State v. Allen

615 P.2d 526, 27 Wash. App. 41

Opinions

Ringold, J.

The defendant, Phyllis Marie Allen, appeals from a judgment and sentence for possession of narcotics. The sole assignment of error relates to the failure of the trial court to order either disclosure of the State's confidential informant or an in camera hearing.

On February 13, 1978, a confidential informant entered an apartment in Seattle where he observed a sale of heroin by a person named "Tree" and an unidentified third person. On the basis of the informant's observations, on February 14 a search warrant was obtained. The search turned up valium and heroin and the police arrested Ms. Allen and Mr. Rountree, presumably the person previously referred to as "Tree."

Before the criminal motions judge, the defendant moved for disclosure of the confidential informant, but failed to request an in camera hearing. Shortly thereafter the court denied the motion.¹ There was no evidentiary hearing, in camera or otherwise. Thereafter the trial was held before another judge sitting without a jury.

Allen argues that the informant was a material witness; since the State's case against her was based upon constructive possession, any information that might show ownership or possession in another person would be material. When there is a possibility of such testimony, the trial court must at least conduct an in camera hearing to assess the testimony. State v. Harris, 91 Wn.2d 145, 588 P.2d 720 (1978); State v. Burleson, 18 Wn. App. 233, 566 P.2d 1277 (1977); Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957).

Conceding that the informant might be able to testify that another person had actual possession of some of the drugs, the State contends that no case authority makes an in camera hearing mandatory. Further, the State urges that this court cannot decide whether disclosure was improperly denied because at the omnibus hearing counsel failed to request an in camera hearing.

Constitutional Issue

Ordinarily an issue raised for the first time on appeal will not be addressed by the appellate court. State v. Jamison, 25 Wn. App. 68, 75, 604 P.2d 1017 (1979). When the alleged error is the abridgment of a defendant's constitutional right, however, an appellate court may decide an issue not raised at trial. State v. Wicke, 91 Wn.2d 638, 591 P.2d 452 (1979). We first consider whether a defendant's entitlement to disclosure of an informant is of constitutional stature. If so, failure of defense counsel to request a hearing will not foreclose this court from requiring one.

The basis of Roviaro is that "fundamental requirements of fairness" may require disclosure of a confidential informant.

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. 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. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.

(Footnote omitted.) Roviaro v. United States, supra at 60-61.

In an exhaustive analysis, a commentator has noted:

Even if one reads Roviaro as based on the Court's supervisory jurisdiction over the lower federal courts, Rouiaro's reasoning and language suggest that the decision was constitutionally compelled. Having concluded that the government has a significant interest in preserving the confidentiality of its sources of information to support a federal "informer privilege," the Court found that the scope of such a privilege does not extend so far as to allow concealment of exculpatory testimony. As noted by Westen:[²] "[W]hile the Court defined the scope of the federal privilege on nonconstitutional grounds by weighing the two conflicting interests, one of those interests—giving the defendant the 'right to prepare his defense'—is constitutionally based and would compel the same result on constitutional grounds."

Bewers, Defendant's Right to a Confidential Informant's Identity, 40 La. L. Rev. 147, 158-59 (1979). The Fourteenth Amendment constitutional requirement of due process has been equated to basic concepts of fairness. Ham v. South Carolina, 409 U.S. 524, 35 L. Ed. 2d 46, 93 S. Ct. 848 (1973); Washington v. Texas, 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967); Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Lisenba v. California, 314 U.S. 219, 86 L. Ed. 166, 62 S. Ct. 280 (1941). A writ of habeas corpus which must be based on a constitutional infringement³ was granted for failure to order disclosure in Hernandez v. Nelson, 298 F. Supp. 682, 685-87 (N.D. Cal. 1968), aff'd, 411 F.2d 619 (9th Cir. 1969). See also United States ex rel. Drew v. Myers, 327 F.2d 174, 180-81 (3d Cir.), cert. denied, 379 U.S. 847, 13 L. Ed. 2d 52, 85 S. Ct. 88 (1964).

On the basis of fairness as a constitutional requirement of the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) held that the prosecution's failure to disclose a codefendant's extrajudicial confession was reversible error. The court reemphasized the importance of fairness to our judicial system:

The principle of Mooney v. Holohan [294 U.S. 103, 79 L. Ed. 791, 55 S. Ct. 340, 98 A.L.R. 406 (1935)] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.

Brady v. Maryland, supra at 87.

CrR 4.7(f)(2) provides that disclosure of the identity of a confidential informant may be required only when "failure to disclose will . . . infringe upon the constitutional rights of the defendant." Yet our Supreme Court has required an in camera hearing for the determination whether disclosure should be required, thus implicitly recognizing the possible infringement of a defendant's constitutional rights by denial of a defense motion to disclose. State v. Harris, supra.4

For these reasons we hold that the inquiry whether a confidential informant's identity must be disclosed to an accused is clothed in a constitutional mantle. Hawkins v. Robinson, 367 F. Supp. 1025 (D. Conn. 1973).

The constitutional due process character of the disclosure issue brings this case into analogical parallel with cases wherein defense counsel has failed at trial to request a CrR 3.5 hearing for the ascertainment of the voluntariness of custodial statements made by the defendant. In State v. Joseph, 10 Wn. App. 827, 520 P.2d 635, review denied, 84 Wn.2d 1006 (1974), the issue of the voluntariness of Joseph's custodial statements was raised when the State called an officer to testify regarding custodial statements made to him by the accused. We stated:

Joseph's trial counsel at no point requested such a hearing, but his failure to do so does not preclude appellate review because a denial of basic constitutional rights is raised in the asserted errors. . . .

The record on appeal does not enable us to determine whether Joseph "knowingly and intentionally" waived a CrR 101.20W [now CrR 3.5] . . . Accordingly, we remand for the purpose of a CrR 101.20W hearing for a judicial determination of "voluntariness." ... If the trial judge determines that Joseph was not denied his Sixth Amendment right to counsel and that his statements to the detective were given voluntarily and without coercion, the verdict will stand. If not, Joseph will be granted a new trial.

(Citations omitted.) State v. Joseph, supra at 831.

Here the issue of disclosure was raised, but an in camera hearing not requested. Because disclosure is a matter of constitutional concern, we hold as in Joseph "[the] failure to do so does not preclude appellate review because a denial of basic constitutional rights is raised in the asserted errors."

Importance of In Camera Hearing

We held in State v. Burleson, supra at 237:

Where, as here, the defendants made a preliminary showing that disclosure of the informant was necessary, an in camera interrogation of the police officer was the appropriate means of satisfying the balancing of interests required by Roviaro, and is authorized by court rule. CrR 4.7(h)(6).

The trial court had conducted an in camera hearing in Burleson. The Harris court remanded for an in camera hearing. Harris, at 152.

An in camera hearing as a forum for counterposing an asserted privilege against an evidential need is not new to the law, and is a generally acknowledged device for determining whether a privilege is to be honored. In Jencks v. United States, 353 U.S. 657, 1 L. Ed. 2d 1103, 77 S. Ct. 1007 (1957), the United States Supreme Court ordered an in camera hearing as a means of determining whether two government witnesses' written reports, allegedly corroborative of their trial testimony, should be disclosed to the defense. In concurrence, Justices Burton and Harlan said:

[T]he trial court, before disclosing the privileged material to the defendant, [must] pass on the question by examining in camera the portions claimed to be privileged. Cf. Bowman Dairy Co. v. United States, 341 U.S. 214, 221. There is nothing novel or unfair about such a procedure. According to Wigmore, it is customary.

". . . it is obviously not for the witness to withhold the documents upon his mere assertion that they are not relevant or that they are privileged. The question of Relevancy is never one for the witness to concern himself with; nor is the applicability of a privilege to be left to his decision. It is his duty to bring what the Court requires; and the Court can then to its own satisfaction determine by inspection whether the documents produced are irrelevant or privileged. This does not deprive the witness of any rights of privacy, since the Court's determination is made by its own inspection, without submitting the documents to the opponent's view. ..." (Emphasis deleted and supplied.) VIII Wigmore, Evidence (3d ed. 1940), 117-118.

Jencks v. United States, supra at 676.

In an analogous situation in a civil action, this court held:

[I]n cases where governmental privilege is asserted, in camera examination is a function which the judiciary must perform. "Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." United States v. Reynolds, 345 U.S. 1, 9, 97 L. Ed. 727, 73 S. Ct. 528, 32 A.L.R.2d 382 (1953).

Cook v. King County, 9 Wn. App. 50, 54, 510 P.2d 659 (1973).

Our Supreme Court codified this traditional rule in CrR 4.7(h)(6) which provides:

Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosure, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.

(Italics ours.)

An in camera hearing is a means by which the trial court controls evidence in a lawsuit.⁵ In view of the mandate of the constitution, information helpful to possible defenses of a defendant such as entrapment, alibi, mistaken identity, lack of sufficient knowledge on the part of the accused whose knowledge is an element of the crime all require disclosure unless the governmental privilege is overwhelming. When a confidential informant has contributed in some way to the State's case, and the defendant makes the requisite showing of relevance, such a hearing is necessary for the protection of the defendant's due process rights.

Next we consider the showing that must be made by the defendant, and the showing that was made in this case.

Necessity of Hearing

An in camera hearing is necessary only when "the defendant makes an initial showing that the confidential informant may have evidence that would be relevant to the defendant's innocence." State v. Potter, 25 Wn. App. 624, 628, 611 P.2d 1282 (1980).

Since Allen was the renter of the apartment, and drugs were found in more than one room, the State has made out a prima facie case of constructive possession.⁶ State v. Chakos, 74 Wn.2d 154, 443 P.2d 815 (1968). The burden then is on the defendant to produce evidence rebutting such possession. State v. Morris, 70 Wn.2d 27, 422 P.2d 27 (1966). If she can show that her possession was unwitting, lawful, or otherwise excusable, she will have made out a defense. State v. Morris, supra. The informant may know facts relevant to the character of Rountree's possession. Of course, if Rountree had sole ownership of the contraband, Allen's defense of unwitting possession would be materially benefited. Allen has met the relevancy test for requiring an in camera hearing. State v. Potter, supra. Potter prescribes the procedures to be followed at such hearing. Potter, at 628-29.

We remand this case for an in camera hearing.

[T]he judge will decide whether disclosure of the identity would have been relevant and helpful to appellant or essential to a fair determination of the cause. If so, disclosure was erroneously denied at the first trial, and appellant is entitled to a new trial. If not, disclosure was not erroneously denied and appellant's conviction must be affirmed.

State v. Harris, 91 Wn.2d 145, 152, 588 P.2d 720 (1978).

Durham-Divelbiss, J., concurs.

Footnotes

1

The record does not reflect whether the court considered holding an in camera hearing. The court took the matter under advisement and later issued an off-the-record ruling. Thus the manner in which the court resolved the issue whether to hold an in camera hearing or to order disclosure is not of record.

2

Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567 (1978).

3

28 U.S.C. § 2254(a) (1977) provides: "The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."

4

It is noteworthy that in State v. Harris, supra, the Supreme Court fashioned the rule regarding the in camera hearing even though no request or suggestion had been made by any party to the trial court for such hearing. In Harris the issue arose during the course of the cross-examination of a police officer at the trial who testified to the information obtained from a confidential informant which related to the officer's activities in the case. Defense counsel requested the identity of the informant. The trial court denied the request without explanation.

5

Since a record must be made the appellate court can effectively review the trial court's determination.

6

The issue of whether knowledge is an element of the crime of possession of narcotics, which the State is required to prove beyond a reasonable doubt, is not before us. Compare State v. Weaver, 24 Wn. App. 83, 600 P.2d 598 (1979) and State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979) with State v. Hartzog, 26 Wn. App. 576, 615 P.2d 480 (1980).