State v. Zamora, No. 86-3079

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; HUBBART
Citation13 Fla. L. Weekly 2641,534 So.2d 864
Parties13 Fla. L. Weekly 2641 The STATE of Florida, Appellant, v. Juan P. ZAMORA, Valentin L. Chaves, Ismael Francisco Puente, and Lazaro Diaz, Appellees.
Decision Date06 December 1988
Docket NumberNo. 86-3079

Robert A. Butterworth, Atty. Gen. and Terry L. Redford and Joni Braunstein, Asst. Attys. Gen., for appellant.

John H. Lipinski, Miami, for appellee Puente.

No appearance by appellees Zamora, Chaves, and Diaz.



This is an appeal by the state from a trial court order dismissing an information for failure of the state to produce a confidential informant for an in camera review. For the reasons which follow, we reverse the order under review because there was no legal basis in the first instance to require such an in camera production of the confidential informant.


The facts of this case may be briefly stated as follows. The state filed an information before the circuit court in Dade County charging the defendants Juan P. Zamora, Valentin L. Chaves, Ismael Puente, and Lazaro Diaz with: (1) trafficking in cocaine, and (2) conspiracy to traffic in cocaine. 1 The defendants entered a plea of not guilty and the cause proceeded to a jury trial, during the course of which a mistrial was declared. Subsequent thereto, the defendant Diaz filed a motion to disclose the identity of a confidential informant who was allegedly used by the police in this case "to aid them in their investigation." [Motion for Disclosure, p. 1.] The motion for disclosure alleged, in effect, that on December 17, 1985, the confidential informant was a witness to a series of conversations between an undercover police officer and some of the defendants in this cause, which conversations ultimately led to an illegal cocaine sale to the said officer. The informant was allegedly used to introduce the undercover officer to potential sellers of cocaine, and apparently facilitated such an introduction to the defendant Chaves. The informant also allegedly witnessed the actual drug sale charged in this case. The motion asserts that the defendant Diaz is entitled to "the identity of the confidential informant as [the informant] is an essential witness in the defendant's defense"; this defense, however, is not identified or described in the motion. The above facts are based on a discovery deposition of the undercover police officer taken by the defendant Diaz subsequent to the mistrial in this case. 2

The motion for disclosure came on for a hearing below, and after receiving argument thereon, the trial court ordered the state to produce the confidential informant for the court's in camera review on the ground that the "confidential informant ... was both privy to and a witness to the entire transaction." [Dismissal order, para. 3]. During this hearing, counsel for defendant Diaz stated that his defense in the case was that Diaz did not touch the paper bag containing the alleged cocaine which was the subject of the charged drug sale, Diaz' sole alleged participation in the charged drug offenses; counsel, however, did not proffer how he intended to establish this defense, whether through Diaz' own testimony or through other evidence. The other defendants apparently joined in Diaz' motion for disclosure, but made no argument in support thereof.

At a subsequent hearing, the state announced that the undercover police officer could not find the confidential informant, and that, consequently, the state was unable to produce the said informant for the trial court's in camera review. At a later hearing on the defendant's ore tenus motion to dismiss the information for failure of the state to produce the confidential informant, the trial court heard argument from counsel for all the parties below. The basic position taken by the defendants at the hearing was that the confidential informant was present at all the relevant events in this case and was therefore an essential witness; certain contradictions in the depositions of various state witnesses were also noted and it was urged that the informant would have knowledge as to who was correct on these conflicts. No defense, however, was ever proffered by any of the defendants during this hearing. Moreover, the undercover police officer inexplicably failed to appear at this hearing to give testimony, as required, concerning his efforts to locate the confidential informant--so that the state had to concede, in effect, that the informant was lost due to the state's calculated official ignorance. At the conclusion of the argument, the trial court granted the motion to dismiss on the ground that "substantial prejudice" would be suffered by the defendants if required to go to trial without the testimony of the confidential informant. [Dismissal order, para. 5]. This appeal follows.


It is well settled in Florida that the state "has a limited privilege to withhold the identity of a confidential informer...." State v. Hassberger, 350 So.2d 1, 2 (Fla.1977); see Treverrow v. State, 194 So.2d 250, 252 (Fla.1967); Spataro v. State, 179 So.2d 873, 878 (Fla. 2d DCA 1965); State v. Hardy, 114 So.2d 344 (Fla. 1st DCA 1959); Harrington v. State, 110 So.2d 495, 497-98 (Fla. 1st DCA 1959). The underlying rationale for this limited privilege is based on strong public policy considerations which, in turn, serve to define the scope of the privilege. As the Court stated in the leading case of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (footnotes omitted):

"The purpose of the privilege [of nondisclosure] is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable."

As the court further stated in one of the early Florida cases on this subject:

"The privilege whereby law enforcement officers are not required to disclose the identity of those furnishing information with regard to the commission of crimes is based on sound public policy and has long been recognized by the courts of this country and of England. Hardy's Trial, 24 How.St.Tr. 99 (1794); United States v. Moses, 1827, 27 Fed.Cas. page 5, No. 15,825, 4 Wash.C.C. 726. It is common knowledge that without the aid of confidential informants the discovery and prevention of crime would present such a formidable task as practically to render hopeless the efforts of those charged with law enforcement. And the alarming fact that the underworld often wreaks vengeance upon informers would unquestionably deter the giving of such information if the identity of the informer should be required to be disclosed in all instances."

Harrington v. State, 110 So.2d 495, 497 (Fla. 1st DCA 1959).

It is equally well settled in Florida that this limited privilege must give way under certain compelling, but narrow, circumstances. This exception was first articulated in Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639, 645-46 (1957):

"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.


We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."

The Florida courts have since adopted this formulation of the exception. State v. Hassberger, 350 So.2d 1, 2 (Fla.1977); Treverrow v. State, 194 So.2d 250, 252 (Fla.1967); State v. Matney, 236 So.2d 166, 169 (Fla. 1st DCA 1970); Spataro v. State, 179 So.2d 873, 878 (Fla. 2d DCA 1965). The underlying rationale for this exception is that, notwithstanding the important public policy considerations which support the privilege of nondisclosure, these considerations cannot prevail where such nondisclosure either runs a substantial risk of convicting an innocent person or substantially threatens the accused's due process right to a fair trial. Moreover, it is clear that "the burden is upon the defendant claiming [the aforesaid] exception to the rule [of nondisclosure] to show why an exception should be invoked." Treverrow, 194 So.2d at 252; see State v. Acosta, 439 So.2d 1024, 1026 (Fla. 3d DCA 1983); State v. Kirksey, 418 So.2d 1152, 1154 (Fla. 1st DCA 1982); Elkins v. State, 388 So.2d 1314, 1315 (Fla. 5th DCA 1980); State v. Anderson, 329 So.2d 424 (Fla. 3d DCA 1976).


There are two alternative components to the aforesaid exception stated in Roviaro, either one of which if shown by the defendant is sufficient to overcome the limited privilege of nondisclosure. First, disclosure of the confidential informant is required where the informant's identity or the content of his communication is "relevant and helpful to the defense of an accused." Roviaro; Hassberger; Spataro; Matney. This component necessarily centers around a specific defense asserted by the defendant in the case, as to which the informant's testimony is material and helpful. Second, disclosure...

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