Opinion
ID #0203025861
Submitted: August 30, 2002
Decided: October 31, 2002
On Defendant's "Motion for In Camera Review. . . ."
GRANTED IN PART, DENIED IN PART.
ORDER
This 31st day of October, 2002, upon consideration of a "Motion for In Camera Review . . ." filed by defendant Melinda L. Torres ("Defendant"), it appears to this Court that:
1. Defendant was indicted for one count of Assault Second Degree (title 11, section 612(a)(1) of the Delaware Code), one count of Possession of a Deadly Weapon During Commission of a Felony (title 11, section 1447 of the Delaware Code), and one count of Criminal Impersonation (title 11, section 907(1) of the Delaware Code). The indictment arose out of an incident that allegedly occurred on March 30, 2002 in a Wilmington nightclub. Defendant now seeks to have the Court review in camera an Internal Affairs file maintained by the Wilmington Police Department (the "IA file") concerning the officer who apparently responded to that incident, Officer Alfred Izquierdo. Although Defendant has framed her request as one for Brady material, the Court understands the request to essentially be a investigation of materials with which to potentially impeach Officer Izquierdo's credibility, should he testify at Defendant's trial. For the reasons that follow, Defendant's request is GRANTED IN PART and DENIED IN PART.
373 U.S. 83 (1963) (holding 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).
2. Defendant states that the basis for her motion is a "finding of Dishonesty which had caused Officer Izquierdo to be fired from the . . . [Wilmington Police Department before later being] . . . reinstated[.]" While recognizing the potentially sensitive nature of the subject IA file, Defendant nevertheless argues that this Court should "review the . . . [IA file] of Officer Izquierdo in order to make a determination regarding which information should be turned over to defense counsel. . . ."
Def.'s Mot. § 2.
Def.'s Mot. § 4.
In invited response, the City of Wilmington "does not express an opinion, or maintain a position as to the sufficiency of the Defendant's showing . . . [to gain access to the IA file for potential impeachment purposes]." The City of Wilmington does however request that "[in] the event that this Honorable Court determines that any disclosure to the parties is warranted," the Court should "issue a protective order to prevent any public disclosure of the contents of this otherwise privileged file."
City of Wilmington's Resp. § 5.
City of Wilmington's Resp. § 7.
3. In limited but appropriate situations, this Court will conduct an in camera inspection of the personnel files of police officers in order to determine whether such files contain any information that should be disclosed to criminal defendants. Before removing the "protective cloak of confidentiality" with respect to those records, however, a threshold showing must be made that the in camera inspection will not merely be a "vehicle from which . . . [to] embark on an unwarranted exploration of the. . .[officer]'s professional past." In order to warrant an in camera review, a defendant need not establish that police personnel records "actually contain relevant information," but only "at least advance `some factual predicate which makes it reasonably likely that the file will bear such fruit. . . ."
Snowden v. State, 672 A.2d 1017 (Del. 1996) (holding that the Superior Court erred in not conducting an in camera inspection of subpoenaed personnel files of a police officer who had pursued the defendant from the site of the crime where the defendant had produced undisputed evidence that the police officer had been terminated and the prosecutor had not determined whether the police officer's personnel file contained information that would have been exculpatory as to that defendant).
State v. Watson, ID #0103010698, 2002 WL 1652241, at *1 (Del.Super. July 17, 2002).
Snowden, 672 A.2d at 1024 (citation omitted).
4. Here, the City of Wilmington has taken no position on Defendant's initial showing of her claimed right to an in camera review of Officer Izquierdo's IA file. The City of Wilmington has therefore failed to rebut Defendant's assertion that Officer Izquierdo was allegedly terminated (before being reinstated) from the Wilmington Police Department for a "finding of [d]ishonesty." (In fact, the alleged incident surrounding the "finding of dishonesty" had been made public by Officer Izquierdo himself when he filed a civil rights action against inter alia the City of Wilmington in the United States District Court for the District of Delaware.) Accordingly, Defendant has advanced a sufficient "factual predicate" upon which review of Officer Izquiero's IA file is warranted; the Court has therefore conducted an in camera review of the subject file.
Def.'s Mot. § 2.
See Izquierdo v. Sills, 68 F. Supp.2d 392 (D.Del. 1999) (granting defendants' motion for summary judgment as to viability of § 1983 claim against certain state and municipal entities and persons and remanding to state court for "numerous" state law claims).
Snowden, 672 A.2d at 1024 (citation omitted).
5. Having reviewed the IA file, the Court has determined that certain records contained therein may bear upon Officer Izquierdo's credibility as a potential witness at trial. Specifically, the IA file documents the incident that formed the basis of Officer Izquierdo's termination from (and eventual reinstatement with) the Wilmington Police Department (the incident which formed the basis for the suit Officer Izquierdo eventually brought in the United States District Court). Therefore, that part of the IA file (but that part only) will be available in chambers for inspection only by Defendant's counsel, the State, and counsel for the City of Wilmington at 10:00 a.m. on Wednesday, November 13, 2002. (If that date and time are not convenient to any counsel, please advise my secretary and a new date and time will be scheduled.) Should Defendant seek at trial to cross- examine Officer Izquierdo regarding the incident described in that part of the IA file, Defendant shall first notify the presiding judge and the State so that argument thereon may be received outside the presence of the jury. Counsel for the City of Wilmington, having requested a protective order if
See State v. Watson, supra note seven, at *4 (noting that a party seeking to impeach through use of confidential information contained within an IA file must still argue "that the instances of misconduct . . . can pass through the evidentiary filters embodied in D.R.E. 403 and 608(b)").
5 the Court decided to allow any inspection, shall prepare an appropriate protective order and shall arrange for its execution by all other counsel at least two days prior to inspection of the IA file. Accordingly, Defendant's motion is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED.