State v. Ramos

• Decision Date: 28 December 1988
• Docket Number: Nos. 87-193,87-194,s. 87-193
• Citation: 131 N.H. 276,553 A.2d 275
• Parties: The STATE of New Hampshire v. Jesus RAMOS.
• Court: New Hampshire Supreme Court

Page 275

553 A.2d 275

131 N.H. 276

The STATE of New Hampshire v. Jesus RAMOS.

Nos. 87-193, 87-194.

Supreme Court of New Hampshire.

Dec. 28, 1988.

Stephen E. Merrill, Atty. Gen. (Michael D. Ramsdell, attorney, on the brief), by brief for State.

Joanne Green, Asst. Appellate Defender, Concord by brief for defendant.

THAYER, Justice.

The defendant appeals from two separate convictions for the illegal sale of a narcotic drug in violation of RSA 318-B:2. The defendant was convicted following a jury trial and sentenced to serve from 5 to 15 years in prison for a drug sale which occurred on April 4, 1985 (case No. 85-2116), and was convicted following a second jury trial and sentenced to a term of 3 1/2 to 7 years for a drug sale which occurred on September 13, 1985 (case No. 85-2117). This court consolidated the defendant's two appeals. The defendant challenges his convictions on four grounds: that the Trial Court (Bean, J.) erred (1) in denying his motion to dismiss the first indictment (No. 85-2116) for failure of the State to disclose the identity of its confidential informant; (2) in denying his motion to dismiss the first indictment (No. 85-2116) because the State's delay in arresting the defendant caused him actual prejudice; (3) in allowing the State to impeach the defendant with prior convictions at both trials; and (4) in allowing into evidence as a full exhibit at the first trial a copy of the defendant's 1971 drug conviction. For the reasons that follow, we affirm.

The facts underlying the defendant's first conviction are as follows. On April 4, 1985, Detective Brackett of the Nashua Police Department, and two detectives from the Manchester Police Department, were conducting an undercover investigation at Judy's Bar on Pine Street in Manchester. At approximately 9:25 p.m., Detective Brackett and a confidential informant entered the bar through the rear door. Once inside the bar, they were approached by one Anselmo Gotay Pacheco. The confidential informant introduced Detective Brackett to Pacheco. At some point, after introducing the two, the informant walked toward the front of the bar to get a beer. Detective Brackett told Pacheco that he wished to purchase some cocaine. Pacheco then walked several feet away, to where the defendant was standing. Detective Brackett saw the defendant remove several small glassine baggies from his pocket and hand them to Pacheco. Pacheco then returned to where Detective Brackett was located and sold the drugs to him. The substance contained in each of the baggies was subsequently identified as cocaine. After the sale was completed, Detective Brackett left the bar, followed shortly thereafter by the confidential informant. The informant then met Detective Brackett outside the bar and asked him if he had obtained any cocaine.

The defendant was arrested on October 25, 1985, and charged with the illegal sale of a narcotic drug. At trial, the defendant testified that although he frequented Judy's Bar, he was uncertain as to whether he was there on April 4, 1985. He admitted to knowing Pacheco but denied having given drugs to Pacheco to sell.

On September 13, 1985, the date of the action from which the defendant's second conviction stems, Detective Richard O'Leary of the Manchester Police Department was continuing the undercover drug investigation of Judy's Bar on Pine Street and of the apartments located above the bar. At approximately 7:45 p.m., Detective O'Leary climbed the rear fire escape of the building and knocked on the door of an apartment. The defendant opened the door, and Detective O'Leary told the defendant that he wished to purchase some cocaine. The defendant then went into the kitchen and removed a plastic bag containing cocaine from the refrigerator and sold it to Detective O'Leary.

At trial, the defendant testified that, while he could not remember where he was on September 13, 1985, he was not in an apartment over Judy's Bar selling drugs.

We first address the defendant's argument that the State's failure to disclose the identity of the confidential informant constituted sufficient grounds upon which to dismiss the April 4 charge. Following a pretrial hearing on the defendant's motion to compel disclosure of the confidential informant, the Trial Court (Wyman, J.) denied the motion, finding that "the confidential informant ... was not established to have been an eye witness to the alleged offense." After a subsequent hearing, the Trial Court (Bean, J.) upheld the prior determination.

The defendant argues that he was denied his due process rights under the United States Constitution (presumably the fifth and fourteenth amendments) and under part I, article 15 of the New Hampshire Constitution to "produce all proofs that may be favorable to himself." N.H. CONST. pt. I, art. 15. When a defendant invokes both the State and Federal Constitutions, we will consider the State claim before addressing the federal claim. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983); cf. State v. King, 131 N.H. 173, ---, 551 A.2d 973, 974 (1988). Accordingly, we first address the defendant's State claim independently. As an issue of State constitutional law, the defendant's claim is a question of first impression. Cf. State v. Arthur, 118 N.H. 561, 391 A.2d 884 (1978); State v. Thorp, 116 N.H. 303, 358 A.2d 655 (1976). However, we have the benefit of considerable case law decided under the Federal Constitution for guidance.

We have held that, in determining whether disclosure of a confidential informant's identity is necessary to afford the defendant a right to a fair trial, the trial court must, based upon the particular circumstances of the case and the possible significance of the informant's testimony, balance the " 'public interest in protecting the flow of information against the individual's right to prepare his defense.' " State v. Thorp, 116 N.H. at 310, 358 A.2d at 661 (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 629, 1 L.Ed.2d 639 (1957)). A trial court may compel disclosure "when there is evidence demonstrating that the informant was a participant in the illegal activity charged 'to such an extent that his testimony may be considered essential to a fair determination of the issue of guilt or innocence....' " State v. Berger, 125 N.H. 83, 93, 480 A.2d 27, 33 (1984) (quoting State v. Schena, 110 N.H. 73, 74-75, 260 A.2d 93, 94 (1969)). The key question, then, is whether the informant's testimony was material to the defendant's defense. See State v. Breest, 118 N.H. 416, 419, 387 A.2d 643, 645 (1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); see also State v. Arthur, 118 N.H. at 563, 391 A.2d at 885.

In State v. Berger supra, the defendant argued that the confidential informant's testimony at trial was essential to his defense, where controverted evidence indicated that the informant might have been present at the drug transaction for which the defendant was charged. Berger, supra, 125 N.H. at 92, 480 A.2d at 33. Observing that the defendant's claim that the confidential informant participated in the illegal drug sale was unsubstantiated, this court held that "it cannot be assumed for purposes of our review that the State informant participated in the illegal sale to such a degree that his or her testimony would be essential to a fair adjudication of the defendant's guilt or innocence." Berger, supra, 125 N.H. at 93, 480 A.2d at 33. Similarly, in State v. Arthur supra, we held that reversal of the defendant's conviction for failure to disclose an informant was unwarranted where the defendant "ha[d] not determined what the informer's testimony would [have been] if called as a witness [and] [t]here was nothing to indicate that the informer's testimony would in any way [have] aid[ed] the defendant." Arthur, supra, 118 N.H. at 563, 391 A.2d at 885.

Here, the trial court's finding, that the evidence was insufficient to establish that the informant was a witness to the transaction, is supported by the record. Detective Brackett testified that the informant had walked away before the drugs changed hands, although he could not say whether the informant had been able to witness the transaction from his location. Detective Brackett also testified that once outside the bar, the informant had asked whether Detective Brackett had been successful in obtaining drugs, indicating that the informant had not witnessed the transaction.

On these facts, as in Berger, the defendant's claim that the informant may have witnessed the drug sale is unsubstantiated. Thus, the defendant can only speculate as to what the informant might have testified to, and whether such testimony would have aided in his defense. See State v. Svoleantopoulos, 130 N.H. 471, 474, 543 A.2d 410, 412 (1988) (mere speculation regarding usefulness of informant's testimony insufficient to satisfy defendant's burden to prove need for disclosure); State v. Arthur, 118 N.H. at 563, 391 A.2d at 886. In view of the inconclusive evidence presented, and the speculative significance of the informant's testimony, we hold that the trial court's denial of the defendant's motion to dismiss, for failure to disclose the identity of the confidential informant, was not an abuse of discretion, see State v. Berger, 125 N.H. at 93, 480 A.2d at 33, and resulted in no denial of the defendant's due process right under part I, article 15 of the New Hampshire Constitution.

Because the protection afforded under the Federal Constitution relative to the disclosure of the identity of confidential informants is no greater than that of our own State Constitution, we need not address the defendant's federal claim. See State v. Ball, 124 N.H. at 232, 471 A.2d at 351; see also State v. Breest, 118 N.H. at 419, 387 A.2d at 645.

We note briefly the defendant's related argument that the indictment should have been dismissed because the State failed to preserve potentially...