State v. Sanchez

• Decision Date: 18 March 1991
• Docket Number: 23239-8-I,Nos. 23075-1-,s. 23075-1-
• Citation: 60 Wn.App. 687,806 P.2d 782
• Parties: STATE of Washington, Respondent, v. Herardo Mora SANCHEZ, Appellant. STATE of Washington, Respondent, v. Jose Angel SARINANA, Appellant.
• Court: Washington Court of Appeals

Page 687

60 Wn.App. 687

806 P.2d 782

STATE of Washington, Respondent, v. Herardo Mora SANCHEZ, Appellant.

STATE of Washington, Respondent, v. Jose Angel SARINANA, Appellant.

Nos. 23075-1-I, 23239-8-I.

Court of Appeals of Washington Division 1.

March 18, 1991.

James R. Short, Tukwila, for Sarinana.

Carol Spoor, King County Deputy Pros. Atty., Seattle, for the State.

Anna-Mari Sarkanen, Washington Appellate Defender, Seattle, for Sanchez.

BAKER, Judge.

Jose Angel Sarinana and Herardo Mora Sanchez were convicted in a bench trial of violating the Uniform Controlled Substances Act by delivering cocaine. The trial court also found that both defendants were armed with a deadly weapon at the time of the offense. Sanchez appeals his conviction claiming the trial court erred by refusing to require disclosure of an informant's identity. Sarinana raises the identical issue and also contends the trial court erred by finding that there was sufficient evidence to convict. The State cross-appeals, contending the trial court failed to consider information pertaining to an alleged prior felony conviction when imposing the sentence on Sanchez.

I. FACTS

Seattle Police Detective Mario Navarrete testified at trial that he received the following information: that a person named Manuel had been trafficking in cocaine in Seattle; that Manuel had recently been arrested in Yakima; that the telephone pager through which he conducted his business was still active locally. ¹ Navarrete testified that after receipt of this information, he called the pager number and eventually arranged to purchase a quantity of cocaine.

Sanchez and Sarinana arrived by car at the appointed time and location, a little-used corner of a grocery store parking lot. Sarinana exited the front passenger side of the car and got in the back seat. Navarrete approached the vehicle, introduced himself to Sanchez, and took Sarinana's place in the front seat. Once Navarrete was in possession of the cocaine he signaled the arrest team to approach. As the arrest team was arriving, Sanchez spotted them in the rear view mirror. Noticing this, Navarrete asked, " 'Are those friends of yours?' " He then saw Sarinana put his hand in his pocket, and he saw the outline of a hand gun inside the pocket. Navarrete pinned Sarinana's hand and the gun in Sarinana's pocket. At the same time he drew his own weapon on Sanchez and identified himself and the others as police officers.

In the course of arresting Sarinana and Sanchez, the officers recovered an additional 27.2 grams of cocaine and $2,470 in cash from Sanchez's person. The firearm taken from Sarinana was in working condition and loaded with four rounds of ammunition.

II. DISCLOSURE OF INFORMANT'S IDENTITY

Prior to trial Sarinana and Sanchez had moved to compel the State to disclose the identity of the informant in the case, or for the court to hold an in camera hearing. The motion was denied.

The issue of the informant's identity arose again during trial. On cross examination Navarrete acknowledged that he had testified about communications he and his partner received from an anonymous citizen. Sarinana then inquired as to whether the officers were able to obtain the name of the informant. The State objected. Citing State v. McCoy, 10 Wash.App. 807, 521 P.2d 49 (1974), Sarinana and Sanchez argued that because Navarrete had testified to the substance of the communications with the informant, the State had waived its privilege of nondisclosure of the informant's identity. The trial court ordered disclosure. The defense then inquired of Navarrete whether he had the means available to obtain the name of the informant, to which Navarrete responded that he did not. The trial court ordered the State to take all reasonable and necessary means to obtain the name of the informant.

When trial resumed the following Monday, the State moved for reconsideration. The trial court reconsidered its prior ruling and held that although the privilege had been waived, the informant's statements did not tend to prove the guilt of either defendant. Therefore, the court held the informant's identity was not relevant to any issue in the trial and disclosure was not required.

The privilege of the State to withhold the identity of an informant is recognized by court rule, statute, and case law. CrR 4.7 provides in pertinent part:

H-

(f) Matters Not Subject to Disclosure

. . . . .

(2) Informants. Disclosure of an informant's identity shall not be required where the informant's identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant.

RCW 5.60.060(5) provides:

A public officer shall not be examined as a witness as to communications made to him or her in official confidence, when the public interest would suffer by the disclosure.

The privilege of nondisclosure is granted to preserve the informant's anonymity and encourage such persons to disclose knowledge of criminal activity to officers charged with enforcement of the law. State v. Malone, 69 Wash.2d 872, 873, 420 P.2d 676 (1966). The privilege thus furthers the public interest in law enforcement. State v. Harris, 91 Wash.2d 145, 148, 588 P.2d 720 (1978).

However, the informer's privilege is not absolute. If the informer's identity " 'is relevant and helpful to the defense ... or is essential to a fair determination of a cause' ", the trial court may require disclosure. State v. Thetford, 109 Wash.2d 392, 396, 745 P.2d 496 (1987) (quoting Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957)). In determining whether an exception should be made to the privilege of nondisclosure, no fixed rule is justifiable. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29. The trial court must balance the public interest in protecting the flow of information against the defendant's right to prepare a defense. The proper balance depends upon the facts of the particular case, " 'taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.' " Harris, 91 Wash.2d at 150, 588 P.2d 720 (quoting Roviaro, 353 U.S. at 62, 77 S.Ct. at 629); State v. Vargas, 58 Wash.App. 391, 395, 793 P.2d 455 (1990).

In State v. McCoy, 10 Wash.App. 807, 810-11, 521 P.2d 49 (1974), this court held that where the State unnecessarily inquires on direct examination into the substance of the communication made by an unidentified informant, the conditional privilege against disclosure may be waived. Relying on McCoy, Sarinana and Sanchez contend that the State waived the privilege by eliciting Navarrete's testimony pertaining to the communication received from the informant. They assert that once such evidence is admitted, disclosure of the informant's identity is required. The State argues that disclosure is not automatically required under such circumstances, but that the trial court must still balance the Roviaro factors in deciding whether to compel release of the informant's name.

In McCoy, the State questioned a police officer at trial regarding the content of the statements made by a confidential informant. The officer testified that a known informant advised him that the defendant, whom he identified by name, would be traveling in a certain vehicle along a certain route and would have in his possession a quantity of marijuana. In fact, the defendant was stopped while driving the described vehicle, and the car did contain marijuana, which provided the basis for the crime charged. McCoy, 10 Wash.App. at 809-10, 521 P.2d 49. On cross examination counsel for the defendant sought to elicit the name of the informant. The State objected. On appeal, this court determined that the State's privilege had been waived by its inquiries on direct examination.

McCoy is distinguishable from the instant case. There, the informant's statements revealed specific personal knowledge about the criminal activity of McCoy. Here, on the other hand, the informer merely alerted the police to the possibility of criminal activity perpetrated by unidentified persons. ² The crime was then committed in the presence of the officer. The informer was a mere tipster furnishing the police with information which provided a lead in investigating the case. ³

Knowledge of the identity of the informer thus could serve no purpose material to the defense of Sarinana and Sanchez. Therefore, the trial court properly ruled that the informer's identity need not be disclosed. See McCulley v. State, 257 Ind. 135, 272 N.E.2d 613, 616 (1971); Ludlow v. State, 302 N.E.2d 838, 842 (Ind.Ct.App.1973), reversed on other grounds, 262 Ind. 266, 314 N.E.2d 750 (1974).

III. SUFFICIENCY OF EVIDENCE

Sarinana contends there was insufficient evidence in the record to support his conviction as an accomplice. In reviewing the sufficiency of the evidence in a criminal matter, this court must determine whether, after viewing the evidence most favorably to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 220-21, 616 P.2d 628 (1980). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Porter, 58 Wash.App. 57, 60, 791 P.2d 905 (1990) (quoting State v. Spruell, 57 Wash.App. 383, 385, 788 P.2d 21 (1990)).

RCW 9A.08.020(3)(a)(i) provides that a person is culpable as an accomplice if he or she "solicits, commands, encourages, or requests" another to commit a crime, or aids in the planning or commission thereof, knowing that such an act will promote or facilitate the commission of the crime. However, "[m]ere knowledge or physical presence at the scene of a crime neither constitutes a crime nor will it support a charge of aiding and abetting a crime." State v. J-R Distrib., Inc., 82 Wash.2d 584, 593, 512 P.2d 1049 (1973),...