RAUL MONSERRATE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1970-03-03
No. 69-559
Before PEARSON, C. J., and BARK-DULL and HENDRY, JJ.
232 So. 2d 444 Florida District Court of Appeal, Third District (1970) Negative Treatment
Cited by 33 cases

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Synopsis

Raul Monserrate was convicted of unlawful possession of heroin after a trial in which the state relied on testimony from a detective who claimed the defendant sold heroin to a confidential informant. The trial court refused to disclose the informant's identity despite the defendant's pretrial motion. The appellate court reversed and remanded for a new trial, holding that the defendant had a constitutional right to know the identity of a key witness to prepare an adequate defense.


Holding

The trial court's refusal to require the state to divulge the name of the confidential informant constituted reversible error and a denial of a fair trial. A criminal defendant has a right to know the identity of persons with intimate knowledge of the facts of the alleged offense so that he may interview them and prepare a defense, and the state must furnish the defense with the name of witnesses who supposedly know the facts for which an accused is to be tried.


Headnotes

[1] A defendant is entitled to the identity of a confidential informant when that informant is a crucial witness to the alleged criminal act and the informant's testimony is…

[2] The refusal of a trial court to compel the state to disclose the identity of a confidential informant who acted with police in events leading to an arrest constitutes pre…

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Key Quotes

“the state must furnish the defense with the name of someone who "is supposed to know the facts" of an offense for which an accused is to be tried. Were we to follow a contrary rule we would deprive a criminal defendant of a fair trial (part of which is "compulsory attendance of witnesses") and of "the right to have compulsory process for witnesses, [and] to confront at trial adverse witnesses”

Establishes the core holding that defendants have a constitutional right to know the identity of material witnesses to prepare an adequate defense.

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Facts & Procedural History

Monserrate was arrested on September 19, 1968, for heroin sale and possession offenses allegedly committed on July 9, 1968. The state's statement of p…

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Opinion of the Court
PEARSON, Chief Judge.

PEARSON, Chief Judge.

The appellant was found guilty of the unlawful possession of a narcotic drug and sentenced to three years imprisonment. On appeal he has presented eleven points. Four of the points urged, if well founded, would constitute independent grounds for discharge of the appellant. None of these points is well founded. Each of the seven remaining points, if well founded, would constitute independent grounds for a new trial. One of these points claims prejudicial error in a procedural ruling of the trial court and is in our opinion well founded.

The trial court refused to require the state to divulge to the appellant the name of an important witness whom the state alleged acted with the police in the events leading to the appellant’s arrest. This refusal is not in conformity with the law. It resulted in a failure to give the appellant a fair trial. We therefore reverse the judgment and remand the cause for a new trial.

Appellant was arrested on September 19, 1968, for offenses he allegedly committed on July 9, 1968. An information charged him (1) with the unlawful sale of heroin and (2) with the unlawful possession of heroin. Prior to trial appellant moved for and secured from the state a statement of particulars. The state’s answer, among other things, informed the appellant of the time and place of “the offense” and also declared: “The defendant sold Heroin to Detective Uher, who was with a confidential informant, on the date, time and place set forth above.” Appellant, before trial, orally presented a motion for the name of the “confidential informant.”1 The court *445reserved ruling on the motion. At trial Detective Uher testified in substance that appellant sold heroin to the "confidential informant”, who then gave the heroin to Uher. At various times during the trial defense counsel urged that the identity of the unnamed person be revealed so he could be examined to determine whether he did what Uher said he did. The court refused to order the state to reveal that person’s identity. The state did not call that person to testify. The court found appellant not guilty of unlawful sale of heroin' but found him guilty of unlawful possession of heroin.

The fundamental question of fact before the trial court was this: did the unnamed person referred to at trial receive heroin from the appellant on July 9, 1968? Since the court found the appellant not guilty on the sale charge but guilty on the possession charge it is reasonable for us to conclude that the trial court based its not guilty finding on a fatal variance between the charge outlined in information and the proof offered by the state. That is, the state charged sale to one person, Detective Uher, and offered proof concerning sale to another person. Therefore since the court found the appellant guilty on the possession charge, it must have answered affirmatively the factual question stated above. In doing so without granting appellant’s motion to have the state furnish appellant with the identity of the person to whom the initial transfer of heroin was allegedly made the court deprived the appellant of the opportunity of questioning that person, which opportunity was a vital step in preparing a defense against the accusations. According to the proof presented by the state the unnamed witness had the most intimate knowledge of the criminal acts the appellant was accused of having committed. The following quotation is a concise statement of the importance of that knowledge to the defense:

“Under the Code of Ethics the attorney for the appellant not only had the right but it was his plain duty to interview and examine as many as possible of the persons who were supposed to know the facts, so as to be able to ascertain the truth concerning the charge in controversy and to prepare his defense thereto.” Mathews v. State, Fla.1950, 44 So.2d 664, 669.

Since it is logically impossible for a prospective interviewer to find for purposes of interview someone whose identity he does not know, it follows that the state must furnish the defense with the name of someone who “is supposed to know the facts” of an offense for which an accused is to be tried. Were we to follow a contrary rule we would deprive a criminal defendant of a fair trial (part of which is “compulsory attendance of witnesses”)2 and of “the right to have compulsory process for witnesses, [and] to confront at trial adverse witnesses * * 3

We think the foregoing discussion shows that the identity of the unnamed person to whom the initial transfer of heroin was made was as vital to defending against the possession charge as it was to defending against the sale charge.

Since it may be an issue upon retrial we expressly hold that the chain of custody of • the physical exhibit was sufficiently estab*446lished to comply with the rule in Stunson v. State, Fla.App. 1969, 228 So.2d 294.

Appellant’s point urging reversal because of a formal deficiency in the information does not present error. See rule 1.140(c), Florida Rules of Criminal Procedure, 33 F.S.A. The point directed to the admission into evidence of the physical exhibit and the point directed to the sufficiency of the evidence are not supported by the record. The last point directed to the weight of the evidence is moot.

The remaining points which are directed to procedural matters do not present reversible error and do not merit discussion.

For the foregoing reasons we reverse the judgment convicting appellant of unlawful possession of heroin and remand the cause for a new trial on the charge of unlawful possession of heroin.

Reversed and remanded for new trial.


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Citator

Cited By (17 total)

  • State v. Zamora, 534 So. 2d 864 (Fla. 3d DCA 1988)
    …sure of a confidential informant is absolutely required where the defendant is charged with selling or delivering illegal drugs to the subject informant, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Monserrate v. State, 232 So. 2d 444 (Fla. 3d DCA 1970), or where the state calls the confidential informant as a witness at trial, Hassberger v. State, 350 So. 2d 1 (Fla.1977), or where the informant executes the affidavit upon which a search warrant is issued for the search of the de…
  • DOE v. State, 262 So. 2d 11 (Fla. 3d DCA 1972)
    …quire disclosure of his identity. Kraus v. State, Fla.App.1971, 243 So. 2d 214. This case is to be distinguished from those where a sale is made to a confidential informant, rather than to a police officer. Compare Monserrate v. State, Fla.App.1970, 232 So. 2d 444; Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639. On the evidence in this case the participation of the informant in the transaction was minimal. He drove the officer to the location of a pool hall. He and the officer remaine…
  • State v. Jones, 247 So. 2d 342 (Fla. 3d DCA 1971)
    …. Rulings as to the necessity of providing the names and addresses of witnesses for the defendant to have a fair trial are rulings which must of necessity rest upon the broad discretion of the trial court. Compare Monserrate v. State, Fla.App. 1970, 232 So. 2d 444; Mathews v. State, Fla.1950, 44 So. 2d 664; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); with Warriner v. Ferraro, Fla.App.1965, 177 So. 2d 723. In this case, the trial judge has fully set forth his interpretation of th…
    1 / 2

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