Ortez v. State
| Decision Date | 16 September 1975 |
| Docket Number | 1--1174A175,1--1274A182,Nos. 1--1274A183,s. 1--1274A183 |
| Citation | 333 N.E.2d 838,165 Ind.App. 678 |
| Parties | Isidore ORTEZ, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). Ersell BRIDGES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). William BATSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Appellate Court |
Robert Howard Brown, William G. Smock, Terre Haute, for Ortez and bridges.
Woodrow S. Nasser, Nasser & Felling, Terre Haute, for Batson.
Theodore L. Sendak, Atty. Gen. of Indiana, Robert S. Spear, Walter F. Lockhart, Deputy Attys. Gen., Indianapolis, for appellee.
The defendants-appellants (Ortez, Batson, Bridges) each appeal a conviction of illegal sale of a dangerous drug. Because each appeal contains the same controlling issue, we consolidate them, pursuant to Ind.Rules of Procedure, Appellate Rule 5(B).
FACTS:
Beginning in the fall of 1972, the Indiana State Police, in conjunction with the Terre Haute Police Department, began an extensive drug investigation in Vigo County. During the first stages of this investigation, the State Police enlisted the aid of John Dallas Wise, Jr. (Wise) as an informer. It is apparent from the three transcripts that Wise was used extensively by the investigating officers (Wood and Green), and that he was paid for his efforts.
The particular facts leading to the arrests of Ortez, Batson and Bridges need not be recounted for purposes of this opinion. It is sufficient to state that the police and each appellant give opposing accounts of the allegedly illegal sales and that in each case Wise was instrumental in establishing initial contact with the three appellants, and was present when each allegedly illegal sale took place.
The last drug transaction with which we are concerned took place February 16, 1973, at the home of Ortez. On that same day, or possibly the next, Wise was paid four hundred dollars ($400) and he boarded a plane for California. At present, Wise's whereabouts are unknown.
At the trial of each case issue was taken with the unavailability of Wise for deposition and examination. Batson filed a motion to produce Wise, which was denied; Ortez submitted a motion requesting the issuance of a subpoena for Wise, which was granted; and Bridges filed a motion to disclose evidence, which was denied, only on the ground that the court had already ordered the State to produce Wise.
As noted, Wise was not produced for deposition or trial, and Batson, Ortez and Bridges all filed motions to dismiss based on the absence of a material witness. In each case, the motion to dismiss was denied, and the causes continued to trial without the filing of motions for continuance based on the absence of Wise, or any attempt to locate and return him for examination.
The central argument raised by Batson, Ortez and Bridges is that they were denied a fair trial because the State purposefully and in bad faith made Wise unavailable to defense counsel. It is asserted that Wise was clearly a material witness because of his participation in each of the transactions, and that the police knew him to be such.
Ortez, Bridges and Batson contend that the state police advised Wise to leave the area at the conclusion of the investigation, and further told him that he would never have to testify. It is contended that Wise was not merely an informer, but a paid participant, and that he should not be hustled away when his materiality to the defense was obvious.
The appellants contend that the action by the state police deprived them of invaluable evidence, and violated the Fifth, Sixth and Fourteenth Amendments to the Constitution.
While the State admits that a defendant may be granted extensive pre-trial discovery, it contends that it has no duty to call or produce a particular witness. The State also argues that it did not at any time conceal the name of the informer, nor refuse to attempt to locate Wise. The State admits that Wise was advised to leave the Terre Haute area 'for his health', but asserts that it did make unsuccessful efforts to locate Wise in California.
Further, the State contends that the proper remedy of a continuance was not used here; thus the absence of Wise was waived. The State also notes that there was no offer to prove Wise's testimony; that there was no proof that the State was actively concealing Wise; that the defense did not attempt to produce Wise; and that there has been no demonstration of prejudice resulting from Wise's absence.
Batson, Ortez and Bridges raise various other arguments in their briefs. However, we need not discuss them inasmuch as we have determined that all of the present appeals must be reversed on the issue of the production of the informant, John Wise.
The main case relied upon in all three appeals is Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In that case Roviaro sought to learn the identity of an informant who participated in a drug transaction. Roviaro's numerous requests were denied, and he was convicted.
The Supreme Court recognized the value of not disclosing the names of informers in every case. However, the court noted that the privilege of the government to withhold the identity of informers is 'limited by its underlying purpose.' The court went on to say that
(Footnotes omitted.)
In concluding its discussion, the Supreme Court stated that
(Our emphasis.)
Following Roviaro, the lower federal courts have established a procedure which remains the standard today. If the informant was not a participant or witness, identity will be withheld; but where the informant was actively involved or observed at the scene of the crime, then disclosure is required. See, Hawkins v. Robinson, 367 F.Supp. 1025 (D.Conn.1973), and cases cited; Annot., 76 A.L.R.2d 267 (1961).
Clearly, we are not here concerned with the failure or refusal of the State to disclose the identity of an informer--Wise's identity was known well before trial. We are, however, concerned with the power and ability of the State to effectively deny to a defendant evidence which may be crucial to the formulation of a proper defense. We are, as stated by the Supreme Court, concerned with the 'fundamental requirements of fairness.' The result to the defendant is the same whether the informant is unknown or unavailable, and our inquiry is not therefore limited by the precise factual background of Roviaro and its progeny.
The Indiana Supreme Court has clearly established at least a limited right to pre-trial discovery by a criminal defendant. See, Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536; Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60, Antrobus v. State (1970), 253 Ind. 420, 254 N.E.2d 873. This right of discovery includes the right to the names of witnesses who will be used to support the prosecution's case. Johns, supra.
In addition, our Supreme Court has recognized that a conviction may be reversed on constitutional grounds where the police negligently destroy or withhold material evidence. Hale v. State (1967), 248 Ind. 630, 230 N.E.2d 432. This conduct by police or prosecution was recently discussed in Birkla v. State (1975), Ind., 323 N.E.2d 645, where our Supreme Court stated that
'. . . the duty of the prosecutor vis-a-vis a defendant's right to fair trial commences when the citizen is charged. Thus, a suppression by the prosecution of evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or punishment, irrespective of the bona fides of the prosecution. Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Prior to any request for discovery by the defendant, the negligent destruction or withholding of material evidence by the police or the prosecution may present grounds for reversal. Hale v. State (1967), 248 Ind. 630, 230 N.E.2d 432.
The prosecutor, however, is not yet required to disclose or produce nonmaterial evidence. Hence, the prosecutor, after a charge has been filed but before the defendant has requested discovery, may determine whether particular nonmaterial evidence should, nevertheless, be produced, retained or destroyed. If the prosecutor decides to retain evidence of questionable materiality, it is clear that his subsequent conduct at trial in exaggerating its nonproduction, may enhance the materiality and require its production.
Arline v. State (1973), Ind.App., 294 N.E.2d 840. In support of the present rule permitting prosecutorial discretion in the destruction of nonmaterial evidence, the state argues that a mandatory retention rule 'would require the police and prosecutors to become repositories of superfluous material, obligated to preserve the fruits of absolutely every inquiry made, however meritless or fallacious they were revealed to be upon further investigation.' We cannot say the interest advanced...
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