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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, 
                                                    No. 65822-1-I
                       Respondent,
        v.                                          DIVISION ONE

 ANDRE HAMLET, JR.,                                 UNPUBLISHED OPINION

                       Appellant.                   FILED:  January 30, 2012

        Leach, A.C.J.  --  Andre Hamlet appeals his conviction for possession of 

 methamphetamine with intent to deliver.  He contends the trial court violated his 

 right to present a defense by refusing to give a missing witness instruction.  A 

 trial court properly refuses to so instruct a jury if the party that failed to produce a 

 logical witness provides      a satisfactory explanation.  Because the State 

 satisfactorily explained why it did not call the "missing" individual to testify, 

 Hamlet was not entitled to the instruction.  We affirm.

                                      Background

        A cooperating witness1 working for the Seattle Police Department told 

 Officer Pete Lazarou that Hamlet was a methamphetamine dealer and gave 

 Officer Lazarou Hamlet's telephone number.  Officer Lazarou called the number 

        1 A cooperating witness, in contrast to a confidential informant, does not 
 receive compensation for the information he or she provides to the Seattle 
 Police Department.   

No. 65822-1-I / 2

and arranged to buy $40 worth of methamphetamine from the person on the 

other end of the line, who identified himself as "Dray."     Officer Lazarou and Dray 

arranged to meet 20 minutes later at a Fred Meyer store.  Dray called Officer 

Lazarou twice to change meeting locations, eventually asking Officer Lazarou to 

meet him in the parking lot of a Safeway grocery store.  Dray told Officer 

Lazarou that he would be in a silver Volkswagen.

       When he arrived at the Safeway, Officer Lazarou saw an individual step 

out of a parked silver Volkswagen Beetle.  Officer Lazarou called Dray's 

telephone number.  As soon as Officer Lazarou heard the phone ring, he saw 

the man by the Volkswagen answer an incoming call on his cellular telephone.

       Officer Lazarou alerted the Seattle Police Department's Anti-Crime Team 

(ACT).  ACT moved in to arrest the individual, later identified as Hamlet.  When 

ACT Officer Randy Maxwell told Hamlet to put his hands up, Hamlet raised his 

hands with balled fists.  Officer Maxwell then ordered Hamlet to unclench his 

fists.  When Hamlet complied, Officer Maxwell saw two small bags fall to the 

ground.  After Hamlet was arrested, Officer Maxwell recovered the bags, as well 

as a green cellular telephone from the passenger seat, where Hamlet had been 

sitting.  Officer Maxwell left the cellular telephone for Officer Lazarou on the 

car's dashboard.  

       ACT departed, and Officer Lazarou took custody of the telephone.  To 

verify that the telephone was the same one that Dray had used, Officer Lazarou 

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No. 65822-1-I / 3

called the number that the cooperating witness had given him.           The telephone 

rang, and Officer Lazarou's number appeared on the telephone's electronic 

display.

       Testing at the Washington State Patrol Crime Laboratory revealed that 

the bags Hamlet dropped contained methamphetamine.  The State charged 

Hamlet with one count of possession of a controlled substance with intent to 

deliver.

       At Hamlet's trial, Officer Lazarou testified that he had worked with the 

cooperating witness who provided information in Hamlet's case several times 

over the course of about a year.  Lazarou told the jury that the cooperating 

witness was 90 to 95 percent reliable.  The State, however, did not call the 

cooperating witness to testify.  Hamlet asked the court to give the jury a missing 

witness instruction that would permit the jury to infer that the cooperating 

witness's testimony would have been unfavorable to the State.  The State 

objected, arguing that the defense was not entitled to the instruction: 

              Here Officer Lazarou testified that this cooperating witness 
       has been providing good information 90% to 95% of the time.  The 
       State has an interest in keeping this person confidential for safety 
       reasons and for the person to continue to provide valid leads to the 
       police if they continue to commit this sort of crime.

The trial court refused to give the instruction.

       A jury convicted Hamlet as charged.  He appeals.

                                       Analysis

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No. 65822-1-I / 4

       Hamlet contends the trial court violated his right to present a defense by 

denying his request for a missing witness instruction.  We review a trial court's 

refusal to give a requested instruction for an abuse of discretion.2  

       When a party fails, without explanation, to call a witness it would naturally 

call if the witness's testimony would be favorable, the missing witness doctrine 

permits an inference that this witness's testimony would have been unfavorable.3  

A defendant is entitled to a missing witness instruction when

       (1) the witness is "peculiarly available" to a party, (2) the witness'
       testimony relates to an issue of fundamental importance, and (3) 
       circumstances at trial establish that, as a matter of reasonable 
       probability, the party would not fail to call the witness unless her 
       testimony would have been damaging or unfavorable.[4]  

If a witness's absence can be satisfactorily explained, a missing witness 

instruction is not appropriate.5

       Here, the trial court properly determined that Hamlet was not entitled to a 

missing witness instruction because the State had compelling reasons for failing 

to call the cooperating witness to testify.  The cooperating witness had been 

working with police for a year and was a reliable informant, providing good 

information 90 to 95 percent of the time.  The State explained that it had an 

interest in keeping the cooperating witness safe, in part to further the successful 

       2 State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998).
       3 State v. Blair, 117 Wn.2d 479, 485-86, 816 P.2d 718 (1991) (quoting 
State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968)).
       4 State v. Davis, 116 Wn. App. 81, 88, 64 P.3d 661 (2003).
       5 Blair, 117 Wn.2d at 489. 

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No. 65822-1-I / 5

working relationship between the individual and the police.  This was a 

satisfactory explanation for the cooperating witness's absence.  The trial court 

did not abuse its discretion by refusing to give a missing witness instruction.

                                      Conclusion

       Because Hamlet was not entitled to a missing witness instruction, the trial 

court did not abuse its discretion by refusing to give it.  We affirm.

WE CONCUR:

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