State v. Simmons

• Decision Date: 06 December 2006
• Docket Number: No. 3D05-1437.,3D05-1437.
• Citation: 944 So.2d 1122
• Parties: The STATE of Florida, Appellant, v. Eddie SIMMONS, Appellee.
• Court: Florida District Court of Appeals

944 So.2d 1122

The STATE of Florida, Appellant, v.Eddie SIMMONS, Appellee.

No. 3D05-1437.

District Court of Appeal of Florida, Third District.

December 6, 2006.

Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellee.

Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.

FLETCHER, J.

Pursuant to mandate from the Florida Supreme Court,¹the trial court held an evidentiary hearing to determine whether the identity of a confidential informant used by the State herein was required to be disclosed, and whether the State was able to produce the informant.Eddie Simmons was charged with selling cocaine on April 4, 2002 to an undercover officer and was further charged with the intent to sell, manufacture, or deliver cocaine on April 5, 2002, as well as being charged with possession of a firearm by a convicted felon.

APRIL 4, 2002

The informant's interaction with the April 4 events leading to the charge of that date was limited to the informant's pointing out the drug sale location (a house), and the informant's greeting the drug seller at that house just prior to the "hand to hand" transaction.The trial court found that "[t]he informant had an ample opportunity to observe the person who sold drugs" to the undercover police officer.As Simmons' defense to the April 4 charge was misidentification, the trial court concluded that the informant was a material witness on the issue of the identity of the drug seller, thus the informant's identity had to be disclosed.

APRIL 5, 2002

With a search warrant in hand, on April 5, 2002, the police returned to the house where they found additional cocaine, a firearm, and Simmons.Additional charges on Simmons resulted.His defense to these charges was that he was present in the house as a guest when the drugs and firearm were found, but he had no knowledge of them or possessory interest in them.

Simmons sought disclosure of the confidential informant's identity in relation to these charges, as well as the April 4 charge.Simmons argued that the informant's expected testimony (that it was not Simmons who sold the cocaine on April 4) would bolster his assertions as to April 5(that he was a guest and had no control over the seized items).

THE TRIAL COURT'S RULING

"The Court finds that the informant is a material witness on the issue of the identity of the drug seller, that the defense of misidentification is a bona fide defense, that disclosure of the informant's identity is required due to the defense asserted, and that the State is not able to produce such person.The Court dismisses the information...."

We agree with the trial court's dismissal of the April 4 charge.We cannot agree with the trial court's dismissal of the charges as to April 5.

The United States Supreme Court, in Roviaro v. United States,353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639(1957), discussed fundamental fairness in relation to the prosecutorial privilege to withhold from disclosure confidential informants' identities: "Where the disclosure of an informer's identity, or of the contents of his communication, 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."

The Florida Supreme Court, in Simmons v. State,887 So.2d 1283, 1284(Fla.2004), citingRoviaro stated: "This privilege, however, must yield where the informant's identity is . . . essential to a fair determination of the cause at issue."Agreeing that the informant's identity is essential to a fair determination of the April 4 charge, we affirm the trial court's dismissal of the charge related to April 4.

However, as to the charges related to April 5we reverse the dismissals.The informant was not involved with these charges.A misidentification on April 4 would not be a defense to the charges of April 5.The trial court thus abused its discretion by dismissing the April 5 charges.²

Affirmed in part; reversed in part; and remanded for further proceedings consistent herewith.

COPE, C.J., concurs.

1.Simmons v. State,887 So.2d 1283(Fla.2004), rev'g887 So.2d 355(Fla. 3d DCA2003).

2."Rulings as to the necessity of providing the names and addresses of witnesses for the defendant to have a fair trial are rulings which must of necessity rest upon the broad discretion of the trial court."State v. Jones,247 So.2d 342, 343(Fla. 3d DCA1971).

ROTHENBERG, J., concurring in part and dissenting in part.

We have for review in this consolidated appeal the trial court's dismissal of two separate informations: one charging Eddie Simmons("Simmons") in case number 02-9992 with the sale, manufacture, delivery and/or possession of cocaine on April 4, 2002; and the other, charging Simmons in case number 02-9991 with possession with intent to sell, manufacture, and/or deliver cocaine and unlawful possession of a firearm by a convicted felon on April 5, 2002.The first offense is based upon the purchase of cocaine by Detective Pacheco from an individual he claims is the defendant, and the remaining offenses are based upon evidence seized pursuant to the execution of a search warrant the following day at the house where the detective purchased the drugs.The majority concludes that the trial court erred in dismissing the charges against Simmons in case number 02-9991, the April 5th, offenses.I agree.I disagree, however, with the majority's conclusion that the trial court did not err in dismissing the charges regarding the April 4th drug transaction charged in case number 02-9992.

PROCEDURAL HISTORY

When Detective Pacheco purchased cocaine on April 4, 2002, he was accompanied by another individual.Simmons' defense to this case(02-9992) is one of misidentification.He claims he is not the person who sold cocaine to the detective.His defense in case number 02-9991 is that he was merely a guest in the residence when the search warrant was executed and the cocaine and firearm were seized.Simmons filed a sworn motion in both cases seeking an order to require the State to disclose the identity of the individual who accompanied the detective on April 4th, when the detective purchased the cocaine.In this motion, Simmons claimed that the witness would substantiate his defense of misidentification in case number 02-9992, which would in turn buttress his claim in case number 02-9991 that, although he was present in the house on April 5th when the search warrant was executed, he was merely there as a guest and had no dominion or control over the items seized.

The State argued that disclosure was not required as the individual who accompanied Detective Pacheco when he purchased the drugs on April 4th was not involved in the transaction nor involved in the procurement of the search warrant and was not present when it was executed.The trial court concluded that disclosure of "the confidential informant" was required based upon Simmons' defense of misidentification.When the State was unable to produce the individual in question for an in-camera hearing because the police had failed to obtain either his identity or other identifying information, and his whereabouts was unknown, the trial court dismissed the charges in both cases.The State appealed and this court reversed, finding that the disclosure of the "identity of an informant who is a mere witness to, but a non-participant in a criminal episode" is not required merely because the defendant raises a misidentification defense.State v. Simmons,887 So.2d 355, 359(Fla. 3d DCA2003).This court, however, noted and certified conflict with McCray v. State,730 So.2d 817(Fla. 2d DCA1999).Simmons,887 So.2d at 359.

The Florida Supreme Court accepted jurisdiction based upon the certification of conflict.However, due to the inadequacy of the record before it, the Court quashed this court's decision with instructions to remand to the trial court for further factual development to enable a determination to be made whether, as a matter of law, disclosure of the informant's identity is required and whether he could be produced.Simmons v. State,887 So.2d 1283(Fla.2004).

The trial court conducted a hearing in accordance with this ruling.Based upon the testimony of the witnesses, the trial court dismissed the charges finding that the informant was a material witness whose identity the State was required to disclose and that, although the failure of the police to obtain any contact information regarding the person in question was not in bad faith, "the decision not to obtain such information was a deliberate choice that has prejudiced the defendant in the preparation of his defense."

THE EVIDENCE

Officer Cabrera of the Miami Police Department testified that the individual in question, who he referred to as a "crackhead," had a street nickname of "Coco" and that he frequented the area where Officer Cabrera worked off-duty.Officer Cabrera testified that "Coco" approached him and informed him that people were selling drugs from a particular house.Based on this information, he set up a time and place for "Coco" to meet with Detective Pacheco, an undercover officer.Prior to the meeting, Officer Cabrera related this information to Detective Pacheco.Officer Cabrera did not obtain any additional information from "Coco," did not know his true name or where he lived, and had no further contact with him.

Detective Pacheco met with "Coco," who agreed to accompany him to the house in question.When they approached the house, a man whom the Detective identified as the defendant, Eddie Simmons, was standing in the front doorway.Detective Pacheco and "Coco" proceeded to the front door."Coco" said "hi" to the defendant and the detective asked the defendant if he had any "hard," a term referring to crack cocaine.After Detective Pacheco and Simmons conversed, Simmons went...