Jones v. State, 1492

CourtCourt of Special Appeals of Maryland
Citation659 A.2d 361,105 Md.App. 257
Docket NumberNo. 1492,1492
PartiesAnzelo JONES aka Angelo Jones v. STATE of Maryland. ,
Decision Date01 September 1994

Page 257

105 Md.App. 257
659 A.2d 361
Anzelo JONES aka Angelo Jones
STATE of Maryland.
No. 1492, Sept. Term, 1994.
Court of Special Appeals of Maryland.
June 6, 1995.

[659 A.2d 362]

Page 259

Shannon E. Avery, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief) Baltimore, for appellant.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.) Baltimore, for appellee.

Submitted to BISHOP, ALPERT and BLOOM, JJ.

ALPERT, Judge.

At the centerpiece of this appeal is an issue never before addressed by a Maryland appellate court: what action should be taken by a trial court when a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has occurred?

On October 7, 1993, Officer Kevin Turner of the Baltimore City Police Department received a tip from a confidential informant that a black male dressed in a black hat, a black, purple and green sweatsuit, black pants, and Fila tennis shoes was selling drugs in the area of Fayette and Monroe streets in Baltimore City. This informant was registered with the Police Department and had supplied reliable information in the past. Officer Turner, in plain clothes, responded to Fayette and Monroe streets and began conducting covert surveillance of the area from his unmarked vehicle. While there, he observed several persons approach a juvenile, later identified as Tyrice Hawkins, and give him cash. Hawkins, in turn, gave this money to a man, who fit the description given to Turner by the informant. Turner then observed Hawkins walk across

Page 260

the street, retrieve glass vials of a white substance from an alley, and give the vials to the persons who had given him money.

After observing two or three such transactions take place, Turner went to the police station and returned approximately five minutes later with two uniformed officers. Hawkins and appellant (the man earlier observed by Turner) were placed under arrest. The police found one hundred and fifty five dollars in appellant's possession. A brown bag containing twelve vials of cocaine was recovered from the alley. Appellant was charged with use of a minor to distribute cocaine, possession of cocaine with intent to distribute, possession of cocaine, conspiracy to distribute cocaine, conspiracy to possess cocaine with intent to distribute, and conspiracy to possess cocaine.

Prior to trial, appellant's attorney moved to suppress the money that was recovered from appellant. Defense counsel also requested that the identity of the confidential informant be disclosed, invoking the exception to the non-disclosure privilege which permits release of the informant's identity when the identity of the suspect is at issue. Appellant's attorney argued to the court that although appellant was wearing clothing similar to that described by the informant, he was not the individual who the informant saw selling drugs. The trial court refused to [659 A.2d 363] permit disclosure of the informant's identity and denied appellant's motion. Appellant was convicted by a Baltimore City jury (Ross, J., presiding) on all charges and was sentenced to fourteen years imprisonment. In this appeal, appellant presents the following three questions for our review:

I. Did the trial court err in refusing to hold an in camera hearing on the issue of whether to order disclosure of the confidential informant?

II. Did the trial court err in ruling that Batson was violated by defense counsel when striking five white persons from the jury panel?

Page 261

III. Did the trial court err in reseating the stricken jurors?

I. Disclosure of Informant's Identity

Appellant argues first that the trial court erred in refusing to permit disclosure of the confidential informant's identity and refusing to at least hold an in camera hearing on the matter.

Relying on the Supreme Court's decision in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Court of Appeals has adopted a balancing test for determining whether disclosure of an informant's identity is warranted in a particular case. Warrick v. State, 326 Md. 696, 699-700, 607 A.2d 24 (1992). This test balances the State's interest in maintaining the anonymity of its informers against the due process and confrontation rights of the accused. Id.

As the Supreme Court has instructed, in applying this test, the trial court must look to "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." Roviaro, 353 U.S. at 62, 77 S.Ct. at 628. A "key element" is "the materiality of the informer's testimony to the determination of the accused's guilt or innocence...." Warrick, 326 Md. at 701, 607 A.2d 24. Stated differently, disclosure of an informant's identity may be permitted "whenever the informer was an integral part of the illegal transaction." McCoy v. State, 216 Md. 332, 337, 140 A.2d 689, cert. denied, McCoy v. Pepersack, 358 U.S. 853, 79 S.Ct. 82, 3 L.Ed.2d 87 (1958) (emphasis added).

It has been held, for instance, that an informant's identity should be disclosed when the informant introduced the police to the suspect, was present during a drug buy, or otherwise played an active role in the transaction. See Roviaro, 353 U.S. at 64-65, 77 S.Ct. at 629-30 (informant participated in undercover buy); Warrick, 326 Md. at 705-06, 607 A.2d 24 (informant introduced undercover police officer to drug dealer); Brooks v. State, 320 Md. 516, 519, 578 A.2d 783 (1990)

Page 262

(informant introduced seller of cocaine to officers and was present during entire transaction). In these instances, the informant's ability to identify the suspect "may be relevant and helpful to the defense or essential to a fair determination of the case." Warrick, 326 Md. at 706, 607 A.2d 24.

The Court of Appeals has cautioned, however, that the particular role played by the informant in apprehending the defendant is not necessarily dispositive of whether or not the privilege of non-disclosure applies. Gibson v. State, 331 Md. 16, 23, 626 A.2d 44 (1993); Brooks, 320 Md. at 525, 578 A.2d 783 (holding that "trial courts must apply the Roviaro balancing test in each case, regardless of the labels attached to the informer's role"). On the other hand, there are some "more rudimentary" cases where the informant's testimony clearly has such limited relevance that disclosure of the informant's identity would be of no appreciable help to the defendant and would be outweighed by the State's interest in maintaining the confidentiality of its informants.

In Brooks, 320 Md. at 525, 578 A.2d 783, the Court of Appeals explained:

Clearly, the practical application of the balancing test is more rudimentary in some cases. For example, we recognize that the privilege ordinarily applies where the informer is a mere 'tipster,' who supplies 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.

(citations omitted).

This case presents the classic example of the informant as a mere "tipster." [659 A.2d 364] Officer Turner received a telephone call from the informant notifying him that someone wearing a black hat, a black, purple, and green sweatsuit, black pants, and Fila tennis shoes was selling drugs in a specified area. Turner responded to the scene within one-half hour and saw an individual matching this description selling drugs. The informant did not accompany Turner to the scene and did not witness the drug sales; he was, therefore, a mere "tipster."

Page 263

Moreover, whether the informant identified appellant as the individual he had seen earlier selling drugs in the same area is irrelevant; the fact remains that Officer Turner himself witnessed appellant doing so. We agree with the trial court's rationale in refusing to permit disclosure of the informant's identity:

I think the record before this Court is abundantly clear that the issue raised by the Defendant is whether or not the person arrested is the person whom the witnesses saw on the day the offense was committed and the informant was not there. The informant is not an eyewitness to anything on the day of the crime. So that the fact finder in this case, with respect to anything--and even if we assume, even if we assume for the purposes of the Court's ruling on this issue that the informant informed on a totally different person, it is not this Defendant that he informed on[,] [i]t is irrelevant because the testimony is that the Defendant was seen committing the crime and the person who saw the crime committed arrested him on the same day. The fact that the informant may have had someone else in mind would be a red herring in the factual context we have in this case.

Still, appellant maintains that the record is unclear as to exactly what role the informant played in the transaction and that an in camera hearing on the matter should have been held. Contrary to appellant's assertions, however, there was clearly testimony at the suppression hearing clearly revealed that the informant's involvement in apprehending appellant was limited to the telephone call he or she made to Officer Turner.

Q Officer Turner, at the time you were there making your observations, was your CI present on that particular block?

A No, sir.

Q And you received that information from the CI, were you on the phone with him or back at the station or--

A In my office on the telephone.

Q Back at Western District?

A Yes, sir.

Page 264

Q Did he accompany you at all back to that scene?

A No, sir. 1

We hold, therefore, that the trial court properly refused to permit disclosure of the informant's identity. The relevance of his or her testimony is clearly limited under the facts of this case and is far outweighed by the State's interest in maintaining the anonymity of its informant. As the Supreme...

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