State v. Reeves

444 So. 2d 20
CourtDistrict Court of Appeal of Florida
DecidedOctober 7, 1983
Docket82-962
StatusPublished
Cited by6 cases

This text of 444 So. 2d 20 (State v. Reeves) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Reeves, 444 So. 2d 20 (Fla. Ct. App. 1983).

Opinion

444 So.2d 20 (1983)

STATE of Florida, Appellant,
v.
Scott P. REEVES, Appellee.

No. 82-962.

District Court of Appeal of Florida, Second District.

October 7, 1983.
Rehearing Denied January 20, 1984.

Jim Smith, Atty. Gen., Tallahassee, Theda James Davis and Katherine Blanco, Asst. Attys. Gen., Tampa, for appellant.

Davis G. Anderson, Jr., Tampa, for appellee.

HOBSON, Acting Chief Judge.

The state appeals an order granting Scott Reeves' motion to dismiss an information with prejudice. The motion was granted on the apparent ground that, due to improper action on the state's part, a confidential informant-eyewitness who participated in the alleged crime is choosing to invoke the Fifth Amendment privilege against self-incrimination rather than testify in the case. We reverse and remand.

*21 The state filed an information charging Reeves and one Dennis Gonzalez with trafficking in methaqualone in violation of sections 777.011 and 893.135(1)(e), Florida Statutes (1981). Hillsborough County Sheriff's Office Detective Donald Roman prepared a criminal report affidavit stating that Reeves and Gonzalez had delivered 5,000 methaqualone tablets to him on January 20, 1981, in exchange for $6,250.

Reeves filed a motion requesting the state to disclose the identity of a particular confidential informant (CI). He alleged in the motion that disclosure of the CI's identity would be "relevant and helpful" to his defense; that the CI was an "active participant in the alleged offense"; and that, other than Officer Roman, the CI was the only witness to the alleged drug transaction. Upon the state's application, the trial court issued a writ of habeas corpus ad testificandum commanding the release of the CI, one Manuel Paleaz, from the Zephyrhills Correctional Institute.

Paleaz, who has not been granted immunity by the state in this case, was produced by the state at an in camera proceeding. The following conversation transpired at this hearing:

THE COURT: ... Mr. Eberhart [Assistant State Attorney], it is not your intention to call Manuel Paleaz as a witness in this matter?
MR. EBERHART: No, sir, it is not.
THE COURT: He was the confident [sic] informant involved in the arrest in this case against Mr. Reeves but he refuses at this time to testify?
MR. EBERHART: That is correct, Your Honor.
THE COURT: Mr. Moore [Reeves' counsel], you want to add anything to it?
MR. MOORE: Your Honor, I think the record should reflect here the confidential informant refuses to testify based upon unkept promises made to him based upon the fact that he was promised by the detective who was working with him that he would not be disclosed nor be required to testify, and consequently, I also am deprived of the use of this man as a witness for any exculpatory information he might have as a result of misconduct on the part of the State.
Perhaps it would be advantageous at this time to bring him in here and see if he will address those issues on the record.
THE COURT: He is also raising the issue of Fifth Amendment rights which the State is not in the position to grant him in other jurisdictions and that would hold true for yourself. If you called him as a witness he would have that same right to do. If you want to call him in here and have him exercise his Fifth Amendment rights I think he would be in a position to do so.
MR. MOORE: I would like to do that, Your Honor.
THE COURT: Bring him in, please.
(Mr. Paleaz enters the chambers.)
THE COURT: Mr. Ficarrotta, you representing Mr. Paleaz in regard to this matter?
MR. FICARROTTA: For the record, I do represent him.
THE COURT: We are here in the interest of Scott Reeves. It is a trafficking in methaqualone case, Case Number 81-575. Mr. Paleaz was to be called as a witness by the State. It is my understanding that he does not wish to testify.
MR. EBERHART: That is correct, Your Honor.
THE COURT: Is that correct, Mr. Paleaz?
MR. PALEAZ: Yes, I don't want to testify.
MR. MOORE: Your Honor, may I inquire?
THE COURT: Yes, sir.
MR. MOORE: Is your reluctance to testify based in part upon promises made to you by Detective Roman to the effect that you work with them you would never have to testify and your identity would never be disclosed?
MR. FICARROTTA: May I have a minute, Judge?
THE COURT: All right.
*22 (Mr. Ficarrotta confers with Mr. Paleaz off the record.)
PALEAZ: I would rather not answer any questions. I would rather rest on the Fifth Amendment.
MR. MOORE: Thank you very much.
THE COURT: All right, sir. That is all we need from you.
(The hearing was concluded.)

Thereafter, Gaspar Ficarrotta, Paleaz' appointed counsel, was deposed. Ficarrotta testified that he had met with Paleaz and Officer Roman at the county jail several weeks before the date of the in camera hearing. Ficarrotta stated that at this meeting Officer Roman and Paleaz had discussed Officer Roman's promise of "some years back" that if Paleaz worked as a CI his identity would not be disclosed and he would not be required to testify. According to Ficarrotta, Officer Roman "concurred that that was the agreement" and "that if it came down to testifying or dropping of the case that the detective [Roman] would drop the cases." When asked if this was a factor in Paleaz' decision to invoke the Fifth Amendment, Ficarrotta, asserting the attorney-client privilege, refused to answer.

Reeves subsequently filed his motion to dismiss the information with prejudice, claiming that Paleaz' decision to raise the Fifth Amendment rather than testify for the state or the defense had resulted directly from Officer Roman's "improper and illegal" inducement. He asserted in an accompanying memorandum of law that Officer Roman's promise, imputed to the state, had deprived him of his due process right "to face and confront all witnesses against him, and ... [to have] access to testimony and information necessary to the presentation of his defense." The state filed a response to the motion which denied Reeves' claim that Officer Roman's promise was the reason for Paleaz' decision to assert the Fifth Amendment. It also said therein that it was not obliged to produce a witness to testify for the prosecution. Further, it contended in its reply that a dismissal would be improper inasmuch as Reeves had not demonstrated that Paleaz would testify in a material manner about a specific defense.[1]

The court below held a brief hearing on Reeves' motion to dismiss. The state submitted at this hearing that Paleaz' actual reason for refusing to testify was a fear for his personal safety. The court concluded the hearing by ruling in favor of the motion without comment. Thereafter, it rendered a summary order granting the motion.

On appeal, the state essentially raises the same arguments which it presented in response to Reeves' motion to dismiss. Meanwhile, Reeves again maintains that the state, through Officer Roman's promise to Paleaz, deprived him of due process of law.

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Bluebook (online)
444 So. 2d 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-reeves-fladistctapp-1983.