Gibson v. State

• Decision Date: 01 September 1992
• Docket Number: No. 112,112
• Parties: Mario Troy GIBSON a/k/a Warren Troy Gibson v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 16

331 Md. 16

626 A.2d 44

Mario Troy GIBSON a/k/a Warren Troy Gibson v. STATE of Maryland.

No. 112, Sept. Term, 1992.

Court of Appeals of Maryland.

June 14, 1993.

Melissa M. Moore, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), both of Baltimore, for petitioner.

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

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

CHASANOW, Judge.

This case is before this Court for the second time on the identical issue, namely how to balance the State's interest in concealing a confidential informant's identity against the defendant's need for disclosure of the informant's identity in preparation for trial. For the reasons discussed below, we hold that under the balancing test we have previously enunciated, the facts of this case compel disclosure of the informant's identity to the defense in preparation for trial.

I.

At approximately 10:30 p.m. on January 11, 1990, Trooper John Bollinger of the Maryland State Police was working with an unidentified confidential informant in an attempt to make an undercover purchase of crack cocaine. Trooper Bollinger was in the Dover Street area of Easton when a man the trooper later identified as the defendant, Warren Troy Gibson, approached the passenger side of the car, where the confidential informant was seated, and asked the trooper what he wanted. The trooper indicated that he wished to purchase a small quantity of crack cocaine and was instructed to drive around the block to the parking lot of the Wetcher Whistle bar. There, the same man, described by the trooper as a black male approximately 25 years old, five-foot-ten to six foot 180 to 200 pounds, with a beard, approached the driver's side of the car and handed the trooper a small amount of crack cocaine in exchange for $20. The total time that the trooper had to observe the crack seller, including the initial contact on Dover Street, amounted to approximately three minutes in the darkness of a midwinter night.

At a pretrial hearing to consider Gibson's motion to compel disclosure of the confidential informant, Gibson asserted that there was a substantial doubt as to whether he was properly identified as the cocaine seller and that it was essential to a proper defense that the confidential informant testify with respect to the identification issue. Defense counsel asserted that the trooper identified the cocaine seller as having a beard, but the defendant did not have a beard on the date of the alleged sale. Defense counsel also proffered that the confidential informant, who was present during the transaction, had identified the seller of cocaine as a person named "Mario," but that the defendant had never been known as "Mario." The State countered that it did not intend to call the confidential informant as a witness, nor was it aware of any exculpatory or other evidence possessed by the informant which it was required to disclose under the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial judge denied disclosure of the informant's identity, finding "determinative" the State's submission that it would not call the informant as a witness and the State's representation that any testimony by the informant would only be cumulative.

Gibson was tried before a jury in the Circuit Court for Talbot County on the charge of distribution of cocaine. At trial, the trooper testified that the confidential informant had identified the seller as "Mario," and that the trooper had used this name to mark the evidence and to identify the defendant. The trooper did not know the seller prior to the transaction and did not have any other contact with the seller prior to making the identification. In his report, the trooper described the seller as having a beard. He later testified that he meant a very light beard, perhaps only a few days' growth. The trooper also acknowledged that he made the identification of Gibson one month after the drug transaction based on a photograph.

Gibson testified that on the night in question he had been at home watching television with his sister. Other witnesses also corroborated Gibson's alibi. Several defense witnesses testified that Gibson did not have a beard on the date of the sale and had never been known as "Mario." ¹

Gibson was convicted on the cocaine distribution charge. He appealed to the Court of Special Appeals, raising the question of whether the trial court erred by refusing to compel the State to disclose the identity of the confidential informant. The Court of Special Appeals affirmed the conviction in an unreported opinion. This Court granted Gibson's motion for writ of certiorari and, prior to argument, vacated the judgment of the Court of Special Appeals. Gibson v. State, 327 Md. 53, 607 A.2d 562 (1992). We remanded the case to the Court of Special Appeals for consideration in light of our recent decision in Warrick v. State, 326 Md. 696, 607 A.2d 24 (1992) in which we extensively discussed the informer's privilege.

Following our remand, the Court of Special Appeals, in another unreported opinion, again upheld the trial court's ruling that the State need not disclose the confidential informant's identity to the defense. In doing so, the court concluded that the trial court had properly engaged in the requisite balancing test described by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), under which the trial court must balance the public's interest in protecting the flow of information to law enforcement personnel against the defendant's right to prepare a proper defense. Id. at 62, 77 S.Ct. at 629, 1 L.Ed.2d at 646. Because the Court of Special Appeals found that the trial court invoked the classic language of a balancing test, it held that the court had complied with Roviaro, as well as with this Court's opinion in Warrick, when the trial court denied Gibson's pretrial motion to compel disclosure. We disagree, and we shall reverse.

II.

The informer's privilege is a common law privilege allowing the government to withhold the identity of a confidential informant who has provided law officers with information about violations of the law. "The purpose of the privilege is the furtherance and protection of 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, 644 (1957).

In Roviaro, the government relied at trial on the testimony of two law enforcement officers to convict the defendant of a narcotics violation based on a drug transaction between an unidentified informant and the defendant, Albert Roviaro. One of the officers watched the transaction from some distance away, while another officer, who was secreted in the trunk of the car in which the transaction took place, could only hear, but not see, what was happening. The confidential informant participated in the transaction and was the only witness to it, other than the officers. A government witness also testified that, shortly after the drug transaction and shortly after Roviaro's arrest, the informant saw Roviaro and, at that time, denied knowing Roviaro and denied ever seeing him before. The Supreme Court held that the defendant had a right to disclosure of the informer's identity. The Court noted that the informer was the sole participant, other than the accused and the officers, that the informer was the only witness who could buttress or undermine the testimony of the government witnesses, and that after the drug sale, the informant denied that he knew or had ever seen Roviaro before. Id. at 64-65, 77 S.Ct. at 630, 1 L.Ed.2d at 647.

Roviaro did not impose any absolute rule as to when an informer's identity must be disclosed, but instead called for a balancing test that weighs the public interest in protecting the flow of information to aid in law enforcement against the defendant's right to prepare a proper defense. As the Supreme Court said, "[w]hether a proper balance renders nondisclosure erroneous must depend 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. at 62, 77 S.Ct. at 629, 1 L.Ed.2d at 646. The Supreme Court noted that requirements of fundamental fairness may limit the informer's privilege. Accordingly, "[w]here 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." Id. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d at 645 (footnote omitted). Although we have noted in the past that "[t]he cases universally recognize the exception to the nondisclosure privilege where the informer was a participant, accessory or witness to the crime," Gulick v. State, 252 Md. 348, 354, 249 A.2d 702, 706 (1969), we have also explained that the degree of participation of the informant is not necessarily dispositive of the need to disclose. In Warrick v. State, decided in the last term, we stressed

"that trial courts must apply the Roviaro balancing test in each case, regardless of the labels attached to the informer's role. Gulick, 252 Md. at 354, 249 A.2d at 706; Drouin v. State, 222 Md. 271, 286, 160 A.2d 85 (1960). Clearly, the practical application of the balancing test is more rudimentary in some cases. For example, the privilege ordinarily applies where the informer is a mere 'tipster,' who supplied a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the informer is a participant in the actual crime. United States v. Brinkman, 739 F.2d 977, 981 (4th Cir.1984); Jones v. State 56 Md.App. 101, 110, 466...