People v. Lewis

• Decision Date: 14 June 1973
• Docket Number: Nos. 72--84,72--85,s. 72--84
• Citation: 301 N.E.2d 469,12 Ill.App.3d 762
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James E. LEWIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 469

301 N.E.2d 469

12 Ill.App.3d 762

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James E. LEWIS, Defendant-Appellant.

Nos. 72--84, 72--85.

Appellate Court of Illinois, Third District.

June 14, 1973.

James Geis, Ill. Defender Project, Ottawa, for defendant-appellant.

William G. Schick, Asst. State's Atty., Rock Island, for plaintiff-appellee.

DIXON, Justice.

The defendant James Lewis was charged with unlawful sale of heroin by two separate indictments. He was found guilty of both charges and he was sentenced by the Circuit Court of Rock Island County to concurrent terms of 15 to 30 years. The two cases were consolidated for appeal by order of this court.

The first issue on appeal is whether defendant's constitutional right to due process and a fair trial was violated by the trial court's refusal to allow discovery of the name and address of the informer who participated in and witnessed the alleged offenses.

(In case No. 72--85)

On June 2, 1972, Illionis Bureau of Investigation Special Agent Grover Webb and a female informer went to the Armstrong residence in Rock Island for the purpose of making a controlled narcotics purchase. Webb testified that the informer suggested that he go to the Armstrong house to purchase narcotics and that she was paid by and under the control of the I.B.I.

Agent Webb further testified that when they entered the house the informer introduced him. After introductions the informer first approached Mrs. Armstrong but there was no sale. Then he and the informer then went out to the porch where the informer asked the defendant to sell him some heroin. The defendant then gave the informer a tin foil packet which later turned out to contain heroin and Webb gave the defendant $50.00.

Mrs. Valeria Armstrong testified that the informer was Nancy Wyerus who knew her well enough to know that she no longer used heroin, that she and Nancy used to 'shoot it together', last year sometime, that Webb and the defendant were never alone on the porch and that before departing Nancy told her that she had not been able to make a purchase.

The defendant testified that no sale was made.

(In case No. 72--85)

Webb testified that on June 3, 1971 he and the same informer again went to the Armstrong residence to make a purchase. That he, the informer and the defendant were alone in the kitchen. At defendant's request the informer called Patricia Armstrong (a daughter of Valeria) into the kitchen whereupon defendant reached into her blouse, removed a foil packet which he gave to Webb in exchange for $100.00. The packet contained heroin.

Patricia Armstrong testified that she had never seen Webb before the day of the trial and that on June 3 defendant was never at her home.

The defendant denied ever being in the home on June 3 and denied a sale.

Prior to both trials the defendant's attorney filed a motion wherein he sought to learn the identify of the informer-participant. The motion was denied. At the first trial on cross-examination of Webb, the defense was not permitted to elicit the informer's name, after a showing by the state that there had been threats to the life of the informer.

The facts in the case before us clearly establish that Valeria Armstrong, a defense occurrence witness had a close personal acquaintanceship with the informer Nancy Wyerus long prior to the offenses charged herein but the defendant did not.

Defendant asserts that the privilege of non-disclosure did not exist in this case, that the prosecution's refusal denied him due process of law, that he was denied his constitutional right to meet the witness against him face to face and to have process to compel attendance of witnesses in his behalf. (Const. Art. I, Sec. 8, S.H.A.).

Could the privilege of refusing to divulge the identity of the informer be properly exercised in this case?

It is a general rule, usually referred to as 'the informers privilege', that the government is privileged to withhold from disclosure (notwithstanding its relevance) the identity of persons who furnish information relating to violations of law to officers charged with enforcement of that law. The privilege is founded on public policy, and seeks to further and protect the public interest in effective law enforcement. Anno: 1 L.Ed.2d 1998. There is an exception to the general rule, which is that if disclosure of the informer's identity is necessary to show the innocence of one accused of crime that the rule must yield to a stronger one which says that one is not to be condemned when his innocence can be established. Anno: 83 L.Ed. 155.

Defendant cites Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In the People v. Mack, 12 Ill.2d 151, 165, 145 N.E.2d 609, 615, our Supreme Court first Discussed Roviaro in the following language, 'The Roviaro case also pointed out that the privilege is not absolute and added to the already established exceptions those cases where disclosure is required by fundamental fairness, e.g., where the disclosure of the identity is relevant and helpful to the defense of the accused, or is essential to a fair determination of the cause. Accordingly, since the informer against Roviaro helped to set up the commission of the crime, * * * And because he had been present at its occurrence, (emphasis supplied) the court concluded that nondisclosure was manifestly unfair, pointing out that the informer was in fact a participant in the crime and that conversations with Roviaro (heard by a concealed police officer), which only the informer could amplify or contradict, had been used as evidence to secure the conviction.' (In Mack, the facts showed that the informer neither participated in the crime nor was he present.)

In People v. Durr, 28 Ill.2d 308, 192 N.E.2d 379 the Supreme Court again recognized the rationale of Roviaro but found that the facts of Durr were distinguishable since the informer was not 'so involved in the commission of the offense that his availability to testify was essential to fundamental fairness'.

In People v. Wilson, 24 Ill.2d 425, 182 N.E.2d 203, the informer was a 'key witness' present at the sale. The defense was entrapment. The informer had been sent beyond the jurisdiction of the court. The court held that The testimony of the informer as to what was said was critical and that the ruling in denying defendant's motion to compel her production deprived defendants of a fair trial. Followed in People v. Williams, 40 Ill.2d 367, 240 N.E.2d 580. (Same facts). Also, see People v. Jarrett, 57 Ill.App.2d 169, 206 N.E.2d 835; People v. Castro, Ill.App., 295 N.E.2d 538.

In People v. Williams, 38 Ill.2d 150, 230 N.E.2d 214, the court stated that the principles of Roviaro were recognized, '* * * when the informer is a material witness on the issue of guilt or innocence of the defendant at the trial'. '* * * when the informer's testimony may bear upon the question of guilt or innocence rather than upon probable cause, the government's interest in protecting its sources of information must yield to the defendant's right to a trial based upon all the relevant evidence'.

Cleary, Handbook of Illinois Evidence, Second Ed., Sec. 10.29 says, 'The privilege is based upon the assumption that the identity of the informer is not relevant to the issues in the case. If this assumption is unfounded in the particular case, as when the informer was a participant in or Witness to the alleged crime and hence might give testimony helpful to the accused, * * *, the privilege is recognized as being inapplicable.'

76 A.L.R.2d 282 states the privilege of non-disclosure must give way and disclosure of the identity of an informer is required where * * * (286) the informer is able to testify directly about the very transaction constituting the crime. Also see: McCormick, Evidence 2d Ed., Sec. 111; 21 Am.Jur.2d Criminal Law, Sec. 332; 58 Am.Jur. Witnesses, Sec. 534 (1972 Cumulative Supplement); Jones on Evidence, 6th Edition, Sec. 21:39; Illinois Evidence Manual, Gard (1972 Supp.) Rule 442; 23 C.J.S. Criminal Law § 954b; Nedrud, The Illinois Law of Criminal Investigation, Part A, Sec. 4.5; Hunter, Trial Handbook for Illinois Lawyers, Fourth Ed. Sec. 17:6; Snpreme Court Rule 412(j) (ii) Committee Comments, Ill.Rev.Stat.1971, c. 110A, § 412(j)(ii).

And, as was stated in Roviaro, 'The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the government to decide.'

We conclude that under the circumstances the trial court committed prejudicial error in permitting the People to withhold the identity of its undercover employee in the face of the demands by the accused for her disclosure. The judgments of the Circuit Court of Rock Island County are reversed and the causes remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

STOUDER, J., concurs.

ALLOY, P.J., dissents and files dissenting opinion.

ALLOY, Presiding Justice (dissenting):

I believe that the decision of the trial court permitting invocation of the informer's privilege in the present case should be upheld. There are grave policy questions involved in this case and in two companion cases being released simultaneously, No. 72--14 (Illinois Appellate Court--Third District)--People v. Weathers, 301 N.E.2d 479 and No. 72--8 (Illinois Appellate Court--Third District)--People v. Flippo, 301 N.E.2d 477, and if any change or modification in the Illinois Rule is made, it should be made only by the Illinois Supreme Court. The effect of the majority opinion would be to destroy the informer's privilege in all cases in which the so-called informer is present or may be a witness at the time of the commission of the narcotics violation. I do not believe that the majority position is consistent with the United States Supreme Court decision in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, nor does it bear...