White v. State

517 S.W.2d 543, 1974 Tex. Crim. App. LEXIS 1971

Opinions

OPINION

ODOM, Judge.

Appellant was convicted of sale of heroin; punishment, enhanced under Article 63, Vernon’s Ann.P.C., was assessed at life.

Appellant contends that he was denied his right to compulsory process, in violation of his rights under the Sixth Amendment of the United States Constitution.

I.

The record reflects that prior to trial appellant filed a motion alleging that Jimmy Martinez Leveine was present at the time the offense was alleged to have occurred, and would testify that appellant did not commit the offense, and alleging further that before the indictment or arrest of appellant an officer of the San Antonio Police Department instructed Leveine to leave Bexar County and provided him with funds to do so, knowing Leveine would he a material witness for the defense, and for the purpose of concealing evidence and depriving appellant of the right to compulsory process to secure witnesses in his behalf.

Testimony presented at the hearing prior to trial reveals that Leveine was present at the time of the alleged transaction. Officer Chevera, to whom the sale was made, testified that Leveine was his informer and part of his “cover” to protect the secret nature of his undercover work, and that as such Leveine was present prior to, during, and after the transaction, and was in fact the only person present other than appellant and Chevera himself. Later, Lieutenant Slocum testified that after the conclusion of Leveine’s work with Chevera he and Leveine had a conversation. The statement of facts reflects:

“Q. What did you discuss at that time ? ■

■ “A. He thought he ought to leave town and I thought it was a real good idea.

“Q. You told him you thought it was a good idea if he left town ?

“A. Yes, sir.

“Q. When you told him it would be a good idea if he left town did you give him any money to do so ?

“A. He said he needed some money to eat and I gave him or had seventy-five dollars sent to him.

“Q. You didn’t give him any money at that time ?

“A. No, sir.

“Q. How did you send him the money?

“A. By one of my officers.

⅝ ⅝ ⅝ ⅜ ⅝ sfc

“Q. . . . you know that Jimmy Leveine had been working with Albert Chevera on a day-to-day basis on these cases; don’t you ?

“A. Yes, sir.

“Q. And so you knew most of the cases that Chevera had made, that Jimmy Leveine had been present with him at the time ?

“A. Probably a good percentage of them.”

At the close of the pretrial hearing, the court found:

“He [the witness, Leveine] has not been concealed, you have been told his name and who he is. * * *

“The basis of your argument is the government or prosecution is dependent upon the whims of a snitch, which cannot be. Whether he stays around or not would be enough to defeat the government’s right to prosecute a man for trial, which can’t be.”

Appellant asserts this record reflects a denial of his right to compulsory process. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), this constitutional right was described in the following language:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.”

II.

Concerning the showing necessary to support a claim of denial of compulsory process, this Court in Hardin v. State, 471 S.W.2d 60, at 62, stated:

“Where a defendant seeks a continuance because of an unavailable witness the Texas. Legislature demands that the motion set forth the 'facts which are expected to be proved by the witness, and it must appear to the court that they are material.’ Article 29.06(3), V.A.C.C.P. It is further required that ‘the facts set forth in said motion were probably true.’ Article 29.06(6), V.A.C.C.P. As a minimum requirement to determine the materiality and truth of the facts set forth the Legislature has also determined that ‘[a] 11 motions for continuance on the part of the defendant must be sworn to by himself.’ Article 29.08, V.A.C.C.P.

“This Court has consistently and recently held that no reversible error exists where a defendant sought either a continuance to get his witness, or an 'attachment of witness,’ where the defendant did not offer a sworn statement at the time of the motion saying what the witness would have testified to. Brito v. State, Tex.Cr.App., 459 S.W.2d 834. See also Ex parte Selby, Tex.Cr.App., 442 S.W.2d 706.

“The same rights of a defendant are at stake when he seeks a continuance to get a witness, an attachment of a witness, or a bench warrant for a witness: has his constitutional right to compulsory process of a witness been denied. The same issue is before the court in each instance : whether the request of a witness by the defendant is a futile act which will only serve to cause delay rather than to promote justice. Where a defendant seeks compulsory process for a witness to appear in his defense which results in a continuance, an attachment, or a bench warrant the court is within its rights to demand sufficient appearance of the materiality of the witness’ testimony. An affidavit or sworn testimony by the defendant saying what the witness would testify to is a reasonable minimum requirement.

“In the instant case the appellant did not make a sworn statement and said nothing. His attorney took the stand during the trial to state that his work product and investigation convinced him that these five witnesses would, if present, have testified that appellant could not possibly have been in the City of Midland on the day alleged in the indictment. He further testified that neither he nor his investigator had seen or talked to any of the five witnesses and did not know what they would say. The record is devoid of any showing during the trial or in a motion for new trial of what the witnesses would have testified or if they were willing to testify.”

In the instant case there is no such showing of what Leveine would have testified. Were this a claim of a denial of a motion for continuance, an attachment, or a bench warrant, this failure would be sufficient to support the conclusion that materiality was not shown. Here, however, appellant does not claim the ruling of the trial court denied his right to compulsory process, but rather, that his right to compulsory process was pre-empted by action of the State in the nature of suppression of evidence. The allegations of appellant, if true, would constitute a most serious violation of his right to compulsory process, since it alleges elements of suppression of evidence as well, which, by accomplishing a successful “disappearance” of the witness, result in defeating the possibility of compelling his attendance even before the right can be asserted, and result in such a thorough suppression of evidence as to prevent a showing of precisely what the evidence would be, since the witness was gone before any chance to determine what his testimony would be even arose.¹

The record, however, does not support appellant’s claim that agents of the State instructed Leveine to leave town for the purpose of concealing evidence and depriving appellant of the right to compulsory process. But even though the record shows neither such direct instruction nor such condemnable purpose, it does show, by Officer Slocum’s own admission, that he knew Leveine was an active participant in making many cases with Chevera, and that with such knowledge he actively participated in facilitating and encouraging Lev-eine’s departure, by approving of Leveine’s suggestion that he (Leveine) leave town, by promising him money to assist him in leaving, and by having the promised money delivered by one of his officers. Thus, the record does show State action resulting in Leveine being unavailable as a witness.

Since Leveine was not available, it is impossible to say precisely what his testimony would be, but since he was the only witness present at the alleged transaction other than the accused and the undercover agent, all the evidence on materiality points unquestionably toward the conclusion that Leveine would be a material witness.² Under a claim of State action resulting in the unavailability of a witness, as opposed to a claim of trial court error in refusing to compel attendance of a witness,³ we find the showing of materiality was sufficient. Materiality, however, is not the sole question before us.

III.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, it was held:

“ . . . that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

That principle was reaffirmed in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L. Ed.2d 706, with this observation:

“Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence.”

Moore held the evidence therein not material. Such cannot be said of the situation here, as shown above, because of the nature of the “suppression” involved. The action of the State complained of is not the withholding of evidence in the possession of the State which has subsequently come to light and been found favorable to the accused. It is, rather, action contributing to the absence of a material witness so that, apparently, the witness and the evidence he could give were placed beyond the reach of both the defense and the State. This unique character of the alleged suppression demonstrates the inappropriateness of the three-pronged test stated in Brady and Moore.

The acts complained of occurred before appellant could make any request, and were not of an ongoing character, so the requirement that the suppression be after a request is not applicable. We think the purpose of this requirement in a Brady situation is twofold: that the defense make a timely request, and that the State be on notice of what is required of it when the acts of suppression are committed. From the record before us it is clear that appellant timely sought to secure Leveine. Regarding the State’s being on notice of what was required of it, Slocum knew Leveine had been working closely with Chevera on numerous cases on a day-to-day basis, and that he was present on at least “a good percentage of them.” Although the record does not show that Slocum knew which particular cases in which Leveine would be a material witness, he knew that Leveine participated in undercover operations over a four month period during which Slocum met with him about a dozen times, and knew that he would be a material witness in some of those cases. Knowing that, we do not believe the State can contend, nor has it contended, that Slocum’s lack of knowledge, if he lacked such knowledge, that Leveine would in fact be a material witness in this particular case can negate the notice Slocum had, at the time he supported and participated in Leveine’s plan to leave town, that Leveine would be a material witness. Thus the dual purposes of the State’s being on notice and the defense making timely request are met in this case.

IV.

The second and third elements stated in Brady and Moore are that the evidence be material and favorable for the defense. Again, the nature of the alleged suppression is such that the precise content of the evidence cannot be shown. The obvious purpose of these requirements is that if the evidence were not favorable and material the fact that it was not presented to the jury could not have harmed the defense. Here, however, we have found that sufficient materiality has been shown. In this respect a close analogy is found in those cases stating the test for requiring disclosure of the identity of a confidential informant. As explained in Aguilar v. State, 444 S.W.2d 935, unless the informer participated in the offense, was present at the time, or is otherwise shown to be a material witness as to whether the appellant committed the act charged, his identity need not be disclosed. But if such materiality be shown, the identity must be revealed. Such was the case in James v. State, 493 S.W.2d 201, in which this Court ordered reversal because of the failure to disclose the identity of an informer who was shown to be a material witness because he was present at the sale of marihuana, even though he was not an actual participant in the sale. Such relationship was precisely that of Leveine to the sale alleged herein. There is no additional requirement that the particular evidence which would be given be shown to be material, or to be favorable to the defense. This is so because of the logical impossibility of showing such character of the evidence as prerequisite to learning what the evidence is!

It is the material character of the witness, not of the testimony, which must be shown in such cases as this, as distinguished from cases where compulsory process is denied by ruling of the court (e. g., Hardin v. State, supra), or where particular evidence is sought (e. g., Brady v. Maryland, supra), or where evidence is revealed subsequent to the trial (e. g., Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9). Although each of those cases involves an element of denial of compulsory process or an element of suppression of evidence, they are distinguishable from the instant case and the refusal to reveal the identity of a material witness in that such latter two situations present a claim for a unique type of evidence; namely, evidence yet to be developed.

Where the evidence is by necessity yet to be developed, it is sufficient to show the material character of the witness: once this is done, the State may not obstruct the pursuit of it by the defense, either by refusing to reveal the identity, or by spiriting the witness away. What benefit is the discovery of the informer’s identity if the State has already secured his “disappearance” ? This is not to say that a defendant can never be brought to trial until every identifiable but missing witness has been subpoenaed, attached, and been made available to the defendant. See McCloud v. State, Tex.Cr.App., 494 S.W.2d 888. Nor does this excuse the defense from the exercise of diligence in its own preparation for trial and in securing attendance of its own witness. See Hardin v. State, supra. We only hold that the State may not defeat the defendant’s “right to present his own witnesses to establish a defense” (Washington v. Texas, supra) in those cases where the identity of the informer must be disclosed by insuring that the informer thus identified will be unavailable as a witness.

V.

The requisite tests of materiality of the witness, timely pursuit by the defense, and knowledge of the materiality of the witness at the time of the State’s alleged suppression having been met, there remains only the question of whether the suppression alleged shows improper action attributable to the State.

Even if the plan to leave town originated with Leveine, it is clear from the record ■that Officer Slocum actively encouraged and participated in that plan by responding to Leveine’s suggestion stating it was a good idea, by promising to send money, and by sending the money promised. Whether Slocum’s sole intent was for Lev-eine’s safety (which is not contended) is irrelevant. Just as the State’s interest in confidentiality of an informer must yield in a proper case, despite its interest in encouraging and protecting him, so too must the informer be made available in a proper case. Other means are available for the protection of a material witness than sending him out of town and rendering him totally unavailable to either party.

The State’s contention that Slocum did not instruct, order or force Leveine to leave town and that no bad faith is shown is not controlling. See Brady v. Maryland, supra. The police encouraged and participated in the plan with knowledge of Lev-eine’s materiality as a witness. Likewise, the State’s claims that the police had no knowledge of Leveine’s whereabouts at the time of trial and that subpoena issued for Leveine but was returned unserved because he could not be located do not change the controlling facts. The fact that Leveine’s disappearance was so successful only demonstrates more sharply the harm.

The trial court correctly observed that appellant was given the informer’s identity. The contention, however, was that the State’s action concealed the informer, not merely his identity. The trial court also correctly observed that the prosecution of a case is not to depend upon the “whims of a snitch.” What was here the case, however, was participation by the State in action which rendered a known material witness unavailable to appellant for the exercise of his constitutional right “to present his own witnesses to establish a defense,” Washington v. Texas, supra. It is not the action of the witness acting alone, but the State’s participation which constitutes the harm and requires reversal.

For the reasons stated, the judgment is reversed and the cause remanded.

1 . The conversation and delivery of the money occurred in August or September of 1972. All police officers testifying said they had neither heard from nor seen Leveine after that date. Appellant was indicted and arrested February 1, 1973, over four months after the witness was last seen.

2 . Although the issue in Aguilar v. State, Tex.Cr.App., 444 S.W.2d 935, concerned the requirement of disclosing the name of the informer, the statement regarding materiality is instructive. See also Royal v. State, Tex.Cr.App., 448 S.W.2d 470, and cases cited therein ; and James v. State, Tex.Cr.App., 493 S.W.2d 201.

3 .No such claim is here raised. Subpoena was issued for Leveine and returned unserved because he could not be located.