IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellant, v. JOSEPH P. TAVARES,
JR. and DOUGLAS KURAOKA, Defendants-Appellees, and
FRANKLIN HERNANDEZ, Defendant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(Cr. No. 98-0523)
MEMORANDUM OPINION
(By: Watanabe, Acting C.J., Lim, and Foley, JJ.)
Plaintiff-Appellant State of Hawai`i (the State) appeals from an order entered by the Circuit Court of the First Circuit (the circuit court) on August 12, 1999, granting dismissal with prejudice of all charges of Promoting Gambling in the First Degree against Defendants-Appellees Joseph P. Tavares, Jr. (Tavares) and Douglas Kuraoka (Kuraoka) (collectively, Defendants), based on the State's election not to disclose the identity of a confidential informant (CI). We affirm.
BACKGROUND
Following an undercover police investigation in which Honolulu Police Department (HPD) Officer Samuel Arcalas (Officer Arcalas) posed as a cockfighter, Defendants and Co-Defendant Franklin Hernandez were indicted and charged (1) on March 10, 1998 with Promoting Gambling in the First Degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1221(1)(c) (1993). (2)
On August 24, 1998, Tavares filed a "Motion to Compel Discovery of [CI], or in the Alternative, Motion to Dismiss with or without Prejudice," a motion in which Kuraoka joined on November 4, 1998. In an accompanying memorandum, Tavares explained that he intended to rely upon the defense of entrapment and the CI may be able to give testimony necessary to a fair determination of the issue of guilt or innocence.
In opposing Tavares's motion, the State invoked its privilege under Hawai`i Rules of Evidence (HRE) Rule 510(a) to refuse to disclose the identity of the CI. The State argued that disclosure was not constitutionally required because: the CI only had a limited and collateral role in this case, the CI was not used to obtain evidence or make observations related to the charges in this case, the CI was not a percipient witness to any material fact of consequence to the prosecution or defense in this case, the CI was not present when Officer Arcalas paid the entry fees and wagers that resulted in the charges against Defendants, and the State would not be calling the CI as a witness. The State maintained that the CI's only role was to supply Officer Arcalas with, and locate individuals who could help Officer Arcalas prepare and handle, the gamecocks for each day that Officer Arcalas went undercover.
At a hearing on Tavares's motion held on November 4, 1998, the deputy prosecutor argued that the CI was not a relevant witness:
[Officer Arcalas] indicates that the role of the CI was to locate various individuals --The deputy prosecutor also argued that it was incumbent on the defense to set forth. . . .
-- who would be able to assist him in preparing the game cocks [sic] for derby and handling each bird during the individual match. But neither the CI nor any member of his gang was present when any entry fees were paid or any wages were made.
The entry fee and wages are, in fact, the substance of the charge. Conducting the derby itself is not part of the charge.
The indictment reads that [Tavares] did knowingly advance or profit from gambling activity by receiving in connection with gambling scheme more than $1,000.
The CIs did not witness this. They're not percipient witnesses. We're not going to call them; therefore, they did not really witness any material element of the offense that's being charged.
For that reason, we are saying that they are not relevant witnesses. They have nothing to offer in way of a defense to the charges, and revealing their identity would be counter-productive in a case like this because it would not only place them in danger, but it would also make it very difficult for the Government to seek assistance of citizens such as these in their law enforcement type of undercover law enforcement activities.
as clearly and precisely as possible --Tavares's attorney argued in response:. . . .
-- what information they believe the CI can provide to this case that will support a legitimate defense to the charge, . . . .
. . . .
. . . [and t]he [c]ourt needs to make a finding that . . . there is a reasonable probability that they can offer testimony useful to a defense, and . . . the State needs to be given an opportunity incamera [sic] to provide information to the [c]ourt to contest this allegation.
Your Honor, what handicaps our preparing the defense for [Tavares], Your Honor, is not only knowing who the CIs are. If, in fact, we were aware of their identity, we might be able to either -- well, we would be able to evaluate whether or not they would be material or not. . . .After hearing further arguments on Tavares's motion, the circuit court ordered the State to submit, for in camera inspection,[The deputy prosecutor] describes their role as being limited in scope. Your Honor, we submit that it's undisputed that their role was not limited nor simply collateral. They're, in fact, involved in the gambling activity at hand. They were handling the gambling devices in the form of game cocks [sic], armed with metal knives, steel knives --
. . . .
On the day in question, they actually were involved. They were the players involved, and it was these matches upon which Officer Arcalas was exchanging the monies at hand.
. . . .
Not on any matches, it was on these matches they were involved. They themselves, Your Honor, should, you know -- what we need to ascertain, Your Honor, is, we have two defenses among others. First one being entrapment, and the second one being improper unlawful selective prosecution or targeting of [Tavares].
Now, all these individuals, I think it's material to ascertain from [Officer Arcalas] how many CIs were involved. He simply referred to the CI and his gang. Now, was it a gang of four or a gang of ten?
Now, how many of these individuals were involved in the actual promoting or advancing of this gambling activity?
Who, if any, were, in fact, involved in the operation of these -- of this cock fight derby, if you will. We don't know that because we don't know who the CIs are.
Now, what I'm trying to -- what I intend to ascertain from [Officer Arcalas] was, how well did he know these CIs? Did he meet them for the first time then, or did he know something about their background? Did they help with law enforcement investigation prior to that date?
And all of which, Your Honor, I hope will establish the fact that for my client, as well as [Kuraoka], who is joining this motion, that disclosure of their identity is necessary in this, our preparing specifically the -- our defense of entrapment.
evidence in the form of sworn testimony or affidavit, the subject matter of which shall include but not limited be [sic] to:(Emphases in original.)1. Information relating to the total number of [CIs] who assisted the aforementioned police officers in their investigation of the alleged gambling activities of June 10, 1995, June 24, 1995 and July 8, 1995, as referenced in police report nos. 95-242216[,] 95-263516 and 95-284987, respectively.
2. A specific description of the information and services provided by each and every [CI] who were [sic] involved in any way in the subject criminal investigation . . . .
3. Facts relating to whether any of said [CIs] owned the gamecocks utilized in the subject criminal investigation . . . and/or whether any of said informants sell to the [HPD] one . . . or all of these gamecocks.
4. Information relating to whether any of the aforementioned police officers expressly prohibit any of the aforesaid [CIs] from making any bets/wagers on the cockfight matches that they personally coordinated and handled for [Officer Arcalas] on June 10, June 24 and July 8, 1995.
5. Information relating to any agreements between any of the aforementioned Honolulu police officers and the [CIs] who assisted the undercover police investigation, the substance of which concern:
(A) Financial or other pecuniary benefit(s) to the [CIs] and/or to such other individuals of the CI's gang who
assisted the aforementioned police officers by providing incriminating information on the accused,
supplies necessary for cockfight matches (e.g. fighting gamecocks, feed, vitamins, cage boxes to
transport gamecocks, gaffs, etc.) and personal services (e.g. housing, training, feeding and
handling the subject gamecocks during the matches in question)(B) Whether any or all of the aforementioned [CIs] were afforded immunity from criminal arrest and
prosecution for any law violations which may have been committed on June 10, June 24 and/or July 8,
1995 in the course of assisting in the subject criminal investigations.
Following its in camera review of the information submitted by the State, the circuit court entered an "Order Granting [Tavares's] Motion to Compel Discovery of [CI], or in the Alternative, Motion to Dismiss with or without Prejudice Filed on August 24, 1998." In its order, the circuit court specifically found as follows:
1) One [CI] was used on each of the dates at issue;The circuit court then concluded:2) The CI assisted the undercover police officer with information concerning when and where the
cockfights would be held, and the CI was present on each of the dates noted and had assisted the
undercover police officer in preparing and handling the five (5) gamecocks on each of these occasions;3) The CI did not own the gamecocks; rather, the [HPD] purchased the gamecocks for $125 - $150
each;4) On each of the pertinent dates, the CI acted as a normal patron at a cockfight derby would, including
placing bets;5) The CI was paid $200 by the [HPD] on each of the three dates, for a total amount of $600; and
6) The [HPD] made no deals with the CI and did not provide immunity from criminal prosecution.
Having conducted an incamera review of [the State's] affidavits pursuant to HRE [Rule] 510(c)(2) and having considered all memoranda submitted, the arguments of counsel and prevailing, applicable law, notably State v. Kapiko (No. 21004, September 30, 1998), the [c]ourt concludes that, clearly, there is a reasonable probability that the CI, who was actually present on each of the dates in question and actively participated in the cockfights upon which the charges herein are predicated, can provide testimony necessary to a fair determination of the issue of guilt or innocence in this case.Following the State's refusal to disclose the identity of the CI, Defendants filed a motion to dismiss the indictment. The circuit court granted the motion without prejudice, and this appeal followed.
DISCUSSION
The thrust of the circuit court's order compelling disclosure of the CI was that because the CI was present and placed bets at the cockfight derbies from which the charges against Defendants stemmed, the CI was an active participant in the crimes Defendants were accused of committing and could therefore provide testimony necessary to a fair determination of Defendants' guilt or innocence.
Based on our review of the applicable rules and case law, we cannot conclude that the circuit court erred in so concluding.
A.
HRE Rule 510, the rule the State invoked in arguing that the CI's identity was not required to be disclosed, provides, in relevant part, as follows:
Identity of informer. (a) Rule of privilege. The government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.The Commentary on Rule 510 notes that the foregoing rule(b) Who may claim. The privilege may be claimed by an appropriate representative of the government, regardless of whether the information was furnished to an officer of the government or of a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof, except that in criminal cases the privilege shall not be allowed if the government objects.
(c) Exceptions.. . . .
(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the government is a party, and the government invokes the privilege, the judge shall give the government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the government elects not to disclose the informer's identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge's own motion. In civil cases, the judge may make any order that justice requires. Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government. All counsel and parties shall be permitted to be present at every stage of proceedings under this paragraph except a showing in camera, at which no counsel or party shall be permitted to be present.
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, the judge may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this paragraph except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government.
is identical with the U.S. Supreme Court proposal for Rule 510, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975). The original Advisory Committee's Note says: "The rule recognizes the use of informers as an important aspect of law enforcement, whether the informer is a citizen who steps forward with information or a paid undercover agent. In either event, the basic importance of anonymity in the effective use of informers is apparent . . . and the privilege of withholding their identity was well established at common law."The intent of the rule is to balance the necessity for effective law enforcement machinery and the requirement of constitutional safeguards for the defendant. The rule restates existing law. In McCray v. Illinois, 386 U.S. 300 (1967), the court held that no constitutional requirement dictated disclosure of the identity of an informant for the sole purpose of challenging a finding of probable cause for issuance of a search or arrest warrant. See also United States v. Harris, 403 U.S. 573 (1971).
The Hawaii [Hawaii] Supreme Court has ruled similarly. In State v. Delaney, 58 [Haw.] 19, 24, 563 P.2d 990, 994 (1977), the court held: "[N]either the federal nor state constitutions dictate disclosure of an informer's identity where the sole purpose is to challenge the finding of probable cause. A trial court may, in its discretion, require disclosure if it believes that the officer's testimony [regarding the informer] is inaccurate or untruthful." Relying on McCray v. Illinois, supra, and the previous decision in State v. Texeira, 50 [Haw.] 138, 433 P.2d 593 (1967), the Delaney court also held that the trial court properly disallowed questions that might indirectly disclose the informer's identity.
Subsection (c)(2) of this rule deals with the situation where the informant can supply testimony relevant to the merits of a criminal or civil case. In this situation disclosure is ordinarily required[.]
Construing the condition under which the prosecution must disclose a CI's identity pursuant to HRE Rule 510, the Hawai`i Supreme Court held in State v. Rodrigues, 88 Hawai`i 363, 367, 966 P.2d 1089, 1093 (1998), that disclosure is necessary "where it is anticipated that the CI will give 'testimony necessary to a fair determination of the guilt or innocence in a criminal case[.]'"
In Rodrigues, police officers, after obtaining a search warrant based on information from a CI, searched a house, found drugs, drug paraphernalia, and a stun gun, and arrested the defendants, all of whom were present during the search. Based on the contraband found during the search, the defendants were charged with multiple counts of promotion of a dangerous drug, unlawful use of drug paraphernalia, and illegal possession of an electric gun. Following a consolidated hearing on a motion to compel the CI's identity and a motion to compel discovery, the circuit court ruled that the information contained in the affidavit that was used to support a finding of probable cause to issue a search warrant was required to be released to the defendants. The circuit court also ruled, however, that releasing such information to the defendants would jeopardize the well-being of the CI who had provided such information. Rather than order the prosecution to release the information to the defendants, the circuit court, suasponte, dismissed all charges against the defendants.
On appeal, the State argued that the CI's testimony was not necessary to a fair determination of the defendants' guilt or innocence because (1) the information provided by the CI was not the basis for any of the offenses charged against the defendants, (2) the CI did not actively participate in any of the offenses charged, and (3) proof of the defendants' guilt depended on the circumstances at the time the search warrant was executed and not on any information supplied by the CI. Id. The Hawai`i Supreme Court, however, noting that "the prosecution never stated that the CI was not present at the execution of the search warrant[,]" stated:
If the CI was present at the execution of the search warrant, he was a witness to the search and the offenses charged and could be called as a witness. His testimony may be necessary for a determination of guilt. Therefore, the HRE Rule 510(c)(2) exception, requiring disclosure of the identity of the CI, would apply. If not, the prosecution had the privilege to refuse to disclose information that would lead to the identification of the CI.Id.
In State v. Kapiko, 88 Hawai`i 396, 967 P.2d 228 (1998), the supreme court reviewed the propriety of the circuit court's dismissal of drug-related charges against defendant Kapiko on grounds that the State had refused to release to Kapiko an unredacted copy of the affidavit used to support a finding of probable cause to issue the search warrant that led to the charges against him. The State maintained that the affidavit contained information that would lead to the identification of, and grave danger to, the CI who provided the information and was therefore privileged. The supreme court held initially that
[t]he condition under which the prosecution must disclose the identity of a CI, pursuant to HRE Rule 510(c)(2), pertains only to a situation where it is anticipated that the CI will give "testimony necessary to a fair determination of the guilt or innocense in a criminal case." Here, the testimony of the CI was not necessary for a determination of guilt or innocence. According to the prosecution, the CI was not going to be called to testify at trial because the information provided by the CI was not the basis for any of the offenses charged against Kapiko, the CI did not actively participate in any of the offenses charged, and the proof of Kapiko's guilt depended on the circumstances at the time the warrant was executed and not on any information supplied by the CI. Therefore, the HRE Rule 510(c)(2) exception, requiring disclosure of the identity of the CI, did not apply to this case and the prosecution had the privilege to refuse to disclose information that would lead to the identification of the CI.
The HRE Rule 510(c)(3) exception also did not apply to this case. The HRE Rule 510(c)(3) exception applies only in cases where the judge believes that the CI is not reliable or credible. In this case, the record does not reflect that the judge was not satisfied with the information provided by the CI. Accordingly, inasmuch as the record is silent as to any challenge to the credibility or reliability of the CI by the circuit court, the HRE Rule 510(c)(3) exception did not apply and the prosecution had the privilege to refuse to disclose information that would lead to the identification of the CI.Id. at 402, 967 P.2d at 234 (emphasis added).
Elaborating further on the requirements for disclosure of a CI's identity, the supreme court stated:
In determining whether information regarding a CI must be disclosed, Hawaii courts use the following test, as set forth by the United States Supreme Court:Whether a proper balance renders nondisclosure erroneous must depend on 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.State v. Davenport, 55 Haw. 90, 102, 516 P.2d 65, 73 (1973) (quoting Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)).In cases subsequent to Roviaro, we required disclosure of the identity of the CI where the CI was a participant in the crime or a material witness. State v. Texeira, 50 Haw. 138, 145, 433 P.2d 593, 599 (1967) (citing Miller v. United States, 273 F.2d 279 (5th Cir. 1959), cert. denied, 362 U.S. 928, 80 S. Ct. 756, 4 L. Ed. 2d 747 (1960)). See also Bullen, 63 Haw. at 32, 620 P.2d at 731 (where the CI has been an active participant in the crime charged and his testimony might be helpful to the defense, fairness dictates his identity be disclosed by the government). However, we also noted in Davenport, supra, that where the CI was not involved with the crime charged, his identity was not required to be released to the defense, because the CI's testimony was not crucial to the issue of guilt:
Id. at 403, 967 P.2d at 235 (emphases added).It is clear that the prosecution did not base its case against the defendant on any activity he might have undertaken in the presence of the informer, but rather on evidence of the defendant's knowing constructive possession of the drugs on the morning of the search. [Under] the circumstances, we cannot say that the "possible significance of the informer's testimony" to the defense outweighed the "public interest in protecting the flow of information."Id. at 102-3, 516 P.2d at 73 (citation omitted).In this case, Kapiko was not charged with any offenses based on the information supplied by the CI to the police, the CI was not an active participant in the offenses charged, and the CI was not going to be called by the prosecution to testify at Kapiko's trial. The charges for possession of the drugs and drug paraphernalia depended on the circumstances at the time the search warrants were executed, and not on any information supplied by the CI.
In this case, the circuit court, citing Kapiko, concluded as a matter of law that the CI's identity had to be disclosed because
clearly, there is a reasonable probability that the CI, who was actually present on each of the dates in question and actively participated in the cockfights upon which the charges herein are predicated, can provide testimony necessary to a fair determination of the issue of guilt or innocence in this case.The circuit court based its conclusion on six findings of fact (FsOF), quoted above, among them FOF No. 2, which stated as follows:
The CI assisted the undercover police officer with information concerning when and where the cockfights would be held, and the CI was present on each of the dates noted and had assisted the undercover police officer in preparing and handling the five (5) gamecocks on each of these occasions[.]The State argues on appeal that the circuit court's conclusion of law was wrong because
[t]he evidence in the record, as well as the lower court's [FsOF] do not support the lower court's [Conclusions of Law]. The record reveals the CI did not actively participate in the offenses, was not a witness to the gambling offenses and was not going to be called as a witness at trial by the State. Moreover, contrary to the court's determination above, the charges are not predicated on the cockfight itself, but rather are predicated on the entry fees and wagers paid to [Tavares] on those cockfights.(Emphasis in original.) The State also argues that FOF No. 2 is clearly erroneous because it misleadingly fails to recite additional "factual circumstances that various individuals were involved in . . . preparing the bird[s] for the derby (which included, inter alia, weighing the birds, tagging the birds and affixing them with a sharp instrument) after which those individuals handled the bird during the actual derby[,]" thus leaving "an erroneous impression" that "the CI was more involved than the record seems to indicate." The State also argues that FOF No. 2 "fails to recite the fact that the CI was not present when the entry fees and gambling wagers were paid to [Tavares], the very acts that form the basis of the charges" and "also fails to recite the fact that none of [the] individuals in the group worked as [CIs.]" We disagree with the State.
1.
An FOF is clearly erroneous when (1) the record lacks substantial evidence to support the finding; or (2) despite substantial evidence to support the finding, the "appellate court is left with the definite and firm conviction that a mistake has been made." Hirono v. Peabody, 81 Hawai`i 230, 232, 915 P.2d 704, 706 (1996) (internal quotation mark omitted). Applying this standard, we cannot conclude that FOF No. 2 was clearly erroneous. Our review of the record reveals that there was ample evidence that the CI informed the police about when and where the cockfights would be held, was present as a patron at the relevant cockfights, and put the police in touch with other individuals who helped prepare the gamecocks for the cockfights. Additionally, the State has not challenged the FsOF that the CI "was paid $200 by the [HPD] on each of the three dates, for a total amount of $600" and that "[t]he [HPD] made no deals with the CI and did not provide immunity from criminal prosecution." The record thus supports the circuit court's conclusion that the CI was an active participant in the gambling enterprise being investigated by the HPD.
We also disagree with the State's contention that the circuit court wrongly concluded that the CI's identity had to be disclosed. Defendants were charged with First Degree Promotion of Gambling, in violation of HRS § 712-1221(1)(c), which provides, in pertinent part:
Promoting gambling in the first degree. (1) A person commits the offense of promoting gambling in the first degree if the person knowingly advances or profits from gambling activity by:In order for the State to prove that Defendants committed the offense, it was required to establish, beyond a reasonable doubt, that Defendants:. . .
(c) Receiving or having become due and payable in connection with a lottery, mutuel, or other gambling scheme or enterprise, more than $1,000 in any seven-day period played in the scheme or enterprise.
(1) knowingly advanced or profited from gambling activity; and
(2) received or had become due and payable in connection with a gambling scheme or enterprise, more than $1,000 in any seven-day period.
Because the existence of a gambling scheme or enterprise is a crucial element of the offense of Promoting Gambling in the First Degree, the CI's presence at the three cockfights from which the charges against Defendants arose would be crucial to proving the existence of a gambling scheme or enterprise. Contrary to the State's claim, then, the payment of wagers and entry fees was not the sole element of the gambling offense and Defendants were entitled to learn of the CI's identity so they could evaluate whether Defendants were participating in a gambling scheme or enterprise and whether they were induced by the CI, as a government agent, to so participate.
Affirmed.
DATED: Honolulu, Hawai`i, May 9, 2001.
On the briefs:
Loren J. Thomas,
Deputy Prosecuting Attorney,
City and County of Honolulu,
for plaintiff-appellant.
Lionel T. Oki for
defendant-appellee
Joseph P. Tavares, Jr.
Rose Anne Fletcher,
Deputy Public Defender,
State of Hawai`i, for
defendant-appellee
Douglas Kuraoka.
1. Counts I and II of the indictment alleged that on or about June 10 and 24, 1995, respectively, Defendant-Appellee Joseph P. Tavares, Jr. (Tavares) and Co-Defendant Franklin Hernandez committed the offense of Promoting Gambling in the First Degree. Count III of the indictment alleged that on or about July 8, 1995 Tavares and Defendant-Appellee Douglas Kuraoka committed the same offense.
2. Hawai`i Revised Statutes § 712-1221(1)(c) (1993) provides as follows:
Promoting gambling in the first degree. (1) A person commits the offense of promoting gambling in the first degree if the person knowingly advances or profits from gambling activity by:. . .
(c) Receiving or having become due and payable in connection with a lottery, mutuel, or other
gambling scheme or enterprise, more than $1,000 in any seven-day period played in the
scheme or enterprise.