State v. Petrina

• Decision Date: 19 April 1994
• Docket Number: No. 15543-5-II,15543-5-II
• Citation: 871 P.2d 637,73 Wn.App. 779
• Parties: STATE of Washington, Appellant, v. Theron L. PETRINA, Respondent.
• Court: Washington Court of Appeals

Page 779

73 Wn.App. 779

871 P.2d 637

STATE of Washington, Appellant, v. Theron L. PETRINA, Respondent.

No. 15543-5-II.

Court of Appeals of Washington,

Division 2.

April 19, 1994.

John Lester Farra, Aberdeen, (Court appointed), for respondent

David Brian Trefry, Sp. Grays Harbor County Deputy Pros. Atty., Montesano, for appellant.

SEINFELD, Judge.

The Grays Harbor Superior Court ordered the State to disclose the identity of a confidential informant in the criminal case against Theron L. Petrina. It did so without first holding an in camera hearing. After the State refused to disclose, the trial court dismissed the prosecution. The State appeals; we affirm.

On March 29, 1991, an anonymous informant phoned the Grays Harbor County Drug Task Force, wishing to provide information on Tony Petrina's marijuana trafficking operations. Tony Petrina is the son of respondent, Theron L.

                Petrina. 1  The informant wished to remain anonymous because he or she feared reprisals from Tony Petrina, his family, or his associates.  Task Force Detective Michael Haymon met with the informant that same day.  The informant related information about Tony Petrina's illegal activities, associates, and frequented places
                

Still on March 29, 1991, Haymon sought a warrant to search 1) Tony Petrina; 2) Tony Petrina's Aberdeen apartment; 3) Theron Petrina's Aberdeen house; and 4) Tony Petrina's pickup truck. In his affidavit supporting issuance of the search warrant, Haymon relayed the statements of the informant. In part, Haymon's affidavit states

the informant explained to me that within the last twenty-four (24) hours, he/she had personally observed Tony Petrina and a mexican male known by the name of "George" ... arrive at ... the residence of Theron Petrina, Tony Petrina's father. At that time Tony Petrina was in possession of five large ziplock baggies which appeared to contain approximately one pound of marihuana each. The citizen informant observed [Tony] Petrina store the marihuana in a safe located in the basement of the residence. [Tony] Petrina then left the residence leaving the marihuana in the safe. As well as the marihuana, the citizen informant has observed weighing scales and other paraphernalia stored at the residence, in the basement, which is being used by [Tony] Petrina to "break down" pounds of marihuana into saleable portions consisting of 1/8 ounces, 1/4 ounces, 1/2 ounces and full ounces. The informant related that Theron Petrina, the father of Tony Petrina, ... has full knowledge of the marihuana distribution activities of his son that are taking place from inside his residence.

Later in the affidavit, Haymon states as follows:

The informant explained that [Tony] Petrina normally stores his marihuana in bulk at his father's residence. This explanation made it apparent to me through my training and experience that Tony Petrina was using [Theron Petrina's house] as a "safe house".

The informant had smoked marijuana and knew the typical methods of packaging and selling marijuana. He or she had intimate knowledge of Tony Petrina's illegal operations. In addition, the informant had a criminal record.

A judge issued the warrant. Officers executing the warrant searched Theron Petrina's house shortly after midnight on March 30, 1991. They seized a 1 gallon plastic bag containing approximately 16 ounces of pressed marijuana, found in the ceiling of the basement. Below the hole in the ceiling was a sink containing a small amount of marijuana and a cupboard containing a set of scales, four open boxes of plastic bags and one closed box, and a beer can fashioned into a smoking device. The officers also seized an extensive gun collection and CB radios, among other items.

A narcotics dog "alerted" on the basement safe described by the informant. Theron Petrina's girlfriend (now wife) opened the combination safe, and the officers present could smell the odor of marijuana, although the safe apparently contained no drugs.

On August 23, 1991, the State charged Theron Petrina with possession of marijuana with intent to deliver (RCW 69.50.401(a)). Petrina ², claiming lack of knowledge of the marijuana, moved for the disclosure of the identity of the informant. The State opposed the motion claiming that disclosure would not help the defense, and that the State did not intend to present the informant's information at trial. The State requested, in the alternative, that the court examine the informant in an in camera hearing before making its decision regarding disclosure. The trial court declined to hold an in camera hearing and ordered disclosure. When the State refused to comply with the disclosure order, the trial court dismissed the charges. The State then filed this appeal.

ANALYSIS

We review the trial court's decision to order or to refuse to order disclosure of an informant's identity for abuse of discretion. State v. Uhthoff, 45 Wash.App. 261, 268, 724 P.2d 1103, review denied, 107 Wash.2d 1017 (1986); see State v. Harris, 91 Wash.2d 145, 152, 588 P.2d 720 (1978); State v Bailey, 41 Wash.App. 724, 729, 706 P.2d 229 (1985). We also review for abuse of discretion the trial court's decision whether or not to hold an in camera hearing. State v. Vazquez, 66 Wash.App. 573, 582, 832 P.2d 883 (1992). A trial court abuses its discretion when it acts on untenable grounds or for untenable reasons or when its decision is manifestly unreasonable. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

In general, the government is privileged to refuse to disclose the identity of informants who provide information of criminal violations. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957); accord Harris, 91 Wash.2d at 148, 588 P.2d 720. The purpose of the "informer's privilege" is to further effective law enforcement and to encourage citizens to report their knowledge of criminal activities. Roviaro, 353 U.S. at 59, 77 S.Ct. at 639; accord Harris, 91 Wash.2d at 148, 588 P.2d 720. In Washington, the privilege is codified at CrR 4.7(f)(2) and RCW 5.60.060(5). ³

However, a defendant's request for disclosure raises constitutional issues of fundamental fairness and due process. United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980); State v. Vargas, 58 Wash.App. 391, 394, 793 P.2d 455 (1990); Uhthoff, 45 Wash.App. at 268, 724 P.2d 1103; State v. Allen, 27 Wash.App. 41, 43-46, 615 P.2d 526, review denied, 94 Wash.2d 1025 (1980); see Harris, 91 Wash.2d at 149, 588 P.2d 720; CrR 4.7(f)(2). "[T]he fundamental requirements of fairness" limit the government's privilege. Roviaro, 353 U.S. at 60, 77 S.Ct. at 627; accord Harris, 91 Wash.2d at 149, 588 P.2d 720. When "disclosure of an informer's identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Roviaro, 353 U.S. at 60- 77 S.Ct. at 628; accord Harris, 91 Wash.2d at 148, 588 P.2d 720. The trial court then may order disclosure and dismiss the action if the State refuses to disclose. Roviaro, 353 U.S. at 61, 77 S.Ct. at 628.

In addition, a defendant has a Sixth Amendment right to compel attendance of witnesses who could materially aid his defense. State v. Smith, 101 Wash.2d 36, 41-42, 677 P.2d 100 (1984). If a defendant establishes "a colorable need for the person to be summoned", then the person is a material witness whose identity the State must disclose to allow the defendant to compel attendance. See Smith, 101 Wash.2d at 41-42, 677 P.2d 100; see also State v. Casal, 103 Wash.2d 812, 816, 699 P.2d 1234 (1985). But see Harris, 91 Wash.2d at 151, 588 P.2d 720.

In each case, the trial court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." ⁴ Roviaro, 353 U.S. at 62, 77 S.Ct. at 629; accord Harris, 91 Wash.2d at 150, 588 P.2d 720. When it weighs these interests, the trial court must consider the facts of the case before it: "the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro, 353 U.S. at 62, 77 S.Ct. at 629; accord Harris, 91 Wash.2d at 150, 588 P.2d 720. The burden is on the defendant to overcome the privilege by showing that the above standards require disclosure. State v. Massey, 68 Wash.2d 88, 92, 411 P.2d 422, cert. denied, 385 U.S. 904, 87 S.Ct. 213, 17 L.Ed.2d 134 (1966). Some appellate courts hold that a defendant can overcome the privilege by showing that the informant is a material witness as to guilt or innocence, e.g., Casal, 103 Wash.2d at 816, 699 P.2d 1234; State v. Redd, 51 Wash.App. 597, 606, 754 P.2d 1041, review denied, 111 Wash.2d 1008 (1988), or a material witness relevant and helpful to the defense, e.g., Vazquez, 66 Wash.App. at 581, 583-84, 832 P.2d 883.

The Harris court also held that if it is clear to the trial court "in the first instance" that the defense has established either prong of the Roviaro standard (relevant and helpful to the defense or essential to a fair determination), fundamental fairness requires disclosure. 91 Wash.2d at 149, 588 P.2d 720. Failure to disclose when the defendant has established either Roviaro prong would prejudice the defendant, even if the trial court "believes the testimony could not benefit the accused.... [I]t does not matter whether the testimony of the informer would support the accused or not." Harris, 91 Wash.2d at 149, 588 P.2d 720. In such a situation, the accused decides how to use or whether to use the disclosed information. 91 Wash.2d at 149, 588 P.2d 720. The trial court cannot substitute its judgment for the defendant's as to the benefit of the testimony, or for the jury as to reliability of the testimony. Harris, 91 Wash.2d at 149-50, 588 P.2d 720.

Petrina argued the informant was the only available witness to testify that someone else put the marijuana in Petrina's...