Opinion
No. 54041-6-I
Filed: March 21, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 03-1-00671-2. Judgment or order under review. Date filed: 02/25/2004. Judge signing: Hon. Thomas J. Wynne.
Counsel for Appellant(s), David L. Donnan, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
When an accused requests, through discovery, disclosure of material the prosecutor is not obligated to disclose, he or she must show that the requested information is material to the preparation of his or her defense. Here, Darryl Stokes requested that the trial court review in camera an informant's Drug Task Force file, asserting that the file might contain information relevant to the informant's credibility. Because Stokes failed to make a threshold showing of materiality of the informant's file, the court's denial of his request was not an abuse of discretion. We affirm Stokes' conviction and sentence.
FACTS
While investigating drug activity in the West Casino area of Everett, the Snohomish County Regional Drug Task Force enlisted the help of a paid informant, James Farris. Farris had worked as an informant making undercover drug purchases for approximately 15 years and had worked specifically for the Regional Drug Task Force for about 5 years. A detective on the Task Force showed Farris a photograph of Stokes and asked if Farris would be able to purchase drugs from Stokes. Farris, who did not know Stokes but had seen him `in passing,' said he thought he could. Farris then acquainted himself with Stokes and began to associate with him at a friend's apartment.
About a month later, Farris called Stokes and said that he wanted to buy cocaine for someone. Farris arranged to meet Stokes at a Fred Meyer parking lot in south Everett. Farris first met with two detectives. One of the detectives searched Farris and gave him $50 of prerecorded buy money to make the purchase. They drove in an unmarked police car to the meeting place. Farris got out of the car and walked across the parking lot to a fence separating the parking lot from an apartment complex. Stokes met Farris at the fence. Farris gave Stokes the money and Stokes handed Farris two rocks of cocaine. Farris and Stokes then walked away in opposite directions. Farris returned to the car and turned over the cocaine to the detectives. The detectives paid Farris $100 for making the buy.
The State charged Stokes with delivery of cocaine. On the day of trial, Stokes asked the trial court to review in camera Farris's Drug Task Force file to determine if there was anything in the file relevant to Farris's `dishonesty, his credibility his work with the Task Force'. Report of Proceedings 12/15/03 at 17. The trial court denied Stokes' request.
At trial, the two Task Force detectives and Farris testified on behalf of the State. Because the detectives were not close enough to the fence to see the money and drugs change hands, Stokes asserted that the State's entire case rested on Farris's testimony. Stokes impeached Farris's credibility by highlighting his numerous prior convictions, including several forgery convictions. Stokes also brought out the fact that Farris had violated his agreement with the Task Force by committing crimes while under its employ, and by failing to report his income from the Task Force to the Internal Revenue Service. Stokes argued that the detectives did not search Farris thoroughly before he made the purchase and suggested that because Farris owed a substantial amount of restitution to the State resulting from his forgery convictions, he had a financial incentive to make successful drug buys.
Disclosure of Informant's Drug Task Force File
On appeal, Stokes argues that because Farris's credibility was central to his defense, the trial court abused its discretion by denying his request to conduct an in camera review of Farris's Drug Task Force file.
CrR 4.7 governs criminal discovery. State v. Pawlyk, 115 Wn.2d 457, 471, 800 P.2d 338 (1990). The scope of discovery is within the discretion of the trial court and a reviewing court will not disturb the trial court's ruling absent a manifest abuse of discretion. Pawlyk, 115 Wn.2d at 470-71. CrR 4.7 is a reciprocal discovery rule that separately lists the prosecutor's and defendant's obligations when engaging in discovery. State v. Yates, 111 Wn.2d 793, 797, 765 P.2d 291 (1988). The rule enumerates specific types of evidence, such as witness's names and statements, which the prosecutor must disclose to enable the defendant to prepare a defense. CrR 4.7 (a)(1); CrR 4.7 (a)(2). The prosecutor also has a duty to disclose and to preserve evidence that is material and favorable to the defendant. CrR 4.7(a)(3).
If an accused requests disclosure of material that the prosecutor is not obliged to disclose, `he or she must show that the requested information is material to the preparation of his or her defense.' State v. Blackwell, 120 Wn.2d 822, 828, 845 P.2d 1017 (1993), citing State v. Mak, 105 Wn.2d 692, 704, 718 P.2d 407 (1986). CrR 4.7(e) (1) provides:
Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to the defendant of the relevant material and information not covered by sections (a) [Prosecutor's Obligations], (c) [Additional Disclosures Upon Request and Specification], and (d) [Material Held By Others].
A showing that requested information is material to the defendant's defense requires more than bare assertions. In State v. Blackwell, two juveniles caused a disturbance at a church. After the juveniles refused to leave, church officials called police officers to assist. Two police officers came to the church and the juveniles allegedly assaulted the officers. The State charged the juveniles with assault and criminal trespass. At a pretrial hearing, defense counsel told the court she was concerned about one of the officers, an alleged victim in the case. She said she had previously encountered the officer and believed he was racist. Because she believed the arrests may have been racially motivated, she asked to review both officers' service and personnel records. The trial court ordered production of the records. Blackwell, 120 Wn.2d at 825.
On appeal, the Supreme Court reversed. The court concluded that because the defendants offered no factual basis for their request, but only counsel's unsubstantiated beliefs, they had not made the requisite showing that the information requested contained evidence material to their defense and were not entitled to the police officers' personnel files. Blackwell, 120 Wn.2d 829-30. The court stated: "A defendant must advance some factual predicate which makes it reasonably likely the requested file will bear information material to his or her defense. A bare assertion that that a document `might' bear such fruit is insufficient." Blackwell, 120 Wn.2d at 830.
Similarly, in State v. Mak, the defendant requested disclosure of material from the police department's internal investigation files arguing that the records `might' contain evidence critical to his defense. Mak, 105 Wn.2d at 705. The Supreme Court concluded that the defendant's speculative assertion was insufficient to demonstrate that the requested information was material to his defense. Because there was no showing of materiality, the trial court was not required to review the requested material in camera, nor order production of the documents. Mak, 105 Wn.2d at 705-06. The court stated, `[t]he mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome of the trial . . . does not establish `materiality' in the constitutional sense.' Mak, 105 Wn.2d at 704-05.
Likewise, Stokes' counsel asserted that the informant's Drug Task Force file might contain information relevant to Farris's credibility. As in Blackwell and Mak, counsel submitted no affidavits and provided no factual basis to support the suggestion that the informant's file contained information relevant to Stokes' defense. The fact that Stokes requested not production, but in camera review, does not alter the analysis. Without a showing of materiality, neither production nor in camera review is warranted. See Mak, 105 Wn.2d at 705-06. The trial court did not abuse it discretion in denying Stokes' request to review the informant's Drug Task Force file.
Because of our holding that the requisite showing of materiality was not made and the trial court did not abuse its discretion in denying Stokes' request, it is not necessary to decide in this opinion whether an informant's police file is exempt from disclosure under the Public Disclosure Act, RCW 42.17.310(1)(d).
DNA Sample
Stokes also contends that RCW 43.43.754 and the portion of his sentence requiring him to provide a biological sample for DNA identification violate both his Fourth Amendment right against unreasonable searches, and his privacy rights under article I, section 7 of the Washington Constitution. These arguments were rejected in, and are controlled by, our recent decision in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004), petition for review granted, No. 76013-6 (Wash. Feb. 1, 2005).
We affirm.
APPELWICK and COX, JJ., concur.