Lewandowski v. State

• Decision Date: 19 April 1978
• Docket Number: No. 3-776A166,3-776A166
• Parties: Ronald E. LEWANDOWSKI, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 566

374 N.E.2d 566

Ronald E. LEWANDOWSKI, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-776A166.

Court of Appeals of Indiana, Third District.

April 19, 1978.

Max Cohen, Gary, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Ronald E. Lewandowski was charged by information with two counts of delivery and one count of possession of a controlled substance, to-wit: marijuana. The possession count was dismissed by the State on October 2, 1975. A jury returned a verdict of guilty on each count of delivery of a controlled substance and fixed appellant's penalty at five years on each count. Judgment was entered thereon by the trial court on October 20, 1975. Following the denial of his motion to correct errors, appellant perfected this appeal presenting the following issues for our review:

(1) Whether the trial court erred in failing to require the State to disclose the identity of the informant at trial;

(2) Whether the State showed a proper chain of custody for admission of State's Exhibit No. 1;

(3) Whether the evidence was sufficient to show probable cause to suspect that he was engaged in criminal activity; and

(4) Whether the trial court erred in granting the State's motion in limine preventing appellant from mentioning that the penalty for the sale of marijuana had recently been changed.

Appellant first contends that the trial court erred in failing to require the State to disclose the identity of the informant at trial. The general policy in this regard is one of nondisclosure of the informer's identity. McCulley v. State (1971), 257 Ind. 135, 272 N.E.2d 613; Collett v. State (1975), Ind.App., 338 N.E.2d 286.

In Roviaro v. United States (1957), 353 U.S. 53, at 59, 77 S.Ct. 623, at 627, 1 L.Ed.2d 639, the United States Supreme Court said:

"What is usually referred to as the informer's privilege is in reality 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. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation."

The privilege, however, is not without its limitations. Thus, the privilege yields in instances where disclosure of the informer's identity, or of the contents of his communication, is relevant and helpful to the defense of the accused or is essential to the fair determination of the cause, Roviaro v. United States, supra; McCulley v. State, supra; Collett v. State, supra; Garner v. State (1975), Ind.App., 325 N.E.2d 511; unless the State can show a paramount interest in nondisclosure or an unwarranted risk to the life of the informant. Collett v. State, supra; Garner v. State, supra.

In Roviaro v. United States, supra, 353 U.S. at 62, 77 S.Ct. at 628-29, the court further stated:

"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether 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."

Since the State has the privilege to withhold the identity of an informer, the burden is upon the defendant seeking disclosure to demonstrate an exception to the privilege that the informer remain anonymous. United States v. Alvarez (9th Cir. 1973), 472 F.2d 111, cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148; United States v. Alvarez (9th Cir. 1972), 469 F.2d 1065; State v. Cortman (1968), 251 Or. 566, 446 P.2d 681 (on rehearing); cert. denied, 394 U.S. 951, 89 S.Ct. 1294, 22 L.Ed.2d 487; State v. Gill (1975), 22 Or.App. 484, 539 P.2d 1138; Doe v. State (1972), Fla.App., 262 So.2d 11, citing Treverrow v. State (1967) Fla., 194 So.2d 250; Gill v. State (1971), 11 Md.App. 593, 275 A.2d 505. Both Roviaro and the Indiana decisions implicitly recognize this burden on behalf of the defendant. And, it is only when this initial burden is met that the balancing of the respective interests of the State in nondisclosure and the defendant in marshalling a defense come into play.

In the case at bar, appellant made two separate requests for the identity of the informant. The first request occurred during direct examination of Officer Charles Paul Franko. Officer Franko testified that on March 2, 1975, at approximately 12:30 A.M., he and an informant went to the residence of appellant. After entering the home, Officer Franko seated himself upon a cushion in appellant's living room. There a conversation took place between Officer Franko and appellant. In addition to appellant and Franko, the informant, two women and three men were present when the conversation took place. At this point in the direct examination of the witness, appellant was permitted to voir dire the witness for the purpose of making an objection.

"VOIR DIRE EXAMINATION BY MR. LYONS (FOR THE DEFENDANT)

"Q. Officer, do I correctly understand the conversation involved you and the defendant and the confidential informant?

"A. Yes sir.

"Q. What is the name of that confidential informant?

"MR. SUAREZ: (FOR THE STATE OF INDIANA)

To which we're going to object Your Honor. The Law clearly states that the Officer, police enforcement agencies do not have to reveal the name of a confidential informant.

"MR. LYONS: Your Honor, I don't believe that to be a correct statement of the Law. I'm entitled to know that unless they can show a paramount interest in nondisclosure. At this point there has been no showing of paramount interest in nondisclosure.

"THE COURT: The objection (of the State) is sustained."

The second request for the identity of the informant occurred during the examination of the witness Patrick J. D. Soliday, a detective with the Porter County Sheriff's Department, who testified as to the circumstances underlying a second controlled purchase of marijuana from appellant. Officer Soliday testified that at approximately 1:00 A.M. on March 6, 1975, he and an informant went to appellant's residence to get a purse the informant had left previously. Appellant invited the two inside and a conversation followed in which Officer Soliday, appellant and informant were present. At this point in the witness' testimony, appellant was again permitted voir dire examination of the witness.

"VOIR DIRE EXAMINATION BY MR. LYONS

"Q. Pat, do you know the name of that informant?

"A. Yes I do.

"Q. What is her name?

"MR. SUAREZ: To which we're going to object again Your Honor on the basis that police do not have to disclose the name of the informant.

"MR. LYONS: I make the same observation I did Your Honor. I believe that not to be the Law. There's been no showing of a paramount interest in nondisclosure here.

"THE COURT: Objection is sustained. Sustain the objection to your question Mr. Lyons."

In this context, it must be concluded that the appellant failed to meet his burden of demonstrating his need for disclosure. Appellant made no showing that disclosure of the informer's identity would be "relevant or helpful" in preparing his defense or "essential to a fair determination" of the case. At the points in time where the identity of the informer was sought, the evidence disclosed merely that the informer was present during a conversation. However, mere presence of the informer when marijuana was sold to a police officer has been held to be insufficient to overcome the privilege of nondisclosure. Doe v. State, supra; Kraus v. State (1971), Fla.App., 243 So.2d 214 (cert. denied, Fla., 247 So.2d 324). Moreover, in the first instance involving Officer Franko, there were five other persons present during the conversation. Nevertheless, appellant did not state whether the other persons could or would testify as to the nature of the conversation. See, Gill v. State, supra. The record did not enable the trial judge to assess the materiality and relevancy of the disclosure to the defense so that the trial judge could then weigh the respective interests at stake. Consequently, the trial court did not err in refusing to require disclosure of the identity of the informer.

Appellant next contends that a break in the chain of possession of State's Exhibit No. 1, the marijuana, rendered the exhibit inadmissible at trial under the rule promulgated in Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652. The asserted break in the chain of custody occurred during the period from April 9, 1975, when the officer in charge of the property room Detective Lt. William Joll, Jr. received the exhibit from Officer Soliday, until April 16, 1975, when Lt. Joll locked the exhibit in a safe. After receiving the exhibit from Officer Soliday on April 9th, Lt. Joll locked it in his filing cabinet. Four other detectives and possibly a secretary had a...