State v. Jackson

• Court: Connecticut Supreme Court
• Writing for the Court: McDONALD
• Citation: State v. Jackson, 687 A.2d 485, 239 Conn. 629 (Conn. 1997)
• Decision Date: 07 January 1997
• Docket Number: No. 15428,15428
• Parties: STATE of Connecticut v. Otis JACKSON.

Page 485

687 A.2d 485

239 Conn. 629

STATE of Connecticut v. Otis JACKSON.

No. 15428.

Supreme Court of Connecticut.

Argued Oct. 3, 1996.

Decided Jan. 7, 1997.

Mark Rademacher, Assistant Public Defender, for appellee (defendant).

Before BORDEN, NORCOTT, KATZ, PALMER and McDONALD, JJ.

McDONALD, Associate Justice.

At issue in this appeal is whether the trial court properly ordered the disclosure of the identity of a person who acted as a police informant in a narcotics sale.

The defendant, Otis Jackson, was charged with the sale of cocaine in violation of General Statutes § 21a-278 (b). ¹ After learning that an informant had been instrumental in his arrest, the defendant moved for disclosure of the informant's identity. The trial court, O'Keefe, J., granted the defendant's motion, concluding that disclosure was mandated by the defendant's claim of mistaken identity. After the state refused to disclose the informant's identity, the trial court granted the defendant's motion to dismiss. The state, with permission, appealed to the Appellate Court. The Appellate Court reversed the trial court's judgment of dismissal and remanded the case for a hearing consistent with Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639 (1957). State v. Jackson, 37 Conn.App. 491, 656 A.2d 1056 (1995).

After a hearing on remand, the trial court, J. Walsh, J., ² determined that the state must disclose the identity of the informant because the evidence had failed to show that the informant's identity was confidential and, therefore, covered by the state's privilege to conceal the identity of confidential informants. The state again refused to disclose the informant's identity, and the trial court granted the defendant's motion to dismiss. The state appealed, with permission, from the trial court's judgment of dismissal to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

The trial court found the following facts. On January 20, 1993, an undercover police officer and an informant viewed photographs of fifteen suspected drug dealers. Each of the dealers allegedly frequented Mac's Safari Cafe (Mac's) in Middletown. After viewing the photographs, the undercover officer and the informant entered Mac's. Once inside, the informant pointed to a man and said to the undercover officer: "There is Otis Jackson." The officer and the informant approached the man and the informant stated: "Otis, this is my cousin, take care of him." The informant and the man spoke together for approximately fifteen seconds.

The man then led the undercover officer to the lavatory. Alone together in the lavatory, the same man sold the undercover officer a packet of cocaine for $20. Thereafter, the undercover officer and the informant left Mac's. Immediately after leaving the bar, the undercover officer viewed a photographic array and identified a photograph of the defendant as the man who had sold him cocaine. About two months later, the defendant was arrested.

On the basis of these facts, the trial court held that the informant's involvement in the drug transaction did not rise to the level of participation that would require disclosure of his identity in accordance with Roviaro v. United States, supra, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. The trial court ordered disclosure, however, because it found that the evidence failed to demonstrate that the informant's identity was confidential and, therefore, subject to the confidential informant privilege. The court reasoned that because the informant was known to the man who sold the drugs, there was no reason why his identity should be confidential and therefore it should be disclosed by the state. Because we conclude that the trial court's finding that the informant's identity was not confidential was clearly erroneous, we reverse the trial court's order to disclose the informant's identity and its judgment dismissing the case.

In Roviaro v. United States, supra, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, the United States Supreme Court had occasion to define the nature and scope of the informant's privilege. "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.... 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." (Citations omitted; emphasis added.) Id. at 59, 77 S.Ct. at 627; see State v. Richardson, 204 Conn. 654, 657-58, 529 A.2d 1236 (1987).

Roviaro established a test for assessing challenges to the applicability of the informant's privilege. This test involves the balancing of two competing interests: (1) the preservation of the "underlying purpose" of the privilege; and (2) the "fundamental requirements of fairness." Roviaro v. United States, supra, 353 U.S. at 60, 77 S.Ct. at 627. The underlying purpose of the privilege is to protect the public interest in the flow of information to law enforcement officials. The fundamental requirements of fairness comprise the defendant's right to a fair trial, including the right to obtain information relevant and helpful to a defense. Id. at 60-61, 77 S.Ct. at 627-28; see also State v. Telesca, 199 Conn. 591, 606, 508 A.2d 1367 (1986); State v. McDaniel, 176 Conn. 131, 133, 405 A.2d 68 (1978); State v. Johnson, 162 Conn. 215, 228, 292 A.2d 903 (1972). "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." Roviaro v. United States, supra, at 62, 77 S.Ct. at 628-29.

Informants may be citizens reporting criminal conduct out of both civic responsibility and fear of retaliation. They may also be associates of subjects of investigation reporting crime in the hope of some reward. These professional or criminal informants may report ongoing crimes and also gain for police undercover officers the confidence of their associates. Such informants are useful only so long as they are trusted by the criminals. They fear exposure, all the more, as it may lead to social harm or physical injury.

The privilege to maintain the secrecy of the informant's identity is part of a complex privilege relating to the needs of government. Four general principles should be considered in applying the privilege: "(1) The communications must originate in a confidence that they will not be disclosed ... (2)[t]his element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties ... (3)[t]he relation must be one which in the opinion of the community ought to be sedulously fostered [and] (4)[t]he injury that would inure to the relation by the disclosure ... must be greater than the benefit thereby gained [by disclosure]." 8 J. Wigmore, Evidence (4th Ed.1961) § 2285, p. 527. All four are clearly present in the case of the informant-government relationship.

As Wigmore points out, communications of persons reporting crimes to the government ought to be encouraged. Such people are discouraged, however, if their identity is disclosed. An informant cooperates usually on the condition of his or her anonymity being maintained as protection from physical harm and adverse social reactions. Law enforcement often depends on professional informants and disclosure of their dual role ends their usefulness and discourages others from assuming those roles. Id., § 2374, pp. 761-62. The privilege is, therefore, "well established and its soundness cannot be questioned." Id., p. 762.

Evidence that the informant's role as a police agent is not confidential vitiates the underlying purpose of the privilege. If the informant's role is known, the protection of the informant and the safeguarding of information are no longer served by nondisclosure.

"The privilege ... [for confidential informants] may be invoked by [the state's] officers who as witnesses or otherwise are called on for the information...." C. McCormick, Evidence (4th Ed.1992) § 111, pp. 408-409; see also 2 C. Mueller & L. Kirkpatrick, Federal Evidence (1994) § 229, p. 598 ("[t]he privilege belongs to the [state] rather than the informant, and may be asserted by [state's] counsel"). The state must not only assert the privilege, but also present to the court the underlying circumstances supporting its claim that the privilege applies. Here, the state invoked the privilege through counsel and called witnesses to establish the role played by the informant.

The trial court's determination to apply the privilege is reviewed for abuse of discretion. State v. McDaniel, supra, 176 Conn. at 133, 405 A.2d 68; see also United States v. Lilla, 699 F.2d 99, 105 (2d Cir.1983). We accord great deference to the trial court's factual findings because it is the trial court's function to weigh the evidence and determine the credibility of witnesses. This court, however, "may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence...." Practice Book § 4061; see also State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988). Accordingly, we will disturb the trial court's findings only when those findings are clearly erroneous as where there is no evidence in the record to support such findings. State v. Webb, 238 Conn. 389, 449-50, 680 A.2d 147 (1996); State v. Ellis, 232 Conn. 691, 700-701, 657 A.2d 1099 (1995). Here, we conclude that the trial...