State v. Vargas

• Decision Date: 03 July 1990
• Docket Number: No. 9694-7-III,9694-7-III
• Citation: 793 P.2d 455,58 Wn.App. 391
• Parties: STATE of Washington, Appellant, v. Antonio Beberos VARGAS, Respondent.
• Court: Washington Court of Appeals

Page 391

58 Wn.App. 391

793 P.2d 455

STATE of Washington, Appellant, v. Antonio Beberos VARGAS, Respondent.

No. 9694-7-III.

Court of Appeals of Washington Division 3, Panel One.

July 3, 1990.

Ann Marie Dilembo, Deputy Prosecutor, Pasco, for appellant.

Robert Thompson, Pasco, for respondent.

MUNSON, Chief Judge.

On August 23, 1988, Antonio B. Vargas was charged by information with two counts of delivery of a controlled substance, cocaine. RCW 69.50.401(a)(1)(i). The charges were dismissed after the State refused to identify the confidential informant who participated in the controlled buy. The State appeals, contending the dismissal was error because Mr. Vargas did not present sufficient evidence of the need for an in camera hearing and disclosure of identity. We vacate the order and remand for trial.

On August 19, 1988, a confidential informant accompanied police undercover detective Greg Eppling to an apartment at 212 West Margaret in Pasco to purchase cocaine. The purchase was completed within a minute and the men left. Numerous other people were also present in the apartment including Mr. Vargas and a black man who witnessed the purchase.

Detective Eppling and the confidential informant returned 40 minutes later and made a second purchase. After it was completed, backup officers were instructed to arrest an individual described as a young Mexican, with neatly trimmed medium length hair, wearing a red and white striped shirt, jeans and tennis shoes. The officers proceeded to the apartment complex and began to knock on doors. They seized one man, but after a drive-by identification by Detective Eppling, he was released. Mr. Vargas was later seized at an adjacent apartment, West 206 Margaret, and was positively identified by Detective Eppling during a second drive-by. The informant did not participate in this identification process.

Mr. Vargas, denying he had been involved in the sale, moved for an in camera hearing and disclosure of the identity of the informant. His motion was based solely upon an affidavit filed by his attorney which averred members of the METRO drug task force had made misidentifications in the past and the informant's testimony

would be helpful and necessary to the defense in proving a misidentification defense given the limited observation time of Det. Eppling and the greater possibility that the informant had purchased drugs from this individual before and thus had a greater observation time leading to a more reliable identification.

The State resisted the motion, contending the informant had been shown a photo montage of suspects prior to the hearing and positively identified Mr. Vargas.

An in camera hearing was held, during which the informant testified. The court determined the informant could aid the defense by identifying a black man who had been present at the buy, who could perhaps implicate another as the one who delivered the cocaine. The informant's identity was ordered revealed; the State refused and sought a stay of proceedings from this court, which was denied. The court then dismissed the charges.

The sole issue is whether the trial court erred by ordering disclosure of the identity of the confidential informant.

The State has a statutory right, also embodied in a court rule, to withhold the identity of a confidential informant. RCW 5.60.060(5); ¹ CrR 4.7(f)(2); ² Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957). The privilege is limited, however, to those cases where disclosure is "relevant and helpful to the defense ... or is essential to a fair determination of a cause ...". Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 628. See also State v. Harris, 91 Wash.2d 145, 148, 588 P.2d 720 (1978); State v. Redd, 51 Wash.App. 597, 606, 754 P.2d 1041, review denied, 111 Wash.2d 1007 (1988). Under these circumstances, a constitutional right to disclosure exists if exercise of the privilege will deny the defendant a fair trial. State v. Thetford, 109 Wash.2d 392, 396, 745 P.2d 496 (1987); Harris, 91 Wash.2d at 149, 588 P.2d 720; State v. Allen, 27 Wash.App. 41, 45, 615 P.2d 526, review denied 94 Wash.2d 1025 (1980).

The decision to hold an in camera hearing depends upon whether the informant is a material witness on the question of a defendant's guilt or innocence. State v. Casal, 103 Wash.2d 812, 816, 699 P.2d 1234 (1985). ³ The defendant must make an initial showing the informant may have evidence of his innocence. State v. Enriquez, 45 Wash.App. 580, 584, 725 P.2d 1384 (1986) (citing Allen, 27 Wash.App. at 48, 615 P.2d 526 (quoting State v. Potter, 25 Wash.App. 624, 628, 611 P.2d 1282 (1980))), review denied, 107 Wash.2d 1020 (1987). It is the defendant's burden to show (1) an in camera hearing is necessary and (2) disclosure of the informant's identity is warranted in order to insure the defendant a fair trial. The decision to hold an in camera hearing is discretionary. Redd, 51 Wash.App. at 606, 754 P.2d 1041 (citing State v. Uhthoff, 45 Wash.App. 261, 268, 724 P.2d 1103, review denied, 107 Wash.2d 1017 (1986)).

The State first contends there was insufficient evidence to justify an in camera hearing. Assuming the issue is not moot because an in camera hearing was held, Mr. Vargas argues his identity as the deliverer of the drugs was in issue and the confidential informant could testify as to identity. Unlike Enriquez and Redd, the informant here was present at the scene of the crime and could identify Mr. Vargas as the person who made the delivery. Thus, his testimony had a direct bearing on Mr. Vargas' guilt or innocence. The court did not abuse its discretion in holding the in camera hearing. Allen.

The State also contends Mr. Vargas did not make the necessary showing to warrant disclosure of the informant's identity. In determining when disclosure is justified, the court must take into consideration the particular circumstances of each case, such as "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; Harris, 91 Wash.2d at 150, 588 P.2d 720. In the consolidated cases of People v Goggins and People v. Brown, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. denied, 419 U.S. 1012, 95 S.Ct. 332, 42 L.Ed.2d 286 (1974), the court considered whether an informant should be identified when he introduced an undercover police officer to a drug seller and left the scene shortly before the actual sale. As noted in 356 N.Y.S.2d at 575-76, 313 N.E.2d at 44:

Limiting the adversary stance in criminal prosecutions, the State is obliged to disclose to a defendant evidence and potential witnesses possessed by or known to the prosecution which may establish his innocence. That such evidence or knowledge may involve prosecutorial privileges of one sort or another is to no avail. The privileges must yield to the overriding consideration of avoiding the risk of convicting the innocent, unless, of course, the prosecution should elect to abandon its case rather than allow disclosure.

....

Bare assertions or conclusory allegations by a defendant that a witness is needed to establish his innocence will not suffice. Instead he must show a basis in fact to establish that his demand does not have an improper motive and is not merely an angling in desperation for possible weaknesses in the prosecution's investigation.

On this point the nature of the informant's role is of some significance. Undoubtedly the strongest case for disclosure is made out when it appears that the informant was an eyewitness or a participant in the alleged crime.

(Citations omitted.) The case then described two situations which require disclosure: weaknesses in the prosecutor's case or development of the defense. Defendant Goggins established a need on both of these grounds. First, the prosecution's identification of him was based upon a very sketchy description not confirmed by any participant in the crime until 1 year...