State v. Jessie

• Decision Date: 30 July 1974
• Citation: 521 P.2d 1323,17 Or.App. 368
• Parties: STATE of Oregon, Appellant, v. Leonard Eugene JESSIE, Respondent.
• Court: Oregon Court of Appeals

Page 1323

521 P.2d 1323

17 Or.App. 368

STATE of Oregon, Appellant, v. Leonard Eugene JESSIE, Respondent.

Court of Appeals of Oregon.

Argued and Submitted April 16, 1974.

Decided May 13, 1974.

Rehearing Denied June 26, 1974.

Review Denied July 30, 1974.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Before SCHWAB, C.J., and FORT and TANZER, JJ.

FORT, Judge.

Defendant was indicted for Criminal Activity in Drugs (possession of heroin) in violation of ORS 167.207. Prior to trial he moved for an order compelling the state to disclose the name of the informant whose information to the police led to his arrest. In defendant's memorandum in support of his motion, it is stated:

'* * * Defendant believes that the informant's testimony is essential to the just determination of the issue of guilt or innocence.'

When the state refused to disclose the identity of the informant or to produce him for an in camera examination by the trial court, the trial court entered an order dismissing the indictment. The state appeals pursuant to ORS 138.060(1).

Shortly before 9:50 p.m. on October 11, 1973, Officer Swetman of the Portland Police Bureau was advised by an unnamed informant that the informant had seen defendant and one Richard Wilburn in the latter's automobile; that defendant and Wilburn were attempting to sell a quantity of heroin, and that the heroin in question was contained in a cigarette package which one of the men kept concealed in his sock. However, he did not say which man had the package. Officer Swetman promptly related this information to Officers Morris and Kanzler.

About 15 to 20 minutes later, Officers Morris and Kanzler located the automobile in question. Wilburn and the defendant were in the car. Officer Morris testified that as he approached the vehicle, he saw defendant 'unzip his left boot, remove a green package from it, place it under the floorboard mat and zip his book back up.' Underneath the floor mat in the portion of the automobile where defendant was sitting, the officers found a cigarette package which contained a balloon of heroin.

Defendant stipulated:

'MR. BEARDEN (Deputy District Attorney): Your Honor, we would stipulate the heroin was found in that cigarette package taken from underneath the floor mat, the one Officer Morris saw the defendant take out of his boot.

'THE COURT: And that was underneath the floor mat in the area where Mr. Jessie was sitting; is that correct?

'MR. SCHNEIGER (Metropolitan Public Defender): That's correct.'

Defendant testified that he had only entered Wilburn's automobile about two minutes before the officers had come upon it. He flatly denied taking a package out of his boot or placing anything 'underneath the seat of the car.'

After hearing this testimony, the trial court expressed its opinion that the informant's testimony might have some bearing on the question of defendant's guilt or innocence, in that it might corroborate defendant's assertion that he had only been in Wilburn's automobile for a minute or two, and that the informant's testimony might therefore be material to defendant's case. The court then proposed that a further hearing be held, in the absence of the defendant but with counsel present, during which the informant could be examined to determine whether his testimony would in fact be helpful to the defense.

Defendant agreed to this suggested procedure, but the state objected on the ground that the informant's testimony had not been shown to be potentially helpful to the defense, and on the further ground that the procedure suggested by the court was likely to result in disclosure of the informant despite the precautions suggested.

Defendant thereupon moved that the case be dismissed, and the court granted the motion. The state appeals.

In Oregon State Bar, Criminal Law, § 14.6 (1974), the text states:

'If an informer's role in a case goes beyond the preliminary stage of providing facts which help form the basis of probable cause to arrest or to search, the identity of an informer normally must be revealed. If the informer is a witness to the alleged criminal transaction, or if he participates in it, he is a witness whose identity must be made known to the defense. Roviaro v. United States, 353 US 53, 77 S.Ct. 623, 1 L Ed 2d 639 (1957). In some of these types of cases, the government must actually produce the informer at trial to be available as a witness.

'A motion to require disclosure of the identity of an informer is one that normally will be made prior to trial. If so, defendant usually has the initial burden to demonstrate that the informer's testimony is relevant to the issue of guilt or innocence. State v. Cortman (§ 14.3). The motion may nevertheless be timely if, during trial, it becomes apparent that an informer can testify about that issue. Lopez-Hernandez v. United States, 394 F 2d 820 (9 Cir. 1968).

'The cases discussing whether an informer has to be...