Schlomer v. State

• Decision Date: 07 November 1991
• Docket Number: No. 42S00-9006-CR-412,42S00-9006-CR-412
• Citation: 580 N.E.2d 950
• Court: Indiana Supreme Court
• Parties: Dave SCHLOMER, Appellant, v. STATE of Indiana, Appellee.

Page 950

580 N.E.2d 950

Dave SCHLOMER, Appellant, v. STATE of Indiana, Appellee.

No. 42S00-9006-CR-412.

Supreme Court of Indiana.

Nov. 7, 1991.

John D. Clouse, John P. Brinson, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Dealing in Cocaine in Excess of Three Grams, Count I; Dealing in Cocaine in Excess of Three Grams, Count III; and Maintaining a Common Nuisance, Count IV. He also was found to be a habitual offender. The court granted appellant's motion for judgment on the evidence as to Count II, Maintaining a Common Nuisance. Appellant was sentenced to a total of seventy (70) years on Count I, forty (40) years plus an enhancement of thirty (30) years, forty (40) years on Count III, and four (4) years on Count IV, all sentences to be served concurrently.

The facts are: In April, 1989, Indiana State Police officer Richard McGee, assigned to the Wabash Valley Drug Task Force, was directed by Officer Holt to investigate appellant's activities. A confidential informant assisted McGee in arranging meetings with appellant. On April 13, 1990, McGee spoke with appellant on the telephone and arranged a meeting that day. At the meeting, McGee gave appellant $2,200 for 1.5 ounces of cocaine. Pending delivery of the cocaine, appellant gave McGee the title to an automobile as collateral for the money. On April 14, 1989, McGee and the confidential informant drove to appellant's trailer. They were directed to a nearby empty field to wait. When appellant arrived, he gave McGee 40.544 grams of cocaine.

On April 27, 1989, McGee and the informant drove to appellant's trailer. McGee gave appellant $1,500 as prepayment for one ounce of cocaine. On April 30, 1989, McGee and the informant drove to appellant's trailer. Once there, they waited inside for appellant. McGee testified that when appellant arrived, he was brandishing a gun and appeared to be agitated. McGee testified that he asked the confidential informant if appellant's actions meant the deal was off. The confidential informant followed appellant to the back room of the trailer. The informant returned shortly and indicated that appellant had the cocaine. McGee went into the back room where appellant delivered a bag containing 26.72 grams of cocaine.

During the habitual offender phase of the trial, certified copies of the convictions of David J. Schlomer in Knox Superior Court, Cause Numbers SCR76-43 and SCR81-37, were admitted in evidence. Leslie Chanley, a former Vincennes Police Officer, had filed a charge against a David J. Schlomer for robbery in 1976. He identified appellant as David Schlomer. Edward Wessell, a fingerprint expert, compared the fingerprints included in the records of the SCR81-37 conviction and commitment with prints known to be appellant's and concluded that the prints were from the same person.

On direct examination, McGee testified that the confidential informant did not handle the money used to purchase cocaine or the cocaine. The transactions between appellant and McGee were hand-to-hand buys. On cross-examination, McGee stated that the confidential informant's presence during the transactions was necessary because the informant was acquainted with appellant and the locations where the transactions occurred.

Tracy Schlomer and Robert Carrie, witnesses for the defense, testified that they were present at the April 30 transaction, that the informant and appellant were the only ones who went to the back room, and that the informant spent a long time in that room before rejoining McGee in the living room. They further testified that at that point McGee and the informant left appellant's trailer. Carrie testified that he also was present on April 14 and that appellant did not deliver cocaine to McGee.

The trial court granted the State's motion in limine regarding disclosure of the confidential informant's identity. On at least two occasions during appellant's direct examination of Carrie, he violated that motion in limine by referring to the informant's name.

Prior to trial, appellant filed a motion to compel disclosure of the identity and location of the confidential informant. The trial court denied the motion. McGee testified that he was unaware of the informant's whereabouts at the time of trial.

Holt testified on cross-examination that he did not know the specific whereabouts of the informant at the time of trial but that he could probably find the informant if he made an attempt. Holt testified that it was his understanding that the court had already dealt with the issue of disclosing the location of the informant, and that he would not make that disclosure at the time of trial without a court order directing him to do so. Holt further testified that the informant had been advised prior to the transactions that he would not have to testify at trial if the transactions were hand-to-hand buys as opposed to controlled buys. Holt indicated that the informant was afraid of appellant because of threats made by appellant against him.

Appellant admits that he was aware of the identity of the informant but contends that the identity of the informant should have been disclosed to the jury. Appellant contends that the informant's testimony is material because of the informant's presence and participation in the drug transactions.

Appellant argued in his motion to compel disclosure that he was harmed because the informant's testimony could aid in proving the defense of entrapment. Appellant also speculated that the informant's testimony could have proven that there was no delivery to McGee. Appellant argued that the State had no paramount interest in nondisclosure of the informant's identity and location, and that the State wished to deny appellant access to exculpatory information known only by the informant. Appellant now argues that the court was in error in denying his motion.

Holt testified that there were several reasons why he would not disclose the identity and location of the informant. First, Holt had promised the informant that he would try to protect his identity. The transactions were purposely structured so that the informant was merely an introductory tool, not an active participant, so he would not have to testify if the matter went to trial. Second, Holt testified that the informant's safety was in question. The State introduced evidence that appellant had made threats against both McGee and the informant.

The general policy is to prevent disclosure of an informant's identity unless the defendant can demonstrate that disclosure is relevant and helpful to his defense or is necessary for a fair trial. Mengon v. State (1987), Ind., 505 N.E.2d 788. The burden rests with the defendant to demonstrate his need for disclosure. Id. The trial court had before it evidence that the defense knew the identity of the informant. There was evidence that the informant's safety was in danger. The trial court did not abuse its discretion in denying the motion to compel.

None of the evidence presented at trial was obtained directly from the informant. Appellant put two witnesses on the stand who testified that appellant and McGee did not make a transaction on either occasion. At that point it was, as appellant concedes, a credibility issue. The credibility of witnesses and the weight given to their testimony is for the trier of fact. Tiller v. State (1989), Ind., 541 N.E.2d 885.

The defense witnesses were present on the dates of the transactions and testified that they were in a position to see everything that transpired. Given the fact that the informant's degree of participation was that of an introductory tool, his testimony could not have produced any exculpatory material not already in evidence. See Adamov v. State (1989), Ind., 536 N.E.2d 281. Disclosure of the informant's identity is not necessary where the officer carries out the transaction and the informant is not an active participant. See Fundukian v. State (1988), Ind., 523 N.E.2d 417.

Appellant's right to a fair trial was protected by way of the final instructions to the jury. The jury was instructed that just because the State's key witness was a police officer it did not mean that his testimony deserved greater weight. They were instructed that nothing the judge said during the course of the trial was intended to suggest a verdict, that the State could have produced the informant to testify at trial, and that the State's failure to call the informant as a witness could give rise to the inference that his or her testimony would be unfavorable to the State.

Appellant has failed to demonstrate how disclosure of the confidential informant's identity or location would have been relevant or helpful to the defense or the fairness of the trial. We see no error in the trial court's denial of appellant's motion to compel disclosure.

Appellant further contends that the trial court committed error when it allowed testimony that the motion to compel disclosure had been overruled. On cross-examination of Holt, appellant asked Holt if he would assist the defense by revealing in court the present location of the informant. Holt testified that he would not do so unless directed by the court because he believed that the court had already addressed the issue.

Appellant claims now that Holt's testimony during redirect examination was irrelevant and prejudicial. Holt testified that he was aware of appellant's attempts to force disclosure of the informant's name and location, and that it was his understanding that the trial court had denied the motion. Appellant contends that he was denied the right to a fair trial because allowing that testimony gave the trial judge the appearance of favoritism toward the State's cause.

The scope of redirect is limited to matters presented on cross-examination. May v. State (1986), Ind., 502 N.E.2d 96...