Gaines v. Hess

• Decision Date: 02 November 1981
• Docket Number: No. 79-1284,79-1284
• Citation: 662 F.2d 1364
• Parties: 9 Fed. R. Evid. Serv. 435 William A. GAINES, Petitioner-Appellant, v. Norman B. HESS and the Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1364

662 F.2d 1364

9 Fed. R. Evid. Serv. 435

William A. GAINES, Petitioner-Appellant, v. Norman B. HESS and the Attorney General of the State of Oklahoma, Respondents-Appellees.

No. 79-1284.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Jan. 30, 1981.

Decided Nov. 2, 1981.

Leonard D. Munker, Federal Public Defender, Wichita, Kan., for petitioner-appellant.

C. Elaine Alexander, Asst. Atty. Gen. (Jan Eric Cartwright, Atty. Gen., and Janet L. Cox, Asst. Atty. Gen., on the brief), Oklahoma City, Okl., for respondents-appellees.

Before SETH, Chief Judge, and HOLLOWAY and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Petitioner William A. Gaines appeals from an order of the United States District Court for the Western District of Oklahoma denying his pro se application for habeas corpus relief. ¹ We vacate the order and remand to the district court for an in camera evidentiary hearing to determine whether the state trial court denied Gaines his due process right to a fair trial by failing to order disclosure of the identity of the police informant involved in this case.

I. Prior Proceedings

On April 22, 1976, Gaines was arraigned in the District Court of Oklahoma County for the crime of unlawful distribution of a controlled dangerous substance, after former conviction of a felony, under 63 Okla.Stat. § 2-401 ² and 21 Okla.Stat. § 51. ³ Gaines was represented at the arraignment by an attorney from the Oklahoma Public Defender's Office.

The same attorney represented Gaines during his trial before a jury in the District Court of Oklahoma County. In that proceeding, the State called two witnesses. The first, Robert Bemo, an undercover police officer with the Oklahoma City Police Department, testified to the following. On the evening of April 13th, he received a phone call from his informant. The informant told him that he knew someone from whom Bemo could purchase some drugs. Bemo then picked up the informant, and they drove to the parking lot of the Village South Apartments in Oklahoma City. At approximately 8:00 p. m., Gaines approached the two of them and offered to sell Bemo a tinfoil packet containing a mixture of THC and cocaine. Bemo purchased a packet from Gaines for $10.

The Information filed against Gaines had not revealed that an informant was present at the sale. On cross-examination of Bemo, counsel for Gaines requested the name and address of the informant. An objection was made, and the court refused to compel disclosure. The second witness, Rodney Sherrer, a forensic chemist employed at the Oklahoma State Bureau of Investigation, testified that the substance in the packet was phencyclydine, a hallucinogenic compound falling within Schedule Three of the Oklahoma Controlled Dangerous Substance Act.

After the State rested, Gaines' counsel requested a lunch break in order to telephone a witness. Following an hour and a half break, Gaines' counsel called Gaines to the stand. Counsel asked Gaines if he previously had been convicted of a felony, to which Gaines replied that he had been convicted of first degree manslaughter and of burglary. Gaines then testified that on the evening of the alleged crime, he had been babysitting at the Village South Apartment for Ms. Pam Madison, a college classmate. Gaines denied he had sold a controlled dangerous substance to officer Bemo.

When Gaines left the stand, his counsel requested ten minutes to see if he could locate Pam Madison, the witness he had been attempting to reach during the lunch break. Gaines' counsel explained that he was having difficulty finding her because she had recently moved. The record shows the trial judge was annoyed that Gaines' counsel had not subpoenaed the witness, but he ultimately allowed a twenty minute recess for the purpose of locating her. Unable to locate Madison during the recess, the defense rested.

The trial court instructed the jury that punishment for unlawful distribution of a controlled dangerous substance after former conviction of a felony, "is for any term not less than ten (10) years ...." Rec., vol. II, Court's Instruction No. 7. The jury returned a verdict of guilty and assessed Gaines' punishment at fifty years.

Gaines exhausted his state remedies. He then filed in the United States District Court for the Western District of Oklahoma for a writ of habeas corpus, attacking the judgment and sentence of the state trial court. The district court dismissed the petition. Appealing the dismissal, Gaines contends that the lower court ignored the following constitutional violations committed during his state court trial: (1) denial of his Fourteenth Amendment due process right to a fair and impartial trial; (2) imposition of an excessive sentence in violation of the Eighth Amendment; and (3) denial of his Sixth Amendment right to effective assistance of counsel.

II. Disclosure of Informant's Identity

Relying upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), Gaines asserts the trial court denied him due process in failing to require the prosecution to divulge the name of the informant who set up the drug transaction and who was present during the sale. In Roviaro, the Supreme Court made clear that the "Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law" is not an absolute one. Id. at 59, 77 S.Ct. at 627. "Where the disclosure of an informer's identity, or 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." Id. at 60-61, 77 S.Ct. at 627-628. The Court said the matter involves balancing the public interest in protecting the flow of information respecting criminal activities against "the individual's right to prepare his defense." Id. at 62, 77 S.Ct. at 628. Where the balance falls "depend(s) on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id.

Roviaro involved a direct appeal from a conviction in a federal district court for violations of the United States Code. Since the Court could ground its decision on federal evidentiary rules, it did not need to determine whether nondisclosure also violated the defendant's constitutional rights. Here, we are faced with a habeas corpus petition challenging state trial proceedings, and we are limited in our review of error to those of constitutional magnitude. See Brinlee v. Crisp, 608 F.2d 839, 843 (10th Cir. 1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). However, we agree with the other federal courts that have actually ruled in the context of habeas corpus proceedings, that disclosure of an informant's identity in situations analogous to Roviaro is mandated by the Constitution. See McLawhorn v. North Carolina, 484 F.2d 1, 5 (4th Cir. 1973); Pena v. Leferve, 419 F.Supp. 112, 116-17 (E.D.N.Y.1976); Hawkins v. Robinson, 367 F.Supp. 1025, 1029-34 (D.Conn.1973). Cf. United States v. Emory, 468 F.2d 1017, 1020-21 (8th Cir. 1972) (due process concerns underlie Rovario ; direct appeal); Burwell v. Teets, 245 F.2d 154 (9th Cir. 1957) (due process concerns underlie Rovario ; withholding of records by prosecutor). See also United States v. Myers, 327 F.2d 174, 180 (3d Cir.), cert. denied, 379 U.S. 847, 85 S.Ct. 88, 13 L.Ed.2d 52 (1964); Hernandez v. Nelson, 298 F.Supp. 682, 685-86 (N.D.Cal.1968).

The Court in Roviaro declared that "fundamental requirements of fairness" require restrictions on the Government's privilege to refuse disclosure of an informant's identity. Rovario, 353 U.S. at 60, 77 S.Ct. at 627. This strongly indicates that the Court was referring to a constitutional limitation on the privilege, for few phrases are more closely associated to a constitutional guarantee than is the term fundamental fairness. The very "touchstone of due process is fundamental fairness." Gibbany v. Oklahoma, 415 F.Supp. 1117, 1121 (W.D.Okl.1976). Accord, Pena v. Leferve, 419 F.Supp. at 116. See Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941); Miller v. North Carolina, 583 F.2d 701, 706 (4th Cir. 1978); Aldens, Inc. v. LaFollette, 552 F.2d 745, 750 (7th Cir.), cert. denied, 434 U.S. 880, 98 S.Ct. 236, 54 L.Ed.2d 161 (1977).

We do not see how the Court's usage of the term could be otherwise construed. The public's interest in effective law enforcement is an important one. But at some point, withholding the identity of an informant who may be critical to the conduct of the defense infringes the defendant's constitutional right to a fair trial, which obviously includes the right to adequately prepare and present that defense. Roviaro clearly establishes that a blanket disclosure rule is not required. Only under circumstances in which nondisclosure would deprive the defendant of his due process right to a fundamentally fair trial is disclosure constitutionally mandated. Cf. McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967) ("What Roviaro makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity even in formulating evidentiary rules for federal criminal trials.")

This case may present such circumstances. The transaction here was not simply one in a series of drug sales involving Gaines. Gaines' defense was that he was not the person who sold drugs to officer Bemo. The informant in question set up the transaction and was the only witness to the sale other than Bemo and the seller. Thus, the informant could testify directly to the critical issue in the case: whether Gaines was the seller. The informant's existence was...