Wade v. State, 29235
| Decision Date | 24 September 1998 |
| Docket Number | No. 29235,29235 |
| Citation | 114 Nev. 914,966 P.2d 160 |
| Parties | Timothy Frank WADE, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
The primary claims of error address a federal agency's refusal to disclose allegedly exculpatory evidence and the district court's determination to admit taped conversations between the appellant and an unavailable confidential informant. For the reasons discussed below, we affirm the appellant's conviction.
Appellant, Timothy Wade ("Wade"), became the target of a federal investigation for drug trafficking in northern Nevada. 1 On or about January 18, 1994, the federal Drug Enforcement Agency ("DEA") placed a confidential informant, Clay Hodges ("Hodges"), on Wade's case. The DEA used Hodges to arrange drug deals and meetings between Wade and DEA agents, specifically, Agents Maria Cartagena ("Agent Cartagena") and Ronald Davis ("Agent Davis"). Thereafter, Hodges arranged for Agent Cartagena to purchase two pounds of methamphetamine from Wade, Nancy Lyn Woods ("Woods") and Heriberto Islas ("Islas"), for $21,000.
Per DEA instructions, Hodges taped several telephone and face-to-face conversations with Wade between January 18, 1994, and February 2, 1994. The record indicates that, over Wade's objection, five tapes containing numerous conversations between Hodges and Wade were admitted at trial and played for the jury during the State's case-in-chief. 2 In violation of his instructions, Hodges removed the wire for approximately six minutes during one of the face-to-face conversations with Wade, resulting in six minutes of silence on the tape. The jury was apprised of this gap. Other taped conversations presented at trial were between Wade and Agent Cartagena.
On February 2, 1994, Agent Cartagena, equipped with a wire and accompanied by additional undercover officers, agreed to meet Wade at a Reno hotel to consummate the drug transaction. Wade, Woods, and Islas were all present at the hotel cafe and assisted in the exchange of money for methamphetamine. After the exchange, Agent Cartagena and back-up law enforcement officers arrested Wade, Islas, and Woods for conspiracy to sell a controlled substance and for trafficking. For unknown reasons, the United States Attorney's Office decided not to prosecute this case. The matter was then taken over by the Washoe County District Attorney's Office.
Among the ninety-four items that Wade requested during the discovery process, he specifically requested the State to disclose the confidential informant file ("CI file") on Hodges and all recorded telephone conversations. Wade also requested that the State produce Islas and Hodges as material witnesses. 3
The district court held a pre-trial hearing to determine whether the tapes were admissible and whether the State committed discovery violations by refusing to disclose or produce exculpatory evidence consisting of the CI file on Hodges, complete transcripts of the taped conversations and/or the tapes themselves, and witnesses material to Wade's defense. During this hearing, the State maintained that it had an "open file" policy; that is, it had disclosed all discoverable information to Wade. Upon further explanation, the State informed the district court that the DEA, without referring to any specific documents, refused to disclose all the information it possessed on Hodges. Agent Cartagena also testified that certain confidential information on Hodges remained in his CI file, despite Hodges' "deactivation" as a DEA informant. 4 The State corroborated this representation by stating that some of the information was confidential and, therefore, nondiscoverable.
Failing in its efforts to locate Hodges prior to trial, the State apprised the district court and the defense that, even if Hodges could not be located, it did not intend to utilize Hodges' dialogue on the tapes in lieu of his testimony. Rather, it maintained that Hodges' taped statements would be only used for the limited purpose of providing a context for Wade's conversations. 5
At trial, Wade was convicted of conspiracy to sell a controlled substance and sale of twenty-eight or more grams of methamphetamines. At oral argument before this court, counsel for Wade primarily assigned error to the district court's admission of the tapes and the State's failure to disclose potentially exculpatory evidence. 6
Admissibility of the taped conversations between Wade and Hodges.
The determination of whether to admit evidence is within the sound discretion of the district court, and that determination will not be disturbed unless manifestly wrong. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).
In admitting the taped conversations, the district court relied on United States v. Tangeman, 30 F.3d 950 (8th Cir.1994). See also United States v. Inadi, 475 U.S. 387, 398 n. 11, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); United States v. McKneely, 69 F.3d 1067 (10th Cir.1995). Wade objected to the admission of these tapes on three grounds: 1) the State's failure to establish a chain of custody; 2) the fact that Hodges' unavailability prevented Hodges from testifying that he consented to being taped; and 3) hearsay. 7
In Tangeman, an informant's statements on a tape recorded conversation with a defendant were determined to be nonhearsay. Tangeman, 30 F.3d at 952. The court analyzed the case based upon a defendant's right to confront witnesses pursuant to the Sixth Amendment because the informant there had also become unavailable. Id. In holding that the tapes were nonhearsay, the court stated:
We agree with the district court ... that [the informant's] statements were offered to provide context for Tangeman's admissions and not to prove the truth of the matters asserted therein. The court also cautioned the jury that voices in the recordings other than Tangeman's were to be considered only to place Tangeman's statements in context.
We agree with the rationale in Tangeman and, therefore, adopt that federal court's approach when such circumstances present themselves. Accordingly, we conclude that the State did not introduce Hodges' statements on the tapes to prove the truth of the matter asserted, but only for the limited purpose of providing a context for Wade's statements. See NRS 51.035. The record reflects that the State argued this precise rationale before the district court at the time Wade objected to admission of the tapes below. Because we adopt the approach taken in Tangeman, we further conclude that the tapes are nonhearsay and, therefore, their admission into evidence did not violate Wade's rights of confrontation.
Failure to disclose the CI file.
Although we have previously addressed the State's duty to provide the defendant with all potentially exculpatory evidence in its control or possession, we have yet to consider the novel situation where an independent federal agency refuses to disclose what it regards as confidential information contained in an internal CI file. See Roberts v. State, 110 Nev. 1121, 881 P.2d 1 (1994) (); see also U.S. v. Spires, 3 F.3d 1234 (9th Cir.1993).
In Roberts, the defendant made a specific Brady request for a CI file on the informant well in advance of trial. Roberts, 110 Nev. at 1131, 881 P.2d at 7. The district court held three hearings to determine what information, if any, should be disclosed. Id. The district court ultimately ordered disclosure of the CI file on a Las Vegas Metropolitan Police Department's informant, to which the State had access. Id. at 1132, 881 P.2d at 3. The prosecution failed to produce the file or to submit it to the court for in camera review following the defendant's specific materiality claim. Id. at 1132, 881 P.2d at 9. In reversing Roberts' conviction, this court stated:
[I]t cannot be said that the district court judge ruled Roberts' entrapment claim without merit, for the judge instructed the jury on entrapment, indicating that Roberts presented evidence at trial sufficient to require an instruction on this theory. Accordingly, relevant impeachment evidence in Noel's [the informant's] CI file, as it relates to the alleged offense and Roberts' claim of entrapment, would have been admissible at trial.
In this case, the DEA refused to disclose the CI file on Hodges to the State. Given the prosecution's disclosure of the entirety of the DEA materials disclosed to it, and the testimony of DEA agents assigned to the case that certain confidential information was nondiscoverable, the record strongly suggests that not even the State was privy to the information contained in the CI file.
We conclude that the case at bar is readily distinguishable from Roberts. In Roberts, the working relationship between the state and local police compelled the conclusion that they were a single entity for the purposes of providing discovery in criminal prosecutions. Further, the prosecution actively possessed the CI file in Roberts. We emphasize that the State may not circumvent the discovery process by claiming that a local police department, an agent of the State, refuses to disclose such documents. Therefore, when this situation presents itself, the Brady rule applies. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
At oral argument, Wade's counsel conceded that he did not believe that the State had any knowledge of the DEA's CI file on Hodges. Wade's counsel further represented that the only reason he knew that a CI...
To continue reading
Request your trial
-
Fields v. State, 50497.
..."tape is what the tape is." It was properly authenticated. The jury did not have to believe or like Wells. See Wade v. State, 114 Nev. 914, 917-18, 966 P.2d 160, 162-63 (1998) (upholding admission of tape-recorded conversation with an informant for the defendant's statements, not the inform......
-
Carroll v. State
...offered to provide context to another person's statement, rather than for its own truth, is not hearsay. Wade v. State, 114 Nev. 914, 917–18, 966 P.2d 160, 162–63 (1998), opinion modified on denial of reh'g, 115 Nev. 290, 986 P.2d 438 (1999).Carroll's argument that his statements were inadm......
-
Wade v. State
...A. Gammick, Dist. Atty. and Terrence P. McCarthy, Deputy Dist. Atty., Washoe Co., for respondent. OPINION PER CURIAM: In Wade v. State, 114 Nev. 914, 966 P.2d 160 (1998), this court affirmed appellant Timothy Frank Wade's conviction of one count of conspiracy to sell a controlled substance ......
-
Ford v. State
...the California authorities who had the information were acting as agents of the State in this prosecution. See Wade v. State , 114 Nev. 914, 920-21, 966 P.2d 160, 164 (1998) (finding no Brady violation where the State did not possess a file within the control of the DEA and the DEA "did not......