State v. Jones

• Decision Date: 07 August 2017
• Docket Number: No. SD 34514.,SD 34514.
• Citation: State v. Jones, 525 S.W.3d 132 (Mo. App. 2017)
• Parties: STATE of Missouri, Respondent, v. Jason M. JONES, a/k/a Jason M. Hilburn, Appellant.
• Court: Missouri Court of Appeals

525 S.W.3d 132

STATE of Missouri, Respondent,

v.Jason M. JONES, a/k/a Jason M. Hilburn, Appellant.

No. SD 34514.

Missouri Court of Appeals, Southern District, Division Two.

Filed: August 7, 2017

Jedd C. Schneider, Columbia, MO, for appellant.

Joshua Hawley, Attorney General, and Robert J, Bartholomew, Jr., Assistant Attorney General, Jefferson, MO, for respondent.

WILLIAM W. FRANCIS, JR., J.

A jury convicted Jason M. Jones ("Jones") of the class B felony of the sale of a controlled substance. Jones was sentenced as a prior and persistent offender to 20 years in the Department of Corrections. This appeal followed. We affirm the trial court's judgment.

Factual and Procedural History

Jones does not challenge the sufficiency of the evidence to support his conviction. Accordingly, we set forth only those facts necessary to address Jones' point, and such other evidence as may be helpful for context. Regardless, for purposes of review, we view the evidence in the light most favorable to the jury's verdict. See , State v. Newberry, 157 S.W.3d 387, 390 (Mo. App. S.D. 2005).

Officer Travis Templemire ("Officer Templemire"), an eight-year veteran with the Missouri State Highway Patrol, was assigned in 2012 to work with the Southeast Missouri Drug Task Force in Butler County primarily doing undercover drug investigations. These undercover operations frequently involved the use of a confidential informant. From 2012 to 2014, Officer Templemire used approximately ten different confidential informants, one being C.W.

On September 9, 2014, Officer Templemire contacted C.W. to arrange a drug buy. C.W. knew of someone who could arrange the drug sale and he contacted Rene' Riley ("Riley"). Officer Templemire and C.W. drove to a residence in Poplar Bluff to meet with Riley to complete a transaction.

At the residence, Riley was standing in front of the house. Officer Templemire observed a vehicle backed into the driveway with a white male in the driver's seat (later identified as Jones), and a white female in the passenger seat (later identified as Riley's sister Erin). Officer Templemire pulled up to the driver's side of Jones' vehicle, and he and C.W. exited his vehicle. Officer Templemire walked up to Jones and told him "what [he was] wanting" and that he had $100 to spend. Jones took a digital scale and placed it on the center console between himself and his passenger. Jones placed a baggie on the scale, whereupon Officer Templemire told Jones that he could not read the scale. Jones told Officer Templemire that the scale read "1-0," which indicated one gram of methamphetamine. Officer Templemire agreed to purchase the product, and Jones handed Officer Templemire the baggie in exchange for the $100.

Following the transaction, Officer Templemire and Jones discussed exchanging phone numbers and possible discount pricing if Officer Templemire bought a larger quantity, or could "move methamphetamine for [Jones]."

After Jones and Erin drove off, Officer Templemire gave Riley $10 for setting up the buy. Officer Templemire and C.W. then left. The entire transaction had been recorded by audio and video. The baggie Jones sold to Officer Templemire was later found to contain methamphetamine.

On June 5, 2015, Jones was indicted by a grand jury for the sale of a controlled substance; a warrant was issued for his arrest.

On November 2, 2015, Jones filed a "Motion for Continuance" of the November 17, 2015 trial date to allow sufficient time to coordinate and take the depositions of Officer Templemire and C.W. The trial court sustained the motion and reset the jury trial for December 2, 2015.

On November 8, 2015, Jones filed a "Motion for Disclosure of Informant," asserting that disclosure of the identity and location of the confidential informant was imperative "to a fair determination of the cause[,]" since such disclosure would permit Jones to adequately prepare the prospective defenses of mistaken identity and/or entrapment. There is no indication from the docket sheet that the motion was argued before, or ruled on by the trial court.¹ However, Jones notes in his brief that:

Trial counsel for Mr. Jones and the Butler County Assistant Prosecuting Attorney, both of whom litigated the majority of this case, have stipulated that Mr. Jones' Motion for Disclosure of Informant was argued before the trial court at various times on November 10, 17, 24 and December 1, 2015 and that the trial court overruled Mr. Jones' motion. However, as of the filing of this brief, undersigned counsel has not yet received the final, signed stipulation, but expects to receive such from trial counsel and the prosecutor very soon. Upon receipt, the undersigned will supplement Mr. Jones' Legal File with this document.

No such stipulation has been filed with this court as part of the record on appeal.

On November 16, 2015, an "Information in Lieu of Indictment" was filed charging Jones, as a prior and persistent offender, with the class B felony of sale of a controlled substance, in violation of section 195.211,² by knowingly selling methamphetamine to Officer Templemire.

On November 19, 2015, Jones filed a notice to take the depositions of Officer Templemire and C.W., to take place on November 23, 2015, at 1:00 p.m., at the offices of the public defender in Poplar Bluff.³ The record is silent as to whether those depositions actually took place.

A jury trial commenced on December 2, 2015. The only witness to testify was Officer Templemire. The video and audio of the drug transaction was admitted into evidence as Exhibit 2, and was played for the jury.⁴ Jones did not testify or present any evidence. The jury convicted Jones of the sale of a controlled substance. Having previously found Jones to be a prior and persistent offender, the trial court sentenced Jones to twenty years' imprisonment.

On December 17, 2015, Jones' filed a "Motion for New Trial." The motion made no reference to the trial court's ruling on Jones' Motion for Disclosure of Informant. The motion for new trial was overruled. This appeal followed.

In his sole point on appeal, Jones argues that the trial court plainly erred in overruling Jones' Motion for Disclosure of Informant, in that Jones established that the identity and location of the confidential informant at issue was relevant to his defense.

The issue for our determination is whether the trial court plainly erred in denying Jones' Motion for Disclosure of Informant.

Standard of Review

Because Jones did not raise the issue under review at trial, or include it in a motion for new trial, Jones concedes that our standard for review is plain error under Rule 30.20.⁵

Rule 30.20 provides that, whether the alleged errors are briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the error has resulted in manifest injustice or miscarriage of justice. In applying plain error review, this Court frequently uses a two-step inquiry. First, the Court must determine whether the claimed error is, in fact, plain error affecting substantial rights. Substantial rights are involved if, facially, there are significant grounds for believing that the error is of the type from which manifest injustice or miscarriage of justice could result if left uncorrected. An error is plain if it is evident, obvious, and clear.... Second, if plain error affecting substantial rights is found, the Court determines whether the error actually did result in manifest injustice or a miscarriage of justice.

State v. Hunt, 451 S.W.3d 251, 260 (Mo. banc 2014) (internal quotations and citations omitted).

Analysis

Rule 25.10 states that, among other matters, the following is not subject to disclosure: "An informant's identity where his identity is a prosecution secret, a failure to disclose will not infringe the constitutional rights of the defendant, and disclosure is not essential to a fair determination of the cause." Rule 25.10(B).

Whether a defendant can have a fair trial without disclosure of the identity of an informant rests within the sound discretion of the trial court. In reviewing a trial court's ruling on this issue, the appellate court must balance the relevance and importance of disclosure to the defense against the State's need for nondisclosure. In doing so, the particular circumstances of a case must be considered including the crime charged, the possible defenses, the possible significance of the informant's testimony, and other relevant factors. The burden is upon the defendant to develop a record showing the need for disclosure.

Communications made by informants to government officials are generally privileged and need not be disclosed. The privilege was formulated to encourage citizens to notify officials of crimes, thus promoting effective law enforcement. The privilege is designed for the protection of the public interest and not for the protection of the informant. Concepts of fundamental fairness may create exceptions to the privilege rule in circumstances in which disclosure of the informant's identity is essential to enable an accused to adequately establish a defense.

A crucial factor to be considered in determining whether disclosure of the informant's identity may be required is the role played by the informant in the criminal activity. When there is active informant participation plus other factors, such as mistaken identity, contradictory testimony, or a denial of the accusation, or when the informant is the sole witness to the crime charged, then the identity of the informant may be required for purposes of fairness. Other instances where disclosure of the identity of the informant may be required are when the informant is the sole participant, other than the accused, in the drug transaction charged or the informant is the only witness in a position to be called on behalf of the defense.

State v. Dowell, 25 S.W.3d 594, 608-09 (Mo. App. W.D. 2000) (internal quotations and citations omitted).

In meeting his burden to develop a...