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COURT OF APPEALS DECISION DATED AND RELEASED August 23, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3105-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
ARNULFO TORRES,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Sheboygan County:
JOHN B. MURPHY, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER CURIAM. The State appeals from an order dismissing
the criminal complaint against Arnulfo Torres because of the State's refusal to
disclose a confidential informant's identity.
The issue on appeal is whether the trial court erroneously exercised its
discretion when it ordered the State to disclose the informant's identity. We conclude that the trial court properly
exercised its discretion and affirm the order dismissing the prosecution.
Torres was charged with
two counts of possession of marijuana with intent to deliver as a party to the
crime and one count of a related tax stamp violation. The charges arose from the arrest of Walter Jacoby on July 3, 1994. Based on information provided by a
confidential informant, the police searched a car driven by Jacoby and found a
large quantity of marijuana. Jacoby's
statement to the police implicated Torres by Jacoby's self-identification as a
"drug runner" for Torres.
Torres moved for an
order under § 905.10(3)(b), Stats.,
requiring the State to disclose the identity of the confidential informant who
provided the information leading to Jacoby's arrest. Torres pointed out that the informant had told police about Jacoby's
activities but never mentioned any involvement by Torres. He argued that the informant might testify
that he or she knew nothing about Torres' involvement and that Jacoby acted
alone. Torres claimed that such
testimony could be used to impeach Jacoby at trial.
As an offer of proof of
his theory of defense, Torres submitted statements he had given relative to his
involvement with Jacoby. On July 5,
1994, Torres gave a statement to police through a Spanish interpreter. Torres admitted he had a source for
marijuana in Chicago but indicated that the distribution of the drug was done
solely by Jacoby. In a July 15, 1994,
statement to his probation agent, Torres denied any involvement with Jacoby's
drug dealing other than introducing Jacoby to the Chicago contact. Although he admitted that he assisted Jacoby
with one "load" of marijuana, he maintained that he told Jacoby he
did not want to get involved.
The trial court
interviewed the informant in camera. It
concluded that the informant had exculpatory information. The State moved for reconsideration and
requested that the in camera interview be done on the record. The trial court reinterviewed the informant
and the testimony was transcribed and sealed.
The court again determined that the informant "has information
available which would be extremely material to the defense in this case"
and that the information "is clearly exculpatory." The State was ordered to disclose the
informant's identity. It chose not to
do so and the case was dismissed pursuant to § 905.10(3)(b), Stats.
Under § 905.10(1), Stats., the State has a privilege to
refuse to disclose the identity of a person furnishing information which
assists in a police investigation. If
the trial court determines that there is a "reasonable probability"
that the informant can give testimony that is "necessary to a fair
determination" of the defendant's guilt or innocence, the State must
disclose the informant's identity.
Section 905.10(3)(b). Where disclosure
is relevant and helpful to the defense, essential to a fair determination of
the cause or necessary to support the theory of defense, the privilege must
give way. See State v.
Lass, Nos. 94-1335-CR, 94‑2129-CR, slip op. (Wis. Ct. App. May 9,
1995, ordered published June 27, 1995).
The determination that
the informant's testimony is relevant and material to the accused's defense
requires the exercise of discretion by the trial judge. State v. Outlaw, 108 Wis.2d
112, 128, 321 N.W.2d 145, 154 (1982).
We must sustain the determination when it is rationally arrived at in
accordance with the facts and proper application of law. Id. at 137, 321 N.W.2d at 158.
The State first argues
that the trial court misused its discretion because it failed to engage in any
sort of reasoning process on the record.[1] It relies heavily on State v. Larsen,
141 Wis.2d 412, 419-20, 415 N.W.2d 535, 538 (Ct. App. 1987), as support for the
proposition that the trial court must exercise its discretion sufficiently to
provide a record upon which this court can adequately review the
determination. This case is different
from Larsen where the trial court denied the accused's motion for
disclosure without stating its reasons.
Here, by conducting the
in camera inquiry, the trial court determined that Torres had made the
preliminary showing that the informant could supply testimony necessary to a
fair determination. See Outlaw,
108 Wis.2d at 126, 321 N.W.2d at 153. We
have the transcript of the in camera proceeding from which we can determine if
the trial court's determination was a proper exercise of discretion. Further, the trial court proceeded according
to the law in conducting the in camera inquiry. Its ultimate conclusions were those necessary to an order
requiring disclosure. We reject the
claim that discretion was not adequately exercised.
We have reviewed the
transcript of the in camera interview of the informant. There is no doubt that the trial court correctly
determined that the informant had information which was exculpatory as to the
charges against Torres for alleged drug activity around July 1994.[2] Nothing more need be said. Upon the determination that the informant's
testimony is material to the accused's theory of defense, the balancing
mechanism embodied in § 905.10(3)(b), Stats.,
is irretrievably tipped to the side of disclosure. See Outlaw, 108 Wis.2d at 128, 321 N.W.2d at
154. Because the trial court correctly
concluded that the informant's testimony was relevant to Torres' theory of
defense, it properly exercised its discretion.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The State's standing to raise this argument is somewhat tenuous given its request at the motion hearing that the trial court not go into detail about the reasons for its decision so as not to inadvertently reveal the informant's identity. See State v. Michels, 141 Wis.2d 81, 97-98, 414 N.W.2d 311, 317 (Ct. App. 1987) (when a trial court performs some act because of the position taken by a party, that party should not be heard to take a different position on appeal).