Beville v. State

• Citation: 71 N.E.3d 13
• Decision Date: 17 March 2017
• Docket Number: No. 84S01-1606-CR-347,84S01-1606-CR-347
• Parties: Marvin BEVILLE, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
• Court: Supreme Court of Indiana

71 N.E.3d 13

Marvin BEVILLE, Appellant (Defendant),

v.STATE of Indiana, Appellee (Plaintiff).

No. 84S01-1606-CR-347

Supreme Court of Indiana.

March 17, 2017

Attorney for Appellant : Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana.

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Chandra K. Hein, Jodi Kathryn Stein, Deputy Attorneys General, Indianapolis, Indiana.

On Petition to Transfer from the Indiana Court of Appeals, No. 84A01-1507-CR-890

Rush, Chief Justice.

The State told Marvin Beville it had a video recording of a controlled drug buy between him and a confidential informant. But while the State offered Beville's public defender the opportunity to review the recording in the prosecutor's office, it would not allow Beville himself to see the video. Beville accordingly requested a copy of the recording, to no avail. His counsel then filed a motion to compel and argued that Beville's personal review of the video was fundamental to preparing a defense. The State responded that the informer's privilege entitled it to withhold disclosing the recording. The trial court agreed with the State, and Beville took this interlocutory appeal.

We acknowledge that when the informer's privilege is properly invoked, the defendant bears the burden to demonstrate an exception to the privilege—otherwise, disclosure of the requested discovery is not warranted. But it is incumbent on the State to establish that the informer's privilege applies in the first instance. We conclude the State failed to make that threshold showing because it is unclear whether the video would actually reveal the informant's identity. And even if the State had made the threshold showing, we find that Beville carried his burden of proving an exception to the privilege because his review of the video was relevant and helpful to his defense. We thus reverse the trial court.

Facts and Procedural History

The State accused Marvin Beville of selling marijuana to a confidential informant ("CI") and charged Beville with dealing in marijuana and maintaining a common nuisance. At some point, the State informed Beville it had a video recording of a controlled buy between him and the CI.

At the initial hearing, the trial court ordered discovery pursuant to a local rule. Vigo Cty. LR84-CR00-5 (2014). Under that rule, a defendant must specifically request a copy of video evidence; the State must provide the recording for examination and copying at "reasonable" times and places; and the trial court may deny disclosure of a CI's identity if it finds a "paramount interest in non-disclosure." Id.

Shortly after the initial hearing, the State provided discovery. The discovery did not contain the identity of the CI or the recording of the alleged controlled buy, but the State offered to let Beville's public defender review the video at the prosecutor's office.

Beville's counsel then attempted, multiple times, to obtain a copy of the video to review with Beville. He first filed a motion asking for copies of, among other items, all "video tapes ... which the State of Indiana may use in the prosecution of this matter." The trial court ordered the State to comply with the discovery request. After not receiving a copy of the recording, Beville's counsel filed a motion to compel, asking for "any video of alleged hand to hand buy with the confidential informant."

On the day of the motion to compel hearing, the defense filed an application to obtain a copy of the video. The application asserted that the State intended to use the recording as evidence at trial but would not allow defense counsel to have a copy to review with Beville. At the hearing, defense counsel emphasized that the trial was going to begin in eight days, that the State would likely use the video in lieu of the CI's testimony, and that having a copy of the video was therefore "fundamental to our preparation." He also argued that the video may not reveal the CI's identity because the camera was most likely pointed at the target of the investigation—not at the CI.

In response, the State claimed that the informer's privilege, and the general policies underlying it, allowed withholding the identity of the CI and any item that would identify the CI. The State elaborated that the privilege ensures individuals come forward with information to assist law enforcement and that "disclosure would only serve to make the CI the target for reprisal from those upset by the investigation." The State also asserted that the CI's identity would, in fact, be revealed through the audio and video of the controlled buy.

The trial court denied Beville's motion to compel but did not issue written findings of fact or conclusions of law. On interlocutory appeal, the Court of Appeals affirmed the trial court in a split decision.

Beville v. State , 51 N.E.3d 1282, 1285 (Ind. Ct. App. 2016).

The Court of Appeals majority agreed that the State showed a "paramount interest" in withholding the CI's identity "to prevent retaliation and ensure that individuals come forward with information to assist law enforcement." Id. (citing Lewis v. State , 726 N.E.2d 836, 843 (Ind. Ct. App. 2000), trans. denied ; Furman v. State , 496 N.E.2d 811, 814 (Ind. Ct. App. 1986) ). The majority also noted that Beville's counsel was offered the opportunity to review the video, which it found sufficient to prepare for trial. Id. Judge Brown dissented, arguing that the record did not establish that the video would reveal the CI's identity; that the State failed to prove, through specific facts, its "paramount interest" in non-disclosure; and that Beville himself should have the opportunity to review the key piece of evidence against him. Id. at 1286 (Brown, J., dissenting).

We granted Beville's petition to transfer, thereby vacating the Court of Appeals' decision. Ind. Appellate Rule 58(A).

Standard of Review

Trial courts have broad discretion on issues of discovery. Hardiman v. State , 726 N.E.2d 1201, 1206 (Ind. 2000) (citing Jenkins v. State , 627 N.E.2d 789, 798 (Ind. 1993) ). Accordingly, discovery rulings—such as rulings on motions to compel—are reviewed for an abuse of that discretion. See id.

Discussion and Decision

This Court has recognized on multiple occasions that the Indiana Trial Rules "are designed ‘to allow liberal discovery.’ " Richey v. Chappell , 594 N.E.2d 443, 445 (Ind. 1992) (quoting Chustak v. N. Ind. Pub. Serv. Co. , 259 Ind. 390, 395, 288 N.E.2d 149, 152–53 (1972) ). Under Trial Rule 26(B), if a defendant makes a specific request for an item that is relevant to his defense and is not privileged, he may obtain discovery of that item. Ind. Trial Rule 26(B)(1). And Trial Rule 34(A) allows the defendant the opportunity not only to inspect the item but also to make a copy of it. T.R. 34(A).

But the Trial Rules also impose certain limits, and when a discovery request is challenged, a court must balance "the need for the information and the burden of supplying it." In re WTHR—TV , 693 N.E.2d 1, 6 (Ind. 1998) (citing Terre Haute Reg'l Hosp., Inc. v. Trueblood , 600 N.E.2d 1358 (Ind. 1992) ). Balancing those competing interests is at the heart of this dispute.

Today we must decide whether a criminal defendant is entitled to discovery of a video recording of an alleged controlled buy between him and a CI. Resolving this question requires us to examine general discovery principles applicable to criminal defendants and the more specific principles governing the State's ability to withhold a CI's identity.

I. Although Both the Dillard Test and the Informer's Privilege Are Well-Established in Indiana, This Court Has Not Resolved How These Two Frameworks Work Together.

Shortly after the Indiana Trial Rules took effect, this Court established the Dillard test. This test set a three-part standard for determining whether a criminal defendant's discovery request should be granted: (1) if there is a sufficient designation of the items sought to be discovered (particularity), and (2) if the items sought to be discovered are material to the defense (relevance), (3) then the trial court must grant the request unless the State makes a sufficient showing of its "paramount interest" in non-disclosure. SeeDillard v. State , 257 Ind. 282, 291–92, 274 N.E.2d 387, 392 (1971) ; see also Hale v. State , 54 N.E.3d 355, 358 (Ind. 2016) (referring to the tripartite test as the "Dillard test"). Notably, this Court has routinely upheld and used the Dillard test since its implementation over four decades ago. See, e.g. , Crawford v. State , 948 N.E.2d 1165, 1168 (Ind. 2011) ; WTHR–TV , 693 N.E.2d at 6 n.4.

Similarly well-established is the informer's privilege. See, e.g. , Schlomer v. State , 580 N.E.2d 950, 954 (Ind. 1991). Under this privilege, Indiana generally withholds the disclosure of evidence that reveals an informant's identity for at least two important policy reasons—preventing retaliation against informants and ensuring individuals come forward with information to help law enforcement. See id. ; Beverly v. State , 543 N.E.2d 1111, 1114 (Ind. 1989). The informer's privilege, however, is not absolute: if the accused seeks disclosure, the burden is on him to "demonstrate that disclosure is relevant and helpful to his defense or is necessary for a fair trial." Schlomer , 580 N.E.2d at 954 (citing Mengon v. State , 505 N.E.2d 788, 790 (Ind. 1987) ). To meet this burden, the defendant must also show that he is not merely speculating that the information may prove useful.¹ Mays v. State , 907 N.E.2d 128, 131 (Ind. Ct. App. 2009), trans. denied . If the defendant overcomes his burden, the burden shifts to the State to present evidence showing that disclosure is not necessary to the defendant's case or that disclosure would threaten its ability to recruit or use CIs in the future. See, e.g. , Williams v. State , 529 N.E.2d 323, 324 (Ind. 1988) ; Furman , 496 N.E.2d at 814. Then, with both sides' evidence, the trial court must determine whether...