State v. Pautier
| Decision Date | 01 August 1989 |
| Docket Number | No. 88-1821,88-1821 |
| Citation | 548 So.2d 709,14 Fla. L. Weekly 1814 |
| Parties | 14 Fla. L. Weekly 1814 The STATE of Florida, Appellant, v. Carlos PAUTIER, Ramon Saavedra and Juan Rivero, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellant.
Maria Brea Lipinski and John H. Lipinski, Bennett H. Brummer, Public Defender, and Rosa C. Figarola, Asst. Public Defender, Bierman, Shohat & Loewy and Edward R. Shohat and Ira N. Loewy, Miami, Armando Gutierrez, Coral Gables, for appellees.
Before HUBBART, LEVY and GERSTEN, JJ.
The State appeals a final order of dismissal. The order of dismissal was based on the State's failure to produce a confidential informant for an in camera examination. We reverse.
As a preface to this opinion, we state that we hope this is an isolated example of prosecutorial indifference to court orders. Indeed, the State supplied the entire grounds upon which this appeal was taken. If only the office of the prosecution had followed an order of court, there would be no appeal. It did not, so we must write.
On January 28, 1988, the State filed a two-count information against defendants Carlos Pautier, Ramon Saavedra, Juan Rivero, and Laureano Molina. The information charged defendants with conspiracy to traffic in cocaine and trafficking in cocaine. Defendant Molina is not a party to this appeal.
On May 6, 1988, Rivero filed a motion for disclosure of the identity of a confidential informant. The grounds for Rivero's motion were: (1) lack of knowledge regarding the cocaine; and, (2) "no direct evidence" linking him to the cocaine other than a statement by the key police officer that Rivero had told the officer that "they have the merchandise." The only witnesses to this alleged statement were the key police officer, Molina, Pautier, Rivero, and the confidential informant. The motion asserted that if the confidential informant testified truthfully, he would testify that Rivero did not make this alleged statement.
The State objected to the defense asserted in the motion and the motion's lack of verification. Later, the State acquiesced and admitted to the trial court that perhaps the motion was sufficient and that an in camera inspection would be a practical solution.
On May 16, 1988, Saavedra, too, moved for disclosure of the identity of the confidential informant. Saavedra's defense was based on entrapment and set forth, rather effectively, his grounds. The State objected to the sufficiency of Saavedra's motion as not being verified.
At this juncture, the trial court ordered that it would hold an in camera hearing with the confidential informant. This order was based upon the two motions of Rivero and Saavedra. The trial court, concerned about the upcoming trial date, attempted to establish a time table. It stated:
He will give me the confidential informant within a reasonable time after today and within a reasonable time in advance of trial in order for you to be prepared on June 27th. How about that?
Subsequently, Rivero supplied an affidavit to comply with the requirement that the motion be verified. In the affidavit Rivero alleged that he never made a statement regarding having the merchandise. Saavedra also supplemented his motion with an affidavit. Saavedra's affidavit stated that he put the confidential informant in touch with a cocaine supplier only because the confidential informant owed him money and had been pressuring him.
Thereafter, on June 14, 1988, Pautier filed his unsworn motion for disclosure of the confidential informant. Pautier's defense was lack of knowledge and "no direct evidence" linking him to the cocaine other than a statement by the police officer that Pautier had asked the officer whether he had "brought the money?" Pautier alleged that the confidential informant, having been present, would refute the statement having been made at all. At a subsequent hearing, the trial court indicated that it would also consider Pautier's proposed defense, in its in camera examination of the confidential informant.
During a period of 39 days, May 19 through June 27, the trial court thrice tried to schedule the in camera examination. On one occasion, the confidential informant failed to show up for the scheduled examination because he was making another drug deal. On a second occasion, the confidential informant was brought in late and the trial court could not see him because it was conducting a trial. On a third occasion, the confidential informant was unavailable for the scheduled hearing because he was intoxicated. Further, the State informed the court that for the past week, the police had been unable to locate the informant.
On June 27, 1988, the date the case was set for trial, the State still had not produced the confidential informant for the court-ordered in camera examination. This cold record resonates with the frustration of the patient and persevering trial court, which stated:
The confidential informant, despite repeated schedules, repeated dates for which he was scheduled to appear, has not appeared.
I have told [the Assistant State Attorney] ... that I would give him just a couple of more days, or if not, I would dismiss the case.
So, you notify [the Assistant State Attorney], that I am setting this for Wednesday. If the confidential informant is not here on Wednesday, after repeated times that he was scheduled before me, I will dismiss the case because that is what the State wants me to do by their inaction, okay?
Two days later, on June 29, 1988, after giving the State notice of its intent to dismiss the case if the confidential informant were not produced for the in camera hearing, the trial court dismissed the case against Rivero. The court explained:
Based on the fact the court ordered that the confidential informant should be made available for an in camera inspection and based on the fact that at least on two occasions the police agencies refused to bring him over and on one occasion brought him over late and took him back before I had a chance to speak to him, I consider those willful intentions to defy my order to disclose the confidential informant for an in camera inspection, and the state's refusal to disclose that requires me or allows me to exercise my discretion pursuant to Florida Rules of Criminal Procedure, the discovery rules in cases.... (Citations omitted).
The state not having met its burden to show that there was no prejudice to the Defendants, the motions having shown prejudice to the Defendants. (Citations omitted).
This court having found based on allegations sworn to by the Defendant showing that the informant is a material witness to the trial, and the state not having made a good faith attempt to locate the informant after a court order, are hereby--I have no choice but to exercise my discretion and dismiss the case against Juan Rivero.
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