Brooks v. State

• Decision Date: 06 September 1990
• Docket Number: No. 160,160
• Citation: 578 A.2d 783,320 Md. 516
• Parties: Barry DeWayne BROOKS v. STATE of Maryland. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 516

320 Md. 516

578 A.2d 783

Barry DeWayne BROOKS v.STATE of Maryland.

No. 160 Sept. Term 1989.

Court of Appeals of Maryland.

Sept. 6, 1990.

Motion for Reconsideration Denied

Oct. 9, 1990.

Gary S. Offutt, Asst. Public Defender(Alan H. Murrell, Public Defender, both on brief) Baltimore, for petitioner.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief) Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE and CHASANOW, JJ.

MURPHY, Chief Judge.

At a jury trial in the Circuit Court for Anne Arundel County(Wolff, J), Barry DeWayne Brooks was convicted of distribution of cocaine and sentenced to eighteen months' imprisonment.The Court of Special Appeals affirmed the judgment in an unreported opinion.We granted certiorari to determine whether, at a pretrial hearing, the court(Thieme, J.) erred in denying Brooks's motion to compel disclosure of the State's informer.

I.

On March 4, 1988, Detectives Foote and Young of the Anne Arundel County Police Department were conducting an undercover operation in the Bywater community, a housing project in Annapolis.They drove into the area in an unmarked vehicle, accompanied by an informer, and bought cocaine from an individual while seated in their car.On May 25, 1988, almost two months after the transaction, Brooks was arrested as the criminal agent and charged with distribution, possession with intent to distribute, and simple possession of cocaine.

Prior to trial, Brooks moved to compel disclosure of the informer.He proffered to show that he had been misidentified as the seller and that the informer was a crucial witness to negate any police testimony to the contrary.The State conceded that the informer was present throughout the transaction and that he introduced the seller to the detectives.It maintained, however, that the State's privilege to conceal the identity of informers was applicable because the informer was not an integral part of the transaction.

The court rejected Brooks's proffer and denied the motion.It ruled that disclosure is not required if the informer is a mere tipster so that, even if he accepted Brooks's proffer, "the only thing I've heard is that at most [the informer] was a tipster."

At trial, Detective Foote testified that, prior to March 4, 1988, he had "received numerous names" of individuals, including Brooks, who were suspected of dealing narcotics.He also testified that, on the day of the sale, Detective Young was driving the unmarked vehicle, the informer was sitting in the front passenger seat, and Detective Foote was sitting in the back seat, behind the informer.Detective Young stopped the vehicle so that the driver's side was next to the passenger's side of an already-parked white Chevrolet Nova.A tall, light-skinned black man was exiting the passenger side of the Nova.The informer knew him.Detective Young rolled down his window and the informer said, "Hey, Barry, can I holler at you for a minute?"The man came over to Detective Young's window and discussed with Young the type and quantity of narcotic he was seeking.The man thereafter said he would return.He walked towards the housing project and returned in five minutes, getting into the back seat of the car behind Detective Young and exchanging money for a package of what later was tested to be cocaine.He told the detectives to come to a housing project in the Newtown area, near Bywater, if they wanted more cocaine.He then left the vehicle.According to Detective Foote, at no time did the seller stand next to the passenger's side of the unmarked car, where the informer was sitting.

Detective Young gave a substantially similar version of the transaction.However, contrary to Detective Foote's testimony, Detective Young said that it was the informer, not he, who initiated discussion about purchasing narcotics.

Neither detective had met Brooks before the day in question, and the police report written the day after the transaction only identified Brooks by height and weight.Detective Foote testified that he had seen Brooks on approximately four prior occasions, always in the Newtown area.He remembered seeing him once alone, twice in a crowd of mostly "dark-skinned, black males," and once driving a white Chevrolet.¹On none of these occasions did Detective Foote approach him.The detective also testified that he had seen a photograph of Brooks prior to the day of the unlawful transaction, but that his identification of Brooks at trial was based on the transaction.

Detective Young testified that he had seen Brooks on about five occasions before March 4, 1988, but that he could not have described Brooks's weight or any identifying characteristics before the day of the transaction; he had known only that Brooks was a tall, light-skinned black man.Detective Young had run a check on the license plate of the Chevrolet that they had seen driven by an individual thought to be Brooks, and learned that Brooks owned the vehicle.The detective did not run a similar check on the license plate of the white Nova which was observed on March 4.The detective also saw the photograph of Brooks approximately two days after the transaction.Neither detective reexamined the photograph in the subsequent seven months before trial, and there was no evidence that they saw Brooks in person again during that time.

Brooks did not present any evidence.He noted in closing argument that neither detective, either at the time of the transaction or at trial, had commented on Brooks's facial scar or his two gold-trimmed teeth as assisting them in identifying him.

Before the Court of Special Appeals, Brooks argued that Judge Thieme committed reversible error when he denied the motion to compel disclosure of the informer's identity.He claimed that Judge Thieme mislabelled the informer a "tipster," and then failed to weigh Brooks's specific claim of misidentification against the State's interest in withholding the identity of the informer.

The Court of Special Appeals agreed that the informer was not a mere "tipster."It reasoned that the informer issue was "mid-point along a spectrum which is free of ambiguity at both ends."It held that, had the informer been a mere "tipster," his disclosure would not have been required.On the other hand, it said that had the informer been an active participant in the crime itself, his disclosure could be compelled.The court then held that, as a witness, the informer stood between the two categories and that, in those circumstances, the law entrusts the disclosure decision to the wide discretion of the judge at the pretrial hearing.The court concluded that Judge Thieme had fairly exercised his discretion in denying the motion.It also found that, in making the motion, Brooks was "involved either on a fishing expedition or an opportunity to make procedural mischief for future appellate purposes."In so holding, the intermediate appellate court determined that Judge Thieme's decision not to compel disclosure of the informer's identity was fortified by the fact that the two officers had seen Brooks on three or four previous occasions, had seen his vehicle, and had identified his photograph.

II.

The State's privilege to withhold from disclosure the identity of its informers has long been recognized, not only in Maryland, Drouin v. State, 222 Md. 271, 279, 160 A.2d 85(1960), but throughout the country.McCray v. Illinois, 386 U.S. 300, 308, 87 S.Ct. 1056, 1061, 18 L.Ed.2d 62(1967).The purpose of the privilege is to further and protect the public interest in effective law enforcement.Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639(1957).

" 'Communications of this kind ought to receive encouragement.They are discouraged if the informer's identity is disclosed....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.' "

McCray, 386 U.S. at 308-09, 87 S.Ct. at 1061(quoting8 J. Wigmore, Evidence§ 2374(McNaughton rev. 1961)).The informer's privilege is especially important " 'in the enforcement of ... narcotics laws, [since] it is all but impossible to obtain evidence for prosecution save by the use of decoys.There are rarely complaining witnesses.' "Lewis v. United States, 385 U.S. 206, 210-11, n. 6, 87 S.Ct. 424, 427 n. 6, 17 L.Ed.2d 312(1966)(quotingModel Penal Code § 2.10, comment, p. 16(Tent. DraftNo. 9, 1959)).AccordMcCray, 386 U.S. at 312, 87 S.Ct. at 1063.

While the State's interest in maintaining the anonymity of its informers is manifestly important, that interest is necessarily circumscribed by the defendant's interest in a fair trial.In this regard, the Supreme Court held in Roviaro, its seminal case on this issue, that the privilege is limited by fundamental fairness requirements when determining the guilt or innocence of the accused."Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way."353 U.S. at 60-61, 77 S.Ct. at 627-628.This is the applicable standard when determining whether the State's privilege accedes to the defendant's constitutional rights of due process and confrontation.United States v. Valenzuela-Bernal, 458 U.S. 858, 870, 102 S.Ct. 3440, 3448, 73 L.Ed.2d 1193(1982).See alsoMd. Rule 4-263(c)(2).

In that same vein, the Court held that the privilege is limited to its underlying purpose.Roviaro, 353 U.S. at 60, 77 S.Ct. at 627.Thus, once the identity of the informer has been disclosed to those who would resent the communication, the privilege no longer applies if its purpose of protecting...