testimony "could only be peripheral." State v. Anil, 417 A.2d 1367, 1371 (R.I.1980).

Hernandez was charged with possession of heroin with the intent to deliver. The confidential informant's connection to the premises was with a "Spanish male" for the purchase of heroin. That charge was not before the court. The informant merely supplied the police with information necessary to obtain a search warrant of the premises. The informant's affidavit provided the probable cause necessary to secure the search warrant. It did not contain additional evidence supporting a charge of constructive possession against Hernandez, nor did it contain information tending to exculpate her. The informant was not a witness to the crimes charged and was not present at Hernandez's arrest. We believe that the confidential informant played no active role in the crime charged and merely brought the authorities and Hernandez together. See id.

"That the informant witnessed prior drug transactions in the subject [premises] and could have testified that he had not seen [Hernandez] participate in them, though possible, is only of tangential relevance at best, since the fact of the matter is that" Hernandez was charged with possession with the intent to distribute on the basis of the events uncovered through the search warrant. See United States v. Martinez, 922 F.2d 914, 921 (1st Cir.1991). The confidential informant was a conduit of information rather than a principal or active participant in the crime charged. Id. The trial justice did not abuse her discretion in denying Hernandez's motion to disclose the confidential informant.

Hernandez next claims that the trial justice erred by denying her motion to dismiss because she was denied her constitutional right to a speedy trial. Hernandez contends that her right to a speedy trial was violated because she waited two years from the date of the offense to the date of the trial. The state avers that the trial justice properly balanced the required factors and was correct in denying Hernandez's motion.

A defendant's right to a speedy trial is guaranteed by article 1, section 10, of the Rhode Island Constitution and the Sixth Amendment to the United States Constitution. The test to determine whether a defendant has been denied the right to a speedy trial was enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The court must consider "(1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his [or her] rights, and (4) the prejudice to the accused." State v. Allan, 433 A.2d 222, 224 (R.I.1981). Since a single factor alone is not a necessary or a sufficient condition for establishing a deprivation, the court must balance the factors with the circumstances of each case before reaching its decision. Id.

The record reflects that Hernandez was arrested in September 1988 and that a criminal information was filed against her in November 1988. She filed her motion for a speedy trial in December 1988, and it was granted on January 5, 1989. However, the trial did not commence until October 1990. We believe that this period is more than sufficient to trigger an inquiry into the three remaining factors of the Barker test. See generally State v. Delahunt, 121 R.I. 565, 401 A.2d 1261 (1979) (finding a delay of sixteen months sufficient to trigger inquiry into the three remaining factors). However, " '[t]he passage of time, standing alone, does not justify a holding that the guarantee to a speedy trial has been violated.' " State v. Crescenzo, 118 R.I. 662, 665, 375 A.2d 933, 935 (1977). The length of the delay is but one factor among the factors to be considered. Id.

Hernandez suggests that court congestion was the reason for the delay; however, the trial justice did not specifically make that determination. The trial justice did not find fault with either party, but the trial docket does reflect that twice in early September 1990 the trial was...