Opinion
20-P-129
03-10-2022
COMMONWEALTH v. Pedro A. VASQUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was indicted in the Superior Court for trafficking in heroin in an amount between fourteen and twenty-eight grams, and trafficking in cocaine in an amount between fourteen and twenty-eight grams. Prior to trial, the defendant moved unsuccessfully for disclosure of the identity of a confidential informant who supplied information that led the police to discover the drugs at issue in the defendant's car. After a jury trial, the defendant was convicted of both trafficking charges. On appeal, a different panel of this court affirmed the convictions but remanded the case to the trial court for further proceedings related to the defendant's pretrial motion for disclosure of the confidential informant's identity. See Commonwealth v. Vasquez, 93 Mass. App. Ct. 1108 (2018) (Vasquez I ). On remand, after further hearings that included in camera testimony by the informant's police contact, the defendant's motion was again denied. The defendant appeals from that denial. Concluding that the judge on remand properly balanced the relevant interests, consistent with Roviaro v. United States, 353 U.S. 53, 62 (1957), and Commonwealth v. Bonnett, 472 Mass. 827, 847-848 (2015), we affirm.
Background. On December 10, 2010, Worcester police officers stopped the car the defendant was driving based on a confidential informant's report to Massachusetts State police Trooper George Berrios that the defendant had a large quantity of drugs in the car. Previously, according to the defendant's affidavit in support of the pretrial motion for disclosure of the confidential informant's identity, Trooper Berrios had attempted to coerce the defendant into becoming a police informant. The predicate for the defendant's motion was his contention that he had no knowledge of the drugs in the car, therefore, they must have been planted there, either by the confidential informant or by the police. The Commonwealth opposed the motion, which was denied by a judge other than the trial judge (motion judge).
In the defendant's direct appeal, the panel affirmed the convictions, but concluded that the motion judge had not engaged in the balancing test required under Roviaro and explicated in Bonnett and remanded the case for a judge "to conduct the required orderly appraisal of the relevant factors in accordance with the framework set out in Bonnett." Vasquez I, Mass. App. Ct., No. 17-P-510, slip op. at 10, citing Bonnett, 472 Mass. at 850-851.
Following the remand, the case was assigned to a different judge, as the motion judge had been elevated to the Appeals Court. That judge identified the purpose of the hearing as limited to "determin[ing] the materiality of the information regarding the informant to the defendant's presentation of a defense and to enable the court to engage in the balancing test mandated by Commonwealth v. Bonnett, 472 Mass. 827, 848 (2015)." In a closed hearing, over the course of two days, the judge heard testimony by Sergeant (formerly Trooper) Berrios and admitted several documents as exhibits. The judge allowed counsel for both parties to question Sergeant Berrios, and himself questioned Sergeant Berrios in camera, outside the presence of counsel. Based on his assessment of "the credible evidence presented at the hearings," the judge concluded that "the public interest in protecting the flow of information provided by informants outweigh[ed] [the defendant's] right to prepare his defense," and denied the motion to disclose the informant's identity. We consider the defendant's appeal from this order.
We have reviewed the hearing testimony in its entirety, including the portion the judge received in camera.
To the extent that the defendant's motion sought more than simply the informant's identity, the judge denied the motion in its entirety.
Discussion. "The government's privilege not to disclose the identity of an informant has long been recognized in this Commonwealth," Bonnett, 472 Mass. at 846, quoting Commonwealth v. Dias, 451 Mass. 463, 468 (2008), and may be asserted where the Commonwealth otherwise would be required to provide an informant's identity to a defendant as part of its discovery obligations. See Roviaro, 353 U.S. at 59. Deciding a motion for disclosure of a confidential informant's identity involves a two stage analysis. See Bonnett, supra. At the first stage, the judge makes
"preliminary determinations as to (a) whether the Commonwealth has properly asserted an informant privilege, and (b) whether the defendant has adequately challenged the assertion of the privilege as an impermissible interference with his or her right to present a defense. The second stage of the analysis then involves a balancing test, introduced by the United States Supreme Court in Roviaro, supra, in which the interest of the public in protecting the anonymity of informants is weighed against the defendant's right to defend himself."
Id. at 846-847. At the second stage, the judge's obligation is to " ‘balanc[e] ... the public interest in protecting the flow of information against the individual's right to prepare his [or her] defense,’ taking into account ‘the crime charged, the possible defenses, the possible significance of the [privileged] testimony, and other relevant factors.’ " Id. at 848, quoting Dias, supra at 468-469. If we conclude that the judge erred in this process, "we review to determine whether the error was ‘harmless beyond a reasonable doubt.’ " Commonwealth v. Hartfield, 474 Mass. 474, 483 (2016), quoting Commonwealth v. Kelsey, 464 Mass. 315, 319 (2013).
1. Commonwealth's assertion of privilege against disclosure. We first dispense with the defendant's claim that the judge erred in reaching the second stage of the Bonnett framework because the Commonwealth failed properly to assert its privilege at the first stage. A determination that both parties had made the required preliminary showings in the first stage of the analysis is implicit in the scope of the remand order in Vasquez I, which was limited to providing the judge with an opportunity to conduct the balancing test articulated in Roviaro. The balancing test is not triggered unless both the Commonwealth and the defense have met their preliminary showings at the first stage of the Bonnett framework. See Bonnett, 472 Mass. at 847 ("The second stage of the analysis is undertaken if the privilege both has been asserted properly by the Commonwealth and has been challenged adequately by the defendant" [emphasis added]).
2. Judge's credibility assessments. We are likewise unpersuaded that the judge erred by assessing the credibility of the evidence presented in the second stage of the proceedings. Under Bonnett, the first stage of the analysis requires the judge to assess the defendant's preliminary showing that failure to disclose the informant's identity "interferes with a fair defence." Commonwealth v. Johnson, 365 Mass. 534, 544 (1974). In doing so, the judge must accept the factual assertions in the defendant's affidavit as true. See Commonwealth v. Mello, 453 Mass. 760, 762 n.1 (2009). Cf. United States v. Pesaturo, 519 F. Supp. 2d 177, 184 (D. Mass. 2007) (accepting allegations of defendant's affidavit when deciding whether entrapment adequately raised).
Once these threshold showings have been made, however, the judge is required at the second stage of the analysis to consider factors including "the possible defenses" available to the defendant and "the possible significance of the [privileged] testimony." Bonnett, 472 Mass. at 848, quoting Dias, 451 Mass. at 468-469. Reading "possible" in this context to mean "viable," or, at the very least, something more concrete than "theoretical," we discern no error in the judge's making credibility assessments of the evidence presented at the second stage of the hearing. Indeed, in remanding the case for proceedings on the second stage of the privilege analysis, the prior panel noted that the defendant's affidavit, "if credited, adequately raised" the defense urged on appeal, "that the drugs were planted, because [the defendant] had refused to become a police informant" (emphasis added). Vasquez I, Mass. App. Ct. 17-P-510, slip op. at 9. We think it both proper and, in this case, necessary, for the judge to have made credibility determinations as an aid to his assessment of the significance of the defendant's proposed defense.
We are not persuaded by the defendant's argument that the judge's finding that Sergeant Berrios's testimony was credible, and that the defendant's affidavit was not credible, amounted to clear error requiring reversal. Even if, as the defendant contends, the record does not support a conclusion that the judge had the ability in 2019 to determine whether Sergeant Berrios spoke to the defendant with a Puerto Rican accent in 2010, the judge's findings did not turn on his "note that Berrios had no discernable ‘Puerto Rican’ accent ... during his testimony before [the judge]."
3. Balancing of interests. We turn, then, to the defendant's contention that the judge "gave informant safety too much weight in his analysis." Again, we are not persuaded. The judge's findings reflect his determination not only that the informant had legitimate safety concerns that militated against disclosing his or her identity, but that "the public interest in protecting the flow of information provided by informants" -- i.e., the interest in encouraging rather than discouraging citizens to come forward with information helpful to law enforcement -- outweighed the defendant's right to prepare his defense in light of the strength of that proposed defense. Such concerns are a proper consideration; the informant privilege recognizes that an informant whose identity is not kept confidential "may well suffer some sort of reprisal if his or her identity is disclosed." Commonwealth v. Amral, 407 Mass. 511, 516 (1990). Reprisals may take different forms and are not limited to threats of physical harm. For example, an informer might condition cooperation on an assurance of anonymity to protect "family from harm, to preclude adverse social reactions, and to avoid the risk of defamation or malicious prosecution actions." Id. Alternatively, "disclosure of an informer's identity may destroy his future usefulness in criminal investigations." Commonwealth v. Lugo, 23 Mass. App. Ct. 494, 498 (1987), S.C., 406 Mass. 565 (1990), quoting United States v. Green, 670 F.2d 1148, 1155 (D.C. Cir. 1981) (discussing analogous "surveillance location privilege"). Where the judge found that disclosure of the informant's identity would create safety concerns and impede the flow of information, and where the judge properly concluded that disclosure "would not be of substantial assistance to the defendant," we discern no error in his implementation of the balancing test. See Commonwealth v. Healy, 438 Mass. 672, 676 n.6 (2003) (appellate court "must defer to [judge's] assessment of witness credibility").
4. Alternatives to full disclosure. Finally, we are not persuaded that the judge erred in failing to consider a "compromise" that would permit disclosure while minimizing danger to the informant. In remanding the matter back to the trial court, the panel left the form of the proceedings to the judge, "including whether all or some of those proceedings should be in camera and whether defense counsel should be present." Vasquez I, Mass. App. Ct., No. 17-P-510, slip op. at 10. The judge permitting counsel to be present for all but a small portion of the hearing amounted to a "compromise." While we are sympathetic to the argument that it should be presumed that ethical attorneys will follow a judge's nondisclosure order, see Amral, 407 Mass. at 526 (Liacos, J., concurring), we are also aware (as we presume the judge here was) of the risk of information leaking notwithstanding that duty. Whatever the judge's other options may have been, we discern no error in his conducting the hearing as he did.
Order denying motion for disclosure of informant's identity affirmed.