Nutter v. State

• Decision Date: 10 February 1970
• Docket Number: No. 200,200
• Citation: 262 A.2d 80,8 Md.App. 635
• Parties: Erwin Randolph NUTTER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 635

8 Md.App. 635

262 A.2d 80

Erwin Randolph NUTTER v. STATE of Maryland.

No. 200.

Court of Special Appeals of Maryland.

Feb. 10, 1970.

[262 A.2d 82] Milton B. Allen, Baltimore, for appellant.

John J. Garrity, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Michael E. Kaminkow, Asst. State's Atty., for Baltimore City respectively, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.,

ORTH, Judge.

I

THE PRIVILEGE OF NONDISCLOSURE OF THE IDENTITY OF INFORMERS

The Rule

In Maryland the State has the privilege to withhold from disclosure the identity of persons who furnish information to police officers concerning the commission of crimes. This general rule was recognized in Drouin v. State, 22 Md. 271, 160 A.2d 85 and reaffirmed in Gulick v. State, 252 Md. 348, 249 A.2d 702. 'That the government has this privilege is well established, and its soundness cannot be questioned.' 8 Wigmore, Evidence (1961) § 2374, p. 762. Its purpose is the furtherance and protection of the public interest in effective law enforcement. Roviaro v. United States, 353 'Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity-to protect himself and his family form harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.'

U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639. Professor Wigmore, characterized by the Supreme Court as 'not known as an enthusiastic advocate of testimonial privileges generally', McCray v. Illinois, 386 U.S. 300, 309, 87 S.Ct. 1056, 18 L.Ed.2d 62, noted that such a genuine privilege must be recognized and said, § 2374, pp. 761-762:

Of course, the privilegs applies only to the identity of the informer, ¹ and not to his communication as such. And 'The cases universally recognize the exception to the nondisclosure privilege where the informer was a participant, accessory or witness to the crime. See McCoy v. State, 216 Md. 332, 337, 140 A.2d 689, * * *; The Evidence Handbook, Donigan & Fisher, (1965) Evidentiary Privileges § 7, pg. 214.'

                the privilege is not absolute; it is limited by its underlying purpose.  The obvious qualification is that once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.  Roviaro v. United States, supra, 353 U.S. at 60, 77 S.Ct. 623, 1 L.Ed.2d 639.  2  See McCoy v. State, 216 Md. 332, 337, 140 A.2d 689.  But the real exception to the rule may not be so obvious, but is just.  It arises from the fundamental requirements of fairness.  The identity of the informer must be disclosed when it is necessary and relevant to a fair defense.  Gulick v. State, supra, 252 Md. at 354 and 357, 249 A.2d 702.  Or as the Court said in Drouin v. State, supra, 222 Md. at 286, 160 A.2d at 93, disclosure is compelled 'if the name of the informer is useful evidence to vindicate the innocence of the accused, lessens the risk of false testimony or is essential to a proper disposition of the case.'  In McCoy v. State, supra, 216 Md. at 337, 140 A.2d at 692, the Court stated the exception to be '(whenever) the informer * * * was an integral part of the illegal transaction.'  3  The Court also said in Gulick v. State, supra, 252 Md. at p. 354, 249 A.2d at 706
                

We do not think this is a separate exception, distinct from the exception described in the terms of necessity and relevancy to a fair defense. We believe that if an informer is a participant, accessory or witness to the crime it is a factor to be considered in determining whether his identity is necessary and relevant to a fair defense. and we feel that 'witness' as used in Gulick means a material witness, in the sense the his testimony is important to a fair determination of the cause. It is then that his identity becomes necessary and relevant to a fair defense. Thus in this context 'material' may be said to have a meaning more restrictive than its usual meaning. So, although an eyewitness to a crime is clearly a 'material' witness as that word is ordinarily used, if he is an informer, simply observing an illegal transaction but not participating in it, the fact that he observes the transaction does not necessarily make his possible testimony so important as to compel disclosure of his identity in the fact of the rational of the nondisclosure privilege. Donigan & Fisher, cited in support of the statement 'Thus where the informer is an active participant in the illegal activities disclosed by him, his actions and identity can become part of the res gestae and concealment of his identity might hamper the accused in making his defense by depriving him of the testimony of a material witness.'

in Gulick, said, 'When the identity of an informer becomes material to the establishment of a defense, the court will order its disclosure.' They quoted Roviaro v. United States, supra, in support thereof, and in Roviaro the Government's informer was the sole participant, other than the accused, in the transaction charged and was the only witness in a position to amplify or contradict the testimony of government witnesses. Thus it was clear, and the Court so found, that the informer was a material witness, his possible testimony being 'highly relevant and might have been helpful to the defense.' 353 U.S. at 63-64, 77 S.Ct. at 629. Donigan & Fisher concluded, pp. 215-216:

McCoy, also cited in Gulick, is not contrary to our interpretation. There the exception was stated in terms of the informer being an integral part of the illegal transaction and Roviaro was discussed in support thereof. Lee v. State, 235 Md. 301, 201 A.2d 502, supports our interpretation.

In Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956, the principal witness for the prosecution was a man who identified himself on direct examination as 'James Jordan.' This witness testified that he had purchased a bag of heroin from the petitioner in a restaurant with marked money provided by two police officers. The officers corroborated part of his testimony but only this witness and the petitioner testified as to the crucial events inside the restaurant, and the petitioner's version of those events was entirely different. 'The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness.' at 130, 88 S.Ct. at 749. On cross-examination the witness admitted that his real name was not 'James Jordan.' Objection to inquiry as to his real name It appears, therefore, that if an informer testified for the prosecution at trial, the State's privilege of nondisclosure is not applicable and may not be invoked, yielding to the Sixth Amendment right of confrontation. ⁴

and address were sustained. The Court reversed, holding that under the standard of Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624, the defendant was denied the right to confront the witnesses against him, guaranteed to him under the Sixth and Fourteenth Amendments of the federal constitution. The Court noted that its decisions in Roviaro and McCray were not relevant as in neither of those cases was the informer a witness for the prosecution. 390 U.S., note 8, at 133, 88 S.Ct. 748, 19 L.Ed.2d 956.

The Application of the Exception

We think it clear that today the exception to the general rule of the State's privilege of nondisclosure of the identity of an informer applies to the issue of guilt or innocence as distinguished from the issue of probable cause for a warrantless arrest of an arrest warrant or for the issuance of an arrest warrant or search and seizure warrant. Although in Drouin v. State, supra, the Court considered the exception with regard to probable cause for an arrest, that case was decided without the benefit of McCray v. Illinois, supra. In McCray the Court, pointing out that Roviaro involved the privilege 'at the trial itself where the issue was the fundamental one of innocence or guilt', and not on the issue of probable cause of an arrest or search, 386 U.S. at 309, 87 S.Ct. at 1061, 'made it crystal clear', as we said in Mullaney v. State, 5 Md.App. 248, note 4 at 254, 246 A.2d 291, at 296, 'that there is no requirement The Invoking of the Exception

                constitutional or otherwise, which compels disclosure of the informant's identity on a hearing to determine the question of probable cause for an arrest or search.'  And see Rollins v. State, 5 Md.App. 495, 498, 248 A.2d 122.  5  In Gulick v. State, supra, the issue was not probable cause for an arrest or search but the demand for disclosure concerned the identity of an individual who gave the law enforcement authorities a 'tip' on the relevancy to the crime of an object already in the possession of the police.  The Court held that disclosure of the identity of the informer was not required because it was not necessary and relevant to a fair defense.  252 Md. at 357, 249 A.2d 702
                

The exception to the general rule of the State's privilege of nondisclosure of the identity of an informer must be invoked by the defendant. 'Even though a case is a proper one for disclosure, the court will not on its own motion require the government to reveal the source of its information; the defense must demand disclosure and, if it is refused, move to...