{ "id": 711374, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Clinton CHAMBERS, Defendant-Appellant", "name_abbreviation": "State v. Chambers", "decision_date": "1986-01-21", "docket_number": "No. 8537", "first_page": "784", "last_page": "788", "citations": [ { "type": "official", "cite": "103 N.M. 784" }, { "type": "parallel", "cite": "714 P.2d 588" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "99 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584639 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0106-01" ] }, { "cite": "98 N.M. 438", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582477 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0438-01" ] }, { "cite": "84 N.M. 3", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765960 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0003-01" ] }, { "cite": "87 N.M. 128", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2833847 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0128-01" ] }, { "cite": "91 N.M. 712", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571051 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0712-01" ] }, { "cite": "80 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358492 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0537-01" ] }, { "cite": "100 N.M. 440", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588588 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0440-01" ] }, { "cite": "100 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588690 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0120-01" ] }, { "cite": "100 N.M. 720", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588650 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0720-01" ] }, { "cite": "90 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870034 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0148-01" ] }, { "cite": "88 N.M. 424", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841962 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0424-01" ] }, { "cite": "86 N.M. 627", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2825152 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0627-01" ] }, { "cite": "101 F.R.D. 427", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7855639 ], "opinion_index": 0, "case_paths": [ "/frd/101/0427-01" ] }, { "cite": "351 F.2d 762", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 808078 ], "opinion_index": 0, "case_paths": [ "/f2d/351/0762-01" ] }, { "cite": "705 P.2d 1138", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1985, "opinion_index": 0 }, { "cite": "103 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "year": 1985, "opinion_index": 0 }, { "cite": "103 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711304 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0320-01" ] } ], "analysis": { "cardinality": 681, "char_count": 15152, "ocr_confidence": 0.775, "pagerank": { "raw": 7.41055284221442e-08, "percentile": 0.44323143936190873 }, "sha256": "af642f31c61ab7c0467881c70d2c848a3630365699eef427b3e56cb7b46bc866", "simhash": "1:097af78cfd5ab361", "word_count": 2407 }, "last_updated": "2023-07-14T15:39:32.898300+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY, C.J., and BIVINS, J\u201e concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Clinton CHAMBERS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nGARCIA, Judge.\nDefendant was convicted of trafficking in a controlled substance, Meperidine (Demerol) in violation of NMSA 1978, Section 30-31-20 (Repl.Pamp.1980). He filed a timely appeal from this conviction. The issues raised by defendant on appeal relate to the disclosure of the identity of the confidential informant under NMSA 1978, Evid. Rule 510 (Repl.Pamp.1983). Defendant asserts that the trial court erred in failing to conduct an in camera hearing on the necessity of disclosure at the pretrial stage of the proceeding. Alternatively, defendant argues that because the identity of the informant was known to defendant, Evid. Rule 510 did not operate to protect the informant\u2019s identity, and thus, the court\u2019s refusal to allow defendant to cross-examine witnesses on the nature of the informant\u2019s relationship to the police amounted to prejudicial error. Defendant also asserts that the trial court erred in refusing to give his requested entrapment instruction, NMSA 1978, UJI Crim. 41.35 (Repl.Pamp.1982), and further, in allowing the state to present evidence of defendant\u2019s prior felony conviction.\nUpon review of the docketing statement, we proposed summary reversal on the grounds that the informant privilege had been voluntarily waived and that the court erred in denying disclosure. The state filed a memorandum in opposition, and accordingly, the case was reassigned to the limited calendar.\nDefendant did not brief one issue previously listed in his docketing statement; instead he sought to add alternative issues (cumulative error and ineffective assistance of counsel). Issues not briefed are deemed waived. State v. Gardner, 103 N.M. 320, 706 P.2d 862 (Ct.App.), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985). We find no merit in defendant\u2019s request to add additional issues and deny the request. Accordingly, the issues presented for the court\u2019s determination are: (1) whether the trial court erred in its refusal to order disclosure under Evid. Rule 510(c)(2) or in its ruling that Evid. Rule 510 prevented defendant\u2019s inquiry into the confidential informant\u2019s bias and the nature of the relationship between the state and the informant; (2) whether the trial court erred in denying defendant\u2019s requested instruction on entrapment, UJI Crim. 41.35.\nFACTS\nK.C. Rogers, an undercover narcotics agent, was told by a confidential informant that defendant had 100 milligrams of Demerol tablets to sell. The informant took Rogers to defendant\u2019s home and introduced him to defendant and to Helen Jackson, a friend of both defendant and the informant. Shortly after arriving at defendant\u2019s residence, there was a brief discussion between Rogers and defendant concerning drugs. Helen Jackson and defendant went to another room and returned. Ms. Jackson produced a vial of pills, removed two and gave them to defendant, who then handed them to Rogers. In turn, Rogers gave $30.00 to the confidential informant who handed it to defendant. The pills given Rogers were Meperidine, a controlled substance.\nAt trial, Rogers testified that he had been taken to the residence by the female confidential informant. Helen Jackson, the other woman present at defendant\u2019s home, testified that Rogers had been accompanied by a woman named May Parker. May Parker was also identified by defendant as the woman who accompanied Rogers to his residence.\nDefendant called May Parker as a witness. While the court did not allow defendant to ask if Parker was the confidential informant, or allow defendant to inquire into the nature of her arrangement with the police, Parker nevertheless confirmed that she had accompanied Rogers to defendant\u2019s house. Defendant testified that Helen Jackson and May Parker had been together earlier in the day. He testified that Helen had 100 milligrams of Demerol she wanted to sell to supplement funds for a mortgage payment. He said the pills belonged to Helen and that the money was paid to her. Defendant also testified that later on, Rogers came back and tried to buy drugs from defendant, and defendant did not sell any, even though he had Demerol which was obtained through a legitimate prescription. Helen Jackson professed to having no memory of the events and could not, or would not, provide any information.\nTHE CONFIDENTIAL INFORMANT PRIVILEGE AND THE PRETRIAL MOTION TO DISCLOSE\nDefendant argued in a pretrial motion that the circumstances of the case triggered the disclosure requirements of Evid. Rule 510. On appeal defendant argues that the trial court erred in its refusal to conduct an in camera hearing to determine if disclosure was required under Evid. Rule 510. The state argues that defendant did not make a showing sufficient to require the trial court to hold an in camera hearing on the issue of disclosure.\nBecause we find that Evid. Rule 510 is inapplicable to the facts in this case, we decline to reach the issue of the necessity for an in camera hearing under that rule. We discuss: the misapplication of Evid. Rule 510; the trial court\u2019s refusal to allow defendant\u2019s cross-examination of May Parker.\nVOLUNTARY DISCLOSURE AND THE SIXTH AMENDMENT CLAIM\nDefendant focuses his complaint on the trial court\u2019s refusal to disclose the informant\u2019s identity. The gist of defendant\u2019s argument, however, does not go to the question of identity, because it was obviously known to defendant. While the state never expressly admitted that May Parker was the confidential informant, this was the logical and inescapable conclusion drawn from the evidence. Defendant asserts, as he asserted repeatedly at trial, that the Evid. Rule 510 privilege is inapplicable to a situation where the identity of the informant is known to defendant. Defendant\u2019s real claim of error is predicated on a denial of the sixth amendment right to confrontation. Defendant contends the trial court\u2019s refusal to allow defense counsel to question the confidential informant on her relationship with the police effectively foreclosed defendant\u2019s presentation of his entrapment defense.\nEvid. Rule 510(c)(1) provides:\nVoluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer\u2019s own action, or if the informer appears as a witness for the state.\nDefendant contends that May Parker herself disclosed her identity as an informant by her own actions. At a bench conference just prior to trial, the trial court ruled that defendant might call the confidential informant as a witness as long as her identity as the confidential informant was not disclosed. The state responded to defendant\u2019s assertion that Ms. Parker had given herself up to be disclosed by her presence at the transaction, by asserting that the privilege belonged to the state and that Ms. Parker could not give it up. The state\u2019s argument is clearly incorrect considering the plain wording of the rule. See Westinghouse Electric Corp. v. City of Burlington, Vermont, 351 F.2d 762 (D.C.Cir.1965).\nThe state argues that even if the identity of the informant can be \u201cinferred,\u201d absent a direct disclosure, Evid. Rule 510 prevents inquiry into the identity of the confidential informant. The Advisory Committee\u2019s Note to Standard 510, (identical to our Evid. Rule 510), states: \u201cDisclosure may be direct, or the same practical effect may result from action revealing the informant\u2019s interest in the subject matter.\u201d 2 Weinsteins Evidence, at 510-4 (1985). Thus, whether Parker\u2019s action waived the privilege or whether the privilege never applied because defendant always knew the identity of the confidential informant, Evid. Rule 510 was not a ground for the trial court\u2019s denial of defendant\u2019s right to cross-examine Parker as to her relationship with the police. See Dowd v. Calabrese, 101 F.R.D. 427 (D.C.Cir.1984). No Evid. Rule 510 privilege existed going into trial.\nAt trial the undercover narcotics agent testified that Parker was instrumental in setting up the drug transaction; that beside the confidential informant, \u201canother female\u201d was at defendant\u2019s home; that Parker directed the agent to defendant and told the agent that defendant possessed 100 milligrams of Demerol. When defense counsel attempted to cross-examine the agent as to the deal Parker had with the police, the state objected to the relevancy of the question. At the bench conference immediately thereafter, the state argued that because there had been no disclosure, the confidential informant\u2019s relationship with the police was irrelevant. Defense counsel asserted that the informant\u2019s identity was not a secret and that his case required him to bring out the informant\u2019s relationship with the police. The judge ruled that the relationship was not yet relevant, but that if the informant testified, it might become relevant. Agent Rogers further admitted on cross-examination that he did not know if the Demerol was Helen Jackson\u2019s. He also testified that Jackson cooperated with defendant in selling the Demerol. Finally, when questioned about why he did not further investigate Helen Jackson, Rogers admitted, \u201cHowever the more you\u2019ve talked, the more I see there is probably a good case on the other person.\u201d\nDefendant contends that the confidential informant\u2019s deal with the police was relevant to his defense of entrapment and to the credibility and bias of May Parker. During defense counsel\u2019s direct examination of Parker, Parker testified that she went to defendant\u2019s house with Rogers; that she did not know who the pills belonged to; that Helen handed defendant some pills to sell to Rogers; that Rogers asked for pills; that Helen was a close friend of defendant; and that Helen and defendant had both been to her (Parker\u2019s) house earlier that day. Helen Jackson had no memory of the day in question and defendant testified that he had not been at Parker\u2019s house.\nTestimony concerning bias and credibility is always relevant. State v. Santillanes, 86 N.M. 627, 526 P.2d 424 (Ct.App.1974); see also State v. Hermosillo, 88 N.M. 424, 540 P.2d 1313 (Ct.App.1975). Defendant was precluded from examining Ms. Parker on these issues. The court recognized that Parker was an adverse witness and allowed defense counsel to use leading questions in his direct examination. This is tantamount to cross-examination. The real issue presented to this court is whether the trial court\u2019s limitation on counsel\u2019s right of examination infringed on defendant\u2019s right of confrontation. While the admission or exclusion of evidence is largely left to the discretion of the trial court, where the court exercises its discretion on \u201cuntenable grounds,\u201d the exclusion constitutes an abuse of discretion. Weiland v. Vigil, 90 N.M. 148, 560 P.2d 939 (Ct.App.1977). Defendant must demonstrate prejudice to a substantial right in order for a denial of cross-examination to amount to reversible error. State v. Worley, 100 N.M. 720, 676 P.2d 247 (1984). For error to be prejudicial, the improperly refused evidence must form an important part of defendant\u2019s case. Id. at 725, 676 P.2d 247. To warrant reversible error in denial of admission of testimony, a defendant must show that there is a reasonable probability that the trial court\u2019s failure to allow the answers to the questions propounded contributed to defendant\u2019s conviction. State v. Garcia, 100 N.M. 120, 666 P.2d 1267 (Ct.App.1983).\nAfter the court\u2019s refusal to allow defendant to examine Parker on her arrangement and relationship with the police, counsel, at the court\u2019s direction, made an oral tender as to the evidence he would present. Counsel stated that he would show that the nature of Parker\u2019s deal with the police made it necessary for her to deliver people to be \u201cbusted.\u201d He also stated he would show that Jackson and Parker set defendant up. This offer of proof made known the substance of the evidence defendant wished to elicit. See State ex rel. Nichols v. Safeco Insurance Co. of America, 100 N.M. 440, 671 P.2d 1151 (Ct.App.1983). Without a question- and-answer tender, we are left to speculate whether Ms. Parker would or would not have confirmed counsel\u2019s assertions, and whether Ms. Parker could have bolstered defendant\u2019s entrapment theory. We must assume that defense counsel could have shown what he offered to show in his oral tender.\nThe trial court based its refusal to allow cross-examination of Rogers and Parker on the confidential informant privilege, a privilege which we conclude did not apply in this case. Defendant\u2019s entire case revolved around the issue of entrapment by Parker and possibly Jackson. The denial of the requested cross-examination effectively prevented defendant from exploring Ms. Parker\u2019s motives and from presenting his entrapment defense. See Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969); State v. Lovato, 91 N.M. 712, 580 P.2d 138 (Ct.App.1978); State v. Curtis, 87 N.M. 128, 529 P.2d 1249 (Ct.App.1974).\nThe state asserts that defendant did not dispute the drug sale and, thus, the denial of cross-examination was harmless error. There are two problems with this contention: first, defendant did deny that he sold drugs; second, even if defendant\u2019s testimony is read as an admission of guilt, the admission is an essential element of an entrapment defense. State v. Wright, 84 N.M. 3, 498 P.2d 695 (Ct.App.1972). Under these circumstances, the trial court\u2019s denial of cross-examination was an abuse of discretion amounting to prejudicial error. Cf. State v. Guess, 98 N.M. 438, 649 P.2d 506 (Ct.App.1982).\nIt is the denial of cross-examination that lies at the heart of this case. Whatever the error may have been in not conducting an in camera hearing at the pretrial stage, the fact is that the confidential informant was known to defendant; she did testify as a witness for the defense. The error we perceive was the trial court\u2019s ruling that Evid. Rule 510 applied to this case at all and its consequent denial of cross-examination. This ruling handicapped defendant\u2019s presentation of his case and denied him a right guaranteed by the federal and state constitutions. See State v. Baldizan, 99 N.M. 106, 654 P.2d 559 (Ct.App.1982). Accordingly, we reverse defendant\u2019s conviction and remand for a new trial.\nTHE ENTRAPMENT INSTRUCTION\nThe trial court\u2019s refusal to give the entrapment instruction cannot be separated from its refusal to allow defendant to present an entrapment defense. Because we resolve this case on the issue of the applicability of the Evid. Rule 510 privilege and the violation of defendant\u2019s right to confront the witnesses against him, we need not further consider the issue of the entrapment instruction.\nDONNELLY, C.J., and BIVINS, J\u201e concur.", "type": "majority", "author": "GARCIA, Judge." } ], "attorneys": [ "Paul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Janet Clow, Chief Public Defender, Wendy York, Asst. Public Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "714 P.2d 588\nSTATE of New Mexico, Plaintiff-Appellee, v. Clinton CHAMBERS, Defendant-Appellant.\nNo. 8537.\nCourt of Appeals of New Mexico.\nJan. 21, 1986.\nPaul G. Bardacke, Atty. Gen., Alicia Mason, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJanet Clow, Chief Public Defender, Wendy York, Asst. Public Defender, Santa Fe, for defendant-appellant." }, "file_name": "0784-01", "first_page_order": 822, "last_page_order": 826 }