State v. Enriquez

725 P.2d 1384, 45 Wash. App. 580, 1986 Wash. App. LEXIS 3357
CourtCourt of Appeals of Washington
DecidedOctober 6, 1986
Docket15447-8-I
StatusPublished
Cited by9 cases

This text of 725 P.2d 1384 (State v. Enriquez) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Enriquez, 725 P.2d 1384, 45 Wash. App. 580, 1986 Wash. App. LEXIS 3357 (Wash. Ct. App. 1986).

Opinions

Scholfield, C.J.

—Jesus Auitia Enriquez appeals from his conviction for the sale of a controlled substance, assigning error to the trial court's refusal to compel disclosure of the identity of a confidential informant or hold an in camera hearing concerning the disclosure issue. We affirm.

Facts

Enriquez was charged on May 31, 1984, with the unlawful delivery of cocaine to an undercover police officer. Prior to trial, he moved to compel disclosure of the identity of the informant who had helped to arrange the sale. A hearing on the motion was held before the criminal motions judge.

At that hearing, undercover Detective Duane Lewis testified that he was told by an informant, known as Juan, that Enriquez was dealing cocaine out of an apartment house. Lewis testified that he instructed the informant to get to know Enriquez, and if he was dealing they would set up a controlled buy.

Over the next 2V& to 3 weeks, Juan met with Enriquez about six times. Enriquez testified that Juan suggested to him several times that Enriquez could better support his cocaine addiction if Enriquez sold cocaine and that he knew someone who wanted to buy. Eventually, Enriquez agreed to meet on April 27, 1984, with a potential buyer named Steve, who was actually Detective Lewis. Enriquez testified that Juan coached him on what to say to "Steve", what to sell him, and what price to ask. Detective Lewis told the court that, when he first met Enriquez, it was apparent that [582]*582he and the informant had discussed the drug deal but had made no plans nor were they in the process of making plans to go through with the sale.

Negotiations for the sale of cocaine and heroin were begun, and Enriquez indicated that the people he worked for wanted to move slowly on the deal. Over the next 4 weeks, there were several meetings to negotiate the price and the quantity of the sale. Juan was present at some but not all of these meetings. One such meeting, which Juan did not attend, was called for by Enriquez on May 9. Lewis testified that Enriquez was concerned that his arrest a week earlier for carrying a concealed weapon and possession of cocaine would sour their deal, and wanted to assure Lewis that "[h]e was trying his best to make the deal happen."

At about 5 p.m. on May 25, 1984, Lewis met with Enri-quez at a local diner to make the narcotics sale. Juan was not present. After three attempts to contact his "supplier", Enriquez finally told Lewis that the cocaine would be delivered about 8 p.m. At around 8 p.m., Enriquez left the diner, returning a short time later with the narcotics. He and Lewis went to Enriquez' car, the deal was consummated and Enriquez was arrested.

Enriquez brought a pretrial motion to compel the State to disclose Juan's true identity, arguing that the informant's testimony was necessary to his defense of entrapment. The court denied the motion and also denied Enriquez' request for an in camera hearing on the matter. The case proceeded to trial. The defense of entrapment was raised, and an instruction on the issue was given to the jury. Nevertheless, Enriquez was found guilty as charged.

Enriquez appeals, asking that his case be remanded for an in camera hearing pursuant to CrR 4.7(h)(6) to determine whether the disclosure of the informant's identity is required.

Informer's Privilege

Enriquez contends that the evidence clearly established that the testimony of the informant would have been rele[583]*583vant to his entrapment defense. He argues that either the court should have ordered the disclosure of the informant's identity or at least held an in camera hearing. We disagree.

What is commonly referred to as the "informer's privilege" is actually the government's privilege to withhold the identity of police informants. The privilege is recognized in Washington both by statute and court rule. RCW 5.60-.060(5); CrR 4.7(f)(2). Its purpose is to preserve the public interest in law enforcement by encouraging citizens to communicate their knowledge of the commission of crime to the police, while preserving their anonymity. Roviaro v. United States, 353 U.S. 53, 59, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957). The privilege is not absolute, however, and where disclosure of the informant's identity "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." Roviaro, at 60-61.

There is no fixed rule to determine whether disclosure is justifiable. The court must balance the public interest in protecting the flow of information against the individual's right to prepare his defense. Roviaro, at 62. The proper balance depends upon 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." Roviaro, at 62.

The failure of the court to order disclosure where required under the standards set out in Roviaro violates notions of fundamental fairness and is prejudicial error. Roviaro, at 60, 65. Thus, if as a matter of fundamental fairness the defendant is entitled to the information, it does not matter whether the testimony of the informer would support the accused or not; if the trial court refuses to compel disclosure, the defendant's remedy is a new trial. State v. Harris, 91 Wn.2d 145, 149, 588 P.2d 720 (1978). The preferred method for determining whether to disclose without prejudicing the rights of either the State or the defendant, is for the court to hold an in camera session at which the judge hears the informer's testimony and applies [584]*584the Roviaro standard. State v. Harris, supra at 150; CrR 4.7(h)(6).1

However, an in camera hearing is only necessary where "'the defendant makes an initial showing that the confidential informant may have evidence that would be relevant to the defendant's innocence.'" State v. Allen, 27 Wn. App. 41, 48, 615 P.2d 526 (quoting State v. Potter, 25 Wn. App. 624, 628, 611 P.2d 1282 (1980)), review denied, 94 Wn.2d 1025 (1980). The defendant then carries the burden of showing a justification for an exception to the rule of nondisclosure. State v. Massey, 68 Wn.2d 88, 92, 411 P.2d 422, cert. denied, 385 U.S. 904 (1966). Thus, even when the informer is a material witness, it may be that disclosure will not be required unless knowledge of the informer's identity would be "relevant and helpful" to the defendant under the circumstances and in light of the considerations outlined in Roviaro. State v. Harris, supra at 150-51.

In the instant case, Enriquez argues that the testimony of the informant would have been relevant and helpful to his entrapment defense since the informant was a material witness to, and a primary actor in, the entrapment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Arbogast
506 P.3d 1238 (Washington Supreme Court, 2022)
State Of Washington, V Brandon Christopher Pamon
Court of Appeals of Washington, 2022
State of Washington v. Douglas Virgil Arbogast
478 P.3d 115 (Court of Appeals of Washington, 2020)
State of Washington v. Bogar Rivera-Zamora
435 P.3d 844 (Court of Appeals of Washington, 2019)
State of Washington v. Paul Anthony Carson
Court of Appeals of Washington, 2018
State v. Trujillo
883 P.2d 329 (Court of Appeals of Washington, 1994)
State v. Vazquez
832 P.2d 883 (Court of Appeals of Washington, 1992)
State v. Vargas
793 P.2d 455 (Court of Appeals of Washington, 1990)
State v. Knight
772 P.2d 1042 (Court of Appeals of Washington, 1989)
State v. Enriquez
725 P.2d 1384 (Court of Appeals of Washington, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
725 P.2d 1384, 45 Wash. App. 580, 1986 Wash. App. LEXIS 3357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-enriquez-washctapp-1986.